Agenda packet — City Council and Authorities Concurrent, July 12, 2022 (part 2 of 6)

Attachment No. 2
Bid Summary

HIGH-INTENSITY ACTIVATED CROSSWALK BEACON
ON SCOTT BLVD AT HARRISON ST PROJECT (CE 20-21-08)
BID SUMMARY Bid Opening Date: June 8, 2022
ENGINEER’S ESTIMATE: $ 442,000
Contractor Total Bid ($) Percentage above/below
Engineer’s Estimate
Bear Electrical Solutions, Inc. $ 419,614.00 5.1% below St. Francis Electric LLC $ 517,214.00 17.0% above
Tennyson Electric, Inc. $ 537,222.00 21.5% above
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-837 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action on a Resolution Approving Purchase and Sale Agreements for Easements on the Memorex Junction Transmission Line Extension Project

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
The City of Santa Clara’s Electric Utility, Silicon Valley Power (SVP), is proposing to construct approximately 0.6 miles of new single circuit 60 kilovolt (kV) overhead transmission line within the eastern area of the City of Santa Clara. One of the objectives of the Memorex Junction Transmission Line Extension Project (Project) is to provide service to the new Memorex Junction Substation to be constructed as a part of the 1200 Memorex Development and potentially other datacenter or industrial developments within the vicinity.

The new 60 kV transmission line would be constructed along or crossing the following city streets:

Lafayette Street, Shulman Avenue, Memorex Drive, Ronald Street and Di Giulio Avenue.

The City Council has previously taken a number of actions on the project:
· April 14, 2021 - Approved a Funding Agreement with 1220 Santa Clara PropCo, LLC, Relating to City Predesign Engineering Activities for the Memorex Junction Substation Project and Related Budget Amendment
· November 9, 2021 - Action on the Adoption and Certification of an Environmental Impact Report; Adoption of a Mitigation Monitoring or Reporting Program; and Architectural Approval of a Data Center project located at 1200-1310 Memorex Drive · March 22, 2022 - Delegated Authority to the Office of the City Manager to negotiate and execute the substation agreement for Silicon Valley Power with 1220 Santa Clara Propco, LLC for Memorex Junction Substation
Other actions taken for this project include a November 1, 2021 community meeting to present and take comments from the community on the transmission line route.

The Project requires the acquisition of eight (8) parcel easements to facilitate construction of new monopole steel structures and results in the acquisition of new easements for electrical facilities.

DISCUSSION
The City has negotiated the proposed purchase of the easements from the following three property City of Santa Clara Page 1 of 2 Printed on 7/8/2022
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22-837 Agenda Date: 7/12/2022
owners of certain parcels necessary for the Project, upon the terms set forth below.

Address Grantors APN Purchase
Price
2380 Lafayette St Dinapoli Family L. P. 224-63-020 $28,290 1045 Shulman Ave Berto Development 224-63-006 $20,000
2206 Lafayette St. Panis, Felix A and Remelita S 224-67-042 $25,000

ENVIRONMENTAL REVIEW
The potential impacts to the Project were addressed in the November 9, 2021 Council Action Adopting a Mitigation Monitoring or Reporting Program of a Data Center project located at 1200-1310 Memorex Drive.

FISCAL IMPACT
The total cost of the easement purchases is $73,290. This cost will be covered per the executed substation agreement with 1220 Santa Clara Propco, LLC. This action has no fiscal impact to the General Fund as the Project is fully funded by developer contributions.

COORDINATION
This report has been coordinated with the Finance Department and 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]> or at the public information desk at any City of Santa Clara public library.

RECOMMENDATION

1. Adopt the Resolution approving the purchases of overhead electric easements at 2380 Lafayette Street [APN 224-63-020], 1045 Shulman Avenue [APN 224-63-006], and 2206 Lafayette Street [APN 224-67-042]; and

2. Authorize the recordation thereof.

Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: City Manager’s Office

ATTACHMENTS

1. Resolution

2. Agreement for Purchase and Sale - 2380 Lafayette Street [APN 224-63-020]

3. Agreement for Purchase and Sale - 1045 Shulman Avenue [APN 224-63-006]

4. Agreement for Purchase and Sale - 2206 Lafayette Street [APN 224-67-042] City of Santa Clara Page 2 of 2 Printed on 7/8/2022
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Resolution/Approving Purchase of Overhead Electric Easement Page 1 of 2 Rev: 11/22/17
RESOLUTION NO. _____

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA,

APPROVING PURCHASES OF OVERHEAD ELECTRIC

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

WHEREAS, the City of Santa Clara, a chartered city and municipal corporation acting by and through its municipally owned utility, Silicon Valley Power (“City” or “SVP”) is constructing approximately 0.6 miles of new single circuit 60 Kilovolt overhead transmission lines within the eastern area of the City of Santa Clara for the Memorex Junction Transmission Line Extension Project (“Project”). One of the objectives of the Project is to provide service to the new Memorex Junction Substation for the Memorex Data Center project and other potential datacenter or industrial developments within the vicinity;
WHEREAS, the Project will involve the placement of multiple new monopole steel structures and result in either the expansion of existing electric overhead and wire clearance easements or the acquisition of new easements;
WHEREAS, the Project was analyzed in accordance with the requirements of the California Environmental Quality Act (CEQA). This Project was analyzed in the Final Environmental Impact Report for the Memorex Data Center Project, which was adopted by Council on November 9, 2021, by Resolution No. 21-9017; and
WHEREAS, on June 8, 2021, and December 14, 2021, City Council provided authority in closed session to negotiate Easements with owners of certain parcels required to construct the Project and the City has reached agreements with the 3 property owners to purchase easements necessary for the Project, upon the terms set forth below. ///
///
///
Resolution/Approving Purchase of Overhead Electric Easement Page 2 of 2 Rev: 11/22/17

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

1. That the purchase of the easements from the following 3 property owners for the negotiated purchase prices are approved.

Address Grantors APN Purchase Price
2380 Lafayette St Dinapoli Family L. P. 224-63-020 $28,290 1045 Shulman Ave Berto Development 224-63-006 $20,000
2206 Lafayette St. Panis, Felix A and Remelita S 224-67-042 $25,000

2. That the City Manager, or his duly authorized designee, is hereby authorized and directed to execute a Purchase and Sale Agreement (Utility Easement) with each of the forgoing Grantors, in a form substantially the same as the form(s) of Purchase and Sale Agreement (Utility Easement) attached hereto as Exhibits A, B and C.

3. 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:

1. Report to Council #22-837

2. Agreement for Purchase and Sale – 2380 Lafayette Street [APN 224-63-020]

3. Agreement for Purchase and Sale – 1045 Shulman Avenue [APN 224-63-006]

4. Agreement for Purchase and Sale – 2206 Lafayette Street [APN 224-67-042]

EXHIBIT A

AGREEMENT FOR PURCHASE AND SALE
(UTILITY EASEMENT)
THIS AGREEMENT FOR PURCHASE AND SALE ("Agreement") is made and entered into as of ______ , 20_ {the "Effective Date") by and between CITY OF SANTA CLARA ("Grantee" or "City") and Berto Development, a California limited partnership ("Grantor) with regard to the purchase and sale of certain property interests, upon the terms and conditions set forth herein.

RECITALS
WHEREAS, The City of Santa Clara's Electric Utility, Silicon Valley Power (SVP), plans to construct approximately 0.6 miles of new 60 kilovolt (kV) overhead transmission line along Shulman Avenue, Memorex Drive, Ronald Street, Di Giulio Avenue and Lafayette Street within the northwestern area of the City of Santa Clara. SVP's primary objective of the Memorex Loop Project ("Project") is to increase system capacity and reliability.

WHEREAS, the Project will involve the placement of multiple new monopole steel structures and/or replace existing wood pole structures and result in either the expansion of existing electric overhead and wire clearance easements or the acquisition of new easements.

WHEREAS, Grantee wishes to acquire from Granter, and Grantor wishes to sell to Grantee certain property rights, as more particularly described in Exhibit A (the "Easement") for the Project upon the terms and conditions set forth herein.

WHEREAS, Granter and Grantee recognize that the sale of the Easement is subject to approval of the Santa Clara City Council and that this Agreement shall have no force or effect unless and until said City Council approval has been obtained, which approval shall be obtained before execution of the Agreement by Grantee.

NOW THEREFORE, in consideration of the mutua! covenants and promises of the parties, the parties hereto agree as follows:

ARTICLE 1

PURCHASE

1.1. The Easement. Granter is the fee owner of certain real property commonly known as 1045 Shulman Ave. APN: 224-63-006 located in the City of Santa Clara, California over which the Easement will cross.

1.2. Sale and Conveyance. Granter shall sell to Grantee and Grantee shall purchase from Granter, all of the terms and conditions set forth in Articles 2 and 3 hereof, the Easement.

ARTICLE 2

PURCHASE PRICE

2.1. Purchase Price. The purchase price ("Purchase Price") for the Easement shall be Twenty Thousand and no/100 Dollars ($20,000.00).
!f1
SCLA" 56598\2322245.1

EXHIBIT B

AGREEMENT FOR PURCHASE AND SALE
(UTILITY EASEMENT)
THIS AGREEMENT FOR PURCHASE AND SALE ("Agreement") is made and entered into as of ______ , 20_ (the "Effective Date") by and between CITY OF SANTA CLARA ("Grantee" or "City") and Felix A. Panis and Remelita S. Panis, Husband and Wife, as Joint Tenants ("Grantor) with regard to the purchase and sale of certain property interests, upon the terms and conditions set forth herein.

WHEREAS, Grantee wishes to acquire from Grantor, and Grantor wishes to sell to Grantee certain property rights, as more particularly described in Exhibit A (the "Easement") for the Project upon the terms and conditions set forth herein.

WHEREAS, Grantor and Grantee recognize that the sale of the Easement is subject to approval of the Santa Clara City Council and that this Agreement shall have no force or effect unless and until said City Council approval has been obtained, which approval shall be obtained before execution of the Agreement by Grantee.

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

ARTICLE 1

PURCHASE

1.1. The Easement. Granter is the fee owner of certain real property commonly known as : 2206 Lafayette Street, APN: 224-67-042 located in the City of Santa Clara, California over which the Easement will cross.

1.2. Sale and Conveyance. Grantor shall sell to Grantee and Grantee shall purchase from Grantor, all of the terms and conditions set forth in Articles 2 and 3 hereof, the Easement.

ARTICLE 2

PURCHASE PRICE
2 .1 . Purchase Price. The purchase price ("Purchase Price") for the Easement shall be Twenty Five Thousand and no/100 Dollars ($25,000.00).

SCLA-56598\2322245. l

EXHIBIT C

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-758 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action on an Agreement with Environmental Systems Research Institute, Inc. for ArcGIS Geographic Information System Software and Support Services

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
In 2010, the City implemented ArcGIS Geographic Information System from Environmental Systems Research Institute, Inc. (ESRI) to capture, store, manage, analyze, and display location-based information. With location being a common attribute across City services and assets, collecting this information into a central location has enabled the City to operate more efficiently.

The ESRI ArcGIS system is integrated with City business applications such as the Police Computer Aided Dispatch (CAD), Police Records Management System (RMS), Asset Management, and Permit Management systems. These systems provide staff and the public access to location-based information, enabling operational effectiveness, data driven decision making, cross departmental and regional coordination, citizen engagement and transparency. Maps and data built on the ESRI ArcGIS platform support tracking underground assets, routing emergency responses, managing land and building permits and inspections, coordinating stadium events, and planning for emergency services.

The current agreement with ESRI, which was approved by the City Council in 2019 will expire on August 16, 2022.

DISCUSSION
Approval of the proposed agreement will renew the agreement with ESRI for three years through August 16, 2025. The agreement provides the City with unlimited use of the system at a fixed cost of $82,500 per yearfor a total of $247,500 over three years. While pricing increased by 10% under this proposed agreement, ESRI demonstrated that they have not had a price increase since 2013, and it is consistent with the increase in the Consumer Price Index of 10.2% from 2019 to 2022. Therefore, staff deemed the increase to be fair and reasonable.

This recommendation meets the single/sole source criteria in Section 2.105.160(b)(2) of the City Code “When required to ensure operation or function to match other products with respect to repair, expansion, or completion of a system, existing structure or program currently in use by the City, including, but not limited to, utility and technology purchases required to achieve interoperability with existing systems or programs.”
City of Santa Clara Page 1 of 2 Printed on 7/8/2022
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22-758 Agenda Date: 7/12/2022

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(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
The FY 2022/23 operating budget has sufficient funding to cover the costs for this contract and no further budget action is required.

COORDINATION
This report was coordinated with the Finance Department and the City Attorney’s Office.

RECOMMENDATION

1. Authorize the City Manager to execute an agreement with Environmental Systems Research Institute, Inc. for Arc GIS Geographic Information System software and support services for a three -year term starting on or around August 17, 2022 and ending on or around August 16, 2025, with maximum compensation not to exceed $247,500, subject to the appropriation of funds;

2. Authorize the City Manager to execute amendments to add and/or delete system functionalities, subject to the appropriation of funds; and

3. Authorize the City Manager to renew the agreement with Environmental Systems Research Institute, Inc. at the end of the three-year term, for as long as the software is being used by the City and subject to the appropriation of funds.

Prepared by: Gaurav Garg, Director, Information Technology/CIO Reviewed by: Cynthia Bojorquez, Assistant City Manager
Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. Agreement with ESRI
City of Santa Clara Page 2 of 2 Printed on 7/8/2022
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Quotation # Q-464813
Date: May 5, 2022
Environmental Systems Research Institute, Inc.
380 New York St
Redlands, CA 92373-8100
Phone: (909) 793-2853 Fax: (909) 307-3049
DUNS Number: 06-313-4175 CAGE Code: 0AMS3
Customer # 419261 Contract # ENTERPRISE

AGREEMENT
City of Santa Clara
Information Technology Dept
1405 Civic Center Dr
Santa Clara, CA 95050-4622
To expedite your order, please attach a copy of ATTENTION: Gaurav Garg this quotation to your purchase order. PHONE: (408) 615-2021 Quote is valid from: 2/25/2022 To: 5/26/2022 EMAIL: [email protected] Material Qty Term Unit Price Total
168180 1 Year 1 $82,500.00 $82,500.00
Populations of 100,001 to 125,000 Small Government Term Enterprise License Agreement 168180 1 Year 2 $82,500.00 $82,500.00
Populations of 100,001 to 125,000 Small Government Term Enterprise License Agreement 168180 1 Year 3 $82,500.00 $82,500.00
Populations of 100,001 to 125,000 Small Government Term Enterprise License Agreement Subtotal: $247,500.00
Sales Tax: $0.00
Estimated Shipping and Handling (2 Day Delivery): $0.00 Contract Price Adjust: $0.00
Total: $247,500.00
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management, procurement, or invoice program.

For questions contact:

Sandi McDaniel
Email:
[email protected]
Phone:
(916) 448-2412 x2058
The items on this quotation are subject to and governed by the terms of this quotation, the most current product specific scope of use document found at https://assets.esri.com/content/dam/esrisites/media/legal/product-specific-terms-of-use/e300.pdf, and your applicable signed agreement with Esri. If no such agreement covers any item quoted, then Esri’s standard terms and conditions found at https://go.esri.com/MAPS apply to your purchase of that item. If any item is quoted with a multi-year payment schedule, then unless otherwise stated in this quotation, Customer is required to make all payments without right of cancellation. Third-party data sets included in a quotation as separately licensed items will only be provided and invoiced if Esri is able to provide such data and will be subject to the applicable third-party's terms and conditions. If Esri is unable to provide any such data set, Customer will not be responsible for any further payments for the data set. US Federal government entities and US government prime contractors authorized under FAR 51.1 may purchase under the terms of Esri’s GSA Federal Supply Schedule. Supplemental terms and conditions found at https://www.esri.com/en-us/legal/terms/state-supplemental apply to some US state and local government purchases. All terms of this quotation will be incorporated into and become part of any additional agreement regarding Esri’s offerings. Acceptance of this quotation is limited to the terms of this quotation. Esri objects to and expressly rejects any different or additional terms contained in any purchase order, offer, or confirmation sent to or to be sent by buyer. Unless prohibited by law, the quotation information is confidential and may not be copied or released other than for the express purpose of system selection and purchase/license. The information may not be given to outside parties or used for any other purpose without consent from Esri. Delivery is FOB Origin for customers located in the USA.

MCDANIELS This offer is limited to the terms and conditions incorporated and attached herein.

Quotation # Q-464813
Date: May 5, 2022
Environmental Systems Research Institute, Inc.
380 New York St
Redlands, CA 92373-8100
Phone: (909) 793-2853 Fax: (909) 307-3049
DUNS Number: 06-313-4175 CAGE Code: 0AMS3
Customer # 419261 Contract # ENTERPRISE

These items are not included in the totals of this quotation.

Material Qty Unit Price Total
168442 1 $8,000.00 $8,000.00
ArcGIS GeoEvent Server Populations of 100,001 to 125,000 Small Government Term Enterprise Agreement 168442 1 $8,000.00 $8,000.00
ArcGIS GeoEvent Server Populations of 100,001 to 125,000 Small Government Term Enterprise Agreement 168442 1 $8,000.00 $8,000.00
ArcGIS GeoEvent Server Populations of 100,001 to 125,000 Small Government Term Enterprise Agreement 161337 2 $5,000.00 $10,000.00
ArcGIS GeoEvent Server Up to Four Cores Maintenance
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management, procurement, or invoice program.

For questions contact:

MCDANIELS This offer is limited to the terms and conditions incorporated and attached herein.

AGREEMENT
City of Santa Clara
Information Technology Dept
1405 Civic Center Dr
Santa Clara, CA 95050-4622
To expedite your order, please attach a copy of ATTENTION: Gaurav Garg this quotation to your purchase order. PHONE: (408) 615-2021 Quote is valid from: 2/25/2022 To: 5/26/2022 EMAIL: [email protected] _________________________________________________________________________________________________________________________________ If you have made ANY alterations to the line items included in this quote and have chosen to sign the quote to indicate your acceptance, you must fax Esri the signed quote in its entirety in order for the quote to be accepted. You will be contacted by your Customer Service Representative if additional information is required to complete your request.

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

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

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

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

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

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

For questions contact:

MCDANIELS This offer is limited to the terms and conditions incorporated and attached herein.

Esri Use Only:

Cust. Name
Cust. #
PO #
Esri Agreement #

Page 1 of 6 ends

SMALL ENTERPRISE AGREEMENT

COUNTY AND MUNICIPALITY GOVERNMENT
(E214-4)
This Agreement is by and between the organization identified in the Quotation ("Customer") and Environmental Systems Research Institute, Inc. ("Esri").

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

Table A
List of Products
Uncapped Quantities
Desktop Software and Extensions (Single Use)
ArcGIS Desktop Advanced
ArcGIS Desktop Standard
ArcGIS Desktop Basic
ArcGIS Desktop Extensions: ArcGIS 3D Analyst,
ArcGIS Spatial Analyst, ArcGIS Geostatistical Analyst,
ArcGIS Publisher, ArcGIS Network Analyst, ArcGIS
Schematics, ArcGIS Workflow Manager, ArcGIS Data
Reviewer
Enterprise Software and Extensions
ArcGIS Enterprise and Workgroup
(Advanced and Standard)
ArcGIS Monitor
ArcGIS Enterprise Extensions: ArcGIS 3D Analyst,
ArcGIS Spatial Analyst, ArcGIS Geostatistical Analyst,
ArcGIS Network Analyst, ArcGIS Schematics, ArcGIS
Workflow Manager
Enterprise Additional Capability Servers
ArcGIS Image Server
Developer Tools
ArcGIS Engine
ArcGIS Engine Extensions: ArcGIS 3D Analyst, ArcGIS
Spatial Analyst, ArcGIS Engine Geodatabase Update,
ArcGIS Network Analyst, ArcGIS Schematics
ArcGIS Runtime (Standard)
ArcGIS Runtime Analysis Extension
Limited Quantities
One (1) Professional subscription to ArcGIS Developer
Two (2) ArcGIS CityEngine Single Use Licenses
500 ArcGIS Online Viewers
500 ArcGIS Online Creators
62,500 ArcGIS Online Service Credits
500 ArcGIS Enterprise Creators
7 ArcGIS Insights in ArcGIS Enterprise
7 ArcGIS Insights in ArcGIS Online
100 ArcGIS Tracker for ArcGIS Enterprise
100 ArcGIS Tracker for ArcGIS Online
5 ArcGIS Parcel Fabric User Type Extensions (Enterprise) 5 ArcGIS Utility Network User Type Extensions (Enterprise) 5 ArcGIS Trace Network User Type Extensions (Enterprise)

OTHER BENEFITS
Number of Esri User Conference registrations provided annually 4 Number of Tier 1 Help Desk individuals authorized to call Esri 4 Maximum number of sets of backup media, if requested* 2 Five percent (5%) discount on all individual commercially available instructor-led training classes at Esri facilities purchased outside this Agreement
*Additional sets of backup media may be purchased for a fee

Page 2 of 6 ends

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

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

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

Accepted and Agreed:
(Customer)
By:

Authorized Signature
Printed Name:

Title:

Date:

CUSTOMER CONTACT INFORMATION
Contact: Telephone:

Address: Fax:

City, State, Postal Code: E-mail:

Country:

Quotation Number (if applicable):

Page 3 of 6 ends

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

2.0—ADDITIONAL GRANT OF LICENSE

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

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

3.0—TERM, TERMINATION, AND EXPIRATION

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

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

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

3.4 Termination for Lack of Funds. For an
Agreement with government or government-

Page 4 of 6 ends

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

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

4.0—PRODUCT UPDATES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7.0—ADMINISTRATIVE REQUIREMENTS

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

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

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

8.0—ORDERING, ADMINISTRATIVE

PROCEDURES, DELIVERY, AND

DEPLOYMENT

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

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

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9.0—MERGERS, ACQUISITIONS, OR

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

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

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

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

Master Agreement
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Revised April 1, 2022
IMPORTANT—READ CAREFULLY
Unless superseded by a signed license agreement between you and Esri, Esri is willing to provide Esri Offerings and Services to you only if you accept all terms and conditions contained in this Agreement as the sole and final agreement of the parties regarding your acquisition of these Esri Offerings and Services. Please read the terms and conditions carefully. You may not use the Esri Offerings until you have agreed to the terms and conditions of the Agreement. If you do not agree to the terms and conditions as stated, click "I do not accept the Master Agreement" below; you may then request a refund of applicable fees paid.

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

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

1.0 GENERAL GRANT OF RIGHTS AND RESTRICTIONS

1.1 Grant of Rights. In consideration of Customer's payment of all applicable fees and in accordance with this Agreement, Esri
a. Provides Services as set forth in this Agreement;
b. Grants to Customer a nonexclusive, nontransferable right and license or subscription to access and use Esri Offerings as set forth in the Specifications and applicable Ordering Documents; and c. Authorizes Customer to copy and make derivative works of the Documentation for Customer's own internal use in conjunction with Customer's authorized use of Esri Offerings. Customer will include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensors in any derivative work:
"Portions of this document include intellectual property of Esri and its licensors and are used under license. Copyright © [Customer will insert the actual copyright date(s) from the source materials.] Esri and its licensors. All rights reserved."
The grants of rights in this section (i) continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement including Attachment B.

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

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

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

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2.0 SOFTWARE AND ONLINE SERVICES

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

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

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

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

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

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

Server Licenses may be subject to a limited number of server cores or distributed deployment on multiple servers as described in the Ordering Documents or Documentation. If the Software description includes failover use rights, each Server License includes a Failover License. q. "Service Credit(s)" means a unit of exchange for consumption of services that can be used with an Online Services Subscription.
r. "Sharing Tools" means publishing capabilities included with Customer's authorized use of Online Services or ArcGIS Enterprise that allow Customer to make Customer Content and Value-Added Applications available to third parties or Anonymous Users.

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s. "Single Use License" means a license for a single authorized end user to install and use Software on a single computer. The single authorized end user may also install a second copy for the end user's exclusive use on a second computer as long as only 1 copy of Software is in use at any time. No other end user may use Software under the same license at the same time for any other purpose. t. "Staging Server License" means a license to use Software under a Server License to build and test ValueAdded Applications and map caches; conduct user acceptance, performance, and load testing of other thirdparty software; stage new commercial data updates; and conduct training activities as described in the Documentation. Customer may use Value-Added Applications and map caches with Development and Deployment Server Licenses.

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

2.3 Software Terms of Use.
a. Customer may

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

2. Make archival copies and routine computer backups;

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

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

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

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

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

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

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

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

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

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

2.6 Value-Added Applications.

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

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

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

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

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

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

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

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3.0 DATA

3.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. "Business Listing Data" means any dataset that includes a list of businesses and may include other associated business attributes.
b. "Esri Content Package(s)" means a digital file containing Online Services basemap Data extracted from the Online Services.
c. "Street Data" means Data that includes or depicts information about roads, streets, and related features.

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

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

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

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

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

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

2. Synchronized multivehicle routing; or

3. Synchronized route optimization.
e. Business Analyst Data. Customer may cache Data provided with ArcGIS Business Analyst Mobile App on a mobile device for use in conjunction with its use of ArcGIS Business Analyst Server. Customer may not otherwise cache or download such Data.

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f. Partial Dataset Licenses: If Customer orders a subset of a dataset (e.g., a country, region, state, or local portion of a global database), Customer may use only the licensed subset, not any other portion of the full dataset.
g. Michael Bauer Research International Boundaries Data ("MBR Data"). Customer's right to use data downloaded to Customer's premises (e.g., MBR Data stored in ArcGIS Enterprise, ArcGIS Desktop) terminates 2 years after download.

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

4.0 MAINTENANCE

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

4.2 Customers outside the United States. Customer may obtain maintenance services from their local Esri authorized distributor under the authorized distributor's own standard support policy.

5.0 SERVICES

5.1 US Customers. Esri may provide Esri Managed Cloud Services, Training, or Professional Services including Advantage Program to US Customers under an applicable Ordering Document. Unless Customer has signed an agreement with Esri establishing terms and conditions for such Services, Esri's performance is subject to the Services terms and conditions incorporated by reference and found at https://www.esri.com/content/dam/esrisites/en-us/media/legal/services/ma-services.pdf. A printed copy of these terms and conditions will be provided upon request.

5.2 Customers outside the United States. Customers outside of the United States may obtain Services from their local authorized distributor.

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ATTACHMENT A

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

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

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

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ATTACHMENT B

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

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

1. Disclosed in source code form to third parties;

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

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

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

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

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

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

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

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

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

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

B.3.4 Disclaimers.
a. Internet Disclaimer. Neither party will be liable for damages under any theory of law related to the performance or discontinuance of operation of the Internet or to regulation of the Internet that might restrict or prohibit the operation of Cloud Services.
b. Third-Party Websites; Third-Party Content. Esri is not responsible for any third-party website or ThirdParty Content that appears in or is referenced by Esri Offerings or Esri websites, including www.esri.com, developers.arcgis.com, livingatlas.arcgis.com and www.arcgis.com. Providing links to third-party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind.

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

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ARTICLE B.4—LIMITATION OF LIABILITY
B.4.1 Disclaimer of Liability. Neither Customer, Esri, nor any Esri authorized distributor or third party licensor will be liable for any indirect, special, incidental, or consequential damages; lost profits; lost sales; loss of goodwill; costs of procurement of substitute goods or services; or damages exceeding the applicable license fees, or current subscription fees, or Services fees paid or owed to Esri for the Esri Offerings or Services giving rise to the cause of action.

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

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

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

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

B.5.2 Infringement Indemnity.
a. Esri will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement Claim.
b. If Esri determines that an Infringement Claim is valid, Esri may, at its expense, either (i) obtain rights for Customer to continue using the Esri Offerings or Services or (ii) modify the Esri Offerings or Services while maintaining substantially similar functionality. If neither alternative is commercially reasonable, Esri may terminate Customer's right to use the Esri Offerings or Services and will refund any (a) license fees that Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a 5-year, straight-line depreciation basis beginning from the initial date of delivery or (b) unused portion of fees paid for Term Licenses, Subscriptions, and Maintenance. c. Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the Infringement Claim arises out of (i) the combination or integration of Esri Offerings or Services with a product, process, system, or element that Esri has not supplied or specified in the Specification; (ii) alteration of Esri Offerings or Services by anyone other than Esri or its subcontractors; (iii) compliance with Customer's specifications; or (iv) use of Esri Offerings or Services after Esri either provides a modified version to avoid infringement or terminates Customer's right to use the Esri Offerings or Services.

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

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B.5.4 Conditions for Indemnification. As conditions for indemnification, but for those defined as Infringement Claims (see B.5.2 c.), Indemnitee will (i) promptly notify Esri in writing of the Claim, (ii) provide all available documents describing the Claim, (iii) give Esri sole control of the defense of any action and negotiation related to the defense or settlement of any Claim, and (iv) reasonably cooperate in the defense of the Claim at Esri's request and expense.

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

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

1. Premises and operations;

2. Blanket contractual liability;

3. Broad form property damage;

4. Independent contractors;

5. Personal injury, with employee exclusion deleted; and

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

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

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

B.7.3 Export Compliance. Each party will comply with all applicable export and trade sanctions laws and regulations, including the US Department of Commerce's Export Administration Regulations (EAR), the US Department of State's International Traffic in Arms Regulations (ITAR), the US Department of Treasury, Office of Foreign Assets Control (OFAC) Regulations, and other applicable export laws. Customer will not export, reexport, transfer, release, or otherwise dispose of, in whole or in part, or permit access to or transfer or use of Services or Esri Offerings to any United States embargoed countries currently including Iran, Syria, North Korea, Cuba, Crimea region of Ukraine, the Donetsk People's Republic (DNR) and Luhansk People's Republic (LNR), or denied entities or persons except in accordance with all then-current applicable US government export laws and regulations. Customer will not export, reexport, transfer, or use Services or Esri Offerings for certain missile, nuclear, chemical, or biological activities or end uses without proper authorization from the US government.

Customer shall immediately notify Esri in writing if any US government entity or agency denies, suspends, or revokes Customer's export privileges. Customer will not upload, store, or process in Cloud Services any Customer Content that (i) has an Export Control Classification Number (ECCN) other than EAR99 or (ii) is controlled for export from the United States under ITAR. Customer will notify Esri in advance if Esri's performance

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of any Services or provision of any Esri Offerings is related to any defense article, defense service, or technical data, as defined under the ITAR Sections 120.6, 120.9, and 120.10, respectively; Esri will not perform any such Services or provide any such Esri Offerings until Esri obtains any necessary export license from the US government. Customer will reasonably assist Esri in applying for and obtaining an export license if needed.

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

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

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

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

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

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

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

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

B.8.5 Service Suspension. Esri may suspend access to Cloud Services (i) if Customer materially breaches this Agreement and fails to timely cure the breach; (ii) if Esri reasonably believes that Customer's use of Cloud Services will subject Esri to immediate liability or adversely affect the integrity, functionality, or usability of the Cloud Services; (iii) for scheduled maintenance; (iv) to enjoin a threat or attack on Cloud Services; or (v) if Cloud

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Services become prohibited by law or regulated to a degree that continuing to provide them would impose a commercial hardship. When feasible, Esri will notify Customer of any Cloud Services suspension beforehand and give Customer reasonable opportunity to take remedial action.

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

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

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

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

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

B.9.4 Restrictions on Solicitation. Neither party will solicit for hire any employee of the other party who is associated with the performance of Services during the performance of the Services and for a period of 1 year thereafter. This does not restrict either party from publicly advertising positions for hire in newspapers, professional magazines, or Internet postings.

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

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

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

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

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

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customer upon written notice to Esri, provided the government customer assents to the terms of this Agreement.

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

B.9.10 Survival of Terms. The Glossary of Terms and provisions of the following Articles of these General Terms and Conditions will survive the expiration or termination of this Agreement: "Limited Warranties and Disclaimers," "Limitation of Liability," "Indemnifications," and "General Provisions." B.9.11 US Government Customer. The Products are commercial items, developed at private expense, provided to Customer under this Agreement. If Customer is a US government entity or US government contractor, Esri licenses or provides subscriptions to Customer in accordance with this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. Esri Data and Online Services are licensed or subscribed under the same DFARS Subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS. Products are subject to restrictions, and this Agreement strictly governs Customer's use, modification, performance, reproduction, release, display, or disclosure of Products. Agreement provisions that are inconsistent with federal law regulation will not apply. A US government Customer may transfer Software to any of its facilities to which it transfers the computer(s) on which it has installed such Software. If any court, arbitrator, or board holds that a US government Customer has greater rights to any portion of Products under applicable public procurement law, such rights will extend only to the portions affected. ArcGIS Online has been granted FedRAMP tailored low authorization but does not meet higher security requirements including those found in DFARS 252.239-7010.

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

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

B.9.14 Force Majeure. A party will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond the party's reasonable control. Such causes may include, but are not limited to, acts of God, war, strikes, labor disputes, cyber attacks, laws, regulations, government orders, or any other force majeure event.

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

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

Environmental Systems Research Institute, Inc.

Attn.: Contracts and Legal Department
380 New York Street
Redlands, CA 92373-8100
USA
Tel.: 909-793-2853
Email: [email protected]
Product-Specific Terms of Use
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The following list identifies additional terms of use that apply to specific Products. Each Product listing identifies one or more footnotes that apply to that Product. These footnotes supplement the terms of this Agreement. The definitions for each footnote follow the list. Unless otherwise noted in the applicable Ordering Document, extensions to a Product follow the same scope of use as that granted for the corresponding Product. In addition to the definitions within the Master Agreement, the following definitions will apply to the Product-Specific Terms of Use:
 "Authentication" means using any Esri provided mechanism that enables access to ArcGIS Platform location services. See Security and Authentication documentation (https://developers.arcgis.com/documentation/mappingapis-and-services/security/) for current list of Authentication mechanisms).

Desktop Products
 ArcGIS Desktop (Advanced, Standard, or Basic) (26)
 ArcGIS Earth (20; 65)
 ArcGIS Explorer Desktop (20)
 ArcGIS for AutoCAD (20)
 ArcPad (13)
 ArcReader (20)
 ArcGIS for Personal Use (3; 26)
 ArcGIS CityEngine (78)
Server Products
 ArcGIS Enterprise
▪ Standard or Advanced (17; 21; 23; 31; 87)
▪ Workgroup Standard or Advanced (21; 23; 26; 28; 29; 30; 87) ▪ ArcGIS GIS Server (Standard or Advanced) (31)
▪ ArcGIS GIS Server Basic (31; 39)
▪ ArcGIS GIS Server Workgroup (Standard or Advanced) (26; 28; 29; 30) ▪ ArcGIS GIS Server Workgroup Basic (26; 39)
▪ ArcGIS Maritime (2)
 ArcGIS Enterprise Optional Capability Servers:
▪ ArcGIS Image Server, ArcGIS GeoEvent Server, ArcGIS GeoAnalytics Server, and ArcGIS Notebook Server Standard (31)
 ArcGIS Enterprise Workgroup Optional Capability Servers:
▪ ArcGIS Image Server, ArcGIS GeoEvent Server, ArcGIS GeoAnalytics Server, and ArcGIS Notebook Server Standard (4)
 ArcGIS Business Analyst Enterprise (17; 21; 23; 31; 87)  ArcGIS World Geocoder Basic (67)
Developer Products
 ArcGIS Developer Subscription
▪ All Plans (16; 24; 26; 66; 68; 77; 89; 91; 94; 95; 97) – Active subscriptions with an effective start date prior to January 27, 2021 (79) – Active subscriptions with an effective start date after January 26, 2021 (88) ▪ Builder, Professional, Premium, or Enterprise Plans (77; 92) ▪ Essentials Plan (90)
▪ ArcGIS AppStudio Developer Edition (11; 16; 19)
▪ ArcGIS Runtime SDK for Android, iOS, Java, macOS, .NET, Qt, or WPF (16; 19) ▪ ArcGIS Engine Developer Kit and Extensions (16; 19; 22; 26) ▪ ArcGIS API for JavaScript (16; 64)
▪ ArcGIS CityEngine SDK and Procedural Runtime (16; 19)  ArcGIS Runtime Deployment License for Android, iOS, Java, Mac OS X, .NET, Qt, or WPF ▪ Lite (15)

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▪ Basic or Standard (1; 14; 15; 18)
▪ Advanced (14; 15; 18)
 ArcGIS Engine Deployment License for Windows/Linux and Extensions (15; 22; 26)  Esri File Geodatabase API (47)
Mobile
 ArcGIS Navigator (14)
Other
 ArcGIS Hub (85)
 ArcGIS Indoors (86)
 ArcGIS Indoors Maps (99; 100)
 ArcGIS Indoors Spaces (100; 101)
 ArcGIS IPS(100)
 ArcGIS Maps for Adobe Creative Cloud Complimentary user (74)  ArcGIS Insights (17)
 Site Scan for ArcGIS Operator license (32; 33)
Online Services
 ArcGIS Online subscriptions are available through multiple Selling Programs:
▪ Commercial Retail, EAs; and Government Programs (23; 66; 68; 69; 70; 82; 93; 96) ▪ Education Programs (23; 66; 68; 69; 70; 71; 82; 93; 96) ▪ Non-profit Programs (23; 66; 68; 69; 70; 71; 82; 93; 96)  Public Plan (66; 68; 74; 75; 76; 80)
Customers under the following categories have these additional rights:
▪ Commercial Retail (72)
▪ enterprise agreements (72)
▪ Government (72)
▪ NGO/NPO (72)
▪ Press/Media Programs (72)
▪ Education Programs (71)
 ArcGIS AEC Project Delivery Subscription (83)
 ArcGIS Velocity (25)
Footnotes:

1. May not be used to edit an enterprise geodatabase via Direct Connect.

2. Not for use in navigation.

3. Licensed for personal, noncommercial use only.

4. – Limited to 1 four-core server.
– Can be installed on a separate machine.
5–10. Reserved.

11. Applications built with ArcGIS AppStudio Developer Edition are subject to the terms of use for ArcGIS Runtime Deployment License.

12. Reserved.

13. Licensed as a Dual Use License.

14. May be used for navigational purposes.

15. Licensed as a Deployment License.

16. Customer may use the SDKs or APIs to create Value-Added Applications and distribute and license those Value-Added Applications to its end users to use anywhere not prohibited under applicable export regulations.

17. Customer shall not redistribute Oracle Instant Client libraries or their documentation that is included with this Product. Oracle is a third-party beneficiary of this Agreement solely with respect to Customer's use of the Oracle Instant Client libraries. The Uniform Computer Information Transaction Act (UCITA) shall not apply to Customer's use of the Oracle Instant Client libraries.

18. The Deployment License is per Value-Added Application per computer for stand-alone applications.

19. License may not be used to develop Internet or server-based Value-Added Applications.

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20. Licensed as a Redistribution License.

21. See Master Agreement https://www.esri.com/legal/software-license for additional terms of use for Named User Licenses.

22. a. An end user must acquire a license in either ArcGIS Engine for Windows/Linux Software or other ArcGIS Desktop Software (Basic, Standard, or Advanced) to obtain the right to run an ArcGIS Engine application on 1 computer; and
b. The ArcGIS Engine for Windows/Linux extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine Value-Added Applications. A single user can have multiple ArcGIS Engine Value-Added Applications installed on 1 computer for use only by that end user.

23. System to System Communication
a. Customer may use a basic service login to enable one-way, read-only, system-to-system communications from ArcGIS Enterprise or ArcGIS Online to other third-party, enterprise business system(s) in the customer's organization. Customer may use a Viewer Named User Credential or Level 1 Named User Credential as a basic service login until Esri implements an actual service login credential. A specific Viewer Named User Credential or Level 1 Named User Credential used as a basic service login credential may only be used for system-to-system integration purposes and may not also be used by a Named User to access the system.
b. Customer may use a standard service login to enable two-way, read-write, system-to-system communications between ArcGIS Enterprise or ArcGIS Online and other third-party, enterprise business system(s) in the customer's organization. Customer may use an Editor (or higher) Named User Credential or Level 2 Named User Credential as a standard service login until Esri implements an actual service login credential. A specific Editor (or higher) Named User Credential or Level 2 Named User Credential used as a standard service login credential may only be used for system-tosystem integration purposes and may not also be used by a Named User to access the system.

24. Software may be used only for the purposes of development, testing, and demonstration of a prototype Value-Added Application and creating map caches. Customer may use Value-Added Applications and map caches with ArcGIS Enterprise Staging Server Licenses and Deployment Server Licenses. Software and Data may be installed on multiple computers for use by any ArcGIS Developer Subscribers with Builder or higher plan subscriptions; all other Software is licensed as a Single Use License.

25. An ArcGIS Velocity subscription includes a given storage and compute or item capacity as described in the Ordering Document. As Customer creates ArcGIS Velocity services, compute and storage capacity is utilized, up to the total capacity available. Customers of the Advanced license level may purchase a limited number of ArcGIS Velocity Item Units and ArcGIS Velocity Storage Units to augment their capacity. Customers of the Dedicated license level may purchase additional ArcGIS Velocity Storage Units and ArcGIS Velocity Compute Units as needed. Esri will notify Customer's subscription account administrator when Customer's compute consumption reaches approximately 75 percent or when storage consumption reaches approximately 50 percent of the capacity allocated to Customer through Customer's subscription. Esri reserves the right to suspend Customer's creation of additional ArcGIS Velocity services or suspend existing ArcGIS Velocity services if Customer has utilized all its compute or storage capacity. Esri will promptly restore Customer's access to its ArcGIS Velocity services once Customer has purchased additional ArcGIS Velocity Compute, Item, or Storage Units.

26. The geodatabase is restricted to 10 gigabytes of Customer's data.

27. Reserved.

28. Use is limited to 10 concurrent end users of applications other than ArcGIS Enterprise Workgroup or ArcGIS GIS Server Workgroup applications. This restriction includes use of ArcGIS Desktop Software, ArcGIS Engine Software, and third-party applications that connect directly to any ArcGIS Enterprise Workgroup or ArcGIS GIS Server Workgroup geodatabase. There are no limitations on the number of connections from web applications.

29. Software requires a supported version of SQL Server Express. Supported versions are listed with the system requirements for the product on the Esri website.

30. Use is restricted to a maximum of 10 gigabytes of Customer's data. All components must be installed on a single server.

31. Includes a Failover License.

32. The use of this Software does not include a pilot's license (e.g., FAA, EASA, etc.) to operate a drone.

33. Customer may only use online storage provided with this Software to store Customer Content collected or processed through this Software.

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34–38. Reserved.

39. Any editing functionality included with ArcGIS GIS Server is not permitted for use with ArcGIS GIS Server Basic and ArcGIS GIS Server Workgroup Basic.
40–46. Reserved.

47. Customer may develop and distribute Value-Added Applications that use Esri File Geodatabase API to Customer's end users.
48–63. Reserved.

64. Value-Added Applications for web deployment must be used in conjunction with other Esri Products.

Third-party technologies may also be used in conjunction with Value-Added Applications as long as the Value-Added Applications are always used in conjunction with other Esri Product(s).

65. May only be used in conjunction with other Esri Product(s). Third-party technologies may also be used in conjunction with ArcGIS Earth as long as ArcGIS Earth is always used in conjunction with other Esri Products.

66. Only Customers with an active Online Services subscription may store geocoded results generated by World Geocoding Service.

67. Limited to 250,000,000 geocodes per annual subscription.

68. Customer may use the data accessible through Infographics Service for display purposes only and may not save any data accessible through this service.

69. May be used for any business purpose of Customer's organization.

70. May be used for development and test purposes for Customer's organization.

71. May be used for teaching purposes in educational organizations.

72. May be used for the internal business purposes of Customer's organization.

73. Reserved.

74. May be used for personal use.

75. Customer may enable third-party use of Value-Added Applications only by publicly sharing the ValueAdded Application(s) using Sharing Tools. Customer may not use this subscription to power a ValueAdded Application for its own internal business use unless Customer is an educational institution using the Value-Added Application for teaching purposes only, a qualified NGO/NPO organization, or a media or press organization.

76. Customer is not permitted to create private groups or participate in any private groups.

77. Includes a Commercial App Deployment license.
▪ A Commercial App Deployment license is required when:
– Customer deploys revenue-generating Value-Added Applications that are not for use solely with an ArcGIS Online or ArcGIS Enterprise license and have not yet migrated to use ArcGIS Platform location services Authentication.
▪ A Commercial App Deployment license is not required when:
– Customer deploys revenue-generating Value-Added Applications solely for use with an ArcGIS Online and/or ArcGIS Enterprise license. Such Value-Added Applications are not required to use ArcGIS Platform location services Authentication.

78. Includes a Commercial App Deployment license.

79. Each subscription is limited to 1,000,000 geosearch transactions per month in conjunction with Customer's subscription. Transactions include both basemap data and geocode search transactions. One basemap data transaction is equivalent to eight 256x256 tile requests. One geocode search transaction is equivalent to one address or place. If the results are stored in any manner such as after batch geocoding, the stored results are not counted toward the transaction limit. However, storage does consume Service Credits. For transactions greater the 1,000,000 per month, call Esri Sales or your local distributor for details.

80. May permit registered students of an education institution to directly access the Online Services and share a single subscription between more than 1 registered student for teaching purposes only.

81. Reserved.

82. A Named User may embed its Named User Credential in an ArcGIS API for Python script solely for the purpose of automating a workflow to be used exclusively by the Named User whose Named User Credential is embedded in the script.

83. Customer must use a separate AEC Project Delivery Subscription for each Customer client ("Client").

Customer may (i) use the AEC Project Delivery Subscription solely to collaborate on project work with its Client; and (ii) provide Client with Named User access to the AEC Project Delivery Subscription to enable

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Client to access the AEC Project Delivery Subscription to collaborate on project work that Customer performs for Client. Client may not use the Named User License for any other purpose. Customer is solely responsible for Client's compliance with these terms of use and will ensure that Client stops using the AEC Project Delivery Subscription when the project ends.

84. Reserved.

85. Software licenses and subscriptions included with ArcGIS Hub may only be used to support the community initiatives enabled by ArcGIS Hub. Customer may allow 3rd parties to be Named Users of ArcGIS Hub for the sole purpose of engaging in community activities. Customers may allow employees, agents, consultants, or contractors to be Named Users of ArcGIS Hub for the sole purpose of administering, configuring, maintaining, and supporting community initiatives through ArcGIS Hub. No other use of software licenses and subscriptions included with ArcGIS Hub is permitted.

86. Customer may use the software licenses and subscriptions included with ArcGIS Indoors solely to enable the capabilities of ArcGIS Indoors as defined in the ArcGIS Indoors Documentation. No other use of software licenses and subscriptions included with ArcGIS Indoors is permitted.

87. Accessing Parcel Fabric services provided by ArcGIS Enterprise is prohibited except through ArcGIS Pro Standard and ArcGIS Pro Advanced.

88. Subscription limits are determined as defined by the available Service Request Plans.

89. Customer may distribute revenue-generating Value-Added Applications, that access Online Services through Online Services Authentication, to third parties. All revenue-generating Value-Added Applications are required to use Authentication when accessing Online Services. Except as set forth in footnote 77 above, Customers who are in the process of migrating their revenue-generating Value-Added Applications to use ArcGIS Platform location services must have a Commercial App Deployment license until the migration to ArcGIS Platform location services is complete.

90. Customer may have multiple subscriptions within their organization for development and test purposes.

Customer may only use one subscription within their organization for use with deployed Value-Added Applications.

91. Application migration—a developer who has Value-Added Applications built with:
a. The client APIs (including JavaScript 4.x and Runtime SDKs (any version), REST, Esri's open source mapping libraries, supported 3rd party open source mapping libraries) is required to use the ArcGIS Platform location services in their applications by April 30, 2022. b. The JavaScript 3.x API are required to use the ArcGIS Platform location services in their applications by December 31, 2022

92. Customer is only permitted to create private groups or participate in private groups within the development and test ArcGIS Online Organization Subscription included with the ArcGIS Developer Subscription.

93. Includes Service Credits as described in the applicable Ordering Document. Each Service Credit entitles Customer to consume a set amount of Online Services, the amount varying depending on the Online Services that Customer is using. As Customer consumes Online Services, Service Credits are automatically debited from Customer's subscription, up to the maximum number of Service Credits available. Customer may purchase additional Service Credits as needed. Esri will notify Customer's subscription account administrator when Customer's Service Credit consumption reaches approximately 75 percent of the Service Credits allocated to Customer through Customer's subscription. Esri reserves the right to suspend Customer's access to Online Services that consume Service Credits when Customer has consumed all its Service Credits. Esri will promptly restore Customer's access to its Online Services once Customer has purchased additional Service Credits.

94. Customer may purchase Pre-Paid Service Request Plans. Pre-Paid Service Request Plans enable the Customer to consume Online Services. As Customer consumes Online Services, Service Request Fees are automatically debited from Customer's subscription, the amount varying depending on the Online Services that Customer is using, up to the maximum Pre-Paid amount available. Esri will notify Customer's subscription account administrator when Customer's consumption reaches approximately 75 percent of the available Pre-Paid Service Request Plan purchased. Customer may choose to allow continued access to ArcGIS Platform location services after consuming 100 percent of the Pre-Paid Service Request Plan by enabling overages. If overages are enabled, Customer is responsible for paying the associated costs of using the location services at the applicable rates. Esri will automatically invoice monthly in arrears at applicable payment terms for the amount above Pre-Paid Service Request Plan purchased. Esri reserves the right to suspend Customer's access to ArcGIS Platform if Customers has a

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past due amount. If overages are not enabled by Customer Esri reserves the right to suspend Customer's access to Online Services requiring Service Requests when Customer has consumed the full amount paid for the Pre-Paid Service Request Plan. Esri will promptly restore Customer's access to its Online Services once Customer funds access to the Online Services.

95. Customer may purchase a Pay-As-You-Go Service Request Plan. There is no limit on the Service Requests that Customer may consume if they have purchased a Pay-As-You-Go Service Request Plan.

96. Customer may use ArcGIS Image services for interactive, non-programmatic access by Named Users only. Programmatic use of the ArcGIS Image services (e.g., batch classification, deep learning, etc., or exporting volumes of data larger than 10MB at a time) are not permitted.

97. Customer's end users who are prompted for an API key for use with a third party's Value-Added Application must generate such API keys through an ArcGIS Developer Subscription. API keys generated through an ArcGIS Online account are not permitted in this scenario.

98. Reserved.

99. The user types included with ArcGIS Indoors Maps are licensed solely for use to enable the capabilities as defined in the product documentation for ArcGIS Indoors Maps, ArcGIS Indoors Spaces, and ArcGIS IPS.
100. Third-party Value-Added Applications built specifically for enabling ArcGIS Indoors Maps, ArcGIS Indoors Spaces and ArcGIS IPS capabilities for indoor mapping, way finding, navigation, routing, or positioning may be used with user types provided with ArcGIS Indoors Maps. 101. An ArcGIS Indoor Spaces license is required to use either Workspace Reservations or Space Planner.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-819 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action on an Agreement with Orchard Commercial, Inc. for Property Management Services at the Santa Clara Convention Center Complex - Maintenance District No. 183

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
The Department of Public Works (DPW) Facilities Services Division (Facilities) oversees ongoing maintenance and repairs for approximately 1,100,000 square feet of buildings throughout the City, which includes the Santa Clara Convention Center Complex - Maintenance District No. 183 (MD 183). In order to continue to provide services in a timely manner, Facilities utilizes a property management company to assist with managing service contractors for MD 183.

The various contractors that the property management company oversees provide services for landscaping maintenance, parking control, fountain maintenance, site cleaning, parking lot sweeping, security services, elevator maintenance, exterior electrical maintenance, and other repair services as needed. The responsibilities of the property manager include actively engaging with vendors on a regular basis to ensure that service levels are met in addition to regular meetings and coordination with the Hyatt Hotel, Techmart Office Building, and Santa Clara Convention Center operations. The current agreement for property management services expires on July 31, 2022.

DISCUSSION
Pursuant to City Code Section 2.105.330, a formal Request for Proposal (RFP) was conducted as the solicitation method for this procurement, with the award recommendation based on “best value.” The RFP for property management services was published in April 2022 using the City’s eprocurement platform. In addition, eight companies were directly contacted about the requirement.

The RFP included a mandatory pre-proposal conference which two proposers attended, Eugene Burger Management Company (EBMC) and Orchard Commercial, Inc. (Orchard). The City only received one proposal from Orchard.

Orchard’s proposal was thoroughly reviewed and evaluated by staff who determined that their proposal satisfied all the requirements set forth in the RFP. Staff recommends awarding the agreement to Orchard for having submitted the sole responsive proposal. Orchard has extensive experience providing property management services to public and private organizations similar in size to MD 183. In addition, Orchard has been providing these services to the City since 2016 and is familiar with the property and the expectations from the City and Partners. Orchard’s fees are the same as the current agreement for the initial two years of the five-year term of the new agreement.

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Under the new agreement, Orchard will provide the required property management services to operate, maintain, and repair MD 183. Compensation will be fixed for the initial five-year term of the agreement and will be paid monthly. After the initial five-year term, price adjustments are allowable subject to justification by vendor and approval by the City. In addition to the initial term, there are five one-year options to extend the term of the agreement for a total of ten years, assuming all options are exercised.

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 fixed price amounts to be paid to Orchard to perform Property Management Services for MD 183 are as follows:

Fiscal Year Term Not-To-Exceed
Compensation
2022/23 August 1, 2022 - July 31, 2023 $ 77,400
2023/24 August 1, 2023 - July 31, 2024 $ 77,400
2024/25 August 1, 2024 - July 31, 2025 $ 79,800
2025/26 August 1, 2025 - July 31, 2026 $ 79,800
2026/27 August 1, 2026 - July 31, 2027 $ 79,800
Initial 5-Year Term Not-ToExceed Maximum
Compensation
$ 394,200
The total not-to-exceed amount for the initial five-year term is $394,200, subject to annual budget appropriations. Funds are available in the Convention Center Maintenance District account (026- 2961-87870).

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

RECOMMENDATION

1. Authorize the City Manager to execute an agreement with Orchard Commercial, Inc. for property management services at the Santa Clara Convention Center Complex - Maintenance District No.

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183 for an initial five-year term, with maximum compensation not-to-exceed $394,200; and

2. Authorize the City Manager to execute up to five one-year options to extend the agreement after the initial term and to approve potential annual price adjustments, subject to the appropriation of funds.

Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. Agreement with Orchard Commercial, Inc.

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Agreement with Orchard Commercial, Inc. Page 1
Rev. 07-01-18
EBIX Insurance No. S200003551

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA, AND
ORCHARD COMMERCIAL, INC.

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Orchard Commercial, 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. City desires to secure the services more fully described in this Agreement, as 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 services 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 Fees
Exhibit C – Insurance Requirements
Exhibit D – Notice of Exercise of Option to Extend Agreement 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 Agreement with Orchard Commercial, Inc. Page 2
Rev. 07-01-18
of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.

2. TERM OF AGREEMENT
A. 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 August 1, 2022 and terminate on July 31, 2027.

B. After the Initial Term, the City reserves the right, at its sole discretion, to extend the term of this Agreement for up to five (5) additional one-year terms through July 31, 2032 (“Option Periods”), subject to the appropriation of funds. See Exhibit D for Notice of Exercise to Option to Extend Agreement Form.

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 Agreement with Orchard Commercial, Inc. Page 3
Rev. 07-01-18
compensation of this Agreement is Three Hundred Ninety-Four Thousand Two Hundred Dollars ($394,200), 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.

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.

Agreement with Orchard Commercial, Inc. Page 4
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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 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, Agreement with Orchard Commercial, Inc. Page 5
Rev. 07-01-18
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.

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 Orchard Commercial, Inc. Page 6
Rev. 07-01-18

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: Facility Maintenance
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at: [email protected]
And to Contractor addressed as follows:

Orchard Commercial, Inc.
2055 Laurelwood Road, Suite 250
Santa Clara, CA 95054
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, 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).

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 Agreement with Orchard Commercial, Inc. Page 7
Rev. 07-01-18
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.

Agreement with Orchard Commercial, Inc. Page 8
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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: Dated:

Office of the City Attorney
City of Santa Clara
Rajeev Batra
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”

ORCHARD COMMERCAIL, INC
a California corporation
Dated:

By (Signature):

Name: Byron Renfro
Title: President & COO
Principal Place of
Business Address:
2055 Laurelwood Road, #250
Santa Clara, CA 95054
Email Address: [email protected]
Telephone: (408) 922-0400
Fax: (408) 922-0608
“CONTRACTOR”
Agreement with Orchard Commercial, Inc./Exhibit A-Scope of Services Page 1 Rev. 07-01-18

EXHIBIT A

SCOPE OF SERVICES

1. Introduction

1.1. To the extent not inconsistent with this Agreement between the City and Contractor including this Scope of Services, the City’s RFP 21-22-1 (including subsequent updates) and Contractor’s proposal response dated May 27, 2022 are hereby incorporate by reference herein, and shall supplement this Scope of Services and be subject to the terms and conditions of the Agreement.

1.2. Contractor will provide property management services necessary to operate, repair, and maintain the Santa Clara Convention Center Complex District (“District”) common area property and facilities in a first-class condition consistent with the needs and operations of the Convention Center, Hotel, and Techmart office building uses of these common areas, and coordinate with the City for contract approvals and payments, and annual budget preparation.

1.3. The common area improvements generally consist of, but are not limited to, surface and structural (parking garage) parking, landscaping, trees, paving, pedestrian bridges, space frames, lighting, fountains, elevators, banners, reader boards, and appurtenances.

1.4. The District is located at 5001, 5101, and 5201 Great America Parkway, Santa Clara, CA (at the corner of Great America Parkway and Tasman Drive).

2. Professional Property Management Standards

2.1. Contractor represents and warrants to City that Contractor has the skill and professional competence, experience, and expertise to provide property management services as specified herein.

2.2. Contractor will exert its best efforts, to provide property management services for the operation and management of the property, and to exercise the highest degree of professional competence in managing the property so as to provide the City with first class services, conducted in a timely manner within operational limits requested by District entities.

3. Base Property Management Services

3.1. Contractor will manage, coordinate, and inspect the exterior operation, maintenance and repair activities at the site. Duties include, but may not be limited to, oversight of the existing vendor base, and taking actions necessary to assure vendors are providing services as agreed upon by contracts for:

3.1.1. Parking Control Management
Agreement with Orchard Commercial, Inc./Exhibit A-Scope of Services Page 2 Rev. 07-01-18

3.1.2. Landscape and tree maintenance services (which includes exterior janitorial work) (onsite 5 days a week), including significant number of high cost palm trees

3.1.3. Parking lot sweeping services (5 days/week in most areas)

3.1.4. Security services (7 nights and weekend service)

3.1.5. Space frame cleaning at Hotel and Techmart entries and crosswalk

3.1.6. Garage elevator contract maintenance

3.1.7. Onsite fountain minor repair and maintenance for three fountains

3.1.8. Exterior electrical maintenance/lighting, including two reader boards

3.1.9. Janitorial and pressuring washing services

3.1.10. Occasional ordering of additional services for large events in coordination with the City

3.1.11. Securing other service providers on an as-needed/when-needed basis in coordination with the City

3.1.12. Site cleaning and painting of all surfaces, and graffiti removal

3.1.13. Painting, Waterproofing

3.1.14. Other repairs as needed

3.2. Contractor will conduct informal bidding of services to ensure competitive pricing and shall be conducted in coordination with the City.

3.2.1. One time repairs and other incidental services are bid on an ongoing basis. Periodic review to determine if greater efficiencies may be achievable within the current contracts while still maintaining common areas in first-class condition.

3.3. Contractor will respond with appropriate actions at any time of day or night to deal with requests needing immediate actions by site contractors.

3.4. Contractor will review and recommend to City approval for payment of Contractor invoices for services in a timely manner. City shall pay all bills, which are related to the property.

3.4.1. Contractor shall forward any bills/invoices Contractor receives to the City for payment.

3.5. Contractor will not have any bank accounts on behalf of the City. All security deposits, rents, monies regarding the property shall be forwarded to City and shall be maintained by City in City’s bank account.

3.6. City will be responsible to handle all monies of the property. City is responsible to pay all invoices/bills of the property.

3.7. Contractor will conduct as-needed regular meetings with site contractors, the City, and the District to keep them informed of operations in the common areas. Contractor will prepare and distribute meeting minutes.

Agreement with Orchard Commercial, Inc./Exhibit A-Scope of Services Page 3 Rev. 07-01-18

3.8. Annual Budget

3.8.1. Contractor will draft an annual budget with sufficient detail and in a timely manner on or before March 1. Capital or one-time expense budget shall include recommendations for future years.

3.8.2. Contractor will revise annual budget as directed by the City and District entities.

3.8.3. Contractor will not be deemed to have made any guarantee, warranty or representation whatsoever in connection with the approved budget or with respect to the performance of the property, and City acknowledges that the approved budget and any other projections previously or hereafter prepared by Contractor are intended only to be reasonable estimates and that, notwithstanding Contractor’s best efforts to operate the property in accordance with the approved budget, actual results may vary due to unanticipated events and circumstances occurring after the preparation of the approved budget or other projection.

3.9. Any Other duties typical for professional management of exterior common areas.

3.10. Monthly reconciliations of operating expenses.

3.11. Contractor will provide, at a minimum, monthly financial reports on District expenses – exact format to be developed by Contractor and approved by the City and District.

3.12. Contractor will prepare scopes of work for District approved capital repairs, replacements, and restoration work within annual budgeted amounts in coordination with the City. Upon approval to proceed contract, coordinate, inspect work, and correct any deficiencies. Obtain and assemble any warranties and operation/maintenance manuals.

3.13. Contractor will assist in coordination of property activities and be in frequent contact with the District to ensure smooth operations of business activities.

3.14. Contractor is a property manager who shall manage City contracts for vendors of the City. The contracts for the vendors, including but not limited to landscapers, tree trimmers, janitors, etc., shall be contracts entered into directly by the City with the vendor. The Contractor is not executing contracts directly with these vendors and these vendors are not the subcontractors of Contractor.

3.15. Contractor will actively manage the parking control operations by reviewing event calendars of the three entities and working with the parking vendor to plan and schedule accordingly. Parking plans are generally done 1 month in advance.

3.16. Prior to the expiration of any vendor agreement, or when directed by the City, Contractor will work in coordination with the City to develop solicitations for Agreement with Orchard Commercial, Inc./Exhibit A-Scope of Services Page 4 Rev. 07-01-18
routine maintenance and repair services. The City will be responsible for managing the solicitation and execution of contract.

4. Assessment of Vendor Contracts

4.1. Upon commencement of this agreement, Contractor will:

4.1.1. Review all existing contracts and services to obtain an understanding of the terms and conditions and scope of services of each existing contract.

4.1.2. Identify appropriate scope of work and frequency of services.

4.1.3. Meet with each vendor to walk site and discuss specific duties and contractual expectations.

4.1.4. Set clear goals with vendor and prepare written documentation for review of measurable results.

4.1.5. Supervise, manage, inspect, and coordinate all maintenance and repair activities at the project on a routine and periodic basis.

4.2. Vendor Performance

4.2.1. Contractor shall document vendor performance and any deficiencies.

4.2.2. Contractor shall work with vendor to immediately take steps to correct any deficiencies, and contact City representative immediately if vendor fails to correct deficiencies in a timely manner.

5. Periodic Vendor Proposal Process

5.1. Contractor will coordinate with City to identify scope of work for required services or utilize scope of work from services already in place.

5.2. Contractor shall, if necessary, meet with City, and/or potential vendors to review scope of work and to perform a site inspection of the area of work.

5.3. Provide to City a written scope of work, propose deadline and request references or other additional information as needed.

5.4. Contractor will review each proposal package for accuracy and completeness.

5.5. Create a detailed analysis indicating price, vendor and any proposal variances or optional items.

5.6. Recommend to City vendor best suited to perform work.

6. Direction and Communication

6.1. Contractor will not be deemed an employee of the City, but shall at all times be an independent contractor performing property management services at the direction of the City.

Agreement with Orchard Commercial, Inc./Exhibit A-Scope of Services Page 5 Rev. 07-01-18

6.2. Designated contacts from the District (Convention Center, Hotel, Techmart) may from time to time contact Contractor concerning needs, repairs, and vendor deficiencies. Contractor is authorized to take action to implement any repairs or corrections needed to:

6.2.1. Protect the property from imminent danger or damage

6.2.2. Prevent injury to persons

6.2.3. Avoid suspension of any necessary service to the property

6.2.4. Avoid penalties or fines

6.2.5. Direct vendors to correct contractual deficiencies

6.3. As soon as possible, Contractor will notify the City of any unbudgeted repairs or corrections made, or requested, as soon as possible. City and Contractor will coordinate presentation of unbudgeted requests to District entities for consideration.

Agreement with Orchard Commercial, Inc./Exhibit B-Schedule of Fees Page 1 Rev. 07-01-18

EXHIBIT B

SCHEDULE OF FEES

1. MAXIMUM COMPENSATION

1.1.The maximum amount payable for property management services provided under this Agreement and as set forth below shall not exceed Three Hundred Ninety-Four Thousand Two Hundred Dollars ($394,200), during the Initial Term of the Agreement. Any additional services requested by the City that would exceed the preceding maximum amount will be addressed in an Amendment to the Agreement. No additional services will be performed unless both Parties execute an Amendment outlining the services requested and the compensation agreed for such services.

2. FEES

2.1.In consideration of the property management services rendered to City by Contractor under this Agreement the City shall pay the following fees:

Property Management Services Fee
Description Monthly Rate Annual Cost
Cost for Initial Term Year 1 of 5 $6,450 $77,400
Cost for Initial Term Year 2 of 5 $6,450 $77,400
Cost for Initial Term Year 3 of 5 $6,650 $79,800
Cost for Initial Term Year 4 of 5 $6,650 $79,800
Cost for Initial Term Year 5 of 5 $6,650 $79,800

TOTAL NOT-TO-EXCEED MAXIMUM
COMPENSATION FOR INITIAL 5-YEAR TERM $394,200

3. PRICING AND OPTION RENEWALS

3.1.Pricing is firm fixed for the Initial Term of the Agreement.

3.2.Price Adjustments: Contractor may request adjustments to rates prior to any one-year option to renew the Agreement after the Initial Term. Price increase requests must be tied to CPI, PPI, or relevant industry specific index. Requests for increase must be fully documented by Contractor. Price adjustments are subject to City’s approval.

4. INVOICING

4.1.Contractor shall invoice the City on a monthly basis for Services provided by the Contractor during the preceding month on an invoice and in the format approved by the City and is subject to verification and approval by the City.

Agreement with Orchard Commercial, Inc./Exhibit B-Schedule of Fees Page 2 Rev. 07-01-18

4.2.City will pay Contractor within thirty (30) days of City’s receipt of an approved invoice.

Agreement with Orchard Commercial, Inc./Exhibit C-Insurance Requirements Page 1 Rev. 07-01-18

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
$2,000,000 General Aggregate
$2,000,000 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 policy limits a minimum limit 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 Orchard Commercial, Inc./Exhibit C-Insurance Requirements Page 2 Rev. 07-01-18
C. WORKERS’ COMPENSATION

1. 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.

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. 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.

2. 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.

3. 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 Orchard Commercial, Inc./Exhibit C-Insurance Requirements Page 3 Rev. 07-01-18
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 nonrenewal.

4. 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 Orchard Commercial, Inc./Exhibit C-Insurance Requirements Page 4 Rev. 07-01-18
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 emailed to:
[email protected]
or mailed to:

EBIX Inc.

City of Santa Clara Department of Public Works
P.O. Box 100085 – S2
Duluth, GA 30096
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 Orchard Commercial, Inc./Exhibit D – Notice of Exercise of Option Page 1 Rev. 07-01-18

EXHIBIT D

NOTICE OF EXERCISE OF OPTION TO EXTEND AGREEMENT
AGREEMENT TITLE:

CONTRACTOR:

DATE:

Pursuant to Section __ of the Agreement referenced above, the City of Santa Clara hereby exercises its option to extend the term under the following provisions:

OPTION NO. # of #

NEW OPTION TERM
Begin date:

End date:

CHANGES IN RATE OF COMPENSATION
Percentage change in CPI upon which adjustment is based:

Pursuant to Section ___ of the Agreement the rates of compensation are hereby adjusted as follows:
(use attachment if necessary)
MAXIMUM COMPENSATION for New Option Term:

For the option term exercised by this Notice, City shall pay Contractor an amount not to exceed the amount set forth above for Contractor’s services and reimbursable expenses, if any. The undersigned signing on behalf of the City of Santa Clara hereby certifies that an unexpended appropriation is available for the term exercised by this Notice, and that funds are available as of the date of this signature.

Approved as to Form:

Dated:

Office of the City Attorney
City of Santa Clara
Rajeev Batra
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-459 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action on Amendment No. 1 to Extend the Term of the Agreement with Brightview Landscape Services, Inc. for Landscaping and Tree Care Services at the Santa Clara Convention Center Complex - Maintenance District No. 183

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
The Department of Public Works (DPW) Facilities Services Division (Facilities) oversees maintenance and repairs for approximately 1,100,000 square feet of buildings throughout the City, which includes services at the Santa Clara Convention Center Complex - Maintenance District No. 183 (MD 183). Facilities works with the MD 183 property manager who is responsible for coordinating numerous services at the site including landscaping maintenance, tree trimming, and irrigation repairs.

In 2017, a competitive Request for Proposals (RFP) was conducted and through this process, Brightview Landscape Services, Inc. (Brightview) was selected and awarded a five-year contract.

DISCUSSION
The current agreement with Brightview ends on June 30, 2022. Staff recommends amending the agreement to extend the term for two additional months through August 31, 2022. Staff is currently conducting a new RFP for these services and anticipates completion of the process, including contract negotiations and City Council approval, to happen in August 2022. The anticipated start date for the new agreement(s) is September 1, 2022. This Amendment will allow services to continue uninterrupted until a new agreement is negotiated through the RFP process.

The maximum compensation under the current agreement is $979,801. Amendment No. 1 increases the maximum compensation by $40,000 for a revised total not-to-exceed maximum compensation of $1,019,801. Brightview has agreed to hold unit prices during the two-month extension period.

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 amount to be paid to Brightview Landscape Services, Inc. for Amendment No. 1 is $30,902 for City of Santa Clara Page 1 of 2 Printed on 7/8/2022
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22-459 Agenda Date: 7/12/2022
general services and $9,098 for unanticipated repairs for a total not-to-exceed amount of $40,000 for the two-month extension. Funding for this agreement is available in the Convention Center Maintenance District Fund in the FY 2022/23 Operating Budget.

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

RECOMMENDATION
Authorize the City Manager to execute Amendment No. 1 to the Agreement with Brightview Landscape Services, Inc. for Landscaping and Tree Care services at the Santa Clara Convention Center Complex - Maintenance District No. 183 to increase maximum compensation by $40,000 for a revised maximum compensation of $1,019,801, and extend the term of the agreement through August 31, 2022.

Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. Amendment No. 1

2. Agreement with Brightview Landscaping Services, Inc.

City of Santa Clara Page 2 of 2 Printed on 7/8/2022
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Amendment No. 1 to Agreement/Brightview Landscape Services, Inc. Page 1 Rev. 10/25/19
Ebix Insurance No. S200000246
AMENDMENT NO. 1

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE 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 Brightview Landscape 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 City of Santa Clara and Brightview Landscape Services, Inc. for 2017-2022 Landscaping Services at the Santa Clara Convention Center Complex, dated June 19, 2017 (Agreement). The term of the Agreement is between June 19, 2017 through June 30, 2022; and B. The Parties entered into the Agreement for the purpose of having Contractor provide landscaping services at the Santa Clara Convention Center Complex, and the Parties now wish to amend the Agreement to extend the term through August 31, 2022 and increase the maximum compensation by $40,000 for a new total not to exceed amount $1,019,801, subject to budget appropriations.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 5 of the Agreement as Amended, entitled “Term of Agreement is hereby amended to read as follows:

Unless otherwise set forth in the Agreement of unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on the Effective Date of this Agreement and terminate on August 31,2022.

2. Exhibit B of the Agreement as Amended, entitled “Fee Schedule”, is hereby amended to read as shown in Revised Exhibit B, attached here.

Amendment No. 1 to Agreement/Brightview Landscape Services, Inc. Page 2 Rev. 10/25/2019

3. Except as set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. In case of a conflict in the terms of the Agreement and this Amendment No. 1, the provisions of this Amendment No. 1 shall control.

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:

Office of the City Attorney
City of Santa Clara
Rajeev Batra
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
BRIGHTVIEW LANDSCAPE SERVICES, INC.
a California corporation
Dated:

By (Signature):

Name: Brandon Steene
Title: Vice President / General Manager
Principal Place of
Business Address: 825 Mabury Road, San Jose, Ca 95133
Email Address: [email protected]
Telephone: (408)219-2047
Fax: NA
“CONTRACTOR”
6/21/22
Amendment No. 1 to Agreement/Brightview Landscape Services, Inc./Revised Exhibit B – Fee Schedule Page 1 Rev. 10/25/19

REVISED EXHIBIT B

FEE SCHEDULE

1. MAXIMUM COMPENSATION
The maximum amount payable for all services provided under this Agreement shall not exceed One Million Nineteen Thousand Eight Hundred One Dollar ($1,019,801) for the term of the agreement, subject to the appropriation of funds. No additional services will be performed unless both parties execute an amendment outlining the services requested and the compensation agreed for such services.

2. RATES AND FEES – BASIC SERVICE

2.1.Superintendent $65 per hour

2.2.Foreman $50 per hour

2.3.Groundsman Level 1 $45 per hour

2.4.Groundsman Level 2 $45 per hour

2.5.(Turf Maintenance, Annual Color, Shrub Maintenance & Tree Care-Excluding Palms)
Year Term Annual Service
Amount
Contingency
Amount
Total Yearly
Amount
1 July 1, 2017 - June 30, 2018 $ 172,776 $ 17,278 $ 190,054 2 July 1, 2018 - June 30, 2019 $ 172,776 $ 17,278 $ 190,054 3 July 1, 2019 - June 30, 2020 $ 179,879 $ 17,987 $ 197,866 4 July 1, 2020 - June 30, 2021 $ 179,879 $ 17,987 $ 197,866 5 July 1, 2021 - June 30, 2022 $ 185,419 $ 18,542 $ 203,961 TOTAL NOT-TO-EXCEED MAXIMUM COMPENSATION $ 979,801
Amendment #1 (Extension to August 31, 2022) $ 40,000
REVISED TOTAL NOT-TO-EXCEED MAXIMUM COMPENSATION $ 1,019,801

3. MARK UP RATE (Supplemental rental, materials, and approved Subcontractor services)

3.1.Mark up rate for invoiced purchase materials: 15% over cost

3.2.Mark up rate for invoiced equipment rentals: 15% over cost Amendment No. 1 to Agreement/Brightview Landscape Services, Inc./Revised Exhibit B – Fee Schedule Page 2 Rev. 10/25/2019

3.3.Mark up rate for full coordination, supervision, and payment of approved subcontractor work: 10%

3.4.Mark up rate for limited involvement and coordination, and payment of approved subcontractor work: 5%

4. PRICING FOR SUPPLEMENTAL WORK

4.1. New Irrigation Installation (inclusive of all labor and equipment to install).

Irrigation equipment cost plus markup separate).

4.1.1.One (1”) Inch diameter vales of less $275 per each

4.1.2.Quick coupler $235 each

4.1.3. Irrigation head 6” “pop up” $ 42 per each

4.2.Turf Renovation (inclusive of removal of old sod, soil preparation, and Installation of new sod):

4.2.1.$1.80 per square foot

4.3.Plant Material Installation (inclusive of all labor, materials, and equipment to install plant material. Plant material cost plus mark- up separate).

4.3.1.One (1) gallon shrub or ground cover $15-20 per each

4.3.2.Five (5) gallon shrub or tree $34-50 per each

4.3.3.Fifteen (15) gallon tree $ 175-200 per each

4.3.4.Twenty-four (24”) inch box tree $ 375-425 per each

4.3.5.Thirty-six (36”) inch box tree $ 1250-1500 per each

4.3.6.Forty-eight (48”) inch diameter planter annual color replanting – Market value based on type and caliber
EBIX Insurance No. S200000246

AGREEMENT FOR THE PERFORMANCE OF SERVICES

BY AND BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE SERVICES, INC. I
FOR 2017-2022 LANDSCAPING SERVICES AT THE SANTA CLARA CONVENTION

CENTER COMPLEX

PREAMBLE
This agreement for the perfonnance of services ("Agreement") is by and between Brightview Landscape Services, Inc:, a California corporation, with its principal place of business located at 825 Mabury Road, San Jose, California 95133 ("Contractor"), and the City of Santa Clara, California, a chartered California municipal corporation with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 ("City"). City and Contractor may be referred to individually as a "Party" or collectively as the "Patties" or the "Patties to this Agreement."

RECITALS
A. City desires to secure professional services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services"; and
B. Contractol' represents that it, and its subcontractors, if any, have the professional qualifications, expe1tise, necessaty 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 Patties have specified herein the terms and conditions under which such services will be provided and paid for.

The Patties agree as follows:

AGREEMENT PROVISIONS

1. EMPLOYMENT OF CONTRACTOR,
City hereby employs Contractor to perform services set fotth in this Agreement. To accomplish that end, City may assign a Project Manager to personally direct the Services to be provided by Contractor and will notify Contractor in writing of City's choice. City shall pay for all such materials and services provided which are consistent with the tenns of this Agreement.

2. SERVICES TO BE PROVIDED.

Except as specified in this Agreement, Contractor shall furnish all technical and professional services, including labor, material, equipment, tratisportation, supervision Agreement for the Perfonnance of Services/Brightview Landscape Services, Inc.

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and expertise ( collectively referred to as "Services") to satisfactorily complete the work required by City at his/her own risk and expense. Services to be provided to City are more fully described in Exhibit A entitled "SCOPE OF SERVICES." All of the exhibits referenced in this Agreement are attached and are incorporated by this reference. 3, COMMENCEMENT AND COMPLETION OF SERVICES.

A. Contractor shall begin providing the services under the requirements of this Agreement upon receipt of written Notice to Proceed from City. Such notice shall be deemed to have occurred tlu·ee (3) calendar days after it has been deposited in the regular United States mail. Contractor shall complete the Services within the time linlits set fo1th in the Scope of Services or as mutually determined in writing by the Paities.

B. When City determines that Contractor has satisfactorily completed the Services, City shall give Contractor written Notice of Final Acceptance. Upon receipt of such notice, Contractor shall not incur any fu1ther costs under tllis Agreement.

Contractor may request tllis detennination of completion be made when, in its opinion, the Services have been satisfactorily completed. If so requested by the contractor, City shall make tllis detennination within fomteen (14) days of its receipt of such request.

4. QUALIFICATIONS OF CONTRACTOR- STANDARD OF WORKMANSHIP.

Contractor represents and maintains that it has the necessary expe1tise in the professional calling necessary to perform 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 con:fo1mance to and consistent with the professional standards of a specialist in the same discipline in the State of California.

The plans, designs, specifications, estimates, calculations, reports and other documents funlished under Exllibit A shall be of a quality acceptable to City. The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well orgailized, that is technically and granmmtically correct, checked and having the maker and checker identified. The nlinirnum standai·d of appearance, organization and content of the drawings shall be that used by City for similai· projects. 5, TERM OF AGREEMENT.

Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written ainendment to this Agreement, the initial te1m of this Agreement shall begin on the Effective Date of this Agreement and terminate on June 30, 2020. The City Manager shall have the option to extend the Agreement for up to two (2) additional te1ms of one (1) year each. The City Manager shall exercise each option by notifying Contractor in writing no later than sixty (60) days in advance of the then-current term.

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6. MONITORING OF SERVICES.

City may monitor the Services performed under this Agreement to determine whether Contractor's operation conforms to City-policy and to the terms of this Agreement. City may also monitor the Services to be perfonned to determine whether financial operations are conducted in accord with applicable City, county, state, and federal requirements. If any action of Contractor constitutes a breach, City may terminate this Agreement pmsuant to the provisions described herein.

7. WARRANTY.

Contractor expressly wanants that all materials and services covered by this Agreement shall be fit for the pmpose intended, shall be free from defect, and shall conform to the specifications, requirements, and instrnctions upon which this Agreement is based.

Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective Services at no finiher cost to City when defects are due to the negligence, enors or omissions of Conh·actor. If Contractor fails to promptly correct or replace materials or services, City may make c01Tections or replace materials or services and charge Conh·actor for the cost incurred by City.

8. PERFORMANCE OF SERVICES.

Contractor shall perfotm all requested services in an efficient and expeditious manner and shall work closely with and be guided by 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. Contractor will perfonn all Services in a safe manner and in accordance with all federal, state and local operation and safety regulations.

9. BUSINESS TAX LICENSE REQUIRED.

Conh·actor must comply with Santa Clara City Code section 3.40.060, as that section may be amended from tinte to time or renmnbered, which requires that any person who transacts or carries on any business in the City of Santa Clara pay business license tax to the City. A business tax certificate may be obtained by completing the Business Tax Affidavit Form and paying the applicable fee at the Santa Clara City Hall Municipal Setvices Division.

10. RESPONSIBILITY OF CONTRACTOR:

Contractor shall be responsible for the-professional quality, technical accuracy and coordination of the Services furnished by it under this Agreement. Neither City's review, acceptance, nor payments for any of the Services required under this Agreement shall be construed 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 and Conh·actor shall be and remain liable to City in accordance with applicable law for all damages to City caused by Contractor negligent perfo1mance of any of the Services furnished under this Agreement.

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Any acceptance by City of plans, specifications, constrnction contract documents, reports, diagrams, maps and other material prepared by Contractor shall not in any respect absolve Contractor from the responsibility Contractor has in accordance with customary standards of good professional practice in compliance with applicable federal, state, county, and/or municipal laws, ordinances, regulations, rnles and orders.

11. 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 at the rate per hour for labor and cost per unit for materials as outlined in Exhibit B, entitled "SCHEDULE OF FEES."
Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month, subject to verification by City. City will pay Contractor within thirty (30) days of City's receipt of invoice.

12. TERMINATION OF AGREEMENT.

Either Party may tenninate this Agreement without cause by giving the other Party written notice ("Notice ofTennination") which clearly expresses that Party's intent to terminate the Agreement. Notice ofTennination shall become effective no less than thitty (30) calendar days after a Patty receives such notice. After either Party terminates the Agreement, Contractor shall discontinue further services as of the effective date of termination, and City shall pay Contractor for all Services satisfactorily performed up to such date.

13. NO ASSIGNMENT OR SUBCONTRACTING OF AGREEMENT.

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.

14. NO THIRD PARTY BENEFICIARY.

This Agreement shall not be constrned to be an agreement for the benefit of any third patty or parties and no thit·d party or patties shall have any claim or right of action under this Agreement for any cause whatsoever. ,

15. 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, however, to manage its employees in their performance of Services under this Agreement. Contractor is not authorized to bind City to any contracts or other obligations.

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16. NO PLEDGING OF CITY'S CREDIT.

Under no circumstances shall Contractor have the authority or power to pledge the credit of City or incur any obligation in the name of City. Contractor shall save and hold harmless the City, its City Council, its officers, employees, boards and commissions for expenses arising out of any unauthorized pledges of City's credit by Contractor under this Agreement.
~
J 7. 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 infonnation 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 puqioses other than the · perfo1mance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contrnctor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.

18. USE OF CITY NAME OR EMBLEM.

Contractor shall not use City's name, insignia, or emblem, or distr·ibute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.

19. OWNERSHIP OF MATERIAL.

All material, including info1mation developed on computer(s), which shall include, but not be lintlted to, data, sketches, tracings, drawings, plans, diagrams, quantities, estinlates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contr·actor may retain and use copies thereof.

City shall not be limited in any way or at any tinle 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 lintlted to, the release of this material to third pmties.

20. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR.

City, through its authorized employees, representatives or agents shall have the right during the te1m of this Agreement and for tln·ee (3) yem·s 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 mai.ntain sufficient books and records in accordance with generally accepted accounting principles to establish the ·correctness of all chm·ges submitted to City. Any expenses not so recorded shall be disallowed by City.

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. Contractor shall submit to City any and all rep01is concerning its performance under this Agreement that may be requested by City in writing. Conh·actor agrees to assist City in meeting City's rep01iing requirements to the State and other agencies with respect to Contractor's Services hereunder.

21. CORRECTION OF SERVICES.

Contractor agrees to correct any incomplete, inaccnrate or defective Services at no fmiher costs to City, when such defects are due to the negligence, e1rnrs or omissions of Contractor.

22. FAIR EMPLOYMENT.

Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of state or federal law.

23. HOLD HARMLESS/INDEMNIFICATION.

To the extent permitted by law, Conh·actor agrees to protect, defend, hold hannless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injmy, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney's fees in providing a defense to any claim arising therefrom, for which City shall become liable arising from Contractor's negligent, reckless or wro1igful acts, errors, or omissions with respect to or in any way c01mected with the Services performed by Contractor pursuant to this Agreement.

24. INSURANCE REQUIREMENTS.

Dming the tenn 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 with respect to employees and vehicles assigned to the Perfonnance of Services under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verifications as defined in Exhibit C.

25. AMENDMENTS.

This Agreement may be amended only with the written consent of both Parties.

26. INTEGRATED DOCUMENT.

This Agreement represents the entire agreement between City and Conh·actor. No other understanding, agreements, conversations, or otherwise, with any representative of City prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon City.

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27. SEVERABILITY CLAUSE.

28. WAIVER.

Contractor agrees that waiver by City of any one or more of the conditions of perf01mance under this Agreement shall not be construed as waiver( s) of any other condition of pe1formance under this Agreement.

29. NOTICES.

All notices to the Patties shall, tmless othe1wise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: Building Maintenance
1500 Warbmton Avenue
Santa Clara, California 95050
or by facsimile at (408) 247'.0594
And to Contractor addressed as follows:

Name: Brightview Landscape Services, Inc.

Address: 825 Mabmy Road
San Jose, California 95133
or by facsimile at (408) 437-1817
If notice is sent via facsimile, a signed, hard copy of the material shall 'also be mailed.

The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated docU111ent on the date of transinission. A facsimile trai1srnitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.

30. CAPTIONS.

The captions of the various sections, paragraphs and subparagraphs of this Agreement ai·e for convenience only and shall not be considered or referred to in resolving questions of interpretation.

31. LAW GOVERNING CONTRACT 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 Paity shall be vested in the state comts of the County of Santa Clara, or if appropriate, in the United States District Couti, N01thern District of California, San Jose, California.

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32. DISPUTE RESOLUTION.

A. Unless otherwise mutually agreed to by the Parties, any controversies between Contractor and City regarding the constmction or application of this Agreement, and claims arising out of this Agreement or its breach, shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party.

B. The Parties may agree on one mediator. If they cannot agree on one mediator, the Paity demanding mediation shall request the Superior Comt of Santa Clai·a County to appoint a mediator. The mediation meeting shall not exceed one day ( eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Agreement.

C. The costs of mediation shall be borne by the Parties equally.

D. For any contract dispute, mediation under this section is a condition precedent to filing an action in any court. In the event of mediation which arises out of any dispute related to this Agreement, the Parties shall each pay their respective attorney's fees, expert witness costs and cost of suit tlu·ough mediation only. In the event of litigation, the prevailing Paity shall recover its reasonable costs of suit, expert's fees, and attorney's fees. If mediation does not resolve the dispute, the Parties agree that the matter shall be litigated in a court oflaw, and not subject· to the arbitration provisions of the Public Contracts Code.

33. COMPLIANCE WITH ETHICAL STANDARDS.

Contractor shall:

A. Read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS

SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA"; and,
B. Execute Exhibit E, entitled "AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS."

34. AFFORDABLE CARE ACT OBLIGATIONS
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 wan·ants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse mlings, or tax payments associated with Contractor's responsibilities m1der the Act.

35. CONFLICT OF INTERESTS.

This Agreement does not prevent either Party from entering into similar agreements with other parties. To prevent a conflict of interest, Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any frnancial Agreement for the Perfonnance of Services/Brightview Landscape Services, Inc.

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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 ce1iifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.

36. PROGRESS SCHEDULE.

The Progress Schedule will be as set fo1ih in the attached Exhibit F, entitled "MILESTONE SCHEDULE" if applicable.

37. PREVAILING WAGES
Labor Code Compliance. Contractor must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable provisions of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1-7. Contractor agrees to include prevailing wage requirements in its contracts for the Project.

Requirements in Subcontracts. Contractor shall require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement. Subcontracts shall include all prevailing wage requirements set forth in Contractor's contracts.

This Agreement may be executed in counterpmis, each of which shall be deemed to be an original, but both of which shall constitute one and the same instmment; and, the Parties agree that signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to · bind the Pmiies.
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The Parties acknowledge- and accept the te1ms and conditions of this Agreement as evidenced by the following signatures of their duly autho1ized representatives. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.

APPROVED AS TO FORM:

CITY OF SANTA CLARA, CALIFORNIA
a chaiiered California municipal corporation
Dated: (o ,Jq. 17
----------~ @1 I~
~rl? DOYLE
l7 Interim City Attorney
ATTEST:

RA~TRA
City Manager
1500 Warburton Avenue
Santa Clai·a, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
''CITY''
BRIGHTVIEW LANDSCAPE SERVICES, INC.
a California corporation
Dated: -V--+-'-Y--i,"-',h-"~-'::::=----
B y: --WW\14---'-...4~a!'::"'="------------
(Si ·e of Person executing the Agreement on behalf of
Co tra tor)
Naine: Mike Carter
Title: Vice President - General Manager
Local Address: 825 Mabury Road
San Jose , California 95133
Email Address: [email protected]
Telephone: ( 408) 988-8480
Fax: ( 408) 988.8715
"CONTRACTOR''
S:\Attomey\AGREEMENTS\Service\OVER $SOK SERVICE AGREEMENT FORMdoc Agreement for the Perfonnance of Services/Brightview Landscape Services, Inc.

Rev. 02/01/15
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AGREEMENT FOR THE PERFOR!WANCE OF SERVICES

BY AND BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE SERVICES, INC.

FOR 2017-2022 AT THE SANT A CLARA CONVENTION CENTER COMPLEX

EXHIBITE

AFFIDAVIT OF COMPLIANCE WITH ETIDCAL STANDARDS
I hereby state that I have read and understand the language, entitled "Ethical Standards" set forth in Exhibit D. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inquiry of those individuals potentially included within the definition of"Contractor" contained in Ethical Standards at footnote 1.

Based on my review of the appropriate documents and my good-faith review of the necessary inquiry responses, I hereby state that neither the business entity nor anyindividual(s) belonging · to said "Contractor" category [i.e., owner or co-owner of a sole proprietorship, general patiner, person who controls or has power to conh·ol a business entity, etc.] .has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.

The above asse1iions' m·e trne and correct and are made under penalty of perjury under the laws of the State of California.

Brightview Landscape Services, Inc.
a California corporation
Name: -+'~_,_.1'?_,_('°--"Cd!:),//J..=,.efl---.:_________ ~ Title: _\.,.,,_,-'-')' c_"'-'('"---'--QM'---"-'--~ \=O=eJJ\~\ __,G;.,_<"-N'"'-'--~----'---'N\.-'--""AtJ-'._.'C_Pt-lo=(UL'--'----~

NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and attach a notary public's acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other legal entity, the entity's complete legal name and the title of the person signing on behalf of the legal entity shall appear above. Written.evidence of the authority of the person executing this affidavit on behalf of a corporation, paitnership, joint venture, or any other legal entity, other than a sole proprietorship, shall be attached. ·califoruia Compliant
Notai1· ·certificate
~ .r Attached
Agreement with Brightview Landscape Services, Inc.I Affidavit of Compliance/Exhibit E Rev. 02/01/15
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California General All-Purpose ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA} ,/
COUNTYOF S~Ct/<.W..,)
On __ 71~7;fi-~-rt~7~/+(~dZ~'.?~/_7~-- before me, Sheila Meinecke, Notary Public, Personally appeared __ ~/J1'---"-'/~. /A.~=-__.e""''i/=.,_,ffl'-f--'-"•.,,_/_____ _ Who proved to me on the basis of satisfactory evidence to be the person~ whose name~) is/am subscribed to the within instrument and acknowledged to me that he/slle!they executed the same in his/h0f'ftmlir authorized capacity (.ie1;j, and that by his/haffilleir signature(,9? on the instrument the person(~, or the entity upon behalf of which the personp) acted, executed the instrument.

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

WITNESS my hand and official seal.
••~tore~
My Commission
~
expires December 19, 2020
Commission #2173324

SHEILA MEINECKE
COMM, #2173324; z
Nolary Public . California ~ sanla Clara Counly , Comm. Ex Ires Dec, 19, 2020 (NOT ARY SEAL)

SHEILA MEINECKE
COMM. 112173324 z
Nolary Public • Callfornla ., flanla C!M:;, County ~
M Comm. Ex ,11os Oec, 19, 2020
ATTENTION NOTARY: Although the Information requested below is OPTIONAL, It could prevent fraudulent attachment of th[s certificate to another document.

THIS CERTIFICATE MUST BE ATTACHED TO
THE DOCUMENT DESCRIBED AT RIGHT.

TilleofDocumentType fy,/1/hJ-/;- /tff1t{tt.w} ¥. ~
NumberofPages~ {!}PYJ°~ytf;J '
DateofDocument§/3//27 S/a,Ml'/M4J' •
Slgner(s) Olher Than Named Above ~/4~'»«-~~~'J~~--

AGREEMENT FOR THE PERFORMANCE OF SERVICES

BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,·
AND
BRIGHTVIEW LANDSCAPE SERVICES, INC.

FOR 2017-2022 LANDSCAPING SERVICES AT THE SANTA CLARA CONVENTION

CENTER COMPLEX

EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are more fully described below. In the event of any conflict between the terms of this Exhibit A and the tenns of the main Agreement, the terms of the main Agreement shall control.

I. SPECIFICATIONS- GENERAL
A. Scope of Work
The Contractor shall furnish all supervision, material, labor, equipment and transp01tation required to maintain the landscape at the Santa Clara Convention Center Complex, Santa Clara, California in a first-class condition tln·oughout the duration of the contract.

B. Work Force
I. General
Contractor's Representative (Site Superintendent/Horticulturist) shall be experienced in landscape maintenance and preferably should have an education in ornamental horticulture. Contractor is expected to maintain a consistent site presence seven (7) days a week, including holidays ( except Thanksgiving and Cln'istmas). Contractor is responsible to have adequately maintained backup equipment and relief workforce. Any personnel staffing level changes will require justification as to how the level of service will be maintained and written approval of the City's Representative.

The work force onsite on weekdays (Monday thru Friday) is to involve as many.employees as required to perform the work, including at least one (I) supervisory level employee; and on Saturday and Sunday one (I) grounds maintenance level employee, typically classified by title and skills as follows:
a. Supervisory Level
Agreement with Brigbtview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page I of20
b. Site Superinteudent/H01iiculturist
c. Field Representative/Foreman
d. Pest Management Coordinator/Grounds Maintenance Worker Ill e. Grounds Maintenance Worker Level
f. Irrigation Specialist/Grounds Maintenance Worker II
g. Grounds Maintenance Worker I

2. In addition to this, Conh·actor is to assign one (1) Project Supervisory level employee to coordinate with the City's Representative regarding special projects and weekly status reports, etc. The Site Superintendent is required to attend one (1) Convention Center Complex Assessment District meeting ( one to one and one-half hours in length) each month.

Contractor's personnel used for work under the conh·act shall project a positive public image. Conh·actor's employees are to be personably presentable at all times. All personnel shall be comieous and responsive to the general public. ·

3. Contractor shall provide City an updated list of all employees (names and titles) who work on the site along with their schedules. Contractor is to designate employees that are assigned to the site fulltirne.

4. A maintenance sh·ucture has been provided onsite for Contractor's use for storage of equipment and materials and will be kept clean, free of debris at all times by Contractor.

5. Mowing equipment assigned to the site will remain onsite; mowing equipment from offsite will not be allowed.

6. The Contractor is responsible for training and educating employees used on the contract. All employees used on the contract shall be thoroughly familiar with the methods, equipment, schedules and quality of work required. Personnel education and training shall be at Contractor's expense and no payment shall be made therefore.

7. Contractor's employees shall be required to comply with the following requirements:
a. Observe and report deficiencies.
b. Communicate effectively with the public. The Contractor shall make every eff01i to hire bilingual (English/Spanish) personnel for the work under the contract.

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c. Understand written and oral instructions, schedules and procedures.
d. Contractor shall remove any employee from work under the contract at the request of the City's Representative.
e. Contractor's personnel shall wear a company unifo1m with Contractor's name and insignia at all times while perfo1ming work under the contract within the boundaries of the Complex.

Unifonns shall consist of shirts, pants, jackets and rainwear, in . snnnner and winter versions. Unifo1m shall be acceptable to the City's Representative. Contractor shall procure uniforms at Contractor's sole expense.
f. All employees must attend Contractor's training program to educate employees on the Complex facilities, unique features, public relations etiquette, complaint procedures, care and use of uniforms, etc. Employees who have not received this training shall not be pe1mitted to work under this contract.
g. U.S. citizenship or valid U.S. work permit.
h. At least eighteen (18) years of age.
i. Free of felony or major misdemeanor crinlinal record, and multiple DUl's.
j. Valid California driver's license 01; valid State of California identification card.
k. Successfully pass Contractor's required Drng and Alcohol Preemployment test and ongoing Drng and Alcohol Abuse Prevention and Testing program. Contractor is to provide a copy of the program to the City.

I. Pass Contractor's pre-employment background checks, previous employment check, and reference check, conducted at Contractor's expense.
m. Physically able to accomplish various tasks required.

8. Contractor responsible to conduct all testing, checks, and all costs for items in this section (B. Work Force).

C. Workmanship and Quality Level
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I. It is the intention of the City that a first-class standard of maintenance be applied in the. area covered by this contract. The Contractor's actions shall always be in accordance with this primary concern for quality.

2. All work shall be performed by experienced personnel directly employed and supervised by Contractor. Contractor shall provide management and technical supervision as required to implement the work. The Contractor shall accompany the City's Representative on an inspection tour once weekly or more frequently as requested by the City at no additional cost.

3. . The completion dates of fertilization and aeration for each site shall be submitted in writing by Contractor to the City's Representative. A copy of the fertilizer receipt shall accompany this rep01i.

4. Contractor shall be responsible for the skills, methods and actions of his employees and for all work done.

5. Contractor shall perform the work herein provided to the satisfaction of the City's Representative. The City's Representative will make . inspections on. a regular basis to determine the Conh·actor' s conformity with these specifications and the adequacy of the work being performed.

The Contractor shall be available for consultation with the City as needed.

6. Asset Management: Contractor shall be held accountable for any and all City assets (i.e. maintenance building) which are part of the improvements in the project area. Upon verification of project quantities, the Contractor shall maintain all improvements ma healthy, operable and safe condition tln·oughout the life of the contract. If any City-owned asset is damaged or destroyed by others, the Contractor shall report said damage and the causes for it within a maximum five (5) working day period. The City shall verify the cause and loss based on the Contractor's rep01i. If the Contractor is unable to substantiate the cause or neglects to report such occmTences, the cost of replacement shall be borne by the Conh·actor. The City must be assured that the undocumented deterioration of public improvements does not occur during this Conh·act.

7. Maintenance Deficiencies: Contractor will be notified by phone or email when work has not been completed as per specifications. If Contractor has not responded to make required conections within two (2) hours, the City's Representative shall have the authority to take action to perform the work necessary to bring the facility to a proper condition and the Contractor will be charged for the cost of these services, as follows:
a. $150.00 mobilization fee for each incident.
b. In addition, a $75.00 per hour charge with one (1) hour minimum for the City or contracted personnel required to complete stated work will be assessed.

Agreement with Brightview Landscape Services, Inc.IS cope of Services/Exhibit A Rev. 02/01/15 ·
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c. Cost to provide supplies and materials used.
d. These charges will be deducted from the following monthly bill. · 8. Responsibility for damage: Contractor shall assume the defense and shall indemnify and hold hatmless the City, its officers, officials, directors, employees and agents from and against any and all loss, liability, expense, claim, costs, suits or damages of every kind, nahlre and description directly or indirectly ai·ising from the perfom1ance of the services required under the contract. ·
D. Compliance with Law
Contractor shall, at his or her expense, obtain all necessary pe1mits and licenses, etc. required for performance of this project, give all necessary notices, pay all fees required by law, and comply with all laws, ordinances, mies and regulations relating to the work and to the preservation of the public health and safety.

Contractor shall have a valid California landscape contractor's license (C-27) for the type of work required for this project. Contractor shall have, or have subconh·act anangements with person licensed with a Santa Clara County Depa1tment of Agriculhlre Pest Control Advisor's License to ·provide reco=endations and control for po1tions of work required for this conh·act.

E. Preservation of Prope1ty
Contractor shall exercise due care to avoid injmy to. existing improvements or facilities, adjacent property and real or personal property in the pe1formance of the work of the conh·act. Contractor shall be fully responsible for, and shall hold the City, its officers, agents and employees free and hannless from, any such datnage.

F. Protection of General Public (i.e. batTicades and cones) Wherever it is necessary, Conh·actor shall be required to keep and maintain at Contractor's sole cost and expense during the course of operations on his project, such warnings, signs, and baniers as maybe required to protect the public. The provisions of the preceding sentence shall not impose any liability upon the City and are for the express benefit of the general public.

G. Notifications
Contractor shall notify the City's Representative at least one week prior to unde1iaking any of the following work:

1. Broadleaf weed spraying within hlrf areas.

2. Aeration
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3. Fe1iilization

4. Dethatching
H. Progress Payments
Contraptor shall submit an invoice for payment on a monthly basis to the following address:

City of Santa Clara
c/o Orchard Commercial
2055 Laurelwood Rd, Ste 130 Santa Clara, CA 95054
[email protected]
I. Additional Payments
Replacement or addition of new materials, such as shrubs, plants, groundcover, turf, trees, sprinkler system components, etc., must be approved by the City's Representative. · These materials can be priced by the Conh·actor at the City's request, showing Contractor's total price for the labor and materials. The City reserves the right to make its own cos.t comparison and to accept the Contractor's offer, or to make other arrangements for the work.

J. Licenses and Permits
At the time of bid, Conh·actor must, bylaw, have a C-27 California State Landscape Contractor's License. Contractor must purchase all other licenses and/or pe1mits required by City, State, or Federal governments.

K. Independent Contractor
The bidder receiving an award agrees that he/she will be acting as an independent contractor, not as an agent or as an employee, of the City of Santa Clara.

L. Work Performed by Special Forces or Other Special Services When the City's Representative and Contractor determine that supplemental work cannot be performed by the forces of Contractor, the Contractor may be directed to fn1d a subcontractor that meets the City's approval. Invoices for such supplemental work performed by subcontractor may be accepted without complete itemization of labor, materials and equipment rental costs when it is impracticable and not in accordance with the established practice of the special service indush-y to provide such complete itemization.

Conh·actor may add a markup surcharge (See Exhibit B) to such subcontractor· invoices as payment in full for the overhead, profit and handling the payment transaction.

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If the City selects a subcontractor and the landscape Contractor has limited involvement in the supplemental work, but handles the subcontractor bill paperwork for payment, a surcharge (see Exhibit B) maybe added to compensate the landscape Contractor for handling the payment transaction.

M. Supplemental Work Compensation
Payment for supplemental work by Conh·actor's forces (see Exhibit B) will be detennined by the Contractor's cost oflabor, materials and equipment required to do the work.

N. Penalties for Non-Compliance with Agreement
If City's Representative determines that Contractor's services were not provided per Agreement, City may reduce payment for each day services are not perfonned. City shall notify Contractor by phone as soon as possible concerning non-compliance. If Contractor can correct deficiencies within two (2) hours of notification, no reduction in payment shall be made. If not corrected within two (2) hours of notification on the same day of non-compliance, or as otherwise agreed upon, City shall deduct one hundred fifty ($150) dollars per day of noncompliance from payment due to Contractor. Contractor shall meet with City's Representative and discuss corrective actions taken to prevent future contract performance deficiencies.

II. SPECIFICATIONS - DETAILED
A. Materials
I. AIi materials used shall either conform to bid specifications, or shall otherwise be acceptable to the City. The County Agricultural Commissioner's Office must, by law, be given a monthly record of all agricultural chemicals used.

2. · \Vater - To be furnished by the City.

3. Fe1tilizer-To be furnished and applied by the Contractor.

4. Pesticides - To be furnished and applied by the Contractor. · 5. Replacement Trees, Sluubs and Ground Cover- Replacement tr·ees and plants of a size, condition and variety acceptable to the City's Representative are to be furnished by the Contractor if he/she has damaged the originals; otherwise the City will furnish these materials or reimburse the Conh·actor.

6. Lawn Seed for Reseeding/Sod - A type, matching the variety at the site, will be furnished by the Conh·actor.

Agreement with Brightview Landscape Services, Inc.IS cope of Services/Exhibit A Rev. 02/01/15 Page 7 of20
B. Storage of Equipment
Contractor shall be allowed to store equipment, patis, and material onsite within a City-owned maintenance facility located nmih of the pmking garage structure.

Contractor will be solely responsible for the maintenance of this strncture and for any _damage to it during its usage.

C. Storage Collection and Disposal of Refuse
Contractor shall dispose of all refuse collected by his/her operations at atl approved waste disposal facility and shall pay all costs involved. No City facilities, other than specified above, are available for disposal. Refuse resulting from street sweeping or sidewalk cleaning operations shall not be stored on the street beyond the end of the work shift, but shall be loaded into trncks or into appropriately placed containers approved by the City's Representative. An area maybe designated for the use of such a storage container.

D. Communications
Contractor shall equip Superintendent, Foreman and Project Manager with cellphones, direct connect, or other technology and related equipment ( chai·gers, etc.) for communications. ·
E. Watering

1. Plants should not be watered nntil a moisture check has been made of representative plants in the landscape. Use a probe or other tool to check the moisture in the root ball. A need for water should dictate the frequency of watering by an automatic or manual sprinkler system.

2. Maintain a lmge enough water basin mound plants so that enough water can be applied to establish moisture through the major root zone. When hand watering, use a water breaker to break the water force.

F. Tree Care

1. General - Maintain trees and shrubs in a healthy, growing condition by performing all necessaty operations, including the following:

2. Contractor will be responsible for the pnming of all trees that are up to 15' tall on this site. For trees in excess of 15' in height, Contractor will be responsible for trinmling trees other that1 pahns and evergreens, approximately 285 trees, over the term of the contract ( approximate species counts are included in Exhibit B).

3. All tree prnning will be performed according to International Society of Arboriculture Tree PIUlling Standards and American National Safety standards.
· Agreement with Brightview Landscape Services, In~./Scope of Services/Exhibit A Rev. 02/01/15

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4. All pnming activities shall be done under the general supervision of an arborist ce1tified by the Western Chapter of International Society of Arboriculture.

5. Contractor shall maintain the natural characteristics and appearance of each tree species. No tree shall be pollarded. Large trees shall be pruned by working from the top downward. Each branch shall be pruned individually. The branch shall be removed at its origin or by cutting it back to another lateral. All limbs one inch in diameter, or over, shall be undercut to avoid splitting or tearing of the bark. The first cut shall be made on the underside of the limb approximately one foot from the trunk and sawing through one third of the branch. The second cut shall be made on the top of the branch about tln·ee inches in from the bottom cut, sawing until the branch splits off at the parallel point of the two cuts. The fmal cut should be just outside the bran9h bark ridge and collar (see ISA Western Chapter Pruning Standards).

6. All pruning and cutting tools shall be kept sharpened and clean at all times.

7. All trees shall be pnmed to remove dead wood, hazardous branches, weak, diseased and insect-infested, broken, low or crossing limbs, suckers, watersprouts and ivy. Branches with extremely narrow angle of attaclnnents shall be removed. Any strnctural weakness, decayed h·illlk, or branches shall be reported to the City's Representative.

8. All trees shall be pnmed to force new growth on the windward side of the canopy. Conh·actor shall not remove more than 30% of the total liealthy canopy of any tree. All cut branches, three inches in diameter or larger shall be lowered to the ground by means of a rope. Any damage caused by dropping limbs shall be repaired promptly at the Contractor's expense and to the satisfaction of the City's Representative. No climbing shall be pennitted on any tree less than ten inches DBH. If the desired cut cannot be made properly from the ground on h·ees less than ten inches DBH, an aerial lift bucket shall be used.

9. Contractor shall remove all debris resulting from prnning operations daily and upon completion of each portion of the work. Due to the inherent danger of tree maintenance operations, all work shall proceed under appropriate safety standards.

10. Tree Establislnnent Care -Staking and guying shall be maintained until a particular tree no longer requires support. Stakes and suppo1t cables shall be monitored carefully for chafmg on tree hunks and limbs. Improve or maintain temporary berms as necessary.

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11. Initial Training - Due to the high winds frequently experienced at this site, the initial care of trees is of primary imp011ance. Trees shall be pruned and otherwise maintained to encourage strong ttunk growth. Primary branches and suckers, located below the main limbs, shall be maintained approximately 6 inches apatt vertically 120 degrees radically to 10 inches maximum until no longer required

12. Tree and Stunip Removal - For stump removal operations, Contractor shall provide for safety of employees and the general public at all times when work is in progress. Removal shall include, but not be limited to, removal of all visible buttress roots, grinding of all stumps to a depth appropriate for replanting of a 24" box replacement tree, removal of all chips in excess of that which is required to back fill the removed stump hole to grade, removal from the site all debris immediately upon completion of a tree removal operation. Cont:t·actor shall be responsible for initiating location of all underground utilities and coordinating with utility agencies as related to carrying out the work. Any damage to utilities shall be Contractor's responsibility.

13. Palm Tree Well Maintenance - Contractor is responsible to monitor all palm tree well inspection tubes daily and pump all water out of the planting pit. Maintenance persormel are to measure the quantity of water pumped and time duration of pumping required. Data is to be logged daily on a City form issued by the City's Representative. All forms are to be submitted to the City's Representative on a weekly basis.

14. Arboricultural Pest Management - Trees shall be maintained in as pestfree condition as possible. Rep011 all unusual or plant injurious pest irrfestations promptly to the City's Representative who shall make the determination if such a pest population requires control. Biological controls are considered as well as chemical control. Under this contract, all tree pest cont:t·ol and frnit control (i.e. olive fruit) shall be accomplished by others.

15. Chemical applications must under all circumstances be performed under the supervision of a California State Ce11ified Pest Control Advisor or Qualified Applicator (QAC) or QAL and under st:t-ict observance of all applicable local, county, state and federal regulations.

16. Tree Fe11ilization and Fruit Control- Cher1y and Magnolia h·ees are to be fertilized every other year with humates, mycorrhizae, bio-stimulants and microorganisms to stimulate root development and improve overall plant health. Olive trees are to be sprayed for fruit conh·ol each year and to ensure walkways remain clear of fruit at ali times.

17. Tree Inventory -No later than 1 month after full execution of contract for Tree Trimming and Tree Maintenance, the successful Bidder shall provide Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15

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an update of the tree inventory. The tree inventory data shall include following data fields:
a. Tree Location.

Contractor shall create an invento1y showing the location of eve1y existing tree site and vacant tree site on sitemaps. The tree invent01y shall be conducted by visiting each tree site or vacant planting site and plot the position. Contractor shall update the h·ee inventory as conditions require ( e.g., tree removed, tree planted, etc.).
b. Measurement of Canopy Spread.

As a part of the data collection process, successful Bidder shall measure the canopy spread of each tree using either a laser range finder or a Roll-aTape, to the nearest foot, using a pre- established uniform protocol. This data shall be included in the tree inventory.
c. Tree Condition.

General condition of individual h·ees
Pruning requirements (i.e. recommended pruning cycle)
Condition of surrounding hardscape (i.e. displacement, recent repairs)

18. Emergency Response Protocol-Contractor is required to have a Project Manager available by telephone on a 24-hour basis who is assigned to provide direct and prompt attention to requests from City for emergency and after-hours tree service requests.

Contractor shall acknowledge tree related emergency calls during normal business hours of operation and after-hours within (15) fifteen minutes of the initial call by the City's Representative.

The response time for a crew to arrive on-site for tree related emergencies during n01mal business hours of operation shall not exceed thirty (30) minutes.

The response time for a crew to arrive on-site for h·ee related emergencies outside of normal business hours of operation shall not exceed two (2) hours.

G. Shrnb Care

1. Pruning Shrubs - The objectives of shrnb prnning are the same as for trees. Shrubs shall not be clipped into balled or boxed forms unless such is required by the design.

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All pruning cuts shall be made to lateral branches, or buds, or to the branch bark ridge. "Stubbing" will not be permitted. Contractor shall deadhead all agapanthus during the flowering season (May-September) weekly to remove all spent flower stalks and seed heads. Stalks shall be cut off cleanly at the base of the plant. Any brown foliage shall also be removed.

2. Rose Garden Pruning - Contractor is responsible to prune all roses according to American Rose Society standards. This includes cutting out the old wood and keeping the new wood while retaining the synnnetrical shape of the plant. Cut the remaining new wood back three quarter the length of growth made the previous season, cutting a quarter inch above an eye facing the outside. Weak wood should be removed as well as crossing branches. Moderate pruning of floribunda and grandiflora roses will produce a greater abundance of blooms. Complete pruning and . removal of all foliage is to be done during the dormant season (January).

Deadheading of flowers and minor c01Tective pn.ming can be done all during the growing season (May thru November). Roses at the Complex area combination of floribunda and grandiflora roses (Show Biz, and carpet rose).

3. Weed Control (Shrnbs) - Contractor shall keep all landscape areas weed free at all times.

Weed free shall refer to the required condition of all landscaped areas and adjacent hard surfaces within the project area and for the duration of the contract. Surfaces shall be judged to meet these perf01mance criteria if the impression from a distance and at close hand is that the stuface is free of any or all plants which are foreign to the planted area and are therefore out of place and undesirable. Should weed germination occur, Contractor shall eradicate pursuant to approved maintenance plan and prior to weeds reaching one week of (top growth) age. Any weed taller than 2" is to be hand pulled or mechanically removed to avoid unsightly brown stubble from using herbicides.

Contractor may not spray in open areas with Roundup on weeds 2" or less.

Contractor is to apply a pre-emergent herbicide (Surflan) or approved equal on all planters ( excluding annul color planters and beds) at least every three (3) months to control weeds. All herbicide applications are to be done by certified personnel who are trained and possess a Qualified Applicator Certificate (QAC or Qualified Applicators License QAL) with the Department of Agricultui·e. The applicator must also have in his/her possession at time of spraying a written recommendation from a Celiified Pest Control Advisor (PCA). Contractor shall use extreme caution when applying herbicides to assure no damage occurs to the site or to adjacent prope1iies. Any damage to desirable plant material shall be replaced at Contractor-' s expense. Contractor shall spray as needed.

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Avoid soil cultivation unde1· camellias that destroys shall roots. Use mulches ( small 1 ¼" fir chips) to help prevent weed seed germination.

Mulches are to be applied I "thick. Caution is to be exercised when applying mulches around roses so as not to bury the crown and cause rotting and dieback.

4. Insect and Disease Control (Sluubs) - Maintain control with approved materials and integrated pest control management methods.

5. Fe1iilization (Shrubs)- Contractor shall fe1iilize all shrubbe1y at least tlu·ee times per year (September, March and June) with a balanced pelleted fe1iilizer. All plant material shall be well watered two (2) days prior to fertilization to avoid any damage or bmn to the plant. Contractor shall exercise caution not to allow fe1iilizer pellets to accumulate onto foliage or sidewalks where dai;nage may occur. All plants are to be inunediately watered after fertilizer is spread at the recommended rate evenly arom1d the base of the plant out to its drip line. For established roses, Contractor shall fe1iilize with a balanced granular fertilizer according to the recommended label rate once eve1y six weeks begimling March tlu·ough September.

Acid Plants (i.e. camellias, azaleas, rhododendrons)-Apply fe1iilizer after blossoms have been shed in early Spi"ing (March - September) for at least 7 consecutive months each year, using an acid fe1iilizer 8-4-12 or approved equal at the following rates along with liquid iron:

Slu·ub Size Rate
2 feet high or wide 1/4 Cup
2 to 3 feet high 01' wide 1/3 cup
3 to 4 feet high or wide 1/2 cup
4 feet plus I cup
Camellias shall also receive one (1) cup of cottonseed meal at least every ninety (90) days to maintain plant health.

6. Plant Removal and Replacement- Contractor shall notify the City's Representative of any damaged, destroyed or dead plant material within one working day of its discovery. Plant material shall be removed within one working day after the City's Representative directs action, except for damaged plant material posing a safety hazard, which must be removed inunediately.

The City's Representative shall make a final determination of the probable cause for the plant material loss and assign the cost responsibilities of replacement to the appropriate paiiy. The City's Representative may elect to remove any plant material and not replace it; Contractor shall be directed accordingly.

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Contractor shall remove dead and dying plants and replac·e with plants of a size, condition and variety acceptable to the City to be paid for by the City, unless due to negligence of the Contractor. The Contractor shall gain approval from the City before any planting is done.

7. General H011icultural Requirements - It is the intent of this specification to provide for normal horticultural maintenance of all plant materials · being maintained i.e. dead camellia blossoms shall be removed from the plant or gro\llld, dead agapanthus blossoms shall be removed by cutting at the base of the plant. ·
H. Ground Cover Care & General Gro\llld Maintenance
I. Weed Control - Conh·ol weeds, preferably with pre-emergent herbicides, but also with selective systemic herbicides. Any weed taller than 2"is to be hand pulled or mechanically removed to avoid \lllsightly brown stubble from using herbicides. ·

2. Fe11ilization-Apply four (4) lbs. of actual nitrogen per 1,000 square feet per year in two to four applications during the first year of a new planting or if ground cover is nih·ogen starved. One application should be in early spring when growth begins. Reduce to three (3) lbs. actual nitrogen vigorous growth and good color. Complete fertilizers are not necessary unless soil test shows specific nuh·ient deficiencies.

3. W()tering- Water enough that moisture penetrates throughout root zone, . and only as frequently as necessary to maintain healthy growth.

4. Trash Removal - Remove hash daily.

5. Edging - Edge gro\llld cover as necessary to keep in bounds and trim to growth as necessary to achieve an overall even appearance. Once every two years mow ivy to 2" above ground level in order to renew growth and improve density and ath·activeness. Gro\llldcover is to be kept a minimum of two (2) feet from the base of h·ee tr\lllks. Any open areas are to be maintained in a weed free condition.

6. Pest/Insect Control - Control insects and diseases as necessary, using legally approved mate1ials. Contractor will be required to follow City of Santa Clara's Integrated Pest Management (IPM) Program Policy.

7. Plant Replacements - Replace dead and missing plants after obtaining the City's agreement to pay for replacements. Damage due to Conh·actor's negligence shall be made good without charge.

8. Rodent/ Animal Control - Conh·actor is responsible for controlling various · rodents and animals that may enter the Complex (i.e. gophers, rats, possums, ground squirrels, ducks, etc.) per Department of Agriculture Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page 14 of20
approved methods. Contractor is responsible to secure all necessary permits.

I. Annual Color

1. General - Color/design schemes will be cooperatively developed between Contractor and the City's Representative in advance of the planting schedules. Contractor will be responsible to purchase healthy plant material and properly install and maintain all a1111uals in a vigorous condition. Any plants that are lost due to pest/disease or improper maintenance practices will be replaced by Contractor at his/her expense.

Once soil preparation is completed and the plants are installed, all drip inigation tubes are to be immediately reinstalled to ensure property watering. Overhead watering is to be minimi7,ed or avoided to prevent disease outbreaks. When hand watering color bowls, a pressure breaker nozzle is to be used at the hose end to avoid plant/soil damage. Care should be exercised to place the watering wand between the plant materials close to the soil to minimize overhead water onto foliage. All a1111uals are to be inspected daily and deadheaded and sprayed, etc. as necessary to maintain health during the flowing season. Annnal color beds are not to be mulched with bark chips, bnt rather with nitrified redwood compost.

2. Soil Preparation - At time of flower rotation, all existing annuals are to be removed and all debris raked and discarded. Soil is then cultivated to a depth of 12" and necessary soil amendment added. All a1111ual planting beds are then to be treated with a soil drench using subdue per the manufacturer's recommendation prior to planting. A pre-plant fe1tilizer (i.e. 16-16-16) is then to be incorporated into the soil. Annual color plants are then installed per California Nurseryman standards. The average sizes of annual color that are purchased are jumbos and 4" pot material. On rare occasions where material is only available in cell packs, this size maybe used upon approval of the City's.Representative.

3. Annual color areas are located throughout the complex in medians, tree wells, various color bowls, entrance sign planter beds, and comtyard patios. Contractor is responsible to be familiar with planting plan and change out frequencies. The average spacing is 6" on center. Bid prices should include plant replacement cost that may be expected during the growing season due to transplant shock, etc.

J. Turf Care
Turf shall be maintained in a healthy growing condition by furnishing necessary services, including the following: ·
Agreement with Brightview Landscape Services, Inc.IS cope of Services/Exhibit A Rev. 02/01/15 Page 15 of20

1. Mowing and Edging -Tmf shall be mowed at the minimum height of 2 inches during the year, except for the rainy season when it shall be mowed at 1.5 inches. Clippings shall be vacuumed off of all walkways or blown with a backpack blower into the sh·eet gutter but must be immediately swept or vacumned up. At no time will Conh·actor blow debris into the City streets or storm drain catch basins. Clippings from mowing shall be caught unless otherwise approved.

Mowing shall be done twice weekly (Monday, and Thursday or Friday) during the months of March thrn September and once weekly from October tlnu Febrnary each year. Contractor will be required to have mowers sharp at all times in order to assure a clean cut.

Edging shall be done weekly year round. Sprinkler heads must be himmed around by hand weekly to provide good water coverage and avoid any obstrnctions. This may also be achieved by proper use of a gas powered shing trimmer. Scalping of the turf around sprinkler heaps and valve boxes etc. will not be tolerated. Contact weed spray arom1d sprinkler heads will not be allowed.

2. Dethatching - Contractor shall be responsible to measure the turf thatch layer thickness in late August. If the thatch layer is¾" or more in thickness, dethatching will be required (September) to improve water penetration and improve turf health. A gas powered dethatcher (i.e. selfpropelled Ryan model) shall be used and all debris is to be raked and removed. If necessary, over-seeding may be required following dethatching as well as aerification.

3. Watering- Lawns shall be watered at such frequency as weather conditions require to replenish soil moisture below root zone. Watering shall be done at night if the irrigation system is electrically controlled, otherwise apply water early in the morning. Normally a total of l.5inches of water is needed weekly in hot weather, but not all at one time. Water run-off across pavements and into gutter shall be avoided whenever possible.

4. Aerification -All turf areas shall be aerified as needed but at least once per month during the months of March, June, September and December.

Aeifier core depth shall be a mirrimum of2.5" deep. A fertilizer application shall be applied one week later following each aerification process. In addition to this, during the September and March aerification, an application of pelleted gypsum is to be applied ( along with the application of fertilizer) at a rate of 16 lbs. per 1,000 sq. ft. 5,. Fertilizaton -All turf shall be fertilized every six (6) to (8) weeks during the growing season (March tln·ought October). The fertilizer shall be Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page 16 of20
sulfur coated hydorprill 21-7-14, or approved equal, and shall be applied at a rate of 5 lbs. material per 1,000sq. ft. Then in November, a time release fertilizer is to be applied (i.e Sierra Chemical's controlled release fertilizer 21-8-8). If improvement of turf color and health is necessary during winter, an application of an appropriate fe1iilizer shall be applied as. necessary.

K. Weed Control

1. BroadleafWeed Control with inTurf Areas -A minimum of two spray applications is required per year during the months of April and August.

Applications shall be repeated in order to achieve 100% weed free condition. F01mulation of herbicide must be approved by the City's Representative in advance of any application. Contractor must receive prior scheduling approval for applying any broadleaf herbicide from the · Santa Clara Convention Center Complex Assessment District. Contractor · must supply to the City's Representative all necessary MSDS sheets along with a notice of intent to spray.

2. General Weed Control- approved pre-emergent weed control will be applied in February and in September of each year for control of crab grass and annual blue grass, or by the manufacturer's recommendation.

Control against Be1muda grass infestation is to be carried out as necessary.

3. Damage Prevention - Contractor shall use caution when applying broadleaf spray, as well as all pesticides, to assure no damage to site ( especially annual color) or adjacent property owners' plant material.

L. lITigation System

1. Any damages to the system caused by Contractor's operations shall be repaired without charge. Repairs shall be made within one watering period.

2. Accidental damages, not resulting from Contractor's negligence of operations, shall be repo1ted promptly to the City together with an estimate of the cost to repair. This applies also to changes and additions needed. Faulty electrical controllers shall be reported to City and upon approval repairs shall be made at City's expense, or City will arrange for repair. Contractor shall be allowed a mark-up on all i11'igation material (i.e .. heads, valves, clocks and misc. parts). Contractor shall be responsible at his/her cost for all sprinkler repairs, including risers and damaged waterlines, caused by Contractor negligence. Contractor shall inspect daily for broken heads, pipes, valves or malfunctioning clocks.

3. In late winter of each year, Contractor shall check all systems for proper operation. Lateral lines shall be flushed out after removing the last sprinkler head or two at each end of the lateral. All heads are to be Agreement withBrightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page 17 of20
adjusted as necessary for unimpeded coverage. The inigation systems shall be adjusted throughout the year to provide proper coverage. Any damage to plant and turf material due to improper coverage shall be made good without charge.

4. Set and program automatic controllers for seasonal water requirements.

5. Contractor shall perform a master water audit on all landscape areas and develop a water budget for each conh·oller. The repo1t shall be submitted to the City's Representative for approval within three (3) months of notice to proceed. The fonnat shall be in cubic feet for each month of the year.

The City, while desirit,ig that quality is maintained at the highest possible standards, also recognizes that water consumption should be held to the lowest reasonable level consistent with the health of the plant material.

Irrigation levels should be consistent with the climatic region in the Convention Center project areas, the plant material and the inigation equipment.

6. Contractor shall be required to regularly rep01t on compliance.

7. Contractor shall regularly inspect all Netafin drip irrigation to ensure no clogs are apparent and tubes are properly spaced for thorough coverage.

M. Hardscape Maintenance

1. Sidewalk and Patio Cleaning - Contractor shall remove clippings and other refuse from sidewalk and pedestrian areas throughout the Convention Center Complex (i.e. includes all concrete and granite walkways, exposed aggregate patio behind hotel and cubblestone surfaces around all fountains) using approved mechanical methods. Removal of refuse from h·ee wells is included.

Conh·actor must coordinate the work in this section with the site's sweeping and custodial contractors' operations to avoid any conflicts.

Sidewalk and patio cleaning will be performed as needed on a daily basis.

The City's Representative reserves the right to add areas, delete areas, adjust frequencies and adjust schedules.

Mechanical methods used to perform sidewalk cleaning include blowing and vacuuming in conjunction with miscellaneous hand tools such as brooms, rakes, shovels, etc. Blowing is the preferred method however.

Contractor is responsible for ensuring that all work is performed in full compliance with city, county, state and federal noise ordinances, permits and environmental clearances. Contractor shall be responsible for minimizing noise or other environmental impacts upon the public resulting from the sidewalk cleaning operation. No blowing will be allowed around the hotel prior to 6:00a.m. Caution should also be exercised to rninirnize noise from 6:00 a.m. to 8:00 a.m. at the hotel main entrance and hotel Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15-

Page 18 ends

restaurant entrance. Contractor is responsible for development of alternative cleaning methods and schedules where noise or other environmental impacts upon the public are determined by the City's Representative to be unacceptable. Alternate methods could include utilizing vacuum type equipment or hand methods. No adjustment to unit price for this work shall be pennitted if alternative methods are permitted or required.

2. Equipment-Equipment not suitable to produce the quality of work specified herein, as determined by the City's Representative, shall not be permitted to operate on the contractual work. All equipment shall be subject to the City's Representative's approval prior to use.

Equipment needed to perform this work may include envirolllllentally acceptable backpack blowers, hand tools (i.e. brooms, scoops, shovels, hoses, etc.) and hand power vacuums.

Contractor shall utilize the quietest equipment that is reasonably commercially available. Conh·actor shall be responsible for keeping informed of technological advances in sidewalk cleaning equipment and for utilizing the latest equipment to mitigate noise.

Conh·actor shall properly maintain back-up equipment at all times for the conh·actual work. The back-up equipment shall be of the same condition and appearance as specified above for the regularly used equipment. The· cost to maintain the specified equipment shall be the sole responsibility of Conh·actor.

3. Schedule of Cleaning - All scheduled sidewalk cleaning shall be performed between the hours of 8:00 a.m. to 8:00 p.m., unless directed otherwise by the City's Representative. Scheduling of this activity shall be adjusted such that work is performed as required, which may include each· and every day of the week including Saturdays, Sundays and holidays, and as acceptable to the City's Representative. Sidewalk cleaning shall be performed year-round.

N. Other Maintenance Requirements

1. Keep pavement joints weed free by either spraying or removing by hand.

2. Do not blow debris into City streets. Material maybe blown into the sh·eet gutter but must be immediately swept or vacuUllled up.

3. Apply snail bait to all planters as necessary to achieve control.

4. Contractor shall can·y out operations with due regard for public safety.

The City's Representative shall direct Contractor to rectify matters Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page 19 of20
affecting public safety as required, and directions of this nature are to be treated with the highest priority.

5. Conh·actor is responsible for maintaining all applicable h"affic sign visibility standards with regard to groundcover, sh.tubs or h·ees.

6. Contractor shall remove foliage as necessary to provide for these standards.

7. Contractor shall remove all debris created during field operations progressively over the work day. Under no circumstances shall Conh·actor leave any debris overnight.

8. Contractor is responsible for the removal of st01m or weather related debris.

0. Tasks Not Included
· 1. . Repairs or replacement of losses and damages beyond Conh"actor's conh·ol, except with City's approval and agreement to purchase.

2. New planting and other special services, except with City's approval and agreement to pay, unless required due to Conh·actor's negligence, in which case Conh"actor shall be responsible for such new planting and other special services.

P. Supplemental Work
In addition to the preceding tasks, the City's Representative may authorize other work to be performed after obtaining a cost estimate from Contractor. All work over $200.00 must be approved in writing by the City's Representative before job commences. An example of supplemental work follows:
i. Renovation - Removal of old sod, soil preparation and installation of new sod.

2. Irrigation Installation -Valves, quick couplers, sprinkler heads and complete installations.

3. Plant Material Installation - 24" box trees, 15 gallon trees, I and5 gallon sh.tubs and ground cove
Agreement with Brightview Landscape Services, Inc./Scope of Services/Exhibit A Rev. 02/01/15 Page20 of20

AGREEMENT FOR THE PERFORMANCE OF SERVICES

BY AND BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE SERVICE, INC.

FOR 2017-2022 LANDSCAPING SERVICES AT THE SANT A CLARA CONVENTION

CENTER COMPLEX

EXHIBITB

FEE SCHEDULE
In no event shall the amount billed to City by the Contractor for services under this Agreement shall not exceed $190,054 in FY 2017-2018; $190,054 in FY 2018-2019; $197,866 in FY 2019- 2020, which include a 10% contingency or $52,543 for repairs over the initial term. The City Manager has the option to extend this Agreement for up to two (2), one (1) year extended terms, which shall not exceed $197,866 in FY 2020-2021, and $203,961 in FY 2021-2022, if approved, for a total of not-to-exceed amount of$979,801, which includes a 10% contingency or $89,072, for repairs over the 5 years of the agreement, subjectto annual budget appropriations.

1. Rates and Fees - Basic Service
Superintendent
Foreman
Groundsman Level 1
Groundsman Level 2
$65 per hour
$50 per hour
$45 per honr
$45 per hour
(Turf Maintenance, Annual Color, Shrnb Maintenance & Tree Care-Excluding Pahns)
Year Te1m Yearlv Y earlv with contingencv
1 Julvl, 2017 - June 30, 2018 $172,776 $190,054
2 Julvl. 2018 - June 30, 2019 $172.776 $190,054
3 Julv I. 2019-June 30, 2020 $179.879 $197,866
4 Julv l. 2020- June 30, 2021 $179,879 $197,866
5 Julv l. 2021 - June 30. 2022 $185.419 $203,961

2. Mark Up Rate
(Supplemental rental, materials, and approved Subcontractor services) i. Mark up rate for invoiced purchase materials: 15% over cost ii. Mark up rate for invoiced equipment rentals: 15% over cost Agreement with Brightview Landscape Services, Inc./Fee Schedule/Exhibit B Rev. 02/01/15
Page I of2
iii. Mark up rate for full coordination, supervision, and payment of approved subcontractor work: 10%
1v. Mark up rate for limited involvement and coordination, and payment of approved subcontractor work: 5%

3. Pricing
Supplemental Work:

New Inigation Installation (inclusive of all labor and equipment to install).

Irrigation equipment cost plus markup separate).
a. One (1'.') Inch diameter vales ofless $275 per each
b. Quick coupler $235 each
c. Irrigation head 6" "pop up"$ 42 per each

4. Turf Renovation (inclusive of removal of old sod, soil preparation, and Installation of new sod):
a. $1.80 per square foot

5. Plant Material Installation (inclusive of all labor, materials, and equipment to install plant material. Plant material cost plus mark- up separate). b. One (1) gallon shrub or ground cover $15-20 per each c. Five (5) gallon shrnb or tree $34-50 per each
d. Fifteen (15) gallon h·ee $ 175-200 per each
e. Twenty-fom (24") inch box tree$ 375-425 per each
f. Thirty-six (36") inch box tree $ 1250-1500 per each
g. Forty-eight ( 48") inch diameter planter annual color replanting - Market value based on type and caliber
Agreement with Brightview Landscape Services, Inc./Fee Schedule/Exhibit B Rev. 02/01/15

Page 2 ends

AGREEMENT FOR THE PERFORLvlANCE OF SERVICES

BY AND BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE SERVICES, INC.

FOR 2017-2022 LANDSCAPING SERVICES AT THE SANTA CLARA CONVENTION

CENTER COMPLEX

EXHIBITC

INSURANCE COVERAGE 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
I. 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 Injmy

2. Exact strncture and layering of the coverage shall be left to the discretion of Contractor; however, any excess or U111brella 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 U111brella 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.

Agreement with Brightview Landscape Services, Inc./Insmance Requirements/Exhibit C Rev. 02/01/15
Page I of4
B. 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 least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, 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 two million dollars ($2,000,000) 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.

C. WORKERS' COMPENSATION

1. 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 b.y disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injmy by disease.

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 pali of each commercial general liability policy, and each umbrella or excess policy.

1. 2.

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 Agreement with Brightview Landscape Services, Inc./Insurance Requirements/Exhibit C Rev. 02/01/15
Page2 of4
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.

3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to nonpayment 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 nonrenewal. 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 thitty (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.

4. 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 fortb in Sections A through D of this Exhibit C, above.

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

I. 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. Conh·actor 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 conh·act used by any pmty involved in any way with the project reserves the right to chm·ge 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 pmty for the cost of complying with Agreement with Brightview Landscape Services, lnc.llnsurance Requirements/Exhibit C Rev. 02/01/15
Page3 of4
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 fo1ms of policies, satisfactory to C1ty and as described in this Agreement. Contractor shall file with the City all ce1tificates 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 fo1m 25-S ce1tificate of insurance ( or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set f01th 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 tem1s of this Agreement, all ceitificates, 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 Building Maintenance
P.O. Box 100085 - S2 or I Ebix Way
Duluth, GA 30096
Telephone number:

Fax number:

Email address:

H. QUALIFYING INSURERS
John's Creek, GA 30097
951-766-2280
770-325-0409
[email protected]
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.

S:\Attorney\INSURANCEICITY\EXHIBIT C-02 Contract over $50,000 limiied exposure.doc Agreement with Brightview Landscape Services, lnc./Insurance Requirements/Exhibit C Rev. 02/01/15
Page4 of4

AGREEMENT FOR THE PERFORMANCE OF SERVICES

BY AND BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
BRIGHTVIEW LANDSCAPE SERVICES, INC.

FOR 2017-2022 LANDSCAPING SERVICES AT THE SANTA CLARA CONVENTION

CENTER COMPLEX

EXHIBITD

ETIDCAL ST AND ARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN

AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA
Termination of Agreement for Certain Acts.

A. The City may, at its sole discretion, terminate this Agreement in the event any one or more of the following occurs:

1. If a Contractor1 does any of the following:
a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation;
b. Is convicted of a crime punishable as a felony involving dishonesty3; c. Is convicted of an offense involving dishonesty or is convicted of fraud or a crinrinal offense in connection with: (!) obtaining; (2) attempting to obtain; or, (3) performing a public contract or subcontract; d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a City contractor or subcontractor; and/or, e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement.

For purposes of this Agreement, the word "Consultant'' (whether a person or a legal entity) also refers to "Contractor" and means any of the following: an owner or co-owner ofa sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primmy corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock ofa corporation] and who is active in the day to day operations of that corporation. · 2 For purposes of this Agreement, the-words "convicted" or "conviction,, mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea ofnolo contendere within the past five (5) years.

As used herein, "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy. ·
Agreement with Brightview Landscape Services, Inc./Ethical Standards for Contractors/Exhibit D Rev. 02/01/15
Page I of2

2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can be imputed to the Contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the Contractor, with the Contractor's knowledge, approval or acquiescence, the Contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.

B. The City may also terminate this Agreement in the event any one or more of the following occurs:

1. The City detennines that Contractor no longer has the financial capability4 or business experience5 to perform the terms of, or operate under, this Agreement; or,

2. If City detemrines that the Co_ntractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Contractor's failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to provide and maintain bonds and/or insurance policies required under this Agreement.

C. In the event a prospective Contractor ( or bidder) is ruled ineligible ( debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the City's action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Conh·actor wi11 have the burden of proof on the appeal.

The Contractor shall have the oppottunity to present evidence, both oral and documentary, and argument.
4 Contractor becomes insolvent, transfers assets in fraud of creditors, makes an assigmnent for the benefit of creditors, files a petition under any section or chapter of the federal Bankmptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankmpt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Contractor.

Loss of personnel deemed essential by the City for the successful performance of the obligations of the Contractor to the City.

Agreement with Brightview Landscape Services, !nc./Ethical Standards for Contractors/Exhibit D Rev. 02/01/15
' Page 2 of2
AGREEMENT FOR THE PERFOR.lV.IA.11/CE OF SERVICES

BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFOR.t'I/IA,
Al'\'D
BRIGHTVIEW LAI'\'DSCAPE SERVICES, INC.

FOR 2017-2022 AT THE SANTA CLARA CO::\'VENTI07' CENTER COMPLEX

EXHIBITE
AFFIDAVIT OF COMPLIANCE WITH ETillCAL STANDARDS
I hereby state that I have read and understand the language, entitled "Ethical Standards" set forth in Exhibit D. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inquiry of those individuals potentially included within the definition of"Contractor" contained in Ethical Standards at footnote l.

Based on my reYiew of the appropriate documents and my good-faith review of the necessary inquiry responses, I hereby state that neither the business entity nor an)' individual(s) belonging to said "Contractor" category [i.e., owner or co-owner of a sole proprietorship, general partner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.

The abo\'e assertions are true and correct and are made under penalty of perjury under the laws of the State of California.

Brightview Landscape Services, Inc.
a alifomia corporation
By: {.~~. ~-::..,_--c-=-~-cc--- e ure of Authorized Person or Representative Name: W\IW ~~ILTitle: ':JJ e,_[ e.{2§~\.0e.tv\ Ge{\) €Cc,\ htwA(,\(L NOTARY'S ACKNO\VLEDGi\-IEJ\'T TO BE ATTACHED
Please execute the affidavit and attach a nolaiy public's acknowledgment of execution of the affidavit by the signatory. lflhe affidavit is on behalf of a corporation, partnership, or other legal entity, the entity's complete legal name and tbe title of the person signing on behalfofthe legal entity shall appear above. Written evidence of the authority of the person executing this affid.\vit on behalf of a corporation, partnership, joint venture, or an) other legal entity, other than a sole proprietorship, shall be attached.

California Complinnt
Nowt, Leru!'.c.atc
r An.ic.httl
Agreement with Brightview Landscape Services, Inc.I Affidavit of Compliance/Exhibit E Rev. 02/01/15
Page I of I
California General Alf-Purpose ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the Identity of the Individual who signed the document to which this certificate Is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA} ~
couNrv oF Sa/d"?J--c 'tVIA.i
On ---JI{,,? ~I ;)o 17 before me, Shella Meinecke, Notary Public, Personally appeared tt?;'/(e_ , {?/( & V
Who proved to me on the basis of satisfactory evidence to be the person"3) whose name,(6) ls/are · subscribed to the within Instrument and acknowledged to me that he/sheithey executed the same in hislher/tlmir authorized capacity (leaJ; and that by hls/herliheir slgnature!,aj on the Instrument the personV'), or the entity upon behalf of which the person,(.11') acted, executed the Instrument.

I certify under PENAL TY OF PERJURY under the Jaws of the State of California that the foregoing paragraph is true and correct.
:::m~ (NOTARY SEAL)
Sheila Meinecke
My Commission expires December 19, 2020
Commission #2173324 SHEILA MEINECKE
COMM, 112173324 z Nola,y Public , California ~ Sen!• Clara County ~ Comm. Ex ires Doc. 19, mo
ATTENTION NOTARY: Although the Information requested below Is OPTIONAL, ll could prevanl fraudulent allachmenl of lhls certlflcale lo another document.

THIS CERTIFICATE MUST BE ATTACHED TO
THE DOCUMENT DESCRIBED AT RIGHT.
liUeofDocumentType Exit ,bw -li· lt.ffl(/Ual-<tj ,
NumberofPages~ Wf7/I~ t,._;II/J
DaleofDocumenld,3//J 7 e~S:~
Slgner(s) Olher Then Named Above 4,f1JU <
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-866 Agenda Date: 7/12/2022

REPORT TO COUNCIL AND STADIUM AUTHORITY BOARD

SUBJECT
Action on the Approval of a Municipal Law Enforcement Services Agreement with San Francisco Police Department

COUNCIL PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium

BACKGROUND
Prior to the opening of Levi’s Stadium in 2014, the Police Department worked with the National Center for Spectator Sports Safety and Security and the Department of Homeland Security to develop comprehensive safety and traffic management plans for the venue and surrounding area.

Through the planning process, the Police Department acknowledged our organization did not have the specialized expertise (e.g. ability to close highway off-ramps and corresponding traffic management skills), resources (e.g. air operations, crowd control, SWAT, etc.), and volume of sworn and civilian personnel necessary to implement these plans. As a result, agreements were formed with local, State and Federal law enforcement partners to provide these additional services.

The Police Department relies heavily on sworn and civilian professionals to provide a safe and enjoyable experience for stadium personnel, athletes/entertainers, event attendees, surrounding businesses, and nearby residents. The staffing needs vary from event to event based on event type, day of the week, time of the day, anticipated attendance, dignitaries present, intelligence gathered from similar events, etc.

DISCUSSION
Levi’s Stadium has been the host to 146 public events with attendance of 20,000+ since its opening, plus five nationally televised events without fans in 2020.

As the lead law enforcement agency, the Police Department secures local, State and Federal resources, as necessary, to mitigate traffic congestion for event patrons and local traffic, provide a safe venue for attendees, performers and stadium personnel as well as to deter intrusion into neighborhoods while maintaining access to adjacent business properties.

Currently, the Police Department has various agreements with multiple agencies throughout California to provide Per Diem Special Event Police Officers to augment the staffing for events at Levi’s Stadium. In addition, Municipal Law Enforcement Services Agreements are in place with the following local agencies to be called upon to provide services, as needed, at Levi’s Stadium:
• California Highway Patrol
City of Santa Clara Page 1 of 3 Printed on 7/8/2022
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22-866 Agenda Date: 7/12/2022
• Monterey County Sheriff’s Office
• San Francisco County Sheriff’s Office
• Santa Clara County Sheriff’s Office
• Sunnyvale Department of Public Safety
Law enforcement agencies across the country are faced with staffing challenges. As a result, it is incumbent upon our Police Department to continue to expand the number of municipal law enforcement services agreements between the Stadium Authority, the City of Santa Clara, and partner agencies to ensure there are ample resources available when needed.

The proposed agreement allows the San Francisco Police Department, as called upon and available, to provide supplemental special detail law enforcement services for events taking place at the stadium and surrounding areas. Requests for services could include personnel, helicopters, tactical vehicles, equipment, and associated supplies to provide the services rendered. The agreement also allows for the San Francisco Police Department personnel responding to requests for services to transmit and broadcast communications on the Santa Clara Police Department’s dispatch frequency, licensed by the Federal Communications Commission.

The Santa Clara Stadium Taxpayer Protection and Economic Progress Act, commonly referred to as Measure J, requires all public safety costs related to stadium operations to be reimbursed to the City.

In addition, in accordance with the contractual arrangements between the City, Stadium Authority and the team, the team reimburses the City for public safety related expenses incurred for NFL events.

For Non-NFL Events, the cost of public safety (including the costs charged by our public safety partners such as San Francisco Police Department) are charged against the Net Non-NFL Revenues of the Stadium Authority.

FISCAL IMPACT
This agreement allows the San Francisco Police Department to provide support services for Levi’s Stadium, as requested and available.

Any expenses incurred by the City for the use of the San Francisco Police Department personnel at NFL events would be billed by the City to the Forty Niners, in accordance with the applicable contracts and with Measure J. For non-NFL events, the expenses are deducted from the Stadium Authority’s Net Non-NFL Revenues.

COORDINATION
This report was coordinated with the Finance Department and 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 City of Santa Clara Page 2 of 3 Printed on 7/8/2022
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22-866 Agenda Date: 7/12/2022
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]> or at the public information desk at any City of Santa Clara public library.

RECOMMENDATION
Approve the Municipal Law Enforcement Services Agreement between the Santa Clara Stadium Authority, City of Santa Clara, and San Francisco Police Department for support services associated with events at Levi’s Stadium.

Reviewed by: Pat Nikolai, Chief of Police
Approved by: Rajeev Batra, City Manager/Executive Director

ATTACHMENTS

1. Municipal Law Enforcement Services Agreement between the Santa Clara Stadium Authority, City of Santa Clara and San Francisco Police Department
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Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 1 of 9 Rev. 6-13-22

MUNICIPAL LAW ENFORCEMENT SERVICES AGREEMENT
by and between the

SANTA CLARA STADIUM AUTHORITY, THE CITY OF SANTA CLARA, and

SAN FRANCISCO POLICE DEPARTMENT

PREAMBLE
This agreement for the performance of municipal law enforcement services (“Agreement”) is made and entered into on this ______ day of __________, 2022, (“Effective Date”) by and between the San Francisco Police Department, 1245 3rd Street, 6th Floor San Francisco, California 94158 (“Agency”), the Santa Clara Stadium Authority, a Joint Powers Authority, with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 (“Authority”), and the City of Santa Clara, a chartered municipal corporation, located at 1500 Warburton Avenue, Santa Clara, California 95050 (“City”). Authority, City and Agency may be referred to individually as a “Party” or collectively as the “Parties” to this Agreement.”

RECITALS
A. Authority and City are desirous of contracting with Agency for the performance of the law enforcement functions described herein.

B. Agency is agreeable to rendering such law enforcement services pursuant to the terms and conditions set forth in this Agreement.

C. Pursuant to the authority set forth in Government Code sections 54981 and 55632, Authority and City seek additional law enforcement services, and Agency agrees to provide additional law enforcement services, for periodic events at the Santa Clara Stadium site.

The Parties agree as follows:

AGREEMENT PROVISIONS

1. SERVICES TO BE PROVIDED.

A. Agency agrees, as available, to provide supplemental special detail law enforcement services for events taking place at the Stadium site and surrounding areas during the term of this Agreement. The classification and approximate numbers of personnel provided by Agency will be determined and mutually agreed upon, in writing, between Agency, Authority and the Santa Clara Chief of Police prior to each event. The Parties shall establish and agree to the number of hours necessary for the Agency employees to perform the requested services.

City herein provides consent, pursuant to Penal Code section 830.1(a)(2), for any Agency peace officer providing services hereunder to exercise full peace officer authority within the City’s jurisdiction.

Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 2 of 9 Rev. 6-13-22
B. Except as otherwise specifically set forth, such services shall only encompass duties and functions of the type coming within the jurisdiction of, and customarily rendered by, Agency under its Charter and/or municipal codes, and the statutes of the State of California, and under the Charter and municipal codes of the City of Santa Clara.

C. For special detail officers, the request for services shall be a written request from the Santa Clara Police Chief or his/her designee. The request shall contain specific dates of service, hours of operation, number of personnel requested, and classification of personnel requested. For the purpose of performing said services, Agency shall furnish and supply, as available, all necessary labor, supervision, personnel, helicopters, tactical vehicles, equipment, fuel, and supplies necessary to provide the services to be rendered hereunder. The Authority and/or City acknowledges that additional equipment charges for special equipment such as helicopters, tactical vehicles, equipment, fuel, and supplies may be appropriate depending upon the services requested and may be charged by Agency as above and beyond the authorized pay rate for personnel. The request shall be signed by a representative of the Authority and/or City who is duly authorized to enter into such agreements for supplemental law enforcement services. The request shall be submitted via email to Agency specified contact.

D. The City hereby grants to Agency and its personnel responding to requests for services herein the right to transmit and broadcast communications to the Santa Clara Police Department's units via the Santa Clara Police Department’s designated dispatch frequency and/or any other law enforcement frequency for which the City of Santa Clara is licensed by the FCC.

E. Mutual aid agreements pursuant to the California Emergency Plan (Government Code §§ 8550 et seq.) and the Master Mutual Aid Agreement: If any mutual aid agreement(s) currently in place are triggered during any performance of services under this Agreement, the mutual aid agreement(s) shall govern all necessary personnel and/or tactics.

2. ADMINISTRATION OF PERSONNEL.

A. In the event of a dispute between the Parties to this Agreement as to the extent of the duties and functions to be rendered hereunder, or the minimum level or manner of performance of such service, the City shall be consulted, and a mutual determination thereof shall be made by both Agency and the City in consultation with the City of Santa Clara’s Chief of Police.

B. The rendition of the services performed by Agency, the discipline of its officers, and other matters incident to the performance of such services and the control of personnel so employed shall remain with Agency.

C. With regard to sections A. and B., if there remains a disagreement as to the minimum level of services for a particular event, the Parties agree that the Santa Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 3 of 9 Rev. 6-13-22
Clara Chief of Police shall have final and conclusive determination of levels of service provided by Agency’s officers.

D. All Authority and/or City employees who work in conjunction with Agency pursuant to this Agreement shall remain Authority and/or City employees, are not Agency employees, and have no claim or right to any Agency employment benefits or policies. Similarly, all Agency employees who work in conjunction with Authority and/or City pursuant to this Agreement shall remain Agency employees, are not Authority or City employees, and have no claim or right to any Authority or City employment benefits or policies.

E. Neither Authority or City shall be called upon to assume any liability for the direct payment of any Agency salaries, wages, or other compensation to any Agency personnel performing services hereunder for said Authority and/or City.

Except as herein otherwise specified, neither Authority or City shall be liable for compensation or indemnity to any Agency employee or agent for injury or sickness arising out of his/her status as a contract agent of the Authority and/or City.

3. COMPENSATION AND PAYMENT.

A. The Authority shall pay Agency for the services it provides under the terms of this Agreement at the rates established by the Authority, as they may be amended from time to time. The rates listed below may be periodically adjusted by the Authority effective July 1 of each year to a mutually agreed upon rate. In such case, the annual rate adjustment shall be attached to this Agreement as Exhibit A to reflect the change in rates each fiscal year. The Parties specifically agree that such adjustment and change in Exhibit A each year is a valid amendment to this Agreement, and that no formal Amendment form need be used for such annual rate adjustment. The Parties will separately execute Exhibit A each year, or whenever there is a change in Exhibit A rates.

B. For and in consideration of Agency providing supplementary law enforcement services for the Authority and/or City under this Agreement, the Authority agrees to pay Agency for said services at the hourly rates as indicated in Exhibit A.

The rates in Exhibit A are developed by the Agency. These rates are designed to reimburse Agency’s costs in the compensation of employees, the administration of workers’ compensation benefits, and the Agency’s overhead attributable to providing the services identified in this Agreement, and as they may be amended from time to time.

4. PAYMENT PROCEDURES.

A. On a monthly basis, Agency shall submit a summarized invoice which covers all services performed during said month, to the Authority and the Authority shall pay Agency for all undisputed amounts within thirty (30) days after date of said invoice.

Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 4 of 9 Rev. 6-13-22
B. If such payment is not delivered to Agency within thirty (30) days after the date of the invoice, Agency is entitled to recover interest thereon. Said interest shall be at a rate of five percent (5%) per annum or any portion thereof, calculated from the date payment was due.

C. For all disputed amounts, Authority shall provide Agency with written notice of the dispute including the invoice date, amount, and reasons for dispute within ten (10) days after receipt of the invoice. The Parties shall memorialize the resolution of the dispute in writing. For any disputed amounts, interest shall accrue at the rate stated in subsection B, above, if payment is not received within thirty (30) days after the dispute resolution is memorialized.

5. CANCELLATION OF PERSONNEL.

A. The Authority shall not be charged for cancellations made more than 24 hours prior to the scheduled event/assignment.

B. The Authority agrees that if cancellation is made within 24 hours prior to the scheduled event/assignment and the assigned Agency officer cannot be notified of such cancellation, Authority shall reimburse Agency a minimum of four (4) hours of compensation for each assigned officer pursuant to the rates identified herein.

C. Agency agrees to make all reasonable efforts to notify its assigned officer(s) of the cancellation.

6. TERM OF AGREEMENT.

A. The term of this Agreement shall commence upon execution by the Parties and continue, unless terminated sooner or extended in whole or in part as provided for herein.

7. TERMINATION.

A. Either Party may terminate this Agreement with or without cause by giving not less than sixty (60) days advance written notice to the other Party.

B. Notwithstanding the foregoing, Agency may terminate the Agreement on only twenty (20) days advance notice, or less in the event of exigent circumstances, if Agency concludes that there are insufficient personnel to provide the agreed upon services and still perform other Agency duties as required by law.

C. In the event of a termination, each Party shall fully discharge all obligations owed to the other Party accruing prior to the date of such termination, and, except as otherwise provided herein, each Party shall be released from all obligations, which would otherwise accrue subsequent to the date of termination.

Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 5 of 9 Rev. 6-13-22

8. FAIR EMPLOYMENT.

While in the performance of services under this Agreement, Agency and its employees and agents shall not discriminate against any other employee or agent because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of state or federal law.

9. HOLD HARMLESS/INDEMNIFICATION.

A. For purposes of indemnification, each Party shall be responsible for the acts of its participating employee(s) and shall incur any liabilities arising out of the service and activities of those employees.

B. Any Agency employee who performs duties under this Agreement shall be deemed to be continuing under the general employment of his or her respective jurisdiction and shall have the same powers, duties, privileges, responsibilities, and immunities as are conferred upon such employee by law in his or her own jurisdiction. Pursuant to Insurance Code Section 11663, the general employer shall be responsible for the entire cost of any worker’s compensation payable on account of injury occurring in the course of and arising out of general and special employments.

C. Pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, employees, and agents, harmless from any damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with any work performed or authority delegated to such party under this Agreement. No party, nor any officer, employee 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, employees or agents, under or in connection with any work performed or authority delegated to such other parties under this Agreement.

10. ASSIGNMENT, DELEGATION, AND SUBCONTRACTING.

A Party shall not assign its rights and/or subcontract, or otherwise delegate, its duties under this Agreement, either in whole or in part, without the prior written consent of the other Party, and any attempted assignment or delegation without such consent shall be null and void.

11. INTEGRATED DOCUMENT.

This Agreement represents the entire agreement between Authority, City and Agency. No other understanding, agreements, or conversations with any representative of either Party prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon either Party.

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12. SEVERABILITY AND WAIVER.

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. Agency agrees that waiver by Authority and/or 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.

13. NOTICES.

All notices to the Parties shall, unless otherwise requested in writing, be sent to Authority addressed as follows:

Santa Clara Stadium Authority
Attention: Executive Director
1500 Warburton Ave.

Santa Clara, CA 95050
or by facsimile at (408) 241-6771
And to City as follows:

City of Santa Clara
Attn: Chief of Police
601 El Camino Real
Santa Clara, CA 95050
or by facsimile at (408) 248-0276
And to Agency addressed as follows:

San Francisco Police Department
1245 3rd Street, 6th Floor
San Francisco, CA 94158
or by facsimile
If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed.

The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.

14. LAW GOVERNING CONTRACT 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.
[Signatures on next page.]
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 7 of 9 Rev. 6-13-22
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.

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

Office of City Attorney RAJEEV BATRA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”

SANTA CLARA STADIUM AUTHORITY
a Joint Powers Authority
APPROVED AS TO FORM:

Office of Authority Council RAJEEV BATRA
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“AUTHORITY”
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 8 of 9 Rev. 6-13-22

SAN FRANCISCO POLICE DEPARTMENT
APPROVED AS TO FORM:

By: SAN FRANCISCO POLICE

DEPARTMENT
By: __________________________
Title: _________________________
1245 3rd Street, 6th Floor
San Francisco, CA 94158
Telephone: (415) 575-6718
Fax: (415) 837-7372
“AGENCY”
I:\49ers\Stadium Authority\Law Enforcement Security Agreements\Municipal Law Enforcement Services Agreement (SAN FRANCISCO

POLICE DEPARTMENT)
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 9 of 9 Rev. 6-13-22

MUNICIPAL LAW ENFORCEMENT SERVICES AGREEMENT
by and between the

SANTA CLARA STADIUM AUTHORITY, THE CITY OF SANTA CLARA, and

SAN FRANCISCO POLICE DEPARTMENT

EXHIBIT A
(INSERT FEE SCHEDULE HERE)
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-859 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action to Delegate Authority to the City Manager to Either A) Enter Into a Third Phase Agreement With Northern California Power Agency (NCPA), or B) Complete Negotiations and Execute a Renewable Energy Purchase and Sale Agreement With Calpine Corporation (Calpine) to Purchase Renewable Energy From a Portfolio of Geothermal Projects Owned by Calpine

COUNCIL PILLAR
Deliver and Enhance High-Quality Efficient Services and Infrastructure Promote Sustainability and Environmental Protection

BACKGROUND
The City of Santa Clara’s Electric Department, Silicon Valley Power (SVP), purchases energy to supply the residents and businesses within the City of Santa Clara. With the passage of Senate Bill 100 (SB 100), SVP must meet the State of California Renewable Portfolio Standards (RPS) where SVP must procure a specified percentage of its retail sales from renewable energy resources by a particular year.

SB 100 requires retail sellers and local publicly owned electric utilities to procure a minimum percentage of 44% of retail sales by December 31, 2024, 52% by December 31, 2027, and 60% by December 31, 2030, of electricity retail sales from eligible renewable energy resources. The recently adopted Climate Action Plan also has a target to reduce greenhouse gas emissions by 80% by 2035.

In conformance with the City's Municipal Code and Council Policy, the purchase or sale of electrical power and fuels for the generation is not subject to the City's centralized purchasing process but is procured by SVP. SVP procures electrical power either by a) entering into Power Purchase Agreements (PPA) with project developers through their direct offerings and/or through a request for proposal (RFP) process, or b) participating in power purchase opportunities through the Northern California Power Agency (NCPA). Each potential PPA project may have unique characteristics that impact the value of the resource to SVP customers. Staff evaluates potential projects on locational value, shape of the generation output, environmental attributes, capacity attributes, viability, and operational flexibility.

NCPA is a not-for-profit Joint Powers Agency whose membership includes municipalities, a rural electric cooperative, and other publicly owned entities including the City of Santa Clara. The mission of NCPA is to provide members cost effective wholesale power, energy-related services and advocacy on behalf of public power consumers through joint action.

Calpine Corporation (Calpine) was founded in 1984 and is the largest owner of geothermal plants in The Geysers area in Northern California with geothermal plants providing 725 MW of green energy City of Santa Clara Page 1 of 4 Printed on 7/8/2022
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capacity around the clock. The Geysers area is known as the world’s largest geothermal field spanning an area of 30 square miles in Sonoma, Lake, Mendocino, Marin, and Napa counties.

In May 2020, Calpine submitted a proposal to NCPA’s Renewables RFP for the purchase of energy and associated attributes from Calpine’s existing portfolio of geothermal projects located in The Geysers area. At the time the proposal was received, NCPA members and SVP were evaluating more cost-effective projects that participated in NCPA’s Renewables RFP. Since then, the price of renewable projects in general has significantly increased due to several different factors including supply chain constraints, inflation, labor shortages, CAISO interconnections delays, transmission project delays, and competition from other energy providers. During that time, SVP staff began experiencing these challenges with other renewable projects that SVP was in the process of evaluating and negotiating. In September 2021, staff worked with NCPA to request a project proposal update from Calpine to see if the geothermal projects were still available and if there was a change in price and/or terms. After receiving the updated information from Calpine, staff reviewed and analyzed the project again and determined the geothermal output from Calpine would further diversify SVP’s Renewable Energy portfolio, aid SVP to achieve the current State of California RPS requirements, meet the goals of the City’s Climate Action Plan, and meet the needs of SVP’s expected load growth.

NCPA, working closely with SVP staff, have been leading the negotiations of a power purchase agreement with Calpine on behalf of SVP and the other interested NCPA members. To enable NCPA to enter into the PPA with Calpine on behalf of its members, the participating members, including SVP, will need to execute a Third Phase Agreement with NCPA which specifies the rights and obligations of NCPA and participating members regarding governance and administration of the PPA and obligates the participating members to pay their assigned contract percentage share of all project costs, including but not limited to, administrative services costs, scheduling coordination costs, and all other costs related to the PPA.

DISCUSSION
SVP and the other NCPA members have expressed interest in purchasing up to 100 MWs of generating capacity for a term of 10-15 years. The geothermal project is expected to generate up to 876,000 MWh annually. In the event no other NCPA member is interested in participating in this project, SVP would be able to take the full output. This project will increase and further diversify SVP’s renewable energy portfolio in accordance with the Council's Adopted Policy on Environmental Stewardship and Renewable Portfolio Standards. The proposed Calpine geothermal output is equivalent to 22% of SVP’s 2021 retail sales.

Due to increased demand for renewable energy generation resources, Calpine is limiting the amount of time it would reserve the quantity, price and terms of a PPA for perspective buyers. Therefore, staff recommends authorizing the City Manager to either A) enter into a Third Phase Agreement with NCPA to purchase renewable energy, or B) complete negotiations and execute a renewable energy purchase and sale agreement directly with Calpine to purchase renewable energy from a portfolio of geothermal projects owned by Calpine in The Geysers area for a total not-to-exceed amount of $73.5 million per year. The decision to contract directly with Calpine or to contract through NCPA’s Third Phase Agreement will be determined based on which method allows SVP to meet Calpine’s time limit and interest from other NCPA members.

The benefits of the Calpine project are: 1) the units are fully constructed and are already in operation; City of Santa Clara Page 2 of 4 Printed on 7/8/2022
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2) geothermal generation is a baseload generator which prefers to generate energy on a 24-hour basis; and 3) the generation profile matches the load profile of the data centers in the City of Santa Clara. Unlike many other new projects, this project doesn’t carry any development risk.

If approved, the parties intend to execute the agreement at the end of July 2022. SVP would begin receiving energy from Calpine beginning 2025. SVP will provide Council with updates as needed through the SVP quarterly update or informational reports to Council.

ENVIRONMENTAL REVIEW
This action to purchase power generated by existing geothermal generating facilities does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a). No subsequent or supplemental environmental review will be required of these facilities as (1) there are no substantial changes to these facilities which will require major revisions of any applicable environmental impact report; (2) there are no substantial changes that will occur with respect to the circumstances under which the facilities are being undertaken which will require major revisions in any applicable environmental impact report; and (3) there was no new information, which was not known and could not have been known at the time the applicable environmental impact reports were certified as complete, became available with respect to these facilities.

FISCAL IMPACT
SVP will purchase up to 876,000 MWh per year for a total not-to-exceed amount of $73.5 million per year during the contract term. Funding for the purchase of the renewable energy will be included in the Resource and Production budget in the Electric Utility Fund beginning in the FY 2024/25 Operating Budget.

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

RECOMMENDATION

1. Authorize the City Manager, or designee, to either (a) enter into a Third Phase Agreement with the Northern California Power Agency (NCPA), or (b) complete negotiations and execute a renewable energy purchase and sale agreement directly with Calpine Corporation (Calpine) to purchase renewable energy from a portfolio of geothermal projects owned by Calpine, subject to budget appropriations;

2. Authorize the City Manager, or designee, to execute all related documents or agreements, including, but not limited to, collateral assignment agreements; and take any and all actions as are necessary or advisable to implement and administer either the Third Phase Agreement or renewable energy purchase and sale agreement; and

3. Authorize the City Manager, or designee, to approve and execute amendments to the either the City of Santa Clara Page 3 of 4 Printed on 7/8/2022
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22-859 Agenda Date: 7/12/2022
Third Phase Agreement or renewable energy purchase and sale agreement, as may be required from time to time, so long as the contract price and length of the agreement remain unchanged.

Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: Rajeev Batra, City Manager
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-865 Agenda Date: 7/12/2022

REPORT TO COUNCIL

SUBJECT
Action on Amendment to Covenants, Conditions, and Restrictions for Casa del Rey Homeowner Association Located at 1303 Karmen Court

COUNCIL PILLAR
Promote and Enhance Economic, Housing and Transportation Development

BACKGROUND
The City’s subdivision ordinance, Santa Clara City Code (SCCC) Chapter 17.05, provides that the City shall review draft declarations of covenants, conditions and restrictions (CC&Rs) for proposed subdivisions. One common provision in such CC&Rs provides that if a homeowners’ association (HOA) subsequently proposes to amend its CC&Rs, the HOA must first file the amendment with the City Council, which then has an opportunity to veto the proposed amendment. If the Council takes no action, the amendment automatically becomes effective, 60 days after filing.

This item concerns proposed amendments to the CC&Rs for the Casa Del Rey HOA, a 40-townhome development located at 1303 Karmen Court. The Council previously considered the CC&Rs at the May 10, 2022, Council meeting, after resident Keith Stattenfield, submitted a written petition to address proposed revisions recommended by the City Attorney’s Office (CAO). The agenda report from the May 10th meeting is attached, which contains a full history of this matter. The question at the May 10th meeting was whether to require the HOA to make the two revisions to the CC&Rs recommended by the CAO. At the conclusion of the hearing, the Council voted to inform the HOA that revisions consistent with the CAO’s direction would be required.

When City staff notified Mr. Stattenfield of the result of the May 10th hearing, he responded that he had not received any notification of the hearing and requested that it be agendized again.

DISCUSSION
The City Council and City staff have already devoted a significant amount of time to the CC&Rs of this HOA. Rather than take up additional Council time at another meeting, the CAO asked the HOA whether it would be willing to submit the two requested revisions to its homeowners at the time of its next board election, which will take place within two years. In exchange, the CAO would support adopting the CC&Rs with no revisions in the interim, and place the item on the Council’s consent calendar, like most CC&R revisions. This would likely achieve the City’s goals within two years without taking the time to conduct an additional hearing.

On June 8, 2022, the attorney for the HOA indicated that the HOA Board of Directors had voted in support of the compromise. If the Council approves the CC&Rs, the HOA will record the CC&Rs in their current form, and then submit the CAO’s revisions to the homeowners at its next election.

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Assuming the homeowners vote in favor of those revisions, the HOA would then record the revised CC&Rs shortly thereafter.

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

FISCAL IMPACT
There is no fiscal impact to the City for processing the requested application other than administrative staff time and expense typically covered by processing fees paid by the applicant.

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

ALTERNATIVES

1. Approve two versions of the proposed amendments to the CC&Rs for the Casa del Rey Homeowner Association: (1) the version originally proposed by the HOA, for immediate recordation, and (2) the version containing the two revisions required by the CAO; with a condition that the HOA shall submit the second version for a vote to its residents at its next board election.

2. Veto the proposed amendments to the CC&Rs as proposed by the HOA, and require the HOA to make the two revisions required by the CAO prior to recordation.

3. Direct staff to schedule an additional hearing on this matter.

RECOMMENDATION
Alternative 1:

Approve two versions of the proposed amendments to the CC&Rs for the Casa del Rey Homeowner Association: (1) the version originally proposed by the HOA, for immediate recordation, and (2) the version containing the two revisions required by the CAO; with a condition that the HOA shall submit the second version for a vote to its residents at its next board election.

Reviewed by: Andrew Crabtree, Director of Community Development Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. May 10, 2022 Council Agenda Report

2. September 10, 2021 Cover Letter from HOA Attorney

3. Amended and Restated Declaration of Covenants, Conditions and Restrictions

4. Nov. 29, 2021 memorandum listing revisions required by CAO

5. Site Map
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-550 Agenda Date: 5/10/2022

REPORT TO COUNCIL

SUBJECT
Action on Amendment to Covenants, Conditions, and Restrictions for Casa del Rey Homeowner Association Located at 1303 Karmen Court

COUNCIL PILLAR
Promote and Enhance Economic, Housing and Transportation Development

BACKGROUND
On November 21, 2021, Douglas P. Bickham, Esq., filed an application to amend the Covenants, Conditions, and Restrictions (CC&Rs) on behalf of the Casa del Rey Homeowner Association (HOA).

The HOA consists of 40 townhome properties zoned and constructed as a Planned Development (PD). The original CC&Rs for this PD were recorded on January 13, 1978 and remain in effect without alteration.

Although the City Code requires review of proposed amendments to CC&Rs prior to adoption, in this case, the HOA has already submitted the new CC&Rs to its members, which voted to adopt the revised CC&Rs. Nevertheless, the City Attorney’s Office (CAO) reviewed the new CC&Rs after the homeowners voted, and asked Mr. Bickham to make approximately eight changes to the new document. In response, Mr. Bickham indicated that it would be too expensive to submit a second set of revised CC&Rs to the homeowners for a vote and asked that the City approve the new CC&Rs without any revisions. Without making any of the requested revisions, the CAO was unable to recommend approval of the new CC&Rs to the City Council.

On January 4, 2022, Keith Stattenfield, a resident of Casa del Rey, submitted a written petition to the City Council, asking the Council to agendize a discussion about the requested CAO revisions to the new CC&Rs. At the January 11, 2022 Council meeting, the City Council voted to place the item on a future agenda.

DISCUSSION
Adoption of Covenants, Conditions, & Restrictions
For all common interest developments, such as condominiums and co-ops, State law requires the recording of a declaration of Covenants, Conditions and Restrictions, or “CC&Rs”. Condos involve the shared ownership of property, like the exterior walls and roof of the building, and common areas such as courtyards, recreational facilities and community rooms. The CC&Rs set up rules for what homeowners can and cannot do with their individual units and with the commonly held property.

CC&Rs help govern a common interest development, although they are not a set of laws; they are City of Santa Clara Page 1 of 4 Printed on 5/4/2022
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similar to private contracts among the HOA members. As with any contracts, the way they are drafted will affect the rights of the parties. When done thoroughly and carefully, both parties have a clear understanding of their rights and responsibilities, and there are no ambiguities. When poorly drafted, vague language can either give one party an unfair advantage or the document will fail to provide the protections it is supposed to give. Poorly drafted or out-of-date CC&Rs can result in a poorly maintained or managed community, with potentially unenforceable conditions and language that doesn’t adequately protect homeowners or inform them of their rights.

Condo buyers themselves have no ability to request revisions to CC&Rs at the time of purchase. But in the City of Santa Clara, CC&Rs for new subdivisions are reviewed by the City Attorney, City Engineer, and Director of Community Development. This is a requirement of the City Code, §

17.05.310(i)(1)(H). More relevant here, the City Code also requires HOAs to obtain City approval prior to amending existing CC&Rs; the City Council has the ability to veto any such amendment (SCCC §§ 17.05.310(i)(1)(H), 18.54.080(c)(1)). These are long standing Code requirements, and the City Attorney’s Office has reviewed dozens of draft CC&Rs and proposed amendments to CC&Rs.

Casa Del Rey’s Preemptive Adoption of Amendments
Casa Del Rey, located at 1303 Karmen Court, is a 40-unit condo complex, with CC&Rs that were originally adopted in 1978. Because the existing CC&Rs were adopted prior to the enactment of the Davis-Stirling Common-Interest Development Act in 1985, there are a number of stale provisions in the existing CC&Rs that require revision.

However, the HOA did not follow the amendment process set forth in the City Code, and instead asked its homeowners to ratify a revised set of CC&Rs prior to submitting them to the City for review.

Notably, even the existing 1978 CC&Rs for Casa del Rey contain language stating that “[a]ny amendment of this Declaration shall also require the prior written approval of the City of Santa Clara.” By seeking to exclude the City from the process, the HOA is violating not only the Code but its own existing CC&Rs.

Many other common-interest developments recently have submitted their draft CC&Rs to the City for review, and have all agreed to make necessary changes after consultation with the CAO, including Gateway Crossings, Agrihood, and the Catalina Townhomes. The Council has also approved numerous amendments to CC&Rs in recent years, after those CC&Rs have undergone review by the CAO, including the Woodsborough Homes at 990 Kiely, the Talavera Owners Association at Monroe & Scott, and the Marriott Center Owners Association. As a result, allowing Casa del Rey to adopt their CC&Rs without City review would be a significant departure from established practice.

Specific Changes Requested for the Casa del Rey CC&Rs
The City maintains a checklist of provisions that it requires in all CC&Rs. This checklist is a public document and was last amended in 2015. When a developer or an HOA submits draft CC&Rs for review, the City requires that the checklist be completed at the time of submittal, indicating where each required checklist provision can be located in the new CC&Rs.

Upon initial review of the Casa del Rey CC&Rs and checklist in November 2021, the CAO determined that the draft satisfied many of the 25 checklist requirements but requested revision on eight items. After further communications with the HOA’s attorney, the CAO agreed to forego six of City of Santa Clara Page 2 of 4 Printed on 5/4/2022
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the eight requested revisions. For example, the City typically asks that the maintenance obligations of the HOA be thoroughly explained, with a detailed definition of the word “maintenance.” Although the definition of “maintenance” used by the HOA’s new CC&Rs was not as detailed as what the City usually requires, the CAO ultimately agreed to allow the use of the HOA’s definition.

However, the CAO was unwilling to waive two specific requirements. One request was to add a sentence indicating that prior to any architectural changes to the project, a homeowner must seek architectural approval from the City. Otherwise, an uninformed homeowner might believe that the only architectural approval they need to get is the consent of the HOA board. The homeowner would then potentially make changes without permits and then have to later either retroactively obtain permits or entirely remove the improvements. From experience, it is not uncommon for a homeowner to claim they had no idea that City permits were required. Placing a statement about the City’s requirements right next to the HOA’s architectural requirements in the CC&Rs directly informs the homeowners and makes any claim of ignorance more tenuous.

In addition, the City always asks that CC&Rs include a statement that the City is a third-party beneficiary to the document. That way, if there is a violation of the CC&Rs, the City can bring legal action to enforce the CC&Rs and has more ability to assist the homeowners in that context. Without that provision, the City is limited to code enforcement remedies, which may not be as effective. For at least the last 13 years, the City has never waived this requirement.

In his January 4, 2022 petition to the Council, Mr. Stattenfield indicated that there would be a “significant financial hardship” associated with asking the 40 homeowners to cast another vote to approve the revised CC&Rs. In an email to the Planning Division dated December 3, 2021, the attorney for the HOA, Douglas Bickham, stated that “[i]f the new CC&Rs cannot be approved as written, then it is likely the Association may never be able to adopt them and thus have to continue to operate under the current less than ideal 1978 CC&Rs.” However, according to the HOA’s bylaws, they conduct board elections at least once every two years, so they periodically have to incur the cost of an election. To include a CC&R ratification question with the next board election ballot would not significantly increase the HOA’s expenses.

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

COORDINATION
This report was 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 City of Santa Clara Page 3 of 4 Printed on 5/4/2022
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22-550 Agenda Date: 5/10/2022
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]> or at the public information desk at any City of Santa Clara public library.

ALTERNATIVES

1. Inform the Casa del Rey Homeowner Association that revisions consistent with the CAO’s direction will be required before the Council will consider the approval of the revised CC&Rs, consistent with established practice.

2. Direct staff to place the revised CC&Rs on a future Council agenda for approval, without the revisions requested by the CAO.

RECOMMENDATION

Reviewed by: Andrew Crabtree, Director of Community Development Approved by: Rajeev Batra, City Manager

ATTACHMENTS

1. Site Map
City of Santa Clara Page 4 of 4 Printed on 5/4/2022
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1303 Karmen Court
Casa del Rey HOA
September 10, 2021
VIA FIRST CLASS U.S. MAIL

AND ELECTRONIC MAIL TO
Email - [email protected]
Brian Doyle, Esq.

City Attorney of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Re: Requesting Written Consent of the City of Santa Clara for Casa del Rey HOA of Santa Clara’s Proposed Amended and Restated CC&Rs
Dear Mr. Doyle:

We are legal counsel for Casa del Rey HOA of Santa Clara, a homeowner association overseeing a common interest development in the City of Santa Clara (the “Association”). The Association’s current Declaration of Covenants, Conditions and Restrictions were originally recorded on January 13, 1978 (referred to herein as the “CC&Rs”) and in many areas are obsolete and not compliant with current legal requirements. With our firm as legal counsel, the Association has undertaken a project to prepare proposed updated, amended and restated CC&Rs (referred to below as the “Proposed CC&Rs”).

The requisite number of Association members has already voted to approve the Proposed CC&Rs. However, pursuant to Article VII, Section 7.03, of the current CC&Rs City approval is also required for any amendments, which Section reads in relevant part as follows:
“The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended by an instrument signed by not less than 51% of each class of voting membership of the Association for so long as there are two classes and thereafter by not less than 51% of the total voting power of the Association residing in members other than Declarant, provided however, that the percentage of voting power necessary to amend a specific clause or provision shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. Any amendment of this Declaration shall also require the prior written approval of the City of Santa Clara. Any amendment must be recorded in the Office of the Recorder of the County of Santa Clara, California, and shall in no way impair or invalidate the lien of any mortgage or deed of trust.” (Emphasis added.)
City of Santa Clara
Re: Casa del Rey HOA of Santa Clara
September 10, 2021

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City Council and Authorities ConcurrentJuly 12, 2022

City Council and Authorities Concurrent
July 12, 2022