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2018-12-18 City Council Agenda Packet
City Council 1 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Monday, December 10, 2018 Special Meeting Council Chambers 5:00 PM Agenda posted according to PAMC Section 2.04.070. Supporting materials are available in the Council Chambers on the Thursday 11 days preceding the meeting. PUBLIC COMMENT Members of the public may speak to agendized items; up to three minutes per speaker, to be determined by the presiding officer. If you wish to address the Council on any issue that is on this agenda, please complete a speaker request card located on the table at the entrance to the Council Chambers, and deliver it to the City Clerk prior to discussion of the item. You are not required to give your name on the speaker card in order to speak to the Council, but it is very helpful. Public comment may be addressed to the full City Council via email at City.Council@cityofpaloalto.org. TIME ESTIMATES Time estimates are provided as part of the Council's effort to manage its time at Council meetings. Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Council reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. To ensure participation in a particular item, we suggest arriving at the beginning of the meeting and remaining until the item is called. HEARINGS REQUIRED BY LAW Applicants and/or appellants may have up to ten minutes at the outset of the public discussion to make their remarks and up to three minutes for concluding remarks after other members of the public have spoken. Call to Order Special Orders of the Day 5:00-5:10 PM 1. Santa Clara County Health Department Presentation of Healthy Cities Award Closed Session 5:10-5:45 PM Public Comments: Members of the public may speak to the Closed Session item(s); three minutes per speaker. 2. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Authority: Government Code Section 54956.8 Properties: (1) 321 California Avenue (APN 124-33-001); (2) 361 California Avenue (APN 124-33-029); (3) 341 California Avenue (APN 124-33-030); and (4) 2453 Ash Street (APN 124-33-027) Agency Negotiators: James Keene, Ed Shikada, Brad Eggleston Negotiating Parties: City of Palo Alto and (1) D.H. and M.A. Edwards Company for 321 California Ave; (2) 361 California Ave, LP for 2 December 10, 2018 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COU NCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. 361 California Ave; (3) 341 Cal Partners LLC for 341 California Ave; and (4) Ash Street Partners LP for 2453 Ash Street Under Negotiation: Price and Terms of Payment for Subsurface Easements Related to Construction of the California Avenue Garage Agenda Changes, Additions and Deletions City Manager Comments 5:45-5:55 PM Oral Communications 5:55-6:10 PM Members of the public may speak to any item NOT on the agenda. Council reserves the right to limit the duration of Oral Communications period to 30 minutes. Minutes Approval 6:10-6:15 PM 3.Approval of Action Minutes for the November 19 and 26, 2018 Council Meetings Consent Calendar 6:15-6:20 PM Items will be voted on in one motion unless removed from the calendar by three Council Members. 4.Authorize the City Manager to Enter Into the Following Agreements for the City’s Fair Value Commuting Project (Partially Funded Through a Federal Transit Administration Grant): 1) an Agreement With RideAmigos in an Amount Not-to-Exceed $150,620 for a Term of 15 Months, and 2) an Agreement With the San Francisco Bay Area Planning and Urban Research Association (SPUR) in an Amount Not-to- Exceed $100,000 for a Term of 15 Months 5.Approval of Amendment Number 1 to Contract Number C19173096 With Prospect Silicon Valley to Update the Rate Schedule to Include the Chief Executive Officer's Billing Rate 6.Adoption of Reimbursement Resolutions to Designate the Amount of Project Expenditures to be Reimbursed by Clean Water State Revolving Fund Proceeds for the Funding of the Discharge Infrastructure Improvement (Outfall Pipeline) and the Primary Sedimentation Tanks and Electrical Upgrade Projects at the Palo Alto Regional Water Quality Control Plant 7.Adoption of a Memorandum of Agreement Between the City of Palo Alto and Utilities Management and Professional Association of Palo Alto 8.Approval of City of Palo Alto's Employee Paid Parental Leave Policy and Amendment to City Merit System Rules and Regulations Chapter 7-705(c) Q & A MEMO 3 December 10, 2018 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COU NCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. 9.PUBLIC HEARING / QUASI-JUDICIAL: 3877 El Camino Real [17PLN-00321]: Recommendation on Applicant's Request for Approval of a one lot Vesting Tentative Map to Divide an Existing 0.75 Acre Parcel Into 17 Residential Condominiums and one Commercial Condominium. Environmental Assessment: Mitigated Negative Declaration Adopted by Council on September 18, 2017. Zoning Districts: CS and RM-30 10.Approval of a Donation of $25,000 From the City Council Contingency Fund to Support Butte County Fire Relief, Resilience, and Recovery After the Camp Fire 11.Adoption of a Resolution Authorizing the City Manager to Enter Into a Project Specific Maintenance Agreement With the State of California Department of Transportation for the Highway 101 Pedestrian/Bicycle Overpass Project; and Approve the Easement Agreement for Public Access, Utilities, and the Bicycle/Pedestrian Overcrossing Between Google and the City, and Delegate Authority to the City Manager, or his designee, to Sign the Easement Agreement for the Project (PE-11011) 12.SECOND READING: Adoption of an Ordinance Amending Chapter 4.42 (Taxicabs and Other For-Hire Vehicles) of Title 4 (Business Licenses and Regulations) of the Palo Alto Municipal Code as Mandated by State Law (AB 939) (FIRST READING: November 26, 2018 PASSED: 9-0) 13.SECOND READING: Adoption of an Ordinance Amending Section 2.04.190 (Standing Committees – Special Committees) of Chapter 2.04 (Council Organization and Procedure) of Title 2 (Administrative Code); and Amending Section 12.10.060 (Coordination with City) of Chapter 12.10 (Street Cut Fees) of Title 12 (Public Works and Utilities) of the Palo Alto Municipal Code to Conform to a Seven-member City Council (FIRST READING: October 29, 2018 PASSED 9-0) Action Items Include: Reports of Committees/Commissions, Ordinances and Resolutions, Public Hearings, Reports of Officials, Unfinished Business and Council Matters. 6:20-8:00 PM 14.Approval of a Five-year Operating and Revenue Sharing Agreement With Team Sheeper for Operations of the Rinconada Pool (Continued From November 26, 2019) 8:00-9:00 PM 15.Approval of: 1) Construction Contract C19173521 With Swinerton Builders in the Amount of $39,395,153; 2) Amendment Number 3 to Contract Number C16163034 With Nova Partners, Inc. in the Amount Q & A 4 December 10, 2018 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COU NCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. of $1,249,193 for Construction Management Services; 3) Amendment Number 1 to Contract Number S18171787 With Romig Engineers, Inc. in the Amount of $99,000; 4) Authorization to Negotiate and Execute Four Easements for Underground Shoring Tie-backs; 5) Authorization to Negotiate and Execute a Short-term Lease for a Parking Lot From the County of Santa Clara; 6) Authorization to Negotiate and Execute a Month-to-Month Lease of Parking Stalls From Caltrain; and 7) a Budget Amendment for Capital Improvement Fund Project PE-18000 for the new California Avenue Area Parking Garage 9:00-10:00 PM 16. PUBLIC HEARING: Adoption of an Ordinance Amending Section 18.18.120 (Grandfathered Uses and Facilities) of Chapter 18.18 (Downtown Commercial District) of Title 18 (Zoning) of the Palo Alto Municipal Code (PAMC) to Adjust Regulations Relating to Noncomplying Facilities. California Environmental Equality Act (CEQA); This Ordinance is Within the Scope of the Comprehensive Plan Environmental Impact Report (EIR) Certified and Adopted on November 13, 2017 by Council Resolution No. 9720; Alternatively, the Ordinance is Exempt From Environmental Review Under CEQA Guidelines Section 15061(b)(3) (Continued From December 3, 2018) State/Federal Legislation Update/Action Council Member Questions, Comments and Announcements Members of the public may not speak to the item(s) Adjournment AMERICANS WITH DISABILITY ACT (ADA) Persons with disabilities who require auxiliary aids or services in using City facilities, services or programs or who would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact (650) 329-2550 (Voice) 24 hours in advance. 5 December 10, 2018 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COU NCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Additional Information Standing Committee Meetings Policy and Services Committee -Cancellation December 11, 2018 City/School Committee Meeting December 13, 2018 (Will be produced on December 6, 2018) Schedule of Meetings Schedule of Meetings Tentative Agenda Tentative Agenda Informational Report Annual Report: Development Impact Fees Schedule Public Letters to Council Set 1 CITY OF PALO ALTO OFFICE OF THE CITY CLERK December 10, 2018 The Honorable City Council Attention: Finance Committee Palo Alto, California Approval of Action Minutes for the November 19 and 26, 2018 Council Meetings Staff is requesting Council review and approve the attached Action Minutes. ATTACHMENTS: • Attachment A: 11-19-18 DRAFT Action Minutes (DOCX) Department Head: Beth Minor, City Clerk Page 2 CITY OF PALO ALTO CITY COUNCIL DRAFT ACTION MINUTES Page 1 of 3 Special Meeting November 19, 2018 The City Council of the City of Palo Alto met on this date in the Council Chambers at 5:06 P.M. Present: DuBois, Filseth; Holman arrived at 5:11 P.M., Kniss, Kou, Scharff, Tanaka; Wolbach arrived at 5:09 P.M. Absent: Fine Closed Session 1. CONFERENCE WITH LABOR NEGOTIATORS City Designated Representatives: City Manager and his Designees Pursuant to Merit System Rules and Regulations (James Keene, Ed Shikada, Kiely Nose, Rumi Portillo, Sandra Blanch, Nicholas Raisch, Tori Anthony, Molly Stump, Terence Howzell, and Michelle Flaherty) Employee Organizations: Service Employees International Union, (SEIU), Local 521 Authority: Government Code Section 54957.6(a). 1A. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Government Code Section 54956.9(d)(2) and (e)(1) Four Potential Cases. MOTION: Vice Mayor Filseth moved, seconded by Council Member Scharff to go into Closed Session. MOTION PASSED: 6-0 Fine, Holman, Wolbach absent Council went into Closed Session at 5:07 P.M. Council returned from Closed Session at 8:12 P.M. Mayor Kniss announced no reportable action. MOTION: Council Member Scharff moved, seconded by Vice Mayor Filseth to hear Oral Communications before Agenda Item Number 2- Study Session Regarding Recycled Water… DRAFT ACTION MINUTES Page 2 of 3 City Council Meeting Draft Action Minutes: 11/19/18 MOTION PASSED: 8-0 Fine absent Oral Communications Study Session 2. Study Session Regarding Recycled Water Expansion and Other Water Reuse Opportunities. Agenda Changes, Additions and Deletions MOTION: Council Member Scharff moved, seconded by Mayor Kniss to continue Agenda Item Number 4- PUBLIC HEARING/QUASI-JUDICIAL. 285 Hamilton Avenue [18PLN-00006]… to a date uncertain. MOTION PASSED: 8-0 Fine absent MOTION: Council Member DuBois moved, seconded by Council Member XX to continue Agenda Item Number 5- Finance Committee Recommends the City Council Accept the Utilities Smart Grid Assessment… to a date uncertain. MOTION FAILED DUE TO THE LACK OF A SECOND Minutes Approval 3. Approval of Action Minutes for the October 29 and November 5, 2018 Council Meetings. MOTION: Council Member Scharff moved, seconded by Vice Mayor Filseth to approve the Action Minutes for the October 29 and November 5, 2018 Council Meetings. MOTION PASSED: 8-0 Fine absent Action Items 4. PUBLIC HEARING/QUASI-JUDICIAL. 285 Hamilton Avenue [18PLN-00006]: Recommendation on Applicant's Request for a Text Amendment to Title 18 of the Palo Alto Municipal Code to Allow for Minor Increases in Floor Area to Provide Access to Roof-top Decks on Existing Structures in the Commercial Downtown (Community) CD-C Subdistrict, as Well as a Conditional Use Permit and Architectural Review for a 2,600 Square Foot Roof-top Deck on the Roof of the Existing Commercial Building at 285 Hamilton Avenue. The Planning and Transportation Commission Reviewed and Recommended Approval DRAFT ACTION MINUTES Page 3 of 3 City Council Meeting Draft Action Minutes: 11/19/18 (4-2) of the Text Amendment and Conditional Use Permit at a Public Hearing on October 10, 2018. Environmental Assessment: Exempt per Sections 15301 and 15305 of the California Environmental Quality Act (CEQA) Guidelines. Zone District: CD-C(GF)(P). 5. Finance Committee Recommends the City Council Accept the Utilities Smart Grid Assessment and Utilities Technology Implementation Plan, Including Advanced Metering Infrastructure-based Smart Grid Systems to Serve Electricity, Water, and Natural Gas Utility Customers. MOTION: Council Member DuBois moved, seconded by Council Member Scharff to accept the Utilities Smart Grid Assessment and Utilities Technology Implementation Plan (Utilities Technology Plan), including the estimated timeline and resources for the implementation of an Advanced Metering Infrastructure (AMI)-based smart grid system to more effectively serve electricity, natural gas and water utility customers. MOTION PASSED: 8-0 Fine absent State/Federal Legislation Update/Action None. Adjournment: The meeting was adjourned at 11:05 P.M. CITY OF PALO ALTO CITY COUNCIL DRAFT ACTION MINUTES Page 1 of 4 Special Meeting November 26, 2018 The City Council of the City of Palo Alto met on this date in the Council Chambers at 5:05 P.M. Present: DuBois, Filseth, Fine, Holman, Kniss, Kou, Scharff, Tanaka, Wolbach Absent: Special Orders of the Day 1. Proclamation Honoring Sikh Awareness Month. Study Session 2. Study Session With Assemblymember Marc Berman. Closed Session 3. CONFERENCE WITH CITY ATTORNEY- EXISTING LITIGATION Subject: James Judge Luckey v. City of Palo Alto Santa Clara County Superior Court Case No. 16CV303728 Authority: Government Code Section 54956.9(d) (1). MOTION: Council Member Wolbach moved, seconded by Vice Mayor Filseth to go into Closed Session. MOTION PASSED: 9-0 Agenda Changes, Additions and Deletions MOTION: Council Member Kou moved, seconded by Council Member XX to postpone Agenda Item Number 12- PUBLIC HEARING: Adoption of an Ordinance Amending Various Sections of Title 18 of the Palo Alto Municipal Code Related to Residential and Mixed-use Development Standards Including, but not Limited to…. until early 2019. MOTION FAILED DUE TO THE LACK OF A SECOND DRAFT ACTION MINUTES Page 2 of 4 City Council Meeting Draft Action Minutes: 11/26/18 Consent Calendar MOTION: Council Member Fine moved, seconded by Council Member Scharff to approve Agenda Item Numbers 4-11. 4. Resolution 9800 Entitled “Resolution of the Council of the City of Palo Alto Amending the Conflict of Interest Code for Designated City Officers and Employees as Required by the Political Reform Act and Regulations of the Fair Political Practices Commission (FPPC) and Repealing Resolution Number 9648. 5. Approval of Amendment Number 2 to Contract Number C15159248 With Geodesy in the Amount of $810,000 to: 1) Correct the Dates of the Extension Term in Amendment Number 1; 2) add a Renewal Term of September 19, 2018-June 30, 2021; and 3) add Department- specific Data Work, for a Total Not-to-Exceed Amount of $1,395,000. 6. Approval of Amendment Number 1 to Contract Number C15156644 With Concern:EAP for the City of Palo Alto's Employee Assistance Plan to add $57,000 for a Total Not-to-Exceed Amount of $223,036. 7. Approval of the Appointment of Bradley L Eggleston as Director of Public Works/City Engineer. 8. Policy and Services Committee Recommends the City Council Accept the Auditor’s Office Quarterly Report as of June 30, 2018. 9. Policy and Services Committee Recommends the City Council Accept the Fiscal Year 2019 Audit Work Plan. 10. Resolution 9801 Entitled “Resolution of the Council of the City of Palo Alto Declaring Weeds to be a Public Nuisance and Setting January 14, 2019 for a Public Hearing for Objections to Proposed Weed Abatement. 11. Adoption of an Ordinance Amending Chapter 4.42 (Taxicabs and Other For-Hire Vehicles) of Title 4 (Business Licenses and Regulations) of the Palo Alto Municipal Code as Mandated by State Law (AB 939). MOTION PASSED: 9-0 Action Items 13. Approval of an Operating Agreement With Pets In Need, Interim Improvements for the Palo Alto Animal Shelter, and Approval of Budget Amendments in the General Fund and the Capital Improvement Fund. DRAFT ACTION MINUTES Page 3 of 4 City Council Meeting Draft Action Minutes: 11/26/18 MOTION: Vice Mayor Filseth moved, seconded by Council Member Scharff to: 1. Authorize the City Manager to execute an Operating and Management Agreement between Pets In Need and the City of Palo Alto for the City’s Animal Shelter with a not to exceed amount of $3,700,626.10, a term of Five Years, a Commitment to Build Approximately $3.4 Million in Capital Improvements, and other contract terms substantially similar to those found in the draft agreement in attachment D; and 2. Amend the Fiscal Year 2019 Budget Appropriation Ordinance for: a. The General Fund by: i. Increasing the Community Services Department expense appropriation by $355,000; and ii. Reducing the Police Department expense appropriation by $355,000 b. The Capital Improvement Fund by: i. Increasing the Animal Shelter Renovation Project PE-19002 appropriation in the amount of $800,000; and ii. Decreasing the Infrastructure Reserve in the amount of $800,000. MOTION PASSED: 9-0 12. PUBLIC HEARING: Adoption of an Ordinance Amending Various Sections of Title 18 of the Palo Alto Municipal Code Related to Residential and Mixed-use Development Standards Including, but not Limited to; Minimum and Maximum Unit Density, Unit Size, Floor Area Ratio, Height, and Open Space Including Rooftop Gardens; Parking Requirements Including, but not Limited to; Regulations Related to In-lieu Parking for Downtown Commercial Uses and Retail Parking for Mixed Use Projects; Exclusively Residential Projects in Certain Commercial Zoning Districts; Ground-floor Retail and Retail Preservation Provisions; the Entitlement Approval Process; and Other Regulations Governing Residential, Multi-family Residential and Commercial Zoning Districts, all to Promote Housing Development Opportunities in These Zoning Districts in Furtherance of Implementation of the Comprehensive Plan. California Environmental Equality Act (CEQA): Determination of Consistency With the Comprehensive Plan Environmental Impact Report DRAFT ACTION MINUTES Page 4 of 4 City Council Meeting Draft Action Minutes: 11/26/18 (EIR) Certified and Adopted on November 13, 2017 by Council Resolution No. 9720. The Planning and Transportation Commission Recommended Approval of the Proposed Ordinance on October 10, 2018. Public Hearing was opened at 9:15 P.M. Public Hearing was closed at 10:30 P.M. MOTION: Council Member Kou moved, seconded by Council Member DuBois to continue Item 12 to early January, 2019. MOTION FAILED: 3-6 DuBois, Holman, Kou yes MOTION: Council Member Fine moved, seconded by Council Member Wolbach to continue this item to next week. MOTION PASSED: 9-0 14. Approval of a Five-year Operating and Revenue Sharing Agreement With Team Sheeper for Operations of the Rinconada Pool (STAFF REQUEST THIS ITEM BE CONTINUED TO DECEMBER 10, 2018). Adjournment: The meeting was adjourned at 11:49 P.M. City of Palo Alto (ID # 9806) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Approve Vendor Contracts with RideAmigos and SPUR for Mobility-on -Demand FTA Grant Title: Authorize the City Manager to Enter Into the Following Agreements for the City’s Fair Value Commuting Project (Partially Funded Through a Federal Transit Administration Grant): 1) an Agreement With RideAmigos in an Amount Not-to-Exceed $150,620 for a Term of 15 Months, and 2) an Agreement With the San Francisco Bay Area Planning and Urban Research Association (SPUR) in an Amount Not-to-Exceed $100,000 for a Term of 15 Months From: City Manager Lead Department: City Manager Recommendation Staff recommends that the City Council Authorize the City Manager to enter into the following agreements for the City’s Fair Value Commuting project (partially funded through a Federal Transit Administration grant): 1. An agreement with Right Click Solutions (also known as RideAmigos) in an amount not- to-exceed $150,620 for a term of 15 months, and 2. An agreement with the San Francisco Bay Area Planning and Urban Research Association (SPUR) in an amount not-to-exceed $100,000 for a term of 15 months. Background On January 9, 2017, the City Council passed a resolution which authorized the City Manager to execute and file an application on behalf of the City of Palo Alto to the Federal Transit Administration (FTA) for $1.085 Million (CMR 7618). The FTA grant is for the management of, and participation in, a research and development grant award to enhance and evaluate a comprehensive technology/policy solution called Fair Value Commuting (FVC). This research project is designed to advance the strategic objectives of assessing and piloting mobility strategies to reduce congestion, reduce emissions, and improve access to effective mobility options. City of Palo Alto Page 2 Executing and filing this application allowed staff to reach a Cooperative Agreement1 with the FTA. On February 15, 2017, the City entered into this agreement (Authorizing Resolution 9659 Attachment B). The Cooperative Agreement and grant application identified specific vendors who are partnering together to execute the terms of the Cooperative Agreement. Discussion As the next step of the Cooperative Agreement, staff is bringing forward these two contract agreements for City Council approval. This staff report recommends authorizing the contract for the software vendor, RideAmigos, (Attachment C) and the policy vendor SPUR, (Attachment D). RideAmigos is a software vendor specializing in Enterprise Commute Trip Reduction. RideAmigos’ tools and interactive programs for regional, employer, and campus commuter networks advance sustainable transportation choices that enhance mobility and productivity while reducing costs and environmental impact. Within the role of software vendor, RideAmigos will serve as the vendor for the pilot projects in San Mateo County and will enhance its current software platform through changes to and upgrades to the software features. RideAmigos will also serve as the vendor for the pilot projects in Santa Clara County. SPUR is a non-profit research, education, and advocacy organization focused on issues of planning and governance. Within its role of policy vendor, SPUR will analyze the best way to price single-occupancy vehicle commuting in the Bay Area. SPUR will analyze the tradeoffs between different options, including ease of implementation, political viability at multiple levels of government, how each would likely affect commuters and businesses , and the effectiveness of policies to change commuting behavior. All vendors will work under the direction of the City within the set budgets. These are sole source contract agreements due to the nature of the grant. The vendors were included in the approved grant proposal to the FTA, therefore staff did not go out for solicitation for the software, technology, or policy vendors. The vendors, who are fundamental to the grant award, are considered subject matter experts in their respective fields and have unique capabilities. The vendors were approved by the FTA with designated roles and are key project partners. Resource Impacts FTA grant funding in the amount of $780,000 was recognized and appropriated by the City Council to the City Manager’s Office as part of the FY 2019 Adopted Ope rating Budget to fund and execute the Fair Value Commuting Cooperative Agreement. This funding will be used for the $250,620 in vendor contracts with RideAmigos and SPUR. 1 With a cooperative agreement, FTA program management and the grantee cooperatively resolve issues . This may include re-negotiating the statement of work. If evaluation metrics are not met, this is noted in the final report, but there is no penalty. See: https://www.purdue.edu/business/sps/pdf/Grant_vs_Contract.pdf" City of Palo Alto Page 3 Policy Implications This project explores means to reduce individuals driving alone to work. A reduction in single- occupancy vehicles can help reduce the emission of greenhouse gases. Reducing vehicle emissions is one of the keys to achieving the City Council endorsed goal of reducing greenhouse gas emission by 80% by the year 2030. The project helps realize goals identified in the Comprehensive Plan 2030. Specifically, the project helps to achieve Transportation Goals 1, which reads “create a sustainable transportation system, complemented by a mix of land uses, that emphasizes walking, bicycling, use of public transportation and other methods to reduce GHG emissions and the use of single-occupancy motor vehicles.” The recommendation in this report does not represent a change in City policies. Environmental Review This project is categorically exempt from CEQA pursuant to Sections 15301 (Existing Facilities) and 15306 (Information Collection). Attachments: • Attachment A - Authorizing Resolution 9659 • Attachment B - FTA Cooperative Agreement • Attachment C - City of Palo Alto Contract No. C19173099 Agreement Between the City of Palo Alto and Right Click Solutions (RideAmigos) for Professional Services • Attachment D - City of Palo Alto Contract No. C19173097 Agreement Between the City of Palo Alto and SPUR for Professional Services Attachments: • Attachment A - Authorizing Resolution 9659 • Attachment B - FTA Cooperative Agreement • Attachment C - RideAmigos Contract • Attachment D - SPUR Contract DocuSign Envelope ID: 2C155375-4401-46AE-BF43-A286CE055C81 Resolution No. 9659 Resolution authorizing the filing of applications with the Federal Transit Administration, an operating administration of the United States Department of Transportation, for federal transportation assistance authorized by 49 U.S.C. Chapter 53; title 23, United States Code, or other federal statutes administered by the Federal Transit Administration, for the Fair Value Commuting (FVC) initiative. WHEREAS, the Federal Transit Administrator has been delegated authority to award federal financial assistance for a transportation project; WHEREAS, the grant or cooperative agreement for federal financial assistance will impose certain obligations upon Palo Alto ("the applicant"), and may require the applicant to provide the local share of the project cost; WHEREAS, the applicant has or will provide all annual certifications and assurances to the Federal Transit Administration required for the project; NOW, THEREFORE, the Council of the City of Palo Alto RESOLVES as follows: SECTION 1. That the City Manager is authorized to execute and file an application for federal assistance on behalf of The City of Palo Alto with the Federal Transit Administration for federal assistance authorized by 49 U.S.C. Chapter 53, title 23, United States Code, or other federal statutes authorizing a project administered by the Federal Transit Administration, for the Fair Value Commuting (FVC) project. SECTION 2. That the City Manager is authorized to execute and file with the City's applications the annual certifications and assurances and other documents the Federal Transportation Administration requires before awarding a federal assistance grant or cooperative agreement. SECTION 3. That the City Manager is authorized, in accordance with the procedures in local law, to execute grant and cooperative agreements with the Federal Transit Administration on behalf of The City of Palo Alto. 11 11 11 11 11 161222 th 0140174 DocuSign Envelope ID: 2C155375-4401-46AE-BF43-A286CE055C81 SECTION 4. The Council finds the application and acceptance of the FTA grant for the Fair Value Commuting project to be categorically exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines §15306 (basic data collection, research, experimental management and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource). INTRODUCED AND PASSED: January 9, 2017 AYES: DUBOIS, FILSETH, FINE, HOLMAN, KNISS, KOU, SCHARFF, TANAKA, WOLBACH NOES: ABSENT: ABSTENTIONS: ATTEST: CDoeuSigned by: am. Atikbr 45F955020971402... City Clerk C!` DocuSlpned by: EF6376SFOQ034EA Mayor APPROVED AS TO FORM: APPROVED: iyned by; [DQ�U8 SUN? 3ak47-Vi01itiST4A9 City Attorney Ooou3Igned by: City Manager 000ubipned by: CiftiAttuA, FO7EE6O1F2tE441 Director of Planning and Community Environment Director of Administrative Services CERTIFICATION The undersigned duly qualified City Clerk, acting on behalf of The City of Palo Alto, certifies that the foregoing is a true and correct copy of a resolution adopted at a legally convened meeting of the Council of the City of Palo Alto held on Ja.KI y1. 20 0 - City Clerk 1/IZ/ZoI- Date 161222 th 0140174 Certificate Of Completion Envelope Id: 2C155375440146AESF43A286CE055C81 Subject: Please DocuSign this document: RESO 9659 FTA.pdf Source Envelope: Document Pages: 2 Supplemental Document Pages: 0 Certificate Pages: 6 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Signatures: 6 Initials: 0 Payments: 0 Status: Completed Envelope Originator: Kim Lunt 250 Hamilton Ave Palo Alto , CA 94301 kimberly.lunt©cityofpaloalto.org IP Address: 199.33.32.254 Record Tracking Status: Original Holder: Kim Lunt 1/11/2017 1:45:32 PM tdmberly.lunt@cityofpaloalto.org Location: DocuSign Signer Events Signature Timestamp Molly Stump Molly.Stump@CityofPaloAtto.org City Attorney City of Palo Alto Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure; Not Offered via DocuSign ID. Lalo Perez Lalo.Perez©CityofPaloAlto.org Chief Financial Officer City of Palo Alto Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Hillary Gitelman Hillary.Gitelman@CityofPaloAlto,org Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: James Keene james.keene@cityofpaloalto.org City Manager City of Palo Alto Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 4/14/2015 5:40:07 PM ID:44fe333a-6a81-4cb7-b7d4-925473ac82e3 Using IP Address: 199.33.32.254 Using IP Address: 50.143.179.245 Signed using mobile ar '-ranssoin1rau Using IP Address: 199.33.32 254 Er" - Using IP Address: 70.214.14.78 Signed using mobile Sent: 1/11/2017 V51:46 PM Viewed: 1/11/2017 5:55:10 PM Signed: 1/11/2017 5:55:33 PM Sent: 1/11/2017 5:55-34 PM Viewed: 1/12/2017 6:59:38 AM Signed: 1/12/2017 7:00:02 AM Sent: 1/12/2017 7:00:03 AM Viewed: 1/12/2017 8:18:41 AM Signed: 1/12/2017 8:19:16 AM Sent: 1/12/2017 8:19:17 AM Viewed: 1/12/2017 10:51:50 AM Signed: 1/12/2017 10.51:59 AM Signer Events Signature Timestamp H. Gregory Scharff greg.scharff©cityofpaloalto.org Mayor City of Palo Alto Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Beth Minor Beth.MinorrCityofPatoAlto.org City Clerk City of Palo Alto Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: me+s,r d e►: Eel7rM:010NEA Using IP Address: 70.213 0.121 Signed using mobile osausivine by. bat. Mika' a+E+az2007,eu Using IP Address: 199.33 32.254 Sent: 1/12/2017 10:52.00 AM Viewed: 1/12/2017 10.52:58 AM Signed: 1/12/2017 10:53:05 AM Sent: 1/12/2017 10:53:06 AM Viewed: 1/12/2017 10:57:30 AM Signed: 1/12/2017 10:57:48 AM In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp ntermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Hillary Rupert hillary.rupert@cityofpaloalto_org Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Hillary Rupert hillary.rupert@cityofpatoalto.org Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Hillary Rupert hillary.rupert@cityofpaloalto.org Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: COPIED COPIED COPIED Sent 1/11/'2017 1 51:46 PM Viewed: 1/11/2017 2:34:02 PM Sent: 1/12/2017 8:19:17 AM Viewed: 1/12/2017 8:19:57 AM Sent: 1/12/2017 10:53:06 AM Viewed: 1/12/2017 10'.53:29 AM Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Certified Delivered Hashed/Encrypted Security Checked 1/12/2017 10:53:07 AM 1/12/2017 10:57:30 AM DOT FTA U.S. Department of Transportation Federal Transit Administration Award Federal Award Identification Number (FAIN) CA-2017-020-00 Temporary Application Number 2303-2017-1 Award Name Bay Area Fair Value Commuting (FVC) Demonstration Project Award Status Obligated / Ready for Execution Award Budget Number 0 Part 1: Recipient Information Name: PALO ALTO, CITY OF Recipient ID Recipient OST Type Recipient Alias Recipient DUNS 2303 City CITY OF PALO ALTO 050520782 Location Type Address City State Zip Headquarters 250 HAMILTON AVE PALO ALTO CA 94301 Physical Address 250 HAMILTON AVE PALO ALTO CA 94301 Mailing Address P. O. BOX 10250 PALO ALTO CA 94303 Union Information There are no union contacts for this application Part 2: Award Information Title: Bay Area Fair Value Commuting (FVC) Demonstration Project FAIN Award Status Award Type Date Created Last Updated Date From TEAM? CA-2017- 020-00 Obligated / Ready for Execution Cooperative Agreement 1/17/2017 1/17/2017 No Award Executive Summary The Bay area Fair Value Commuting (FVC) Demonstration Project is a Mobility on Demand (MOD) research and demonstration project. In pursuit of Bay Area congestion relief and air quality improvement, state/regional/local objectives have converged on 15% per-capita VMT reduction and 2x transit/biking use. In pursuit of regional objectives, this MOD Sandbox demonstration project has the potential to gradually reduce Bay Area single occupancy vehicle (SOV) commute share from 75% to 50%. The demonstration project's technology/policy solution is called Fair Value Commuting and consists of five components. • Enterprise Commute Trip Reduction (ECTR) software. • Mobility Aggregation (MobAg) app, a mobile multimodal trip planning application. • A revenue-neutral workplace parking feebate. • Gap Filling analytics; and • Reduction of systemic obstacles to transit use. The total eligible project cost is $1,356,250. The federal funding will include $329,842 in FY14, and $755,158 in FY 16 Section 5312 funding for a total federal participation of $1,085,000. These funds will be matched with $271,250 in local cost share. Attachments to this application include the project’s Statement of Work (SOW). This application includes funds for Research and/or Development activities. Federal Role: The FTA will actively participate in the project activities by directing activities, attending review meetings, commenting on technical reports, and maintaining frequent contact with the local project manager. FTA reserves the right to re-direct project activities and funding for the project supported under this Award and their related activities. Recipient Role: The City of Palo Alto, along with its project partners, will manage the project as outlined in the attached statement of work including, preparing technical, status, and financial reports; and submitting deliverables. Special Conditions: The recipient will ensure the project team cooperates and provides support to the independent evaluator, as designated by FTA, in their efforts to evaluate the MOD Sandbox projects and the overall MOD Sandbox program, including input to the evaluation plan, as appropriate, and ensuring their MOD sandbox project team provides the independent evaluator qualitative and/or quantitative data as specified in the evaluation plan. The recipient will develop a plan for how the project will address accessible and equitable mobility service for all travelers and will address in particular how the project will provide equivalent service for all travelers as required by U.S. DOT ADA regulations. The recipient will coordinate with FTA any significant media relations and community outreach directly related to the MOD Sandbox program. The local share of this award may be deferred as necessary, consistent with t he project milestone schedule. The recipient will be reimbursed for actual costs, as detailed in the project milestone schedule and project budget. The Recipient agrees that it will maintain adequate cost records to support any payment request, and that the payment requested will not exceed the Federal share of the costs actually incurred for the milestone. The Recipient shall comply with the requirements of FTA Circular 6100.1E, “Research, Technical Assistance and Training Program: Application Instructions and Program Management Guidelines.” The Recipient is responsible for awarding or managing any third party contracts or partnering arrangements associated with this project in accordance with the requirements of FTA Circular 4220.1F, “Third Party Contracting Requirements.” Delinquent Federal Debt No, my organization does not have delinquent federal debt. Requires E.O. 12372 Review No, this application does not require E.O. 12372 Review. Subject to Pre-Award Authority Yes, this application is subject to Pre-Award Authority. Will this Grant be using Lapsing Funds? No, this Grant does not use Lapsing Funds. Frequency of Milestone Progress Reports (MPR) Quarterly Frequency of Federal Financial Reports (FFR) Quarterly Award Point of Contact Information First Name Last Name Title E-mail Address Phone Christina Gikakis Christina.Gikakis@dot.gov (202) 366-2637 Gil Friend Chife Sustainability Officer gil.friend@cityofpaloalto.org 650-329-2447 Award Budget Control Totals Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $329,842 49 USC 5312 - (FAST) Public Transportation Innovation 5312-1 20514 $755,158 Local $0 Local/In-Kind $271,251 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $1,356,251 Award Budget Project Number Budget Item FTA Amount Non-FTA Amount Total Eligible Amount Quantity CA- 2017- 020-01- 00 550- 00 (550- A1) Research Projects $1,085,000.00 $271,251.00 $1,356,251.00 0 CA- 2017- 020-01- 00 55.14.00 MANAGERIAL,TECHNICAL & PROFESSIONAL $32,000.00 $8,000.00 $40,000.00 0 CA- 2017- 020-01- 00 55.54.00 OTHER $48,000.00 $12,000.00 $60,000.00 0 CA- 2017- 020-01- 00 55.74.00 OTHER PROJECT COSTS $755,158.00 $188,790.00 $943,948.00 0 CA- 2017- 020-01- 00 55.74.00 OTHER PROJECT COSTS $249,842.00 $62,461.00 $312,303.00 0 Earmark and Discretionary Allocations Earmark ID Earmark Name Amount Applied D2017-MODD-004 Bay Area Fair Value Commuting Demonstration (Palo Alto) $755,158 D2017-MODD-003 Bay Area Fair Value Commuting Demonstration (Palo Alto) $329,842 Sources of Federal Financial Assistance PO Number Project Number Scope Name Scope Number Scope Suffix UZA Code Area Name Account Class Code FPC Description Amendment Amount Cumulative Amount CA-26- 1013 CA- 2017- 020-01- 00 Research Projects 550-00 (550) A1 060000 California 2014.23.26.TD.1 01 Tech demonstration &deployment $329,842 $329,842 CA-26- 1013 CA- 2017- 020-01- 00 Research Projects 550-00 (550) A2 060000 California 2016.25.26.TD.2 01 Research, Development, Demonstration, and Deployment $755,158 $755,158 Part 3: Project Information Project Title: Bay Area Fair Value Commuting (FVC) Demonstration Project Project Number Temporary Project Number Date Created Start Date End Date CA-2017-020-01-00 2303-2017-1-P1 1/17/2017 10/13/2016 7/1/2019 Project Description The FVC demo project will demonstrate how technology can aid in reducing traffic congestion. The project will take place in Silicon Valley, which has one of the highest congestion levels in the nati on; and will span approximately two years. The demo project will be lead by the City of Palo Alto in conjunction with Joint Venture Silicon Valley. Project Benefits Key FVC benefits on a Regional scale are: • Creates $670M/year of new transit, biking, carpool, and mobility service funding out of thin air (equivalent to a half-cent sales tax). • Benefits lower income workers more than higher income workers. • Reduces 1M car trip/day, 1.3M tons/GHG/year, 3.4B VMT/year at a “negative cost” of $558/ton GHG reduced. • Creates a large new pro-transit voting constituency Additional Information The FVC demonstration project's Statement of Work (SOW) is attached to this grant application. Location Description The demonstration project will take place in the San Francisco, California, Bay Area, specifically Silicon Valley. Project Location (Urbanized Areas) UZA Code Area Name 060000 California Congressional District Information State District Representative California 18 Anna Eshoo California 17 Ro Khanna Project Control Totals Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $329,842 49 USC 5312 - (FAST) Public Transportation Innovation 5312-1 20514 $755,158 Local $0 Local/In-Kind $271,251 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $1,356,251 Project Budget Project Number Budget Item FTA Amount Non-FTA Amount Total Eligible Amount Quantity CA- 2017- 020-01- 00 550- 00 (550- A1) Research Projects $1,085,000.00 $271,251.00 $1,356,251.00 0 CA- 2017- 020-01- 00 55.14.00 MANAGERIAL,TECHNICAL & PROFESSIONAL $32,000.00 $8,000.00 $40,000.00 0 CA- 2017- 020-01- 00 55.54.00 OTHER $48,000.00 $12,000.00 $60,000.00 0 CA- 2017- 020-01- 00 55.74.00 OTHER PROJECT COSTS $755,158.00 $188,790.00 $943,948.00 0 CA- 2017- 020-01- 00 55.74.00 OTHER PROJECT COSTS $249,842.00 $62,461.00 $312,303.00 0 Project Budget Activity Line Items Budget Activity Line Item: 55.14.00 - MANAGERIAL,TECHNICAL & PROFESSIONAL Scope Name / Code Line Item # Custom Item Name Activity Quantity Research Projects (550-00) 55.14.00 MANAGERIAL,TECHNICAL & PROFESSIONAL PERSONNEL 0 Extended Budget Description This line item is for City of Palo Alto staff and internal resources to support grant project. Will 3rd Party contractors be used to fulfill this activity line item? No, 3rd Party Contractors will not be used for this line item. Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $32,000 Local $0 Local/In-Kind $8,000 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $40,000 Milestone Name Est. Completion Date Description Start Date 10/13/2016 Start date is date of Letter of No Prejudice issued for the project, and beginning of initial project activities. Estimated completion date is estimated date project activities will be completed. End Date 7/1/2017 End date is end of project activities. Budget Activity Line Item: 55.54.00 - OTHER Scope Name / Code Line Item # Custom Item Name Activity Quantity Research Projects (550-00) 55.54.00 OTHER CONTRACTUAL 0 Extended Budget Description This line item covers 3rd party support products and services such as travel, equipment, supplies, and project support consulting services. Will 3rd Party contractors be used to fulfill this activity line item? Yes, 3rd Party Contractors will be used for this line item. Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $48,000 Local $0 Local/In-Kind $12,000 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $60,000 Milestone Name Est. Completion Date Description Completion Date 7/1/2019 This milestone covers project support provided through 3rd party vendors, project travel, supplies, and equipment. Start Date 10/13/2016 The start date of this milestone is the date of the Letter of No Prejudice issued for the project on 10/13/2016. Budget Activity Line Item: 55.74.00 - OTHER PROJECT COSTS Scope Name / Code Line Item # Custom Item Name Activity Quantity Research Projects (550-00) 55.74.00 OTHER PROJECT COSTS OTHER 0 Extended Budget Description This activity line item covers work performed by project "Key Partners" as listed in the City's Project Proposal responding to Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 "Public Transportation Innovation Funding Opportunity; Mobility on Demand (MOD) Sandbox Demonstration Program". Specifically paragraph "C. Eligibility Information" of this Federal Register Notice indicates among other things: "A key partner is essential to the project as approved by FTA and is therefore eligible for a noncompetitive award by the applicant to provide goods or services described in the application." Will 3rd Party contractors be used to fulfill this activity line item? Yes, 3rd Party Contractors will be used for this line item. Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $249,842 Local $0 Local/In-Kind $62,461 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $312,303 Milestone Name Est. Completion Date Description Start Date 10/13/2016 Start date is date of Project Letter of No Prejudice 10/13/2016. End Date 7/1/2019 End date is completion of project activities. Budget Activity Line Item: 55.74.00 - OTHER PROJECT COSTS Scope Name / Code Line Item # Custom Item Name Activity Quantity Research Projects (550-00) 55.74.00 OTHER PROJECT COSTS OTHER 0 Extended Budget Description This activity line item covers work performed by project "Key Partners" as listed in the City's Project Proposal responding to Federal Register / Vol. 81, No. 85 / Tuesday, May 3, 2016 "Public Transportation Innovation Funding Opportunity; Mobility on Demand (MOD) Sandbox Demonstration Program". Specifically paragraph "C. Eligibility Information" of this Federal Register Notice indicates among other things: "A key partner is essential to the project as approved by FTA and is therefore eligible for a noncompetitive award by the applicant to provide goods or services described in the application." Will 3rd Party contractors be used to fulfill this activity line item? Yes, 3rd Party Contractors will be used for this line item. Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - (FAST) Public Transportation Innovation 5312-1 20514 $755,158 Local $0 Local/In-Kind $188,790 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $943,948 Milestone Name Est. Completion Date Description Start Date 10/13/2016 Start Date is the date of the Project's Letter of No Prejudice. End Date 7/1/2019 End Date is date of completion of project activities. Project Environmental Findings Finding: Class II(c) - Categorical Exclusions (C-List) Class Level Description Class II(c) consists of projects called categorical exclusions (CEs) which are known not to have, either individually or cumulatively, a significant environmental impact on the human or natural environment and are therefore categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement. Class II(c) does not require documentation. Categorical Exclusion Description Type 04: Planning and administrative activities which do not involve or lead directly to construction, such as: training, technical assistance and research; promulgation of rules, regulations, directives, or program guidance; approval of project concepts; engineering; and operating assistance to transit authorities to continue existing service or increase service to meet routine demand. Date Description Date Class IIc CE Approved 1/9/2017 Part 4: Fleet Details No fleet data exists for this application. Part 5: FTA Review Comments FTA Review Internal Comments Comment By Christina Gikakis Comment Type Environmental Concurrence Date 1/18/2017 Comment This project has a categorical exclusion. Comment By Christina Gikakis Comment Type Technical Concurrence Date 1/18/2017 Comment The Project Manager has reviewed and approved this application and submits it for approval. Comment By Gwo-Wei Torng Comment Type Operations Concurrence Date 2/9/2017 Comment Comment By Jamie Pfister Comment Type Planning Concurrence Date 2/9/2017 Comment Selected as part of 2016 MOD Sandbox; ready for award of these funds previously announced in Oct 2016. Comment By Stephen Pereira Comment Type Legal Concurrence Date 2/10/2017 Comment Comment By Vincent Valdes Comment Type RA Concurrence Date 2/10/2017 Comment Part 6: Agreement UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION COOPERATIVE AGREEMENT (FTA C-23, October 1, 2016) On the date the authorized U.S. Department of Transportation, Federal Transit Administration (FTA) official sign this Cooperative Agreement, FTA has obligated and awarded federal assistance as provided below. Upon execution of this Cooperative Agreement by the Recipient named below, the Recipient affirms this FTA Award, enters into this Cooperative Agreement with FTA, and binds its compliance with the terms of this Cooperative Agreement. The following documents are incorporated by reference and made part of this Cooperative Agreement: (1) "Federal Transit Administration Master Agreement," FTA MA(23), October 1, 2016, http://www.fta.dot.gov, (2) The Certifications and Assurances applicable to the FTA Award that the Recipient has selected and provided to FTA, and (3) Any Award notification containing special conditions or requirements, if issued. WHEN THE TERM “FTA AWARD” OR “AWARD” IS USED, EITHER IN THIS COOPERATIVE AGREEMENT OR THE APPLICABLE MASTER AGREEMENT, “AWARD” ALSO INCLUDES ALL TERMS AND CONDITIONS SET FORTH IN THIS COOPERATIVE AGREEMENT. FTA OR THE FEDERAL GOVERNMENT MAY WITHDRAW ITS OBLIGATION TO PROVIDE FEDERAL ASSISTANCE IF THE RECIPIENT DOES NOT EXECUTE THIS COOPERATIVE AGREEMENT WITHIN 90 DAYS FOLLOWING FTA's AWARD DATE SET FORTH HEREIN. FTA AWARD Federal Transit Administration (FTA) hereby awards a Federal grant as follows: Recipient Information Recipient Name: PALO ALTO, CITY OF Recipient ID: 2303 DUNS No: 050520782 Award Information Federal Award Identification Number: CA-2017-020-00 Award Name: Bay Area Fair Value Commuting (FVC) Demonstration Project Award Executive Summary: The Bay area Fair Value Commuting (FVC) Demonstration Project is a Mobility on Demand (MOD) research and demonstration project. In pursuit of Bay Area congestion relief and air quality improvement, state/regional/local objectives have converged on 15% per-capita VMT reduction and 2x transit/biking use. In pursuit of regional objectives, this MOD Sandbox demonstration project has the potential to gradually reduce Bay Area single occupancy vehicle (SOV) commute share from 75% to 50%. The demonstration project's technology/policy solution is called Fair Value Commuting and consists of five components. • Enterprise Commute Trip Reduction (ECTR) software. • Mobility Aggregation (MobAg) app, a mobile multimodal trip planning application. • A revenue-neutral workplace parking feebate. • Gap Filling analytics; and • Reduction of systemic obstacles to transit use. The total eligible project cost is $1,356,250. The federal funding will include $329,842 in FY14, and $755,158 in FY 16 Section 5312 funding for a total federal participation of $1,085,000. These funds will be matched with $271,250 in local cost share. Attachments to this application include the project’s Statement of Work (SOW). This application includes funds for Research and/or Development activities. Federal Role: The FTA will actively participate in the project activities by directing activities, attending review meetings, commenting on technical reports, and maintaining frequent contact with the local project manager. FTA reserves the right to re-direct project activities and funding for the project supported under this Award and their related activities. Recipient Role: The City of Palo Alto, along with its project partners, will manage the project as outlined in the attached statement of work including, preparing technical, status, and financial reports; and submitting deliverables. Special Conditions: The recipient will ensure the project team cooperates and provides support to the independent evaluator, as designated by FTA, in their efforts to evaluate the MOD Sandbox projects and the overall MOD Sandbox program, including input to the evaluation plan, as appropriate, and ensuring their MOD sandbox project team provides the independent evaluator qualitative and/or quantitative data as specified in the evaluation plan. The recipient will develop a plan for how the project will address accessib le and equitable mobility service for all travelers and will address in particular how the project will provide equivalent service for all travelers as required by U.S. DOT ADA regulations. The recipient will coordinate with FTA any significant media relations and community outreach directly related to the MOD Sandbox program. The local share of this award may be deferred as necessary, consistent with the project milestone schedule. The recipient will be reimbursed for actual costs, as detailed in the p roject milestone schedule and project budget. The Recipient agrees that it will maintain adequate cost records to support any payment request, and that the payment requested will not exceed the Federal share of the costs actually incurred for the milestone. The Recipient shall comply with the requirements of FTA Circular 6100.1E, “Research, Technical Assistance and Training Program: Application Instructions and Program Management Guidelines.” The Recipient is responsible for awarding or managing any thir d party contracts or partnering arrangements associated with this project in accordance with the requirements of FTA Circular 4220.1F, “Third Party Contracting Requirements.” Total Award Budget: $1,356,251.00 Amount of Federal Assistance Obligated for This FTA Action (in U.S. Dollars): $1,085,000.00 Amount of Non-Federal Funds Committed to This FTA Action (in U.S. Dollars): $271,251.00 Total FTA Amount Awarded and Obligated (in U.S. Dollars): $1,085,000.00 Total Non-Federal Funds Committed to the Overall Award (in U.S. Dollars): $271,251.00 Award Budget Control Totals (The Budget includes the individual Project Budgets (Scopes and Activity Line Items) or as attached) Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $329,842 49 USC 5312 - (FAST) Public Transportation Innovation 5312-1 20514 $755,158 Local $0 Local/In-Kind $271,251 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $1,356,251 (The Transportation Development Credits are not added to the amount of the Total Award Budget.) Project Information Project Number Project Title Project Description CA-2017- 020-01-00 Bay Area Fair Value Commuting (FVC) The FVC demo project will demonstrate how technology can aid in reducing traffic congestion. The project will take place in Silicon Demonstration Project Valley, which has one of the highest congestion levels in the nation; and will span approximately two years. The demo project will be lead by the City of Palo Alto in conjunction with Joint Venture Silicon Valley. Project Funding Summary Funding Source Section of Statute CFDA Number Amount 49 USC 5312 - Research, Development, Demonstration, Deployment 5312 20514 $329,842 49 USC 5312 - (FAST) Public Transportation Innovation 5312-1 20514 $755,158 Local $0 Local/In-Kind $271,251 State $0 State/In-Kind $0 Other Federal $0 Transportation Development Credit $0 Total Eligible Cost $1,356,251 U.S. Department of Labor Certification of Public Transportation Employee Protective Arrangements: Original Certification Date: TERMS AND CONDITIONS Special Conditions There are no special conditions. Awarded By: Jamie Pfister Supervisor FEDERAL TRANSIT ADMINISTRATION U.S. DEPARTMENT OF TRANSPORTATION Contact Info: Award Date: 2/15/2017 1:40 PM GMT+00:00 EXECUTION OF THE COOPERATIVE AGREEMENT There are several identical counterparts of this Cooperative Agreement in typewritten hard copy. Each counterpart is: (1) Fully signed in writing by the duly authorized officials of FTA or the Federal Government and the Recipient, and (2) Deemed to be an original having identical legal effect. Upon full execution of this Cooperative Agreement by the Recipient, the Effective Date will be the date FTA or the Federal Government awarded Federal assistance for this Cooperative Agreement. By executing this Cooperative Agreement, the Recipient intends to enter into a legally binding agreement in which the Recipient: (1) Affirms this FTA Award, (2) Adopts and ratifies all of the following information it has submitted to FTA: (a) Statements, (b) Representations, (c) Warranties, (d) Covenants, and (e) Materials, (3) Consents to comply with the requirements of this FTA Award, and (4) Agrees to all terms and conditions set forth in this Cooperative Agreement. Executed By: PALO ALTO, CITY OF City of Palo Alto General Services Agreement 1 Rev. March 29, 2018 CITY OF PALO ALTO CONTRACT NO. C19173099 GENERAL SERVICES AGREEMENT BETWEEN THE CITY OF PALO ALTO AND RIGHT CLICK SOLUTIONS, INC. THIS AGREEMENT made and entered into on the 26th day of November, 2018, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and RIGHT CLICK SOLUTIONS, INC, a CALIFORNIA CORPORATION located at 230 PACIFIC STREET, SUITE 202, SANTA MONICA, CA 90405, Telephone Number: 516-864- 3189 (“CONTRACTOR”). In consideration of their mutual covenants, the parties hereto agree as follows: 1. SERVICES. CONTRACTOR shall provide or furnish the services (the “Services”) described in the Scope of Services, attached at Exhibit A. Optional On-Call Provision (This provision only applies if checked and only applies to on-call agreements.) Services will be authorized by CITY, as needed, with a Task Order assigned and approved by CITY’s Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-1. Each Task Order shall designate a CITY Project Manager and shall contain a specific scope of work, a specific schedule of performance and a specific compensation amount. The total price of all Task Orders issued under this Agreement shall not exceed the amount of Compensation set forth in Section 5 of this Agreement. CONTRACTOR shall only be compensated for work performed under an authorized Task Order and CITY may elect, but is not required, to authorize work up to the maximum compensation amount set forth in Section 5. 2. EXHIBITS. The following exhibits are attached to and made a part of this Agreement: “A” - Scope of Services “A-1” – On-Call Task Order (Optional) “B” - Schedule of Performance “C” – Schedule of Fees “D” - Insurance Requirements “E” - “Amended and Restated Agreement for Services of Independent Contractor” agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor, executed August 15, 2016. “F” - FTA REQUIREMENTS CONTRACT IS NOT COMPLETE UNLESS ALL INDICATED EXHIBITS ARE ATTACHED. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 2 Rev. March 29, 2018 3. TERM. The term of this Agreement is from November 1, 2018 to December 31, 2019 inclusive, subject to the provisions of Sections R and W of the General Terms and Conditions. 4. SCHEDULE OF PERFORMANCE. CONTRACTOR shall complete the Services within the term of this Agreement in a reasonably prompt and timely manner based upon the circumstances and direction communicated to CONTRACTOR, and if applicable, in accordance with the schedule set forth in the Schedule of Performance, attached at Exhibit B. Time is of the essence in this Agreement. 5. COMPENSATION FOR ORIGINAL TERM. CITY shall pay and CONTRACTOR agrees to accept as not-to-exceed compensation for the full performance of the Services and reimbursable expenses, if any: The total maximum lump sum compensation of dollars ($ ); OR The sum of dollars ($ ) per hour, not to exceed a total maximum compensation amount of dollars ($ ); OR A sum calculated in accordance with the fee schedule set forth at Exhibit C, not to exceed a total maximum compensation amount of one hundred and four thousand dollars ($104,000). CONTRACTOR agrees that it can perform the Services for an amount not to exceed the total maximum compensation set forth above. Any hours worked or services performed by CONTRACTOR for which payment would result in a total exceeding the maximum amount of compensation set forth above for performance of the Services shall be at no cost to CIT Y. CITY has set aside the sum of forty-six thousand three hundred fifty dollars ($46,350) for Additional Services. CONTRACTOR shall provide Additional Services only by advanced, written authorization from the City Manager or designee. CONTRACTOR, at the CITY’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONTRACTOR’s proposed maximum compensation, including reimbursable expense, for such services. Compensation shall be based on the hourly rates set forth above or in Exhibit C (whichever is applicable), or if such rates are not applicable, a negotiated lump sum. CITY shall not authorize and CONTRACTOR shall not perform any Additional Services for wh ich payment would exceed the amount set forth above for Additional Services. Payment for Additional Services is subject to all requirements and restrictions in this Agreement. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 3 Rev. March 29, 2018 6. COMPENSATION DURING ADDITIONAL TERMS. CONTRACTOR’S compensation rates for each additional term shall be the same as the original term; OR CONTRACTOR’s compensation rates shall be adjusted effective on the commencement of each Additional Term. The lump sum compensation amount, hourly rates, or fees, whichever is applicable as set forth in section 5 above, shall be adjusted by a percentage equal to the change in the Consumer Price Index for Urban Wage Earners and Clerical Workers for the San Francisco-Oakland- San Jose area, published by the United States Department of Labor Statistics (CPI) which is published most immediately preceding the commencement of the applicable Additional Term, which shall be compared with the CPI published most immediately preceding the commencement date of the then expiring term. Notwithstanding the foregoing, in no event shall CONTRACTOR’s compensation rates be increased by an amount exceeding five percent of the rates effective during the immediately preceding term. Any adjustment to CONTRACTOR’s compensation rates shall be reflected i n a written amendment to this Agreement. 7. CLAIMS PROCEDURE FOR “9204 PUBLIC WORKS PROJECTS”. For purposes of this Section 7, a “9204 Public Works Project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. Public Contract Code Section 9204 mandates certain claims procedures for Public Works Projects, which are set forth in “Appendix __Claims for Public Contract Code Section 9204 Public Works Projects”. This project is a 9204 Public Works Project and is required to comply with the claims procedures set forth in Appendix __, attached hereto and incorporated herein. OR This project is not a 9204 Public Works Project . 8. INVOICING. Send all invoices to CITY, Attention: Project Manager. The Project Manager is: Hillary Rupert, Dept.: CMO, Telephone: 650-776-9208. Invoices shall be submitted in arrears for Services performed. Invoices shall not be submitte d more frequently than monthly. Invoices shall provide a detailed statement of Services performed during the invoice period and are subject to verification by DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 4 Rev. March 29, 2018 CITY. The CONTRACTOR also agrees to include its in-kind services as part of the regular monthly invoices. CITY shall pay the undisputed amount of invoices within 30 days of receipt. GENERAL TERMS AND CONDITIONS A. ACCEPTANCE. CONTRACTOR accepts and agrees to all terms and conditions of this Agreement. This Agreement includes and is limited to the terms and conditions set forth in sections 1 through 8 above, these general terms and conditions and the attached exhibits. B. QUALIFICATIONS. CONTRACTOR represents and warrants that it has the expertise and qualifications to complete the services described in Section 1 of this Agreement, entitled “SERVICES,” and that every individual charged with the performance of the services under this Agreement has sufficient skill and experience and is duly licensed or certified, to the extent such licensing or certification is required by law, to perform the Services. CITY expressly relies on CONTRACTOR’s representations regarding its skills, knowledge, and certifications. CONTRACTOR shall perform all work in accordance with generally accepted business practices and performance standards of the industry, including all federal, state, and local operation and safety regulations. C. INDEPENDENT CONTRACTOR. It is understood and agreed that in the performance of this Agreement, CONTRACTOR and any person employed by CONTRACTOR shall at all times be considered an independent CONTRACTOR and not an agent or employee of CITY. CONTRACTOR shall be responsible for employing or engaging all persons necessary to complete the work required under this Agreement. D. SUBCONTRACTORS. CONTRACTOR may not use subcontractors to perform any Services under this Agreement unless CONTRACTOR obtains prior written consent of CITY. CONTRACTOR shall be solely responsible for directing the work of approved subcontractors and for any compensation due to subcontractors. E. TAXES AND CHARGES. CONTRACTOR shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of CONTRACTOR’s business. F. COMPLIANCE WITH LAWS. CONTRACTOR shall in the performance of the Services comply with all applicable federal, state and local laws, ordinances, regulations, and orders. G. PALO ALTO MINIMUM WAGE ORDINANCE. CONTRACTOR shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 5 Rev. March 29, 2018 Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONTRACTOR shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONTRACTOR shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060. J. MONITORING OF SERVICES. CITY may monitor the Services performed under this Agreement to determine whether CONTRACTOR’s work is completed in a satisfactory manner and complies with the provisions of this Agreement. L. AUDITS. CONTRACTOR agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for three (3) years from the date of final payment, CONTRACTOR’s records p ertaining to matters covered by this Agreement. CONTRACTOR agrees to maintain accurate books and records in accordance with generally accepted accounting principles for at least three (3) following the terms of this Agreement. M. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. N. INSURANCE. CONTRACTOR, at its sole cost, shall purchase and maintain in full force during the term of this Agreement, the insurance coverage described at Exhibit D. Insurance must be provided by companies with a Best’s Key Rating of A-:VII or higher and which are otherwise acceptable to CITY’s Risk Manager. The Risk Manager must approve deductibles and self-insured retentions. In addition, all policies, endorsements, certificates and/or binders are subject to approval by the Risk Manager as to form and content. CONTRACTOR shall obtain a policy endorsement naming the City of Palo Alto as an additional insured under any general liability or automobile policy. CONTRACTOR shall obtain an endorsement stating that the insurance is primary coverage and will not be canceled or materially reduced in coverage or limits until after providing 30 days prior written notice of the cancellation or modification to the Risk Manager. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to the Risk Manager, together with the required endorsements and evidence of payment of pre miums, to CITY concurrently with the execution of this Agreement and shall throughout the term of this Agreement provide current certificates evidencing the required insurance coverages and endorsements to the Risk Manager. CONTRACTOR shall include all subcontractors as insured under its policies or shall obtain and provide to CITY separate certificates and endorsements for each subcontractor that meet all the requirements of this section. The procuring of such required policies of insurance DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 6 Rev. March 29, 2018 shall not operate to limit CONTRACTOR’s liability or obligation to indemnify CITY under this Agreement. O. HOLD HARMLESS. Each Party shall indemnify and hold harmless to the fullest extent permitted by law the other Party and each of their respective affiliates, owners, lenders, directors, officers, investors, members, managers, employees, attorneys, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorney’s fees and disbursements that any of them may suffer form or incur and that may directly or indirectly arise and/or result from either Party’s gross negligence or willful misconduct. Notwithstanding the foregoing or anything to the contrary contained herein or in any other writing, CONTRACTOR’s aggregate indemnification obligations shall be capped at the Aggregate Liability Amount (defined below.) P. NON-DISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONTRACTOR certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONTRACTOR acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. Q. WORKERS' COMPENSATION. CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self -insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing and during the performance of the Services. R. TERMINATION. The City Manager may terminate this Agreement without cause by giving sixty (60) days’ prior written notice thereof to CONTRACTOR. If CONTRACTOR fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the City Manager may terminate this Agreement immediately upon written notice of termination. Upon receipt of such notice of termination, CONTRACTOR shall immediately discontinue performance. CITY shall pay CONTRACTOR for services satisfactorily performed up to the effective date of termination. If the termination is for cause, CITY may deduct from such payment the amount of actua l damage, if any, sustained by CITY due to CONTRACTOR’s failure to perform its material DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 7 Rev. March 29, 2018 obligations under this Agreement. Upon termination, CONTRACTOR shall immediately deliver to the City Manager any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by CONTRACTOR or given to CONTRACTOR, in connection with this Agreement. Such materials shall become the property of CITY. S. ASSIGNMENTS/CHANGES. This Agreement binds the parties and their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written consent of CITY. No amendments, changes or variations of any kind are authorized without the written consent of CITY. T. CONFLICT OF INTEREST. In accepting this Agreement, CONTRACTOR covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. CONTRACTOR further covenants that, in the performance of this Agreement, it will not employ any person having such an interest. CONTRACTOR certifies that 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 agrees to advise CITY if any conflict arises. U. GOVERNING LAW. This Agreement shall be governed and interpreted by the laws of the State of California. V. ENTIRE AGREEMENT. This Agreement, including all exhibits, represents the entire agreement between the parties with respect to the services that may be the subject of this Agreement. Any variance in the exhibits does not affect the validity of the Agreement and the Agreement itself controls over any conflicting provisions in the exhibits. This Agreement supersedes all prior agreements, representations, statements, negotiations and undertakings whether oral or written. W. NON-APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 8 Rev. March 29, 2018 X. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. Y. AUTHORITY. The individual(s) executing this Agreement on behalf of the parties represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. Z. PREVAILING WAGES This Project is not subject to prevailing wages. CONTRACTOR is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7, if the Agreement is not a public works contract, if Agreement does not include a public works construction project of more than $25,000, or the Agreement does not include a public works alteration, demolition, repair, or maintenance (collectively, ‘improvement’) project of more than $15,000. OR Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the Agreement for this Project from the Director of the Department of Industrial Relations (“DIR”). Copies of these rates may be obtained at the Purchasing Division’s office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or su bcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. AA. DIR REGISTRATION. In regard to any public work construction, alteration, demolition, repair or maintenance work, CITY will not accept a bid proposal from or enter into this Agreement with CONTRACTOR without proof that CONTRACTOR and its listed subcontractors are registered with the California Department of Industrial Relations (“DIR”) to perform public work, subject to limited exceptions. City requires CONTRACTOR and its listed subcontractors to comply with the requirements of SB 854. CITY provides notice to CONTRACTOR of the requirements of California Labor Code section 1771.1(a), which reads: DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 9 Rev. March 29, 2018 “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for a n unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the Agreement is awarded.” CITY gives notice to CONTRACTOR and its listed subcontractors that CONTRACTOR is required to post all job site notices prescribed by law or regulation and CONTRACTOR is subject to SB 854-compliance monitoring and enforcement by DIR. CITY requires CONTRACTOR and its listed subcontractors to comply with the requirements of Labor Code section 1776, including: Keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by, respectively, CONTRACTOR and its listed subcontractors, in connection with the Project. The payroll records shall be verified as true and correct and shall be certified and made available for inspection at all reasonable hours at the principal office of CONTRACTOR and its listed subcontractors, respectively. At the request of CITY, acting by its project manager, CONTRACTOR and its listed subcontractors shall make the certified payroll records available for inspection or furnished upon request to the project manager within ten (10) days of receipt of CITY’s request. [For state- and federally-funded projects] CITY requests CONTRACTOR and its listed subcontractors to submit the certified payroll records to the project manager at the end of each week during the Project. If the certified payroll records are not produced to the project manager within the 10-day period, then CONTRACTOR and its listed subcontractors shall be subject to a penalty of one hundred dollars ($100.00) per calendar day, or portion thereof, for each worker, and CITY shall withhold the sum total of penalties from the progress payment(s) then due and payable to CONTRACTOR. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 10 Rev. March 29, 2018 Inform the project manager of the location of CONTRACTOR’s and its listed subcontractors’ payroll records (street address, city and county) at the commencement of the Project, and also provide notice to the project manager within five (5) business days of any change of location of those payroll records. BB. CONTRACT TERMS. All unchecked boxes do not apply to this Agreement. In the case of any conflict between the terms of this Agreement and the exhibits hereto or CONTRACTOR’s proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONTRACTOR’s proposal, the exhibits shall control. 9. INTELLECTUAL PROPERTY. The CONTRACTOR represents and warrants that all materials prepared under this Agreement are original or developed from materials in the public domain (or both) and that all materials prepared under and services provided under this Agreement do not infringe or violate any copyright, trademark, patent, trade secret, or other intellectual-property or proprietary right of any third party. All developments, inventions, creations, contributions, plans, designs, deliverables (including the Deliverables) and any and all other work product (whether in tangible media, electronic media or otherwise) that CONTRACTOR directly or indirectly develops (whether by itself or with others) in the course of this Agreement, or using Confidential Information (or any portion thereof) in the scope of Services belonging to or directly or indirectly provided by the CITY, or using facilities or other resources of the CITY if related to the CITY’s current or future business interests (all of the foregoing work product items collectively are the “work product”), shall be owned exclusively by the CONTRACTOR and shall include all rights, title and interest in and/or to any Deliverables (collectively, the “Deliverables”) whether or not created as part of the Services rendered by CONTRACTOR pursuant to this Agreement, and all patent, trademark, copyright and other intellectual property rights thereto. All such work product shall be deemed a “work made for hire” for the CONTRACTOR as author and owner to the fullest extent permitted by applicable law. To the extent that any portions of the work product are not eligible as a work made for hire, CITY hereby assigns and transfers entirely and irrevocably to the CONTRACTOR all rights, title and interest in and to the work product (including without limitation any and all intellectual property rights thereto and all goodwill associated therewith and symbolized thereby), in any and all media now or hereafter known, throughout the world and in perpetuity. CITY shall, in accordance with the terms herein at no out of pocket cost to City, reasonably assist CONTRACTOR with execution of documents and other efforts necessary or helpful for the CONTRACTOR’s registration, confirmation, enforcement, defense or maintenance of the CONTRACTOR’s intellectual property rights in and to the work product as contemplated herein. CITY hereby irrevocably waives any and all “moral rights” and similar rights now or hereafter existing in and to all work product developed under this Agreement. In addition, DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 11 Rev. March 29, 2018 CITY recognizes CONTRACTOR’s exclusive right, title, and interest in and to all service marks, trademarks, and trade names and other intellectual property directly or indirectly used by CONTRACTOR and CITY agrees not to directly or indirectly engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair CONTRACTOR’s exclusive right, title, and interest therein, nor shall CITY directly or indirectly cause diminishment of value of said trademarks or trade names or intellectual property through any ac t or representation. The CITY shall not apply for, use, acquire, or claim any right, title, or interest in or to any CONTRACTOR service marks, trademarks, or trade names, or other intellectual property that may be confusingly similar to any of them, through advertising or otherwise. Notwithstanding the other terms of this Section 9, CONTRACTOR is subject to the intellectual property rights of the United States Federal Transit Administration (“FTA”) as promulgated in the FTA’s Master Agreement, as amended by the FTA. Should the FTA assert its rights pursuant to the Master Agreement to CONTRACTOR’s intellectual property developed under this Agreement, CONTRACTOR shall transfer and/or license intellectual property to the FTA or otherwise comply with the FTA ’s requirements as detailed in the Master Agreement; provided that the Contractor’s platform shall at all times remain the exclusive property of Contractor. 10. CONFIDENTIAL INFORMATION; NO RESTRICTIONS. Except as permitted herein and subject to applicable laws, including any disclosure requirements impacting the City, each party agrees to preserve as confidential and hold in trust for the benefit of the other Party all Confidential Information (defined below) learned in connection with or related to this Agreement and/or CONTRACTOR’s engagement. Each Party will not directly or indirectly use or disclose Confidential Information outside the scope of Services or the delivery of the Deliverables of the other Party, regardless of why this Agreement ended. “Confidential Information” includes source code, library code, object code, know-how, deliverables, trade secrets, tech pack data and instructions, technical data, processes, designs, collection plans, graphic designs, sourcing, inventions, discoveries, applications, business plans, computer software designs and systems, routines and sub-routines, market studies, processing techniques, personally identifiable information, all intellectual property rights. If either Party requests, the non-requesting Party shall promptly return to the requesting Party or permanently destroy, or irretrievably delete and verify same in writing, as specified by the requesting Party, all of the requesting Party’s Confidential Information, together with all copies, extracts, notes or summaries thereof. 11. MARKETING. CONTRACTOR may use CITY’S name in CONTRACTOR’s marketing materials. CONTRACTOR may also use CITY’S logo (the “Marks”) in marketing materials, provided that CONTRACTOR has obtained CITY’S consent in connection with any such marketing materials use. Upon receipt of CITY’s DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 12 Rev. March 29, 2018 consent in connection with any such marketing materials use, CONTRACTOR may use the Marks only in compliance with this Agreement and only in compliance with CITY’s intellectual property policy, provided that a copy of same is timely delivered to CONTRACTOR. 12. LIMITATION OF LIABILITY. a. LIMITATION OF LIABILITY OF CITY. CITY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PAYMENT OF THE COMPENSATION PROVIDED FOR IN SECTION 5 (“COMPENSATION FOR ORIGINAL TERM”) OF THIS AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CITY BE LIABLE, REGARDLESS OF WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED IN CONNECTION WITH THIS AGREEMENT. b. LIMITATION OF LIABILITY OF CONTRACTOR. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR ELSEWHERE, IN NO EVENT SHALL CONTRACTOR BE LIABLE TO CITY FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OR FOR ANY LOSS OF PROFIT OR LOSS OF BUSINESS BY CITY, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH POTENTIAL CLAIM, LOSS OR DAMAGE. EXCEPT AS PROVIDED IN THE IMMEDIATELY FOLLOWING SENTENCE, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT OF CONTRACTOR TO CITY EXCEED TWO TIMES THE DOLLAR AMOUNT RECEIVED BY CONTRACTOR HEREUNDER FROM THE CITY. CONTRACTOR’S LIABILITY LIMIT SET FORTH HEREIN SHALL NOT APPLY TO (1) DAMAGES CAUSED BY CONTRACTOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (2) CONTRACTOR’S OBLIGATIONS TO INDEMNIFY AND DEFEND CITY PURSUANT TO SECTION O (“HOLD HARMLESS”) OF THIS AGREEMENT, (3) LIMIT CLAIMS OR GENERAL DAMAGES THAT FALL WITHIN THE INSURANCE COVERAGE OF THIS AGREEMENT, (4) STATUTORY DAMAGES SPECIFIED IN THIS AGREEMENT, AND (5) WRONGFUL DEATH CAUSED BY CONTRACTOR. 13. DISCLAIMER. SUBJECT TO THE WARRANTY PERIOD (DEFINED BELOW), THE SERVICES AND DELIVERABLES ARE DELIVERED “AS IS”, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING EXPRESSED OR IMPLIED AND/OR ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. 14. WARRANTY. Subject to the terms herein, Contractor warrants that the services contemplated hereunder shall materially perform and shall be free from DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 13 Rev. March 29, 2018 reasonable defects 30 days from delivery to CITY (the "Warranty Period"). Notwithstanding the foregoing or anything to the contrary contained herein, no warranty or any repair or replacement requirement shall apply or otherwise be available under the Agreement by Contractor and Contractor shall not be obligated to correct or address same if same results or arises from any modification, change and/or revision to the services or any part thereof unless such modifications, changes and/or revisions is made by Contractor or someone authorized by Contractor to perform them. 15.DATA SECURITY. Contractor shall follow all data security requirements imposed by the “Amended and Restated Agreement for Services of Independent Contractor” agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor as executed August 15, 2016 (attached as Exhibit E to this Agreement) and as amended. Such requirements include but are not limited to: Section 38 (“Handling of Confidential Information”), Section 43 (“Data Security”), and Section 44 (“Notice of Security Breach”). IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO RIGHT CLICK SOLUTIONS, INC. Approved as to form: DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 CEO Soren Eilertsen Jeffery Chernick Co-Founder City of Palo Alto General Services Agreement 14 Rev. March 29, 2018 EXHIBIT A SCOPE OF SERVICES A. Enterprise Commute Trip Reduction Core Platform This Scope of Services reflects the deliverables RideAmigos will provide under the Fair Value Commuting (FVC) grant for the enhanced development of its Enterprise Commute Trip Reduction (ECTR) core platform, RideAmigos Unity. The core platform includes: ● Localized trip planners with complete access to multimodal transportation options, including public transit, ridesharing, vanpooling, walking, cycling and more ● Interactive commuter dashboards that help users track vital information in a single, easily accessible place ● Innovative trip tracking options ● Mobility App data integrations ● Gamification and incentivization campaigns ● Complete survey management, distribution and analytics tools for administrators ● Ridesharing options ● GIS reporting tools B. Fair Value Commuting Custom Development Under the FVC grant, the City of Palo Alto has a total development budget of $104,000 for feature development of the RideAmigos Unity platform, suited to the pilot project goals. Additionally, RideAmigos will be providing an additional 20% engineering & development hours in-kind to the FVC pilot. This contract is a software development agreement for that scope of work. The FVC custom feature development will include: ● Payroll integration: Payroll export focused on meeting the needs of Bay Area pilots ● Parking Cashout/Feebate*: creation of the software feature to support the administration of the incentive program ● Commuter Wallet integration: a documented bi-directional data exchange mechanism (e.g., API) for interacting with the separate Commuter Wallet application, that is focused on exchanging trip tracking and fees/incentives data. ● Customized reporting to support the evaluation of the pilot program *The feebate pilot program aims to gain insights about the concept efficacy in a variety of organizations. Feebate allows for employers to operate a revenue-neutral incentive program to discourage the use of parking facilities and encourage the use of “alternative” modes of transportation with many potential benefits. The core ECTR RideAmigos platform paired with the FVC custom development will enable the ability to DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 15 Rev. March 29, 2018 facilitate the feebate pilots with the pilot participants. For individual participants, the program will minimally: Track the daily use of the parking facilities Maintain a ledger with: a. A fee for each day parked b. A credit for each day not parked Provide the accounting details for payroll processing Beyond the minimum requirements, the program should: Minimize participation effort/requirements Provide regular clear communications Measure the impact of behavior change Implementation RideAmigos will provide the interface and other supporting technologies to enable program participation, management, and reporting for each of the Pilot employers/worksites. The feature set rollouts and deliverable dates, as outlined in Exhibit B – Schedule of Performance, will in turn enhance the platform already licensed by San Mateo County (Commute.org) and other existing RideAmigos clients in the Bay Area region. Training, support, and licensing are already included in those contracts. Within the framework of those existing contracts, up to five pilot projects will be launched to test the enhancements funded by the FVC grant under the City of Palo Alto. Maintenance & Hosting Roll-out of small updates often occur daily in the interest of customer requests, language and feature enhancements, and possible bug fixes. Updates that will hinder or change our customer's current workflow will not be pushed without making it a customizable feature. Release notes detail the new features/fixes, and allow clients to request them to be turned on. Continuous monitoring of activity logs and fixes of any errors as they occur. Application upgrades and maintenance. Hosting on advanced cluster including application servers, database servers, trip planning servers and use of third-party APIs. Geo-isolated redundancy. Purchase and management of custom SSL certificate for your domain. Backup management: Dedicated servers- geo-isolated fail-over/ backup secure data centers. 24x7x365 server and support monitoring and maintenance with emergency contact information provided. 99.996% uptime SLA RideAmigos Academy Enrollment DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 16 Rev. March 29, 2018 The RideAmigos Academy is a space to collaborate with other transportation professionals to share ideas, solve common problems, and create solutions. It’s all the non-software benefits from RideAmigos, made available for the growth and development of your initiatives. Membership Details: Collaborate with RideAmigos and our partners to tighten up your programs and strategies Connect with other RideAmigos partners trying to solve similar problems Access shared materials, resources, and exclusive user-group events/discussions Join unlimited Coffee Talks (our webinar series), and create opportunities to present, share, and collaborate Receive real-time information, news and updates in the RideAmigos world Monthly updates from the Academy highlight new features and partners, announce upcoming events, and recognize the accomplishments of members Contribute ideas to the future development of the platform, programs, and opportunities ADDITIONAL SERVICES Upon written approval of the City pursuant to the conditions for Additional Services found in Section 5 (Compensation for the Original Term) to this Agreement, RideAmigos shall provide the following Additional Services at the rate listed below. At the time of execution of this Agreement, City authorizes one pilot at the rate of $15,450. City may, at its sole discretion, authorize up to two additional pilots (for a total of three pilots). Santa Clara County Pilots - $15,450/Pilot. RideAmigos is offering its ECTR core platform plus the FVC custom development for a lump sum fee of $15,450 per Santa Clara County pilot participant, for the duration of the of the agreement. The fee includes: ECTR Core Platform Development & License (refer to Exhibit A-A.) On-boarding, Support & Admin Training Maintenance & Hosting RideAmigos Academy Enrollment Fair Value Commuting Custom Development (refer to Exhibit A-B.) Fair Value Commuting Custom Development Schedule (refer to Exhibit B) On-boarding, Support & Admin Training Platform upgrades, including most future enhancements of RideAmigos web platform, including minor platform enhancements requested by Client that are completed “on the house” once deemed effective and minimal in scope. Customer support within 48 hours of support ticket submission with mobile access to our team. Platform design adjustments including placement of banners, multiple color and/or logo changes, dashboard reorganization. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 17 Rev. March 29, 2018 Pre-launch support with pilot plan including detailed guidance on strategies for challenges, incentives, recommended prizes/rewards, program structure. Monthly check-ins from your RideAmigos Account Manager. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 18 Rev. March 29, 2018 EXHIBIT B SCHEDULE OF PERFORMANCE CONTRACTOR shall perform the Services so as to complete each task within the time period specified below. The time to complete each task may be increased or decreased by mutual written agreement of the project managers for CONTRACTOR and CITY so long as all work is completed within the term of the Agreement. Upon request CONTRACTOR shall provide a detailed schedule of work consistent with the schedule below. Month Deliverable Payment Schedule (Amount of total) Phase 1 - Initial Onboarding and Baseline Data Collection Nov 1st, 2018 Hosted RideAmigos Service for Pilot Organizations ● Establish hosted service ● Obtain local transportation mode data ● Configure software to allow for user segmentation (pilot vs non-pilot users) $14,500 Pilot 1 Fee $15,450 November Invoice $29,950 Dec 1st, 2018 Onboard Pilot Organizations and Users ● Administrator training ● Rollout marketing / communications ● Baseline program configuration $14,500 Pilot 2 & 3 Fee (SUBJECT TO CITY’s ADDITIONAL AUTHORIZATION PURSUANT TO THE CONDITIONS FOR ADDITIONAL SERVICES FOUND IN SECTION 5 OF THIS AGREEMENT) $30,900 December Invoice $45,400 Jan 1st, 2019 Baseline Data Collection ● Commute tracking without Feebate $14,500 January Invoice $14,500 Phase 2 – Feebate Implementation Feb 1st, 2019 Feebate Program Implementation $14,500 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 19 Rev. March 29, 2018 ● Transportation Mode / Parking Tracking ● Customized for each Pilot Organization ● Program management ● Accounting and Audit ○ Payroll integrations (as applicable) ○ Manual CSV export/reporting ○ Automatic CSV export/reporting ○ Payroll platform integrations February Invoice $14,500 Mar 1st, 2019 Feebate Program Rollout ● Support materials ● End-user training ● Administrator training $14,500 March Invoice $14,500 Phase 3 – Data Collection and Reporting Apr 1st, 2019 Feebate Pilot Reporting Support ● Custom reporting for pilot program $3,500 April Invoice $3,500 May 1st, 2019 Maintenance/Support/Optimization $3,500 May Invoice $3,500 Jun 1st, 2019 Maintenance/Support/Optimization $3,500 June Invoice $3,500 Jul 1st, 2019 Maintenance/Support/Optimization $3,500 July Invoice $3,500 Aug 1st, 2019 Maintenance/Support/Optimization $3,500 August Invoice $3,500 Sept 1st, 2019 Maintenance/Support/Optimization $3,500 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 20 Rev. March 29, 2018 September Invoice $3,500 Oct 1st, 2019 Maintenance/Support/Optimization $3,500 October Invoice $3,500 Nov 1st, 2019 Maintenance/Support/Optimization $3,500 November Invoice $3,500 Dec 1st, 2019 Maintenance/Support/Optimization $3,500 December Invoice $3,500 Total Invoiced $150,350 Maintenance/Support/Optimization will include general on going minor updates that do not require, included but not limited to new Scope requirements, user support for all items related to this SOW, and continuous improvements to the platform as RA deems necessary for success. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 21 Rev. March 29, 2018 EXHIBIT C SCHEDULE OF FEES CITY shall pay CONTRACTOR according to the rate schedule in Exhibit B. The maximum amount of compensation to be paid to CONTRACTOR, including both payment for services and reimbursable expenses, shall not exceed the amounts set forth in Sections 5 and 6 of the Agreement. Any services provided or hours worked for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to CITY. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 22 Rev. March 29, 2018 EXHIBIT D INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 NO PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE AT THE FOLLOWING URL: https://www.planetbids.com/portal/portal.cfm?CompanyID=25569. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 23 Rev. March 29, 2018 A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 AMENDED AND RESTATED AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR TIDS AMENDED AND RESTATED AGREE:MENT FOR SERVICES OF INDEPENDENT CONTRACTOR (hereafter "Agreement") is effective as of June 30, 2016 and made by and between the Peninsula Traffic Congestion Relief Alliance (dlb/a Commute.org), having its principal place of business at 400 Oyster Point Blvd., Suite 409, South San Francisco, CA 94080 (hereafter "COMPANY"), and Right-Click Solutions, Inc. (d/b/a RideAmigos Corp.), having its principal place of business at 230 Pacific Street, Suite 202, Santa Monica, CA 90405 (hereafter "CONTRACTOR"), wherein CONTRACTOR agrees to provide and COMP ANY agrees to accept the services specified herein. WHEREAS, CONTRACTOR represents that it shall perform the services required by COMP ANY and COMP ANY desires to retain the services of CONTRACTOR pursuant to the terms, covenants, and conditions herein set forth; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: This Agreement is fully comprised of these terms and the Exhibits, which are incorporated herein by reference. The Exhibits to this Agreement follow and each is attached under separate cover: • Exhibit A: Scope of Services • Exhibit B: Pricing • Exhibit C: Insurance 1. DESIGNATED REPRESENTATIVES. John Ford at phone number 650-588-8170 is the representative of COMP ANY and will administer this Agreement for and on behalf of COMP ANY. Jeffrey Chernick at phone number 516-864-3189 is the authorized representative for CONTRACTOR. Changes in designated representatives shall be made only after prior written notice to the other party. 2. NOTICES. Any notice or consent required or permitted to be given under this Agreement shall be given to the respective parties in writing, by first overnight mail, postage prepaid, and delivered as follows (copies of all notices shall also be delivered via e-mail): To COMPANY: Peninsula Traffic Congestion Relief Alliance (d/b/a Commute.org) 400 Oyster Point Blvd., Suite 409 South San Francisco, CA 94080 Attention: John Ford, Executive Director Email: john@commute.org To CONTRACTOR: Right-Click Solutions, Inc. (dlb/a RideArnigos Corp.) 230 Pacific Street, Suite 202 Santa Monica, CA 90405 Attention: Jeffrey Chernick, Chief Executive Officer Email: jeff@rideamigos.com 12517064.2 EXHIBIT "E" “Amended and Restated Agreement for Services of Independent Contractor” agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor, executed August 15, 2016. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 or at such other address or to such other person that the parties may from time to time designate in accordance with this Notice section. Notices and consents under this section, which are sent by overnight mail, shall be deemed to be received two (2) days following their deposit for delivery. This Notices section shall not be construed as meaning that either party agrees to service of process except as required by applicable law. 3. SCOPE OF SERVICES. CONTRACTOR agrees to provide services to COMPANY in accordance with Exhibit A, attached hereto and incorporated herein by reference. 4. PROJECT MANAGERS. During the performance of this Agreement, the representative project managers for COMPANY and CONTRACTOR will be: COMPANY: John Ford, Executive Director CONTRACTOR: Jeffrey Chernick, CEO 5. COMPENSATION OF CONTRACTOR AND MANNER OF PAYMENT. In full consideration for CONTRACTOR's services, CONTRACTOR shall be paid for performance under this Agreement in accordance with the terms of Exhibit B attached hereto and incorporated herein by reference. Billing shall be made by invoice, which shall include the contract number assigned by COMP ANY and which is delivered to the address given in Section 2, above. Unless otherwise specified in Exhibit B, payment shall be net thirty (30) days from presentation of invoice. 6. TERM. CONTRACTOR shall commence performance after this Agreement has been executed and notice to proceed has been issued to CONTRACTOR by COMP ANY. Subject to the terms herein, the initial term of this Agreement shall be one year from the effective date hereof and shall automatically renew for successive one year terms; provided that commencing on or after July 1, 2017, either party can terminate this Agreement upon 90 days advance written notice to the other party. Notwithstanding any termination of this Agreement in accordance with the terms herein, COMPANY shall pay CONTRACTOR all fees and expenses for work performed in accordance with the terms of this Agreement, through and including the date of any termination of this Agreement. All work described herein shall be completed within the time period and according to the schedule specified in Exhibit A, unless otherwise directed in writing by COMP ANY or unless earlier terminated. 7. INSPECTION OF WORK. CONTRACTOR, and any subcontractors, shall permit COMP ANY the opportunity to reasonably review and inspect the project activities at all reasonable times during the performance period of this Agreement. 8. STAFFING. CONTRACTOR shall notify COMPAl'N in writing should CONTRACTOR's Project Manager change. 9. SUBCONTRACTING. All authorized subcontracts shall be approved in advance by COMP ANY, with the exception of subcontracts for service firms engaged in drawing, computer related work, reprographics, typing, and printing, and shall contain the same applicable provisions specified in this Agreement. The CONTRACTOR shall be solely responsible for reimbursing any subcontractors/subconsultants and the COMPANY shall have no obligation to them. 10. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. All services 2 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 performed by CONTRACTOR pursuant to this Agreement shall be performed in accordance with applicable laws. 11. CONTINGENCY FEES. CONTRACTOR warrants, by execution of this Agreement, that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by CONTRACTOR for the purpose of securing business. 12. RIGHTS TO USE. CONTRACTOR hereby grants COMP ANY a limited, terminable, nonexclusive, non-transferable, non-sublicensable, non-assignable, revocable right to use RideAmigos platform in connection with the scope of services provided in Exhibit A (the "Technology"). No license, right, or interest in any CONTRACTOR trademark, patent, trade name, service mark and/or any other intellectual property of Contractor's licensors or subcontractors is granted hereunder. Subject to and in accordance with the terms herein, COMP ANY may access the Technology and may also authorize the Company's network administrators access to the Technology on a limited as needed basis, provided COMP ANY remains exclusively liable and responsible for all such third party usage and compliance with the Agreement and any breach or violation resulting thereof. COMPANY will take necessary steps to ensure that no unauthorized persons or third parties have access to the Technology, and to ensure that no persons authorized to have such access will take any action that would violate this Agreement. Notwithstanding the foregoing, the limited license contemplated in this Section shall automatically and immediately terminate and be of no force or effect when this Agreement terminates (regardless of the reason for same) and COMP ANY agrees to immediately cease using and to direct its network administrators from using the Technology upon the termination of the Agreement. 13. INDEPENDENT CONTRACTOR. It is mutually understood and agreed that CONTRACTOR, (including any and all of its officers, agents, and employees), shall perform all of its services under this Agreement as an independent contractor as to COMP ANY and not as an officer, agent, servant, employee, joint venturer, partner, or associate of COMPANY. 14. STANDARD OF PERFORMANCE. CONTRACTOR represents that it has the skills, expertise, and licenses/permits necessary to perform the services required under this Agreement. Accordingly, CONTRACTOR shall perform all such services in the manner and according to the standards observed by a competent practitioner of the same profession in which CONTRACTOR is engaged. 15. DEBARMENT AND SUSPENSION. CONTRACTOR certifies to COMPANY that it and its employees and principals are not debarred, suspended, or otherwise excluded from or ineligible for, participation in federal, state or local government contracts. CONTRACTOR certifies that it shall not knowingly contract with a subcontractor that is so debarred or suspended. 16. TAXES. CONTRACTOR shall pay all taxes, levies, duties, and assessments of every nature due in connection with any work under this Agreement and shall make any and all payroll deductions required by law. COMP ANY shall not be responsible for paying any taxes on CONTRACTOR's behalf. 17. CONFLICT OF INTEREST. CONTRACTOR covenants that CONTRACTOR presently has no employment or interest and shall not acquire any employment or interest, direct or indirect, including any interest in any business, property, or source of income, which would conflict in any manner or 3 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 degree with the performance of services required to be performed under this Agreement. COMP ANY retains the right to waive a conflict of interest disclosed by CONTRACTOR if COMP ANY determines it to be immaterial, and such waiver is only effective if provided by COMP ANY to CONTRACTOR in writing. 18 .. INTELLECTUAL PROPERTY. The CONTRACTOR represents and warrants that all materials prepared under this Agreement are original or developed from materials in the public domain (or both) and that all materials prepared under and services provided under this Agreement do not infringe or violate any copyright, trademark, patent, trade secret, or other intellectual-property or proprietary right of any third party. All developments, inventions, creations, contributions, plans, designs, deliverables (including the Deliverables) and any and all other work product (whether in tangible media, electronic media or otherwise) that CONTRACTOR directly or indirectly develops (whether by itself or with others) in the course of this Agreement, in the scope of Services belonging to or directly or indirectly provided by the COMPANY, or using facilities or other resources of the COMPANY if related to the COMPANY's current or future business interests (all of the foregoing work product items collectively are the "work product"), shall be owned exclusively by the CONTRACTOR and shall include all rights, title and interest in and/or to any Deliverables (collectively, the "Deliverables") whether or not created as part of the Services rendered by CONTRACTOR pursuant to this Agreement, and all patent, trademark, copyright and other intellectual property rights thereto. All such work product shall be deemed a ''work made for hire" for the CONTRACTOR as author and owner to the fullest extent permitted by applicable law. To the extent that any portions of the work product are not eligible as a work made for hire, COMP ANY hereby assigns and transfers entirely and irrevocably to the CONTRACTOR all rights, title and interest in and to the work product (including without limitation any and all intellectual property rights thereto and all goodwill associated therewith and symbolized thereby), in any and all media now or hereafter known, throughout the world and in perpetuity. COMP ANY shall assist CONTRACTOR with execution of documents and other efforts necessary or helpful for the CONTRACTOR's registration, confirmation, enforcement, defense or maintenance of the CONTRACTOR's rights in and to the work product. CONTRACTOR hereby irrevocably waives any and all "moral rights" and similar rights now or hereafter existing in and to all work product. In addition, COMP ANY recognizes CONTRACTOR's exclusive right, title, and interest in and to all service marks, trademarks, and trade names and other intellectual property directly or indirectly used by CONTRACTOR and COMP ANY agrees not to directly or indirectly engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair CONTRACTOR's exclusive right, title, and interest therein, nor shall Company directly or indirectly cause diminishment of value of said trademarks or trade names or intellectual property through any act or representation. The COMP ANY shall not apply for, use, acquire, or claim any right, title, or interest in or to any CONTRACTOR service marks, trademarks, or trade names, or other intellectual property that may be confusingly similar to any of them, through advertising or otherwise. 20. INDEMNIFICATION. The CONTRACTOR shall indemnify, keep and save harmless the COMP ANY and its directors, officers, agents and employees against any and all suits, claims or actions arising only out of any of the following (A., B., C., below collectively, "Indemnifiable Claims"): A. Any injury to persons or property that may occur, or that may be alleged to have occurred, to the extent arising from the performance of this Agreement by the CONTRACTOR caused by a grossly negligent act or omission or willful misconduct of the CONTRACTOR or its employees, subcontractors, subconsultants or agents; or 4 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 B. Any allegation that materials or services provided by the CONTRACTOR under this Agreement infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual-property or proprietary right of any third party; or C. Any disclosure of Confidential Information. Subject to the terms herein, the CONTRACTOR further agrees to defend the Indemnifiable Claims and pay all reasonable and documented charges of attorneys and all other costs and expenses of defenses as they are incurred. Notwithstanding the foregoing or anything to the contrary contained herein, the CONTRACTOR shall not be held liable for any and all suits, claims rnr actions to the extent arising out of COMP ANY' s or its employees, agents, representative or officers negligence or willful misconduct. This Section will survive termination or expiration of this Agreement for a period of 12 months. 21. RECORDS, AUDIT, AND REVIEW. CONTRACTOR shall keep such business records pursuant to this Agreement as would be kept by a reasonably prudent practitioner of CONTRACTOR's profession and shall maintain such records for at least four ( 4) years following the termination of this Agreement. All accounting records shall be kept in accordance with generally accepted accounting practices. COMP ANY shall have the right to audit and review all such documents and records at any time during CONTRACTOR's regular business hours or upon reasonable notice. 22. INSURANCE. CONTRACTOR shall procure and maintain during the term of this Agreement insurance in accordance with the provisions of Exhibit C, attached hereto and incorporated herein by reference. 23. NONDISCRIMINATION. In connection with the performance of this Agreement, the CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, color, religion, citizenship, political activity or affiliation, national origin, ancestry, physical or mental disability, marital status, age, medical condition (as defined under California law), veteran status, sexual orientation, gender identity, gender expression, sex or gender (which includes pregnancy, childbirth, breastfeeding, or related medical conditions), taking or requesting statutorily protected leave, or any other characteristics protected under federal, state, or local laws. The CONTRACTOR shall take affirmative actions to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, disability, national origin, or any other characteristic protected under state, federal, or local laws. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONTRACTOR further agrees to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials. 24. NON-ASSIGNMENT. CONTRACTOR shall not assign, transfer or subcontract this Agreement or any of its rights or obligations under this Agreement without the prior written consent of COMP ANY, which consent shall not be unreasonably withheld, conditioned or delayed. 25. TERMINATION. 5 12517064.2 --------------- DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 1. For Non-appropriation of Funds. Notwithstanding any other prov1s1on of this Agreement, in the event that no funds or insufficient funds are appropriated or budgeted by federal, state or local governments, or funds are not otherwise available for payments in the fiscal year(s) covered by the term of this Agreement, then COMP ANY will notify CONTRACTOR of such occurrence and COMP ANY may terminate or suspend this Agreement in whole or in part. Subsequent to termination of this Agreement under this provision, COMP ANY shall have no obligation to make payments with regard to the remainder of the term. 2. For Convenience. After the expiration of the first year of this Agreement, COMP ANY shall have the right to terminate this Agreement at any time for cause or convenience by giving 90 days written notice to the CONTRACTOR. Upon receipt of such notice, the CONTRACTOR shall not commit itself to any further expenditure of time or resources. If the Agreement is terminated for convenience, the COMP ANY will pay to the CONTRACTOR in accordance with the provisions of Section 5 of this Agreement all sums actually due and owing from the COMP ANY for all services performed and all expenses incurred up to the day written notice of termination is given, plus any costs reasonably and necessarily incurred by CONTRACTOR to effect such suspension or termination. If COMP ANY pre- paid for a full year of services, CONTRACTOR shall refund, within 30 days, all amounts for un-used services as of the effective date of termination. 3. For Cause. Should CONTRACTOR be in material default in the performance of this Agreement or materially breach any of its provisions, COMPANY may, at COMP ANY's sole option, terminate or suspend this Agreement in whole or in part by written notice, provided that CONTRACTOR is given a reasonable opportunity of at least 30 days to cure any alleged default or breach as contemplated herein. Upon receipt of notice, CONTRACTOR shall immediately discontinue all services affected (unless the notice directs otherwise) and notify COMP ANY as to the status of its performance. The date of termination shall be the date the notice is received by CONTRACTOR, unless the notice directs otherwise. Should COMP ANY fail to pay CONTRACTOR all or any part of the payment set forth herein and in Exhibit B, CONTRACTOR may, at CONTRACTOR's option, terminate this agreement, if such failure is not remedied by COMP ANY within thirty (30) days of written notice to COMP ANY of such late payment. Upon termination, CONTRACTOR shall deliver to COMP ANY all data, estimates, graphs, summaries, reports, and all other property, records, documents or papers as may have been accumulated or produced by CONTRACTOR in performing this Agreement, whether completed or in process, except such items as COMP ANY may, by written permission, permit CONTRACTOR to retain and/or otherwise constitute CONTRACTOR'S intellectual property as contemplated herein. Notwithstanding any other payment provision of this Agreement, COMP ANY shall pay CONTRACTOR for services performed in accordance with the terms of this Agreement, to the date of termination to include a prorated amount of compensation due hereunder less payments, if any, previously made. If COMP ANY pre-paid for any services, CONTRACTOR shall refund, within 30 days, all amounts for un-used services as of the effective date of termination. 26. SECTION HEADINGS. The headings of the several sections, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof. 6 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 27. SEVERABILITY. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 28. REMEDIES NOT EXCLUSIVE. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. 29. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement and each covenant and term is a condition herein. 30. NO WAIVER OF DEFAULT. No delay or omission of either party to exercise any right or power arising upon the occurrence of any event of default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein. 31. ENTIRE AGREEMENT AND AMENDMENT. In conjunction with the matters considered herein, this Agreement contains the entire understanding and agreement of the parties and amends and restates in the entirety the prior agreement between the parties and it is agreed and understood that there have been no promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature hereafter binding except as set forth herein. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, canceled, superseded, or changed by any oral agreements, course of conduct, waiver or estoppel. 32. SUCCESSORS AND ASSIGNS. All representations, covenants and warranties set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns. 33. CALIFORNIA LAW AND JURISDICTION. Subject to the Arbitration Section of this Agreement, this Agreement shall be governed by the laws of the State of California. Any litigation regarding this Agreement or its contents shall be filed in the County of Santa Barbara, if in State court, or in the federal district court nearest to Santa Barbara County, if in federal court. 34. EXECUTION OF COUNTERPARTS. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the parties shall preserve undestroyed, shall together constitute one and the same instrument. 35. AUTHORITY. All signatories and parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles and capacities herein stated and on behalf of any entities, persons, or firms represented or purported to be represented by such 7 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 entity(ies), person(s), or firm(s) and that all formal requirements necessary or required by any State and/or federal law in order to enter into this Agreement have been fully complied with. Furthermore, by entering into this Agreement, each party hereby warrants that it shall not have breached the terms or conditions of any other contract or agreement to which it is obligated, which breach would have a material effect hereon. 36. SURVIVAL. All provisions of this Agreement which by their nature are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration. 37. PRECEDENCE. In the event of conflict between the provisions contained in the numbered sections of this Agreement and the provisions contained in the Exhibits, the provisions of the numbered sections shall prevail over those in the Exhibits. 38. HANDLING OF CONFIDENTIAL INFORMATION. (I) CONTRACTOR understands and agrees that certain information which CONTRACTOR may have access to while performing services under this Agreement will be Confidential Information, which can include personally identifiable information ("PIT"). PIT is any information that identifies or describes a person or can be directly linked to a specific individual, including ridership data. Examples of PIT include, but are not limited to, name, address, phone or fax number, signature, date of birth, e-mail address, method of payment, ridership and travel pattern data. COMP ANY PIT, means any PIT relating to the COMP ANY's customers. COMP ANY PIT and confidential information shall collectively be referred to as "Confidential Information" throughout the Agreement. Confidential Information is subject to the following special provisions: A. CONTRACTOR shall not disclose Confidential Information to any other persons or entities, except with the express written consent of COMP ANY. COMP ANY will identify information as confidential by any of the following means: 1. marking the information as confidential when it is disclosed to CONTRACTOR; 2. identifying the information as confidential, if the information is resident on equipment being serviced or used by CONTRACTOR and is needed to perform the services contracted for; or 3. if orally disclosed, reduced to a written summary similarly marked and delivered to CONTRACTOR within ten (10) days after disclosure by COMPANY. B. CONTRACTOR will take all steps reasonable to prevent disclosure of Confidential Information to any person except those personnel of CONTRACTOR working on the project who have a need to have access to the information. CONTRACTOR may not knowingly use or knowingly attempt to use any such information in any manner that may injure or cause loss directly to the COMP ANY. C. CONTRACTOR agrees to comply with the information handling and confidentiality requirements outlined in the California Information Practices Act (Civil Code sections 1798 et. seq.) and all applicable statutes, rules, regulations and orders of the United States and the State of California. In addition, CONTRACTOR must maintain policies and programs that prohibit unauthorized disclosure of Confidential Information and promote training and awareness of information security policies and practices. CONTRACTOR must limit access to computers and networks that host Confidential Information, including without limitation through user credentials and strong passwords, data encryption both during transmission and at rest, firewall rules, and network-based intrusion detection systems. 8 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 OUT OF CONTRACTOR 'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (3) DAMAGES DIRECTLY ARISING OUT OF CONTRACTOR'S INTELLECTUAL PROPERTY INFRINGEMENT, AND (4) CONTRACTOR'S UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION. FOR PURPOSES OF THIS AGREEMENT, A "REIMBURSEMENT OCCURRENCE" SHALL MEAN A SITUATION WHERE CONTRACTOR FAILS TO DELNER FIVE YEARS OF SERVICES WHICH WERE PAID IN ADVANCE BY COMPANY AND IN SUCH AN EVENT, COMPANY WOULD ENTITLED TO SEEK FROM CONTRACTOR A PRORATED REIMBURSEMENT OF ANY FEES PAID IN ADVANCE PROPORTIONAL TO THE AMOUNT OF TIME THAT THE SERVICES WERE NOT DELIVERED. FOR EXAMPLE AND FOR ILLUSTRATION PURPOSES ONLY: IF THE SITE OR CONTRACTOR'S BUSINESS SHUTS DOWN PERMANENTLY IN 36 MONTHS, COMPANY WOULD RECEIVE A REFUND FOR THE REMAINING 24 MONTHS ($20,000 X 2 = $40,000) OF THE AGREEMENT. 40. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE DELIVERED "AS IS", "WITH ALL FAULTS" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING EXPRESSED OR IMPLIED AND/OR ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 41. ARBITRATION. The parties agree that if any dispute, controversy, or claim arising out of or in connection with this Agreement cannot be resolved to the satisfaction of the parties involved in any such dispute, controversy, or claim within thirty days (or such longer period as may be agreed upon in writing) from the date that any party notifies the other party in writing that such dispute, controversy, or claim exists, then the parties agree to the fullest extent permitted by applicable law that any dispute relating to this Agreement and/or all of the matters contemplated herein shall be exclusively and finally resolved by binding arbitration conducted by and pursuant to JAMS ("JAMS") Rules and Procedures then in effect except as set forth herein before an arbitrator selected by the parties involved in any dispute, controversy, or claim. If the parties cannot agree on an arbitrator, each parties shall select one arbitrator and said arbitrators shall then select an arbitrator to arbitrate the dispute, who shall then arbitrate the dispute. The parties agree to file any such arbitration in San Mateo, California and agree to take and shall direct JAMS to take all necessary steps to conduct any JAMS arbitration only via teleconference (i.e., telephone) and written correspondence (including e-mail) to the fullest 1extent practicable and possible. Each party shall be responsible to pay their own legal fees and expenses as well as such party's pro rata portion of all arbitration fees and expenses, provided that the parties agree that the prevailing party in any arbitration under this Section shall be reimbursed by the other party all of its reasonable attorneys' fees and expenses, the fees and expenses of JAMS' and arbitration fees and expenses as well as all of the arbitrator's fees and expenses and except as expressly provided in this sentence as it relates to the prevailing party. The arbitrator shall take all reasonable steps to render his/her decision in writing within ninety days of the commencement of the arbitration proceeding. The decision of the arbitrator shall be final and binding on the parties, their respective successors, assigns and heirs. Judgment rendered by the arbitrator may be entered in any court having jurisdiction. The parties agree that any arbitration proceeding conducted in connection with this Agreement, any arbitration related papers, arbitration decision, arbitration award as well as this Agreement and contents thereof shall be and shall at all times remain completely confidential and, except as may be required by applicable laws, shall not be directly or indirectly disclosed to any third party and/or otherwise published in any medium (including anywhere on the Internet and/or on any blog). 10 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 42. WARRANTY. Contractor warrants that the services contemplated hereunder shall perform and shall be free from reasonable defects 30 days from delivery to COMPANY (the "Warranty Period"). Notwithstanding the foregoing or anything to the contrary contained herein, no warranty or any repair or replacement requirement shall apply or otherwise be available under the Agreement by Contractor and Contractor shall not be obligated to correct or address :same if same results or arises from any modification, change and/or revision to the services or any part thereof unless such modifications, changes and/ or revisions is made by Contractor or someone authorized by Contractor to perform them. 43. DATA SECURITY. CONTRACTOR must provide those administrative, physical, and technical safeguards for protection of the security, confidentiality, integrity, and availability of Confidential Information pursuant to the minimum standards of care recommended by the California Attorney General in her February, 2016 report (See https://oag.ca.gov/breachreport2016). In addition: A. CONTRACTOR, its employees, agents, Subcontractors, and consultants may not download or otherwise store any Confidential Information onto any CONTRACTOR computer, desktop, laptop, thumb drives, disks, or other portable memory device without such data being encrypted. B. CONTRACTOR must process and store all Confidential Information in a single-tenant environment and at no time will Confidential Information be commingled with data of independent third- party users of Contractor's services. C. The CONTRACTOR represents that the CONTRACTOR's management access to the hosting infrastructure is limited to authorized support staff. This Section will survive termination or expiration of this Agreement for a period of 12 months. 44. NOTICE OF SECURITY BREACH CONTRACTOR shall as soon as practicable after it discovers that there has been a data security incident that has or may have resulted in compromise to Confidential Information. In the event of an unauthorized disclosure of Confidential Information, CONTRACTOR will be liable for paying for the following costs to remediate any such unauthorized disclosure, including: A. The reasonable cost of providing notice of the breach to individuals affected by such breach; B. The reasonable cost of providing required notice of the breach to government agencies, credit bureaus, and/or other required entities; C. Any other service required by applicable law. This Section will survive termination or expiration of this Agreement for a period of 12 months. 11 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 IN WITNESS WHEREOF, the parties have executed this AMENDED AND RESTATED AGREEMENT FOR SERVICES OF INDEPENDENT CONTRACTOR to be effective as of June 30, 2016. COMPANY: PENINSULA TRAFFIC CONGESTION RELIEF ALLIANCE (D/B/A COMMUTE.ORG) JohnFord Executive Director CONTRACTOR RIGHT-CLICK SOLUTIONS, INC. (D/B/A RIDEAMIGOS CORP.) rk-7 Jeffrey Chemi Chief Executive Officer 12 12517064.2 DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 rideamigos 0 p Exh a-. H.J of 1. Definitions and Basic Terms: 1.1. Definition: "Consultant" = "RideAmigos Corp" 1.2. Defintion: "RASP"= "RideAmigos Software Platform" 1.3. The following document will provide the contractual requisites for what Consultant will deliver to and/or facilitate for Client. 1.4. Hierarchy of System Users 1.4.1. Level 1 Admin = Client/Super Admin 1.4.2. Level 2 Admin = Network Admin 1.4.3. Level 3 User= General Users 1.5.1. Program networks: formed around promotions or special programs. (e.g. "36 Prize Riders" and "Every Trip Counts.") 1.5.2. Organizational networks: managed by organizations (e.g. company, church, university ETCs). Based on organization name and location, Employers may have multiple locations. Add Sub Networks -e.g. different office locations or employee classifications such as full time or part time. 1.5.3. Office park or building networks. A cluster of organizational networks, and/or non-networked employees, that share the same office park or building: May include multiple address- es/buildings (e.g. "West Office Park," "Union Boulevard," etc ... ). 1.5.4. Schoolpool network: a school network designed for use with the tracking platform Confidential Material: The information contained herein is confidential information in each & every respect & is the property of Ride- Amigos. This information may not be reproduced in whole, or in part, by photocopying or other means without RideAmigos' prior writ- ten consent, which consent may be withheld in RideAmigos' sole and absolute discretion. rideamlgoscoRP DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 2. Web Presence, 2.1. A!! public tools and functions to exist on the client domain 2.2. Host all of its own tools and functions on Consultant's servers. 2.3. Work with Client's design team to make sure its functions are branded (exclusively as in order to maintain "fluidity" Client with special attention to consistency and clean with Client website 2.4. Ensure that rideshare matching, tracking, and !eaderboards are into the Client website, and accessible via all devices using modern browsers (i.e. Safari, Internet Explorer, Chrome and Firefox). 2.4.1. We officially support the two most recent versions of each browser in order to allow for the best for our users 2.5. Provide a completely mobile interface, which is readable and clear to interact with, on all major mobile and tablet browsers flash). 2.6. Administrative functions will exist on the RASP. 2.7. Level I and Level II Admin can modify information location, description, customURL, and 3. Social Media, Badgess 3.1. via Facebook any network's details (ie. Trip Planner 3.2. Share and via social media Facebook and Twitter via copy/pastable URL. 3.3. Earn "badges" for using alone travel modes via Consultant's current virtual badge system 3.4. Share via Facebook or Twitter. 3.5. Share link to "join my via Facebook or Twitter. Links will be sent out so others can click and contact the user through Consultant's too!. 3.6. Gaming/Competitions leaderboards to be included: 4. Data Migration 4.1.1. Needs to be imported one time only, not 4.1.2. Front load/transfer all records (active and into Consultant's system. 4.1.3. Old records will be transferred, but users won't be active until they click a confirmation link in their email, at which time, their passwords will be reset. Those who do not confirm, will remain inactive/archived 4.1.4. Consultant will sample of user data to match against. 4.1.5. Fields to process: 4.1.5.1. First name, Last name, 4.1.5.2. Home origin, Work destination -actual addresses or intersection 4.2.1. Level I Admin will upload regularly. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 RIDEA-1 OP ID: CC Ae,RD' Exhibit C: CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) 02/08/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: NFP Property & Casualty PHONE I FAX Services, Inc. IA/C No Extl: IAIC, Nol: 707 Westchester Ave., Ste 201 E-MAIL White Plains, NY 10604 ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURER A : Travelers Prop.Gas.Co.of Amer. 25674 INSURED Ride Amigos INSURER B: Travelers Indemnity Co. of Ct. 25682 Right-Click Solutions Inc. INSURER c: Beazley Group 230 Pacific Street #202 Santa Monica, CA 90405 INSURERD: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER· REVISION NUMBER THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL LIMITS LTR IN"D WVD POLICY NUMBER A x COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 -"::=] CLAIMS-MADE 0 OCCUR ZLP12R13322 01110/2016 01/10/2017 DAMAGE TO RENTED 300,000 PREMISES (Ea occurrence\ $ MED EXP (Any one person) $ 10,000 - PERSONAL & ADV INJURY $ 1,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 Fl DPRO-Owe 2,000,000 POLICY JECT PRODUCTS -COMP/OP AGG $ OTHER: Emp Ben. $ 1,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 (fa accident\ - B ANY AUTO BA3028X757 01/10/2016 01/10/2017 BODILY INJURY (Per person) $ -ALL OWNED -SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ -x NON-OWNED PROPERTY DAMAGE x HIRED AUTOS AUTOS (Per accident) $ - $ x UMBRELLA LIAB M OCCUR EACH OCCURRENCE $ 1,000,000 - A EXCESS LIAB CLAIMS-MADE ZUP15S70951 01/10/2016 01/10/2017 AGGREGATE $ 1,000,000 DED I x I RETENTION$ 10000 $ WORKERS COMPENSATION I PER I I OTH- AND EMPLOYERS' LIABILITY STATUTE ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ c E&O incl Cyber V114A9130301 01/10/2016 01/10/2017 EachClaim 2,000,000 & Network Security 01110/2016 01/10/2017 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION SANTA16 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Santa Barbara County ACCORDANCE WITH THE POLICY PROVISIONS. Association of Governments 260 N Antonio Rd. Suite B AUTHORIZED REPRESENTATIVI: Santa Barbara, CA 93110 I © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 25 Rev. March 29, 2018 EXHIBIT F FTA REQUIREMENTS CONTRACTOR agrees to follow all federal laws and regulations, including applicable provisions of the Federal Transit Administration’s (FTA) Master Agreement, as updated by the FTA from time to time. This includes adhering to those sections of the Master Agreement in which Third Party Participants or Third Party Contracts are required to comply with or contain, respectively. These provisions include, but are not limited to, the following sections of the FTA Master Agreement, dated October 1, 2017, and as may be updated by the FTA, and are made part of this Exhibit by reference: Section 3.i.(6) Notice to Third Party Participants. Section 4.a. Standards of Conduct. Section 4.b. Debarment and Suspension. Section4.d. Lobbying Restrictions. Section4.g. Trafficking in Persons. Section 7.b. Eligible Costs. Section 9.a. Types of Records. Section 9.c. Access to Recipient and Third Party Participant Records. Section 9.d. Access to the Sites of Performance. Section 9.e. Closeout. Section 12. Civil Rights. (the entire section). Section 16.d(7). Clean Air Act and the Federal Water Pollution Control Act, as amended. Section 16.d(9). Byrd Anti-Lobbying Amendment. Section 16.s. Access to Third Party Contract Records. Section 18. Rights in Data and Copyrights (the entire section). Section 24.b. Awards Not Involving Construction (Employee Protections) Section 24.c. Awards Involving Commerce Section 26. Environmental Protections (entire section). Section 35.b. Alcohol Misuse and Prohibited Drug Use. Section 36. Protection of Sensitive Security and Other Sensitive Information. Section 38. Freedom of Information. DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 City of Palo Alto General Services Agreement 26 Rev. March 29, 2018 As of the date of execution of this Agreement, the FTA Master Agreement can be found at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grantee- resources/sample-fta-agreements/114766/fta-master-agreement-fy2018.pdf DocuSign Envelope ID: 67525F65-D282-4468-8C35-CDABBAED7A14 Certificate Of Completion Envelope Id: 67525F65D28244688C35CDABBAED7A14 Status: Completed Subject: Please DocuSign: C19173099 Right Click Solutions Contract.pdf Source Envelope: Document Pages: 39 Signatures: 2 Envelope Originator: Certificate Pages: 2 Initials: 0 Christopher Anastole AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 chris.anastole@cityofpaloalto.org IP Address: 12.220.157.20 Record Tracking Status: Original 11/28/2018 7:03:11 AM Holder: Christopher Anastole chris.anastole@cityofpaloalto.org Location: DocuSign Security Appliance Status: Connected Pool: City of Palo Alto Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign Signer Events Signature Timestamp Soren Eilertsen soren@rideamigos.com CEO Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 98.173.199.124 Sent: 11/28/2018 7:11:10 AM Viewed: 11/28/2018 5:19:22 PM Signed: 11/28/2018 5:23:52 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Jeffery Chernick jeff@rideamigos.com Co-Founder Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 47.151.135.160 Sent: 11/28/2018 5:23:59 PM Viewed: 11/28/2018 5:59:34 PM Signed: 11/28/2018 6:00:57 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Hillary M Rupert hillarymrupert@gmail.com x Security Level: Email, Account Authentication (None) Sent: 11/28/2018 6:00:59 PM Viewed: 11/28/2018 6:21:31 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 11/28/2018 6:00:59 PM Certified Delivered Security Checked 11/28/2018 6:00:59 PM Signing Complete Security Checked 11/28/2018 6:00:59 PM Completed Security Checked 11/28/2018 6:00:59 PM Payment Events Status Timestamps Professional Services Rev. April 27, 2018 1 CITY OF PALO ALTO CONTRACT NO. C19173097 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND SPUR FOR PROFESSIONAL SERVICES This Agreement is entered into on this 26th day of November, 2018, (“Agreement”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and SPUR, a Non-Profit Organization, located at 654 Mission Street, SF, CA. 94105 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to implement Fair Value Commuting (FVC) (“Project”) and desires to engage a consultant to provide subject matter expertise in connection with the Project (“Services”). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit “A”, attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions, in this Agreement, the parties agree: AGREEMENT SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described at Exhibit “A” in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. SECTION 2. TERM. The term of this Agreement shall be from September 1 2018, through December 31, 2019 unless terminated earlier pursuant to Section 19 of this Agreement. SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit “B”, attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 2 prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit “A” (“Basic Services”), and reimbursable expenses, shall not exceed one hundred thousand Dollars ($100,000). CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. In the event Additional Services are authorized, the total compensation for Basic Services, Additional Services and reimbursable expenses shall not exceed zero Dollars ($0). The applicable rates and schedule of payment are set out at Exhibit “C-1”, entitled “HOURLY RATE SCHEDULE,” which is attached to and made a part of this Agreement. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “C”. CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit “A”. SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses), based upon the CONSULTANT’s billing rates (set forth in Exhibit “C- 1”). If applicable, the invoice shall also describe the percentage of completion of each task. The information in CONSULTANT’s payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City’s project manager at the address specified in Section 13 below. The CONSULTANT also agrees to include its in-kind services as part of the regular monthly invoices. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT’s supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 3 similar circumstances. SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT is solely responsible for costs, including, but not limited to, increases in the cost of Services, arising from or caused by CONSULTANT’s errors and omissions, including, but not limited to, the costs of corrections such errors and omissions, any change order markup costs, or costs arising from delay caused by the errors and omissions or unreasonable delay in correcting the errors and omissions. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds ten percent (10%) of CITY’s stated construction budget, CONSULTANT shall make recommendations to CITY for aligning the PROJECT design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY. SECTION 10. INDEPENDENT CONTRACTOR. It is understood and agreed that in performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULTANT’s obligations hereunder without the prior written consent of the city manager. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the city manager will be void. SECTION 12. SUBCONTRACTING. Option A: No Subcontractor: CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the city manager or designee. Option B: Subcontracts Authorized: Notwithstanding Section 11 above, CITY agrees that subconsultants may be used to complete the Services. The subconsultants authorized by CITY to perform work on this Project are: n/a CONSULTANT shall be responsible for directing the work of any subconsultants and for any compensation due to subconsultants. CITY assumes no responsibility whatsoever concerning compensation. CONSULTANT shall be fully responsible to CITY for all acts and o missions of a DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 4 subconsultant. CONSULTANT shall change or add subconsultants only with the prior approval of the city manager or his designee. SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Ratna Amin as the Project Supervisor to have supervisory responsibility for the performance, progress, and execution of the Services and Sarah Jo Szambelan as the Principal Investigator / Project Director to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, project coordinator, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY’s project manager. CONSULTANT, at CITY’s request, shall promptly remove personnel who CITY finds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. CITY’s project manager is Hillary Rupert, Office of the City Manager and Sustainability Department, Palo Alto, CA 94303, Telephone: 650-776-9208. The project manager will be CONSULTANT’s point of contact with respect to performance, progress and execution of the Services. CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. CONSULTANT SHALL remain and be the sole owner of all materials, data, work product, intellectual property, results, reports, research, methods, drawings, and any other information of CONSULTANT’S existing prior to the effective date of this Agreement and conceived, developed, or made by CONSULTANT, whether solely or jointly, in the course of providing the Services stated in Exhibit A. CONSULTANT shall be the sole owner of the deliverables produced in the course of providing the Services described in Exhibit A, but agrees to and hereby grants to the CITY a perpetual non-exclusive license to use in any manner that furthers the purpose of the Project the white paper deliverable produced in the course of providing the Services. This includes but is not limited to: (1) disclosure to and use by the United States Federal Transit Administration (“FTA”) pursuant to the terms of the FTA’s Master Agreement (as may be amended by the FTA), and (2) disclosure to the public. CITY shall not sub-license or sell the white paper or any of the methods, ideas, processes, recommendations, or strategies contained in the white paper. SECTION 15. AUDITS. CONSULTANT will permit CITY to audit, at any reasonable time during the term of this Agreement and for three (3) years thereafter, CONSULTANT’s records pertaining to matters covered by this Agreement. CONSULTANT further agrees to maintain and retain such records for at least three (3) years after the expiration or earlier termination of this Agreement. SECTION 16. INDEMNITY. 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 5 of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT’s services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement. SECTION 17. WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. SECTION 18. INSURANCE. 18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "D". CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best’s Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution of this Agreement. The certificates will be s ubject to the approval of CITY’s Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification. If the insurer cancels or modifies the insurance and provides less than thirty (30) days’ notice to CONSULTANT, CONSULTANT shall provide the Purchasing Manager written notice of the cancellation or modification within two (2) business days of the CONSULTANT’s receipt of such notice. CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY’s Chief DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 6 Procurement Officer during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The City Manager may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19.2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY. 19.3. Upon such suspension or termination, CONSULTANT shall deliver to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 19.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 10 days after giving notice) of suspension or termination; provided, however, if this Agreement is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY as such determination may be made by the City Manager acting in the reasonable exercise of his/her discretion. The following Sections will survive any expiration or termination of this Agreement: 14, 15, 16, 19.4, 20, and 25. 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 20. NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: To CITY: Office of the City Clerk City of Palo Alto DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 7 Post Office Box 10250 Palo Alto, CA 94303 With a copy to the Purchasing Manager To CONSULTANT: Attention of the project director at the address of CONSULTANT recited above SECTION 21. CONFLICT OF INTEREST. 21.1. In accepting this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 21.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ subconsultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 21.3. If the Project Manager determines that CONSULTANT is a “Consultant” as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person due to that person’s race, skin color, gender, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, pregnancy, genetic information or condition, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with the CITY’s Environmentally Preferred Purchasing policies which are available at CITY’s Purchasing Department, incorporated by reference and may be amended from time to time. CONSULTANT shall comply with waste reduction, reuse, recycling and disposal requirements of CITY’s Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In particular, CONSULTANT shall comply with the following zero waste requirements: (a) All printed materials provided by CCONSULTANT to CITY generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 8 printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by CITY’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or greater post- consumer material and printed with vegetable based inks. (b) Goods purchased by CONSULTANT on behalf of CITY shall be purchased in accordance with CITY’s Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Division’s office. (c) Reusable/returnable pallets shall be taken back by CONSULTANT, at no additional cost to CITY, for reuse or recycling. CONSULTANT shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. SECTION 24. COMPLIANCE WITH PALO ALTO MINIMUM WAGE ORDINANCE. CONSULTANT shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONSULTANT shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONSULTANT shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060. SECTION 25. NON-APPROPRIATION 25.1. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 26. PREVAILING WAGES AND DIR REGISTRATION FOR PUBLIC WORKS CONTRACTS 26.1 This Project is not subject to prevailing wages. CONSULTANT is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7 if the contract is not a public works contract, if the contract does not include a public works construction project of more than $25,000, or the contract does not include a public works alteration, demolition, repair, or maintenance (collectively, ‘improvement’) project of more than $15,000. OR 26.1 CONSULTANT is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 9 Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations (“DIR”). Copies of these rates may be obtained at the Purchasing Division’s office of the City of Palo Alto. CONSULTANT shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. CONSULTANT shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. 26.2 CONSULTANT shall comply with the requirements of Exhibit “E” for any contract for public works construction, alteration, demolition, repair or maintenance. SECTION 27. MISCELLANEOUS PROVISIONS. 27.1. This Agreement will be governed by the laws of the State of California. 27.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California. 27.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorneys’ fees paid to third parties. 27.4. This document represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 27.5. The covenants, terms, conditions and provisions of this Agreement will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 27.6. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. 27.7. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be a part of this Agreement. 27.8 In the event of a conflict between the terms of this Agreement and the DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 10 exhibits hereto or CONSULTANT’s proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONSULTANT’s proposal, the exhibits shall control. 27.9 If, pursuant to this contract with CONSULTANT, CITY shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5(d) about a California resident (“Personal Information”), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City’s express written consent. 27.10 All unchecked boxes do not apply to this Agreement. 27.11 The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 27.12 This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 11 CONTRACT No. C19173097 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO ____________________________ City Manager APPROVED AS TO FORM: __________________________ City Attorney or designee CONSULTANT SPUR Officer 1 By: Name: Gabriel Metcalf Title: President and CEO Officer 2 (Required for Corp. or LLC) By: Name: Alicia Jean-Baptist Title: Deputy Director Attachments: EXHIBIT “A”: SCOPE OF SERVICES EXHIBIT “B”: SCHEDULE OF PERFORMANCE EXHIBIT “C”: COMPENSATION EXHIBIT “C-1”: SCHEDULE OF RATES EXHIBIT “D”: INSURANCE REQUIREMENTS EXHIBIT “E”: FTA REQUIREMENTS DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 12 EXHIBIT “A” SCOPE OF SERVICES Organizational background SPUR is a member-supported nonprofit organization. Through research, education and advocacy, SPUR promotes good planning and good government in the San Francisco Bay Area. We have offices in San Francisco, Oakland and San Jose. www.spur.org SPUR’s is the Bay Area’s leading policy organization devoting to finding solutions to planning and governance problems. SPUR brings a lens that is independent, nonpartisan and evidence- based – and rooted in regionalism. Our vision is to bring about a metropolis that provides opportunity for connection, diversity and economic growth while reducing our impact on the planet. We have a track record of taking on the most difficult, most important challenges, often in areas where others have failed. SPUR has recently completed several major research projects which lead the organization to be optimally positioned to support the City of Palo Alto Bay Area Fair Value Commuting Demonstration: Seamless Transit, Fossil-Free Bay Area, and Freedom to Move. Project overview The goal of this project is to arrive at the best way to price driving in the Bay Area, as well potential paths to get there. SPUR will analyze the tradeoffs in different options, including the effectiveness of policies to change driving behavior, ease and pragmatism of implementation, political viability at multiple levels of government, how each would likely affect people and businesses. SPUR will conduct a broad literature review, and conduct interviews and quantitative research to produce a white paper on Bay Area pricing options and their tradeoffs. This process will utilize SPUR’s robust peer review process which includes review by technical and policy experts, decision makers and professional editing. In particular, the production and process of the white paper fall into these types of activities: Literature review and initial interviews: SPUR aims to conduct a literature review and to interview a minimum of 6 technical and policy experts to understand lessons learned in transportation priding from contexts around the world, past efforts to price transportation in the Bay Area and the legal and governance context for any future transportation pricing in the region. (SPUR will continue to engage these experts throughout the process, as outlined below under Stakeholder Engagement. The initial interviews aim to get the research started in the most informed direction possible, while the remaining engagement aims to vet ideas, findings, tradeoffs and policy recommendations.) Quantitative baseline analysis: SPUR will also amass data for analyzing baseline commute patterns and conditions. Data sources could include: demographics, commute patterns and travel cost in the Bay Area. This baseline will serve to inform SPUR on the DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 13 areas and travel patterns that may be well suited to transportation pricing and those that would not. Scenarios, tradeoffs and recommendations: The baseline analysis will feed into the creation of distinct scenarios for transportation pricing as well as an analysis of those tradeoffs. Ultimately, SPUR’s research will result in distinct scenarios of what pricing policies could look like in the future, considering questions like: What should be priced? (E.g. bridge access, lanes, parking, and/or vehicle miles traveled) Where in the region should we apply a price? What is the price and how should it change over time? How should the payment work? (E.g. what’s the point of transaction, what are the payment method options? How should the transaction feel to users?) What geography / jurisdiction should collect and enforce payments? How can revenue be recycled to offset any regressiveness? The scenarios will reflect the different combinations of answers to these questions. For example, using scenarios SPUR may explore the tradeoffs between tolling a highway in a particular area versus raising parking rates in that same area, or the effect of cordon pricing for one city versus another. These scenarios will help SPUR draw policy recommendations about what to price where, how to price it and how to use revenue – all in the service of making people better off. In particular, SPUR will evaluate scenarios based on criteria such as: the effectiveness of policies to change driving behavior, ease and pragmatism of implementation, political viability at multiple levels of government, how each would likely affect people and businesses. For the portion of the research that aims to explore how the payment should work or how messaging affects people’s willingness to accept new pricing policies, SPUR may partner with a probono design partner to come up with a design approach to payment options. The white paper will contain the lessons learned from the literature review and interviews, some baseline conditions, pricing scenarios and their tradeoffs and any policy recommendations. Transportation stakeholder engagement: SPUR’s research will be complemented by broad range of discussions with transportation stakeholders. SPUR will facilitate “big tent” discussions with groups of elected officials, department heads, civic leaders and advocates. These SPUR bodies help identify obstacles to implementation, disseminate information, and provide political support. The discussions will be as follows over the course of the project: SPUR Regional Planning and Transportation Committee (2 total discussions) SPUR Transportation Technical Committee (2 total discussions) SPUR City Boards: San Jose, Oakland, San Francisco (1 discussions at each) SPUR San Jose Policy Board (1 discussion) Meetings and discussions with decision makers, elected officials and business leaders SPUR will also continue to directly engage with transportation pricing policy and key decision-makers. In addition to helping inform initial context as outlined above, these one- on-one interviews will help SPUR staff vet early findings, transportation pricing scenarios DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 14 and the tradeoffs between them. SPUR will also develop materials for stakeholders to understand tradeoffs between transportation pricing options. Education and public engagement: SPUR will engage in education and public engagement in concert with research on this topic. SPUR will convene 2 total public programs over the course of the project, inviting experts to speak and SPUR staff to present findings. SPUR will publish 2 total blog posts over the course of the project that present interim findings. SPUR will also develop a broad social media and communications strategy to share the results of the research. SPUR will participate in all required project management activities throughout the project as well. Project milestones (as detailed more fully in Exhibits B and C) November 2018: Project launch, engagement plan developed January 2018: Complete literature review on transportation pricing policy and complete interviews of a minimum of 6 technical experts March 2019: Complete first round of discussions with transportation stakeholders July 2019: Complete quantitative baseline analysis, scenarios and their tradeoffs for transportation pricing options in the Bay Area August 2019: Complete second round of discussions with transportation stakeholders September: Complete rough draft of white paper November 2019: Submit final white paper to the City of Palo Alto December 2019: Publish SPUR white paper on SPUR website DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 15 EXHIBIT “B” SCHEDULE OF PERFORMANCE CONSULTANT shall perform the Services so as to complete each milestone within the number of days/weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. Project Milestone Completion Project launch, engagement plan developed and scheduled November 2018 Complete literature review on transportation pricing policy and complete interviews of a minimum of 6 technical experts January 2018 Complete first round of discussions with transportation stakeholders March 2019 Complete quantitative baseline analysis, scenarios and their tradeoffs for transportation pricing options in the Bay Area July 2019 Complete second round of discussions with transportation stakeholders August 2019 Complete rough draft of white paper September 2019 Submit final white paper to the City of Palo Alto. November 2019 Publish SPUR white paper on SPUR website. December 2019 DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 16 EXHIBIT “C” COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement based on the monthly rate schedule attached as Exhibit C-1. The compensation to be paid to CONSULTANT under this Agreement for all services, additional services, and reimbursable expenses shall not exceed the amount(s) stated in Section 4 of this Agreement. CONSULTANT agrees to complete all Services and Additional Services, including reimbursable expenses, within this/these amount(s). Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth in this Agreement shall be at no cost to the CITY. SOME SERVICES TO BE PROVIDED IN KIND In addition to the Services to be paid for under this Agreement, the CONSULTANT agrees to provide in-kind (no cost) services worth no less than twenty Thousand Dollars ($20,000). The Services provided in-kind shall be invoiced at the hourly rates set in Exhibit C-1 and explicitly off-set from cash payment as “in kind” on each invoice. These in-kind services are in line with the City’s Cooperative Agreement with the Federal Transit Administration (FTA). REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses . CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: zero. A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto’s policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone service charges, cellular phone service charges, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $00.00 shall be approved in advance by the CITY’s project manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s project manager’s request, shall submit a DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 17 detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation, including reimbursable expenses, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 1 EXHIBIT “C-1” SCHEDULE OF RATES MONTHLY RATE This contract with SPUR is for a total of $100,000 divided over 14 months (November 1, 2018 – December 31, 2019) for $7,143 per month. SPUR will invoice City of Palo Alto by the 5th of each month (December 2018 – January 2020), for the previous month’s work. Any expenses exceeding $7,143 per month will be covered by SPUR in-kind time that will not be billed to the City. ESTIMATED SCHEDULE AND WORK TIME Month Monthly activities Project milestone Date completed SPUR staff Staff hours **denotes in- kind hours Value of hours ($) **Value of in- kind hours 1 Hold project initiation kick off meeting at SPUR (internal to SPUR). Draft first round stakeholder engagement plan, which will include but won’t be limited to: Initial one-on-one interviews with transportation experts Meeting with SPUR Regional Planning and Transportation Committee (2 total) SPUR Transportation Technical Committee (2 total) SPUR City Boards in San Francisco, Oakland, San Jose (1 per each) SPUR San Jose Policy Board (1 total) Meetings and discussions with decision makers, elected officials and business leaders Conduct initial review of literature and reports Draft SPUR Blog Post #1. Any project-wide meeting(s) Project launch, stakeholder engagement plan developed November, 30, 2018 SJS RA 68 $5,684 DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 2 2 Conduct initial interviews with transportation experts. Continue literature review Begin developing SPUR data library and tools for quantitative baseline analysis. Any project-wide meeting(s) December 31, 2018 SJS RA 66 $6,980 3 Continue literature review and interviews Begin building quantitative baseline analysis to inform pricing scenarios. Begin executing stakeholder engagement plan round #1 with various SPUR committees and boards and with other experts, decision makers, elected officials and business leaders. Any project-wide meeting(s) Complete literature review on transportation pricing policy and complete interviews of a minimum of 6 technical experts January 31, 2019 SJS RA AF KS 76 6** $6,980 $624** 4 Convene SPUR public forum #1, schedules of panelists permitting Continue building and refining quantitative baseline analysis to inform pricing scenarios. Continue executing stakeholder engagement plan round #1 with various SPUR committees and boards and with other experts, decision makers, elected officials and business leaders. Begin developing distinct scenarios for transportation pricing in the Bay Area – what could be priced where and how it could be priced Any project-wide meeting(s) February 28, 2019 SJS RA AF 76 8** $7,496 $733** 5 Convene SPUR public forum #1, schedules of panelists permitting Finish executing stakeholder Complete first round of discussions with transportation March 31, 2019 SJS RA AF 78 8** $7,761 $733** DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 3 engagement plan round #1 with various SPUR committees and boards and with other experts, decision makers, elected officials and business leaders. Finalize quantitative baseline analysis to inform pricing scenarios. Any project-wide meeting(s) stakeholders 6 Run quantitative baseline analysis and validate and interpret results. Refine pricing scenarios and draft their tradeoffs. Craft and prepare for payment design workshop. Any project-wide meeting(s) April 30, 2019 SJS RA AF 78 16** $7,761 $1,466** 7 Vet baseline analysis results and scenarios with experts and key stakeholders as needed. Develop plan for second round of transportation stakeholder engagement. Craft and prepare for payment design and/or messaging workshop Any project-wide meeting(s) May 31, 2019 SJS RA AF 78 16** $7,761 $1,466** 8 Refine quantitative baseline analysis. Refine pricing scenarios and their tradeoffs. Potentially run workshop on messaging / payment design Any project-wide meeting(s) June 30, 2019 SJS RA AF 78 16** $7,761 $1,466** 9 Finalize quantitative baseline analysis. Finalize Bay Area pricing scenarios and the analysis of their tradeoffs. Develop visuals and messaging to Complete quantitative baseline analysis, scenarios and their tradeoffs for transportation July 31, 2019 SJS RA AF KS 78 6** $7,761 $624** DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 4 communicate baseline analysis, pricing scenarios and their tradeoffs. Draft and release SPUR Blog Post #2. Any project-wide meeting(s) pricing options in the Bay Area 10 Finalize visuals and messaging for Bay Area baseline analysis, pricing scenarios and their tradeoffs. Begin executing stakeholder engagement plan round #2 with various SPUR committees, boards and with diction makers, elected officials and business leaders. Any project-wide meeting(s) August 31, 2019 SJS RA AF 78 4** $7,761 $366** 11 Develop rough draft of white paper. Continue executing stakeholder engagement plan round #2 with various SPUR committees and boards and with experts, decision makers, elected officials and business leaders. Any project-wide meeting(s) Complete rough draft of white paper September 30, 2018 SJS RA AF 78 4** $7,761 $366** 12 Finish executing stakeholder engagement plan round #2 with various SPUR committees and boards and with experts, decision makers, elected officials and business leaders. Edit white paper with feedback from stakeholder engagement. Convene SPUR forum #2 on transportation pricing in the Bay Area. Any project-wide meeting(s) October 31, 2018 SJS RA KS AF 78 13** $7,761 $1,489** 13 Edit white paper with professional editors and graphic designers. Finalize white paper. Any project-wide meeting(s) Submit final white paper to the City of Palo Alto November 30, 2019 SJS KS RA 33 13** $3,124 $1,675** DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 5 14 Develop media outreach plan. Execute media outreach plan. SPUR to publish SPUR white paper on SPUR website December 31, 2019 SJS KS RA AA 16 130** $944 $9,049** Labor Category FY 2019 Rate SJS: Sarah Jo Szambelan, SPUR Research Manager $103.05 RA: Ratna Amin, SPUR Transportation Policy Director $132.89 AF: Arielle Fleisher, SPUR Transportation Policy Associate $91.62 KS: Karen Steen, SPUR Communications Director $128.81 AA: Allison Arieff, SPUR Editorial Director $143.85 DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 6 EXHIBIT “D” INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE AT THE FOLLOWING URL: https://www.planetbids.com/portal/portal.cfm?CompanyID=25569. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 7 B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. VENDORS ARE REQUIRED TO FILE THEIR EVIDENCE OF INSURANCE AND ANY OTHER RELATED NOTICES WITH THE CITY OF PALO ALTO AT THE FOLLOWING URL: HTTPS://WWW.PLANETBIDS.COM/PORTAL/PORTAL.CFM?COMPANYID=25569 OR HTTP://WWW.CITYOFPALOALTO.ORG/GOV/DEPTS/ASD/PLANET_BIDS_HOW_TO.ASP DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Professional Services Rev. April 27, 2018 8 EXHIBIT “E” FTA REQUIREMENTS CONSULTANT agrees to follow all federal laws and regulations, including applicable provisions of the Federal Transit Administration’s (FTA) Master Agreement, as updated by the FTA from time to time. This includes adhering to those sections of the Master Agreement in which Third Party Participants or Third Party Contracts are required to comply with or contain, respectively. These provisions include, but are not limited to, the following sections of the FTA Master Agreement, dated October 1, 2017, and as may be updated by the FTA, and are made part of this Exhibit by reference: Section 3.i.(6) Notice to Third Party Participants. Section 4.a. Standards of Conduct. Section 4.b. Debarment and Suspension. Section4.d. Lobbying Restrictions. Section4.g. Trafficking in Persons. Section 7.b. Eligible Costs. Section 9.a. Types of Records. Section 9.c. Access to Recipient and Third Party Participant Records. Section 9.d. Access to the Sites of Performance. Section 9.e. Closeout. Section 12. Civil Rights. (the entire section). Section 16.d(7). Clean Air Act and the Federal Water Pollution Control Act, as amended. Section 16.d(9). Byrd Anti-Lobbying Amendment. Section 16.s. Access to Third Party Contract Records. Section 18. Rights in Data and Copyrights (the entire section). Section 24.b. Awards Not Involving Construction (Employee Protections) Section 24.c. Awards Involving Commerce Section 26. Environmental Protections (entire section). Section 35.b. Alcohol Misuse and Prohibited Drug Use. Section 36. Protection of Sensitive Security and Other Sensitive Information. Section 38. Freedom of Information. As of the date of execution of this Agreement, the FTA Master Agreement can be found at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grantee-resources/sample-fta- agreements/114766/fta-master-agreement-fy2018.pdf DocuSign Envelope ID: BF70C048-D8FC-4EB5-8669-D19AD15B6829 Certificate Of Completion Envelope Id: BF70C048D8FC4EB58669D19AD15B6829 Status: Completed Subject: Please DocuSign: FINAL_SPUR_COPA_contract.docx Source Envelope: Document Pages: 25 Signatures: 2 Envelope Originator: Certificate Pages: 2 Initials: 0 Christopher Anastole AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 chris.anastole@cityofpaloalto.org IP Address: 12.220.157.20 Record Tracking Status: Original 11/27/2018 3:50:24 PM Holder: Christopher Anastole chris.anastole@cityofpaloalto.org Location: DocuSign Security Appliance Status: Connected Pool: City of Palo Alto Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign Signer Events Signature Timestamp Gabriel Metcalf gmetcalf@spur.org President and CEO Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 174.214.8.61 Signed using mobile Sent: 11/27/2018 3:57:34 PM Viewed: 11/27/2018 6:17:04 PM Signed: 11/27/2018 6:17:26 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Alicia John-Baptiste ajohn-baptiste@spur.org Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 208.90.215.189 Sent: 11/27/2018 6:17:28 PM Viewed: 11/29/2018 9:46:21 AM Signed: 11/29/2018 9:48:20 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Hillary Rupert Hillary.Rupert@CityofPaloAlto.org Security Level: Email, Account Authentication (None) Sent: 11/29/2018 9:48:22 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 11/29/2018 9:48:22 AM Certified Delivered Security Checked 11/29/2018 9:48:22 AM Signing Complete Security Checked 11/29/2018 9:48:22 AM Completed Security Checked 11/29/2018 9:48:22 AM Payment Events Status Timestamps TO: FROM: DATE: CITY OF PALO ALTO HONORABLE CITY COUNCIL JAMES KEENE, CITY MANAGER DECEMBER 10, 2018 4 SUBJECT: AGENDA ITEM 4 -Authorize the City Manager to Enter Into the Following Agreements for the City's Fair Value Commuting Project {Partially Funded Through a Federal Transit Administration Grant): 1) an Agreement With RideAmigos in an Amount Not-to-Exceed $150,620 for a Term of 15 Months, and 2) an Agreement With the San Francisco Bay Area Planning and Urban Research Association {SPUR) in an Amount Not-to-Exceed $100,000 for a Term of 15 Months The contract with Right Click Solutions (also known as RideAmigos) has been updated to include two additional exhibits : (1) the City's Information Privacy Policy and (2) the City's Software as a Service Security and Privacy Terms and Conditions. The inclusion of these terms as signed exhibits in contracts is a standard procedure for the City of Palo Alto . These policies help to ensure the security of personal information and city information, as well as ensure the overall security of the City's networks. Except for the addition stated above, the contract contains no other changes. Neither the scope of work nor the contract dollar amount have changed. The updated contract is attached. The contract with SPUR has not changed. ~~ Michelle P ~e Fl erty Deputy City Manager 1 of 1 • DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 CITY OF PALO ALTO CONTRACT NO. C19173099 GENERAL SERVICES AGREEMENT BETWEEN THE CITY OF PALO ALTO AND RIGHT CLICK SOLUTIONS, INC. THIS AGREEMENT made and entered into on the 26th day of November, 2018, by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY"), and RIGHT CLICK SOLUTIONS, INC, a CALIFORNIA CORPORATION located at 230 PACIFIC STREET, SUITE 202, SANTA MONICA, CA 90405, Telephone Number: 516-864- 3189 ("CONTRACTOR"). In consideration of their mutual covenants, the parties hereto agree as follows: 1. SERVICES. CONTRACTOR shall provide or furnish the services (the "Services") described in the Scope of Services, attached at Exhibit A. D Optional On-Call Provision (This provision only applies if checked and only applies to on-call agreements.) Services will be authorized by CITY, as needed, with a Task Order assigned and approved by CITY's Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-1. Each Task Order shall designate a CITY Project Manager and shall contain a specific scope of work, a specific schedule of performance and a specific compensation amount. The total price of all Task Orders issued under this Agreement shall not exceed the amount of Compensation set forth in Section 5 of this Agreement. CONTRACTOR shall only be compensated for work performed under an authorized Task Order and CITY may elect, but is not required, to authorize work up to the maximum compensation amount set forth in Section 5. 2. EXHIBITS. The following exhibits are attached to and made a part of this Agreement: IZ] "A" -Scope of Services IZ] "B" -Schedule of Performance IZJ "C" -Schedule of Fees IZ] "D" -Insurance Requirements IZ] "E" -"Amended and Restated Agreement for Services of Independent Contractor" agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor, executed August 15, 2016. IZ] "F" -FTA REQUIREMENTS IZ] "G" -Saas Security and Privacy Terms & Conditions IZ] "H" -Information Privacy Policy City of Palo Alto General Services Agreement 1 Rev. March 29, 2018 DocuSign Envelope ID : 495665AC-6012-4126-9D7B-ABA2D5CB8181 3. TERM. The term of this Agreement is from November 1, 2018 to December 31, 2019 inclusive, subject to the provisions of Sections Rand W of the General Terms and Conditions. 4. SCHEDULE OF PERFORMANCE. CONTRACTOR shall complete the Services within the term of this Agreement in a reasonably prompt and timely manner based upon the circumstances and direction communicated to CONTRACTOR, and if applicable, in accordance with the schedule set forth in the Schedule of Performance, attached at Exhibit B. Time is of the essence in this Agreement. 5. COMPENSATION FOR ORIGINAL TERM. CITY shall pay and CONTRACTOR agrees to accept as not-to-exceed compensation for the full performance of the Services and reimbursable expenses, if any: r r The total maximum lump sum compensation of OR dollars($ ); The sum of dollars ($ per hour, not to exceed a total maximum compensation amount of dollars ($ ); OR C8J A sum calculated in accordance with the fee schedule set forth at Exhibit C, not to exceed a total maximum compensation amount of one hundred and four thousand dollars ($104,000). CONTRACTOR agrees that it can perform the Services for an amount not to exceed the total maximum compensation set forth above. Any hours worked or services performed by CONTRACTOR for which payment would result in a total exceeding the maximum amount of compensation set forth above for performance of the Services shall be at no cost to CITY. C8J r CITY has set aside the sum of forty-six thousand three hundred fifty dollars ($46,350) for Additional Services. CONTRACTOR shall provide Additional Services only by advanced, written authorization from the City Manager or designee. CONTRACTOR, at the CITY's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONTRACTOR's proposed maximum compensation, including reimbursable expense, for such services. Compensation shall be based on the hourly rates set forth above or in Exhibit C (whichever is applicable), or if such rates are not applicable, a negotiated lump sum. CITY shall not authorize and CONTRACTOR shall not perform any Additional Services for which payment would exceed the amount set forth above for Additional Services. Payment for Additional City of Palo Alto General Services Agreement 2 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-907B-ABA2D5CB8181 Services is subject to all requirements and restrictions in this Agreement. 6. COMPENSATION DURING ADDITIONAL TERMS. r CONTRACTOR'S compensation rates for each additional term shall be the same as the original term; OR r-CONTRACTOR's compensation rates shall be adjusted effective on the commencement of each Additional Term. The lump sum compensation amount, hourly rates, or fees, whichever is applicable as set forth in section 5 above, shall be adjusted by a percentage equal to the change in the Consumer Price Index for Urban Wage Earners and Clerical Workers for the San Francisco-Oakland-San Jose area, published by the United States Department of Labor Statistics (CPI) which is published most immediately preceding the commencement of the applicable Additional Term, which shall be compared with the CPI published most immediately preceding the commencement date of the then expiring term. Notwithstanding the foregoing, in no event shall CONTRACTOR's compensation rates be increased by an amount exceeding five percent of the rates effective during the immediately preceding term. Any adjustment to CONTRACTOR's compensation rates shall be reflected in a written amendment to this Agreement. 7. CLAIMS PROCEDURE FOR "9204 PUBLIC WORKS PROJECTS". For purposes of this Section 7, a "9204 Public Works Project" means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. Public Contract Code Section 9204 mandates certain claims procedures for Public Works Projects, which are set forth in "Appendix _Claims for Public Contract Code Section 9204 Public Works Projects". r This project is a 9204 Public Works Project and is required to comply with the claims procedures set forth in Appendix_, attached hereto and incorporated herein. OR !ZI This project is not a 9204 Public Works Project. 8. INVOICING. Send all invoices to CITY, Attention: Project Manager. The Project Manager is: Hillary Rupert, Dept.: CMO, Telephone: 650-776-9208. Invoices shall be submitted in arrears for Services performed. Invoices shall not be submitted more frequently than monthly. Invoices shall provide a detailed statement of City of Palo Alto General Services Agreement 3 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 Services performed during the invoice period and are subject to verification by CITY . The CONTRACTOR also agrees to include its in-kind services as part of the regular monthly invoices. CITY shall pay the undisputed amount of invoices within 30 days of receipt. GENERAL TERMS AND CONDITIONS A. ACCEPTANCE. CONTRACTOR accepts and agrees to all terms and conditions of this Agreement. This Agreement includes and is limited to the terms and conditions set forth in sections 1 through 8 above, these general terms and conditions and the attached exhibits. B. QUALIFICATIONS. CONTRACTOR represents and warrants that it has the expertise and qualifications to complete the services described in Section 1 of this Agreement, entitled "SERVICES," and that every individual charged with the performance of the services under this Agreement has sufficient skill and experience and is duly licensed or certified, to the extent such licensing or certification is required by law, to perform the Services. CITY expressly relies on CONTRACTOR's representations regarding its skills, knowledge, and certifications. CONTRACTOR shall perform all work in accordance with generally accepted business practices and performance standards of the industry, including all federal, state, and local operation and safety regulations. C. INDEPENDENT CONTRACTOR. It is understood and agreed that in the performance of this Agreement, CONTRACTOR and any person employed by CONTRACTOR shall at all times be considered an independent CONTRACTOR and not an agent or employee of CITY. CONTRACTOR shall be responsible for employing or engaging all persons necessary to complete the work required under this Agreement. D. SUBCONTRACTORS. CONTRACTOR may not use subcontractors to perform any Services under this Agreement unless CONTRACTOR obtain~ prior written consent of CITY. CONTRACTOR shall be solely responsible for directing the work of approved subcontractors and for any compensation due to subcontractors. E. TAXES AND CHARGES. CONTRACTOR shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of CONTRACTOR's business. F. COMPLIANCE WITH LAWS. CONTRACTOR shall in the performance of the Services comply with all applicable federal, state and local laws, ordinances, regulations, and orders. City of Palo Alto General Services Agreement 4 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 G. PALO ALTO MINIMUM WAGE ORDINANCE. CONTRACTOR shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONTRACTOR shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONTRACTOR shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060. J. MONITORING OF SERVICES. CITY may monitor the Services performed under this Agreement to determine whether CONTRACTOR's work is completed in a satisfactory manner and complies with the provisions of this Agreement. L. AUDITS. CONTRACTOR agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for three (3) years from the date of final payment, CONTRACTOR's records pertaining to matters covered by this Agreement. CONTRACTOR agrees to maintain accurate books and records in accordance with generally accepted accounting principles for at least three (3) following the terms of this Agreement. M. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. N. INSURANCE. CONTRACTOR, at its sole cost, shall purchase and maintain in full force during the term of this Agreement, the insurance coverage described at Exhibit D. Insurance must be provided by companies with a Best's Key Rating of A-:Vll or higher and which are otherwise acceptable to CITY's Risk Manager. The Risk Manager must approve deductibles and self-insured retentions. In addition, all policies, endorsements, certificates and/or binders are subject to approval by the Risk Manager as to form and content. CONTRACTOR shall obtain a policy endorsement naming the City of Palo Alto as an additional insured under any general liability or automobile policy. CONTRACTOR shall obtain an endorsement stating that the insurance is primary coverage and will not be canceled or materially reduced in coverage or limits until after providing 30 days prior written notice of the cancellation or modification to the Risk Manager. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to the Risk Manager, together with the required endorsements and evidence of payment of premiums, to CITY concurrently with the execution of this Agreement and shall throughout the term of this Agreement provide current certificates evidencing the required insurance coverages and endorsements to the Risk Manager. CONTRACTOR shall include all subcontractors as insured under its policies or shall obtain and provide to CITY City of Palo Alto General Services Agreement 5 Rev. March 29, 2018 DocuSlgn Envelope ID : 495665AC-6012-4126-9D7B-ABA2D5CB8181 separate certificates and endorsements for each subcontractor that meet all the requirements of this section. The procuring of such required policies of insurance shall not operate to limit CONTRACTOR's liability or obligation to indemnify CITY under this Agreement. 0. HOLD HARMLESS. Each Party shall indemnify and hold harmless to the fullest extent permitted by law the other Party and each of their respective affiliates, owners, lenders, directors, officers, investors, members, managers, employees, attorneys, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorney's fees and disbursements that any of them may suffer form or incur and that may directly or indirectly arise and/or result from either Party's gross negligence or willful misconduct. Notwithstanding the foregoing or anything to the contrary contained herein or in any other writing, CONTRACTOR's aggregate indemnification obligations shall be capped at the Aggregate Liability Amount (defined below.) P. NON-DISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONTRACTOR certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONTRACTOR acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. Q. WORKERS' COMPENSATION. CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing and during the performance of the Services. R. TERMINATION. The City Manager may terminate this Agreement without cause by giving sixty (GO) days' prior written notice thereof to CONTRACTOR. If CONTRACTOR fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the City Manager may terminate this Agreement immediately upon written notice of termination. Upon receipt of such notice of termination, CONTRACTOR shall immediately discontinue performance. CITY shall pay CONTRACTOR for services satisfactorily performed up to the effective date of termination. If the termination is for City of Palo Alto General Services Agreement 6 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 cause, CITY may deduct from such payment the amount of actual damage, if any, sustained by CITY due to CONTRACTOR's failure to perform its material obligations under this Agreement. Upon termination, CONTRACTOR shall immediately deliver to the City Manager any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by CONTRACTOR or given to CONTRACTOR, in connection with this Agreement. Such materials shall become the property of CITY. S. ASSIGNMENTS/CHANGES. This Agreement binds the parties and their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written consent of CITY. No amendments, changes or variations of any kind are authorized without the written consent of CITY. T. CONFLICT OF INTEREST. In accepting this Agreement, CONTRACTOR covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. CONTRACTOR further covenants that, in the performance of this Agreement, it will not employ any person having such an interest. CONTRACTOR certifies that 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 agrees to advise CITY if any conflict arises. U. GOVERNING LAW. This Agreement shall be governed and interpreted by the laws of the State of California. V. ENTIRE AGREEMENT. This Agreement, including all exhibits, represents the entire agreement between the parties with respect to the services that may be the subject of this Agreement. Any variance in the exhibits does not affect the validity of the Agreement and the Agreement itself controls over any conflicting provisions in the exhibits. This Agreement supersedes all prior agreements, representations, statements, negotiations and undertakings whether oral or written. W. NON-APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement . City of Palo Alto General Services Agreement 7 Rev . March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 X. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. Y. AUTHORITY . The individual(s) executing this Agreement on behalf of the parties represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. Z. PREVAILING WAGES ~ This Project is not subject to prevailing wages. CONTRACTOR is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7, if the Agreement is not a public works contract, if Agreement does not include a public works construction project of more than $25,000, or the Agreement does not include a public works alteration, demolition, repair, or maintenance (collectively, 'improvement') project of more than $15,000. OR D Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et ~ and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the Agreement for this Project from the Director of the Department of Industrial Relations ("DIR"). Copies of these rates may be obtained at the Purchasing Division's office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. AA.DIR REGISTRATION. In regard to any public work construction, alteration, demolition, repair or maintenance work, CITY will not accept a bid proposal from or enter into this Agreement with CONTRACTOR without proof that CONTRACTOR and its listed subcontractors are registered with the California Department of Industrial Relations ("DIR") to perform public work, subject to limited exceptions. City requires CONTRACTOR and its listed subcontractors to comply with the requirements of SB 854. City of Palo Alto General Services Agreement 8 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D78-ABA2D5CB8181 CITY provides notice to CONTRACTOR of the requirements of California Labor Code section 1771.l(a), which reads: "A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the Agreement is awarded." CITY gives notice to CONTRACTOR and its listed subcontractors that CONTRACTOR is required to post all job site notices prescribed by law or regulation and CONTRACTOR is subject to SB 854-compliance monitoring and enforcement by DIR. CITY requires CONTRACTOR and its listed subcontractors to comply with the requirements of Labor Code section 1776, including: Keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by, respectively, CONTRACTOR and its listed subcontractors, in connection with the Project. The payroll records shall be verified as true and correct and shall be certified and made available for inspection at all reasonable hours at the principal office of CONTRACTOR and its listed subcontractors, respectively. At the request of CITY, acting by its project manager, CONTRACTOR and its listed subcontractors shall make the certified payroll records available for inspection or furnished upon request to the project manager within ten (10) days of receipt of CITY's request. D [For state-and federally-funded projects] CITY requests CONTRACTOR and its listed subcontractors to submit the certified payroll records to the project manager at the end of each week during the Project. If the certified payroll records are not produced to the project manager within the 10-day period, then CONTRACTOR and its listed subcontractors shall be subject to a penalty of one hundred dollars ($100.00) per calendar day, or City of Palo Alto General Services Agreement 9 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9078-ABA2D5CB8181 portion thereof, for each worker, and CITY shall withhold the sum total of penalties from the progress payment(s) then due and payable to CONTRACTOR. Inform the project manager of the location of CONTRACTOR's and its listed subcontractors' payroll records (street address, city and county) at the commencement of the Project, and also provide notice to the project manager within five (5) business days of any change of location of those payroll records. BB. CONTRACT TERMS. All unchecked boxes do not apply to this Agreement. In the case of any conflict between the terms of this Agreement and the exhibits hereto or CONTRACTOR's proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONTRACTOR's proposal, the exhibits shall control. 9. INTELLECTUAL PROPERTY. The CONTRACTOR represents and warrants that all materials prepared under this Agreement are original or developed from materials in the public domain (or both) and that all materials prepared under and services provided under this Agreement do not infringe or violate any copyright, trademark, patent, trade secret, or other intellectual-property or proprietary right of any third party. All developments, inventions, creations, contributions, plans, designs, deliverables (including the Deliverables) and any and all other work product (whether in tangible media, electronic media or otherwise) that CONTRACTOR directly or indirectly develops (whether by itself or with others) in the course of this Agreement, or using Confidential Information (or any portion thereof) in the scope of Services belonging to or directly or indirectly provided by the CITY, or using facilities or other resources of the CITY if related to the CITY's current or future business interests (all of the foregoing work product items collectively are the "work product"), shall be owned exclusively by the CONTRACTOR and shall include all rights, title and interest in and/or to any Deliverables (collectively, the "Deliverables") whether or not created as part of the Services rendered by CONTRACTOR pursuant to this Agreement, and all patent, trademark, copyright and other intellectual property rights thereto. All such work product shall be deemed a "work made for hire" for the CONTRACTOR as author and owner to the fullest extent permitted by applicable law. To the extent that any portions of the work product are not eligible as a work made for hire, CITY hereby assigns and transfers entirely and irrevocably to the CONTRACTOR all rights, title and interest in and to the work product (including without limitation any and all intellectual property rights thereto and all goodwill associated therewith and symbolized thereby), in any and all media now or hereafter known, throughout the world and in perpetuity. CITY shall, in accordance with the terms herein at no out of pocket cost to City, reasonably assist CONTRACTOR with execution of documents and other efforts necessary or helpful for the CONTRACTOR's registration, confirmation, enforcement, defense or maintenance of the CONTRACTOR's intellectual City of Palo Alto General Services Agreement 10 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9078-ABA2D5C88181 property rights in and to the work product as contemplated herein. CITY hereby irrevocably waives any and all "moral rights" and similar rights now or hereafter existing in and to all work product developed under this Agreement. In addition, CITY recognizes CONTRACTOR's exclusive right, title, and interest in and to all service marks, trademarks, and trade names and other intellectual property directly or indirectly used by CONTRACTOR and CITY agrees not to directly or indirectly engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair CONTRACTOR's exclusive right, title, and interest therein, nor shall CITY directly or indirectly cause diminishment of value of said trademarks or trade names or intellectual property through any act or representation. The CITY shall not apply for, use, acquire, or claim any right, title, or interest in or to any CONTRACTOR service marks, trademarks, or trade names, or other intellectual property that may be confusingly similar to any of them, through advertising or otherwise. Notwithstanding the other terms of this Section 9, CONTRACTOR is subject to the intellectual property rights of the United States Federal Transit Administration ("FTA") as promulgated in the FTA's Master Agreement, as amended by the FTA. Should the FTA assert its rights pursuant to the Master Agreement to CONTRACTOR's intellectual property developed under this Agreement, CONTRACTOR shall transfer and/or license intellectual property to the FTA or otherwise comply with the FTA's requirements as detailed in the Master Agreement; provided that the Contractor's platform shall at all times remain the exclusive property of Contractor. 10. CONFIDENTIAL INFORMATION; NO RESTRICTIONS. Except as permitted herein and subject to applicable laws, including any disclosure requirements impacting the City, each party agrees to preserve as confidential and hold in trust for the benefit of the other Party all Confidential Information (defined below) learned in connection with or related to this Agreement and/or CONTRACTOR's engagement. Each Party will not directly or indirectly use or disclose Confidential Information outside the scope of Services or the delivery of the Deliverables of the other Party, regardless of why this Agreement ended. "Confidential Information" includes source code, library code, object code, know-how, deliverables, trade secrets, tech pack data and instructions, technical data, processes, designs, collection plans, graphic designs, sourcing, inventions, discoveries, applications, business plans, computer software designs and systems, routines and sub-routines, market studies, processing techniques, personally identifiable information, all intellectual property rights. If either Party requests, the non-requesting Party shall promptly return to the requesting Party or permanently destroy, or irretrievably delete and verify same in writing, as specified by the requesting Party, all of the requesting Party's Confidential Information, together with all copies, extracts, notes or summaries thereof. City of Palo Alto General Services Agreement 11 Rev. March 29, 2018 DocuSign Envelope ID : 495665AC-6012-4126-9D78-ABA2D5CB8181 11. MARKETING. CONTRACTOR may use CITY'S name in CONTRACTOR's marketing materials. CONTRACTOR may also use CITY'S logo (the "Marks") in marketing materials, provided that CONTRACTOR has obtained CITY'S consent in connection with any such marketing materials use. Upon receipt of CITY's consent in connection with any such marketing materials use, CONTRACTOR may use the Marks only in compliance with this Agreement and only in compliance with CITY's intellectual property policy, provided that a copy of same is timely delivered to CONTRACTOR. 12. LIMITATION OF LIABILITY. a. LIMITATION OF LIABILITY OF CITY. CITY'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PAYMENT OF THE COMPENSATION PROVIDED FOR IN SECTION 5 ("COMPENSATION FOR ORIGINAL TERM") OF THIS AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CITY BE LIABLE, REGARDLESS OF WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED IN CONNECTION WITH THIS AGREEMENT. b. LIMITATION OF LIABILITY OF CONTRACTOR. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR ELSEWHERE, IN NO EVENT SHALL CONTRACTOR BE LIABLE TO CITY FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OR FOR ANY LOSS OF PROFIT OR LOSS OF BUSINESS BY CITY, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH POTENTIAL CLAIM, LOSS OR DAMAGE. EXCEPT AS PROVIDED IN THE IMMEDIATELY FOLLOWING SENTENCE, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT OF CONTRACTOR TO CITY EXCEED TWO TIMES THE DOLLAR AMOUNT RECEIVED BY CONTRACTOR HEREUNDER FROM THE CITY. CONTRACTOR'S LIABILITY LIMIT SET FORTH HEREIN SHALL NOT APPLY TO (1) DAMAGES CAUSED BY CONTRACTOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (2) CONTRACTOR'S OBLIGATIONS TO INDEMNIFY AND DEFEND CITY PURSUANT TO SECTION 0 ("HOLD HARMLESS") OF THIS AGREEMENT, (3) LIMIT CLAIMS OR GENERAL DAMAGES THAT FALL WITHIN THE INSURANCE COVERAGE OF THIS AGREEMENT, (4) STATUTORY DAMAGES SPECIFIED IN THIS AGREEMENT, AND (5) WRONGFUL DEATH CAUSED BY CONTRACTOR. 13. DISCLAIMER. SUBJECT TO THE WARRANTY PERIOD (DEFINED BELOW), THE SERVICES AND DELIVERABLES ARE DELIVERED "AS IS", WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING City of Palo Alto General Services Agreement 12 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXPRESSED OR IMPLIED AND/OR ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. 14. WARRANTY. Subject to the terms herein, Contractor warrants that the services contemplated hereunder shall materially perform and shall be free from reasonable defects 30 days from delivery to CITY (the "Warranty Period"). Notwithstanding the foregoing or anything to the contrary contained herein, no warranty or any repair or replacement requirement shall apply or otherwise be available under the Agreement by Contractor and Contractor shall not be obligated to correct or address same if same results or arises from any modification, change and/or revision to the services or any part thereof unless such modifications, changes and/or revisions is made by Contractor or someone authorized by Contractor to perform them. 15. DATA SECURITY. Contractor shall follow all data security requirements imposed by the "Amended and Restated Agreement for Services of Independent Contractor" agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor as executed August 15, 2016 (attached as Exhibit E to this Agreement) and as amended. Such requirements include but are not limited to: Section 38 ("Handling of Confidential Information"), Section 43 ("Data Security"), and Section 44 ("Notice of Security Breach"). IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO Approved as to form: City of Palo Alto General Services Agreement RIGHT CLICK SOLUTIONS, INC. OocuSlgned by: s bVUA. titukWv 4C051CE79F76425 Soren Eilertsen CEO ~DocuSlgned by: L~oa~ho4es _ • "<k.k Jerrery c ernic co-Founder 13 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXHIBIT A SCOPE OF SERVICES A. Enterprise Commute Trip Reduction Core Platform This Scope of Services reflects the deliverables RideAmigos will provide under the Fair Value Commuting (FVC) grant for the enhanced development of its Enterprise Commute Trip Reduction (ECTR) core platform, RideAmigos Unity. The core platform includes: • Localized trip planners with complete access to multimodal transportation options, including public transit, ridesharing, vanpooling, walking, cycling and more • Interactive commuter dashboards that help users track vital information in a single, easily accessible place • Innovative trip tracking options • Mobility App data integrations • Gamification and incentivization campaigns • Complete survey management, distribution and analytics tools for administrators • Ridesharing options • GIS reporting tools B. Fair Value Commuting Custom Development Under the FVC grant, the City of Palo Alto has a total development budget of $104,000 for feature development of the RideAmigos Unity platform, suited to the pilot project goals. Additionally, RideAmigos will be providing an additional 20% engineering & development hours in-kind to the FVC pilot. This contract is a software development agreement for that scope of work . The FVC custom feature development will include: • Payroll integration: Payroll export focused on meeti~g the needs of Bay Area pilots • Parking Cashout/Feebate*: creation of the software feature to support the administration of the incentive program • Commuter Wallet integration: a documented bi-directional data exchange mechanism (e.g., API) for interacting with the separate Commuter Wallet application, that is focused on exchanging trip tracking and fees/incentives data. • Customized reporting to support the evaluation of the pilot program *The feebate pilot program aims to gain insights about the concept efficacy in a variety of organizations. Feebate allows for employers to operate a revenue-neutral incentive program to discourage the use of parking facilities and encourage the use of "alternative" modes of transportation with many potential benefits. The core ECTR RideAmigos platform paired with the FVC custom development will enable the ability to City of Palo Alto General Services Agreement 14 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 facilitate the feebate pilots with the pilot participants. For individual participants, the program will minimally: • Track the daily use of the parking facilities • Maintain a ledger with: a. A fee for each day parked b. A credit for each day not parked • Provide the accounting details for payroll processing Beyond the minimum requirements, the program should: • Minimize participation effort/requirements • Provide regular clear communications • Measure the impact of behavior change Implementation RideAmigos will provide the interface and other supporting technologies to enable program participation, management, and reporting for each of the Pilot employers/worksites. The feature set rollouts and deliverable dates, as outlined in Exhibit B -Schedule of Performance, will in turn enhance the platform already licensed by San Mateo County (Commute.erg) and other existing RideAmigos clients in the Bay Area region. Training, support, and licensing are already included in those contracts. Within the framework of those existing contracts, up to five pilot projects will be launched to test the enhancements funded by the FVC grant under the City of Palo Alto. Maintenance & Hosting • Roll-out of small updates often occur daily in the interest of customer requests, language and feature enhancements, and possible bug fixes. • Updates that will hinder or change our customer's current workflow will not be pushed without making it a customizable feature. • Release notes detail the new features/fixes, and allow clients to request them to be turned on. • Continuous monitoring of activity logs and fixes of any errors as they occur. • Application upgrades and maintenance. • Hosting on advanced cluster including application servers, database servers, trip planning servers and use of third-party AP ls. • Geo-isolated redundancy. • Purchase and management of custom SSL certificate for your domain. • Backup management: Dedicated servers-gee-isolated fail-over/ backup secure data centers. • 24x7x365 server and support monitoring and maintenance with emergency contact information provided. • 99.996% uptime SLA RideAmigos Academy Enrollment City of Palo Alto General Services Agreement 15 Rev. March 29, 2018 DocuSign Envelope ID : 495665AC-6012-4126-9D7B-ABA2D5CB8181 The RideAmigos Academy is a space to collaborate with other transportation professionals to share ideas, solve common problems, and create solutions. It's all the non-software benefits from RideAmigos, made available for the growth and development of your initiatives. Membership Details: • Collaborate with RideAmigos al}d our partners to tighten up your programs and strategies • Connect with other RideAmigos partners trying to solve similar problems • Access shared materials, resources, and exclusive user-group events/discussions • Join unlimited Coffee Talks (our webinar series), and create opportunities to present, share, and collaborate • Receive real-time information, news and updates in the RideAmigos world • Monthly updates from the Academy highlight new features and partners, announce upcoming events, and recognize the accomplishments of members • Contribute ideas to the future development of the platform, programs, and opportunities ADDITIONAL SERVICES Upon written approval of the City pursuant to the conditions for Additional Services found in Section 5 (Compensation for the Original Term) to this Agreement, RideAmigos shall provide the following Additional Services at the rate listed below. At the time of execution of this Agreement, City authorizes one pilot at the rate of $15,450. City may, at its sole discretion, authorize up to two additional pilots (for a total of three pilots). Santa Clara County Pilots -$15,450/Pilot. RideAmigos is offering its ECTR core platform plus the FVC custom development for a lump sum fee of $15,450 per Santa Clara County pilot participant, for the duration of the of the agreement . The fee includes: • ECTR Core Platform Development & License (refer to Exhibit A-A.) • On-boarding, Support & Admin Training • Maintenance & Hosting • RideAmigos Academy Enrollment • Fair Value Commuting Custom Development (refer to Exhibit A-B.) • Fair Value Commuting Custom Development Schedule (refer to Exhibit B) On-boarding, Support & Admin Training • Platform upgrades, including most future enhancements of RideAmigos web platform, including minor platform enhancements requested by Client that are completed "on the house" once deemed effective and minimal in scope. Customer support within 48 hours of support ticket submission with mobile access to our team. • Platform design adjustments including placement of banners, multiple color and/or logo changes, dashboard reorganization. City of Palo Alto General Services Agreement 16 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 • Pre-launch support with pilot plan including detailed guidance on strategies for challenges, incentives, recommended prizes/rewards, program structure. • Monthly check-ins from your RideAmigos Account Manager. City of Palo Alto General Services Agreement 17 Rev. March 29, 2018 DocuSign Envelope ID : 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXHIBIT B SCHEDULE OF PERFORMANCE CONTRACTOR shall perform the Services so as to complete each task within the time period specified below. The time to complete each task may be increased or decreased by mutual written agreement of the project managers for CONTRACTOR and CITY so long as all work is completed with i n the term of the Agreement. Upon request CONTRACTOR shall provide a detailed schedule of work consistent with the schedule below. Month Deliverable Payment Schedule (Amount of total) Phase 1 -Initial Onboarding and Baseline Data Collection Nov 1st, Hosted RideAmigos Service for Pilot Organizations 2018 • Establish hosted service • Obtain local transportation mode data • Configure software to allow for user segmentation (pilot vs non-pilot users) $14,500 Pilot 1 Fee $15,450 November Invoice $29,950 Dec 1st, 2018 Onboard Pilot Organizations and Users • Administrator training • Rollout marketing I communications • Baseline program configuration $14,500 Pilot 2 & 3 Fee (SUBJECT TO CITY's ADDITIONAL AUTHORIZATION PURSUANT TO THE CONDITIONS FOR ADDITIONAL SERVICES FOUND IN SECTION 5 OF THIS AGREEMENT} $30,900 December Invoice $45,400 Jan 1st, 2019 Baseline Data Collection • Commute tracking without Feebate $14,500 January Invoice $14,500 Phase 2 -Feebate Implementation Feb 1st, 2019 Feebate Program Implementation $14,500 City of Palo Alto General Services Agreement 18 Rev . March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 • Transportation Mode I Parking Tracking • Customized for each Pilot Organization • Program management • Accounting and Audit 0 Payroll integrations (as applicable) 0 Manual CSV export/reporting 0 Automatic CSV export/reporting 0 Payroll platform integrations February Invoice $14,500 Mar 1st, Feebate Program Rollout 2019 • Support materials • End-user training • Administrator training $14,500 March Invoice $14,500 Phase 3 -Data Collection and Reporting Apr 1st, 2019 Feebate Pilot Reporting Support • Custom reporting for pilot program $3,500 April Invoice $3,500 May 1st, Maintenance/Support/Optimization 2019 $3,500 May Invoice $3,500 Jun 1st, 2019 Maintenance/Support/Optimization $3,500 June Invoice $3,500 Jul 1st, 2019 Maintenance/Support/Optimization $3,500 July Invoice $3,500 Aug 1st, Maintenance/Support/Optimization 2019 $3,500 August Invoice $3,500 Sept 1st, Maintenance/Support/Optimization 2019 $3,500 City of Palo Alto General Services Agreement 19 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 September Invoice $3,500 Oct 1st, 2019 Maintenance/Support/Optimization $3,500 October Invoice $3,500 Nov 1st, Maintenance/Support/Optimization 2019 $3,500 November Invoice $3,500 Dec 1st, 2019 Maintenance/Support/Optimization $3,500 December Invoice $3,500 Total Invoiced $150,350 Maintenance/Support/Optimization will include general on going minor updates that do not require, included but not limited to new Scope requirements, user support for all items related to this SOW, and continuous improvements to the platform as RA deems necessary for success. City of Palo Alto General Services Agreement 20 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXHIBITC SCHEDULE OF FEES CITY shall pay CONTRACTOR according to the rate schedule in Exhibit B. The maximum amount of compensation to be paid to CONTRACTOR, including both payment for services and reimbursable expenses, shall not exceed the amounts set forth in Sections 5 and 6 of the Agreement. Any services provided or hours worked for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to CITY. City of Palo Alto General Services Agreement 21 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXHIBIT D INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUN TS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST'S KEY RATING OF A-:Vll, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY'S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: MINIMUM LIMITS REQUIRED TYPE OF COVERAGE REQU IREMENT YES YES YES YES NO YES EACH OCCURRENCE AGGREGATE WORKER'S COMPENSATION EMPLOYER'S STATUTORY LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE PROPERTY DAMAGE $1,000,000 $1,000,000 BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000 COMBINED. BODILY INJURY $1,000,000 $1,000,000 -EACH PERSON $1,000,000 $1,000,000 -EACH OCCURRENCE $1,000,000 $1,000,000 AUTOMOBI LE LIABILITY, INCLUDING ALL OWNED, HIRED, NON -OWNED PROPERTY DAMAGE $1,000,000 $1,000,000 BODILY INJURY AND PROPERTY $1,000,000 $1,000,000 DAMAGE, COMBINED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OM ISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COMPENSATION, EMPLOYER'S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSU RA NCE COVERAGE FOR CONTRACTOR'S AG RE EMENT TO INDE MN IFY CITY. C . DEDUCTIBLE AM OUNTS IN EXCESS OF $5,000 REQUIRE CITY'S PRIOR APPROVAL. II. CONT ACTOR MUST SUBMIT CERTIFICATES(S) OF INSU RANCE EVIDENCING REQUIRED COVERAGE AT THE FOLLOWING URL: https ://www .planetbids.com/portal/portal.cfin?CompanylD=25569. Ill. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSU RE DS" City of Palo Alto General Services Agreement 22 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION I. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULT ANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. City of Palo Alto General Services Agreement 23 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D78-ABA2D5CB8181 EXHIBIT E "Amended and Restated Agreement for Services of Independent Contractor" agreement between the Peninsula Traffic Congestion Relief Alliance and Contractor, executed August 15, 2016. City of Palo Alto General Services Agreement 24 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 EXHIBIT F FTA REQUIREMENTS CONTRACTOR agrees to follow all federal laws and regulations, including applicable provisions of the Federal Transit Administration's (FTA) Master Agreement, as updated by the FTA from time to time. This includes adhering to those sections of the Master Agreement in which Third Party Participants or Third Party Contracts are required to comply with or contain, respectively. These provisions include, but are not limited to, the following sections of the FTA Master Agreement, dated October 1, 2017, and as may be updated by the FTA, and are made part ofthis Exhibit by reference: Section 3.i.(6) Notice to Third Party Participants. Section 4.a. Standards of Conduct. Section 4.b. Debarment and Suspension. Section4.d. Lobbying Restrictions. Section4.g. Trafficking in Persons. Section 7.b. Eligible Costs. Section 9.a. Types of Records. Section 9.c. Access to Recipient and Third Party Participant Records. Section 9.d. Access to the Sites of Performance. Section 9.e. Closeout. Section 12. Civil Rights. (the entire section). Section 16.d(7). Clean Air Act and the Federal Water Pollution Control Act, as amended. Section 16.d(9). Byrd Anti-Lobbying Amendment. Section 16.s. Access to Third Party Contract Records. Section 18. Rights in Data and Copyrights (the entire section). Section 24.b. Awards Not Involving Construction (Employee Protections) Section 24.c. Awards Involving Commerce Section 26. Environmental Protections (entire section). Section 35.b. Alcohol Misuse and Prohibited Drug Use. Section 36. Protection of Sensitive Security and Other Sensitive Information. Section 38. Freedom of Information. City of Palo Alto General Services Agreement 25 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 As of the date of execution of this Agreement, the FTA Master Agreement can be found at: https:Uwww.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grantee resources/sample-fta-agreements/114766/fta-master-agreement-fy2018.pdf City of Palo Alto General Services Agreement 26 Rev. March 29, 2018 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 • CITY OF PALO ALTO City of Palo Alto Information Security Document Version: V2.5 [11/01/2012] Doc: lnfoSec 110 II EXHIBIT"G" SOFIMIARE AS A SERVICE SECURITY AND PRIVACY TERMS AND (ONDITIONS This Exhibit shall be made a part of the City of Palo Alt o's Professfonal Services Agreement or any other contract entered into by and between the City of Palo Alto (the "City") and Right Click Solutions, Inc. (the °Consultant") for the provision of Software as a Service to the City (the NAgreement"). In order to assure the privacy and security of the personal information of the City's customers and people who do business with the City, including, without limitation, vendors, utility customers, library patrons and other individuals and businesses, who are required to share such information with the City, as a condition of receiving services from the City or selling goods and services to the City, including, without limitation, the Software as a Service services provider (the "Consultant") and its subcontractors, if any, including, without limitation, any Information Technology ("IT") infrastructure services provider, shall design, install, provide, and maintain a secure IT environment, described below, while it renders and performs the Services and furnishes goods, if any, described in the Statement of Work, Exhibit B, to the extent any scope of work implicates the confidentiality and privacy of the personal information of the City's customers. The Consultant shall fulfill the data and information security requirements (the "Requirements") set forth in Part A below. A "secure IT environment" includes: (a) the IT infrastructure, by which the Services are provided to the City, including connection to the City's IT systems; (b) the Consultant's operations and maintenance processes needed to support the environment, including disaster recovery and business continuity planning; and (c) the IT infrastructure performance monitoring services to ensure a secure and reliable environment and service availability to the City. "IT infrastructure" refers to the integrated framework, including, without limitation, data centers, computers, and database management devices, upon which digital networks operate. In the event that, after the Effective Date, the Consultant reasonably determines that it cannot fulfill the Requirements, the Consultant shall promptly inform the City of its determination and submit, in writing, one or more alternate countermeasure options to the Requirements (the "Alternate Requirements" as set forth in Part B), which may be accepted or rejected in the reasonable satisfaction of the Information Security Manager (the "ISM"). Part A. Requirements: The Consultant shall at all times during the term of any contract between the City and the Consultant: (a) Appoint or designate an employee, preferably an executive officer, as the security liaison to Page 1of3 DocuSign Envelope ID: 495665AC-6012-4126-907B-ABA2D5CB8181 ~CITY OF ~PALO ALTO City of Palo Alto Information Security Document Version: V2.5 [11 /01 /2012] Doc: lnfoSec 110 the City with respect to the Services to be performed under this Agreement. (b) Provide a full and complete response to the City's Supplier Security and Privacy Assessment Questionnaire (the "Questionnaire") to the ISM, and also report any major non-conformance to the Requirements, as and when requested. The response shall include a detailed implementation plan of required countermeasures, which the City requires the Consultant to adopt as countermeasures in the performance of the Services. In addition, as of the annual anniversary date of this Agreement the Consultant shall report to the City, in writing, any major changes to the IT infrastructure. (c) Have adopted and implemented information security and privacy policies that are documented, are accessible to the City and conform to ISO 27001/2 -Information Security Management Systems (ISMS) Standards. See the following: http://www.iso.org/iso/home/store/catalogue tc/catalogue detail.htm?csnumber=42103 http://www.iso.org/iso/iso catalogue/catalogue tc/catalogue detail.htm?csnumber=50297 (d) Conduct routine data and information security compliance training of its personnel that is appropriate to their role. (e) Develop and maintain detailed documentation of the IT infrastructure, including software versions and patch levels. (f) Develop an independently verifiable process, consistent with industry standards, for performing professional and criminal background checks of its employees that (1) would permit verification of employees' personal identity and employment status, and (2) would enable the immediate denial of access to the City's confidential data and information by any of its employees who no longer would require access to that information or who are terminated. (g) Provide a list of IT infrastructure components in order to verify whether the Consultant has met or has failed to meet any objective terms and conditions. (h) Implement access accountability (identification and authentication) architecture and support role-base access control ("RBAC") and segregation of duties ("SoD") mechanisms for all personnel, systems and software used to provide the Services. "RBAC" refers to a computer systems security approach to restricting access only to authorized users. "SoD" is an approach that would require more than one individual to complete a security task in order to promote the detection and prevention of fraud and errors. (i) Assist the City in undertaking annually an assessment to assure that: (1) all elements of the Services' environment design and deployment are known to the City, and (2) it has implemented measures in accordance with industry best practices applicable to secure coding and secure IT architecture. (j) Provide and maintain secure intersystem communication paths that would ensure the confidentiality, integrity and availability of the City's information. (k) Deploy and maintain IT system upgrades, patches and configurations conforming to current patch and/or release levels by not later than one (1) week after its date of release. Emergency security patches must be installed within 24 hours after its date of release. (I) Provide for the timely detection of, response to, and the reporting of security incidents, including on-going incident monitoring with logging. (m) Notify the City within one (1) hour of detecting a security incident that results in the unauthorized access to or the misuse of the City's confidential data and information. Page 2 of 3 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 ~CITY OF ~PALO ALTO City of Palo Alto Information Security Document Version: V2.5 [11/01/2012] Doc: lnfoSec 110 (n) Inform the City that any third party service provider(s) meet(s) all of the Requirements. (o) Perform security self-audits on a regular basis and not less frequently than on a quarterly basis, and provide the required summary reports of those self-audits to the ISM on the annual anniversary date or any other date agreed to by the Parties. (p) Accommodate, as practicable, and upon reasonable prior notice by the City, the City's performance of random site security audits at the Consultant's site(s), including the site(s) of a third party service provider(s), as applicable. The scope of these audits will extend to the Consultant's and its third party service provider(s)' awareness of security policies and practices, systems configurations, access authentication and authorization, and incident detection and response. (q) Cooperate with the City to ensure that to the extent required by applicable laws, rules and regulations, the Confidential Information will be accessible only by the Consultant and any authorized third party service provider's personnel. (r) Perform regular, reliable secured backups of all data needed to maximize availability of the Services. (s) Maintain records relating to the Services for a period of three (3) years after the expiration or earlier termination of this Agreement and in a mutually agreeable storage medium. Within thirty (30) days after the effective date of expiration or earlier termination of this Agreement, all of those records relating to the performance of the Services shall be provided to the ISM. (t) Maintain the Confidential Information in accordance with applicable federal, state and local data and information privacy laws, rules and regulations. (u) Encrypt the Confidential Information before delivering the same by electronic mail to the City and or any authorized recipient. (v) Unless otherwise addressed in the Agreement, shall not hold the City liable for any direct, indirect or punitive damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the City's IT environment, including, without limitation, IT infrastructure communications. Part B. Alternate Requirements: Page 3 of 3 DocuSign Envelope ID: 495665AC-6012-4126-9D78-ABA2D5CB8181 EXHIBIT "H" CI TY 0 F A Information Privacy Policy (IPP) Release and Version: Release Date: Document Class if ication: 1st Release, Vers :on 2.2 31 January, 2013 Need to Know DocuSign Envelope ID: 495665AC-6012-4126-9D7B -ABA2D5CB8181 ~CITY OF ~PALO A TO CONTENTS City of Palo Alto Information Technology Information Security Services DOCUMENT CONTROLS ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2 CHANGE RECORD ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2 APPROVAL ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2 DISTRIBUTION •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2 1. OBJECTIVE ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 3 A) INTENT .......................................................................................................................................................... 3 B) SCOPE .......................................................................................................................................................... 3 C) CONSEQUENCES ............................................................................................................................................ 3 D) EXCEPTIONS .................................................................................................................................................. 3 E) MUNICIPAL ORDINANCE .................................................................................................................................. 4 2. RESPONSIBILITIES OF CITY STAFF ••••..•.•.••••.••••.••••••••••••••••••••••.•.•.•.••.••••••••.•.•••.•••.••••••••••••••••.••.•••••.•..•.••...•••.•• 4 A) RESPONSIBILITY OF CID AND ISM .................................................................................................................. 4 B) RESPONSIBILITY OF INFORMATION SECURITY STEERING COMMITTEE ................................................................ 4 C) RESPONSIBILITY OF USERS ............................................................................................................................. 4 D) RESPONSIBILITY OF INFORMATION TECHNOLOGY {IT) MANAGERS .................................................................... 5 E) RESPONSIBILITY OF AUTHORIZATION COORDINATION ....................................................................................... 5 3. PRIVACY POLICY •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 5 A) OVERVIEW ..................................................................................................................................................... 5 B) PERSONAL INFORMATION AND CHOICE ............................................................................................................ 5 C) METHODS OF COLLECTION OF PERSONAL INFORMATION .................................................................................. 5 D) UTILITIES SERVICE ......................................................................................................................................... 6 E) PUBLIC DISCLOSURE ...................................................................................................................................... 6 F) ACCESS TO PERSONAL INFORMATION ............................................................................................................. 6 G) SECURITY, CONFIDENTIALITY AND NON-DISCLOSURE ....................................................................................... 6 H) DATA RETENTION/ INFORMATION RETENTION .................................................................................................. 7 I) SOFTWARE AS A SERVICE (SAAS) OVERSIGHT ................................................................................................ 7 J) FAIR AND ACCURATE CREDIT TRANSACTION ACT OF 2003 (FACT) .................................................................. 7 4. CONTACTS ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 8 Information Privacy Policy Version 2.2 Page 1of8 31 January, 2013 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CBB181 ~CITY OF ~PA OA TO DOCUMENT CONTROLS City of Palo Alto Information Technology Information Security Services Document Title Information Privacy Policy Location City of Palo Alto Website and SharePoint Document Author Raj Patel Document Manager Raj Patel Contributors Jonathan Reichental, Shiva Swaminathan, Tom Auzenne, Joe Blackwell, Grant Kolling CHANGE RECORD Date Author Version 12-Jul-12 Rai Patel 0.01 26-Sep-12 Raj Patel 1.0 09-Nov-12 Raj Patel 1.5 19-Nov-12 Raj Patel 1.6 22-Nov-12 Raj Patel 1.7 26-Nov-12 Raj Pate l 1.8 6-Dec-12 Raj Patel 1.92 14-Jan-13 Raj Patel 2.0 31 -Jan-13 Raj Patel 2.2 APPROVAL Date Name 06-Dec-12 Raj Patel 06-Dec-12 Jonathan Reichental 06-Dec-12 Tom Auzenne 14-Jan-13 Grant Kolling 31-Jan-13 Information Security Steering Committee DISTRIBUTION Name City of Palo Alto Employees, Service Providers, Residents and Businesses Information Privacy Policy Version 2.2 Change Reference First draft developed First draft released for review Updated first draft for review Additional updates as identified Revised table of content Rev ised followed by review from Jonathan Reichental and Tom Auzenne Revised according to comments from Jonathan Reichental Revised according to comments from Grant Kolling Revised according to recommendations from Information Security Steering Committee Role Comments Information Security Approved Manager; Information T echnolo~::iv Deoartm ent CIO; Information Approved Technology Department Assistant Director, Approved Utilities Department Senior Assistant City Approved Attorney; City Attorney's Office Sponsor Approved Location City of Palo Alto Website and SharePoint Page 2 of 8 31 January, 2013 DocuSign Envelope ID: 495665AC-6012-4126-907B-ABA205CB8181 ~CITY OF ~PALO ALTO 1. Objective City of Palo Alto Information Technology Information Security Services The City of Palo Alto (the "City") strives to promote and sustain a superior quality of life for persons in Palo Alto. In promoting the quality of life of these persons, it is the policy of the City, consistent with the provisions of the California Public Records Act, California Government Code§§ 6250 -6270, to take appropriate measures to safeguard the security and privacy of the personal (including, without limitation, financial) information of persons, collected in the ordinary course and scope of conducting the City's business as a local government agency. These measures are generally observed by federal, state and local authorities and reflected in federal and California laws, the City's rules and regulations, and industry best practices, including, without limitation, the provisions of California Civil Code§§ 1798.3(a), 1798.24, 1798.79.8(b), 1798.80(e), 1798.81.5, 1798.82(e), 1798.83(e)(7), and 1798.92(c). Though some of these provisions do not apply to local government agencies like the City, the City will conduct business in a manner which promotes the privacy of personal information, as reflected in federal and California laws. The objective of this Policy is to describe the City's data security goals and objectives, to ensure the ongoing protection of the Personal Information, Personally Identifiable Information, Protected Critical Infrastructure lnformationand Personally Identifying Information of persons doing business with the City and receiving services from the City or a third party under contract to the City to provide services. The terms "Personal Information," "Protected Critical Infrastructure Information", "Personally Identifiable Information" and "Personally Identifying lnformation"(collectively, the "Information") are defined in the California Civil Code sections, referred to above, and are incorporated in this Policy by reference. A) INTENT The City, acting in its governmental and proprietary capacities, collects the Information pertaining to persons who do business with or receive services from the City. The Information is collected by a variety of means, including, without limitation, from persons applying to receive services provided by the City, persons accessing the City's website, and persons who access other information portals maintained by the City's staff and/or authorized third-party contractors. The City is committed to protecting the privacy and security of the Information collected by the City. The City acknowledges federal and California laws, policies, rules, regulations and procedures, and industry best practices are dedicated to ensuring the Information is collected, stored and utilized in compliance with applicable laws. The goals and objectives of the Policy are: (a) a safe, productive, and inoffensive work environment for all users having access to the City's applications and databases; (b) the appropriate maintenance and security of database information assets owned by, or entrusted to, the City; (c) the controlled access and security of the Information provided to the City's staff and third party contractors; and (d) faithful compliance with legal and regulatory requirements. B) SCOPE The Policy will guide the City's staff and, indirectly, third party contractors, which are by contract required to protect the confidentiality and privacy of the Information of the persons whose personal information data are intended to be covered by the Policy and which will be advised by City staff to conform their performances to the Policy should they enjoy conditional access to that information. C) CONSEQUENCES The City's employees shall comply with the Policy in the execution of their official duties to the extent their work implicates access to the Information referred to in this Policy. A failure to comply may result in Information Privacy Policy Version 2.2 Page 3 of 8 31 January, 2013 DocuSign Envelope ID: 495665AC-6012-4126-9D7B-ABA2D5CB8181 ~CITY OF ~PALO AL 0 employment and/or legal consequences . 0) EXCEPTIONS City of Palo Alto Information Technology Information Security Services In the event that a City employee cannot fully comply with one or more element(s) described in this Policy, the employee may request an exception from the application of the Policy. The request form will be developed, reviewed and administered by the City's Information Security Manager (the "ISM "). The employee, with the approval of his or her supervisor, will provide any additional information as may be requested by the ISM. The ISM will conduct a risk assessment of the requested exception in accordance with guidelines approved by the City's Chief Information Officer ("CIO") and approved as to form by the City Attorney. The Policy's guidelines will include at a minim um: purpose, source, collection, storage, access, retention, usage, and protection of the Information identified in the request. The ISM will consult with the CIO to approve or deny the exception request. After due consideration is given to the request, the exception request disposition will be communicated, in writing, to the City employee and his or her supervisor. The approval of any request may be subject to countermeasures established by the CIO, acting by the ISM. E) MUNICIPAL ORDINANCE This Policy will supersede any City policy, rule, regulation or procedure regarding information privacy. 2. RESPONSIBILITIES OF CITY STAFF A) RESPONSIBILITY OF CIO AND ISM The CIO, acting by the ISM, will establish an information security management framework to initiate and coordinate the implementation of information security measures by the City's government. The City's employees , in particular, software application users and database users, and, indirectly, third party contractors under contract to the City to provide services, shall by guided by this Policy in the performance of their job responsibilities. The ISM will be responsible for: (a) developing and updating the Policy, (b) enforcing compliance with and the effectiveness of the Policy; (c) the development of privacy standards that will manifest the Policy in detailed, auditable technical requirements, which will be designed and maintained by the persons responsible for the City's IT environments; (d) assisting the City's staff in evaluating security and privacy incidents that arise in regard to potential violations of the Policy; (e) reviewing and approving department-specific policies and procedures which fall under the purview of this Policy; and (f) reviewing Non-Disclosure Agreements (ND As) signed by third party contractors, which will provide services, including, without limitation, local or 'cloud-based' software services to the City. 8) RESPONSIBILITY OF INFORMATION SECURITY STEERING COMMITTEE The Information Security Steering Committee (the "ISSC"), which is comprised of the City's employees, drawn from the various City departments, will provide the primary direction , pr ioritization and approval for all information security efforts, including key information security and privacy risks, programs, initiatives and activities. The ISSC will provide input to the information security and privacy strategic planning processes to ensure that information security risks are adequately considered, assessed and addressed at the appropriate City department level. Information Privacy Policy Version 2.2 Page 4 of 8 31 January, 2013 C) RESPONSIBILITY OF USERS City of Palo Alto Information Technology Information Security Services All authorized users of the Information will be responsible for complying with information privacy processes and technologies within the scope of responsibility of each user. 0) RESPONSIBILITY OF INFORMATION TECHNOLOGY {IT) MANAGERS The City's IT Managers, who are responsible for internal, external, direct and indirect connections to the City's networks, will be responsible for configuring, maintaining and securing the City's IT networks in compliance with the City's information security and privacy policies. They are also responsible for timely internal reporting of events that may have compromised network, system or data security. E) RESPONSIBILITY OF AUTHORIZATION COORDINATION The ISM will ensure that the City's employees secure the execution of Non-Disclosure Agreements (NOA), whenever access to the Information will be granted to third party contractors, in conjunction with the Software as a Service (SaaS) Security and Privacy Terms and Conditions. An NOA must be executed prior to the sharing of the Information of persons covered by this Policy with third party contractors. The City's approach to managing information security and its implementation (i.e. objectives, policies, processes, and procedures for information security) will be reviewed independently by the ISM at planned intervals, or whenever significant changes to security implementation have occurred. The CIO, acting by the ISM, will review and recommend changes to the Policy annually, or as appropriate, commencing from the date of its adoption. 3. PRIVACY POLICY A) OVERVIEW The Policy applies to activities that involve the use of the City's information assets, namely, the Information of persons doing business with the City or receiving services from the City, which are owned by, or entrusted to, the City and will be made available to the City's employees and third party contractors under contract to the City to provide Software as a Service consulting services. These activities include, without limitation, accessing the Internet, using e-mail, accessing the City's intranet or other networks, systems, or devices. The term "information assets" also includes the personal information of the City's employees and any other related organizations while those assets are under the City's control. Security measures will be designed, implemented, and maintained to ensure that only authorized persons will enjoy access to the information assets. The City's staff will act to protect its information assets from theft, damage, loss, compromise, and inappropriate disclosure or alteration. The City will plan, design, implement and maintain information management systems, networks and processes in order to assure the appropriate confidentiality, integrity, and availability of its information assets to the City's employees and authorized third parties. B) PERSONAL INFORMATION AND CHOICE Except as permitted or provided by applicable laws, the City will not share the Information of any person doing business with the City, or receiving services from the City, in violation of this Policy, unless that person has consented to the City's sharing of such information during the conduct of the City's business as a local government agency with third parties under contract to the City to provide services. Information Privacy Policy Version 2.2 Page 5 of 8 31 January, 2013 DocuS ign Envelope ID : 495665AC-6012-4126-9D78-ABA2D5CB8181 ~CITY OF ~PALO ALT C) METHODS OF COLLECTION OF PERSONAL INFORMATION City of Palo Alto Information Technology Information Security Services The City may gather the Information from a variety of sources and resources, provided that the collection of such information is both necessary and appropriate in order for the City to conduct business as a local government agency in its governmental and proprietary capacities. That information may be gathered at service windows and contact centers as well as at web sites, by mobile applications, and with other technologies, wherever the City may interact with persons who need to share such formation in order to secure the City's services. The City's staff will inform the persons whose Information are covered by this Policy that the City's web site may use "cookies" to customize the browsing experience with the City of Palo Alto web site. The City will note that a cookie contains unique information that a web site can use to track, among others, the Internet Protocol address of the computer used to access the City's web sites, the identification of the browser software and operating systems used, the date and time a user accessed the site, and the Internet address of the website from which the user linked to the City's web sites. Cookies created on the user's computer by using the City's web site do not contain the Information, and thus do not compromise the user's privacy or security. Users can refuse the cookies or delete the cookie files from their computers by using any of the widely available methods. If the user chooses not to accept a cookie on his or her computer, it will not prevent or prohibit the user from gaining access to or using the City's sites. 0) UTILITIES SERVICE In the provision of utility services to persons located within Palo Alto, the City of Palo Alto Utilities Department ("CPAU") will collect the Information in order to initiate and manage utility services to customers. To the extent the management of that information is not specifically addressed in the Utilities Rules and Regulations or other ordinances, rules, regulations or procedures, this Policy will apply; provided, however, any such Rules and Regulations must conform to this Policy, unless otherwise directed or approved by the Council. This includes the sharing of CPAU-collected Information with other City departments except as may be required by law. Businesses and residents with standard utility meters and/or having non-metered monthly services will have secure access through a CPAU website to their Information, including, without limitation, their monthly utility usage and billing data. In addition to their regular monthly utilities billing, businesses and residents with non-standard or experimental electric, water or natural gas meters may have their usage and/or billing data provided to them through non-City electronic portals at different intervals than with the standard monthly billing. Businesses and residents with such non-standard or experimental metering will have their Information covered by the same privacy protections and personal information exchange rules applicable to Information under applicable federal and California laws. E) PUBLIC DISCLOSURE The Information that is collected by the City in the ordinary course and scope of conducting its business could be incorporated in a public record that may be subject to inspection and copying by the public, unless such information is exempt from disclosure to the public by California law. F) ACCESS TO PERSONAL INFORMATION The City will take reasonable steps to verify a person's identity before the City will grant anyone online access to that person's Information. Each City department that collects Information will afford access to affected persons who can review and update that information at reasonable times. Information Privacy Policy Version 2.2 Page 6 of8 31 January, 2013 G) SECURITY, CONFIDENTIALITY AND NON-DISCLOSURE City of Palo Alto Information Technology Information Security Services Except as otherwise provided by applicable law or this Policy, the City will treat the Information of persons covered by this Policy as confidential and will not disclose it, or permit it to be disclosed, to third parties without the express written consent of the person affected. The City will develop and maintain reasonable controls that are designed to protect the confidentiality and security of the Information of persons covered by this Policy. The City may authorize the City's employee and or third party contractors to access and/or use the Information of persons who do business with the City or receive services from the City. In those instances, the City will require the City's employee and/or the third party contractors to agree to use such Information only in furtherance of City-related business and in accordance with the Policy. If the City becomes aware of a breach, or has reasonable grounds to believe that a security breach has occurred, with respect to the Information of a person, the City will notify the affected person of such breach in accordance with applicable laws. The notice of breach will include the date(s) or estimated date(s) of the known or suspected breach, the nature of the Information that is the subject of the breach, and the proposed action to be taken or the responsive action taken by the City. H) DATA RETENTION/ INFORMATION RETENTION The City will store and secure all Information for a period of time as may be required by law, or if no period is established by law, for seven (7) years, and thereafter such information will be scheduled for destruction. I) SOFTWARE AS A SERVICE (SAAS) OVERSIGHT The City may engage third party contractors and vendors to provide software application and database services, commonly known as Software-as-a-Service (SaaS). In order to assure the privacy and security of the Information of those who do business with the City and those who received services from the City, as a condition of selling goods and/or services to the City, the Saas services provider and its subcontractors, if any, including any IT infrastructure services provider, shall design, install, provide, and maintain a secure IT environment, while it performs such services and/or furnishes goods to the City, to the extent any scope of work or services implicates the confidentiality and privacy of the Information. These requirements include information security directives pertaining to: (a) the IT infrastructure, by which the services are provided to the City, including connection to the City's IT systems; (b) the Saas services provider's operations and maintenance processes needed to support the IT environment, including disaster recovery and business continuity planning; and (c) the IT infrastructure performance monitoring services to ensure a secure and reliable environment and service availability to the City. The term "IT infrastructure" refers to the integrated framework, including, without limitation, data centers, computers, and database management devices, upon which digital networks operate. Prior to entering into an agreement to provide services to the City, the City's staff will require the Saas services provider to complete and submit an Information Security and Privacy Questionnaire. In the event that the Saas services provider reasonably determines that it cannot fulfill the information security requirements during the course of providing services, the City will require the Saas services provider to promptly inform the ISM. J) FAIR AND ACCURATE CREDIT TRANSACTION ACT OF 2003 CPAU will require utility customers to provide their Information in order for the City to initiate and manage utility services to them. Information Privacy Policy Version 2.2 Page 7 of 8 31 January, 2013 DocuSign Envelope ID : 495665AC-6012-4126-907B-ABA2D5CB8181 ~CITY OF ~PALO ALTO City of Palo Alto Information Technology Information Security Services Federal regulations, implementing the Fair and Accurate Credit Transactions Act of 2003 (Public Law 108-159), including the Red Flag Rules, requ ire that CPAU, as a "covered financial institution or creditor" which provides services in advance of payment and wh ich can affect consumer credit, develop and implement procedures for an identity theft program for new and existing accounts to detect, prevent, respond and mitigate potential identity theft of its customers' Information. CPAU procedures for potential identity theft will be reviewed independently by the ISM annually or whenever significant changes to security implementation have occurred. The ISM will recommend changes to CPAU identity theft procedures, or as appropriate, so as to conform to this Policy. There are California laws which are app licable to identity theft ; they are set forth in California Civil Code § 1798.92. 4. CONTACTS Information Security Manager: Patel, Raj <Raj.Patel@CityofPaloAlto.org> Chief Information Officer: Reichental, Jonathan <Jonathan.Reichenta l@CityofPaloAlto.org> Utilities Department: Auzenne, Tom <Tom.Auzenne@C ityofPa loAlto.org City Attorney's Office: Yang, Albert<Albert.Yang@CityofPaloAlto.org> Information Privacy Policy Version 2 .2 Page 8 of 8 31 January, 2013 Certificate Of Completion Envelope Id: 495665AC60124126907BABA2D5CB8181 Subject: Revision to Contract C19173099 Right Click Solutions Source Envelope: Document Pages: 38 Certificate Pages: 2 AutoNav: Enabled Envelopeld Stamping: Enabled Signatures: 2 Initials: 0 Time Zone: (UTC-08:00) Pacific Time (US & Canada) Record Tracking Status: Original 12/6/2018 7:38:25 AM Security Appliance Status: Connected Storage Appliance Status: Connected Signer Events Soren Eilertsen soren@rideamigos.com CEO Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Jeffery Chernick jeff@rideamigos.com Co-Founder Security Level: Email , Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Hillary Rupert Hillary.Rupert@CityofPaloAlto.org Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Holder: Christopher Anastole chris.anastole@cityofpaloalto.org Pool: City of Palo Alto Pool: City of Palo Alto Signature ~DocuSlgned by: s 6Y'UA, tilukUA. 4COS1CE79F76425 Signature Adoption: Pre-selected Style Using IP Address: 172.91.69.110 IADocuSlgned by: L~os~~ Signature Adoption: Pre-selected Style Using IP Address: 47.151.135.160 Signature Status Status Status Status Status COPIED Status: Completed Envelope Originator: Christopher Anastole 250 Hamilton Ave Palo Alto , CA 94301 chris.anastole@cityofpaloalto.org IP Address: 12.220.157.20 Location: DocuSign Location: DocuSign Timestamp Sent: 12/6/2018 7:54:47 AM Viewed: 12/6/2018 8:13:19 AM Signed: 12/6/2018 8:18:53 AM Sent: 12/6/2018 8:18:55 AM Viewed: 12/7/2018 12:26:03 PM Signed: 12n/2018 12:27:03 PM Timestamp Timestamp Timestamp Timestamp Timestamp Tlmestamp Sent: 12/7/2018 12:27:05 PM Carbon Copy Events Rachael Tanner Rachael.Tanner@CityofPaloAlto.org Security Level: Email, Account Authentication {None) Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Envelope Summary Events Envelope Sent Certified Delivered Signing Complete Completed Payment Events Status Timestamp COPIED Sent: 12/7/2018 12:27:06 PM Signature Timestamp Status Timestamps Hashed/Encrypted 12/7/2018 12:27:06 PM Security Checked 12/7/2018 12:27:06 PM Security Checked 12/7/2018 12:27:06 PM Security Checked 12/7/2018 12:27:06 PM Status Timestamps City of Palo Alto (ID # 9854) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Amendment One to Amend Rate Schedule of Prospect Silicon Valley Contract for Mobility on Demand Title: Approval of Amendment Number 1 to Contract Number C19173096 With Prospect Silicon Valley to Update the Rate Schedule to Include the Chief Executive Officer's Billing Rate From: City Manager Lead Department: City Manager Recommendation Staff recommends that City Council approve Amendment One to Contract Number C19173096 with Prospect Silicon Valley (ProspectSV) to amend the rate schedule to include the chief executive officer’s billing rate. The contract is for work to be performed in accordance with the Mobility on Demand Fair Value Commuting grant award from the FTA. Background City Council approved the contract with ProspectSV on Augus t 13, 2018, CMR 9444. The original contract is Attachment B. Discussion City Council authorized the City Manager to enter into a contract with ProspectSV to serve as the principal investigator for this project and Staff continues to work with ProspectSV. Staff recommend amending Exhibit C1, Schedule of Rates, to add an additional labor category for CEO. The proposed contract amendment, attached as Exhibit A, adds this labo r category. Resource Impacts This contract amendment has no resource impact and does not add additional funds to the contract. Policy Implications The recommendation in this report does not represent a change in City policies. Overall, the Fair Value Commuting project explores means to reduce individuals driving alone to work. A reduction in single-occupancy vehicles can help reduce the emission of greenhouse City of Palo Alto Page 2 gases. Reducing vehicle emissions is one of the keys to achieving the City Council endorsed goal of reducing greenhouse gas emission by 80% by the year 2030. The project helps realize goals identified in the Comprehensive Plan 2030. Specifically, the project helps to achieve Transportation Goals 1, which reads “create a sustainable transportation system, complemented by a mix of land uses, that emphasizes walking, bicycling, use of public transportation and other methods to reduce GHG emissions and the use of single-occupancy motor vehicles.” Environmental Review This project is categorically exempt from CEQA pursuant to Sections 15301 (Existing Facilities) and 15306 (Information Collection). Attachments: • Attachment A – Proposed Contract Amendment • Attachment B – Original ProspectSV Contract Attachments: • Attachment_A_ProspectSV_ContractAmendOne • Attachment B_Executed ProspectSV Contract 1 of 2 Revision July 20, 2016 AMENDMENT NO. 1 TO CONTRACT NO. C19173096 BETWEEN THE CITY OF PALO ALTO AND PROSPECT SILICON VALLEY This Amendment No. 1 to Contract No. C19173096 (“Contract”) is entered into October 29, 2018, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and PROSPECT SILICON VALLEY, a nonprofit public benefit corporation, located at 1608 Las Plumas Ave., San Jose, California 95133 ("CONSULTANT"). R E C I T A L S A. The Contract was entered into between the parties for t he provision of assistance to develop and implement the Fair Value Commuting (FVC). B. City intends to update Exhibit “C1” Schedule of Rates to add the labor category of Chief Executive Officer (CEO). C. The parties wish to amend the Contract. SECTION 1. The following exhibit(s) to the Contract is/are hereby amended to read as set forth in the attachment(s) to this Amendment, which are incorpo rated in full by this refer- ence: a. Exhibit “C1” entitled “SCHEDULE OF RATES”. SECTION 2. Except as herein modified, all other provisions of the Contract, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. Attachments: EXHIBIT "C1": SCHEDULE OF RATES CITY OF PALO ALTO APPROVED AS TO FORM: PROSPECT SILICON VALLEY DocuSign Envelope ID: 220DB491-3511-47D1-A932-CCAE76239797 Chief Executive Officer Ruth Cox x Karen Janowski 2 of 2 Revision July 20, 2016 EXHIBIT “C-1” SCHEDULE OF RATES LABOR CATEGORY FY 2019 rate per hour CEO $140 Project Director $130 Project Manager $95 Project Senior Associate $70 Project Associate $50 DocuSign Envelope ID: 220DB491-3511-47D1-A932-CCAE76239797 Certificate Of Completion Envelope Id: 220DB491351147D1A932CCAE76239797 Status: Completed Subject: Please DocuSign: C19173096 Prospect SV Contract Amendment No 1.doc Source Envelope: Document Pages: 2 Signatures: 2 Envelope Originator: Certificate Pages: 2 Initials: 0 Christopher Anastole AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 chris.anastole@cityofpaloalto.org IP Address: 12.220.157.20 Record Tracking Status: Original 10/26/2018 1:47:53 PM Holder: Christopher Anastole chris.anastole@cityofpaloalto.org Location: DocuSign Security Appliance Status: Connected Pool: City of Palo Alto Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign Signer Events Signature Timestamp Ruth Cox ruth.cox@prospectsv.org Chief Executive Officer Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 73.162.175.174 Sent: 10/26/2018 2:16:38 PM Viewed: 10/26/2018 5:28:15 PM Signed: 10/26/2018 5:29:21 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Karen Janowski karen.janowski@prospectsv.org x Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 71.202.55.38 Sent: 10/26/2018 5:29:22 PM Viewed: 11/9/2018 2:43:07 PM Signed: 11/9/2018 2:46:00 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Hillary Rupert Hillary.Rupert@CityofPaloAlto.org Security Level: Email, Account Authentication (None) Sent: 11/9/2018 2:46:01 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 11/9/2018 2:46:01 PM Certified Delivered Security Checked 11/9/2018 2:46:01 PM Signing Complete Security Checked 11/9/2018 2:46:01 PM Completed Security Checked 11/9/2018 2:46:01 PM Payment Events Status Timestamps Professional Services Rev. April 27, 2018 1 CITY OF PALO ALTO CONTRACT NO. C19173096 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND PROSPECT SILICON VALLEY FOR PROFESSIONAL SERVICES This Agreement is entered into on this 31st day of July, 2018, (“Agreement”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and PROSPECT SILICON VALLEY, a nonprofit public benefit corporation, located at 1608 Las Plumas Ave., San Jose, California 95133 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to obtain assistance to develop and implement the Fair Value Commuting (FVC) (“Project”) and desires to engage a consultant to provide subject matter expertise services in connection with the Project (“Services”). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit “A”, attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions, in this Agreement, the parties agree: AGREEMENT SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described at Exhibit “A” in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. SECTION 2. TERM. The term of this Agreement shall be from July 1, 2018 through December 31, 2019 unless terminated earlier pursuant to Section 19 of this Agreement. SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit “B”, attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement to extend the term or the schedule for performance shall DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 2 not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit “A” (“Basic Services”), and reimbursable expenses, shall not exceed Two Hundred and Twenty-Five Thousand Dollars ($225,000). CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. The applicable rates and schedule of payment are set out at Exhibit “C-1”, entitled “HOURLY RATE SCHEDULE,” which is attached to and made a part of this Agreement. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “C”. CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit “A”. SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses, if applicable), based upon the CONSULTANT’s billing rates (set forth in Exhibit “C-1”). If applicable, the invoice shall also describe the percentage of completion of each task. The CONSULTANT also agrees to include its in-kind services as part of the regular monthly invoices. The information in CONSULTANT’s payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City’s project manager at the address specified in Section 13 below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT’s supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 3 may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT is solely responsible for costs, including, but not limited to, increases in the cost of Services, arising from or caused by CONSULTANT’s errors and omissions, including, but not limited to, the costs of corrections such errors and omissions, any change order markup costs, or costs arising from delay caused by the errors and omissions or unreasonable delay in correcting the errors and omissions. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds ten percent (10%) of CITY’s stated construction budget, CONSULTANT shall make recommendations to CITY for aligning the PROJECT design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY. SECTION 10. INDEPENDENT CONTRACTOR. It is understood and agreed that in performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULTANT’s obligations hereunder without the prior written consent of the city manager. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the city manager will be void. SECTION 12. SUBCONTRACTING. CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the city manager or designee. SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Karen Janowski of Prospect Silicon Valley as the project director to have supervisory responsibility for the performance, progress, and execution of the Services and Gary Hsueh of Prospect Silicon Valley as the project manager to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, project manager, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY’s project manager. CONSULTANT, at CITY’s request, shall promptly remove personnel who CITY finds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. CITY’s project manager is Hillary Rupert, Office of the City Manager & Sustainability DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 4 Department Palo Alto, CA 94303, Telephone: 650-776-9208. The project manager will be CONSULTANT’s point of contact with respect to performance, progress and execution of the Services. CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULTANT nor its contractors, if any, shall make any of such materials available to any individual or organization withou t the prior written approval of the City Manager or designee. CONSULTANT makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work. SECTION 15. AUDITS. CONSULTANT will permit CITY to audit, at any reasonable time during the term of this Agreement and for three (3) years thereafter, CONSULTANT’s records pertaining to matters covered by this Agreement. CONSULTANT further agrees to maintain and retain such records for at least three (3) years after the expiration or earlier termination of this Agreement. SECTION 16. INDEMNITY. 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT’s services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement. SECTION 17. WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 5 SECTION 18. INSURANCE. 18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "D". CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best’s Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution of this Agreement. The certificates will be s ubject to the approval of CITY’s Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification. If the insurer cancels or modifies the insurance and provides less than thirty (30) days’ notice to CONSULTANT, CONSULTANT shall provide the Purchasing Manager written notice of the cancellation or modification within two (2) business days of the CONSULTANT’s receipt of such notice. CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY’s Chief Procurement Officer during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The City Manager may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving thirty (30) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19.2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 6 19.3. Upon such suspension or termination, CONSULTANT shall deliver to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 19.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 10 days after giving notice) of suspension or termination; provided, however, if this Agreement is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY as such determination may be made by the City Manager acting in the reasonable exercise of his/h er discretion. The following Sections will survive any expiration or termination of this Agreement: 14, 15, 16, 19.4, 20, and 25. 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 20. NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: To CITY: Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 With a copy to the Purchasing Manager To CONSULTANT: Attention of the project director at the address of CONSULTANT recited above SECTION 21. CONFLICT OF INTEREST. 21.1. In accepting this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 21.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ subconsultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 7 21.3. If the Project Manager determines that CONSULTANT is a “Consultant” as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person due to that person’s race, skin color, gender, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, pregnancy, genetic information or condition, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with the CITY’s Environmentally Preferred Purchasing policies which are available at CITY’s Purchasing Department, incorporated by reference and may be amended from time to time. CONSULTANT shall comply with waste reduction, reuse, recycling and disposal requirements of CITY’s Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In particular, CONSULTANT shall comply with the following zero waste requirements: (a) All printed materials provided by CCONSULTANT to CITY generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by CITY’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or greater post- consumer material and printed with vegetable based inks. (b) Goods purchased by CONSULTANT on behalf of CITY shall be purchased in accordance with CITY’s Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Division’s office. (c) Reusable/returnable pallets shall be taken back by CONSULTANT, at no additional cost to CITY, for reuse or recycling. CONSULTANT shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. SECTION 24. COMPLIANCE WITH PALO ALTO MINIMUM WAGE ORDINANCE. CONSULTANT shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, CONSULTANT shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, CONSULTANT shall post notices regarding the Palo Alto Minimum Wage Ordinance DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 8 in accordance with Palo Alto Municipal Code section 4.62.060. SECTION 25. NON-APPROPRIATION 25.1. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 26. PREVAILING WAGES AND DIR REGISTRATION FOR PUBLIC WORKS CONTRACTS 26.1 This Project is not subject to prevailing wages. CONSULTANT is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7 if the contract is not a public works contract, if the contract does not include a public works construction project of more than $25,000, or the contract does not include a public works alteration, demolition, repair, or maintenance (collectively, ‘improvement’) project of more than $15,000. SECTION 27. MISCELLANEOUS PROVISIONS. 27.1. This Agreement will be governed by the laws of the State of California. 27.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California. 27.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees ex pended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorneys’ fees paid to third parties. 27.4. This document represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 27.5. The covenants, terms, conditions and provisions of this Agreement will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 27.6. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 9 27.7. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be a part of this Agreement. 27.8 In the event of a conflict between the terms of this Agreement and the exhibits hereto or CONSULTANT’s proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONSULTANT’s proposal, the exhibits shall control. 27.9 If, pursuant to this contract with CONSULTANT, CITY shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5(d) about a California resident (“Personal Information”), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City’s express written consent. 27.10 All unchecked boxes do not apply to this Agreement. 27.11 The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 27.12 This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 10 CONTRACT No. C19173096 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. CITY OF PALO ALTO APPROVED AS TO FORM: _ _________________________ City Attorney or designee PROSPECT SILICON VALLEY Attachments: EXHIBIT “A”: SCOPE OF SERVICES EXHIBIT “B”: SCHEDULE OF PERFORMANCE EXHIBIT “C”: COMPENSATION EXHIBIT “C-1”: SCHEDULE OF RATES EXHIBIT “D”: INSURANCE REQUIREMENTS EXHIBIT “E”: FTA REQUIREMENTS DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1B DocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 11 EXHIBIT “A” SCOPE OF SERVICES CONSULTANT shall provide professional services for the implementation of the Federal Transit Administration’s (FTA) Fair Value Commuting (FVC) research grant. The grant funds this technology and policy research project designed to advance the strategic objectives of assessing and piloting mobility strategies to reduce congestion, reduce emissions and improve access to effective mobility options. The project includes the testing and deployment of key components including: ECTR: Enterprise Commute Trip Reduction software (commute recording, incentive management, and account software) MobAg/Commuter Wallet: Mobiity Aggregation software (mobile application for all-in- one trip planning and payment) Feebate: a revenue-neutral, self-sustaining mechanism to charge for some transportation services and distribute proceeds to incentivize other transportation services Gap-Fill: introduction of new transportation modes/services tailored to provide alternatives to single-occupant-driving Systemic Obstacles: analysis of the barriers for transportation for different segments of the population The CITY is the prime recipient of this grant and CONSULTANT shall work under the direction of the CITY and in conjunction with the project vendors and partners to develop and implement the grant. Project partners and vendors that CITY and CONSULTANT may engage with include, but are not limited to, software vendors, policy vendors, NGO’s, transit operators, local city governments and private organizations. The CONSULTANT shall help develop and implement this grant within the policy framework set forth by the CITY and the FTA and act with independent judgment as necessary to ensure deliverables are met in accordance with the terms of this exhibit. CONSULTANT shall immediately notify the CITY if deliverables are at risk of not being met in accordance with the terms of this exhibit. The following six tasks define the CONSULTANT’s scope of services. Task 1: Project Administration (5%) CONSULTANT shall provide internal project management oversight and ensure CITY’s project management team is fully informed of project status. CONSULTANT shall also offer project direction and ensure budget and objectives are met or adapted appropriately. Specific objectives for CONSULTANT include: 1. Provide written monthly status reports for CITY’S FVC project management team. 2. Provide monthly invoices with hours, rate detail, in-kind match and description of work performed by CONSULTANT subject to CITY’s terms and invoice. 3. Meet with CITY’s FVC project management team no less than a bi-weekly basis to check in and determine project strategy. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 12 4. Assist the CITY in developing and maintaining the project management plan 5. Assist CITY’s project management team with preparing written monthly & quarterly progress reports for FTA. CITY shall file the Quarterly Milestone Progress Reports (MPR) and Federal Financial Reports (FFR) with FTA. 6. Participate in FTA and other stakeholder meetings as needed. 7. Work with CITY to assist Independent Evaluator Team in collecting readily accessible data and assist with introductions to stakeholders for information under the direction of the CITY. Task 2: Manage Software Enhancement and Development (35%) CONSULTANT shall lead this task to engage partners and vendors to develop an integrated mobility software system consisting of two types of software that will each be enhanced to work with one another. One software type is Enterprise Commute Trip Reduction (ECTR) platform, that is deployed by employers to record employee commute modes and to manage incentive programs. Based on generally available features in the marketplace, it is envisioned that ECTR software will need to be enhanced in some ways, that may include: accurate commute mode detection (includes software integration of gap filling features); integration with a MobAg/Commuter Wallet app; employer payroll integration; regional dashboard; traffic analysis zone (TAZ) -level origin/destination (O/D) reporting; mobile ticketing; and pre-booking of multi-modal trips. CONSULTANT will coordinate a prioritization exercise of the desired feature enhancements in order to develop a vendor scope that reflects the project budget. The other type of software is an envisioned Mobility Aggregation (MobAg)/Commuter Wallet solution that would enable commuters to plan trips, pay for associated transportation and parking services, receive and store various commuter benefits, and report usage data, all via a single point of interface. The goal is to make it easier for users to make commute choices that minimize single-occupant vehicle (SOV) travel, and to collect and share data on the impact of transit and commuter incentives on travel behaviors with employee commute benefit programs. A commercially available MobAg/Commuter Wallet solution will likely need to be adapted to interact with the ECTR platform, and may need to be enhanced depending on feature set. As described in more detail below, CONSULTANT shall conduct this task by convening the project team to define software requirements; conducting the vendor selection process and recommending vendors; developing vendor scopes that reflect critical feature enhancements against available budget; managing vendor performance; and coordinating the reporting and transfer of data received from the software platforms. CITY shall be responsible for contracting with, and making final selection of, recommended software vendors. Specific objectives for the CONSULTANT: 1. Integrated Systems Model a. Define with key stakeholders, such as pilot partners, the feature set for the integrated mobility software system. This feature set will define the business DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 13 models, use cases and core features (required and ‘nice to have’) across the ECTR and Mob/Ag platforms. 2. ECTR a. Develop vendor scopes and align to available development budgets. b. Work with vendors and employers to specify features, user experience and functional requirements of feature set enhancement (see below). c. Manage vendor performance, grant funds and schedules. d. Coordinate with partners to assist with integration, provide data, use and test ECTR reporting and dashboards, evaluate outcomes, and determine policy recommendations if any. 3. MobAg/Commuter Wallet a. Manage staff and stakeholders to specify functional requirements, feature sets, user experience requirements and use cases for Mobility Aggregation software. b. Assess current product offerings to evaluate whether products available on the market meet the objectives and if no, identify feature gaps. c. Provide to the City of Palo Alto technical assistance on the requirements for an RFP the City will issue to purchase or develop MobAg software; Assist with scoring proposals. d. Provide technical assistance on the requirements to the chosen vendor for requirements refinement and enhancement development to be managed and executed by the vendor. e. Provide technical assistance to the City on managing the chosen vendor including software development best practices such as functional and technical requirements formats, user and acceptance testing and other methodology. Coordinate partners for beta testing. f. Provide technical assistance to the City on deployment, including coordinating across project partners to encourage marketing of the software. Task 3: Employer Pilots (30%) CONSULTANT shall work with CITY to train and deploy 4 to 11 consortium employers in FVC pilot projects to reduce SOV commuting and assess needs to support employers in achieving reductions. Specific objectives for the CONSULTANT: 1. Employer Champions: The CITY will identify and create a pool of pilots. CONSULTANT shall work with the CITY to train one or more champions at each Employer organization to advance the strategies in the FVC program including: encourage and support the adoption and use of the Enterprise Commute Trip Reduction (ECTR) software, facilitate the adoption of a feebate policy, and support employee DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 14 engagement (through “Green Commute Teams”, incentive programs, and/or other measures). 2. Deploy ECTR: Track the deployment of ECTR software (RideAmigos for San Mateo County sites & Luum for other sites). 3. Engage employers to assess feasibility and approaches for feebate carrot/stick policies. Task 4: Gap-Filling experiments to address first mile/last mile challenges (15%) Support the development of mobility solutions to address “gaps” identified in the commute sheds of the employer pilots. This task is intended to identify and recommend new mobility services for employers based on a data-based analysis. CONSULTANT, possibly working with a transportation consultant, shall generate a memo reporting the results of the data analysis, use cases, and prospective solutions. Specific objectives for the CONSULTANT: 1. Analyze Commute Shed: a. Collect readily accessible data (including Streetlight data) on baseline commute patterns either through existing employer data, public agencies (Commute.org, MTC, VTA) or online employee survey as feasible. b. Assist CITY and/or hired transportation consultant to develop an employer commute shed analysis to identify gaps and potential solutions for first mile/last mile challenges utilizing the Streetlight Data to be provided by the City of Palo Alto and the available baseline data. 2. With CITY and/or transportation consultant, identify gap “use cases” and prospective solutions. Propose solutions to relevant employers and public agencies strategies to address gaps such as e-scooters/e-bikes, ridesharing (Scoop, Lyft Carpool), Lyft/Uber, microtransit, and/or AV platforms. 3. Provide technical consultation support to Palo Alto TMA for the development of a plan by Palo Alto TMA for equitable and equivalent mobility service for all travelers, including communities such as low income, the aging population, and persons with disabilities. Task 5: Policy Work & Knowledge Transfer (SPUR) (5%) Develop policy recommendations for addressing systemic barriers to a robust, regionally comprehensive and equitable FVC mobility system. Specific objectives for the CONSULTANT: DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 15 1. Provide technical consultation support and partner introductions to SPUR for the development of a whitepaper identifying systemic barriers and recommended solutions. Task 6: Draft and Final project report (10%) CONSULTANT shall prepare a draft and a final project report for the Federal Transit Administration. The report shall document the project process/methodology, challenges/barriers encountered, lessons learned, and recommendations for future research from the FVC project perspective. Evaluation results do not need to be included in the project report as the independent evaluator will be responsible for producing an evaluation report for the site. Deliverables: Draft project report. Final project report. DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 16 EXHIBIT “B” SCHEDULE OF PERFORMANCE CONSULTANT shall perform the Services so as to complete each milestone within the number of days/weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within two weeks of receipt of the notice to proceed. Milestone Completion Software Enhancement 1. ECTR: Define feature set enchancements, as needed, with vendors 10/31/18 2. MobAg: Requirements Defined 9/15/18 3. MobAg: Proposals Reviewed/Scored* 1/31/19 4. Vendor Selected** 2/15/19 5. MobAg: app available 9/30/19 Employer Pilots 6. Kick Off First Employer Pilot 10/1/18 7. Employer Pilot Data Provided to Evaluator ongoing Gap Filling 8. Commute Shed Analysis of First Employer 10/31/18 9. Identify gap use cases and gap fillers for First Employer 11/30/18 10. Consult with Palo Alto TMA on equitable solutions plan 1/31/19 Reports 11. Draft Report 10/31/19 12. Final Report 12/15/19 * dependent on City of Palo Alto getting RFP published by 11/1/18 and imposing a deadline for responses by 12/31/18. ** dependent on timely review by City of Palo Alto of CONSULTANT’s scored proposals DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 17 EXHIBIT “C” COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the hourly rate schedule attached as exhibit C-1 up to the not to exceed budget amount for each task set forth below. CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY’s Project Manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, and the total compensation for Additional Services do not exceed the amounts set forth in Section 4 of this Agreement. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Task 1 $11,250 (Project Administration) Task 2 $78,750 (Software Enhancement) Task 3 $67,500 (Employer Pilots) Task 4 $33,750 (Gap Filling Experiments) Task 5 $11,250 (Policy Work, Knowledge Transfer) Task 6 $22,500 (Draft and Final Project Report) Sub-total Basic Services $225,000.00 Reimbursable Expenses $0.00 Total Basic Services and Reimbursable expenses $225,000.00 DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 18 Maximum Total Compensation $225,000.00 SOME SERVICES TO BE PROVIDED IN KIND In addition to the Services to be paid for under this Agreement, the CONSULTANT agrees to provide in-kind (no cost) services worth no less than Forty Thousand Dollars ($40,000). The Services provided in-kind shall be invoiced at the hourly rates set in Exhibit C-1 and explicitly off-set from cash payment as “in kind” on each invoice. These in-kind services are in line with the City’s Cooperative Agreement with the Federal Transit Administration (FTA). REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: none All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $100 shall be approved in advance by the CITY’s project manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s proje ct manager’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 19 EXHIBIT “C-1” SCHEDULE OF RATES LABOR CATEGORY FY 2019 rate per hour Project Director $130 Project Manager $95 Project Senior Associate $70 Project Associate $50 DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 20 EXHIBIT “D” INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 YES PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY (30) DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE AT THE FOLLOWING URL: https://www.planetbids.com/portal/portal.cfm?CompanyID=25569. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 21 INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE CONSULTANT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. VENDORS ARE REQUIRED TO FILE THEIR EVIDENCE OF INSURANCE AND ANY OTHER RELATED NOTICES WITH THE CITY OF PALO ALTO AT THE FOLLOWING URL: HTTPS://WWW.PLANETBIDS.COM/PORTAL/PORTAL.CFM?COMPANYID=25569 OR HTTP://WWW.CITYOFPALOALTO.ORG/GOV/DEPTS/ASD/PLANET_BIDS_HOW_TO.ASP DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Professional Services Rev. April 27, 2018 22 EXHIBIT “E” FTA REQUIREMENTS CONSULTANT agrees to follow all federal laws and regulations, including applicable provisions of the Federal Transit Administration’s (FTA) Master Agreement, as updated by the FTA from time to time. This includes adhering to those sections of the Master Agreement in which Third Party Participants or Third Party Contracts are required to comply with or contain, respectively. These provisions include, but are not limited to, the following sections of the FTA Master Agreement, dated October 1, 2017, and as may be updated by the FTA, and are made part of this Exhibit by reference: Section 3.i.(6) Notice to Third Party Participants. Section 4.a. Standards of Conduct. Section 4.b. Debarment and Suspension. Section4.d. Lobbying Restrictions. Section4.g. Trafficking in Persons. Section 7.b. Eligible Costs. Section 9.a. Types of Records. Section 9.c. Access to Recipient and Third Party Participant Records. Section 9.d. Access to the Sites of Performance. Section 9.e. Closeout. Section 12. Civil Rights. (the entire section). Section 16.d(7). Clean Air Act and the Federal Water Pollution Control Act, as amended. Section 16.d(9). Byrd Anti-Lobbying Amendment. Section 16.s. Access to Third Party Contract Records. Section 24.b. Awards Not Involving Construction (Employee Protections) Section 24.c. Awards Involving Commerce Section 26. Environmental Protections (entire section). Section 35.b. Alcohol Misuse and Prohibited Drug Use. Section 36. Protection of Sensitive Security and Other Sensitive Information. Section 38. Freedom of Information. As of the date of execution of this Agreement, the FTA Master Agreement can be found at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grantee-resources/sample-fta- agreements/114766/fta-master-agreement-fy2018.pdf DocuSign Envelope ID: 43D4E167-0204-4EE6-AD4D-ABFB61BEAB1BDocuSign Envelope ID: 6B570725-362B-4738-9B11-7EC8EF421F92 Certificate Of Completion Envelope Id: 6B570725362B47389B117EC8EF421F92 Status: Completed Subject: Please DocuSign: C19173096 ProspectSV PSA (TS 7-26)_HMR_KJ_v3 (TS 7-30) (2).pdf Source Envelope: Document Pages: 22 Signatures: 2 Envelope Originator: Certificate Pages: 2 Initials: 0 Christopher Anastole AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 chris.anastole@cityofpaloalto.org IP Address: 12.220.157.20 Record Tracking Status: Original 9/24/2018 11:10:11 AM Holder: Christopher Anastole chris.anastole@cityofpaloalto.org Location: DocuSign Security Appliance Status: Connected Pool: City of Palo Alto Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign Signer Events Signature Timestamp Tim Shimizu Tim.Shimizu@CityofPaloAlto.org Deputy City Attorney Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 12.220.157.20 Sent: 9/24/2018 12:41:36 PM Viewed: 10/1/2018 9:07:45 AM Signed: 10/1/2018 9:08:29 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Ed Shikada Ed.Shikada@CityofPaloAlto.org Assistant City Manager City of Palo Alto Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 12.220.157.20 Sent: 10/1/2018 9:08:31 AM Viewed: 10/1/2018 3:01:20 PM Signed: 10/1/2018 3:01:46 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Ruth Cox ruth.cox@prospectsv.org Chief Executive Officer Security Level: Email, Account Authentication (None) Sent: 10/1/2018 3:01:47 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Carbon Copy Events Status Timestamp Karen Janowski karen.janowski@prospectsv.org x Security Level: Email, Account Authentication (None) Sent: 10/1/2018 3:01:48 PM Viewed: 10/1/2018 4:06:39 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Hillary Rupert Hillary.Rupert@CityofPaloAlto.org Security Level: Email, Account Authentication (None) Sent: 10/1/2018 3:01:49 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Irma Mora Irma.Mora@CityofPaloAlto.org Administrative Associate III City of Palo Alto Security Level: Email, Account Authentication (None) Sent: 10/1/2018 3:01:50 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/1/2018 3:01:50 PM Certified Delivered Security Checked 10/1/2018 3:01:50 PM Signing Complete Security Checked 10/1/2018 3:01:50 PM Completed Security Checked 10/1/2018 3:01:50 PM Payment Events Status Timestamps City of Palo Alto (ID # 9814) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: SRF Reimbursement Resolutions for RWQCP Discharge Infrastructure and Primary Sedimentation Projects Title: Adoption of Reimbursement Resolutions to Designate the Amount of Project Expenditures to be Reimbursed by Clean Water State Revolving Fund Proceeds for the Funding of the Discharge Infrastructure Improvement (Outfall Pipeline) and the Primary Sedimentation Tanks and Electrical Upgrade Projects at the Palo Alto Regional Water Quality Control Plant From: City Manager Lead Department: Publi c Works Recommendation Staff recommends that Council: 1. Adopt a Resolution (Attachment A) designating the expenditure amount, $11,760,000 for construction of the Discharge Infrastructure Improvement Project (CIP WQ-19000), to be reimbursed by proceeds from the Clean Water State Revolving Fund (SRF); and, 2. Adopt a Resolution (Attachment B) designating the expenditure amount, $16,368,000 for design and construction of the Primary Sedimentation Tanks and Electrical Upgrade Project (CIP WQ-14003), to be reimbursed by proceeds from the SRF. Background The Regional Water Quality Control Plant (RWQCP), originally constructed in 1934, has undergone several expansions and upgrades. A Long Range Facilities Plan (LRFP) was completed in 2012 to provide a plan for future capital projects at the RWQCP. In October 2016, Council adopted a resolution authorizing the City Manager or his designee to execute State Revolving Fund Financial Assistance Applications from the State Water Resources Control Board (SWRCB) for the planning, design, and construction of projects identified in the LRFP. The projects City of Palo Alto Page 2 identified in the LRFP include the Discharge Infrastructure Improvement (Outfall Pipeline) Project and the Primary Sedimentation Tanks and Electrical Upgrade Project. Previously, the City obtained SRF loans for the Ultraviolet Disinfection Facility ($8.5 million, 20-year term), Palo Alto/Mountain View Recycled Water Pipeline Project ($9.0 million, 20-year term), and Sludge Dewatering and Truck Loadout Facility ($25.7 million, 30-year term). Discussion Staff intends to apply for two low-interest rate SRF loans issued by the SWRCB to finance the construction of the Discharge Infrastructure Improvement Project, which is also known as the Outfall Line Construction (CIP project WQ-19000); and design and construction of the Primary Sedimentation Tanks and Electrical Upgrade Project (CIP project WQ-14003). Design costs for the Discharge Infrastructure Improvement Project are not included in the SRF loan application, as these costs have been funded on a pay-as-you-go basis using minor capital funding. Very recent process changes from the State indicate that the City has only one opportunity per year to apply for SRF financial assistance. Application packages are to be submitted by December 31, 2018. The 2019 SRF eligibility will be granted to applicants during the first quarter of 2019, according to their new process description. In the event the SRF loan eligibility is granted, staff will return to Council for approval of the loan agreements and construction contracts. The RWQCP partner agencies previously approved, via amendments to partner agreements, the design of the Primary Sedimentation Tanks and Electrical Upgrade Project (Staff Report #7144). Staff will return to Council in 2019 with additional amendments to the partner agreements that approve the construction projects and repayment of the SRF loans. The SRF application includes four packages – General Information, Technical, Environmental, and Financial Security. To complete the Financial Security Packages, Council adoption of the following reimbursement resolutions is required. 1. Adoption of Reimbursement Resolution for the Discharge Infrastructure Improvement Project (Attachment A) The SRF program requires the City to pay in advance for certain tasks (project administration, construction management and facility construction) to be reimbursed by the SRF loan. Through the City of Palo Alto Page 3 Reimbursement Resolution, Council will designate a maximum of $11,760,000 in expenditures for the construction of the Discharge Infrastructure Improvement Project. 2. Adoption of Reimbursement Resolution for the Primary Sedimentation Tanks and Electrical Upgrade Project (Attachment B) The SRF program requires the City to pay in advance for certain tasks (facility design, project administration, construction management and facility construction) to be reimbursed by the SRF loan. Through the Reimbursement Resolution, Council will designate a maximum of $16,368,000 in expenditures for the design and construction of the Primary Sedimentation Tanks and Electrical Upgrade Project. Staff is also considering revenue bonds as a backup financing mechanism for the SRF loans, in case the State does not approve the SRF loans. At its December 4, 2018, meeting, the Finance Committee discussed a proposed resolution relating to revenue bonds for the RWQCP. Staff will take the proposed resolution to Council for approval as the first step to initiate the process to cover certain capital projects including the two subject projects in this report. The SRF loans have a lower interest rate than bonds, and are more desirable, but the State has more applications than available funds. Therefore, the City should take the preliminary steps for the SRF loans and revenue bonds simultaneously. Timeline The SRF application packages will be submitted before December 31, 2018. Project eligibility will be determined by the SWRCB during the first quarter of 2019. Subsequent SRF loan processes will require additional Council actions including approval of the final loan amounts (Final Budget Approval Package) following the approval of construction contracts and amendments to the RWQCP partner agreements. Staff will return to Council accordingly. Resource Impact No financial impacts are associated with the adoption of the resolutions. Applying for SRF loans does not obligate the City to proceed with the construction of the Discharge Infrastructure Improvement Project and the Primary Sedimentation Tanks and Electrical Upgrade Project. The resource impact of proceeding with the City of Palo Alto Page 4 construction of these projects will be evaluated when Council approval for each construction project is requested. Funding for the design of the Discharge Infrastructure Improvement Project (Contract C17164199, Staff Report #7245) is in the Wastewater Treatment Enterprise Fund Capital Improvement Program (CIP) Project WQ-19000. Funding for the design of the Primary Sedimentation Tanks and Electrical Upgrade Project (C18168129, Staff Report #8729) is in the Wastewater Treatment Enterprise Fund CIP Project WQ-14003, and the funds reserved will be reimbursed with the SRF loan principal (or revenue bond). Repayment of the 30-year SRF loans for the Discharge Infrastructure Improvements Project and the Primary Sedimentation Tanks and Electrical Upgrade Project would begin a year after construction completion, and is expected to begin in winter 2023. The repayment would be included as an expense in the Fiscal Year 2023 Wastewater Treatment and Wastewater Collection Fund’s operating budgets. Approximately 62% of the fund’s operating expenses are offset by revenue from the RWQCP partner agencies. Staff will obtain partner agreement amendments in 2019. Policy Implications Adoption of the resolutions does not represent a change in existing policies. Environmental Review On May 21, 2018, Council approved the design and adopted a resolution for Mitigated Negative Declaration and related mitigation monitoring and reporting program for the construction of a new outfall pipeline to discharge treated effluent from the RWQCP to San Francisco Bay (Staff Report #9096). On October 15, 2018, Council determined the construction of the Primary Sedimentation Tanks Rehabilitation and Electrical Upgrade Project to be exempt from the California Environmental Quality Act and approved the preliminary design (Staff Report #9581). Adoption of the SRF reimbursement resolutions is not an action that requires CEQA review. This action does not meet the definition of a project for the purposes of CEQA, under Public Resources Code Section 21065 and CEQA City of Palo Alto Page 5 Guidelines Section 15378(b)(5), because they are administrative governmental activities which will not cause a direct or indirect physical change in the environment. Attachments: Attachment A: Reimbursement Resolution for RWQCP Discharge Infrastructure Improvements Project Attachment B: Reimbursement Resolution for Primary Sedimentation Tanks and Electrical Upgrade Project NOT YET APPROVED Resolution No. Resolution of the Council of the City of Palo Alto Authorizing the Reimbursement of Funding for the Regional Water Quality Control Plant Discharge Infrastructure Improvement Project from the State Water Resource Control Board R E C I T A L S A. The City of Palo Alto (the “City”) desires to finance the costs of constructing and/or reconstructing certain public facilities and improvements relating to its water and wastewater system, including certain treatment facilities, pipelines and other infrastructure (the "Project"). B. The City intends to finance the construction and/or reconstruction of the Project or portions of the Project with moneys ("Project Funds") provided by the State of California, acting by and through the State Water Resources Control Board (“State Water Board”). C. The State Water Board may fund the Project Funds with proceeds from the sale of obligations, the interest upon which is excluded from gross income for federal income tax purposes (the "Obligations"). D. Prior to either the issuance of the Obligations or the approval by the State Water Board of the Project Funds the City desires to incur certain capital expenditures (the "Expenditures") with respect to the Project from available moneys of the City. E. The City has determined that those moneys to be advanced on and after the date hereof to pay the Expenditures are available only for a temporary period and it is necessary for the State Water Board to reimburse the City for the Expenditures from the proceeds of the Obligations. NOW, THEREFORE, the Council of the City of Palo Alto RESOLVES as follows: SECTION 1. The City hereby states its intention and reasonably expects to reimburse Expenditures paid prior to the issuance of the Obligations or the approval by the State Water Board of the Project Funds. SECTION 2. The reasonably expected maximum principal amount of the Project Funds is $11,760,000. SECTION 3. This resolution is being adopted no later than 60 days after the date on which the City will expend moneys for the construction portion of the Project costs to be reimbursed with Project Funds. SECTION 4. Each City expenditure will be of a type properly chargeable to a capital account under general federal income tax principles. SECTION 5. To the best of our knowledge, the City is not aware of the previous adoption of official intents by the City that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued. SECTION 6. This resolution is adopted as official intent of the City in order to comply with Treasury Regulation §1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of Project costs. SECTION 7. All the recitals in this resolution are true and correct and this City so finds, determines and represents. SECTION 8. The Council finds that its authorization of funding reimbursement does not constitute a project requiring review under the California Environmental Quality Act (CEQA) or CEQA Guidelines. This action does not meet the definition of a project under Public Resources Code Section 21065 and CEQA Guidelines Section 15378(b)(5) because it is an administrative governmental activity which will not cause a direct or indirect physical change in the environment. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: City Clerk Mayor APPROVED AS TO FORM: APPROVED: Assistant City Attorney City Manager Director of Public Works NOT YET APPROVED Resolution No. Resolution of the Council of the City of Palo Alto Authorizing the Reimbursement of Funding for the Regional Water Quality Control Plant Primary Sedimentation Tank and Electrical Upgrade Project from the State Water Resource Control Board R E C I T A L S A. The City of Palo Alto (the “City”) desires to finance the costs of design and constructing and/or reconstructing certain public facilities and improvements relating to its water and wastewater system, including certain treatment facilities, pipelines and other infrastructure (the "Project"). B. The City intends to finance the construction and/or reconstruction of the Project or portions of the Project with moneys ("Project Funds") provided by the State of California, acting by and through the State Water Resources Control Board (State Water Board). C. The State Water Board may fund the Project Funds with proceeds from the sale of obligations the interest upon which is excluded from gross income for federal income tax purposes (the "Obligations"). D. Prior to either the issuance of the Obligations or the approval by the State Water Board of the Project Funds the City desires to incur certain capital expenditures (the "Expenditures") with respect to the Project from available moneys of the City. E. The City has determined that those moneys to be advanced on and after the date hereof to pay the Expenditures are available only for a temporary period and it is necessary for the State Water Board to reimburse the City for the Expenditures from the proceeds of the Obligations. NOW, THEREFORE, the Council of the City of Palo Alto RESOLVES as follows: SECTION 1. The City hereby states its intention and reasonably expects to reimburse Expenditures paid prior to the issuance of the Obligations or the approval by the State Water Board of the Project Funds. SECTION 2. The reasonably expected maximum principal amount of the Project Funds is $16,368,000. SECTION 3. This resolution is being adopted no later than 60 days after the date on which the City will expend moneys for the construction portion of the Project costs to be reimbursed with Project Funds. SECTION 4. Each City expenditure will be of a type properly chargeable to a capital account under general federal income tax principles. SECTION 5. To the best of our knowledge, the City is not aware of the previous adoption of official intents by the City that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued. SECTION 6. This resolution is adopted as official intent of the City in order to comply with Treasury Regulation §1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of Project costs. SECTION 7. All the recitals in this resolution are true and correct and this City so finds, determines and represents. SECTION 8. The Council finds that its authorization of funding reimbursement does not constitute a project requiring review under the California Environmental Quality Act (CEQA) or CEQA Guidelines. This action does not meet the definition of a project under Public Resources Code Section 21065 and CEQA Guidelines Section 15378(b)(5), because it is an administrative governmental activity which will not cause a direct or indirect physical change in the environment. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: City Clerk Mayor APPROVED AS TO FORM: APPROVED: Assistant City Attorney City Manager Director of Public Works City of Palo Alto (ID # 9843) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Adoption of MOA for UMPAPA Title: Adoption of a Memorandum of Agreement Between the City of Palo Alto and Utilities Management and Professional Association of Palo Alto From: City Manager Lead Department: Human Resources Recommendation Staff recommends that Council adopt a new Memorandum of Agreement (MOA) between the City of Palo Alto and the Utilities Management and Professional Association of Palo Alto (UMPAPA) effective upon adoption through June 30, 2019. Background As a local public agency, the City of Palo Alto is required under California State law to meet and confer in good faith with its recognized labor organizations to reach agreements regarding wages, hours and other terms and conditions of employment1. The teams of negotiators, including City representatives comprised of outside counsel, Human Resources staff and management representatives, met with labor representatives in good faith and successfully reached a tentative agreement. A summary of the agreement terms is included in this report and the proposed Memoranda of Agreement are attached as exhibits. The Utilities Management and Professional Association of Palo Alto (UMPAPA) formally petitioned for recognition as an employee association in November of 2009. UMPAPA c onsists of 48 budgeted full-time positions, covering all supervisory and management level classifications within the Utilities Department. Classifications such as Sr. engineers which 1 The Meyers-Milias Brown Act (MMBA), adopted in 1968 as Government Code 3500, establishes the legal framework under which the public agency and labor organizations are required to meet and confer in good faith. As defined in the MMBA, the Memoranda of Agreement is a legally binding contract between the parties. City of Palo Alto Page 2 oversees the construction, updating, and building of our critical Utilit y infrastructure, Sr. Resource Management classifications that run our overall commodity purchasing and long term strategies, as well as our front line supervisor who oversee the day to day operation of our utilities. Since petitioning for recognition in 2009, the City and UMPAPA met through several rounds of bargaining, but the parties have previously not been successful in establishing the bargaining group’s first Memorandum of Agreement. Since a Memorandum of Agreement had not been established since the inception of UMPAPA, in June 2013 Council unilaterally imposed terms and conditions on UMPAPA. The imposed terms included wage adjustments for UMPAPA employees. After the imposed terms, the City and UMPAPA have continued to negotiate. However, since 2 013 this bargaining unit has not received any general wage increases or changes to medical premiums or other benefits. At present, the Utilities department is experiencing a high number of vacancies and voluntary departures. Key leadership positions within Water, Gas, Wastewater, Engineering and Operations division have been hard to recruit and retain over the past 3 years. UMPAPA employees have also experienced compaction with the positions that they supervise, as the front-line employees represented by SEIU 521 have consistently received increases while UMPAPA salaries have remained flat since 2013 due to the lack of an agreement. In some cases, a front-line employee would receive less salary if they promoted to a supervisor represented by UMPAPA. Discussion For the most recent round of negotiations from 2017 to the present, Council prioritized several key principles to address in negotiations with UMPAPA; (1) Recruitment and Retention -- The City worked with an outside classification and compensation consultant2 to evaluate the market and appropriate pay to be competitive. This analysis was focused on finding the appropriate place within the Utility marketplace for Palo Alto to recruit and retain qualified employees. In addition to the market study referenced above, the City’s Human Resources department conducted an analysis of internal alignment of management positions across the City, as additional data points to determine appropriate increases. HR’s review indicated that since 2013, the unrepresented Management and Professional unit (positions not in UMPAPA) received average base wage increases of 2.5% per year . 2 Ralph Anderson LLC City of Palo Alto Page 3 (2) Cost Containment -- To address the City’s long-term financial security and to limit the City’s exposure to spikes in medical and/or pensions costs, the parties agreed that employees would make additional contributions to the retirement system (CalPERS) consistent with other miscellaneous bargaining units. Additionally, the City capped the contribution to medical premiums; this cap is consistent with other bargaining units. (3) Management Rights -- It is important that executive leadership within the City retain the right to decide the scope and nature of service delivery within the organization, discipline procedures, annual merit increases, and in range salary adjustments. Some features of the tentative agreement reached between the parties include: Upon Adoption by Council, a 12% base Salary increase; Medical contributions are capped, this will replace previous 90% City/10% Employee cost-share model; Re-alignment of classification within job families creating clear lines of succession and promotion and streamlining future market studies; Employee contribution of 1% of Salary towards CalPERS retirement costs in addition to member contributions.3 Discipline process appealable to the City Manager per the Merit rules; and Grievance process for contractual disputes referred to neutral outside arbitration After nine years without a Memorandum of Agreement, this tentative agreement is intended to address the City’s need to recruit top talent, incentivize progression within the Utility ranks for succession planning and set the framework for positive negotiations for future successor contracts. Resource Impact The marginal cost of this memorandum of agreement is anticipated to be $1.11 million. If the additional cost associated with calculating the normal cost at a 6.2 discount rate for the Fiscal Year 2019 pension rates were included, the marginal cost would be approximately $1.14 million, or 2.7 percent more. The entirety of UMPAPA is budgeted in enterprise funds, including the Electric Fund, the Gas Fund, the Water Fund, and the Wastewater Collection Fund. Since no UMPAPA positions are budgeted in the General Fund, this Memorandum of Agreement will not have an impact on the General Fund. Since the contract with MOA will only be in effect for the remainder of FY 2019, approximately six months of the fiscal year, the costs in FY 2019 are anticipated to be $677,000. 3 Member contribution for classic miscellaneous employees is traditionally 8%. Total employee contribution under this MOA would be 9% of salary. City of Palo Alto Page 4 At the time the FY 2019 Operating Budget was developed, the memorandum of agreement with UMPAPA was nearing its final stages. Based on the status of negotiations at the time, the FY 2019 Adopted Operating Budget included assumptions for anticipated salary and benefit increases for UMPAPA. Sufficient funding is available in the Utilities enterprise funds for these increases and salary and benefit adjustments were factored into the calculation of the FY 2019 rate forecasts for the various utilities. Although the MOA expires June 30, 2019, the ongoing impacts of these increases will need to be factored into the development of the FY 2020 Operating Budget and discussed as part of the FY 2020 Budget development process. Policy Implications This contract is consistent with the City’s Guiding Labor Principles adopted by Council on April 9, 2012. Environmental Review Approval of a contract with MOA affecting the wages, hours and working conditions of City employees is not a project under the California Environmental Quality Act (CEQA). Attachments: Summary of Terms UMPAPA MOA 18-19 Unsigned Utilities Management and Professional Association (UMPAPA ) Summary of Terms Tentative Agreement Reached on November 5, 2018 This summary of terms is not inclusive of all changes proposed in the attached memorandum of agreement but a high level overview. Other sections and items were/may have been amended as cleanup or to conform to updated legal definitions. Summary of Terms MOA Section Description TERM Expires June 30, 2019 Article 6, Section 1, Compensation 12% Effective the First full pay period Following Ratification. Article 6, Section 1 and 3 Creation of Job families with structured compensation ranges allowing for clear lines of succession and career paths. Streamlined market study process by use of benchmark classification for future market studies. Article 7, Section 1, (b) Active Employee Medical Medical Premium Category Maximum City Contribution Effective Jan 1, 2019 EE only $840 EE plus one $1680 EE plus family $2180 Article 7, Section 1, (e) Update and align retiree medical with other represented and unrepresented City employees offering a 90 day opt in to the 22893 CalPERS retiree medical plan. Article 8, Deferred Comp The City will no longer provide management excess benefit, instead the city will match employee contributions to City sponsored 457 plans up to a maximum of $4500. No combination of City or employee funds can exceed IRS limits. Article 11, (D) Retirement Pensions In addition to paying the full member contribution to pensions, employee’s covered by the memorandum with contribute an additional 1% of salary towards the employer’s pension contributions. Article 13 Grievance Procedure Disputes over the contents of this agreement and this agreement alone, will be referred to a neutral third party whose decision will be final and binding. Discipline will continue to be governed by the internal City Merit Rules which is appealable up to the City Manager, whose decision is final. Appendix A Updated Salary schedule with job families, and compensation ratios. Appendix B Reserves the right for either party to appeal the final decision related to PERB case No. SF-CE-1413. 0 CITY OF PALO ALTO Memorandum of Agreement City of Palo Alto and Utilities Management and Professional Association of Palo Alto Effective dates: December 10, 2018 – June 30, 2019 Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 1 Contents PREAMBLE .................................................................................................................................. 2 ARTICLE I – RECOGNITION .................................................................................................. 2 ARTICLE II – NO DISCRIMINATION .................................................................................... 2 ARTICLE III – PAYROLL DUES DEDUCTION .................................................................... 2 ARTICLE IV – WORK STOPPAGE AND LOCKOUTS ........................................................ 3 ARTICLE V – CITY RIGHT TO MANAGE ............................................................................ 3 ARTICLE VI – COMPENSATION ............................................................................................ 3 Section 1 – Job Families and Salary Schedule ............................................................................ 3 Section 2 – Base Salary Increases ............................................................................................... 3 Section 3 – Market Based Adjustments ...................................................................................... 4 ARTICLE VII – HEALTH BENEFITS ..................................................................................... 4 Section 1 – Group Insurance ....................................................................................................... 4 Article VIII – DEFERRED COMPENSATION MATCH ........................................................ 8 ARTICLE IX – LEAVES ............................................................................................................. 8 Section 1 – Sick Leave ................................................................................................................ 8 Section 2 – Management Annual Leave ..................................................................................... 9 Section 3 – Vacation ................................................................................................................... 9 Section 4 – Bereavement .......................................................................................................... 10 Section 5 – All Other Leaves .................................................................................................... 10 Section 6 – Vacation Benefits for Deceased Employees .......................................................... 10 Section 7 – Voluntary Leave Program ...................................................................................... 10 ARTICLE X – WORKERS’ COMPENSATION .................................................................... 11 Section 1 – Employees unable to work due to occupational injury, illness or disease ............. 11 Section 2 – Temporary Disability ............................................................................................. 11 ARTICLE XI – RETIREMENT PENSION ............................................................................. 11 ARTICLE XII – MISCELLANEOUS ...................................................................................... 12 Section 1 – Reimbursement for Relocation Expense ................................................................ 13 Section 2 – Meal allowance ...................................................................................................... 13 Section 3 – Reduction in Workforce ......................................................................................... 13 Section 4 - Contracting Out ...................................................................................................... 13 Section 5- Association Security ................................................................................................ 13 Section 6- Notification to the Association ................................................................................ 14 Section 7- Association Representative Access to Work Locations .......................................... 14 Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 2 Section 8- Release Time ........................................................................................................... 14 Section 9- Personnel Files ......................................................................................................... 14 ARTICLE XIII – GRIEVANCE PROCEDURE ..................................................................... 14 Section 1 - General Provisions .................................................................................................. 14 Section 2 – Definitions.............................................................................................................. 14 Section 3 - Conduct of Grievance Procedure ............................................................................ 14 Section 4 - Grievance and Appeal Procedure ........................................................................... 15 ARTICLE XIV – FULL UNDERSTANDING ......................................................................... 16 Section 1 – Full Understanding................................................................................................. 16 Section 2 – Severability ............................................................................................................ 17 Section 3 – Good Faith ............................................................................................................. 17 Section 4 – Mid-Contract Negotiations .................................................................................... 17 Section 5 – Merit System .......................................................................................................... 17 ARTICLE XV-DURATION ...................................................................................................... 17 PREAMBLE This memorandum of Agreement between the City of Palo Alto, hereinafter referred to as the “City”, and the Utilities Management and Professional Association of Palo Alto (UMPAPA), hereinafter referred to as the “Association” or “UMPAPA”, has been prepared and entered into in accordance with Title I, Division 4, Sections Chapter 10, 3500-3510 of the California government Code and Chapter 12 of the City of Palo Alto Merit System Rules and Regulations. ARTICLE I – RECOGNITION The City recognizes the Association as the exclusive representative of employees occupying positions in the bargaining unit certified by the City in accordance with the decision of Arbitrator Kagel dated April 13, 2011. ARTICLE II – NO DISCRIMINATION The Association and the City hereby agree that there shall be no discrimination because of race, color, age, handicap, sex, national origin, sexual or gender orientation, political or religious affiliation under this Agreement. There shall be no discrimination in employment conditions or treatment of employees on the basis of membership or non-membership in the Association, or participation in the lawful activities of the Association. ARTICLE III – PAYROLL DUES DEDUCTION The City shall deduct Association member dues, and any other mutually agreed upon payroll deduction from the bi-weekly pay of bargaining unit employees. The dues deduction must be authorized in writing Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 3 by the employee on an authorization form acceptable to the City and to the Association. City shall remit the deducted dues to the Association as soon as possible after deduction. ARTICLE IV – WORK STOPPAGE AND LOCKOUTS The Association, its representatives or members shall not engage in or cause, instigate, encourage, sanction or condone a work stoppage or sympathy work stoppage, withholding of services, leave of absence abuse or work slowdown of any kind against the City of Palo Alto or its citizens by its members during the term of this MOA. No Association member shall refuse to cross any picket line in the co nduct of the Utility business, nor shall the Association, its representatives or members discriminate in any way towards anyone who refuses to participate in a work stoppage or any of the job actions cited above. The City agrees that it will not lock out Association members. ARTICLE V – CITY RIGHT TO MANAGE The City retains and reserves, without limitation, all powers, rights, authority, duties, and responsibilities to manage the City as stated in the City Merit Rules, Chapter 12, Section 1207(d). Nothing in this Agreement is to be interpreted as constituting a waiver of the City’s rights and responsibilities to manage the City and create and maintain programs and services that reflect its public's wishes. The intent of this MOA is to establish wages, working hours, and conditions of employment with the Association. ARTICLE VI – Compensation Section 1 – Job Families and Salary Schedule Effective the first full pay period following adoption of this Memorandum by Council, all salaries of covered classifications shall be as listed in Appendix A. Appendix A shall clearly outline benchmark classifications for future total compensation surveys and for the purposes of internal alignment of the Association job families and career paths. If in the process of implementing the new job families and salary schedule any individual employee’s salary would be reduced, that employee will remain at their current salary until a time when the salary listed in Appendix A is equal to their current salary. The employee will then receive all future increases as negotiated and consistent with Appendix A. During the term of this agreement, the parties agree to establish a jointly-staffed benchmark committee to continue ongoing discussing regarding Job families, survey entities and other appropriate factors related to Association salaries and total compensation. All recommendations or research conducted by the committee will be included in the next bargaining process. Section 2 – Base Salary Increases Effective the first full pay period following adoption of this Memorandum by Council, the salary schedule in appendix A will be increased by twelve (12%) percent. Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 4 The methodology for implementing these increases will be to increase the benchmarked positions within each job family by the base salary increase, and then adjust the linked positions based on their differential from the benchmarked position. Each individual salary will be increased by the same percentage as the percentage increase of the current maximum to the new maximum. Section 3 – Market Based Adjustments The City will conduct a total compensation study based on the following sixteen (16) Cities: Alameda Anaheim Berkeley Burbank Daly City Fremont Hayward Long Beach Mountain View Redwood City Roseville San Jose San Mateo Santa Clara South San Francisco Sunnyvale The City’s total compensation study will include a geographic adjustment for cities which are outside of the immediate region. Those cities receiving a geographic adjustment are: Anaheim, Burbank, Long Beach, and Roseville. For the purposes of recruiting and retaining employees within the Utility market place, the parties will add to the survey universe data from Pacific Gas and Electric (PG&E) Bay Area region where data can be found. For the term of this agreement, where PG&E data cannot be verified or acquired the parties agree to include an above-median comparator for the purposes of determining benchmarks. The City’s survey is intended to provide a single source of information regarding compensation paid to bargaining unit employees and its comparison to compensation paid by other entities. The survey data does not obligate the City or the Association to propose or agree to any market based adjustments. ARTICLE VII – HEALTH BENEFITS Section 1 – Group Insurance a) Effective Date of Coverage For newly-hired regular employees coverage begins on the first day of the month following date of hire for the health plan, dental plan, vision care plan, long term disability and life insurance plans if these benefits are elected. Effective on the first of the calendar month falling sixty (60) days after adoption of this MOA, City health premium contributions (medical, dental and vision) will be prorated for part-time employees based on the number of hours per week the part-time employee is assigned to work. Until that time, part-time employees will remain subject to the practice in effect at adoption of this MOA. b) Active Employee Health Coverage During the term of this MOA, the maximum City contribution towards medical premiums for eligible full time employees per employee category shall be up to a maximum of the following for any plan: Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 5 Medical Premium Category Maximum City Contribution Effective Jan 1, 2019 EE only $840 EE plus one $1680 EE plus family $2180 For the duration of this MOA if the PEHMCA Minimum charges increase they will be included in the City’s maximum contribution and will not result in an increase to the City’s maximum contribution rates. c) Coverage for Domestic Partners. 1. Domestic Partnership Registered with the California Secretary of State: Employees may add their domestic partner as a dependent to their elected health plan coverage if the domestic partnership is registered with the Secretary of State. 2. Domestic Partner Not Registered with the California Secretary of State:; Domestic partners who meet the requirements of the City of Palo Alto Declaration of Domestic Partnership , and are registered with the Human Resources Department, will be eligible for a stipend of two hundred and eighty four dollars ($284) per month toward the cost of an individual health plan. Evidence of premium payment will be required with request for reimbursement. d) Alternative Medical Benefit Program If a regular employee and/or the employee’s dependent(s) are eligible for medical insurance through another employer-sponsored or association medical plan, the employee may opt for alternative medical insurance coverage through the other employer-sponsored or association plan and waives his/her right to the City of Palo Alto’s medical insurance coverage for same individuals. Employees waiving City coverage may receive a stipend of $284 per month. e) Retiree Health Plan a. Employees Hired Prior to January 1, 2004 Monthly City-paid premium contributions for a retiree-selected health plan through the CalPERS Health Benefits Program will be made as provided under the Public Employees' Medical and Hospital Care Act. The City's contribution for an employee hired before January 1, 2004 and whose retirement date is on or after May 1, 2011 shall be the same contribution amount it makes from time to time for active City employees. b. Post - 1/1/04 Hires Government Code section 22893 applies to those Unit members hired after January I, 2004, and provides that, upon retirement from the City an employee is eligible for 50% of the specified employer health premium contribution after ten (10) years of service credit, provided at least five of those years were performed at the City of Palo Alto. After ten years of service credit, each additional service credit year increases the employer contribution percentage by 5% until, at twenty (20) years' service credit; the employee will be eligible upon retirement for 100% of the specified employer contribution and 90% of the contribution for their dependent coverage. The City of Palo Alto's health premium contribution for eligible post - 1/1/04 hires shall be the minimum contribution set by PERS under section Government Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 6 Code section 22893. c. For employees hired prior to January 1, 2004 who wish to opt in to Government code section 22893. The City will offer a 90 calendar day period following adoption of this agreement by Council, in which employees hired prior to January 1, 2004 will have the opportunity to opt in to Government code section 22893. f) Dental Plan 1. The City shall pay covered plan charges on behalf of all eligible employees and dependents. Dependents include eligible domestic partners as defined in Section 1 subsection c of this Article VII, Health Benefits. 2. The City’s Dental Plan provides the following: a. Maximum Benefits per Calendar Year- $2,000 per person b. Lifetime Maximum for Orthodontics- The City will pay up to $2,000.00 for orthodontia coverage (not included in annual dental maximum) c. Major Dental Services 50% UCR* d. Orthodontics 50% UCR* e. Basic Benefits (All other covered services) i) First Calendar Year of Eligibility 70% UCR* ii) Subsequent Calendar Years 70%-100% iii) *Usual, Customary, and Reasonable iv) For each dental plan member, the percentage of coverage for basic benefits will begin at 70% for the first calendar year of coverage and increase by 10% (up to a maximum of 100%) effective the first day of the next calendar year as long as the member utilizes the plan at least once during the current year. Per the Delta Dental contract effective October 1, 2005, if the member does not use the plan during the current year, the percentage of coverage for the next calendar year shall remain unchanged from the current year. v) If a dental plan member loses coverage under the plan, the applicable percentage of coverage for basic benefits provided during any future period of coverage will commence at 70% as if the dental plan member was a new enrollee. Examples of when a member might lose coverage under the plan include: Employee goes on an unpaid leave of absence and elects not to pay the required dental premiums for his/her family’s coverage during the leave. Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 7 Employee elects to drop one or more covered dependents from the plan during an open enrollment period so that they might be covered on a spouse’s non-City of Palo Alto dental plan. g) Vision Care 1. The City shall provide vision care coverage for employee and dependents. Coverage is administered by Vision Service Plan (VSP). The plan will provide an exam every 12 months; lenses every 24 months; frames every 24 months, all subject to a twenty dollar ($20) co - payment as defined in the Vision Services Benefits Plan A schedule. 2. Dependents include eligible domestic partners as defined in Section 1, Subsection c of this Article VII, Health Benefits. h) No dual coverage for dental and vision benefits. When a City employee is married to or has a registered domestic partner with the California Secretary of State with another City employee, each shall only be covered once. (as an individual or as a spouse of the other City employees, but not both) and dependent children, if any, shall be covered by only one spouse. i) Basic Life Insurance The City shall provide a basic group term life insurance with Accidental Death and Dismemberment (AD&D) coverage, in an amount equal to the employee's annual basic pay (rounded to the next highest $1,000) at no-cost to the employee. AD&D pays an additional amount equal to the employee’s annual basic pay (rounded to the next highest $1,000). j) Supplemental Life And AD&D Insurance An employee may, at his/her cost, purchase additional life insurance and additional AD&D coverage equal to one- or two-times his or her annual salary. The maximum amount of life insurance available to the employee is up to $325,000 and the maximum amount of AD&D coverage available is up to $325,000. k) Long Term Disability Insurance The City shall provide long term disability (LTD) insurance with a benefit of 2/3 monthly salary, up to a maximum benefit of ten thousand dollars ($10,000) per month. The LTD plan will have a waiting period of sixty days, as provided by the applicable carrier agreement. The City shall pay the premium for the first six thousand dollars ($6,000) of base monthly salary. For employees whose base monthly salary exceeds six thousand dollars ($6,000), the employee shall pay the cost of the required premium based upon their monthly salary between six thousand dollars ($6,000) and fifteen thousand dollars ($15,000). Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 8 l) Employee Assistance Plan The Employee Assistance Plan (EAP) provides employees with confidential personal counseling, work and family related issues, eldercare, substance abuse, etc. In addition, EAP programs provide a valuable tool for supervisors to refer troubled employees to professional outside help. This service staffed by experienced clinicians is available to employees and their dependents by calling a toll-free phone line twenty-four (24) hours a day, seven days a week. Guidance is also available online. Article VIII – Deferred Compensation Match Effective January 1, 2019 the City will match employee contributions into their City approved 457 plans up to a maximum of $4000. No combination of Employee and Employer funds can exceed the IRS limits for City approved 457 plans. The table below is for illustrative purposes only: Employee Contribution Employer Matching Contribution $1,000 $2,500 $1,000 $2,500 $4,000 $4,000 $11,000 $4,000 ARTICLE IX – LEAVES Section 1 – Sick Leave a) Sick leave shall be accrued bi-weekly provided the employee has been in a pay status for 50 percent or more of a bi-weekly pay period. Sick leave shall be accrued at the rate of 3.7 hours per bi-weekly pay period for those employees working a forty-hour duty schedule. Those assigned work schedules, which are greater or lesser than forty hours will accrue sick leave at the ratio of their work schedule to forty hours. b) Employees may use up to twenty hours of sick leave per calendar year for personal business. The scheduling of such leave is subject to the approval of the appropriate level of Management. c) Employees leaving the municipal service shall forfeit all accumulated sick leave, except as otherwise provided by law and by Section 609 of the Merit Rules and Regulations. In the event that notice of resignation is given, sick leave may be used only through the day which was designated as the final day of work by such notice. d) Employees that were hired before December 1, 1983 and who leave the municipal service in good standing, or who die while employed in good standing by the city, and who have fifteen or more years of continuous service shall receive compensation for unused sick leave hours in a sum equal to two and one-half percent of their unused sick leave hours multiplied by their years of continuous service and their basic hourly rate of pay at termination. Full sick leave accrual will be paid in the event of termination due to disability. See Merit System Rules and Regulations, Chapter 6, Section 609. Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 9 e) Up to nine days of sick leave per calendar year may be used for illness in the immediate family, including a registered domestic partner. f) Employees eligible, as specified above if hired before December 1, 1983, to be compensated for sick leave may annually convert sick leave hours in excess of 600 to cash or deferred compensation, according to the formula set forth above, up to a maximum of $2,000 per fiscal year. Section 2 – Management Annual Leave At the beginning of each calendar year designated exempt employees will be credited with 80 hours of management annual leave. This leave is granted in recognition of the extra hours exempt employees work over their regular schedule. This leave may be taken as paid time off, added to vacation accrual (subject to vacation accrual limitations), taken as cash or taken as deferred compensation. When time off is taken under this provision, 10-hour shift workers will receive one shift off for each 8 hours charged. Entitlement under this provision will be reduced on a prorated basis for part-time status, or according to the number of months in paid status during the fiscal year; employees who have used more than the pro-rated share at the time they leave City service shall be required to repay the balance or have it deducted from their final check. Unused balances as of the end of the calendar year will be paid in cash unless a different option as indicated above is elected by the employee. Section 3 – Vacation Vacation will be accrued when an employee is in pay status and will be credited on a bi-weekly basis. Total vacation accrual at any one time may not exceed three times the annual rate of accrual. Each eligible employee shall accrue vacation at the following rate for continuous service performed in pay status: a) Less than nine years. For employees completing less than nine years continuous service: 120 hours vacation leave per year; provided that: The City manager is authorized to adjust the annual vacation accrual of employees hired on or after July 1, 2001, to provide up to 40 additional hours (i.e., to a maximum annual accrual of 160 hours) for service with a prior employer. b) Nine, but less than fourteen years. For employees completing nine, but not more than fourteen years continuous service; 160 hours vacation per year. c) Fourteen, but less than nineteen years. For employees completing fourteen, but not more than nineteen years continuous service; 180 hours vacation leave per year. d) Nineteen or more years. For employees completing nineteen or more years continuous service; 200 hours vacation leave per year. e) Employees are eligible to cash out vacation accrual balances in excess of 80 hours. An employee may cash out a minimum of eight (8) hours to a maximum of 120 hours of accrued vacation provided the employee has taken 80 vacation hours in the previous 12 months and has followed the election procedures set forth in this section. Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 10 Employees must elect the number of vacation hours they will cash-out during the next calendar year, up to the maximum of 120 hours. The election will apply only to vacation hours that are accrued in the next calendar year and that are eligible for cash-out. The election to cash-out vacation hours in each designated year will be irrevocable. This means that employees who elect to cash-out vacation hours must cash-out the number of accrued hours pre- designated on the election form. Employees who do not elect a cash-out amount by December 31 of the prior calendar year will be deemed to have waived the right to cash out any leave in the following tax year and will not be eligible to cash-out vacation hours in the next tax year. Employees who elect cash-out amounts may request a cash-out at any time in the designated tax year by submitting a cash-out form to payroll. Payroll will complete the cash-out upon request, provided the requested cash-out amount has accrued and is consistent with the amount the employee pre-designated. If the full amount of hours designated for cash-out is not available at the time of cash-out request, the maximum available will be paid. For employees who have not requested cash-out of the elected amount by November 1 of each year, Payroll will automatically cash-out the elected amount, or the maximum available amount, in a paycheck issued on or after the payroll date including November 1. Section 4 – Bereavement Leave of absence with pay of three days may be granted to an employee by the head of his/her department in the event of death in the employee’s immediate family, which is defined for purposes of this section as wife, husband, son, son-in-law, step-son, daughter, daughter-in-law, step-daughter, mother, mother-in-law, father, father-in-law, brother, brother-in-law, sister, sister-in-law, grandmother, grandmother-in-law, grandfather, grandfather-in-law, grandchild, aunt, uncle, niece, nephew, registered domestic partner, or a close relative residing in the household of employee. Such leave shall be at full pay and shall not be charged against the employee’s accrued vacation or sick leave. Requests for leave in excess of three days shall be subject to the approval of a Council-Appointed Officer for employees under his/her control. Section 5 – All Other Leaves For all other leaves of absence refer to Chapters 5 and 8 of the City’s Merit Rules and Regulations. Section 6 – Vacation Benefits for Deceased Employees An employee who is eligible for vacation leave and who dies while in the municipal service shall have the amount of any accrued vacation paid to the employee's estate within thirty days. This proration will be computed at the last basic rate of pay. Section 7 – Voluntary Leave Program If permitted by agreement between the City and the Association, members of the Association may participate in the "Voluntary Leave Program" to assist in maintaining the pay of an employee who is eligible by virtue of a qualifying catastrophic medical condition. Such participation, when authorized by City- Association agreement, shall be allowed only as long as the donors remain anonymous (unless disclosure is required by law). Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 11 ARTICLE X – WORKERS’ COMPENSATION Section 1 – Employees unable to work due to occupational injury, illness or disease Employees unable to work due to occupational injury, illness or disease will be required to report to management to discuss his or her status and ability to return to work on restricted or unrestricted duty, subject to the limitations imposed by applicable law. This requirement is not meant to unreasonably restrict employee’s activities while off work due to such incapacity as long as such activities are cleared by the treating physician, treating program or alternative treatment program and the employee is available for restricted or unrestricted duty as soon as medical clearance can be received. Section 2 – Temporary Disability While temporarily disabled, employees shall be entitled to use accrued sick leave for the first three (3) days following the date of injury and thereafter shall be paid full base salary for a period not to exceed fifty-seven (57) calendar days (including Saturdays, Sundays and Holidays), unless hospitalized, in which case employees shall be paid full base salary for a period not to exceed sixty (60) days from date of injury. For any temporary disability continuing beyond the time limits set forth above, employees shall be paid two-thirds (66.66%) of their full base salary at the time of injury for the duration of such temporary disability in conformance with State law. During the period of temporary disability, an employee’s eligibility for health, dental, life, LTD, or other insured program will continue with City contributions at the same rate as for active employees and vacation and sick leave benefits shall continue to accrue. In case of temporary disability beyond the time limits set forth above, sick leave and vacation benefits shall not be accrued. ARTICLE XI – RETIREMENT PENSION a) Employees hired before July 17, 2010 1. Retirement formula. Effective pay period inclusive of 1/6/07, the City’s Public Employees’ Retirement System (PERS) benefits changed to the 2.7%@ 55 formula for non-safety members (from 2% @55). 2. Employee contributions. Employees under the 2.7%@55 retirement formula will pay the full eight percent (8%) employee contribution. 3. Final compensation. Final compensation for purposes of retirement shall be as set forth in the City’s contract with CalPERS, including, when applicable, the Government Code Section 20692 Optional Benefit. b) Employees hired on or after July 17, 2010. 1. Retirement formula. For miscellaneous employees hired on or after July 17, 2010, or on or after January 1, 2013 who are not subject to the pension formula in the Public Employees’ Pension Reform Act (PEPRA), the City offers the CalPERS retirement formula two percent (2.0%) of final salary at age sixty (60). Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 12 2. Employee contributions. Employees under the 2%@60 retirement formula will pay the full seven percent (7%) employee contribution. 3. Final compensation. Final compensation for purposes of retirement shall be as set forth in the City’s contract with CalPERS, including, when applicable, the Government Code Section 20692 Optional Benefit or as required by law. c) New Employees hired on or after January 1, 2013 Employees hired on or after January 1, 2013 who are “new members” as defined by the California Public Employees’ Pension Reform Act (PEPRA), will be subject to the terms of that statute including but not limited to the following provisions: 1. Retirement formula. Effective for employees hired on or after January 1, 2013, the PEPRA requires the City to provide new employees, as defined in that law, the CalPERS retirement formula two percent of final salary at age 62 (2%@62). 2. Employee contributions. Employees under the 2%@62 formula shall pay at least 50 percent of the total normal cost or the same contribution rate as “similarly situated” employees, whichever is higher. 3. Final compensation. Final compensation for employees under the 2%@62 benefit shall be as set forth in PEPRA, including calculation based on the average of three highest consecutive years and a cap on pensionable compensation (currently $136,440) based on IRS limits for employers that do not participate in social security. d) Effective as soon as administratively feasible but no sooner than the first full pay period of March 2019, bargaining unit employees shall contribute 1% of their salary toward the employer cost of retirement. Pensions Group Pension Formula Employee Contribution Contribution to Employer Side Total Contribution from Employees Group A 2.7@ 55 8% 1% 9% Group B & C 2@60 7% 1% 8% Group D 2@62 50% of the normal Cost (Currently 6.25%) 1% Will fluctuate (Currently 7.25%) e) Employee CalPERS contributions tax deferred. Employee CalPERS contributions shall be made on a tax deferred basis, in accordance with Section 414(h)(2) of the Internal Revenue Code. All provisions of this subsection are subject to and conditioned upon compliance with IRS regulations. ARTICLE XII – MISCELLANEOUS Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 13 Section 1 – Reimbursement for Relocation Expense The City of Palo Alto, in rare instances, may, provide a Basic Relocation Benefits Package for new employees, upon the approval of the City Manager or designated subordinate. In addition, the provision of “Optional Benefits”, or portions thereof, may be extended for exceptional circumstances and only by approval of the City Manager or designee. The details of the Relocation Expense program are specified in the City’s Relocation Expense policy. Section 2 – Meal allowance Employees assigned to attend night meetings or who travel for business purposes are eligible to receive reimbursement as described by City policy. This provision covers only receipted meals actually taken and submitted for reimbursement. Section 3 – Reduction in Workforce The City will make every effort to provide written notice of its intent to lay off employees in this unit and will meet with Association upon request to discuss alternatives to layoff. Section 4 - Contracting Out a. As provided in subsection b, the City shall provide notice of any planned action(s) that would result in the layoff of one or more Association bargaining unit members and where either of the following apply: 1. The planned City action(s) is to contract out work historically and exclusively performed by Association bargaining unit members; 2. The planned City action is to substantially increase the scope or amount of work historically but not exclusively performed by Association bargaining unit members (e.g. work shared with other City employees outside the Association bargaining unit or contractors). b. The City shall deliver written notice to the Association at least thirty (30) days before it implements any action(s) described in subsection a. Within seven (7) days after it receives such notice, the Association may deliver to the City’s Chief People Officer a written request to meet and discuss the effects of the City action(s). After the City’s receipt of such request, the parties will promptly meet and undertake discussions. The discussions will conclude no later than the thirtieth (30th) day following the Union’s receipt of the City’s notice of the planned action(s), as described above. Thereafter, the City may implement the action(s) without further discussion as originally planned or as modified as a result of such discussions. If the Association does not deliver timely notice of its desire to meet and discuss the effects of the action(s) identified in the City’s notice, the City may proceed with the planned action(s). c. The City retains its right to determine the methods, means, and personnel by which services are carried out at its sole discretion in circumstances no covered by subsection a above. Section 5- Association Security a) When a person is hired in any of the covered job classifications, the City shall notify that person that the Association is the recognized bargaining representative for the employee in said Association and Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 14 give the employee a current copy of the Memorandum of Agreement. b) Members of the Association Board may use a reasonable amount of on-duty time without loss of pay to meet with the City specifically related to representation of employees. For purposes of this section, representation shall include: (i) Meetings with represented employees or the City related to a grievance or disciplinary action, including investigation and preparation time. (ii) Any meeting with the City related to benefits, working conditions or other terms and conditions of employment. Section 6- Notification to the Association The Association shall be informed in advance in writing by the City before any proposed changes not covered by this Memorandum of Agreement are made in benefits, working conditions, or other terms and conditions of employment which require meet and confer or meet and consult process. Section 7- Association Representative Access to Work Locations Employee and nonemployee representatives of the Association will be granted access to City work locations to conduct business related to the administration or negotiation of the parties' Memorandum of Agreement, as long as advance arrangements for such visits have been made with the affected department manager and no disruption of work occurs. Section 8- Release Time The Association Chair, Vice-Chair or his or her-designee in the representation unit may use a reasonable amount of time without loss of pay for matters related to the bargaining process, labor relations, and administration of the MOA, violations of the MOA, grievances, disciplinary Section 9- Personnel Files Records of all disciplinary actions shall be kept in the central personnel file. Employees shall be entitled to sign and date all action forms in their personnel files. Employees are entitled to review their personnel files upon written request or to authorize, in writing, review by their Association representatives. An employee shall be allowed, copies of materials in an employee's personnel file. ARTICLE XIII – GRIEVANCE PROCEDURE Section 1 - General Provisions The City and the Union recognize that early settlement of grievances is essential to sound employee- employer relations. The parties seek to establish a mutually satisfactory method for the settlement of Union grievances as provided for below. In presenting a grievance the aggrieved and/or his or her representative is assured freedom from restraint, interference, coercion, discrimination or reprisal. Section 2 – Definitions Grievance means an unresolved complaint or dispute regarding the interpretation or application of this Memorandum of Agreement, excluding however those provisions of this MOA which specifically provide that the decision of any City official shall be final, the interpretation or application of those provisions not being subject to the grievance. Section 3 - Conduct of Grievance Procedure Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 15 a) An aggrieved employee may be represented by the Union or may represent himself/herself in preparing and presenting a grievance at any level of review. No grievance settlement may be made in violation of an existing merit rule or memorandum of agreement. b) An employee and the representative steward, if any, may use a reasonable amount of work time so long as there is no disruption of work, in conferring about and presenting a grievance. Requests for release time to prepare grievances shall be made in advance and approved by the immediate supervisor. c) The time limits specified in this Article may be extended by mutual agreement in writing of the aggrieved employee or the Union and the reviewer concerned. d) Should a decision not be rendered within a stipulated time limit, the grievant may immediately appeal to the next step. e) The grievance shall be considered settled if the decision of any step is not appealed within the specified time limit. f) Grievances shall be made in writing and submitted on forms provided by the City. The written grievance shall contain clear, factual and concise language, including: (1) the name of the grievant; (2) a statement of the facts upon which the grievance is based, including relevant dates, times and places; (3) specific provisions of this Agreement the grievant alleges has been violated; (4) a summary of any steps taken toward resolution; and (5) the action the grievant believes will resolve the grievance. g) Any retroactivity on monetary grievances shall be limited to the date of occurrence, except in no case will retroactivity be granted prior to three months before the grievance was filed in writing. h) For purposes of time limits, “working days” are considered to be Monday through Friday, exclusive of City holidays. i) If a mutually agreed solution is reached during any step of this grievance procedure, the agreement shall be placed in writing and signed by the City and the grievant or union. j) Upon request of either party, meetings to discuss the grievance shall be held at any step in the grievance procedure. Section 4 - Grievance and Appeal Procedure Step I. Informal Discussion Within fifteen (15) working days after the incident or discovery of the incident on which the grievance is based the aggrieved employee shall present the grievance action to his or her immediate supervisor and attempt to resolve the grievance through informal discussions. Every attempt will be made to settle the issue at this level. Step II. Formal Grievance If the grievance is not resolved through the informal discussion in Step 1 the employee will reduce the Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 16 grievance to writing and submit copies to the Department head or his or her designee within fifteen (15) working days of the discussion with the immediate. The Department Head or designee shall have fifteen (15) working days from the receipt of a written grievance to review the matter and prepare a written statement. Step III. Human Resources Director If the grievance is not resolved and/or the aggrieved employee is not satisfied with the Step II decision, the grievant may appeal to the Human Resource Director or his or her designee in writing within fifteen (15) working days of the receipt of the Department Head's response. The written appeal to the Human Resources level shall include a copy of the original grievance, the Department Head’s decision at Step II, and a clear statement of the reasons for appeal. Within fifteen (15) working days, after receiving the written appeal, the Human Resource Director shall review the matter and prepare a written statement. If a mutually agreed solution is reached during this process the agreement shall be placed in writing and signed. Step IV. City Manager /Arbitration If the grievance is not resolved at Step III, the aggrieved employee may choose between final and binding resolution of the grievance through appeal to the City Manager or through appeal to final and binding arbitration. For the term of this Memorandum of Agreement, appeals to final and binding arbitration may be processed only with Union approval. All Step IV appeals must be filed in writing at the Human Resources Department Office within fifteen (15) working days of receipt of the Human Resource Director’s decision at Step 3. If the grievant or appellant elects final and binding resolution by the City Manager, the City Manager will choose the methods he or she considers appropriate to review and settle the grievance. The City Manager shall render a written decision to all parties directly involved within fifteen (15) working days after receiving the grievant/appellant’s appeal. If the grievant/appellant elects final and binding arbitration in accordance with this provision, the parties shall mutually select an arbitrator. In the event the parties cannot agree on an arbitrator, they shall mutually request a panel of five arbitrators from the California State Conciliation Service or from the American Arbitration Association if either party objects to the State Conciliation Service, and select an arbitrator by the alternate strike method. The arbitrator shall have jurisdiction and authority only to interpret, apply, or determine compliance with the provisions of this Memorandum of Agreement. The arbitrator shall be without power to make any decision contrary to, or inconsistent with or modifying in any way, the terms of this Memorandum Of Agreement. The arbitrator shall be without authority to require the City to delegate or relinquish any powers which by State law or City Charter the City cannot delegate or relinquish. Copies of the arbitrator's decision shall be submitted to the City, the aggrieved employee and the Union. All direct costs emanating from the arbitration procedure shall be paid in full by the party in which the decision was found against. ARTICLE XIV – FULL UNDERSTANDING Section 1 – Full Understanding The Memorandum of Agreement contains the full and entire understanding of the parties regarding the matters set forth herein. Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 17 Section 2 – Severability If, at the conclusion of any applicable appeals, any provision of this Memorandum of Agreement is ultimately held invalid and unenforceable by a decision of the relevant Court or Administrative Agency of competent jurisdiction such holding shall apply only to the provision(s) of this Memorandum of Agreement specified in the decision. Such decision shall not invalidate any other portion of this Memorandum of Understanding, and the unaffected provisions shall remain in full force and effect. The Parties agree that within ten (10) days after the date of such decision, they shall meet and confer in an effort to negotiate a substitute for the invalidated provision(s). Section 3 – Good Faith Ordinances, resolutions, rules and regulations enacted pursuant to this Memorandum of Agreement that regulate matters within the scope of representation shall, to the extent they are within the scope of representation, be administered in good faith. Section 4 – Mid-Contract Negotiations Subjects within the scope of representation that are not covered by this Memorandum of Agreement remain subject to the duty to meet and confer in good faith on timely notice and request. Neither party is obligated to meet and confer over matters within the scope of representation covered by this Memorandum of Agreement, except for purposes of negotiating over the terms of a successor to this Memorandum of Agreement. Section 5 – Merit System Merit System Rules and Regulations, during the term of this Memorandum of Agreement, Management may propose certain changes in the City Merit System Rules and Regulations. With regard to such changes which pertain to the representation unit, the parties agree to review, and upon request, meet and confer regarding the changes. (TA) ARTICLE XV-DURATION This Memorandum of Agreement shall become effective once the Memorandum of Agreement is signed by the parties hereto and adopted by the City Council. This Memorandum of Agreement shall remain in effect through June 30, 2019. At the request of either party negotiation of a successor agreement shall commence, however they should begin no sooner than 6 months prior to expiration of this agreement and no later than 3 months prior to the expiration of this agreement. For the City: For the Association: James Keene, City Manager Jim Bujtor, UMPAPA President Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 18 Ed Shikada, City Manager (Appoint) Jim Pachikara, UMPAPA Vice-President Rumi Portillo, Human Resources Director Tom Auzenne, UMPAPA Negotiator Irene Silipin, Sr. HR Administrator Karla Dailey, UMPAPA Negotiator Steve Guagliardo, OMB Director Alan Davis, UMPAPA Outside Counsel Nick Raisch, Manager Employee Relations Dave Yuan, UMPAPA Negotiator 0 Appendix A- UMPAPA Salary Schedule Adoption By Council Job Families Base Wage Increase Differential to BM* Benchmarked Position Aligned Positions Current Max New Max (1) Base Wage New Max (2) Operations 31.00% AD Operations $ 219,822.00 $ 209,722.09 $ 234,888.74 15.00% Electric Operations Mgr WGW Operations Mgr $ 184,753.20 $ 184,107.18 $ 206,200.04 0.00% Utilities Supervisor $ 160,093.20 $ 160,093.20 12.0% $ 179,304.38 -25.00% Utl Safety Officer $ 120,806.40 $ 120,069.90 $ 134,478.29 Resource Planning 31.00% AD Resource Planning $ 219,823.20 $ 220,774.82 $ 247,267.80 0.00% Senior Resource Planner $ 168,530.40 $ 168,530.40 12.0% $ 188,754.05 -10.00% Telecom Manager $ 166,807.20 $ 151,677.36 $ 169,878.64 -10.00% Manager UPS $ 151,507.20 $ 151,677.36 $ 169,878.64 Engineering 31.00% AD Engineering $ 219,823.20 $ 226,136.92 $ 253,273.35 15.00% Electric Engineering Manager WGW Engineering Manager $ 188,672.40 $ 198,517.14 $ 222,339.20 0.00% Senior Electrical Engineer $ 172,623.60 $ 172,623.60 12.0% $ 193,338.43 0.00% Compliance Mgr $ 184,503.60 $ 172,623.60 $ 193,338.43 0.00% Senior Engineer $ 164,211.60 $ 172,623.60 $ 193,338.43 -10.00% Supv Proj Engineer $ 148,960.80 $ 155,361.24 $ 174,004.59 -10.00% Supv Proj Elec Engineer $ 160,417.20 $ 155,361.24 $ 174,004.59 Customer Support Services 31.00% AD Customer Support $ 197,858.40 $ 198,474.43 $ 222,291.36 0.00% Manager Customer Service Manager Utl Credit Collections $ 151,507.20 $ 151,507.20 12.0% $ 169,688.06 Administrative 31.00% Utl Strategic Business Mgr $ 188,672.40 $ 186,833.77 $ 209,253.82 0.00% Mgr Communications $ 142,621.20 $ 142,621.20 12.0% $ 159,735.74 Aligned to M&P Principal Business Analyst $ 146,432.00 $ 142,621.00 Note 2 $ 176,508.80 Aligned to M&P Senior Business Analyst $ 136,843.20 $ 136,843.20 Note 2 $ 154,107.20 Aligned to M&P Senior Management Analyst Aligned to M&P Administrative Assistant $ 93,828.80 $ 90,729.60 Note 2 $ 93,017.60 Note 1: *BM stands for Benchmark and is associated with the selected classification that establishes increases for a given job family Note 2: These classification are aligned to Management and Professional group due to matching classifications Memorandum of Agreement Between Utilities Management and Professional Association of Palo Alto and the City of Palo Alto effective until June 30, 2019 2 Appendix B This agreement does not resolve and is without prejudice to compliance with a final decision by PERB in case No. SF-CE-1413. This paragraph is not intended to preclude the City from pursuing a petition for review in the court of appeal. City of Palo Alto (ID # 9632) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: City of Palo Alto's Employee Paid Parental Leave Title: Approval of City of Palo Alto's Employee Paid Parental Leave Policy and Amendment to City Merit System Rules and Regulations Chapter 7 -705(c) From: City Manager Lead Department: Human R esources Recommended Motion Staff recommends the City Council approve the proposed Paid Parental Leave Policy and update the City’s Merit Rules Chapter 7-705(c) to eliminate the wait period for employees to use accrued vacation time. Executive Summary The proposed policy institutes a new program offered by the City which provides six weeks of Parental Leave at 100% of salary, for the birth, adoption or foster placement of a child, regardless of the gender, marital status or sexual orientation of the parent. Paid Parental Leave may be taken at any time during the twelve-month period immediately following the birth, adoption or placement of a child with the employee. Background In a series of meetings with the City Manager over the past year, employees expressed significant concerns a Paid Parental Leave policy is a top priority for the workforce and that the absence of such a policy is negatively impacting recruitment, retention and employee morale. Based on this employee feedback, the City Manager directed Human Resources staff to consult with policy experts, conduct a thorough literature search and review benchmark studies to evaluate parental leave options. Through these efforts, staff found that Palo Alto’s lack of a Parental Leave policy is contrary to best practices for both public and private employers. Further, the lack of a Parental Leave policy is misaligned with growing efforts statewide and nationally for gender equity and family- supportive work cultures. It is within this context that the City Manager directed staff to draft a policy that is responsive these factors and also helps the City to be a more competitive employer in a difficult labor market. The City Manager directed that the proposed policy include the following elements: City of Palo Alto Page 2 Equal treatment for all parents regardless of gender, marital status or sexual orientation; Coverage for birth, adoption and foster placement; Match or exceed the benefit provided through State Disability Insurance (SDI); and Sustainable in the budget, considering the City’s escalating costs for health coverage, pension and other benefits. The proposed policy meets the elements as outlined above. Human Resources staff have provided appropriate notice to the employee unions and necessary meet and confer obligations have been met. Analysis The proposed policy provides Parental Leave at 100% of salary* for six weeks and can be supplemented with additional leaves as accrued by the employee. The proposed policy is generally better than the benefitcurrently provided by other local government employers and is progressive in that it is gender-neutral and not impacted by the employee’s marital status or sexual orientation. Current Practice in Palo Alto Current federal and state laws provide job protection and the continuation of benefits for new parents to take up to 12 weeks for the birth, adoption or foster placement of a child1. Although these laws provide job protections and continued benefits, there is no requirement to provide pay for employees during their leave. Palo Alto’s existing policies align with federal and state laws, which means that parental leave is unpaid unless the employee uses their banked vacation, sick leave or other saved time, just as they would for other absences. Under these circumstances, employees who have not banked enough time will find themselves making the difficult choice of taking time off without pay or returning to work sooner than desired. Options Considered State Disability Insurance (SDI) Program - After researching parental leave policies for local governments in the region, staff found that most cities provide parental leave based on long-standing participation in the California State Disability Insurance (SDI) program. SDI is paid by employees at approximately 1% of their income. SDI provides up to six weeks of paid time for parental leave and the benefit is capped at 70% of salary, with a maximum benefit of $1,216 per week. Based on current salaries, the cost to participate in SDI for Palo Alto is estimated at $1.3 million annually. The City would be obligated to meet and confer with all seven bargaining units to reach consensus for employees to pay for the insurance. If consensus is not reached, the bargaining groups 1 The federal Family and Medical Leave Act and the California Family Rights Act (FMLA/CFRA) provide eligible employees the opportunity to take unpaid, job-protected leave for certain specified reasons. The maximum amount of leave employees may use under this policy is 12 weeks within a 12-month period. City of Palo Alto Page 3 that do not agree could bargain for differing benefits or exempt their members from participation. This would result in an unequal policy that might not be accessible to all employees. As an alternative, the City could implement SDI by bearing the full cost of the insurance at $1.3 million per year. At this time staff does not recommend pursuing SDI, as it is likely to result in unequal coverage under a bargaining scenario or would be cost-prohibitive for the City to absorb on an ongoing basis. Private Disability Insurance Programs - Another option researched by City staff is the purchase of a private disability insurance program. Such plans are offered by insurance providers such as AFLAC and Cigna. After considerable research with the City’s insurance brokers to evaluate the market, staff concluded that this is not a recommended option. Concerns include the instability of the insurance market in California and the potential for large premium increases in the future. Additionally, these private policies differentiate between a “maternity” benefit and a “paternity” benefit and do not meet the City’s criteria for a gender-neutral policy. The Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit that Estee Lauder Companies Inc., one of the world’s leading manufacturers and marketers, violated federal law when it implemented a parental leave program that provided male employees a lesser benefit than provided to female employees. The company and EEOC agreed to settle the case earlier this year. Although the lawsuit and settlement are not intended to deter employers from implementing parental leave policies, the current guidance is that employers should ensure that benefits apply equally to all new parents regardless of gender. Competitive Policy Staff’s research of other government and private employers indicates that current parental leave practices vary, and an industry standard does not yet exist. A sample of government employers outside of California with parental leave policies include: City of Austin - 30 days at 100% pay; New York State - phased-in program up to 12 weeks at 67%; and State of Massachusetts - 12 weeks at 80% pay. As discussed earlier in this report, most local governments in our region utilize State Disability Insurance to provide employees with up to 70% of salary for up to six weeks (capped at a maximum of $1,216 per week.) The proposed Parental Leave Policy for Palo Alto is 100% of salary for six weeks. By adopting this policy, the City of Palo Alto would provide a better benefit than the following competitor employers: Alameda Mountain View Redwood City San Jose City of Santa Clara County of Santa Clara Sunnyvale Stanford University City of Palo Alto Page 4 Recommendation Staff is recommending a new Citywide policy to provide 6 weeks of paid leave at 100% of the employee’s salary (proposed policy attached.) Additionally, to allow new employees to access their leave accruals, it is necessary to remove the waiting period for vacation usage in the City’s Merit Rules Chapter 7 section 705(c), as the waiting period is a conflicting restriction to the proposed Paid Parental Leave Policy. Resource Impacts Based on a five-year review of new child dependent benefits enrollments, it is anticipated that approximately 36 parental leaves will be taken on an annual basis. The salaries and benefits for employees who take family leave are already budgeted. Additional costs are incurred only when there is a backfill, meaning that a temporary employee is hired or another employee is paid overtime to fill in during the leave. Due to the safety-sensitive nature of the work in Police, Fire and Utilties, it is anticipated that parental leaves for relevant positions in those departments will be backfilled2. The majority of leaves will not need to be backfilled. Backfilling must also occur under our current practice,so the City already absorbs and covers those costs. The potential direct cost increase that could occur under this program would be due to employees who currently would not choose to take leave, because they don’t have it, or have enough. We should anticipate there will be in increase in time off for parental leave. We would estimate that could be in the range of $100,000-200,000. We will monitor the usage in this program and its costs and any incurred costs beyond budgeted levels will be evaluated on an annual basis. Most likely, staff will be able to recommend program costs be absorbed in the annual budget, primarily through departmental vacancy savings. There are also short term productivity impacts, when people are out of the office and positions are not backfilled. We are convinced that the positive benefits of this program outweigh that impact. Attachments 1) DRAFT Parental Leave Policy 2) Survey: Local Agencies’ Parental Leave 3) Merit Rules: Chapter 7 Attachments: Merit Rules: Chapter 7 Public Agencies Parental Leaves Survey 2018 Final Draft Parental Leave Policy 2 Shifts backfilled with overtime will cost 1.5x the normal hourly rate; however, overtim e shifts do not incur additional benefit costs such as retirement contributions or medical premiums. Backfill for all other groups are assumed to cost 1.0x the rate by hourly/contract roles. 18 CHAPTER 7 VACATION LEAVE Sections: 701 Eligibility 702 Vacation accrual 703 Cessation of accrual 704 Holidays falling during vacation 705 Use of vacation 706 Vacation at termination 707 Vacation benefits for deceased employees 708 Effect of extended military leave 701. Eligibility. (a) Full-time regular employees. Full-time regular employees shall be eligible for vacation leave in conformance with the provisions of Section 702; (b) Part-time regular employees. Part-time regular employees shall be eligible for vacation leave in conformance with the provisions of Section 702, with compensation computed on the basis of part-time/full time ratio. (c) Hourly employees. Hourly employees shall not be eligible for vacation leave. 702. Vacation accrual. Vacation will be accrued when an employee is in pay status and will be credited on a bi-weekly basis. Total vacation accrual at any one time may not exceed three times the annual rate of accrual. Each eligible employee shall accrue vacation at the following rates or as defined in the appropriate Memoranda of Agreement or compensation plans for continuous service performed in pay status: (a) Less than four years. For employees completing less than four years continuous service: 80 hours vacation leave per year. (b) Four, but not more than nine years. For employees completing four, but not more than nine years continuous service: 120 hours vacation leave per year. (c) Nine, but not more than fourteen years. For employees completing nine but not more than fourteen years continuous service: 160 hours vacation leave per year. 19 (d) Fourteen, but not more than nineteen years. For employees completing fourteen, but not more than nineteen years continuous service: 180 hours vacation leave per year. (e) Nineteen or more years. For employees completing nineteen or more years continuous service: 200 hours vacation leave per year. 703. Cessation of accrual, and accrual resumption. (a) In the event an employee fails to use his/her vacation as provided in these rules, vacation accrual beyond the limits established in these rules shall be prohibited, and no other compensation or recognition of such prohibited accrual will be made, except that the City Manager may extend accrual limits when vacation is not permitted for the convenience of the City. (b) When an employee who has reached his/her maximum vacation accrual, as defined in Section 703 (a), uses vacation for his/her personal leave or voluntarily transfers accrued vacation in accordance with the Voluntary Leave Sharing provisions described in Section 705(f), the employee may resume accruing vacation up to the limits described by Section 703(a). 704. Holidays falling during vacation. In the event a City holiday falls within an employee's vacation period which would have excused the employee from work, and for which no other compensation is made (see Section 518), an additional work day for each such holiday shall be added to the vacation leave. 705. Use of vacation. (a) When to be taken. The time at which an employee may use his/her accrued vacation leave and the amount to be taken at any one time shall be determined by his/her department head with particular regard for the needs of the City, but also insofar as possible, considering the wishes of the employee. (b) Limitation on use. Employees may not use more than their annual rate of accrual in any calendar year period, provided, however, that a department head may grant exceptions to this limitation. (c) Waiting period. Employees shall complete six months continuous service before using accrued vacation leave. (d)(c) Double compensation prohibited. Employees shall not work for the City during their vacation. (e)(d) Vacation splitting. It is the intention of the City that vacation be taken in units of one week; however, with approval of his/her department head, an employee may use his/her accrued vacation in units of less than one work week. 20 (f)(e) Voluntary leave sharing. An employee may voluntarily transfer accrued vacation to a Voluntary Leave Sharing program, in accordance with procedures adopted by the City Manager, provided that the employee will have a post-transfer balance of at least two weeks of accrued vacation. 706. Vacation at termination. Employees leaving the municipal service with accrued vacation leave shall be paid the amounts of accrued vacation to the date of termination. Payments for accrued vacation shall be at the employee's current rate of pay. 707. Vacation benefits for deceased employees. An employee who is eligible for vacation leave and who dies while in the municipal service shall have the amount of any accrued vacation paid to his/her estate within thirty days. This accrued vacation will be computed at his/her last basic rate of pay. 708. Effect of extended military leave. State and federal law shall govern the rights of employment and benefits for employees on military leave. Public Agency Paid Parental Leave Survey Survey - Parental Leave Jun-18 Agency Paid Maternity Leave Paid Paternity Leave Short-term disability State Disability (SDI) Alameda x x (certain bargaining units) Hayward x San Mateo x (certain bargaining units) Berkeley x (unpaid, benefit/job protected leave for up to one year) x Mountain View x Santa Clara x (certain bargaining units) Daly City x x (certain bargaining units) Redwood City x x (certain bargaining units) South San Francisco x Fremont x San Jose Sunnyvale no short term but City's Paid Medical Leave (PML) and LTD is offered x (certain bargaining units) Paid Parental Leave Policy (DRAFT) Presented to Labor Groups on: 10/2/2018 Page 1 of 3 Purpose/Objective All employees at the City of Palo Alto are eligible for Paid Parental Leave, for up to six weeks in the twelve-month period following the birth of a child, adoption of a child, or placement of a foster child in their home. Employees will be afforded the same level of benefit continuation for the period of time that the employee is on Paid Parental Leave as if the employee was on active work status. The purpose of Paid Parental Leave is to enable the employee to care for and bond with a newborn or a newly adopted or newly placed child. Employees are encouraged to talk with their managers about a return-to-work schedule with the possibility of reduced or flexible work hours to accommodate family needs. Eligibility Employees who are the parent of a newborn child without regard to the marital status or sexual orientation of the parenting individual; OR Employees who have adopted a child or been placed with a foster child (in either case, the child must be age 17 or younger). Amount, Time Frame and Duration Employees will be eligible for up to six weeks of Paid Parental Leave at 100 percent of the employee’s regularly scheduled weekly base-pay. Paid Parental Leave will be paid on regularly scheduled pay dates. Approved Paid Parental Leave may be taken at any time during the twelve-month period immediately following the birth, adoption or placement of a child with the employee. Paid Parental Leave may not be used or extended beyond this twelve-month time frame. The City will allow employees to take Paid Parental Leave in the smallest of increment equivalent to a one-day shift according to their regular work schedule. If overtime hours are part of an employee’s usual and normal workweek and the employee is unable to work overtime hours because of a Paid Parental leave, then any overtime hours not worked will be counted against the employee’s Paid Parental leave entitlement. If the employee Paid Parental Leave Policy (DRAFT) Presented to Labor Groups on: 10/2/2018 Page 2 of 3 is off during their regular shift and is therefore not assigned to the overtime shift then only their regular work shift will be counted against the employee’s Paid Parental leave entitlement. Any unused Paid Parental Leave will be forfeited at the end of the twelve-month period following the birth of a child, adoption of a child , or placement of a foster child in their home. Upon termination of the individual’s employment at the City, he or she will not be paid for any unused Paid Parental Leave for which he or she was eligible. In no case will an employee receive more than six weeks of Paid Parental Leave in a rolling 12-month period, regardless of whether more than one birth, adoption or foster care placement event occurs within that 12-month rolling time frame. Coordination with Other Policies Paid Parental Leave taken under this policy will run concurrently with leave under the FMLA, CFRA and PDL. If a City holiday occurs while the employee is on Paid Parental Leave, such day will be charged as holiday pay and will not be counted against the employees six weeks of Paid Parental Leave. Requests for Paid Parental Leave The employee must provide his or her supervisor and the Human Resources Department with notice of the request for leave at least 30 days prior to the proposed date of the leave (or if the leave was not foreseeable, as soon as possible). An employee who does not give 30 days’ notice must explain why such notice was not practicable. The employee must complete the necessary Human Resource Departm ent forms and provide all documentation as required by the Human Resource Department to substantiate the request. Employees may request to start their Paid Parental Leave up to two weeks prior to the birth/placement of the child. Paid Parental Leave Policy (DRAFT) Presented to Labor Groups on: 10/2/2018 Page 3 of 3 As is the case with all City policies, the City has the exclusive right to interpret this policy. City of Palo Alto (ID # 9801) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: 3877 El Camino Real: Tentative Map for 17 Residential Condos and One Commercial Condo Title: PUBLIC HEARING / QUASI -JUDICIAL: 3877 El Camino Real [17PLN - 00321]: Recommendation on Applicant's Request for Approval of a one lot Vesting Tentative Map to Divide an Existing 0.75 Acre Parcel Into 17 Residential Condominiums and one Commercial Condominium. Environmental Assessment: Mitigated Negative Declaration Adopted by Council on September 18, 2017. Zoning Districts: CS and RM -30 From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends City Council take the following action(s): 1. Find the project in conformance with the Initial Study and Mitigated Negative Declaration prepared for the associated development application (File No. 14PLN- 00464) pursuant to the California Environmental Quality Act (CEQA), and 2. Approve the Vesting Tentative Map based on findings and conditions in Attachment B. Executive Summary The applicant proposes a Vesting Tentative Map that would subdivide the 32,825 square foot “L” shaped lot into 17 Residential Condos and One Commercial Condo. The Tentative Map would facilitate construction of a new mixed-use building with 4,027 square feet commercial and six residential units and 11 townhouse units. The site includes two zoning designations; commercial and residential zoning with street frontage along El Camino Real and Curtner Avenue. The project was the subject of Site & Design Review and Design Enhancement Exception applications previously and received its entitlements. The intent of the subdivision request is to implement the approved project. Background City of Palo Alto Page 2 The Vesting Tentative Map was subject to Planning and Transportation Commission (PTC) review on August 29, 2018 (https://www.cityofpaloalto.org/civicax/filebank/documents/66512) where the Commission recommended approval to the City Council with conditions. Prior to this application, the project required Site & Design Review and a Design Enhancement Exception, which required review by the Architectural Review Board, PTC and City Council (See the August 29, 2018 Commission staff report for prior actions with links to staff reports and videos). Discussion The applicant requests approval of a Vesting Tentative Map for condominium purposes to create one 4,026 square feet commercial condominium, six residential flat condominium units in a mixed-use building, and 11 townhouse condominium units over a basement garage. The commercial space and each residential unit will be individually owned with the land and improvements being in common ownership. Attachment C provides a summary of the project’s compliance with the zoning standards. A Vesting Tentative Map is different from a standard Tentative Map in that it is intended to establish vested rights to proceed with a project in substantial compliance with the regulations in effect at the time the Vesting Map application is determined to be complete. Consistency with Application Findings The necessary findings for approval of the Vesting Tentative Map are contained in State law and incorporated into Title 21 of the Municipal Code. Under the Subdivision Map Act, the PTC and Council must make a series of “reverse” findings to justify approval. If the findings cannot be made, the subdivision must be approved. Under Government Code Section 66474, the Council shall disapprove the Vesting Tentative Map if it makes any of the following findings : a) That the proposed map is not consistent with applicable general and specific plans. b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. c) That the site is not physically suitable for the type of development. d) That the site is not physically suitable for the proposed density of development. e) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. f) That the design of the subdivision or type of improvements is likely to cause serious public health problems. g) That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. City of Palo Alto Page 3 Some relevant factors are discussed below and a detailed review of the proposed project’s consistency with applicable Title 21 findings has been performed and can be found in Attachment B. Consistency with the Comprehensive Plan, Area Plans and Guidelines The project site has two land use designations. The El Camino frontage is Service Commercial, while the Curtner Avenue frontage is Multi-Family Residential. The proposed Vesting Tentative Map is consistent with the Comprehensive Plan, in that the site allows mixed -use development and residential development. Review of the project finds it consistent with several Comprehensive Plan Goals and Policies, as further described in Attachment B. State Density Bonus / Below Market Rate Housing Ownership housing projects with three or more units are required to meet the City’s Below Market Rate Housing Program (BMR). In accordance with PAMC Section 18.14.030, this project’s total BMR requirement is 2.55 units. When the BMR requirement results in a fractional unit, an in-lieu payment to the Residential Housing Fund may be made for the fractional unit instead of providing an additional BMR unit. Pursuant to project conditions of approval established during the review of the Site and Design Review, the project will enter into an affordable housing agreement with the City to meet these obligations, which includes construction of two BMR units and payment of in-lieu fees for the remaining 0.55 BMR requirement. That draft agreement is attached as Attachment F. Environmental Review The subject project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the City. Specifically, the project is covered by the previous Initial Study and Mitigated Negative Declaration prepared for the Site and Design application (File No. 14PLN-00464) adopted on September 18, 2017. The adopted Mitigation Monitoring and Report Program (MMRP) with identified mitigation for nesting birds is provided in Attachment E. Attachments: Attachment A: Location Map (PDF) Attachment B: Draft Record of Land Use Action (DOCX) Attachment C: Zoning Comparison Table (DOCX) Attachment D: Applicant Project Description (PDF) Attachment E: Mitigation Monitoring and Reporting Program (MMRP) (PDF) Attachment F: Draft Density Bonus Agreement (PDF) Attachment G: Project Plans (DOCX) Legend Zone Districts Assessment Parcel Zone District Labels Project Site satiagg t212O4 {vmnwigEnomp. JdiririAe iP laning.r* 3877 El Camino Real Tentative Map 17PLN-00321 This map is a product of the City of Palo Alto CIS 178' Thisdmtrtertis acmtiompmerlatimailyoft.takilatieszia. TheCdydPals AlbassbEs'm yoretl ityixatyevs b20hBCityclPalo Alb 1 ATTACHMENT B ACTION NO. 2018-XX DRAFT RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE ACTION FOR 3877 EL CAMINO REAL: VESTING TENTATIVE MAP, 17PLN-00321 (BRANDON ARIOLI, APPLICANT) At its meeting on December 10, 2018, the City Council of the City of Palo Alto (“City Council”) approved the Vesting Tentative Map for the development of a two-lot subdivision project making the following findings, determinations and declarations: SECTION 1. Background. A. On August 31, 2017, Brandon Arioli applied for a Vesting Tentative Map for the development of a one parcel condominium subdivision project with 17 residential units and 4,676 square feet of commercial space (“The Project”). B. The project site is comprised of one existing lot (APN No. 132-41-091) of approximately 0.75-acres with two separate zoning districts (CS and RM-30). The site contains one existing commercial structure. Commercial land uses are located adjacent to the lot to the north, south and west. To the project’s east are residential land uses. C. Following staff review, the Planning and Transportation Commission reviewed the project and recommended approval on August 29, 2018, subject to conditions of approval. SECTION 2. Environmental Review. The City as the lead agency for the Project has determined that the project is subject to environmental review under provisions of the California Environmental Quality Act (CEQA) under Guideline section 15070, Decision to Prepare an Initial Study-Mitigated Negative Declaration (IS-MND). An initial study was prepared for the project and it has been determined that there is potential for significant impacts that would require mitigation measures to reduce them to a less than significant level. These include mitigations for protection for nesting birds. The IS-MND was made available for public review beginning March 6, 2017 for 20 days, and adopted by the City Council on September 18, 2017. The Initial Study and Negative Declaration are contained as Attachment G in the September 18, 2017, City Council staff report (ID #8458). SECTION 3. Vesting Tentative Map Findings. A legislative body of a city shall deny approval of a tentative map, if it makes any of the following findings (California Government Code Section 66474). The City Council cannot make these findings for the following reasons: 2 1. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451: The site is consistent with the Comprehensive Plan as described below. 2. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans: The Project is consistent with the following Comprehensive Plan policies: • Policy L-1.3 Infill development in the urban service area should be compatible with its surroundings and the overall scale and character of the city to ensure a compact, efficient development pattern. • Policy L-2.6 Create opportunities for new mixed-use development consisting of housing and retail. • Policy L-2.11 Encourage new development and redevelopment to incorporate greenery and natural features such as green rooftops, pocket parks, plazas and rain gardens. • Policy L-3.4 Ensure that new multi-family buildings, entries and outdoor spaces are designed and arranged so that each development has a clear relationship to a public street. • Policy L-4.2 Preserve ground-floor retail, limit the displacement of existing retail from neighborhood centers and explore opportunities to expand retail. • Policy L-6.1 Promote high-quality design and site planning that is compatible with surrounding development and public spaces. • Policy L-6.7 Where possible, avoid abrupt changes in scale and density between residential and non-residential areas and between residential areas of different densities. To promote compatibility and gradual transitions between land uses, place zoning district boundaries at mid-block locations rather than along streets wherever possible. The project includes a mixed-use building with frontage along El Camino Real with townhouse style residential buildings for the balance of the property. Parking is provided below grade and therefore allows for the integration of open space and plazas at-grade. The project complements the surrounding development and is consistent with the land -use designations for the property. The project was reviewed by the ARB, Planning & Transportation Commission and the City Council previously for design review. 3. That the site is not physically suitable for the type of development: 3 The site is an “L” shape lot with frontage on two streets. The design of the site includes appropriate separation between the mixed-use building and the solely residential component and the adjacent multi-family properties. The project is consistent with the City’s Performance Standards set forth in Palo Alto Municipal Code (PAMC) 18.23, ensuring compatibility between commercial and residential uses. Proposed lighting is directed downward to prevent spillover to adjacent properties. Trash enclosures are located in the basement of the project. The project provides the required setback above ground and includes vegetation and tree plantings within the setback and open spaces. Mechanical equipment areas are screened appropriately. The site circulation facilitates access for all modes of transportation. The project includes short- term and long-term bike parking. On-site vehicular traffic will be directed underground, leaving the aboveground for pedestrians and bicyclist. Wide walkways and plazas surround the commercial areas and provide connectivity to the residential areas. 4. That the site is not physically suitable for the proposed density of development: The allowed residential density for the site is 30 dwelling units per acre (Both CS and RM-30 districts), which based on the project site acreage amounts to 22 dwelling units that would be allowed. However, the project only proposes 17 dwelling units. The project is consistent with the maximum Floor Area Ratio and does qualify for an affordable hou sing density bonus. The density bonus floor area is applied to the below-market-rate units in accordance with the City’s Municipal Code. 5. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat: As conditioned in the Final IS-MND approved by the City Council on September 18, 2017, the Project will not cause environmental damage or injure fish, wildlife, or their habitat, in that property is not adjacent to sensitive habitat areas and would incorporate mitigation measures to reduce impacts to nesting birds to a less than significant level. 6. That the design of the subdivision or type of improvements is likely to cause serious public health problems: An environmental analysis identifies potentially significant impacts related to the associated development project’s improvements that would require mitigation measures to reduce them to a less than significant level. These include mitigations for protection for nesting birds as reported in the Final IS-MND approved by the City Council on September 18, 2017. 7. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply 4 only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to deter mine that the public at large has acquired easements for access through or use of property within the proposed subdivision. The design of the subdivision will not conflict with any easements for access through or use of the property. A public access easement will be dedicated with the Final Map to the provide an additional four feet of sidewalk between the front property line and back of walk along the El Camino Real frontage to create a 12-foot effective sidewalk width. SECTION 4. Vesting Tentative Map Approval Granted. Vesting Tentative Map Approval is filed and processed in accordance to PAMC Section 21.13.020 and granted by the City Council under PAMC Sections 21.12 and 21.20 and the California Government Code Section 66474, subject to the conditions of approval in Section 7 of this Record. SECTION 5. Final Map. The Final Map submitted for review and approval by the City Council shall be in substantial conformance with the Vesting Tentative Map prepared by Langan titled “Vesting Tentative Map 3877 El Camino Real for Condominium Purposes,” consisting of seven (7) pages, stamped as received January 23, 2018, except as modified to incorporate the conditions of approval in Section 6. A copy of the Vesting Tentative Map is on file in the Department of Planning and Community Environment, Current Planning Division. Prior to the expiration of the Vesting Tentative Map approval, the subdivider shall cause the subdivision or any part thereof to be surveyed, and a Final Map, as specified in Chapter 21.08, to be prepared in conformance with the Vesting Tentative Map as conditionally approved, and in compliance with the provisions of the Subdivision Map Act and PAMC Title 21 and submitted to the City Engineer (PAMC Section 21.16.010[a]). SECTION 6. Conditions of Approval. Planning Division 1. MITIGATION MONITORING AND REPORTING PROGRAM. Mitigation Monitoring and Reporting Program (MMRP), prepared for this project in compliance with the California Environmental Quality Act (CEQA), shall be incorporated by reference as conditions of approval. The applicant shall comply with all specified mitigation measures in the timelines outlined in the project’s MMRP. Prior to requesting issuance of any related demolition and/or construction permits, the applicant shall meet with the Project Planner to review and ensure compliance with the MMRP, subject to the satisfaction of the Director of Planning of Planning and Community Environment. 2. BELOW MARKET RATE (BMR) HOUSING. A Density Bonus Developer and Regulatory Agreement in a form acceptable to the City Attorney for the two (2) BMR units shall be executed and recorded prior to final map approval or building permit issuance, 5 whichever occurs first. In addition, the payment for the 0.55 fractional unit shall be paid to the Residential Housing Fund prior to issuance of any building permits for the project; provided, however, that prior to issuance of the first building permit for the project, the applicant may elect to provide one additional inclusionary unit instead of paying the fractional in lieu payment (PAMC Section 16.65.060). All BMR units constructed under this condition shall be in conformance with the City’s BMR Program rules and regulations. Failure to comply with the timing of this condition and any adopted BMR Program rules and regulations shall not waive its later enforcement. 3. ESTIMATED IMPACT FEE. Development Impact Fees, currently estimated in the amount of $311,130.37 plus the applicable public art fee, per PAMC 16.61.040, shall be paid prior to the issuance of the related building permit. 4. IMPACT FEE 90-DAY PROTEST PERIOD. California Government Code Section 66020 provides that a project applicant who desires to protest the fees, dedications, reservations, or other exactions imposed on a development project must initiate the protest at the time the development project is approved or conditionally approved or within ninety (90) days after the date that fees, dedications, reservations or exactions are imposed on the Project. Additionally, procedural requirements for protesting these development fees, dedications, reservations and exactions are set forth in Government Code Section 66020. IF YOU FAIL TO INITIATE A PROTEST WITHIN THE 90-DAY PERIOD OR FOLLOW THE PROTEST PROCEDURES DESCRIBED IN GOVERNMENT CODE SECTION 66020, YOU WILL BE BARRED FROM CHALLENGING THE VALIDITY OR REASONABLENESS OF THE FEES, DEDICATIONS, RESERVATIONS, AND EXACTIONS. If these requirements constitute fees, taxes, assessments, dedications, reservations, or other exactions as specified in Government Code Sections 66020(a) or 66021, this is to provide notification that, as of the date of this notice, the 90-day period has begun in which you may protest these requirements. This matter is subject to the California Code of Civil Procedures (CCP) Section 1094.5; the time by which judicial review must be sought is governed by CCP Section 1094.6. Public Works Engineering Department 5. OFF-SITE IMPROVEMENTS: Submit a copy of the off-site improvement plans that includes the replacement of curb, gutter, sidewalk, utilities, landscape, etc. Provide Caltrans standard details along the project frontage. Plans shall include the proposed public access easement, grades along the conforms. a. STREET LIGHTING: The applicant is required to replace the existing street lights along the El Camino Real sidewalk project frontage. New pedestrian -scale luminaires, poles and bases shall be centered between the roadway lighting to provide a combined spacing of roughly 60-ft O.C. Decorative roadway and 6 pedestrian scale lighting standards are available from Public Works staff. Plot and label the new lights on the proposed Site Plan. b. SIDEWALK, CURB & GUTTER: As part of this project, the applicant must replace all existing sidewalk, curbs, gutters and driveway approaches in the public right - of-way along the frontage(s) of the property. The 4 -foot wide extended sidewalk area along the El Camino Real property frontage shall be paved with City standard concrete and clear of obstruction such as planter or structures of any kind. On the Curtner Avenue frontage, the monolithic sidewalk, rolled curb and gutter shall be replaced in kind with any new street trees planted between the back of walk and the property line. Any existing non -compliant curb ramps adjacent to the required resurfacing work shall also be replaced. The site plan submitted with the building permit plan set must show the extent of the replacement work (at a minimum all curb and gutter and sidewalk along the project frontage) The plan must note that any work in the right-of-way must be done per Public Works’ standards by a licensed contractor who must first obtain a Street Work Permit from Public Works at the Development Center. Include the 12-foot wide dimension on the plans and verify that the sidewalk is unobstructed. 6. Subdivider shall prepare and submit documents per PAMC 21.16.020 along with the Final Map. 7. Subdivider provide closure calculations and cost estimate for the off-site improvements described above. 8. PUBLIC ACCESS EASEMENT: Owner or designee shall create a public access easement for the additional area behind the property line needed to create a 12 -foot wide sidewalk along El Camino Real. Plot and label the Public Access Easement along El Camino Real that provides the 12-foot wide sidewalk. 9. A Subdivision Improvement Agreement is required to secure compliance with condition of approval and security of improvements onsite and offsite per PAMC Section 21.16.220. 10. The Final Map shall include CITY ENGINEER STATEMENT, CITY SURVEYOR STATEMENT, BENEFICIARY STATEMENT, DIRECTOR OF PLANNING AND COMMUNITY ENVIRONMENT STATEMENT and CITY CLERK. 11. The City of Palo Alto does not currently have a City Surveyor. The City retains the services of a contractor to review and provide approval on behalf of the City. The contractor will be reviewing, signing and stamping the Final Map associated with your project. 7 In effort to employ the services of the contractor, and as part of the City’s cost recovery measures, the applicant is required to provide payment to cover the cost of the contract’s review. Our intent is to forward your Final Map to the contractor for an initial preliminary review of the documents. The contractor will then provide a review cost amount based on the complexity of the project and the information shown on the document. We will share this information with you once we receive it and ask that you return a copy acknowledging the amount. You may then provide a check for this amount as payment for the review cost. The City must receive payment prior to beginning the final review process. 12. Subdivider shall provide electronic copies of the documents provided. PRIOR TO FINAL MAP RECORDATION. 13. The subdivider shall submit wet signed and stamped mylar copy of the Final Map to the Public Works for signature. Map shall be signed by Owner, Notary and Surveyor prior to formal submittal. 14. The subdivider shall provide a signed Subdivision Improvement Agreement and Security Bonds as described per PAMC 21.16.230. PRIOR TO ISSUANCE OF A BUILDING PERMIT OR GRADING AND EXCAVATION PERMIT 15. A Final Map shall be recorded with County Recorder by the owner or designee. SECTION 7. Term of Approval. Vesting Tentative Map. All conditions of approval of the Vesting Tentative Map shall be fulfilled prior to approval of a Final Map (PAMC Section 21.16.010[c]). Unless a Final Map is filed, and all conditions of approval are fulfilled within a two -year period from the date of Vesting Tentative Map approval, the Vesting Tentative Map shall expire and all proceedings shall terminate. An extension of time may be granted by the city council after recommendation of the planning commission, upon the written application of the subdivider, prior to the expiration of the Vesting Tentative Map approval, or any previous extension granted. Such extension(s) shall be subject to the maximum limitations set forth in the Subdivision Map Act. PASSED: AYES: NOES: 8 ABSENT: ABSTENTIONS: ATTEST: APPROVED: _________________________ ____________________________ City Clerk Interim Director of Planning and Community Environment APPROVED AS TO FORM: ___________________________ Deputy City Attorney PLANS AND DRAWINGS REFERENCED: Those plans prepared by Langan titled “Vesting Tentative Map 3877 El Camino Real for Condominium Purposes, City of Palo Alto, Santa Clara County, California” consisting of seven (7) pages, stamped, January 23, 2018. ATTACHMENT C ZONING COMPARISON TABLE 3877 El Camino Real, File No. 17PLN-00321 Tentative Map Table 1: COMPARISON WITH CHAPTER 18.13 (RM-30 DISTRICT) Regulation Required Existing Proposed Minimum Site Area 8,500 square feet 21,867.8 sf (0.50 ac) 21,867.8 sf (0.50 ac) Minimum Site Width (2) 70 feet 55 feet 55 feet Minimum Site Depth 100 feet 180 feet 180 feet Table 2: COMPARISON WITH CHAPTER 18.16 (CS DISTRICT) Regulation Required Existing Proposed Minimum Site Area None 10,957.5 sf (0.25 ac) 10,957.5 sf (0.25 ac) Minimum Site Width (2) None 74 feet 74 feet Minimum Site Depth None 140 feet 140 feet August 31, 2017 City’s Current Planning Manager 250 Hamilton Avenue Palo Alto, CA 94303 Nuvera Homes 7041 Koll Center Parkway Suite #170 Pleasanton, CA 94566 Letter of Application For 3877 El Camino Real (14PLN-00464) Dear City’s Current Planning Manager, On May 18th, 2017,the Architectural Review Board (ARB) recommended approval of the Site and Design Review and Design Enhancement Exception applications for the demolition of a 5,860 square foot commercial building and construction of a new mixed-use project. The project includes a three-story 35-foot tall, 4,027 square foot mixed use building and 17 two-story (29’- 8”) dwelling units (flats and townhouses). Parking for the project is provided in a basement and includes 62 parking spaces on a 32,825 square foot lot having two zoning districts (CS and RM- 30). The project also includes a reduction in a rear setback for the basement from 10 feet to 6’- 2”. The City Council made its determination by making the following findings, determination and declarations The proposed subdivision complies with the design criteria of PAMC Chapter 21.20 and 21.28 in the following ways: 1) The design of the proposed seventeen-unit mixed use development is consistent and compatible with applicable elements of the City's Comprehensive Plan in that the site is designated on the Comprehensive Plan land use map as Service Commercial and Multiple Family Residential and is located within the Service Commercial (CS) and Residential Multi-Family (RM- 30) zoning districts and the Comprehensive Plan Table indicates compliance with applicable policies. 2) The design is compatible with the immediate environment of the site in that the proposed building is located within a CS and RM-30 zone district where other mixed-use buildings are common; 3) The design is appropriate to the function of the project in that the design makes the most functional use possible given the narrow constraints of “L” shaped parcel (0.75 acres) with street frontage on both El Camino Real (CS zoning district) and Curtner Avenue(RM-30). 4) The design promotes harmonious transitions in scale and character in areas between different designated land uses in that the scale of the proposed project creates a buffer between the commercial-properties along El Camino adjacent to the west of the project and the lower scale residential neighborhood to the east of the project; ' 5) The design is compatible with approved improvements both on and off the site in that the proposed residential use of the building will be compatible with the other mixed-use buildings in the area; 6) The planning and siting of the various functions and buildings on the site create an internal sense of order and· provide a desirable environment for occupants, visitors and the general community in that the proposed design makes good use of the available space on this narrow lot, accommodating the requirements for open space, parking and sufficient vehicular access; 7) The amount and arrangement of open space are appropriate to the design and the function of the structures in that ample open space is provided in the form of private patio areas and multiple balconies for each of the seventeen dwelling units as well as common open space along the commercial side of the property; 8) Sufficient ancillary functions are provided to support the main functions of the project in that the proposal includes sufficient parking and areas to accommodate trash and recycling needs of the development; 9) Access to the property and circulation thereon are safe and convenient for pedestrians, cyclists and vehicles in that adequate parking areas are proposed despite the narrowness of the lot; 10) Natural features are appropriately preserved and integrated with the project in that the proposal will ensure the preservation of existing trees; 11) The landscape design concept for the site, as shown by the relationship of plant masses, open space, scale, plant forms and foliage textures and colors create a desirable and functional environment in that the remaining open areas are fully planted and the utility equipment is screened as best is possible; 12) Plant material is suitable and adaptable to the site, capable of being properly maintained on the site, and is of a variety, which would tend to be drought resistant and to reduce consumption of water in its installation and maintenance; In conclusion, the proposed project is consistent for all of the reasons and findings specified above. 3877 El Camino Real Project Mitigation Monitoring Program 3877 El Camino Real Project Page 1 Mitigation Monitoring & Reporting Program February 2017 INTRODUCTION Section 15097 of the Guidelines for the California Environmental Quality Act (CEQA) requires that, whenever a public agency approves a project based on a Mitigated Negative Declaration (MND) or an Environmental Impact Report (EIR), the public agency shall establish a mitigation monitoring or reporting program to ensure that all adopted mitigation measures are implemented. This Mitigation Monitoring Program (MMP) is intended to satisfy this requirement of the CEQA Guidelines as it relates to the 3877 El Camino project. This MMP would be used by City staff and mitigation monitoring personnel to ensure compliance with mitigation measures during project implementation. Mitigation measures identified in this MMP were developed in the Initial Study prepared for the proposed project. As noted above, the intent of the MMP is to ensure the effective implementation and enforcement of all adopted mitigation measures. The MMP will provide for monitoring of construction activities, as necessary, and in the field identification and resolution of environmental concerns. MITIGATION MONITORING PROGRAM DESCRIPTION The City of Palo Alto will coordinate monitoring activities and ensure appropriate documentation of mitigation measure implementation. The table below identifies each mitigation measure for the 3877 El Camino Real Project and the associated implementation, monitoring, timing and performance requirements. The MMP table presented on the following pages identifies: 1. the full text of each applicable mitigation measure; 2. the party or parties responsible for implementation and monitoring of each measure; 3. the timing of implementation of each mitigation measure including any ongoing monitoring requirements; and 4. performance criteria by which to ensure mitigation requirements have been met. Following completion of the monitoring and documentation process, the final monitoring results will recorded and incorporated into the project file maintained by the City’s Department of Planning and Community Environment. The mitigation measure numbering reflects the numbering used in the Initial Study prepared for the 3877 El Camino Real (Dudek 2016). 3877 El Camino Real Project Mitigation Monitoring Program 3877 El Camino Real Project Page 2 Mitigation Monitoring & Reporting Program February 2017 No mitigation measures are required for the following resources: Aesthetics Agricultural Resources Air Quality Cultural Resources Geology, Soils, and Seismicity Greenhouse Gas Emissions Hazards and Hazardous Materials Hydrology and Water Quality Land Use and Planning Mineral Resources Noise Population and Housing Public Services Recreation Transportation and Traffic Utilities and Service Systems Mitigation Measure Implementation Responsibility Monitoring Responsibility Timing Performance Evaluation Criteria BIOLOGICAL RESOURCES Mitigation Measure BIO-1: If feasible, vegetation on the project site shall be removed outside of the bird-nesting season. If the start of site clearing, tree removal, or building demolition occurs between February 1 and August 31, a pre- construction survey for nesting birds protected under the Migratory Bird Treaty Act shall be conducted by a qualified biologist to identify the location of nests in active use that were established prior to the start of project implementation activities. The pre-construction survey shall take place no more than 7 days prior to initiation of construction. All trees and shrubs on the site shall be surveyed, with particular attention to any trees or shrubs that would be removed or directly disturbed. Further, the project applicant shall retain a qualified biologist to perform additional nesting bird surveys at least every 2 weeks during all phases of construction that occur during the nesting season. If an active nest of a protected bird is found on site at any time, the biologist shall, in consultation with the California Department of Fish and Wildlife (CDFW), determine whether construction work would affect the active nest or disrupt reproductive behavior. Criteria used for this evaluation shall include presence of visual screening between the nest and construction activities, and behavior of adult Applicant City of Palo Alto Department of Planning and Community Environment Prior to issuance of demolition permit Pre-construction survey is completed prior to demolition. Surveys are repeated throughout construction. Protection measures are implemented during demolition and construction. Nesting birds are not disturbed until young have fledged. 3877 El Camino Real Project Mitigation Monitoring Program 3877 El Camino Real Project Page 3 Mitigation Monitoring & Reporting Program February 2017 Mitigation Measure Implementation Responsibility Monitoring Responsibility Timing Performance Evaluation Criteria raptors in response to the surveyors or other ambient human activity. If construction could affect the nest or disrupt reproductive behavior, the biologist shall, in consultation with CDFW, determine an appropriate construction-free buffer zone around the nest to remain in place until the young have fledged or other appropriate protective measures are taken to ensure no take of protected species occurs. If it is determined that construction will affect an active raptor nest or disrupt reproductive behavior, then avoidance is the only mitigation available. Construction shall not be permitted within 300 feet of such a nest until a qualified biologist determines that the subject nests are no longer active. Prior to issuance of a demolition permit, the City of Palo Alto (City) shall verify that pre-construction surveys have been conducted within 7 days of the proposed start of demolition. If active bird nests are present, the City shall verify that CDFW has been consulted and either determined that construction will not affect an active bird nest or that appropriate construction- free buffer zones have been established or other appropriate protective measures have been taken. Mitigation Measure BIO-2: A pre-construction survey shall be conducted by a qualified biologist (i.e., a biologist holding a California Department of Fish and Wildlife (CDFW) collection permit and a Memorandum of Understanding with CDFW allowing the biologist to handle bats) no earlier than 30 days prior to initiation of construction and demolition activities to determine if active bat roosts or maternal colonies are present on or within 300 feet of the construction demolition area. Surveys shall include the structures proposed for demolition. Should an active maternity roost be identified, the roost shall not be disturbed, and demolition and construction within 300 feet of the maternity roost shall be postponed or halted until the juveniles have fledged and the roost is vacated, as determined by a qualified biologist. Consultation with CDFW shall also be Applicant City of Palo Alto Department of Planning and Community Environment Prior to issuance of demolition permit Pre-construction survey is completed prior to demolition. Avoidance measures are implemented during demolition and construction. Nonbreeding bat hibernacula may be safely evicted under the direction of a qualified bat biologist and with 3877 El Camino Real Project Mitigation Monitoring Program 3877 El Camino Real Project Page 4 Mitigation Monitoring & Reporting Program February 2017 Mitigation Measure Implementation Responsibility Monitoring Responsibility Timing Performance Evaluation Criteria initiated. Under no circumstance shall an active roost be directly disturbed. If nonbreeding bat hibernacula are found on the project site, the individuals shall be safely evicted under the direction of a qualified bat biologist and with consultation with CDFW. These actions shall allow bats to leave during nighttime hours, increasing their chance of finding new roosts with a minimum of potential predation during daylight. If it is determined that demolition or construction will not affect roosting behavior or disrupt a maternal colony, demolition or construction may proceed without any restriction or mitigation measure. If it is determined that demolition or construction will affect an active bat roost or disrupt reproductive behavior, then avoidance is the only mitigation available. Under no circumstance shall an active roost be directly disturbed. Demolition or construction within 300 feet shall be postponed or halted until the roost is naturally vacated as determined by a qualified biologist. Prior to issuance of a demolition permit, the City of Palo Alto (City) shall verify that pre-construction surveys have been conducted within 30 days of the proposed start of demolition. If bats are present, the City shall verify that CDFW has been consulted and either determined that construction will not affect an active bat roost or disrupt a maternal colony or that individuals in a nonbreeding bat hibernacula have been safely evicted. Due to regulations from the California Department of Public Health, direct contact by construction workers with any bat is not allowed. consultation with CDFW. 895\16\1880092.1 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Palo Alto Office of City Attorney 250 Hamilton Avenue Palo Alto, CA 94301 No fee for recording pursuant to (Space above for Recorder's Use) Government Code Section 27383 DENSITY BONUS DEVELOPER AND REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This DENSITY BONUS DEVELOPER AND REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS ("Agreement") is entered into as of this __th day of ____ 20__, by and between the CITY OF PALO ALTO, a charter city and municipal corporation (the "City"), and Zijin LLC, a Limited Liability Corporation (the "Developer"), (individually a "Party" and together the "Parties"), with reference to the following facts: A. The City has adopted a Density Bonus Ordinance, Palo Alto Municipal Code Chapter 18.15, to conform with State Density Bonus Law (Government Code Section 65915 – 65918) (together "Density Bonus Law"). Density Bonus Law allows a density bonus, concessions, and other regulatory incentives when a developer proposes to provide rental housing affordable to Very Low Income or Low Income Households. B. Developer is the owner of certain real property located at 3877 El Camino Real, Palo Alto, County of Santa Clara, California described in attached Exhibit A incorporated herein by this reference (the "Property"). In consideration of certain valuable land use and economic benefits conferred by the City upon the Property under Density Bonus Law, Developer, for itself, its successors, heirs, grantees and assigns, hereby agrees to comply with the requirements of Density Bonus Law as applied to the Property. C. On September 18, 2017, Developer received the following discretionary approvals from the City to construct 17 dwelling units ("Units") and 4,035 square feet of commercial area (hereinafter referred to as the "Project") on the Property: Site and Design with a Design Enhancement Exception (the "Project Approvals"). As part of the Project, Developer has sought and agreed to construct 2 Units (15% of the total Units in the Project) to be affordable to Low Income Households (the "Affordable Units") for the Density Bonus Term as defined below and to pay an in-lieu fee for 0.55 fractional units. Developer will apply for a final subdivision map allowing the Units in the Project to be sold individually but intends to rent all Units in the Project upon completion of construction. To provide affordable units meeting the requirements of the Density Bonus Law, Developer shall sell or rent, as applicable, all Affordable Units to Eligible Households at Affordable Sales Prices and Affordable Rents as described in this Agreement. D. Under Density Bonus Law, Developer has applied for, and the City has granted, the following regulatory incentives in exchange for the Developer's provision of the Affordable Units: 895\16\1880092.1 2 1. A density bonus of 0 additional Units (the "Density Bonus"). 2. One concession, described as follows: As authorized in the City’s zoning code (PAMC 18.15.050[d][iv]) the applicant selected an increase to residential floor area. The code allows an increase in the floor area ratio up to 25% or up to the square footage of the restricted affordable units, whichever is less (the “Concession(s)”). E. Density Bonus Law requires the City to ensure, and the Developer to agree to, continued affordability of the Affordable Units for the Density Bonus Term. To ensure their continued affordability for the Density Bonus Term, this Agreement shall be executed and recorded against the Property prior to the recordation of any parcel map or final subdivision map or issuance of building permits for the Project, whichever occurs first. F. Developer acknowledges and agrees that the Project Approvals provided adequate and proper notice pursuant to Government Code Section 66020 of Developer's right to protest any requirements for fees, dedications, reservations, and other exactions as may be included in this Agreement, that no protest in compliance with Section 66020 was made within ninety (90) days of the date that notice was given, and that the period has expired in which Developer may protest any and all fees, dedications, reservations, and other exactions as may be included in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the Parties as follows. AGREEMENT The Parties agree and acknowledge that the above recitals are true and accurate, and are incorporated into this Agreement by this reference. ARTICLE 1. DEFINITIONS AND EXHIBITS Section 1.1. Definitions. When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1. (a) “Affordable Rent” is the maximum allowable Rent for an Affordable Unit, equal to one-twelfth (1/12th) of thirty percent (30%) of sixty percent (60%) of Area Median Income adjusted for assumed household size of one person in a studio Affordable Unit, two persons in a one-bedroom Affordable Unit, three persons in a two-bedroom Affordable Unit, and one additional person for every additional bedroom thereafter. (b) "Affordable Sales Price" means the maximum allowable sales price for an Affordable Unit in effect at the time of its sale by the Developer to an Eligible Household. (c) “Affordable Units" are defined in Recital C. (d) “Agreement” is defined in the first paragraph on page 1. (e) "Area Median Income" is the median Household Income in Santa Clara County as determined periodically by the State of California pursuant to California Code of Regulations, Title 25, Section 6932 or successor provision. 895\16\1880092.1 3 (f) “City” is defined in the first paragraph on page 1 of this Agreement. (g) "City Deed of Trust" means a Deed of Trust and Security Agreement securing performance under the Resale Restriction and City Note in a form substantially similar to that shown in Exhibit G. (h) "City Note" means a Promissory Note in favor of the City in a form substantially similar to that shown in Exhibit F. (i) “Concession” is defined in Recital C. (j) "Correction Costs" are defined in Section 3.5. (k) "Density Bonus" is defined in Recital C. (l) "Density Bonus Law" is defined in Recital A. (m) “Density Bonus Term” is the period that commences when the City and Developer record the Regulatory Certificate described in Section 3.4 and that terminates thirty (30) years after the date of the recordation of the Regulatory Certificate. (n) “Developer” is defined in the first paragraph on page 1 of this Agreement. (o) "Director" is the Director of Planning and Community Environment of the City or successor position. (p) "Eligible Household" is a household which has been determined to be eligible to rent or purchase an Affordable Unit in compliance with Density Bonus Law and this Agreement. (q) "Household Income" is the combined gross, pre-tax income of all adult occupants of the applicant household. (r) "Incentive" is defined in Recital C. (s) "Low Income Household" is a household with a Household Income between fifty percent (50%) and eighty percent (80%) of Area Median Income, adjusted for actual household size. (t) "Market Rate Units" are Units which are not Affordable Units. (u) "Party" or “Parties” are defined in the first paragraph on page 1 of this Agreement. (v) "Project" is defined in Recital C. (w) “Project Approvals" are defined in Recital C. (x) “Property” is defined in Recital B. (y) "Regulatory Certificate" is defined in Section 3.4. 895\16\1880092.1 4 (z) "Resale Restriction" means an Occupancy, Resale, and Refinancing Restriction Agreement, with Option to Purchase at Restricted Price in a form substantially similar to that shown in Exhibit E. (aa) "Rent" is the total of monthly payments by the Tenant of an Affordable Unit for all of the following: (1) use and occupancy of the Affordable Unit and land and all facilities associated with the Affordable Unit, including but not limited to parking, bicycle storage, storage lockers, and use of all common areas; (2) any separately charged fees or service charges assessed by the Developer which are required of all tenants of Units in the Project, except security deposits; (3) an allowance for utilities paid by the Tenant as established by the Santa Clara County Housing Authority, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or cable TV; and (4) any other interest, taxes, fees or charges for use of the land or associated facilities that are assessed by a public or private entity other than the Developer and paid by the Tenant. (bb) "Tenant" is a household occupying an Affordable Unit pursuant to a valid lease or rental agreement with the Developer. (cc) "Tenant Lease" is defined in Section 3.2. (dd) “Units” are defined in Recital C. (ee) "Very Low Income Household" is a household with a Household Income at or below fifty percent (50%) of Area Median Income. (ff) "Waiver" is defined in Recital C. Section 1.2. Exhibits. The following exhibits are attached to and incorporated into this Agreement: Exhibit A Legal Description of the Property. Exhibit B Map Showing Initial Location of Affordable Units and Schedule of Affordable Units. Exhibit C Initial Affordable Rents and Maximum Income Level of Tenants for Affordable Units. Exhibit D Initial Sales Prices and Maximum Income Level of Eligible Households for Purchasing Affordable Units. Exhibit E Form of Resale Restriction. Exhibit F Form of City Note. Exhibit G Form of City Deed of Trust. 895\16\1880092.1 5 ARTICLE 2. CONSTRUCTION OF PROJECT AND AFFORDABLE UNITS Section 2.1. Construction of Affordable Units. The Affordable Units shall be constructed in proportion to construction of the Market-Rate Units. No building permit shall be issued for any Market-Rate Unit unless a proportional number of building permits have been issued for Affordable Units, and no certificates of occupancy or final inspections shall be issued for any Market-Rate Units unless a proportional number of certificates of occupancy or final inspections have been issued for Affordable Units. The Director may approve a modified construction schedule if this timing requirement will create unreasonable delays in the issuance of certificates of occupancy for Market-Rate Units and if the Developer provides satisfactory assurance, as approved by the Director, that the Affordable Units will be completed prior to completion of all of the Market-Rate Units. Each Affordable Unit shall be inspected by the City prior to occupancy to determine that it meets the construction and other standards required by this Agreement. Section 2.2. Affordable Units. (a)To satisfy Developer's affordable housing requirements for the Project under Density Bonus Law, Developer must rent or sell a total of two (2) units at an Affordable Rent or at an Affordable Sales Price. In the event Developer wishes to satisfy this obligation in part by providing an affordable rental unit at initial project occupancy, Developer shall rent a maximum of one (1) Affordable Unit to Low Income Households at Affordable Rents, as specified in Article 3 below, for the Density Bonus Term or until the unit is offered for sale. In addition, at initial project occupancy, Developer shall sell at least one (1) Affordable Unit at an Affordable Sales Price pursuant to Sections 4.2, 4.3, 4.4 and 4.5 of this Agreement. (b)In the event Rental Units in the Project are offered for sale, any Affordable Rental Units shall be sold at Affordable Sales Prices to Eligible Households. (c)After the expiration of the Density Bonus Term., if Developer has not offered Rental Units in the Project for sale, Developer shall have no affordable housing obligations under this Agreement. Prior to the expiration of the Density Bonus Term, Developer shall provide all notifications required by Government Code Sections 65863.10 and 65863.11 or successor provisions or any other notification required by any state, federal, or local law. Section 2.3. Appearance, Size and Bedroom Count of Affordable Units. (a)Appearance and Maintenance of Affordable Units. The design, square footage, appearance, and general quality of the Affordable Units shall be compatible with those of the Market Rate Units and consistent with the designs provided for the Project Approvals. Developer shall allocate and assign parking spaces, bicycle storage, storage lockers, and other spaces reserved for use by individual Units to the Affordable Units on the same basis as for the Market-Rate Units, and Tenants of the Affordable Units shall have equal access to the Project's common areas as is given to the residents of the Market-Rate Units, but any fee charged for use of common areas or for spaces reserved for individual Units shall be included in the Tenant's Rent. Once completed, the Affordable Units shall not be kept vacant or used for any purpose except for residential use and, if vacant, shall be marketed concurrently with the Market-Rate Units and offered for rent to Eligible Households at Affordable Rents. 895\16\1880092.1 6 (b) Location and Characteristics of Affordable Units. Developer shall provide Affordable Units in the Project in accordance with the schedule shown in Exhibit B. As provided in Exhibit B, the Affordable Units shall be dispersed within the Project with a bedroom mix equivalent to the bedroom mix of the Market-Rate Units, except that the Developer may elect to provide the Affordable Units with more bedrooms. (c) Change in Location of Affordable Units. If, after recordation of this Agreement, Developer desires to change the location of any Affordable Unit within the Project, Developer shall submit a written request for such change to the Director, who may approve such request provided that any relocated Affordable Units shall be comparable to those listed in Exhibit B and shall contain the same number of bedrooms. Section 2.4 Calculation and Payment of In-Lieu Fees. In lieu of providing a third low income unit, Developer has elected to provide an in-lieu payment for 0.55 fractional units, as provided in Palo Alto Municipal Code section 16.65.030(c). The in-lieu fee shall be calculated using rates in effect at the time of payment and shall be paid prior to first building permit issuance. ARTICLE 3. RENT REGULATORY PROVISIONS The provisions of this Article 3 are applicable until the earlier to occur of the following: (1) expiration of the Density Bonus Term; or (2) Developer's determination to offer Units in the Project for sale. Section 3.1. Affordability and Occupancy Covenants. (a) Occupancy Requirements. Subject to the provisions of subsection (e) of this Section below, Affordable Units shall be rented to and occupied by or, if vacant, available for occupancy by, Low Income Households. The Affordable Units shall not be kept vacant or used for any purpose except for residential use and shall be offered for rent to Eligible Households at Affordable Rents. (b) Allowable Rent. Subject to the provisions of subsection (e) of this Section below, the maximum Rent charged to Tenants of the Affordable Units shall not exceed Affordable Rent. (c) City Approval of Rents. Initial Rents for all Affordable Units shall be approved by the City prior to occupancy at the time the Developer submits to the City the marketing plan required by Section 3.3 below. The City shall review all proposed Rent increases to determine whether the proposed increases are consistent with the provisions of this Agreement. Developer shall certify to the City that Developer is not charging any fee other than Affordable Rent to Tenants of the Affordable Units for all of the components of Rent defined in Section 1.1 above. (d) Schedule of Affordable Rents. The City has provided the Developer with a schedule of Affordable Rents for the Affordable Units in effect on the date of this Agreement, set forth in attached Exhibit C. The City annually determines Affordable Rents (including utility allowances) based on changes in Area Median Income and utility allowances, and Developer shall obtain a copy of the schedule from the Director. 895\16\1880092.1 7 (e) Increased Income of Tenants from Low Income to Above Low Income. If, upon recertification of a Tenant's Household Income, the Developer determines that the Tenant's Household Income has increased and exceeds the qualifying income for a Low Income Household, then the Tenant shall be given written notice that: (i) Tenant’s Rent shall be increased sixty (60) days after the date in the notice to an amount to be determined by Developer but not to exceed Rent for a comparable Market-Rate Unit; and (ii) Tenant shall vacate the Affordable Unit six (6) months from the date of the notice or upon expiration of the Tenant's lease, whichever is later. If, prior to the date by which the Tenant must vacate the Affordable Unit, another Unit is vacated which is not designated as an Affordable Unit and is of appropriate bedroom size, the Developer may, at the Developer's option, request the Director to approve a change in the location of the Affordable Unit; allow the Tenant to remain in the original Unit; and designate the newly vacated Unit as an Affordable Unit if approved by the Director. (f) Agreement to Limitation on Rents. The Project has received an Incentive from the City under the Density Bonus Law, which is a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. The Developer hereby agrees to limit Rents and sales prices as provided in this Agreement in consideration of the Developer's receipt of the Incentives and further agrees that any limitations on Rents imposed on the Affordable Units are in conformance with the Costa-Hawkins Act. The Developer further warrants and covenants that the terms of this Agreement are fully enforceable. Section 3.2. Lease Provisions. The Developer shall use a form of Tenant lease (the "Tenant Lease") approved by the City for the Affordable Units. The Tenant Lease shall, among other matters: (a) provide for termination of the lease for failure: (1) to provide any information required under this Agreement or reasonably requested by the Developer to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, as an Eligible Household in accordance with this Agreement, or (2) to qualify as an Eligible Household as a result of any material misrepresentation made by such Tenant with respect to the Household Income computation or certification; (b) provide that the Rent may not be raised more often than once every twelve (12) months. The Developer will provide each Tenant with at least sixty (60) days written notice of any increase in Rent applicable to such Tenant; (c) prohibit subleasing of the Affordable Unit or any portion of the Affordable Unit or any spaces reserved for the use of the Tenant, contain nondiscrimination provisions, and include the Tenant's obligation to inform the Developer of any need for maintenance or repair; (d) include reasonable rules of conduct consistent with California law; (e) allow termination of the tenancy only for an increase in Tenant’s Household Income above qualifying income for Low Income Households or for good cause, including violation of the terms and conditions of the Tenant Lease, violations of applicable federal, state, or local law, or other good cause; 895\16\1880092.1 8 (f) include, at Developer's option, the obligation for Tenant to provide a security deposit not exceeding two months' rent; and (g) be consistent with Palo Alto Municipal Code Section 9.68, which requires that Tenants be offered a one-year lease, unless the Tenant is over-income, as described in Section 3.1(e) above. Section 3.3. Marketing, Income Certification and Reporting. (a) Required City Approvals. At least sixty (60) days before any Units in the Project receive a final inspection or certificate of occupancy, the Developer shall notify City of the availability of the Affordable Units and provide to the City its proposed marketing plan for the Affordable Units as described below; its management policies as described in Section 3.5 below; the proposed form of Tenant Lease to confirm conformance with the provisions of Section 3.2 above; and proposed Affordable Rents for the Affordable Units, all for City review and approval. The Affordable Units shall be marketed concurrently with the marketing of the Market-Rate Units. (b) Marketing Plan. The Developer's marketing plan shall be consistent with the provisions of this subsection (b). Upon receipt of the marketing plan, the City shall promptly review the marketing plan and shall approve or disapprove it within thirty (30) days after submission. If the marketing plan is not approved, the Developer shall submit a revised marketing plan within thirty (30) days. (i) Local Worker and Resident Preference. Eligible Households with a member who is either a resident of the City of Palo Alto or employed within the City limits shall be given preference for occupancy of the Affordable Units. (ii) Section 8 Vouchers and Certificate Holders. The Developer will review applications from prospective tenants of Affordable Units, on the same basis as all other prospective tenants, of persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act or any successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher holders that are more burdensome than criteria applied to all other prospective tenants for the Affordable Units, nor shall the Developer apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of Affordable Units by such prospective tenants. (iii) Marketing Materials. The marketing plan submitted to the City shall include the following: means to be used to advertise Affordable Units to the public upon initial occupancy and as vacancies occur and maintenance of a waiting list; the amount of any application screening fee to be imposed by Developer, and information to be provided to applicants, including conditions and restrictions applicable to occupancy of the Affordable Units, current Affordable Rent, permitted Rent increases, maximum qualifying income for an Eligible Household, requirement for annual Household Income recertification, preferences, and requirement to vacate the Affordable Unit if the Tenant’s Household Income exceeds the maximum qualifying income. (c) Income Certification. 895\16\1880092.1 9 (i) Prior to Developer’s entering into a lease with a prospective tenant of an Affordable Unit, the prospective tenant household shall be certified by the City or its assignee, currently the Palo Alto Housing Corporation, as an Eligible Household. (ii) Annually thereafter, the Developer will obtain, complete and maintain on file Household Income certifications for each Tenant renting any of the Affordable Units. Developer shall make a good faith effort to verify that the Household Income statement provided by a Tenant is accurate by taking two or more of the following steps as a part of the verification process for all members of the Tenant household age eighteen (18) or older: (a) obtaining a minimum of the three (3) most current pay stubs; (b) obtaining an income tax return for the most recent tax year; (c) conducting a credit agency or similar search; (d) obtaining the three (3) most current savings and checking account bank statements; (e) obtaining an income verification form from a current employer; (f) obtaining an income verification form from the Social Security Administration and/or the California Department of Social Services if an adult member of the Tenant's household receives assistance from either of such agencies; or (g) if the Tenant is unemployed and has no such tax return, obtain another form of independent verification. Copies of annual Tenant Household Income certifications shall be provided to the City or its assignee for review. (iii) As an alternative to the procedure described in subparagraph (ii) of this subsection (c), Developer may contract with a provider approved by the City to certify Tenant Household Incomes on an annual basis. (d) Reports to City. (i) Annual Report. The Developer shall submit to the City on April 1st of each year a report, in a form prescribed by or otherwise acceptable to the City, verifying compliance by Developer with the terms of this Agreement and certified as correct by the Developer under penalty of perjury. The annual report shall include without limitation the following information: a. Certifications of eligibility for all Tenants of Affordable Units at the time of initial occupancy and upon the yearly anniversary of their continuing tenancies. Such certification shall include: i. Verified Household Income statements. Developer shall retain in the Tenant's file all verifications of Tenant's Household Income obtained as required in subsection (c) of this Section. ii. Number of persons in each Affordable Unit. b. Certification of the amount of Rent charged for the year for all Affordable Units. c. Other information reasonably required by the City. (ii) Other Reports. Within fifteen (15) days after receipt of a written request, Developer shall provide any other information or completed forms requested by the City to ensure compliance with this Agreement. 895\16\1880092.1 10 Section 3.4. Commencement of Density Bonus Term. The Density Bonus Term shall commence on the date that the Developer and City record a certificate: (a) stating that all the Affordable Units are rented and occupied by Eligible Households; and (b) identifying the beginning and end dates of the Density Bonus Term (the "Regulatory Certificate"). Section 3.5. Management of Property and Property Maintenance. (a) Management Responsibilities. The Developer is responsible for all management functions with respect to the Project, including, without limitation, the annual recertification of household size and Household Income (subject to review by the City or its assignee), selection of Tenants, maintenance of a waiting list for the Affordable Units, evictions, collection of Rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City shall have no responsibility over management of the Project. (b) Approval of Management Policies. The Developer shall submit its written management policies with respect to the Project to the City for its review and shall amend such policies if necessary to ensure that such policies comply with the provisions of this Agreement. (c) Property Maintenance. The City places prime importance on quality maintenance to ensure that all developments within the City which include affordable housing units are not allowed to deteriorate due to below-average maintenance. Developer shall provide the Affordable Units with the same level and quality of maintenance, including performance of repairs and periodic replacement of fixtures as the Market-Rate Units. The Developer agrees to maintain all interior and exterior improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. (d) Remedies. In the event that the Developer breaches any of the covenants contained in this Section 3.5 and such default continues for a period of ten (10) days after written notice from the City specifying the nature of the breach with respect to graffiti, debris, waste material, or a health or safety violation, or thirty (30) days after written notice from the City specifying the nature of the breach with respect to general maintenance, landscaping and building improvements, then the City, in addition to whatever other remedy it may have at law or in equity, shall have the right (but is not required) to enter upon the Property after ten (10) days' prior written notice to the Developer describing the nature of the City's intended actions and to perform or cause to be performed all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, as specified in a correction plan approved by the City, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures incurred by the City or its agents arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, plus an administrative charge equal to fifteen percent (15%) of the amount of such expenditures (the expenditures plus the administrative charges are the "Correction Costs"), if Developer does not remit the full amount of the Correction Costs to the City within thirty (30) days after City notifies Developer of the full amount of the Correction Costs. (e) Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments, if any, and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times 895\16\1880092.1 11 and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Developer exercises its right to contest any tax, assessment, or charge against it, Developer, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. (f) Damage or Destruction of Project. If all of the Units on the Property are demolished, the Concession granted to Developer under Density Bonus Law shall terminate and the terms of this Agreement shall terminate and be of no further force and effect. ARTICLE 4. SALE OF BMR UNITS Section 4.1. Decision of Developer to Sell Units in the Project. In the event that the Developer determines to offer Rental Units in the Project for sale, the following shall apply. (a) Notification to City. Developer shall notify City within five (5) business days of submitting an application to the Department of Real Estate for a public report to offer Units in the Project for sale. Developer shall also provide the City with a copy of Developer's application for a public report. At least one hundred twenty (120) days before offering an Affordable Unit for sale, the Developer shall provide the City with written notice of the proposed sale of the Affordable Unit including the Unit size (square footage and number of bedrooms), lot/building/unit number, street address, Developer name and Tract number, and required income level of the Unit. City shall notify Developer within thirty (30) days of the receipt of Developer's notification of the Affordable Sales Prices currently applicable to each Affordable Unit. (b) Notification to Tenants. The Developer shall provide all notices to Tenants of the Affordable Units required by state law. Section 4.2. Sale by Developer to Eligible Households. (a) Developer shall sell the Affordable Units to Eligible Households at prices not in excess of the then-current Affordable Sales Prices provided by the City. The Affordable Sales Price shall be the absolute maximum price that the Developer or any other seller may receive as compensation for the sale of an Affordable Unit. The Developer or other seller may not charge or receive any additional amount for an Affordable Unit regardless of whether the additional amount is (a) for options, upgrades or additional improvements to the Affordable Unit, (b) paid through escrow or outside of escrow, (c) paid prior to, after or as part of the purchase escrow or (d) paid in cash or in kind, unless a reasonable accommodation is approved by the City for buyers requiring options or accommodations related to a disability, in which any additional cost shall be paid through escrow with prior written approval by City. (b) The Developer shall actively market the Affordable Units, openly and in the same general manner as the Market-Rate Units, allow prospective buyers to view the Affordable Units, model units or floor plans, disclosure documents, and any other relevant sales materials, as may be available. Developer's sales agents shall provide the same general quality of customer service to the Affordable Unit buyers as provided to market-rate buyers, shall display information about the availability of the Affordable Units in a readily noticeable manner in the sales office and/or Project sales website, and shall disclose the Affordable Unit restrictions to any prospective buyers in a timely manner. Selected applicants shall be responsible for obtaining their own 895\16\1880092.1 12 financing for the Affordable Units. Developer shall comply with applicable fair housing laws in the marketing and sale of the Affordable Units. Purchase contracts between Developer and Eligible Households shall include requirements that buyers execute documents for the benefit of the City as described in Section 4.4 below. (c) The City or its designee shall verify a potential buyer's eligibility pursuant to this Agreement before Developer may accept an offer to purchase an Affordable Unit. Developer agrees to pay a transaction fee in compliance with the City's then-applicable Master Fee Schedule, per sale of each Affordable Unit, or any such fee for the reasonable cost of administering this Agreement as may be adopted by resolution of the City Council. (d) Eligible Households shall submit purchase offers directly to Developer, and Developer shall accept offers to purchase in the order received, provided that such offers include a letter from the City certifying buyer's eligibility, a valid check for the required good faith deposit, and a preliminary first mortgage loan approval. Developer shall conduct any additional screening of applicants deemed necessary and not in violation of fair housing laws. (e) The Developer shall be independently responsible to make good faith efforts to market and sell the Affordable Units in compliance with this Agreement, and shall cooperate with City in good faith in the effort to sell the Affordable Units to Eligible Households in a timely manner. Section 4.3. Affordable Sales Prices. The Affordable Units shall be sold to Eligible Households at sales prices that do not exceed Affordable Sales Prices established by the City. Affordable Sales Prices for the Affordable Units in effect on the date of this Agreement (and subject to change annually thereafter) are shown in Exhibit D attached hereto and incorporated herein. Developer acknowledges and agrees that Affordable Sales Prices are determined based on current income levels in Santa Clara County, changes to which are published annually by the State of California, Department of Housing and Community Development. Section 4.4. Homebuyer Documents and Security Instruments. Prior to the sale of each Affordable Unit, the Developer shall ensure that: (a) The Eligible Household and the City execute the Resale Restriction, which shall be recorded against the Affordable Unit at close of escrow on the sale to the Eligible Household. The Resale Restriction shall be recorded immediately following the grant deed to the Eligible Household, unless otherwise approved in writing by the City. (b) The Eligible Household signs the City Note that obligates the Eligible Household to pay the City any excess sales proceeds or excess rents received by the Eligible Household if the Eligible Household fails to comply with the Resale Restriction on rental or resale of the Affordable Unit. (c) The Eligible Household signs the City Deed of Trust to secure performance of the Eligible Household's covenants under the Resale Restriction and payment of the amounts due under the City Note if the Eligible Household fails to comply with the terms of the Resale Restriction. The City Deed of Trust shall be recorded against the Affordable Unit, subordinate only to the Resale Restriction and the lien for the first mortgage loan obtained by the Initial Buyer to finance the purchase of the Affordable Unit unless otherwise approved in writing by the City. 895\16\1880092.1 13 Section 4.5. Compliance Reports, Inspections, Monitoring. Within five (5) days following the sale of any Affordable Unit by the Developer to an Eligible Household, Developer shall forward, or shall cause escrow officer to forward to the City, copies of the buyer's and seller's settlement statement and all closing documents, including Resale Restriction, City Note, and City Deed of Trust executed in connection with the sale. ARTICLE 5. ENFORCEMENT Section 5.1. Covenants Running with the Land. The City and Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall apply to and bind Developer and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in or to any part of the Property and shall run with and burden such portions of the Property until terminated in accordance with Section 5.2. Until all or portions of the Property are expressly released from the burdens of this Agreement, each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument. In the event of foreclosure or transfer by deed-in-lieu of all or any portion of the Property prior to completion and sale of all of the Affordable Units, title to all or any portion of the Property shall be taken subject to this Agreement. Developer acknowledges that compliance with this Agreement is a requirement of Density Bonus Law and the Project Approvals, and that no event of foreclosure or trustee's sale may remove these requirements from the Property. Section 5.2. Release of Property from Agreement. (a) If the Developer has not sold all the Affordable Units, prior to the expiration of the Density Bonus Term, Developer shall provide all notifications required by Government Code Sections 65863.10 and 65863.11 or successor provisions and any other notification required by any state, federal, or local law. (b) Upon the expiration of the Density Bonus Term, City shall execute and record a release of the Project, the Property, and each Unit in the Project from the burdens of this Agreement within thirty (30) days following written notice from the Developer, if at the time the Developer is in compliance with all terms of this Agreement. Section 5.3. Default. Failure of the Developer to satisfy any of Developer's obligations under the terms of this Agreement within thirty (30) days after the delivery of a notice of default from the City will constitute a default under this Agreement and a failure to satisfy the Project Approvals and Density Bonus Law. In addition to remedies for breach of this Agreement, the City may exercise any and all remedies available to it under the Subdivision Map Act, Density Bonus Law, or otherwise, including but not limited to: (a) withholding, conditioning, suspending or revoking any permit, license, subdivision approval or map, or other entitlement for the Project, including without limitation final inspections for occupancy and/or certificates of occupancy; (b) instituting against the Developer, or other parties, a civil action for declaratory relief, injunction or any other equitable relief, or relief at law, including without 895\16\1880092.1 14 limitation an action to rescind a transaction and/or to require repayment of any funds received in connection with such a violation; (c) where one or more persons have received financial benefit as a result of violation of this Agreement or of any requirement imposed under the Density Bonus Law, the City may assess, and institute legal action to recover as necessary, a penalty in any amount up to and including the amount of financial benefit received, in addition to recovery of the benefit received; (d) requiring the Developer or his/her successors in interest to the Property to pay the City Rent or any other payment received by the Developer for the Affordable Unit from the date of any unauthorized use of the Affordable Unit or in excess of Affordable Rent; and (e) any other means authorized under the City of Palo Alto Municipal Code, Density Bonus Law, or any other federal or state statute. Section 5.4. Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement or Density Bonus Law is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of this Agreement, Density Bonus Law, or by any statute or ordinance or otherwise against Developer and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. ARTICLE 6. GENERAL PROVISIONS Section 6.1. Appointment of Other Agencies. At its sole discretion, the City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform some or all of the City's obligations under this Agreement. Section 6.2. Records. Developer shall retain all records related to compliance with obligations under this Agreement for a period not less than five (5) years from the date of origination of such records, and make them available to City employees or others designated by the City for inspection and copying on five (5) business days' written notice. The City shall be entitled to monitor compliance with this Agreement and Density Bonus Law, and Developer shall cooperate with City monitoring, including obtaining Tenant Rent and Household Income verification upon request of the City. Section 6.3. Monitoring Fee. Developer agrees to pay an annual monitoring fee as may be adopted by resolution of the City Council which is in force and effect for a similar class of affordable units. Section 6.4. Nondiscrimination. All of the Affordable Units shall be available for occupancy to members of the general public. The Developer shall not give preference to any particular class or group of persons in renting or selling the Affordable Units, except to the extent that the Affordable Units are required to be rented and sold to Eligible Households and as required by this Agreement, including, without limitation, as set forth in Section 3.3(b) above; provided, however, there shall be no discrimination against or segregation of any person or group of 895\16\1880092.1 15 persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of income (e.g., SSI), age (except for lawful senior housing), ancestry, or disability, in the leasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall the Developer or any person claiming under or through the Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of Tenants of any Unit or in connection with the employment of persons for the construction, operation and management of the Project. Section 6.5. Hold Harmless. Developer will indemnify and hold harmless (without limit as to amount) City and its elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as "Indemnitees"), and any of them, from and against all loss, all risk of loss and all damage (including expense) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to the Project, the Affordable Units, or Developer's performance or non-performance under this Agreement, including claims pursuant to California Labor Code Section 1720 et seq., and shall protect and defend Indemnitees, and any of them with respect thereto, except to the extent arising from the gross negligence or willful misconduct of the Indemnitees. The provisions of this Section shall survive expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement, and the provisions of this Section shall remain in full force and effect. Section 6.6. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the Party to receive such notice at the addressed set forth below: TO THE CITY: City of Palo Alto Office of City Attorney 250 Hamilton Avenue Palo Alto, CA 94301 TO THE DEVELOPER: Zijin, LLC 6989 Melvin Drive San Jose, CA 95129 Any Party may change the address to which notices are to be sent by notifying the other Parties of the new address, in the manner set forth above. Section 6.7. Integrated Agreement. This Agreement constitutes the entire Agreement between the Parties and no modification hereof shall be binding unless reduced to writing and signed by the Parties hereto. 895\16\1880092.1 16 Section 6.8. Each Party’s Role in Drafting the Agreement. Each Party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither Party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement. Section 6.9. Amendment of Agreement; Approvals and Consents. (a) Amendments to this Agreement, including any proposal to change any condition of the Project Approvals, shall be subject to the review and approval of the decision- making body which approved the Project. No amendment may be approved that is inconsistent with State law, the Palo Alto Municipal Code, or any adopted affordable housing guidelines. Upon approval, a new Agreement or amendments to this Agreement, as appropriate, shall be executed and recorded. (b) The City has authorized the City Manager to execute this Agreement and has authorized the Director to deliver such approvals or consents as are required by this Agreement. Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, unless it is specifically provided that a sole discretion standard applies. Section 6.10. No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person that Developer may have employed or with whom Developer may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the Property or the construction of the Project or construction of the Affordable Units. Section 6.11. Applicable Law. This Agreement shall be governed by California law. Venue shall be the County of Santa Clara. Section 6.12. Waivers. Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Developer or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Developer to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Developer shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers. Section 6.13. Title of Parts and Sections. Any titles of the sections, subsections, or subparagraphs of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. Section 6.14. Multiple Originals; Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. Section 6.15. Recording of Agreement. This Agreement shall be recorded against the Property in the Official Records of the County of Santa Clara prior to the recordation of any parcel map or final subdivision map or issuance of any building permit for the Project, whichever occurs first. 895\16\1880092.1 17 Section 6.16. Severability. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. DEVELOPER: CITY: Its: APPROVED AS TO FORM: By: 18 895,16%1880092.1 City of Palo Alto, a chartered city and municipal corporation By: Its: A notary pubic or ether officer completing this certificate verifies only die identity el the individil who signed the document to which this certkhcete k attached, and nor the truthhinsaa, aoahaacy, a validity of that document • STATE OF CALIFORNIA COUNTY OF SANTA CLARA On NOU - /. c18 , fore me4 I ..40O I--` , Notary Public, personally appeared a Yi LIP) , proved to me on the basis of satisfactory evidence to be the persons} hose name( 4- re subscribed - e within instrument and acknowledged to �� that he helthey executed the same i his her/their authorized capacity(ies), and that •t r ether signature(s) on the instrument the p- son(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. RINKOD R. NAT HOMY PUBLIC - CALIFORNIA COMMISSION # 2180238 E 'BANTA GLARA COUNTY Comm. Ex February 13, NV STATE OF CALIFORNIA COUNTY OF SANTA CLARA N Lary Public } } } On , before me, Notary Public, personally appeared _ _ , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 19 S95'.16%I 880092 - Notary Public 895\16\1880092.1 A-1 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY The land referred to is situated in the County of Santa Clara, City of Palo Alto, State of California, and is described as follows: PARCEL 1: Beginning at the point of intersection of the Northeasterly line of the El Camino Real formerly known as the San Francisco and San Jose Road, with the Southeasterly line of Lot 1, as said Road and Lot are shown upon the Map of the J.J. Morris Real Estate Co.'s Sub., hereinafter referred to; running thence along said Northeasterly line of the El Camino Real North 56° 34' West 74.22 to the Northwesterly corner of the certain Parcel of land conveyed to Gonzalo Silvestre, et ux, by Deed dated January 21, 1946, and recorded March 21, 1946, in Book 1329 Official Records, Page 542, Santa Clara County Records; thence leaving said Northeasterly line of the El Camino Real and running North 33° 33' East along the Northwesterly line of the said Parcel conveyed to Gonzalo Silvestre, et ux, 165 feet to the Northeasterly line of said Lot 1 as shown on the Map hereinafter referred to; thence South 56° 34' East; along the Northeasterly line of said Lot 1 as shown upon the Map hereinafter referred to, 74.22 feet to the corner common to Lots 1, 2, 3 and 4 as said Lots are shown upon the Map hereinafter referred to; thence South 33° 33' West; along the Southeasterly line of said Lot 1, a distance of 165 feet to the point of beginning, and being a portion of Lot 1 as shown upon the Map entitled, “Map of the J.J. Morris Real Estate's Co.'s Subdivision of a part of the WM. M. Curtner Tract, being a part of the Rancho Rincon de San Francisquito", which Map was filed in the Office of the Recorder of the County of Santa Clara on March 30, 1905, in Book K of Maps, at Page 57. EXCEPTING THEREFROM the Southwesterly 10 feet of the above described property as set forth in Final Judgment of Condemnation recorded October 25, 1967, in Book 7907 of Official Records of Santa Clara County, at Page 376. PARCEL 2: Commencing at the point of intersection of the Northeasterly line of the El Camino Real, formerly known as the San Francisco and San Jose Road, with the Southeasterly line of Lot 1, as said Road Lot are shown upon the Map of the J.J. Morris Real Estate Co.'s Sub., hereinafter referred to; running thence along said Northeasterly line of the El Camino Real North 56° 34' West 74.22 feet to the Northwesterly corner of the certain Parcel of land conveyed to Gonzalo Silvestre, et ux, by Deed dated January 31, 1946,and recorded March 21, 1946, in Book 1329 Official Records, Page 542, Santa Clara County Records; thence leaving said Northeasterly line of the El Camino Real and running North 33° 33' East, along the Northwesterly line of said Parcel conveyed to Gonzalo Silvestre, et ux, 165 feet to the true point of beginning; thence continuing North 33° 33' East, along the Northeasterly line of said Parcel conveyed to Gonzalo Silvestre, 110 feet to the Northeasterly corner of that certain Parcel of land conveyed to Delmer F. Phelps, et ux, by Deed dated January 21, 1947, and recorded January 28, 1947, in Book 1419 Official Records, Page 321, Santa Clara County Records; running thence North 56° 34' West, along the Northeasterly line of said Parcel conveyed to Delmer F. Phelps, et ux, 190 feet to the most Westerly corner of that certain Parcel of the land conveyed to Gonzalo Silvestre by the Deed firstly hereinabove referred to, in the center line of Curtner Street, as said Street is shown upon the said Map hereinafter referred to; running thence North 33° 33' East along the center line of said Curtner Street 3.00 feet to the most Northerly corner of said Parcel conveyed to Silvestre; running thence South 56° 34' East, along the Northeasterly line of said Silvestre Parcel, 22.22 feet, more or less, to the Southeasterly line of said Curtner Street; running thence North 33° 33' East along said Southeasterly line of Curtner Street, 52.00 feet to the 895\16\1880092.1 A-2 Northeasterly line of Lot 4 as said Lot is shown upon the said Map hereinabove referred to; running thence South 56° 34' East, along the said Northeasterly line of said Lot 4, 242.00 feet to the corner common to Lot 3, 4, 5 and 6, as said Lots are shown upon the said Map hereinafter referred to; running thence South 33° 33' West 165 feet, along the Southeasterly line of Lot 4 as shown upon the Map hereinafter referred to, to the corner common to Lots 1, 2, 3 and 4 as shown upon the Map hereinafter referred to; thence North 56° 34' West 74.22 feet, along the Southwesterly line of Lot 4 as shown upon the Map hereinafter referred to, to the true point of beginning, and being a portion of Lot 4, as shown upon the Map entitled, "Map of the J.J. Morris Real Estate Co.'s Subdivision of a part of the WM. M. Curtner Tract, being a part of the Rancho Rincon de San Francisquito”, filed in the Office of the Recorder of the County of Santa Clara, State of California on March 30, 1905, in Book K of Maps, at Page 57. APN: 132-41-091 895\16\1880092.1 B-1 EXHIBIT B LOCATION AND SCHEDULE OF AFFORDABLE UNITS Attach site map showing the location of the Affordable Units. Number of Bedrooms Affordable Units Unit Numbers & Location 1st Floor 2 1 3877 El Camino Real #101 2 1 395 Curtner Avenue #04 TOTALS: 2 895\16\1880092.1 C-1 EXHIBIT C MAXIMUM INITIAL AFFORDABLE RENTS FOR AFFORDABLE UNITS AND MAXIMUM INCOME LEVEL OF TENANTS 895\16\1880092.1 EXHIBIT D INITIAL SALES PRICES AND MAXIMUM INCOME LEVEL OF ELIGIBLE HOUSEHOLDS FOR PURCHASING AFFORDABLE UNITS 895\16\1880092.1 EXHIBIT E FORM OF RESALE RESTRICTION 895\16\1880092.1 EXHIBIT F FORM OF CITY NOTE 895\16\1880092.1 EXHIBIT G FORM OF CITY DEED OF TRUST Attachment G Project Plans Hardcopies of project plans are provided to Commission members. These plans are available to the public online and/or by visiting the Planning and Community Environmental Department on the 5th floor of City Hall at 250 Hamilton Avenue. Directions to review Project plans online: 1. Go to: bit.ly/PApendingprojects 2. Scroll down to find “3877 El Camino Real” and click the address link 3. On this project specific webpage you will find a link to the project plans and other important information A direct link to the project page is also provided here: https://www.cityofpaloalto.org/news/displaynews.asp?NewsID=4333 City of Palo Alto (ID # 9871) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Council Donation to Butte County (Camp Fire) Fire Relief Title: Approval of a Donation of $25,000 From the City Council Contingency Fund to Support Butte County Fire Relief, Resilience and Recovery After the Camp Fire From: City Manager Lead Department: Fire Recommendation Approve a donation of $25,000 from the City Council Contingency to support Butte County Fire relief, resilience, and recovery following the Camp Fire. The recommended recipient is The Camp Fire Evacuation Relief Fund, administered by the North Valley Community Foundation based in Chico, California (Recommended donation: $25,000). Background On November 19, 2018, Council Member Karen Holman and Mayor Liz Kniss proposed donating $25,000 from the City Council Contingency to support the community needs following the Camp Fire which has devastated the City of Paradise and nearby communities in Butte County. In response to this devastation, the City Council expressed sympathy and a desire to support our neighboring communities. Council contacted colleagues in the impacted areas seeking a way to assist. Staff is recommending the donation be sent to a local community foundation with established relief funds that directly support the immediate and long-term needs of those impacted by this disaster. This is similar to a policy decision made following the North Bay Fires of 2017 where the council directed contingency funds to support community foundations in Sonoma, Napa , and Mendocino Counties. The North Valley Community Foundation (NVCF) is based in the City of Chico in Butte County and has been at the forefront of emergency relief following the Camp Fire. The North Valley Community Foundation provides visionary community leadership by identifying emerging City of Palo Alto Page 2 challenges in the region. NVCF brings together diverse groups of problem-solvers, mobilizes resources, and equips community leaders. Council has made similar relief donations from their contingency fund and these donations comply with City Policy and past practice. Resource Impact Annual funding in the amount of $225,000 is appropriated in the City Council Contingency with approximately $200,000 in remaining unspent funds. This action will reduce the Contingency to $175,000 in Fiscal Year 2019 which can be used to support other funding needs, subject to City Council approval. It should be noted that included in an item for Finance Committee review on November 28, 2018, a reduction of $100,000 in this contingent account is recommended. City of Palo Alto (ID # 9882) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Highway 101 Overpass Resolution for Maintenance Agreement with State and Google Easement Title: Adoption of a Resolution Authorizing the City Manager to Enter Into a Project Specific Maintenance Agreement With the State of California Departm ent of Transportation for the Highway 101 Pedestrian/Bicycle Overpass Project; and Approve the Easement Agreement for Public Access, Utilities, and the Bicycle/Pedestrian Overcrossing Between Google and the City, and Delegate Authority to the City Manager, or his designee, to Sign the Easement Agreement for the Project (PE -11011) From: City Manager Lead Department: Public Works Recommendation Staff recommends that the City Council: 1. Adopt a Resolution (Attachment A) and authorize the City Manager, or his designee, to enter into a Project Specific Maintenance Agreement between the State of California (State) Department of Transportation and the City for the Highway 101 Pedestrian/Bicycle Overpass Project (PE-11011) (Attachment B); and 2. Approve the Easement Agreement for Public Access, Utilities, and the Bicycle/Pedestrian Overcrossing between Google LLC, a Delaware limited liability company, and the City (Attachment C) and delegate authority to the City Manager, or his designee, to sign the Easement Agreement for the Project (PE-11011) CITY OF PALO ALTO City of Palo Alto Page 2 Background In 2012, Council adopted the 2012 Bicycle + Pedestrian Transportation Plan, identifying the Highway 101 bicycle and pedestrian overpass as a top priority. The project construction documents are nearing completion, and the project is expected to go to bid in January 2019. Completion of the Caltrans maintenance agreement and the Google easement agreement is necessary to complete the Caltrans Right-of-Way process. Since spring 2018, the City has been working with Caltrans (California Department of Transportation) and Google to draft the maintenance and easement agreements. The City has received the State’s maintenance agreement and Google’s approval of the easement for Council’s consideration. Discussion Maintenance Agreement Staff recommends adoption of the resolution and approval of the Project Maintenance Agreement between the City and State. The agreement sets forth the responsibilities of the City and the State for the maintenance of the Highway 101 Pedestrian Overcrossing (POC) within the State’s right-of-way, once the POC is constructed. Staff recommends that Council authorize the City Manager, or his designee, to execute the agreement. The City will assume permanent maintenance responsibility for the project improvements. The City lacks the in-house expertise to maintain the bridge structure over the freeway as the City’s maintenance on other bridge structures over freeways is limited to bridge deck surfaces. The City will likely seek a maintenance services contract. These services may vary from structural and railing repairs to graffiti abatement requiring freeway access and traffic control. 3600 West Bayshore Road Easement Google has donated a permanent easement to the City for the bicycle and pedestrian overcrossing, allowing year-round access to the public. Easements are required for temporary construction and permanent activities and improvements related to building the new overcrossing structure on 3600 West Bayshore Road located near the west side of Barron Creek (Attachment C). The City of Palo Alto Page 3 temporary, exclusive easement will enable construction and temporary traversal of equipment and materials to build on the project site and will be in place for an anticipated 18-month timeframe commencing at the start of construction. Upon completion of the construction, the permanent, non-exclusive easement commences and includes reconfigured driveway and parking stalls, the bridge structure and piles, landscaping, amenities such as lighting, and signage. The landscape area around the parking lot will be improved and serve as a bio- retention area. There will be no net loss or increase of private parking stalls, allowing Google to continue use of their private parking lot. Resource Impact The City, under the Maintenance Agreement with Caltrans, will be responsible for the cost of maintenance of the overcrossing. Funding to cover incremental costs associated with the Maintenance Agreement will be included beginning in the FY2021 Operating Budget. An update of the project costs and necessary maintenance fees will be provided to Council when the construction contract is awarded in 2019. The State has waived the current as well as any future encroachment permit fees to support the project. Google has donated the easements granted under the Easement Agreement at no cost to the City, in support of the Highway 101 bicycle and pedestrian overcrossing project. Policy Implications The proposed recommendations support the Council-adopted Comprehensive Plan objectives, goals, and policies. This project addresses two key Capital Improvement Projects identified as priority projects in the City’s 2012 Bicycle + Pedestrian Transportation Plan to improve across-barrier connections and trail connections in the City. The project focuses on reducing single-occupancy vehicle trips and associated emissions, and providing improved connections between open space and recreational areas, and nearby residential and commercial uses. The plan also includes objectives to double the rate of bicycling for both local and total work commutes by 2020 as well as to convert discretionary vehicle trips into walking and bicycling trips to City of Palo Alto Page 4 reduce City transportation-related greenhouse gas (GHG) emissions by 15 percent by 2020. This project supports these objectives. Timeline Following completion of the Caltrans certification process for the plans, specifications, estimate, and right-of-way documents anticipated early next year, the project construction bid process will commence. Construction is anticipated to begin in 2019 and end in Summer 2020. Environmental Review This activity will not result in a direct or reasonably foreseeable indirect change in the physical environment and is therefore not a “project” for purposes of Section 21065 of the California Environmental Quality Act. No environmental review is necessary. Attachments: Attachment A: Council Resolution Attachment B: Maintenance Agreement Attachment C: Easement Not Yet Approved Resolution No. ____ Resolution of the Council of the City of Palo Alto Approving the Project Specific Maintenance Agreement Between the City of Palo Alto and the State of California for the Pedestrian Overcrossing in the City of Palo Alto for City‐Installed Improvements at Highway 101 Under Encroachment Permits Issued by the State RECITALS A.Effective June 1, 1961, a Freeway Maintenance Agreement was executed by and between the City of Palo Alto and the State of California, addressing maintenance responsibilities for identified portions of State Highways in the City of Palo Alto. B.Effective July 1, 1964, an Agreement for Maintenance of State Highways in the City of Palo Alto was executed between the City and the State, superseding the Freeway Maintenance Agreement dated June 1, 1961. C.Effective July 1, 2007, an Agreement for Maintenance of State Highways in the City of Palo Alto was executed by and between the City and the State, superseding any previous agreement for maintenance of the identified portions of State Highways in the City of Palo Alto and/or amendments thereto. D.The City and State now desire to enter into a Project Specific Maintenance Agreement (the “Agreement”), pursuant to Section 130 of the Streets and Highways Code, setting forth the City’s maintenance responsibilities for the Highway 101 Pedestrian Overcrossing, an improvement that the City may install in the future in the City of Palo Alto pursuant to encroachment permits issued by the State. E.The Agreement, if executed, shall supplement and not replace or supersede the Maintenance Agreement dated July 1, 2007. The Agreement would become effective upon full execution by the parties and remain in effect until amended or terminated. F.The City Council is familiar with the Agreement and with the rights and duties of the State of California Department of Transportation and the City of Palo Alto under the Agreement. NOW, THEREFORE, the Council of the City of Palo Alto RESOLVES as follows: SECTION 1. The City Council resolves that the Agreement for maintenance of the Highway 101 Pedestrian Overcrossing along the specified state highway in the City of Palo Alto is hereby approved. SECTION 2. The City Manager or his designee is hereby authorized and directed to execute the same for and on behalf of the City of Palo Alto, and the City Clerk is authorized and directed to attest his signature. Attachment A Not Yet Approved INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: _____________________________ ______________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: _______________________________ _______________________________ Assistant City Attorney City Manager Adobe Creek Pedestrian Overcrossing City of Palo Alto 04-SCL-101 PM 50.7 1 PROJECT SPECIFIC MAINTENANCE AGREEMENT FOR PEDESTRIAN OVERCROSSING IN THE CITY OF PALO ALTO THIS AGREEMENT is made effective this ______ day of ____________, 20__, by and between the State of California, acting by and through the Department of Transportation, hereinafter referred to as “STATE” and the City of Palo Alto, hereinafter referred to as “CITY”, and collectively referred to as “PARTIES”. SECTION I RECITALS 1.WHEREAS, in accordance with the said agreement, it was agreed by PARTIES that prior to or upon PROJECT completion, CITY and STATE will enter into a Maintenance Agreement, and 2.WHEREAS, the PARTIES hereto mutually desire to identify the maintenance responsibilities for improvements of PROJECT constructed under the Encroachment Permit Number __________, and 3.WHEREAS there is an existing Freeway Maintenance Agreement with CITY of Palo Alto; dated June 1st, 1961. This agreement is not meant to replace or supersede the earlier agreement(s). NOW THEREFORE, IT IS AGREED AS FOLLOWS: SECTION II AGREEMENT 4.Exhibit A consists of plan drawings that delineate the areas within STATE right of way which are the responsibility of the CITY to maintain in accordance with this Maintenance Agreement. 5.If there is mutual agreement on the change in the maintenance duties between PARTIES, the PARTIES can revise the Exhibit A by a mutual written-execution of the exhibit 6.CITY must obtain the necessary Encroachment Permits from STATE’s District 4 Encroachment Permit Office prior to entering STATE right of way to perform CITY maintenance responsibilities. This permit will be issued at no cost to CITY. Attachment B Adobe Creek Pedestrian Overcrossing City of Palo Alto 04-SCL-101 PM 50.7 2 7. ADOBE CREEK PEDESTRIAN OVERCROSSING 7.1. CITY will maintain, at CITY expense, the entire structure of the Pedestrian Overcrossing (“POC”). 7.2. CITY, at CITY expense, will maintain the deck surfacing and all portions of the structure above the bridge and ramp deck. The above deck portions include, but not limited to, chain link railing, lighting installations, all traffic service facilities provided for the benefit or control of pedestrian-traffic such as guide and regulatory signs, bollards and striping, and debris and graffiti removal. 8. City shall be responsible for maintenance of sidewalk, any plantings or other types of roadside development, and removal of POC structure surface graffiti. 9. LANDSCAPED AREAS - CITY is responsibility for the maintenance of any plantings or other types of roadside development lying outside of the area reserved for exclusive freeway use. 10. LEGAL RELATIONS AND RESPONSIBILITIES 10.1. Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect the legal liability of a PARTY to the Agreement by imposing any standard of care with respect to the operation and maintenance of STATE highways and local facilities different from the standard of care imposed by law. 10.2. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by, under or in connection with any work, authority or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save harmless CITY and all of their officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 10.3. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that CITY shall fully defend, indemnify and save harmless STATE and all of its officers and employees Adobe Creek Pedestrian Overcrossing City of Palo Alto 04-SCL-101 PM 50.7 3 from all claims, suits or actions of every name, kind and description brought forth under, including section but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 11. PREVAILING WAGES: 11.1. Labor Code Compliance- If the work performed on this Project is done under contract and falls within the Labor Code section 1720(a)(1) definition of a "public work" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code section 1771, CITY 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. CITY agrees to include applicable prevailing wage requirements in its contracts for public works hereunder. Work performed by CITY'S own forces is exempt from the Labor Code's Prevailing Wage requirements. 11.2. Requirements in Subcontracts – CITY shall require its contractors to include applicable prevailing wage requirements in all subcontracts funded by this Agreement when the work to be performed by the subcontractor is a "public work" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include all prevailing wage requirements set forth in CITY's contracts. 12. INSURANCE 12.1. SELF-INSURED -CITY is self-insured. CITY agrees to deliver evidence of self- insured coverage providing general liability insurance, coverage of bodily injury liability and property damage liability, naming the STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this Agreement in a form satisfactory to STATE, along with a signed copy of the Agreement. 12.2. SELF-INSURED using Contractor - If the work performed on this Project is done under contract, CITY shall require its contractors to maintain in force, during the term of this agreement, a policy of general liability insurance, including coverage of bodily injury liability and property damage liability, naming the STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this Agreement. 13. TERMINATION - This Agreement may be terminated by timely mutual written consent by PARTIES, and CITY’s failure to comply with the provisions of this Agreement may be grounds for a Notice of Termination by STATE. Adobe Creek Pedestrian Overcrossing City of Palo Alto 04-SCL-101 PM 50.7 4 14. TERM OF AGREEMENT - This Agreement shall become effective on the date first shown on its face sheet and shall remain in full force and effect until amended or terminated at any time upon mutual consent of the PARTIES or until terminated by STATE for cause. PARTIES are empowered by Streets and Highways Code Section 114 and 130 to enter into this Agreement and have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this Agreement.IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above written. THE CITY OF PALO ALTO STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: __________________________ Mayor LAURIE BERMAN Director of Transportation Initiated and Approved By: ___________________________ CITY Manager By: ___________________________ David Ambuehl Deputy District Director Maintenance District ATTEST: By: __________________________ CITY Clerk Approved as to Form: By: __________________________ CITY Attorney FREEWAY MAINTENANCE AGREEMENT WITH CITY OF PALO ALTO 04-SCL-101-PM-50.7 2,000' EXHIBIT A (Sheet 1 OF 2) LOCATION MAP A Page 2 of 2 PRINCIPAL SPAN BENT SECTIONAPPROACH STRUCTURE BENT SECTION NOTE: Adobe Creek POC to be maintained in its entirety by the City of Palo Alto 168.2'CALTRANS R/W CALTRANS R/W Attachment C Recorded at no charge in accordance with Government Code Section 6103 at the request of, and when recorded return to: REAL PROPERTY MANAGER City of Palo Alto PO Box 10250 Palo Alto, CA 94303 SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY A.P. No.: 127-10-076 Property Address: 3600 West Bayshore Road, Palo Alto, CA 94301 City of Palo Alto Project No. PE-11011 EASEMENT AGREEMENT FOR PUBLIC ACCESS, UTILITIES, AND BICYCLE/PEDESTRIAN OVERCROSSING PALO ALTO, CALIFORNIA THIS EASEMENT AGREEMENT FOR PUBLIC ACCESS, UTILITIES, AND BICYCLE/PEDESTRIAN OVERCROSSING PALO ALTO, CALIFORNIA (this "Easement Agreement") is made and entered into this ____ of ___ , 2018, (the "Effective Date") by and between GOOGLE LLC, a Delaware limited liability company ("Grantor'') and the CITY OF PALO ALTO, a chartered city and municipal corporation of the State of California ("City" OR "Grantee"). Grantee and Granter may be referred to in this Easement Agreement either individually as a "Party", or collectively as the "Parties". RECITALS The following recitals are a substantive portion of this Easement Agreement. A. City is undertaking the Highway 101 Pedestrian/Bicyclist Overcrossing Project (the "Project") for the construction of a new, year-round bicycle and pedestrian overcrossing over Highway 101 at Adobe Creek near the City's southern border. The Project includes the principal span structures consisting of self-weathering steel trusses over Highway 101 and East and West Bayshore Roads, the east and west concrete approach structures, three trailheads, and the Adobe Creek Reach Trail. The pathway will be 12 feet wide. The Adobe Creek Reach Trail will connect the trailheads at East Meadow Drive and West Bayshore Road. Site amenities, signage, landscaping, and lighting are also included. B. Granter is the owner of certain real property located in City of Palo Alto, County of Santa Clara, California, on which a portion of the Project will be constructed. Certain below- 1 grade, surface, and overhead facilities and improvements necessary for the Project will be constructed and installed on and under the Easement Area, as defined below, and the City will need to access the Temporary Construction Easement Area, as defined below, during construction of the Project. Granter is willing to convey an exclusive easement to the City over the Temporary Construction Easement Area and the Easement Area for the construction of such facilities and improvements, and a nonexclusive easement to City over the Easement Area for the ongoing use and maintenance of such facilities and improvements, subject to the terms and conditions contained in this Easement Agreement. AGREEMENT NOW THEREFORE, for valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 1. Easement Area: Temporary Construction Easement Area. a. Easement Area. The property subject to the Easement, as defined below, is a portion of the property identified as Santa Clara County APN: 127-10-076. The Easement Area includes surface area, as well as the space above and space below, as more particularly described and designated in EXHIBIT "A", which provides a narrative description, and EXHIBIT "B". which provides a map, which exhibits are attached hereto and made a part hereof (the "Easement Area"). A Project map is provided at EXHIBIT "C". attached hereto and made a part hereof. Pages 1 through 3 of EXHIBIT "D". attached hereto and made a part hereof, provide Project detail, including cross-section visual depictions of the Overcrossing (as defined below) at bridge bent, the approach structure, and the raised sidewalk, respectively. b. Temporary Construction Easement Area. The property subject to the Temporary Construction Easement, as defined below, is a portion of the property identified as Santa Clara County APN: 127-10-076, located adjacent to the Easement Area and consisting of approximately 11 parking spaces and the surrounding landscaped area, totaling approximately 17,370 square feet (the "Temporary Construction Easement Area"), as more particularly described and designated in EXHIBIT "E", attached hereto and made a part hereof. The Temporary Construction Easement Area includes surface area, as well as the space above and space below. 2. Grant of Temporary Construction Easement. Granter hereby grants to Grantee the temporary and exclusive right, for the duration of Project construction, to access the Easement Area and the Temporary Construction Easement Area, together with right of way, on, along, in, over, and under all of the Easement Area and the Temporary Construction Easement Area, for purposes of carrying out the construction of the Highway 101 Pedestrian/Bicycle Overcrossing (the "Overcrossing"), related facilities (the "Facilities"), and related improvements, including but not limited to, the bridge deck, columns and foundations, railings, utilities, lighting, electric, fiber and stormwater treatment area and drainage pipe (the "Improvements") for the Project (the "Temporary Construction Easement"). This Temporary 2 Construction Easement shall include the temporary right to access the Easement Area and the Temporary Construction Easement Area with vehicles, tools, and other materials such as staging, falsework, and whatever necessary to construct the Project. Grantee shall secure the Easement Area and the Temporary Construction Easement Area during construction to prevent public access. The Temporary Construction Easement shall commence upon Grantee providing Granter with ten (10) business days' prior written notice of Grantee's intent to commence construction of the Project ("Temporary Construction Easement Commencement"). Grantee shall use reasonable best efforts to complete construction of the Project ("Construction Completion"), including the Landscaping as defined below, within the Easement Area and the Temporary Construction Easement Area within 18 months of Temporary Construction Easement Commencement. Grantee shall provide advance written notice to Granter of any anticipated delay in Construction Completion, together with an explanation for such delay, but delay in Construction Completion shall not constitute a breach of this Easement Agreement. Grantee shall utilize reasonable best efforts to timely complete construction. Prior to Construction Completion, Grantee, at its sole cost and expense, shall repair and replace any asphalt, concrete pavement, car stops, parking bollards, curbs, and other items damaged in the Temporary Construction Easement Area during the construction, and perform any restriping as necessary, all to Grantor's reasonable satisfaction. The Temporary Construction Easement shall terminate upon the date that Grantee sends written Notice of Construction Completion to Granter. 3. Grant of Easement: Adjacent Lands. a. Grant of Easement. Immediately upon the termination of the Temporary Construction Easement as above, Granter hereby grants to Grantee the permanent, nonexclusive right to access, inspect, reconstruct, maintain and repair the Overcrossing, the Facilities, and the Improvements, together with right of way, on, along, in, over, and under all of the Easement Area, hereinafter described (the "Easement"). This shall include the right to access with vehicles, tools, and other materials such as staging, falsework, and whatever necessary to inspect, reconstruct, maintain, and repair the Overcrossing, the Facilities, and the Improvements. This Easement shall include the right of the general public to use the Overcrossing and pathways as depicted in Exhibit "D" and Exhibit "E". This Easement shall not include a right of the general public to use the parking spaces located in the Easement Area, as depicted in Exhibit "E". The parking spaces located in the Easement Area shall be for the exclusive use of Granter, except that Grantee shall have the right to access and use the parking spaces in the Easement Area for the limited purposes of inspecting, reconstructing, maintaining, and repairing the Overcrossing, Facilities, and Improvements pursuant to the Easement, and maintaining the Landscaping for the time period detailed in Section 6 ("Responsibility for Parking Lot and Landscaping") below. Granter shall have the right to exclude the public from the parking spaces located in the Easement Area, including but not limited to reporting improperly parked vehicles for towing. b. Adjacent Lands. Granter further grants to Grantee the permanent, nonexclusive right of ingress to and egress from the Easement Area over and across the lands of 3 Granter adjacent to the Easement Area by means of roads and lanes thereon, if such there be, otherwise by such route or routes as Granter shall designate after consultation with Grantee, provided, that such right of ingress and egress shall not extend to any portion of said adjacent lands which is isolated from the Easement Area by any public road or highway. 4. Grantor's Reserved Rights. Following the termination of the Temporary Construction Easement, Granter shall have the right to use the Easement Area for all purposes consistent with Grantee's full enjoyment of the rights hereby granted, provided that Granter shall not erect or construct any building or other structure, or drill or operate any well, within the Easement Area. Granter acknowledges that the west approach structures for the Overcrossing are supported by columns on cast-in-drilled-hole (CIDH) concrete piles. The CIDH piles will be drilled to a minimum pile depth of ninety (90) feet, depending on soil condition below the ground surface. 5. Responsibility for Overcrossing. Facilities. and Improvements. Grantee shall be solely responsible for the design, construction, reconstruction, inspection, maintenance, and repair of the Overcrossing, the Facilities, and the Improvements at its sole cost and expense. Granter reserves the right to review and comment on the design and location of the Overcrossing, the Facilities, and the Improvements. Following the termination of the Temporary Construction Easement, and excluding emergency work, inspection, maintenance, and repairs, Grantee will provide a minimum of ten (10) business days' prior written notice to Granter before commencing any major reconstruction of the Overcrossing, the Facilities, and/or the Improvements, or before utilizing five (5) or more parking spaces within the Easement Area at any one time. Notwithstanding the foregoing, any failure of Grantee to provide such notice shall not constitute a breach of this Easement Agreement. 6. Responsibility for Parking Lot and Landscaping. As part of the Project, Grantee shall reconfigure the existing parking lot (asphalt and striping) within the Easement Area (the "Parking Lot"), as depicted in EXHIBIT "E". with no net loss to the number of parking spaces once the Project is completed. Grantee shall be responsible, at its sole cost and expense, for such reconfiguration, including design, construction and installation of the Parking Lot. As part of the Project, Grantee shall also be responsible, at its sole cost and expense, for the design and installation of landscaping surrounding the Parking Lot and surrounding the existing parking spaces within the Temporary Construction Easement Area (the "Landscaping") in the area depicted in EXHIBIT "E". Granter reserves the right to review and comment on the design of the Landscaping, and Grantee shall use reasonable best efforts to address and incorporate Grantor's comments, if any, on the Landscaping. Grantee shall be responsible for the maintenance and repair of the Parking Lot and Landscaping in the Easement Area, and the Landscaping in the Temporary Construction Easement Area, for a period of one (1) year following Construction Completion. Thereafter, Granter shall be responsible for the maintenance and repair of the Parking Lot and Landscaping. Upon written notice to Grantee, Granter may assume responsibility for the maintenance and repair of the Parking Lot and Landscaping prior to the expiration of the one (1) year period. Notwithstanding Grantor's responsibility with regard to the Parking Lot and Landscaping commencing no later than one (1) 4 year following Construction Completion, Grantee shall nevertheless continue to be responsible for the stormwater treatment area and drainage pipe within the Easement Area, which are located underneath the Landscaping within the Easement Area, as shown in EXHIBIT "E". If the Parking Lot and/or Landscaping are impacted by any Grantee construction, reconstruction, inspection, maintenance, and/or repair of the stormwater treatment area and/or drainage pipe, Grantee shall restore the Parking Lot and/or Landscaping to the condition prior to such impact. 7. Grantee's Additional Rights and Obligations. a. Graffiti removal. Grantee shall have the right and obligation to remove graffiti from any and all permanent Improvements owned and/or maintained by the Grantee on the said Easement Area. Grantee shall regularly inspect the Easement Area for graffiti and promptly remove any graffiti on the Easement Area. Granter may notify Grantee of the presence of graffiti on the Easement Area, and Grantee shall thereafter promptly remove such graffiti. Graffiti removal shall be compliant with the Grantee's graffiti abatement program. The painting or repair of the property on said Easement Area where the graffiti is located shall be limited to only that area, or those areas, where the graffiti has applied. b. Easement Area Markers. Grantee shall have the right to mark the location of the Easement Area by suitable markers set in the ground .or on Improvements constructed by Grantee, provided that such markers shall be placed on locations which will not interfere with any reasonable use Granter shall make of the Easement Area. c. Signage. Grantee acknowledges that Grantor's parking facilities are not intended for public parking for trail use and that the Easement does not extend to nor permit public parking in the Easement Area. Grantee agrees to post signage advising and directing the public against parking in the Easement Area while using the trail. d. Proof of Self-Insurance/Insurance Coverage. Grantee is a self-insured public entity and a member of a risk pool with other public entities. Grantee shall maintain in force, for however long as Grantee makes use of the Easement Area and the Temporary Construction Easement Area, proof of self-insurance and/or a policy of liability insurance, including contractual liability coverage, on an occurrence basis for bodily injury, death, and property damage, with coverage limits of not less than $5,000,000 per occurrence, with limits to be increased every five (5) years at Grantor's request. 8. Non-use and Abandonment. Upon Grantee's abandonment of the Easement, or portion thereof, all right, title, and interest of Grantee in the Easement Area not used for the purposes described above shall revert to Granter, upon Grantee's request. Non-use of the Easement, or portion thereof, for a continuous period of five (5) years or more shall be conclusive evidence of the abandonment thereof, and Grantee will, on demand, execute, acknowledge, and deliver unto Granter a good and sufficient deed quitclaiming to Granter all said right of way and Easement or such portion thereof as may be abandoned. 5 9. Grantee Indemnity of Granter. Grantee hereby agrees to indemnify Granter against and hold it harmless from any and all loss, damage and liability for damages, whether for damage to or loss of property, or injury to or death of persons, which shall in any way arise out of or be connected with the rights hereby granted, unless such damage, loss, injury or death shall be caused by the sole or active negligence or willful misconduct of Granter. 10. Successors and Assigns. The provisions hereof shall inure to the benefit of and bind the successors and assigns of the respective parties hereto, and all covenants shall apply to and run with the land. 11. Donation. Granter provides the Easement herein granted as a donation to Grantee. Granter, having initiated this donation, has been informed of the right to compensation for the Easement so donated and hereby waives any right to compensation. Dated \ \ I ~ r, • 2018 -----,~~------' GOOGLE LLC, By· _ ____.~~~~~~l.._ __ _ Name _+---:J=>&,-H;;&E~~s---- Title. _ ___._ __ -¥-1';--tto:eait-e1~------ CITY OF PALO ALTO, a chartered city and municipal corporation of the State of California By ______________ _ Name _____________ _ Title --------------- APPROVED AS TO FORM : Molly S. Stump City Attorney By: ___________ _ Cassie Coleman Assistant City Attorney 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Santa Clara ) ) On ///2o}to/( before me Rachel A. Bussolini , Notary Public, perso:U;.ppe~ j)-a-i!_t_L_/4-a_cl_t __ k--!--f;_G, __ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WI1NESS my hand and official seal. Seal ---------------------------------------0 PTI O NAL INFORMATION ------------------------------ THIS OPTIONAL INFORMATION SECTION IS NOT REQUIRED BY LAW BUT MAY BE BENEFICIAL TO PERSONS REL YING ON THIS NOTARIZED DOCUMENT Title or Type of Document _________________________ _ Date of Document ___________________ Number of Pages __ _ Signers(s) Other Than Named Above ___________________ _ To order supplies contact the Academy ofNotaries Public at www.notary-courses.com or call (916) 722-1633 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) A notary public or other officer completing this certificate verifies only the identity of the individ11al who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF SANTA CLARA On _______ before me, ________ a notary public in and for said County, personally appeared ______________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 7 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) A notary public or other officer completing this certificate verifies only the identity of t he indivi dual w ho si gne d th e document to which this certificate is attached, and not the truthfulness, acc uracy, or validi t y of t ha t documen t. STATE OF CALIFORNIA COUNlY OF SANTA CLARA On ------~ before me, _______ __, a notary public in and for said County, personally appeared ______________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 8 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the within deed or grant to the City of Palo Alto, a municipal corporation, is hereby accepted by the undersigned officer or agent on behalf of the Council of the City of Palo Alto, pursuant to authority conferred by resolution of the said Council adopted on March 15, 1971, and the City of Palo Alto consents to recordation thereof by its duly authorized officer. Dated ____ _ APPROVALS Approved as to Form By: _________ _ City Attorney By: _______ _ City Manager or Designee 9 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code§ 1189) A notary public or other officer completing this certificate verifies only the identity of the i ndiv idual who signed th e document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNlY OF SANTA CLARA On ______ __, before me, _______ __, a notary public in and for said County, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. / Title: ----------- 10 ~Bkf E.NGINEERS I SURVEYORS I PLANNERS EXHIBIT A PEDESTRIAN OVERCROSSING EASEMENT March 26, 2018 BKF No. 20167007 Page 1 of 1 All that real property situate in the City of Palo Alto, County of Santa Clara, State ofCalifomia, described as follows BEING all of the lands conveyed to Google, Inc., a Delaware corporation as shown in the Grant Deed recorded on December 5, 2013, in Document No. 22464253, Santa Clara County Records and being further described as follows BEGINNING at a found nail and tag, LS 6766, set in lead plug in concrete on the Southwesterly sideline of the Highway 101 Right of Way, also being the Northwesterly sideline of West Bayshore Road as shown on Page 6 of that certain Record of Survey Map recorded in Book 911 of Maps, at Page 1 through 15, Santa Clara County Records, from which a found nail and tag, LS 6766, set in lead plug in concrete along said common sideline bears, North 38° 55' 59" West, 164.95 feet distant; thence from said point of beginning and leaving said common sideline South 51 ° 04' 13" West, 41.10 feet to a point on the Southwesterly sideline of West Bayshore Road; thence along said sideline North 38° 55' 47" West, 28.32 feet to the Easterly most comer of said lands of Google and the TRUE POINT OF BEGINNING of this description; thence continuing along the Southwesterly sideline of West Bayshore Road and along the Northeasterly boundary of said lands of Google 1. North 38° 55' 47" West, 264.90 feet; thence leaving said sideline of West Bayshore Road and said boundary of lands of Google 2. South 51 ° 04' 21" West, 110.07 feet, to a point on a Southwesterly boundary of said lands of Google; thence along said Southwesterly boundary 3. South 45° 04' 13" East, 59.71 feet, to an angle point in said Southwesterly boundary; thence continuing along said boundary 4. South 64° 53' 09" East, 228.60 feet to the Southerly most comer of said lands of Google; thence along the Southeasterly boundary of said lands of Google 5. North 51° 04' 13" East, 3.63 feet to TRUE POINT OF BEGINNING. Containing 17,373 square feet, more or less. Description prepared by BKF Engineers, in March, 2018. n1 . 11 ~-3/26/2018 Signed _~-----------~------- Date -i ii COORDINATES, BEARINGS, AND DISTANCES ARE BASED ON THE CALIFORNIA COORDINATE SYS1EM OF 1983. ZONE 3, CA-HOON, EPOCH 1991.35. DISTANCES ARE U.S. SURVEY FEET UNLESS OTHERWSE NOTED. DISTANCES AND STAllONING ARE GRID DISTANCES. MULllPlY DISTANCES BY 1.0000455 10 OBTAIN GROUND LEVEi.. DISTANCES 40 0 20 40 80 SCALE IN FEET LEGEND T.8.0.B. lRUE POINT OF BEGINING P.0.B. POINT OF BEGINNING - - - -PROPERTY LINE. LANDS OF GOOGLE, INC. ADJOINER PROPERTY LINE - - - -EDGE OF EASEMENT DESCRIBED HEREON __ ,. ,., ...... I I I I I I I ~J • I ~J ~ ~/ CD I d) '\ ~ > ::::0 ~ \I.!~ ~ ~ ~ \\~'?<l.. ~~ i I ~ ~➔~,~ IT'I -::::0 I 0 0 -~ ~ > C I in CJ) • U) ... PROPOSED PEDESTRIAN I ~ .P.O.B. & BICYCLE EASEMENT~ .o.e. ~LANDS OF S.C.V.W.D.) I 551'04'13 W 41.10' I -------------------------------------- PALO ALTO BAYLANDS APN:008-05-005 PROJECT ~ I BOUNDARY "- \ \ t OOGL~\ \fy \ \ TOP Of \ :116-1-0\IB\\ \ ~ \ /eANK 111 \% \ ~CITY R/W \ \ REEK LOOP lRAIL \ ::\ \ I >\DOSE C ~ \ \ I OF PALO ALTO ~ I -L SAN FRANCISCO \ BAY lRAIL __ ~ ]---- • \fiAPN ,116-1-0 lf: · · CITY 49 J w C .,,- \ \ CITY R/W --Z::: ~ :z::::---- = =:> /CITY ::.../W ~ _ ,.,_. ~ ...... '_\ _ _:. BAYSHORE ROAD ~lRANS R/W = = <:=i TO SAN CARLOS = = = PRINCIPAL SPAN US 101 {NB) US 101 (SB) =:> =:> =:> tO VOIJNTAIH \1EW c:::> BRIDGE SlRU~:~:. -;±_• -r-ADOBE .~EE.:.__BRIDGE W BAYSH 51+00 50-+T 1!±2'L...--, ---~ --t;~~ANS R/W CITY R/W =:> =:> ----•-•-I -= =:> GOOGLE IPN :127-10-076 -- w.Elil2 xx+xx STATION NUMBER STATION LINE PARCEL LINE PROJECT BOUNDARY CALlRANS RIGHT-OF-WAY SCVWD FEE mLE PREMISES PROPOSED ENCROACHMENT ON GOOGLE PROPERTY PROPOSED ENCROACHMENT ON SCVWD PROPERTY 48+26 TO 54+75 WESTERN BRIDGE APPROACH STRUCTURE (WBA) PESIGNEP BY; VT ~ CITY OF PALO AL TO ~:R::l_ MIN DEPTH 90 FEET TYPICAL COLUMN SECTION VIEW NTS / I JOB NO. ' CITY OF PALO ALTO PRAWN BY; VT HIGHWAY 101 BICYCLE/PEDESTRIAN OVERCROSSING AND ADOBE CREEK REACH TRAIL PE-11011 p(H!8IT DATE: 09-1 ]-20]8 SCA!£; J" -Joo· EXHIBIT C PROJECT MAP _____ _____ --~-_ C -+1¾ \. ,. 2'-6" Min t (t. POC = "BK" LINE , 12'-0" - STEEL RAILING, ---., Typ PROFILE / GRADE -1¾ ~I 10" f a. = :>, 5'k sr_ l:::e ' ARCHITECTURAL TREATMENT CAST-IN-PLACE Rejnf Cone SLAB ARCHITECTURAL TREATMENT ' , 5'-0" CIDH OG/FG NOTE: BENT 2 SHOWN, BENT 3 SIMILAR SECTION AT BRIDGE BENT 3/16" = 1 ·-o" PLAN CHECK SET/NOT FOR CONSTRUCTION (3/9/18) BIGGS CARDOSA ASSOCIATES INC STRUCTURAL ENGINEERS 865 The Alameda San Jose, Callfornla 95126 408-296-5515 4 _ ___ --OESlGNED BY1 DATE: 218118 • ~ff_~~ CREEK WI. TI-L~_:H::hiolil'RAili'TmeYri1 --"isc SIC:ALALEii1--=A:=-:s=-=-=s7":H-=-ow=N:-:-i PA TH 8Rl)GE ""'1 '".,,,,.,,..t,,.._u....,e""'v,,----~..,.,,Joe,...,NO=.,;-;., .;;;;.....;;;;.;..;..;;;...;.;.;..;..--1 BRllGE BENT EXHIBIT D · PAGE 1 DRAWING No. !REV No. DI I - Q Exist WATER SCVWD R/W 1011 ~ .... E lee (LIGHTING) Exist fo Exist Tel ~ r:-~~ a: = < o> I ~ Exist Electrical { 0 _, .... ., ' ..__ 4" FIBER OPTIC 1 ~ "BK" LINE 2'-2"± & VARIES 6'-0 11 + 6'-o" ~ .._10" ~ STEEL RAILING, Typ 7:::..-_ (TO BE REMOVED) ffl tr ~ ~ CHANNEL LINING 5" ELECTRICAL "· '). _ j -olc ,w.. . /' ·,, ~,:i '--'(--' ·,' ' I j --..,, I n'-!i'.: ',.~_ ,,.YP ',~, ,, 'Sl-1. ADOBE CREEK 100 YR WS Exist ELECTRICAL ''" ',,::"'-. "'"- ''---------==~------ "BK" LINE 50+27 SECTION AT APPROACH STRUCTURE 3/16" = 1 '-0" PLAN CHECK SET/NOT FOR CONSTRUCTION (3/9/18) ,.J 'l: ) ' ) J '/' (..' <t 0 er 11 0. cf I f- <( I ?' .) DESIGNED BYI DATE! ~ BIGGS CARDOSA ADOBE CRE8( WLTI-USE PATH BADGE A, 218118 ASSOCIATES INC 0 .,As SHOWN STRUCTURAL ENGINEERS 865 The Alomeda San Jose, Callfomla 95128 408-296-5515 APPROACH STRUC~ EXHIBIT D -PAGE 2 DRAWING No. REV No. DI SCVWD R/W f 20'-3"± & VARIES 11½" STEEL RAILING ........ -- 4'-0" Min, Typ i- RETAINING WALL TYPE 5 TOP OF BANK Exist CHANNEL BANK ~ r 5'-0"+ Min - , BIGGS CARDOSA ASSOCIATES INC STRUCTURAL ENGINEERS BSS The Alcmedc San Jose, Callfomla 95126 40B-296-5515 "BK" LINE -t 12'-0" 7'-0" CLEAR RAISED SIDEWALK CLEAR +1½"r. I -1½"r. -1½"7. 5" ELECTRICAL 4" FIBER OPTIC RETAINING WALL TYPE 5 SECTION AT RAISED SIDEWALK 1 /8" = 1 '-0" m _.,11½" STEEL RAILING r _, 4'-0" Min, Typ . ... {\ ~ 5'-0" Min BIKE LANE 7, 15" RCP SD 4 11 GAS 4" TELEPHONE~ 8" WATER 2" FIBER OPTIC 511 ELECTRICAL PLAN CHECK SET/NOT FOR CONSTRUCTION (3/9/18) ADOBE CREEK ML Tl-USE PA TH BADGE RAISED SIJEW ALK EXHIBIT D -PAGE 3 DESIGNED BYI om, 2/8/18 'AS SHOWN DRAWING No. REV No. D I APN;~i-~100 \ T \ I \ \ \ 1£MPORARY J CONSTRUCTION EASEMENT AREA GOOGLE APN: 127-10-076 I I \ OVERCROSSING STRUCTIJRE LEGEND xx+xx ----SD----- --·- I++.,..,.++ +I EASEMENT AREA STORMWATER TREATMENT AREA AND \ DRAINAGE PIPE STATION NUMBER STATION LINE PARCEL LINE DRAINAGE PIPE EASEMENT AREA \ \ \ \ TEMPORARY CONSTRUCTION EASEMENT AREA STORMWATER TREATMENT AREA RECONFIGURED PARKING LOT LANDSCAPED AREAS I I 11 - 1;: ~ :z: 0 :::0 l'T1 :::0 0 )> C, \~ I I CITY OF PALO ALTO @ ITV PALO ALTO DESIGNED BY: yr DRAWN BY: yr DATE: 09-11-2018 SCALE; 1 • = 40' HIGHWAY 101 BICYCLE/PEDESTRIAN OVERCROSSING AND ADOBE CREEK REACH TRAIL EXHIBIT E PARKING LOT AND LANDSCAPED AREAS ,I C (/) _. 0 _. ,_ (/) CD .......... PROJECT NO. PE-11011 EXHIBIT E City of Palo Alto (ID # 9893) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Second Reading: Taxi Cab Ordinance Title: SECOND READING: Adoption of an Ordinance Amending Chapter 4.42 (Taxicabs and Other For-Hire Vehicles) of Title 4 (Business Licenses and Regulations) of the Palo Alto Municipal Code as Mandated by St ate Law (AB 939) (FIRST READING: November 26, 2018 PASSED: 9 -0) From: City Manager Lead Department: City Clerk This was first heard by the City Council on November 26, 2018, where it passed unanimously without change, 9-0. It is now before the City Council for second reading and final adoption. Attachments: • Attachment A: Taxi Ordinance NOT YET PASSED Ordinance No. ______ Ordinance of the Council of the City of Palo Alto Amending Chapter 4.42 (Taxicabs and Other For‐Hire Vehicles) of Title 4 (Business Licenses and Regulations) of the Palo Alto Municipal Code The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1: The Council of the City of Palo Alto finds and declares as follows: A. The State of California requires cities and counties to regulate taxicabs by ordinance, subject to requirements in state law. B. The State of California approved AB 939 in September 2018, which creates new standards for taxicab companies and taxicab drivers that cities and counties must adopt into their local ordinances regulating taxicab operators. C. The City Council desires to amend Chapter 4.42 of Title 4 of the Palo Alto Municipal Code in order to comply with the new state law mandates, to increase the minimum liability insurance required, and remove the requirement that each taxi operator adopt a different color scheme. SECTION 2. Chapter 4.42 (Taxicabs and Other For‐Hire Vehicles) of Title 4 (Business Licenses and Regulations) of the Palo Alto Municipal Code is hereby restated and amended as follows (new text is in underline; deleted text is in strikethrough): Chapter 4.42 Taxicabs and Other For‐Hire Vehicles 4.42.010 Definitions. For the purpose of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain terms used herein are defined as follows: (a) "ADA paratransit provider" means a taxicab or public transportation vehicle operator that provides paratransit services to eligible individuals with disabilities in order to effectuate the Americans with Disabilities Act of 1990 under contract with any government agency or under contract with a broker designated by any government agency. An ADA paratransit provider, while in the performance of providing paratransit services under such government contract controls shall be exempt from the regulatory requirements of this Chapter 4.42. (b) "Certificate holder" means any person, partnership, firm, association or corporation to whom a certificate of public convenience and necessity is issued. (c) "Driver" means a person in direct and immediate possession or charge of driving or operating a taxicab, or public transportation vehicle. (d) "Owner" means any person, firm, association or corporation having proprietary control of or right to proprietary control of any vehicle as herein defined. (e) "Public transportation vehicle" means every for‐hire, unmetered automobile or motor‐ NOT YET PASSED propelled vehicle having a seating capacity of no more than five persons, excluding driver, used in the business of transporting passengers over the streets of this city, irrespective of whether such operations extend beyond the city, and which is not regulated by the public utilities commission. (f) "Street" or "highway" means a way or place of whatever nature publicly maintained and opened to the use of vehicular traffic. (g) “Substantially located” shall have the same meaning as defined in Government Code section 53075.5, as amended from time to time. (gh) "Taxicab" means a motor‐propelled vehicle available on a twenty‐four hour a day basis used for the transportation of passengers who direct the route to be traveled over the streets, and not operated over a fixed route, for compensation fixed by a taxi meter in accordance with the distance traveled and/or the time elapsed. (hi) "Taximeter" means any instrument or device approved for use under the applicable laws of the state of California, which mechanically or electronically calculates the charge for the use of a taxicab. The taximeter registers such charge by means of figures, including dollars and cents, calculated by an initial charge and thereafter a charge for distance traveled, and/or waiting time. 4.42.020 Certificate of public convenience and necessity. (a) It is unlawful for any person, partnership, firm, association or corporation, or the like, that is substantially located within the city to provide taxicab or public transportation vehicle service in this city without a certificate of public convenience and necessity issued pursuant to this chapter by the city manager or his/her designee. 4.42.030 Hearing after filing of application. Applicants shall furnish such information as may be required by the hearing officer upon forms to be furnished by the police department. A public hearing on the question of issuance of a certificate of public convenience and necessity shall be held within sixty days after filing of a completed application with the police department. Said hearing shall be held before the city manager or his/her designee. Notice of said hearing shall be included in two consecutive council packets and shall be advertised in a newspaper of general circulation. 4.42.040 Proof of public convenience and necessity. (a) Applicant shall have the burden of proving: (1) That there is a public demand for additional service or that service to the public will be improved by the issuance of a certificate to the applicant; (2) That applicant has sufficient experience and assets to properly conduct such a business; (3) That traffic conditions or hazards will not be appreciably increased or parking problems made worse. (b) The decision of the hearing officer shall be final and nonappealable. If denied, the applicant shall not file for a certificate of public convenience and necessity for six months from date of denial. 4.42.050 Certificate not transferable ‐ Change in ownership. NOT YET PASSED No certificate shall be assignable or transferable. If ownership in excess of thirty‐three percent of the business, whether corporate stock, partnership interest, or otherwise, changes, a new certificate must be obtained. 4.42.060 Revocation of certificates. Certificates of public convenience and necessity may be revoked for any cause which would have warranted denial thereof in the first instance, for a failure to comply with any of the provisions of this chapter, a failure to comply with any conditions imposed upon the certificate or in any instance where operations have ceased for ten consecutive days. If a certificate of public convenience and necessity is granted, and operation of the service for which the certificate is granted does not commence within four months of the date of the approval thereof, the certificate shall be automatically null and void. Any revocation herein shall be held before the city manager or a representative of such person; ten days' written notice shall be provided to the certificate holder and the certificate holder shall have the opportunity to present at the hearing any evidence deemed relevant by the hearing officer. The decision of the hearing officer shall be final and nonappealable. If revoked, the applicant shall not file for a certificate of public convenience and necessity for six months from date of revocation. 4.42.070 Duties of certificate holder ‐ Annual renewal. (a) Certificate holders shall render a service to the public desiring to use taxicabs and public transportation vehicles. Taxicab companies shall keep their place of business open twenty‐four hours a day for the purpose of receiving calls and dispatching vehicles. (b) Certificate holders shall answer all requests received by them for services inside the corporate limits as soon as practicable; and, if the service cannot be rendered within a reasonable time, the certificate holder shall inform the prospective passenger how long it will be before the call can be answered and give the reason therefor. Any certificate may be revoked after hearing when a certificate holder refuses to accept a request for service anywhere within the corporate limits of the city, having vehicles and drivers available for service. (c) Certificate holders shall be responsible for the business authorized by the certificate, including dispatch services. A certificate holder shall assure that the vehicles operated by the certificate holder are operable and in safe condition. A certificate holder shall be responsible to provide sufficient, permitted drivers to operate the business in accordance with the requirements of the certificate and this chapter. (d) Notice of change of business or dispatch address or of telephone number shall be provided the police department at least seventy‐two hours before said change is effected. (e) Each certificate holder must renew the certificate annually. Upon payment of the nonrefundable administrative fees provided in the municipal fee schedule, the police department shall issue an annual renewal. (f) Each certificate holder shall comply with the requirements for permitted taxicab companies as found in California Government Code section 53075.5(h), as amended. 4.42.080 Liability insurance ‐ Indemnity. (a) No certificate of public convenience and necessity shall be issued or continued in NOT YET PASSED operation unless there is in full force and effect a policy of comprehensive automobile liability insurance in a form prescribed by the risk manager, executed by an insurance company approved by the risk manager with a Best's Key Rating of not less than "A VII," unless otherwise approved by the risk manager, whereby the owner and driver of each of the vehicles operating pursuant to the certificate as well as the holder of the certificate of public convenience and necessity are insured against liability for damage to property and for injury to or death of any person as a result of the ownership operation or other use thereof. The minimum liability limits shall not be less than six hundred thousandone‐million dollars combined single limit per occurrence applicable to all owned, non‐owned and hired vehicles; provided, however, that a different higher amount and/or broader coverage may be required by the risk managercity if deemed necessary. (b) Such policy of insurance shall contain an endorsement providing that the policy will not be cancelled until notice in writing has been given to the city, addressed in care of the Chief of Police, P.O. Box 10250, Palo Alto, California 94303, at least thirty days immediately prior to the time such cancellation becomes effective. (c) Such policy of insurance shall name the city, its officers, agents and employees as additional insureds. (d) Certificate holders, vehicle owners and drivers shall indemnify, defend and hold harmless the city, its officers, agents and employees, from any loss, liability, claim, injury or damage arising or alleged to arise from the willful or negligent acts or omissions of the certificate holder, vehicle owner or driver in connection with the provision of transportation service pursuant to the certificate. 4.42.085 Testing of drivers for controlled substances and alcohol. (a) Each holder of a certificate of public convenience and necessity shall maintain a mandatory controlled substance and alcohol testing certification program that: (1) conformsing to Part 40 (commencing with Section 40.1) of Title 49 of the Code of Federal Regulations, except that the driver shall show a valid California driver’s license at the time and place of testing, for all drivers of vehicles operated under the certificate. ; and (2) Under the program and the requirements of this section, a negative test for alcohol means an alcohol screening test showing a breath alcohol concentration of less than 0.02 percent. The program shall ccontains requirements for rehabilitation and for return‐to‐duty and follow‐up testing and other requirements conforming substantially to Part 382 of Title 49 of the Code of Federal Regulations.; (1)(3) Under the program and the requirements of this section 4.42.085, a negative test for alcohol means an alcohol screening test showing a breath alcohol concentration of less than 0.02 percent. (b) No certificate of public convenience and necessity shall be issued or renewed unless the holder at the time of certificate issuance or renewal: (1) files with the police department a certification that the holder maintains a mandatory controlled substance and alcohol testing certification program conforming to Part 40 of Title 49 of the Code of Federal Regulations for all drivers of vehicles operated under the certificate. The program shall contain requirements for NOT YET PASSED rehabilitation and for return‐to‐duty and follow‐up testing and other requirements conforming substantially to Part 382 of Title 49 of the Code of Federal Regulations.that complies with the requirements of section 4.42.085(a); and (1) (2) (c) No certificate of public convenience and necessity shall be issued or renewed unless the holder at the time of certificate issuance or renewal files with the police department a certification that, prior to employment with the holder of a certificate of public convenience and necessity, each driver of vehicles operated under the certificate has tested negatively for controlled substances under a mandatory controlled substance testing certification program conforming to Part 40 (commencing with Section 40.1) of Title 49 of the Code of Federal Regulations.; and (2) (3) (d) No certificate of public convenience and necessity shall be issued or renewed unless the holder at the time of certificate issuance or renewal shall files with the police department a certification that each driver of vehicles operated under the certificate has tested negatively for controlled substances and alcohol under a mandatory controlled substance and alcohol testing certification program conforming to Part 40 (commencing with Section 40.1) of Title 49 of the Code of Federal Regulations. (ec) No driver's permit shall be issued or renewed unless the applicant and the certificate holder for which the driver is authorized to operate a vehicle both certify that the driver is in compliance with a mandatory controlled substance and alcohol testing certification program conforming to Part 40 of Title 49 of the Code of Federal Regulations. (d) Any negative test result from another jurisdiction shall be accepted for one year as meeting the requirement for certificate renewal subsection (b) of this section if the driver has not tested positive subsequent to a negative result. (e) All test results are confidential and shall not be released without consent of the driver, except as authorized or required by law. (f) No evidence derived from a positive test result pursuant to this section shall be admissible in a criminal prosecution concerning unlawful possession, sale, or distribution of controlled substances. (g) Self‐employed independent drivers shall be responsible for compliance with, and shall pay all costs of this program with regard to themselves. Employing certificate holders shall be responsible for compliance with, and shall pay all costs of, this program with respect to their employees and potential employees, except that a certificate holder may require employees who test positive to pay the costs of rehabilitation and return‐to‐duty and follow up testing. (h) Upon request, the city shall give certificate holders and potential certificate holders a list of the consortia certified pursuant to Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations that the city knows offers tests in or near the city. 4.42.090 Vehicle permits. (a) No vehicle may legally be operated under any certificate of public convenience and necessity unless such vehicle has been duly permitted in accordance with this section. It shall NOT YET PASSED be unlawful for any person to operate any vehicle described in Section 4.42.010, or for any certificate holder or any person who owns or controls any such vehicle to allow such vehicle to be driven which has not been duly permitted in accordance with this section. (b) The certificate holder shall apply for an annual permit for each vehicle proposed to be operated, up to the maximum number permitted by the certificate. Upon payment of the nonrefundable fee provided in the municipal fee schedule, and upon submitting proof that each vehicle has passed the annual inspection provided for in Section 4.42.210, the police department shall issue a permit for each vehicle. (c) Each vehicle permit shall be valid for one year, so long as the certificate under which the vehicles are permitted is in force and effect, and the vehicle continues to be insured according to the requirements of Section 4.42.080. (d) A copy of the permit shall be posted in the vehicle in a place designated by the police department that is visible to passengers. 4.42.100 Driver's permit required. No person shall operate any vehicle described in Section 4.42.010 upon the streets of the city and no person who owns or controls any such vehicle shall permit it to be so driven and no such vehicle licensed by the city shall be so driven unless the driver of the vehicle has first obtained and has then in force a driver's permit issued under the provisions of this chapter. 4.42.110 Application for driver's permit. (a) Any person may apply to the city for a permit to operate a vehicle defined in Section 4.42.010 by filing with the police department, upon forms supplied by the city, an application containing the following information: (1) Name, address and age of applicant; (2) Convictions, if any, in the courts of any state of the United States or in any United States court within five years prior to application; (3) The endorsement of the certificate holder by whom the applicant is to be employed as a driver; (4) Number and expiration date of state of California driver's license; (5) Such other information regarding the health, mentality and experience of the applicant as may be necessary or desirable to enable the police department to ascertain applicant's qualification for a driver's permit. 4.42.120 Eligibility of driver's permit. (a) Upon receipt of an application for a driver's permit the police department shall conduct an investigation of the applicant and, on the basis of such investigation, shall either approve or deny the application. No permit shall be issued to any of the following persons: (1) Any person under the age of eighteen years; (2) Any person convicted of any felony or misdemeanor offense which is reasonably and directly related to the functions involved in the operation of motor vehicles for hire and indicates potential risk to the public. This restriction shall apply only to felony or misdemeanor convictions occurring within five years of the date of application; (3) Any person convicted of hit‐and‐run driving, of reckless driving, or of driving a vehicle NOT YET PASSED while under the influence of intoxicating liquor and/or any drug within six months of the application, or upon conviction of any two or more of these offenses within five years of the date of application. However, no permit shall be issued to any person convicted of any offense described herein if such person was driving a motor vehicle for hire at the time the offense was committed; (4) Any person not possessing a valid state of California driver's license of the class required by state law for the type of motor vehicle for hire the applicant intends to drive; (5) The provisions of Section 4.04.140 of this title shall be applicable to any person applying for a permit hereunder. (b) The restrictions in Section 4.42.120(a) shall apply to persons possessing driver's permits and persons seeking renewal of such permits. Driver's permits shall be subject at all times to revocation or suspension as set forth in this chapter. 4.42.130 Driver's permit, form, display, use. (a) Upon approval of an application for a driver's permit and upon payment of the nonrefundable fee provided for in the municipal fee schedule, the police department shall issue a permit to the applicant. It shall bear the name and photograph of the applicant, date of expiration of the permit, and the name of the certificate holder for which the driver is authorized to operate a vehicle. Such permit shall be mailed to the certificate holder named therein and shall be valid only so long as said driver continues in the employ of such certificate holder. (b) Such permit shall be displayed in the vehicle being driven by the permittee in such a place as to be in full view of all passengers in such vehicle. (c) Upon the termination of any driver's employment, the certificate holder by whom such driver has been employed shall immediately give the police department written notice of such termination, and the reasons therefor. Upon termination, and the permittee shall immediately forthwith surrender said driver's permit to the chief of police for cancellation. 4.42.140 Revocation or suspension of permits. (a) Any person issued a driver's permit who subsequently is convicted of any felony or misdemeanor offense or who ceases to possess a valid state of California driver's license of the class required by state law for the type of motor vehicle for hire such person drives shall immediately so inform his or her employer and the chief of police. (b) The chief of police may revoke any driver's permit if such driver becomes ineligible for the permit. The permit holder may request a hearing as provided in Section 4.42.150. (c) The chief of police may revoke or suspend any driver's permit if the driver's State of California Department of Motor Vehicles record includes four or more moving violations within the preceding twelve‐month period or if the chief of police determines that the driver is a danger to the public safety. The permit holder may request a hearing as provided in Section 4.42.150; however, the driver may be suspended pending said hearing. 4.42.150 Hearing. (a) Every driver whose application has been denied or whose permit has been revoked shall have the right to a hearing before the chief of police or his/her designee prior to final denial NOT YET PASSED and prior to revocation. (b) The chief of police shall give the applicant or permit holder written notice of intent to deny the application or to revoke the driver's permit. The notice shall set forth the ground or grounds for the chief of police's intention to deny or revoke, and shall inform the applicant or permit holder that he or she has ten days from the date of receipt of the notice to file a written request for a hearing. The application may be denied or the permit may be revoked if a hearing request is not received within the ten‐day period. (c) If the applicant or permit holder files a timely hearing request, the chief of police shall set a time and place for the hearing. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues and to be represented by counsel. The decision of the chief of police whether to deny the application or revoke or suspend the permit is final and nonappealable. 4.42.160 Reserved. Vehicle color design. The vehicles of every certificate holder operating in the city shall be of a color scheme and bear the certificate holder's trade name, monogram or insignia which are distinguishable from the color scheme, owner's trademark, monogram or insignia used on the vehicles of any other certificate holders already operating pursuant to this chapter. No change in the color scheme or distinguishing characteristics of any vehicle shall be made without written permission from the chief of police. It is unlawful for any person soliciting patronage from any vehicle described in this chapter to represent by word, sign or insignia that the vehicle for which said person is soliciting such patronage is a vehicle operated by other than the actual certificate holder. 4.42.170 Identification of taxicabs. Every taxicab operated in the city shall bear the following identification: The certificate holder's trade name, monogram or insignia, as approved by the police department, together with a cab number and the certificate holder's telephone number or numbers painted upon the metal portion of the outside of each side of the taxicab and the cab number and certificate holder's telephone number or numbers painted upon the outside rear panel of the taxicabs. All lettering mentioned in this section shall be not less than two and one‐ fourth inches in height. 4.42.180 Signs or advertisements on taxicabs. (a) In addition to the identification required by Section 4.42.170, taxicabs may bear the following signs or advertisements: (1) A metal sign bearing the words "FOR HIRE" and being no longer than six inches by nine inches; (2) A sign attached to the top of the cab bearing the word "VACANT" and being no longer than two and one‐half inches by nine inches; (3) Advertisements not exceeding twelve square feet in total area subject to the rules and regulations of the chief of police. 4.42.190 Taximeters. (a) All taxicabs operated under the authority of this chapter, except as provided in NOT YET PASSED subsection (c), shall be equipped with taximeters of the type and or design technology approved by the California Division of Measurement Standards and that complies with California Business and Professions Code section 12500.5 and with all regulations established pursuant to Business and Professions Code section 12107police department, located in the vehicle so as to render the figures visible to to the passengers at all times, day and night. After sundown, the face of the taximeter shall be illuminated. Such taximeter shall be subject to inspection from time to time by the police department and the police department shall require the certificate holder to discontinue the operation of any taxicab in which the taximeter is found to calculate inaccurately until such taximeter is replaced by one approved by the police department or is adjusted accurately. (b) It is unlawful for a taxicab driver, while carrying passengers, to display the flag or the device attached to the taximeter in such position as to denote that the vehicle is for hire, to cause the taximeter to record when the vehicle is not actually employed, to fail to cause the device on the taximeter to be placed into a nonrecording position at the termination of each and every service, or to charge any fare other than that recorded on the taximeter. (c) Taxicab service may be prearranged with the use of a mobile device application or internet online service. The fare charged shall not exceed the scheduled rate filed by the certificate holder under Section 4.42.200. The application or internet online service shall display the fare to the customer prior to booking in lieu of the posting as required under Section 4.42.200. An “application” shall mean a self‐ contained program or piece of software application designed to fulfill requests for dispatch services that is downloadable by a user to a computer or mobile device. Taxicabs providing prearranged service under this subsection are exempt from the taximeter requirements stated in subsections (a) and (b), but must calculate fares using a type of device or technology approved by the California Division of Measurement Standards that complies with California Business and Professions Code section 12500.5 and with all regulations established pursuant to Business and Professions Code section 12107.. 4.42.200 Schedule of rates, display. The certificate holder shall file, with the application for a certificate, a true and correct schedule of rates to be charged for the transportation of passengers in any and all vehicles operated by said certificate holder. Except for prearranged services as provided in Section 4.42.190(c), a schedule of such charges shall be posted conspicuously in each vehicle operated by said certificate holder. The rates shall not be changed or modified in any manner without first filing the changed or modified rates with the chief of police thirty days prior to the effective date of such change or modification. 4.42.210 Interference with inspection ‐ Inspection of vehicles. (a) It is unlawful for a certificate holder, owner or driver of any vehicle defined in this chapter and operated in the city to interfere with or prohibit any police officer of the city or any person designated by the chief of police from at any time inspecting or thoroughly examining any such vehicle or any taximeter used upon any taxicab. (b) The certificate holder of each vehicle for which a permit has been issued in accordance with this chapter shall cause to have each such vehicle inspected annually by the police department at times to be determined by the chief of police at a facility that is certified by the NOT YET PASSED National Institute for Automotive Service Excellence or a facility registered with the California Bureau of Automotive Repair. The cost of such inspections shall be included in the permit fee described in Section 4.42.090. 4.42.220 Operating regulations. (a) Direct Route. Any driver employed to carry any passenger to a definite point shall take the most direct route which will carry the passenger safely and expeditiously to the point of destination. (b) Receipt. Every driver shall, if requested, give a correct receipt upon payment of the correct fare. (c) Interference with Vehicular Traffic Prohibited. Vehicles shall not be operated over public streets in search of or soliciting prospective passengers for hire in such a manner as to interfere with vehicular traffic. (d) Capacity. No driver shall accept, take into the vehicle or transport any larger number of passengers than the rated seating capacity of the vehicle. (e) Refusal to Carry Passengers. It is unlawful for any driver operating under a permit issued pursuant to the terms of this chapter to refuse, when the vehicle is in service, to transport any person who represents himself or herself for carriage in a sober and orderly manner and for a lawful purpose. (f) Solicitation of Passengers. It is unlawful for any driver to leave the side of the vehicle to solicit passengers or to solicit passengers in a louder tone of voice than that used in ordinary conversation. 4.42.230 Maintenance of vehicles. (a) It shall be the responsibility of the certificate holder to assure that every vehicle operating under its certificate is in safe working order. (b) The interior and exterior of each vehicle shall be clean and well maintained and meet California Vehicle Code requirements at all times when in operation. 4.42.240 Permits not transferable. Except as otherwise provided in this chapter no permit issued under the provisions of this chapter may be sold, assigned, or otherwise transferred without the approval of the chief of police. 4.42.250 Duties of city. No duty described in this chapter shall be considered a mandatory duty for purposes of the California Torts Claim Act, Government Code Sections 815 et seq. Specifically, the failure of the city to inspect any vehicle authorized as a taxicab or other vehicle for hire pursuant to this chapter or the negligent inspection of any such vehicle by the city shall not create liability under this chapter upon city. SECTION 6. Severability. If any provision, clause, sentence or paragraph of this ordinance, or the application to any person or circumstances, shall be held invalid, such invalidity shall not NOT YET PASSED affect the other provisions of this ordinance which can be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are hereby declared to be severable. SECTION 3. CEQA. The City Council finds and determines that this Ordinance is not a “project” within the meaning of section 15378 of the California Environmental Quality Act (CEQA) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. SECTION 4. Effective Date. This ordinance shall be effective on the thirty‐first date after the date of its adoption. INTRODUCED: November 26, 2018 PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST: APPROVED: ______________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: ____________________________ City Manager ______________________________ Deputy City Attorney City of Palo Alto (ID # 9906) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Second Reading: Municipal Code 9 -7 Council Members Title: SECOND READING: Ordinance of the Council of the City of Palo Alto Amending Section 2.04.190 (Standing Committees – Special Committees) of Chapter 2.04 (Council Organization and Proced ure) of Title 2 (Administrative Code); and Amending Section 12.10.060 (Coordination with City) of Chapter 12.10 (Street Cut Fees) of Title 12 (Public Works and Utilities) of the Palo Alto Municipal Code to Conform to a Seven -Member City Council (FIRST READ ING: October 29, 2018 PASSED 9 -0) From: City Manager Lead Department: City Clerk This was first heard by the City Council on October 29, 2018 where it was unanimously approved. Below is the Motion that passed. MOTION: Council Member Scharff moved, seconded by Mayor Kniss to: A. Amend the Municipal Code and Council Procedures and Protocols to conform to a seven-member Council: i. Adopt on first reading an Ordinance amending Municipal Code section 2.04.190 to reduce number of Council Members on Finance and Policy and Services from four to three and Section 12.10.060 to change the votes required to resolve a certain type of appeal from five to a majority; ii. Amend the Council Procedures and Protocols to reduce four to three the number of Council Members who may sign a Colleagues’ Memo and who may serve on an Ad Hoc Committee; and B. Refer to Policy and Services additional discretionary changes to the Municipal Code and/or Procedures and Protocols. City of Palo Alto Page 2 AMENDMENT: Council Member Holman moved, seconded by Council Member Kou to require two City Council members to remove an item from the Consent Calendar. AMENDMENT FAILED: 4-4-1 Dubois, Holman, Kou, Tanaka yes, Fine abstain MOTION PASSED: 9-0 Attachments: • Attachment A: Ordinance Attachment A *NOT YET ADOPTED* th TS/ORD Amending 2.04 Ordinance No. _____ Ordinance of the Council of the City of Palo Alto Amending Section 2.04.190 (Standing Committees – Special Committees) of Chapter 2.04 (Council Organization and Procedure) of Title 2 (Administrative Code); and Amending Section 12.10.060 (Coordination with City) of Chapter 12.10 (Street Cut Fees) of Title 12 (Public Works and Utilities) of the Palo Alto Municipal Code to Conform to a Seven-Member City Council. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1: The Council of the City of Palo Alto finds and declares as follows: A. In November, 2014, the Charter of the City of Palo Alto was amended by the electorate to reduce the City Council to seven members (from the current nine member council) effective January 1, 2019. B. In order to prevent conflicts with the California Brown Act, relevant sections of the Palo Alto Municipal Code must also be amended to reflect the seven-member Council. SECTION 2. Section 2.04.190 of the Palo Alto Municipal Code is hereby amended as follows (deleted text is in strikethrough, new text is underlined): 2.04.190 Standing committees - Special committees. (a) Not later than the second regular council meeting in January, the mayor shall appoint two standing committees, consisting of four three members each from the members of the council. The mayor shall appoint each council member to only one standing committee and shall appoint the chairperson of each committee. The mayor, or the vice-mayor at the request of the mayor, may act as an ex officio, voting member of each committee when one or more regular committee members are absent. (b) The standing committees shall be designated, respectively, committee on finance and committee on policy and services, and shall meet at 7:00 p.m. in the city hall on the day established by Section 2.04.200. (c) Council members may attend meetings of committees of which they are not members, without participating in any manner, but only committee members or ex officio committee members shall vote in committee in accordance with subsection (a) of this section. (d) Council members who submit matters to the council which are referred to a standing committee may appear before the standing committee to which the referral has been made in order to speak as proponents of the matter. Standing committee meetings during which such referrals may be considered shall be noticed as council meetings for the purpose of enabling the standing committee to discuss and consider the matter with a quorum of the council present. Attachment A *NOT YET ADOPTED* th TS/ORD Amending 2.04 (e) In addition to standing committees the mayor may, subject to approval of the council, appoint such other special committees of council members, private citizens or both as deemed desirable and necessary to assist and advise the council in its work. SECTION 3. Section 12.10.060 of the Palo Alto Municipal Code is hereby amended as follows (deleted text is in strikethrough, new text is underlined): 12.10.060 Coordination with city. (a) Before a person, utility or public utility applies for an "Application and Permit for Construction in the Public Street" to construct in the public rights-of-way or any street, alley, sidewalk or other public place, the applicant shall notify the director of public works-city engineer, and the city engineer, or designee, shall review on behalf of the applicant the utility master plans and the city's five-year repaving plan on file with the department of public works. The applicant shall coordinate, to the fullest extent practicable, with the utility and street work shown on such plans to minimize damage to, and avoid undue disruption and interference with the public use of such public rights-of-way, streets, alleys, sidewalks or other public places. Such coordination shall include: (1) Whenever two or more parties have concurrently proposed a major excavation in the same block during a five-year period, they shall meet and confer with the director of utilities, or designee, regarding whether it is feasible to conduct a joint operation. If the director, or designee, determines that it is feasible to conduct a joint operation, a single contractor shall be selected and a single application fee charged. (2) Any person, utility or public utility aggrieved by the director's decision to require a joint operation may, within thirty days of receipt of the director's written notice, file an appeal with the city manager in written form in a manner prescribed by the director. Within thirty days of the filing of a timely appeal from the director's determination, the city manager shall review the appeal and issue a recommendation to the council to uphold or overturn the action or determination of the director. The recommendation of the city manager shall be placed on the consent calendar of the council within thirty days of the filing of the appeal. In determining such appeal, the council shall consider the impact of the proposed excavation on the neighborhood, the applicant's need to provide services to a property or area, facilitating the deployment of new technology as directed pursuant to official city policy, and the public health, safety, welfare and convenience. The council may adopt the recommendation of the city manager, or remove the appeal from the consent calendar, which shall require five votes a majority vote, and take action to uphold or overturn the recommendation of the city manager. The decision of the council is final. (b) To avoid future excavations and to reduce the number of street excavations, any person, utility or public utility providing utility or communications service shall be requested, when practicable, to install sufficient conduit to accommodate the reasonably foreseeable future business growth needs of that person, utility or public utility. Attachment A *NOT YET ADOPTED* th TS/ORD Amending 2.04 SECTION 4. Severability. If any provision, clause, sentence or paragraph of this ordinance, or the application to any person or circumstances, shall be held invalid, such invalidity shall not affect the other provisions of this ordinance which can be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are hereby declared to be severable. SECTION 5. CEQA. The City Council finds and determines that this Ordinance is not a “project” within the meaning of section 15378 of the California Environmental Quality Act (CEQA) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. SECTION 6. Effective Date. This ordinance shall be effective on the thirty-first date after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST: APPROVED: ______________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: ____________________________ City Manager ______________________________ Deputy City Attorney City of Palo Alto (ID # 9909) City Council Staff Report Report Type: Action Items Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Approval of 5 -Year Aquatics Operating/Revenue Agreement with Team Sheeper Title: Approval of a Five -year Operating and Revenue Sharing Agreement With Team Sheeper for Operations of Rinconada Pool (Continued From November 26, 2019) From: City Manager Lead Department: City Manager Recommendation As Council is aware, City Manager Jim Keene has arranged to meet with Rinconada Master representative Carol MacPherson and Tim Sheeper the week of December 3 to gain a clearer understanding of the issues related to approval of this agreement. Attached is the staff recommendation and report from November 26 (Attachment A). Following the City Manager’s meetings, staff will issue an updated report for the Council meeting on December 10. Given the short time frame staff is working under, that report will be delivered late packet. Attachments: • Attachment A: 11-26-18 Staff Report City of Palo Alto (ID # 9841) City Council Staff Report Report Type: Action Items Meeting Date: 11/26/2018 City of Palo Alto Page 1 Summary Title: Approval of 5 -Year Aquatics Operating/Revenue Agreement with Team Sheeper Title: Approval of a Five -Year Operating and Revenue Sharing Agreement with Team Sheeper for Operations of Rinconada Pool From: City Manager Lead Department: Community Services Recommendation Staff recommends that Council authorize the City Manager to approve a five -year revenue share contract with Team Sheeper for operational oversight of Rinconada Pool’s aquatics programming effective January 1, 2019. Background Beginning in 2015, the City struggled to hire and retain adequate pool staff to meet community demand for the lap swim, learn-to-swim and family recreation swim programs at Rinconada Pool. In 2015, the Community Services Department (CSD) entered into an emergency contract with an outside vendor to mitigate its staffing shortages. Working on a very short timeline, CSD was able to write and approve a contract with Team Sheeper Inc., a professional third -party aquatics service provider who mobilized quickly to provide qualified professional swim instructors and lifeguards to support the Palo Alto aquatics programs. In search of a more sustainable and reliable solution for community aquatics services, in December 2015, CSD issued a Request for Proposals (RFP) to oversee all programming at the pool including: 1) learn- to-swim lessons; 2) the youth competitive swim team; 3) the adult masters swim team; and 4) aquatics facilities operations, including recreational swim, lap swim, and pool rentals. After a careful review of proposals, Team Sheeper was selected as the preferred contractor and was awarded a contract with the City effective January 1, 2017 through December 31, 2018. Staff, the public, and most Rinconada Pool user groups have had very favorable responses towards this new contracted aquatic-services model. Due to this success, on July 18, 2018, an RFP was released to solicit contractors for a longer-term operational contract at Rinconada Pool expected to take effect January 1, 2019. The goal of the new RFP was to identify a long-term partner who will collaborate with the City and the community to provide high quality, accessible, and safe aquatics programming at the Rinconada Pool. City of Palo Alto Page 2 The RFP scope was inclusive of all current programming and included the op portunity to introduce new services as well. Invitations to bid were sent to 60 potential bidders including the providers currently at Rinconada Pool: Palo Alto Stanford Aquatics, Rinconada Masters and Team Sheeper. The RFP closed on August 21st, 2018 with only one bid received from Team Sheeper, Inc. Staff completed an evaluation of Team Sheeper’s RFP response, using the following criteria: - Safety of pool users and aquatics employees - City and Customer Costs - Quality of Service and Customer Satisfaction - Diversity of Programming and Accessibility Team Sheeper has an excellent track record on all the evaluation criteria and staff are confident that entering into a new contract with Team Sheeper will allow the City to continue to provide high quality programming and expanded aquatics services to Palo Alto residents in a safe and welcoming environment at a reduced cost as compared to in-house operations. Why Team Sheeper? Team Sheeper has provided high quality and safe programming during the course of their current contract. In their bid response they re-committed to working with the City to continue to provide the services that Palo Alto’s residents and City staff have identified as most important: - Provide excellent services in a cost-effective manner - Maintain a subcontract agreement with Palo Alto Stanford Aquatics (PASA) - Continue to expand lap swim, open swim, swim lessons and youth programming - Provide a masters swim team with higher level of safety oversight, while maintaining or lowering costs for masters swimmers and increasing usage of masters programs - Utilize the aquatics facility more efficiently with better usage of buildings and increased pool open hours Tim Sheeper, a former professional triathlete and lifelong sports and aquatics enthusiast, founded Team Sheeper, Inc. in 1999. Tim has been in the aquatics business for more than 35 years and has formed a solid business management team to execute his vision to transform the delivery of aquatics programming. Tim currently serves as the president and C EO. The Company is devoted to creating and building community around sport that is accessible, welcoming, positive, and supportive. At all ages, their goal is to develop a love of everything aquatic, plus a passion for activity and exercise that remains for life. Tim began his focus on community services and coaching in 1977 and in 1992, Tim Sheeper successfully developed and led the Menlo Masters Swim Team, the Beyond Barriers Triathlon Team, and was the coaching director for the Leukemia and Lymphoma Society’s Team in Training Triathlon Team, while simultaneously acting as the Aquatics Director at a local K-12 private school, all throughout Southeastern San Mateo County. With his track record of successfully building numerous City of Palo Alto Page 3 inclusive athletic communities, Team Sheeper was contracted by the City of Menlo Park in May of 2006 to operate the Burgess Pool and the Belle Haven Pool in East Menlo Park. Since that time, the Company has grown from about 10 employees to over 130 year-round employees, and over 200 employees during the peak season of summer . Team Sheeper seeks to employ local people for as many of its jobs as possible. It provides a valuable opportunity for youth in the community to work during the summer and the school year. Team Sheeper has not only provided city-wide aquatics programming in Palo Alto and Menlo Park but has also been contracted in St. Helena, San Ramon, East Palo Alto, Danville, and San Jose. Team Sheeper is a member of the following organizations: United States Masters Swimming; USA Triathlon; USA Water Polo; USA Swimming; US Swim School Association; American Red Cross; Water in Motion; Certified Pool Operators; Bay Area Public Pool Operator’s Association (BAPPOA); National Swimming Pool Foundation (NSPF); and Society for Human Resource Management (SHRM). Team Sheeper is an authorized provider for the American Red Cross and is registered with both the Bay Area and Silicon Valley chapters and regularly holds lifeguard and CPR/AED trainings. Notable Achievements at Rinconada in the Past Year Over the past year, while Team Sheeper has provided comprehensive aquatics operational oversight at Rinconada Pool, pool usage for core programs has grown. Some highlights: - Open Swim and Lap Swim usage has increased year over year from over 53,000 visits to 63,000 visits. Nearly 75% of open and lap swim participants were residents. - 885 unique students participated in nearly 9,000 swim lessons, similar figures to last summer’s program which was also managed by Team Sheeper – which saw 714 unique students participate in over 9,900 lessons. 78% of swim lesson participants were Palo Alto residents. The swim lesson season was also extended by 22 weeks, growing from a Monday through Thursday - summer-only program to a Monday through Saturday - April through October program. 84% of swim lesson participants reported being Satisfied or Very Satisfied with their overall experience; the main driver of satisfaction for swim lessons was how well the participant connected with the instructor. - Team Sheeper more than doubled participation in swim summer camps in their second year of offering this new camp experience. 354 youth participated in 2018 and 126 participated in 2017. 76% of campers were Palo Alto residents. - Monthly lap swim memberships have grown since being introduced by Team Sheeper. 220 people now have monthly memberships to Rinconada Pool, up from 145 at this time last year. Approximately 90% of monthly lap swimmers are residents. - Team Sheeper has had exceptional customer service feedback. 97% of lap swimmers who responded to a recent survey reporting being Satisfied or Extremely Satisfied with their lap swimming experience. Open ended survey feedback was also consistently positive with comments including: “All the staff are incredibly friendly and professional. City of Palo Alto Page 4 It's lovely.” And, “I split my swims between Rinconada and <<another pool>> near my house. The difference could not be more stark. The Palo Alto Swim staff at Rinconada is exceptionally professional. I've seen them skillfully deal with difficult situations on crowded days with great skill. The changes made to lap swim hours have been terrific. I've been swimming at Rinconada for 40 years, and it has never been as well run as today.” Team Sheeper has also developed a solid relation ship with PASA, a group that Team Sheeper identified as having a strong commitment to the community at large and has continually shown that their competitive program is a leader locally, regionally, and nationally. PASA was founded in 1955 by John Williams and is currently coached by Tony Batis, who is in his 27th year with PASA. In that time, the club has produced age group champions all the way up to Olympians with National High School Record Holders, NCAA Champions and American Record Holders in its membership. About 275 PASA swimmers swim at Rinconada Pool and over 85% are Palo Alto residents. Additionally, Team Sheeper has been a good partner to City administrators. Team Sheeper staff have kept City staff in the Community Services Department and Pu blic Works apprised of all facility and program activities and issues throughout the year. They have been flexible to the needs of the City and responsive to feedback and changes that they have been directed to make. Further, they have demonstrated that they are cooperative partner is setting aquatics program goals, schedules, and customer pricing and have helped the City prioritize facility improvements. Community Engagement Staff has engaged residents and Rinconada Pool users to ensure that this contra ct model is established in a way that preserves Rinconada’s quality customer experience. On March 6, 2018 a formal public forum was held to invite aquatics participants to provide feedback on current aquatics programming and to provide an update on the City’s plan to solicit bids for continuation of services starting in 2019. The overall feedback at that meeting indicated that most customers are happy with Team Sheeper’s operations and that the community feels strongly that PASA should remain the onsite youth swim club at Rinconada Pool. In addition, lap swimmers attended to advocate for preserving lap swim schedules and some community members came out to request year-round swim lessons. On October 16th and 18th at various times in the day, staff held informal “snack chats” at Rinconada Pool with residents and customers to solicit feedback on the aquatics program and update customers on the contract process. The feedback at these informal meetings was also generally positive, with users of the lap swim program, swim lessons, recreational swim, and PASA satisfied with Team Sheeper’s management of the pool; this was tempered with feedback from the Rinconada Masters team that was not positive, and likely reflective of the concerns that masters swimmers have with Team Sheeper managing the City’s masters programming. City of Palo Alto Page 5 New Contract Elements Staff has finalized a new contract with Team Sheeper, Inc. to provide continuation of aquatics programming and services through December 2023. This contract will includ e swim lessons, master swim team oversight, aquatics camps, lifeguard staffing and pool oversight for recreational lap and swim programs. Team Sheeper, Inc. has established a subcontract with the Palo Alto Youth Swim Club (PASA) to provide the youth swim team programming. The new contract terms are much the same as the current contract with Team Sheeper but there are some changes to note below: Financial Aid In the current contract, swim lesson participants can utilize the City’s fee reduction program. Under the new contract, Team Sheeper will provide a deeper discount without a subsidy cap to low income youth and will extend scholarships to lifeguard certifications as well. Team Sheeper has partnered with the Beyond Barriers Athletic Foundation to offe r scholarships of $15 for each $22 resident group lesson; a reduction of 70% (the City’s fee reduction program is tiered and available at 25 and 50% discounts with a subsidy cap of $300 per year.) There will also be scholarships of $200 for each $300 lifeguard certification course. These scholarships are available to any family in need and are not capped per child per year. Beyond Barriers’ goal is to provide scholarships to address the aquatic inequities that exist in our local neighborhoods; helping under-resourced families who would otherwise not be able to participate in water safety programs become water safe and enabling these children to move into structured after school programs such as water polo and swim team, along with training to become lifegu ards so that they may obtain local employment. Continued Program Expansions and Facility Usage Improvements Due to the success and usage of many Rinconada aquatics programs Team Sheeper is working with the City to expand some program offerings. Team Sh eeper is aiming to offer more swim lessons and offer them 7 days per week, an increase from the current schedule of 6 days per week. Team Sheeper is also expanding lap swim hours to offer early morning lap swim sessions every weekday and consistent open hours throughout the day. Additionally, Team Sheeper, Inc. would like to introduce some new programming including springboard diving classes and aquatic exercise programs. Team Sheeper and the City plan to make better use of the Rinconada Pool buildings ov er the course of the new contract term. There are three buildings within the pool grounds, the largest building is used primarily for entering the facility, locker rooms, and pool staff offices. The two other smaller buildings on the site are currently used primarily for storage of pool equipment; much of which can be better organized or removed from the site to free up space. One of the buildings currently used for storage was built to serve as the Pool’s ‘Snack Shack’ and staff would like the building to be utilized for higher value purposes during the new contract term. Team Sheeper has proposed to use the space for team meetings, certification classes, birthday parties, indoor space for campers, indoor stretching, and respite on rainy days for progra m participants. City of Palo Alto Page 6 Price and Schedule Changes Just as is the case now, all pricings and scheduling changes proposed by Team Sheeper must be approved by City staff. Team Sheeper has proposed some minor changes which are noted below: • Slight changes to the weekly programming schedule. Team Sheeper plans to add more weekday lap swim hours this winter. The winter schedule is attached as Attachment A. • Introduction of an annual administrative fee. Administrative fees will only be charged once per calendar year when customers sign up for swim lessons or masters programming. Team Sheeper provides extensive administrative support dedicated to maintaining high quality programming and this new fee is intended to offset some of these costs. • Some moderate changes to customer pricing including decreased prices for seniors to participate in masters swimming and minor increases to swim lesson pricing, from $20 to $22 per lesson, and minor increases of monthly lap swims of approximately $3 per month depending on customer type. The pricing changes can be seen in Attachment B. • Lap swim and masters swim monthly pass combinations. Previously, swimmers who wanted to participate in both programs had to pay separately for each program and could not reap any discount for participating in both programs. The new contract would allow for discounted pricing for participants of both programs. Masters Swim Team Management The Rinconada Masters team, led by Carol MacPherson, has swam in Rinconada Pool since the late 1970s. During their time at Rinconada Pool their members have developed a tight knit community, won a variety of masters competitions, and been an active presence at the Pool. The Masters contracted with the City for pool usage for most of their history and most recently, has been a subcontractor on the contract between Team Sheeper and the City. City staff notified all pool user groups in the Spring of 2018 that the City would utilize a competitive bid process for use of Rinconada Pool moving forward and that the City h ad hired an independent safety auditor to review Rinconada Pool operations and usage. Staff engaged the public in community meetings and met in person with the management of Team Sheeper, PASA, and Rinconada Masters to emphasize this focus on safety and adherence to an objective and fair process of resource allocation, namely conducting an open RFP process for aquatics operations in the City’s only public pool. Despite this effort to ensure that all pool users who would like to be a part of aquatics operat ions respond to the RFP, only Team Sheeper and PASA responded (with PASA opting to work directly as a subcontractor to Team Sheeper.) Team Sheeper informed the Rinconada Masters team that, should Team Sheeper be awarded the aquatics contract, they would not offer a subcontract to Rinconada Masters for oversight of masters programming, due to continuous contract safety violations throughout the current City of Palo Alto Page 7 contracting period. Staff met with the Rinconada Masters’ team leadership and master’s swimmers, as well as Team Sheeper, numerous times to help find a workable resolution. Unfortunately, reasonable concerns regarding the masters compliance to standard safety procedures and protocols have been recurring issues over the past 18 months and have resulted in an incompatible working relationship between Team Sheeper and Rinconada Masters leadership going forward. City staff understands the reaction that some of Rinconada Pool’s most loyal and long-term swimmers have expressed at this administrative change and understands their reluctance to change. Staff firmly believes that on balance, this path is the best decision to ensure the safety of pool users. Team Sheeper has committed to offer a masters program that will serve the current masters swimmers along with any other swimmers who would like to participate. Their programming is all-inclusive, and open to swimmers of all ages and abilities. They will offer masters swim practices at nearly the same times as currently offered, with similar pricing for adults ($88 per month, up from $80 per month currently,) and significantly reduced pricing for seniors ($62 per month, down from $75 currently.). Staff is confident that the culture and experience at the pool will shift from one of separate, disconnected groups, to a c ohesive pool community built on respect, support and love of the sport. City staff and Team Sheeper hope that current masters swimmers will continue to enjoy the community they cherish at the pool under new oversight and will work together to ensure as smooth a transition as possible. Revenue Share Terms Like Team Sheeper’s current contract, this contract utilizes a revenue share model, which means that the City does not pay Team Sheeper anything to operate Rinconada Pool. Instead, Team Sheeper, Inc. will collect customer payments and remit gross revenues of as much as 12% of all revenues collected from all programs provided on behalf of the City of Palo Alto. The exact share of gross revenue they will remit to the City is dependent on their total reve nue earned. If total revenues earned are less than $1.25 million, the City’s revenue share is 1%, if total revenues earned is $1.3 million the City’s share is 2% of total revenue; more detail can be found in the chart below. This revenue share formula is similar to the formula currently in place between the City and Team Sheeper, and is also similar to the revenue share terms Team Sheeper has with the City of Menlo Park. City of Palo Alto Page 8 Revenue Share Table between Team Sheeper and the City of Palo Alto Annual Total Revenue Dollars Percent of all gross revenue from all programs under this contract owed to City up to $1.25 million 1% $1,250,001 to $1,500,000 2% $1,500,001 to $1,750,000 3% $1,750,001 to $2,000,000 4% $2,000,001 to $2,500,000 5% $2,500,001 to $3,000,000 8% For each additional $500,000 in revenue, the gross revenue percentage will grow 1% point up to a maximum of 12% $5,000,001 and up 12% Resource Impact The public-private partnership with Team Sheeper provides a savings of approximately $140,000 to the General Fund as compared to historic in-house operations. There is no resource impact for this contract; the General Fund savings are already factored in to the fiscal year budget as this contract has a similar budgetary impact to the current aquat ics contract and does so while expanding services, maintaining quality and improving safety and oversight of Rinconada Pool. Policy Implications This contracting model is aligned with Comprehensive Plan goal G1: Effective and Efficient Delivery of Community Services. Environmental Review The recommendation in this report does not constitute a project requiring review under the California Environmental Quality Act (CEQA). Attachments: • Attachment A: Winter 2019 Schedule • Attachment B: Proposed Initial Pricing • Attachment C: City of Palo Alto – Team Sheeper Aquatics Contract C19173035 Rev 8/2018 Lap Pool L = Laps Swim, O = Open Swim, PASA = Palo Alto Stanford Aquatics, M =Masters MON TUE WED THU FRI SAT SUN 5:45 Masters (7) Masters (7) Masters (7) 6-7 Masters (7) Laps (7) Laps (14) Masters (7) Laps (7) Laps (14) Masters (7) Laps (7) Laps (14) 7-8 Masters (7) Laps (7) Laps (14) Masters (7) Laps (7) Laps (14) Masters (7) Laps (7) Laps (14) Laps (14) 8-9 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14)) Masters (7) Laps (7) Masters (7) Laps (7) 9-10 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) 10-11 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) 11-12 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) PASA (14) Laps (14) 12-1 Laps (14) M (7) Laps (7) Laps (14) M (7) Laps (7) Laps (14) PASA (14) Laps (7) O (7) 1 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) PASA (14) Laps (7) O (7) 2-2:30 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) PASA (14) Laps (7) O (7) 2:30-3 L(7) O(7) 3 – 3:30 Laps (14) Laps (14) Laps (14) Laps (14) Laps (14) Laps (7) O (7) Laps (7) O (7) 3:30 - 4 PASA (7) Laps (7) PASA (7) Laps (7) PASA (7) Laps (7) PASA (7) Laps (7) PASA (7) Laps (7) 4-5 PASA (14) PASA (14) PASA (14) PASA (14) PASA (14) Laps (7) O (7) Laps (7) O (7) 5-6 PASA (14) PASA (14) PASA (14) PASA (14) PASA (14) Laps (7) O (7) Laps (7) O (7) 6-7 PASA (14) PASA (14) PASA (14) PASA (14) PASA (14) 7-7:30 PASA (4) PASA (4) L (3) M (7) PASA (4) PASA (4) L (3) M (7) 7:30-8 L(7) M(7) L(7) M(7) Palo Alto Swim & Sport Rinconada Pool Schedule: January 2019 PROPOSED SCHEDULE Attachment B: Proposed Initial Pricing Resident Rates: SENIOR 60+ Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $33.60 $94.50 $4 Open Swim $4 Swim Lessons Group $30 $22 Private $30 $70 Masters $30 $61.60 $175 $14 Masters + Lap $30 $87.50 $252 Resident Rates: YOUTH (0-18) Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $36 $101.25 $4.50 Open Swim $4.50 Swim Lessons Group $30 $22 Private $30 $70 Camps $360 per week Youth Swim Team PASA pricing applies Administrative fees will only be charged once per calendar year and are capped at $50 per family. FEE REDUCTIONS AVAILABLE: Scholarships are available for low-income youth. The scholarship reduces the prices of group lessons by $15 each, thereby reducing the cost to $7 per lesson for residents and $9 per lesson for non-residents. Scholarships are also available for youth wishing to become lifeguard certified. The scholarship will be $200 off of each $300 lifeguard certification course. There is no annual cap on scholarships available per child. Scholarships end once youth can swim freestyle across the pool. Resident Rates: ADULT Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $48 $135 $6 Open Swim $6 Swim Lessons Group $30 $22 Private $30 $70 Masters $30 $88 $250 $20 Masters + Lap $30 $125 $360 Non-Resident Rates: ADULT Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $56 $156 $7 Open Swim $7 Swim Lessons Group $30 $24 Private $30 $70 Masters $30 $88 $250 $20 Masters + Lap $30 $133 $385 Non-Resident Rates: SENIOR 60+ Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $39.20 $109.20 $4.90 Open Swim $4.90 Swim Lessons Group $30 $24 Private $30 $70 Masters $30 $61.60 $175 $14 Masters + Lap $30 $93.10 $269.50 Non-Resident Rates: YOUTH (0-18) Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $42 $117 $5.25 Open Swim $5.25 Swim Lessons Group $30 $24 Private $30 $70 Camps $360 per week Youth Swim Team PASA pricing applies Administrative fees will only be charged once per calendar year and are capped at $50 per family. FEE REDUCTIONS AVAILABLE: Scholarships are available for low-income youth. The scholarship reduces the prices of group lessons by $15 each, thereby reducing the cost to $7 per lesson for residents and $9 per lesson for non-residents. Scholarships are also available for youth wishing to become lifeguard certified. The scholarship will be $200 off of each $300 lifeguard certification course. There is no annual cap on scholarships available per child. Scholarships end once youth can swim freestyle across the pool. 7 Rev. April 20, 2015 CITY OF PALO ALTO CONTRACT NO. C19173035 GENERAL SERVICES AGREEMENT “REVENUE CONTRACT” THIS AGREEMENT made and entered into on the 26th day of November, 2018, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and TEAM SHEEPER, INC., a California corporation, located at 501 Laurel Street, Menlo Park, CA 94025, Telephone Number: (650)504-1114 (“CONTRACTOR”). In consideration of their mutual covenants, the parties hereto agree as follows: 1. SERVICES. CONTRACTOR shall provide or furnish the services (the “Services”) described in the Scope of Services, attached at Exhibit A. 2. EXHIBITS. The following exhibits are attached to and made a part of this Agreement: “A” - Scope of Services “B” - Schedule of Performance “C” - Payment Plan and/or Schedule “D” - Insurance Requirements Will Contractor be Working with minors? __X___ yes _______ No If yes, include Eligible to Hire form and proof of negative TB test (file) CONTRACT IS NOT COMPLETE UNLESS ALL EXHIBITS ARE ATTACHED. 3. TERM. The term of this Agreement is from January 1, 2019 to December 31, 2024 inclusive, subject to the provisions of Sections Q and V of the General Terms and Conditions. A renewal option for a period or periods of up to 5 years is available upon mutual agreement, to be executed as an amendment to this Agreement in accordance with Section R (“Assignment/Changes”). 4. SCHEDULE OF PERFORMANCE. CONTRACTOR shall complete the Services within the term of this Agreement in a reasonably prompt and timely manner based upon the circumstances and direction communicated to CONTRACTOR, and if applicable, in accordance with the schedule set forth in the Schedule of Performance, attached at Exhibit B. Time is of the essence in this Agreement. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 8 Rev. April 20, 2015 5. COMPENSATION FOR ORIGINAL TERM. CITY shall pay and CONTRACTOR agrees to accept as not-to-exceed compensation for the full performance of the Services and reimbursable expenses, if any: CITY SHALL PAY CONTRACTOR: CONTRACTOR SHALL PAY CITY: see Exhibit C – Schedule of Fees 6. COMPENSATION DURING ADDITIONAL TERMS. CONTRACTOR’S compensation rates for each additional term shall be the same as the original term; OR CONTRACTOR’s compensation rates shall be adjusted effective on the commencement of each Additional Term. The lump sum compensation amount, hourly rates, or fees, whichever is applicable as set forth in section 5 above, shall be adjusted by a percentage equal to the change in the Consumer Price Index for Urban Wage Earners and Clerical Workers for the San Francisco-Oakland- San Jose area, published by the United States Department of Labor Statistics (CPI) which is published most immediately preceding the commencement of the applicable Additional Term, which shall be compared with the CPI published most immediately preceding the commencement date of the then expiring term. Notwithstanding the foregoing, in no event shall CONTRACTOR’s compensation rates be increased by an amount exceeding five percent of the rates effective during the immediately preceding term. Any adjustment to CONTRACTOR’s compensation rates shall be reflected in a written amendment to this Agreement. 7. PAYMENT AND PAYMENT RECORD. Send all payment and payment records to CITY, Attention: Project Manager. The Project Manager is: Stephanie Douglas, Dept.: CSD, Recreation, Telephone: (650)329-2107. Payment record statements shall be submitted in arrears for Services performed. Statements shall not be submitted more frequently than monthly. Statements shall provide a detailed statement of Services performed during the period and are subject to verification by CITY. GENERAL TERMS AND CONDITIONS A. ACCEPTANCE. CONTRACTOR accepts and agrees to all terms and conditions of this Agreement. This Agreement includes and is limited to the terms and conditions set forth in sections 1 through 6 above, these general terms and conditions and the attached exhibits. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 9 Rev. April 20, 2015 B. QUALIFICATIONS. CONTRACTOR represents and warrants that it has the expertise and qualifications to complete the services described in Section 1 of this Agreement, entitled “SERVICES,” and that every individual charged with the performance of the services under this Agreement has sufficient skill and experience and is duly licensed or certified, to the extent such licensing or certification is required by law, to perform the Services. CITY expressly relies on CONTRACTOR’s representations regarding its skills, knowledge, and certifications. CONTRACTOR shall perform all work in accordance with generally accepted business practices and performance standards of the industry, including all federal, state, and local operation and safety regulations. C. INDEPENDENT CONTRACTOR. It is understood and agreed that in the performance of this Agreement, CONTRACTOR and any person employed by CONTRACTOR shall at all times be considered an independent CONTRACTOR and not an agent or employee of CITY. CONTRACTOR shall be responsible for employing or engaging all persons necessary to complete the work required under this Agreement. D. SUBCONTRACTORS. CONTRACTOR may not use subcontractors to perform any Services under this Agreement unless CONTRACTOR obtains prior written consent of CITY. CONTRACTOR shall be solely responsible for directing the work of approved subcontractors and for any compensation due to subcontractors. CITY consents CONTRACTOR to use Palo Alto Stanford Aquatics (PASA) to provide youth swim team services. E. TAXES AND CHARGES. CONTRACTOR shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of CONTRACTOR’s business. F. COMPLIANCE WITH LAWS. CONTRACTOR shall in the performance of the Services comply with all applicable federal, state and local laws, ordinances, regulations, and orders. G. DAMAGE TO PUBLIC OR PRIVATE PROPERTY. CONTRACTOR shall, at its sole expense, repair in kind, or as the City Manager or designee shall direct, any damage to public or private property that occurs in connection with CONTRACTOR’s performance of the Services. CITY may decline to approve and may withhold payment in whole or in part to such extent as may be necessary to protect CITY from loss because of defective work not remedied or other damage to the CITY occurring in connection with CONTRACTOR’s performance of the Services. CITY shall submit written documentation in support of such withholding upon CONTRACTOR’s request. When the grounds described above are removed, payment shall be made for amounts withheld because of them. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 10 Rev. April 20, 2015 H. WARRANTIES. CONTRACTOR expressly warrants that all services provided under this Agreement shall be performed in a professional and workmanlike manner in accordance with generally accepted business practices and performance standards of the industry and the requirements of this Agreement. CONTRACTOR expressly warrants that all materials, goods and equipment provided by CONTRACTOR under this Agreement shall be fit for the particular purpose intended, shall be free from defects, and shall conform to the requirements of this Agreement. CONTRACTOR agrees to promptly replace or correct any material or service not in compliance with these warranties, including incomplete, inaccurate, or defective material or service, at no further cost to CITY. The warranties set forth in this section shall be in effect for a period of one year from completion of the Services and shall survive the completion of the Services or termination of this Agreement. I. MONITORING OF SERVICES. CITY may monitor the Services performed under this Agreement to determine whether CONTRACTOR’s work is completed in a satisfactory manner and complies with the provisions of this Agreement. J. CITY’S PROPERTY. Title to CITY’s property furnished to CONTRACTOR shall remain in the CITY. CONTRACTOR shall not alter or use property for any purpose, other than that specified by CITY, or for any other person without the prior written consent of CITY. CONTRACTOR shall store, protect, preserve, repair and maintain such property in accordance with sound professional practice, all at CONTRACTOR’s expense. Any reports, information, data or other material (including copyright interests) developed, collected, assembled, prepared, or caused to be prepared under this Agreement will become the property of CITY without restriction or limitation upon their use and will not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. K. AUDITS. CONTRACTOR agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for three (3) years from the date of final payment, CONTRACTOR’s records pertaining to matters covered by this Agreement. CONTRACTOR agrees to maintain accurate books and records in accordance with generally accepted accounting principles for at least three (3) years following the terms of this Agreement. L. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. M. INSURANCE. CONTRACTOR, at its sole cost, shall purchase and maintain in full force during the term of this Agreement, the insurance coverage described at Exhibit D. Insurance must be provided by companies with a Best’s Key Rating of DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 11 Rev. April 20, 2015 A-:VII or higher and which are otherwise acceptable to CITY’s Risk Manager. The Risk Manager must approve deductibles and self-insured retentions. In addition, all policies, endorsements, certificates and/or binders are subject to approval by the Risk Manager as to form and content. CONTRACTOR shall obtain a policy endorsement naming the City of Palo Alto as an additional insured under any general liability or automobile policy. CONTRACTOR shall obtain an endorsement stating that the insurance is primary coverage and will not be canceled or materially reduced in coverage or limits until after providing 30 days prior written notice of the cancellation or modification to the Risk Manager. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to the Risk Manager, together with the required endorsements and evidence of payment of premiums, to CITY concurrently with the execution of this Agreement and shall throughout the term of this Agreement provide current certificates evidencing the required insurance coverages and endorsements to the Risk Manager. CONTRACTOR shall include all subcontractors as insured under its policies or shall obtain and provide to CITY separate certificates and endorsements for each subcontractor that meet all the requirements of this section. The procuring of such required policies of insurance shall not operate to limit CONTRACTOR’s liability or obligation to indemnify CITY under this Agreement. N. HOLD HARMLESS. To the fullest extent permitted by law and without limitation by the provisions of section M relating to insurance, CONTRACTOR shall indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents from and against any and all demands, claims, injuries, losses, or liabilities of any nature, including death or injury to any person, property damage or any other loss and including without limitation all damages, penalties, fines and judgments, associated investigation and administrative expenses and defense costs, including, but not limited to reasonable attorney’s fees, courts costs and costs of alternative dispute resolution), arising out of, or resulting in any way from or in connection with the performance of this Agreement. CONTRACTOR’s obligations under this Section apply regardless of whether or not a liability is caused or contributed to by any negligent (passive or active) act or omission of CITY, except that CONTRACTOR shall not be obligated to indemnify for liability arising from the sole negligence or willful misconduct of CITY. The acceptance of the Services by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Agreement. O. NON-DISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONTRACTOR certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONTRACTOR acknowledges that it has read and understands the DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 12 Rev. April 20, 2015 provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. P. WORKERS' COMPENSATION. CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing and during the performance of the Services. Q. TERMINATION. The City Manager or his/her designee may terminate this Agreement without cause by giving ninety (90) days’ prior written notice thereof to CONTRACTOR. If CONTRACTOR fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the City Manager may terminate this Agreement immediately upon written notice of termination. Upon receipt of such notice of termination, CONTRACTOR shall immediately discontinue performance. CITY shall pay CONTRACTOR for services satisfactorily performed up to the effective date of termination. If the termination if for cause, CITY may deduct from such payment the amount of actual damage, if any, sustained by CITY due to CONTRACTOR’s failure to perform its material obligations under this Agreement. Upon termination, CONTRACTOR shall immediately deliver to the City Manager any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by CONTRACTOR or given to CONTRACTOR, in connection with this Agreement. Such materials shall become the property of CITY. The CONTRACTOR may terminate this Agreement without cause by giving ninety (90) days’ prior written notice thereof to the Project Manager. R. ASSIGNMENTS/CHANGES. This Agreement binds the parties and their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written consent of CITY. No amendments, changes or variations of any kind are authorized without the written consent of CITY. S. CONFLICT OF INTEREST. In accepting this Agreement, CONTRACTOR covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Contract. CONTRACTOR further covenants that, in the performance of this Contract, it will not employ any person having such an interest. CONTRACTOR certifies that 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, DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 13 Rev. April 20, 2015 which could conflict with the faithful performance of this Contract. CONTRACTOR agrees to advise CITY if any conflict arises. T. GOVERNING LAW. This contract shall be governed and interpreted by the laws of the State of California. U. ENTIRE AGREEMENT. This Agreement, including all exhibits, represents the entire agreement between the parties with respect to the services that may be the subject of this Agreement. Any variance in the exhibits does not affect the validity of the Agreement and the Agreement itself controls over any conflicting provisions in the exhibits. This Agreement supersedes all prior agreements, representations, statements, negotiations and undertakings whether oral or written. V. NON-APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. W. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONTRACTOR shall comply with CITY’s Environmentally Preferred Purchasing policies which are available at CITY’s Purchasing Division, which are incorporated by reference and may be amended from time to time. CONTRACTOR shall comply with waste reduction, reuse, recycling and disposal requirements of CITY’s Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In particular, CONTRACTOR shall comply with the following zero waste requirements: • All printed materials provided by CONTRACTOR to CITY generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double- sided and printed on a minimum of 30% or greater post-consumer content paper, unless otherwise approved by CITY’s Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of 30% or greater post-consumer material and printed with vegetable based inks. • Goods purchased by Contractor on behalf of CITY shall be purchased in accordance with CITY’s Environmental Purchasing Policy including, but not limited to, Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 14 Rev. April 20, 2015 Division’s office. • Reusable/returnable pallets shall be taken back by CONTRCATOR, at no additional cost to CITY, for reuse or recycling. CONTRACTOR shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. X. AUTHORITY. The individual(s) executing this Agreement on behalf of the parties represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. Y. CONTRACT TERMS: All unchecked boxes do not apply to this Agreement. Z. INDEPENDENT CONTRACTORS. In accordance with City Policy and Procedures 2- 2/HRD prior to commencing work or performing services for the City of Palo Alto, contractors or agency employees who will perform any part of their services at a City location are required to present proof of fingerprinting/background processing. Proof of fingerprinting/background processing shall be a requirement in the scope of services in City contracts involving services or programs with schools, janitorial, park maintenance as well as City facilities that will include supervising children or involved specific contact with the elderly, handicapped or mentally impaired. Contractors working in sensitive areas such as the Police or Fire departments, or working during after-business hours or as otherwise deemed appropriate by the City Manager or designee, will also be required to present proof of fingerprinting/background processing. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement on the date first above written. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 15 Rev. April 20, 2015 CITY OF PALO ALTO City Manager or designee APPROVED AS TO FORM: City Attorney or designee TEAM SHEEPER, INC. Officer 1 By: Name: Title: Officer 2 By: Name: Title: DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 CFO Carole Hayworth CEO Tim Sheeper 16 Rev. April 20, 2015 EXHIBIT A SCOPE OF SERVICES CONTRACTOR agrees to provide aquatics services for the City of Palo Alto offered at Rinconada Pool, 777 Embarcadero Road, Palo Alto, CA 94301 and other pools in Palo Alto. I. General Standards For CONTRACTOR a. Provide Quality Services i. Conduct the programs in a safe manner ii. Not allow participants to be in the pool without at least two Certified Lifeguards present on the pool deck and providing supervision. Contractor shall provide these lifeguards for all programs it offers under this Agreement. iii. Swim Instructors and Certified Lifeguards are: 1. Knowledgeable and experienced in the subject and age group being taught based on the specific training program for lifeguards and swim instructors 2. Reliable and punctual 3. Start and end lessons on time 4. Organized and prepared to teach at the start of each lesson iv. Program Evaluations 1. At least annually, evaluations will be distributed to participants from all pool programs. CONTRACTOR will communicate with participants the importance of completing the evaluation. CONTRACTOR will provide responses to CITY staff. v. Process all registrations for aquatics programming b. Provide Excellent Customer Service i. Build rapport with customers by greeting all participants and parents and create a welcoming and professional atmosphere ii. Address customer and City staff questions and concerns within 24 hours and provide follow-up if needed iii. Maintain a high quality website with up-to-date accurate information c. Maintain Quality Instructors and Employees i. Conduct comprehensive backgrounding reviews for all employees ii. Appear at the pool wearing appropriate attire that is clean, presentable and clearly identified as Palo Alto Aquatics staff iii. Swim instructors and Certified Lifeguards will not use cell phones during work shifts i.e., while on the pool deck and in front of customers, except in an emergency iv. Provide consistency with quality standards for all instructors and employees d. Manage Administrative Tasks i. CONTRACTOR shall provide its own cash registers, computers, and other equipment necessary to process and record payments, DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 17 Rev. April 20, 2015 registrations, schedules, and other administrative functions. ii. Maintain Proactive and Consistent Communication with CITY staff iii. Communicate problems and issues immediately with the City of Palo Alto Project Manager via phone, email or in person. iv. Inform City staff of participant injuries and complete necessary accident reports within 24 hours. Accident forms should be available on site. v. Respond in a timely manner to emails and phone calls within 24 hours. vi. Establish and maintain working relationships with City staff and customers vii. Monitor condition of facility and all equipment in and around the facility. CONTRACTOR shall proactively report maintenance issues/concerns to Project Manager at least weekly and shall assist with projects requiring coordination between CONTRACTOR and city staff. viii. Maintain an up-to-date comprehensive Aquatics Manual with Policies and Procedures at pool site at all times. The manual shall include, but not be limited to the following information: 1. safe work habits 2. safe use of chemicals 3. how to use MSDS sheets 4. safe use of equipment 5. proper use of cautions signs, barriers, or other devices 6. proper handling of hazardous materials, biological waste, and blood-borne pathogens ix. Responsible for including policies and procedures with regard to detailed safety plan, swim lessons and pool deck entry that Project Manager agrees to (i.e. waiting lists, cancellation, refund, satisfaction, etc.) x. Instructors are responsible for verifying that only registered participants are permitted to participate in programs. xi. Ensure only swim staff use the pool office. xii. Utilize best practices and relevant legal requirements to create and enforce pool rules, which shall be kept on site, reviewed and updated annually, and observed by all staff. xiii. CONTRACTOR shall be first responder to all biological contaminants in the pool including vomit and urine. This entails removing solid material from the pool and pouring chemicals in per Council codes. City staff will make adjustments to chemicals through the automated chemical monitoring system. City staff shall take over care of water chemistry after initial treatment to ensure safety of water per state and county guidelines. xiv. Provide an annual report no later than 45 days after the end of each year during the Contract Term to staff which will be presented to the CITY’S Parks & Recreation Commission for review and comment by the Commission. The annual report should include the DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 18 Rev. April 20, 2015 following items: 1. Total program hours by program area 2. Participation statistics by program area including resident and non-resident percentages 3. Customer satisfaction survey results 4. User group feedback by program area or rental 5. Gross revenues and revenue shares between CONTRACTOR and the CITY 6. Risk management documentation 7. Training certifications listed by staff members e. CONTRACTOR shall provide the following maintenance services i. Keep facility neat throughout the day by putting away all equipment from pool deck, empty trash cans, pick up trash from pool deck, remove and replace pool covers on appropriate reels after each use 1. Contractor shall ensure that items/equipment necessary to maintain near the pool shall be kept in ways that maximize their expected life and minimize clutter on the pool deck 2. CONTRACTOR shall close the pool for one week each December for City staff to performance facility maintenance. City staff and the CONTRACTOR shall come to mutual agreement on the schedule at least 30 days in advance. ii. Maintain cleanliness of pools, locker rooms, lobby and office space during facility operational hours, including: 1. Light sweeping of pool deck and indoor spaces 2. Spot mopping and cleaning locker rooms 3. Take out trash at end of day and during sessions as needed 4. Pick up trash from pool deck 5. Light cleaning of lobby and other indoor space f. CONTRACTOR shall utilize all offices, storage spaces, locker rooms and other indoor spaces within the Rinconada Pool complex in their optimal capacity. For example, items that are rarely used, shall not be stored in spaces that could house campers for indoor activities or snack bar areas. g. CONTRACTOR shall maintain inventory of badges, keys and other small equipment issued by the City and shall alert the City within 24 hours of missing items. II. Specific Programs to be Staffed and Run by CONTRACTOR a. CONTRACTOR shall provide discounted pricing for all programs to Palo Alto residents programs as agreed to in Exhibit C-1 “Initial Pricing.” “City of Palo Alto residents” as used in this Contract are only those people who can prove residence in the City of Palo Alto by showing a valid state- issued identification with an address in the City; or a utility bill from the City of Palo Alto; or in the case of students, a current identification card from a Palo Alto Unified School District school. CONTRACTOR shall be responsible for verifying residency. i. CONTRACTOR shall ensure that low income Palo Alto residents are referred to the 501(c) Beyond Barriers to help provide them DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 19 Rev. April 20, 2015 with financial aid discounted pricing for youth swim lessons to low income Palo Alto residents. ii. CONTRACTOR shall offer senior discounted pricing for Palo Alto resident adults age 60 or older for open swim, lap swim, and masters swim. b. CONTRACTOR shall staff and run swim lessons and swim camps for various ages (including children) and skill levels. CONTRACTOR shall adhere to the following standards: i. CONTRACTOR shall offer a minimum of at least the following: swim lessons 6 days per week during summer and shall aim to offer at least 10,000 30 minute lessons per year. ii. CONTRACTOR shall offer a minimum of 8 weeks of swim camps per year that can enroll a minimum of 30 children per week. iii. At the end of each lesson and camp session the CONTRACTOR will monitor and ensure participants are picked up by an authorized adult. c. CONTRACTOR shall staff and run Open/Recreational and Lap Swim programs. i. CONTRACTOR shall provide a minimum of 500 open swim lane hours during the summer season and 100 open swim lane hours during non-summer seasons (Spring and Fall). ii. CONTRACTOR shall provide a minimum of 500 lane hours/week for lap swim lane hours during the summer season and 400 lane hours/week lap swim lane hours during non-summer seasons. d. Accept fees for service from pool users using the CONTRACTOR’s point- of-sale system. e. CONTRACTOR shall staff and run or subcontract for an adult masters swim team and a youth swim team. i. CONTRACTOR shall aim to maintain a minimum of 75 monthly master swim team members and a minimum of 200 monthly youth swim team members. ii. CONTRACTOR to provide a minimum of 200 lane hours / week for the youth swim team. iii. CONTRACTOR to provide a minimum of 49 lane hours / week for the adult masters swim team f. CONTRACTOR shall offer pool parties and additional aquatics programming such as aqua- aerobics, diving classes/teams, water polo, personal training in the water, special events, and/or fitness activities using both water and park features (boot camps, etc.) g. CONTRACTOR shall provide access to open swim at least 200 hours per summer for CITY-affiliated summer camps in exchange for CONTRACTOR-run summer camps’ use of Rinconada Park and other City cultural facilities. h. CONTRACTOR is authorized to sell a limited amount of convenience food and other merchandise to customers at the pool should CONTRACTOR so desire. i. CONTRACTOR and CITY shall mutually set pool schedule and prices for aquatics programming. The initial pricing structure can be found in DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 20 Rev. April 20, 2015 Exhibit C - Compensation and pool schedule can be found in Exhibit B. III. City’s Responsibilities a. CITY shall provide clean and safe facility. i. CITY staff will maintain chemical room, provide daily aquatics inspections/maintenance and oversee facility management ii. CITY is responsible for the costs of maintaining the pool and facilities, including heating and utility costs, maintenance and repair, (other than those general items listed in CONTRACTOR’s responsibilities), pool chemical costs, and labor costs associated with these items. Additionally, CITY shall provide some general supplies, such as locker room soap and toilet paper sufficient for average daily use. iii. CITY shall make repairs to facility when needed and shall maintain chemicals for all pools. iv. City shall maintain the primary responsibility over pool vacuuming and cleaning debris from trees on pool deck, including landscaping of trees, grass and brush. v. CITY shall provide badges, keys and other small equipment. vi. CITY shall provide access to a phone line and internet access at Rinconada Pool vii. CITY shall provide quarterly walk through safety inspections and trainings b. CITY shall develop and maintain proactive and consistent communication and rapport with CONTRACTOR i. Respond in a timely manner to emails and phone calls ii. Communicate and resolve issues and concerns immediately iii. CITY shall provide excellent customer service to CONTRACTOR staff and customers DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 21 Rev. April 20, 2015 PROGRAM DESCRIPTIONS Swim Lessons Levels Waterbabies: For ages 6 months to under 3 years. Parent participation class where babies are introduced to the water through songs and games. Each game that we play together as a group can be adjusted to accommodate a parent’s comfort level and the swimming ability of the child. This is a 30-minute group class with a 6:1 ratio. Water Tots: For ages 2 years old. Water Tot’s is a class without parent participation for students who are comfortable in the water are ready to learn the next set of swimming skills. The student to teacher ratio of 3:1 allows a small, safe learning environment to introduce fundamental water skills. This class focuses on building comfort, water safety, and skills such as: breathing, floating, bobs, jumps and, of course, fun. Swimming Principles: Children learn to be safe, independent swimmers and begin to learn proper head and body position that will lead to success in the strokes to come. Skills include floating independently on back and front, and breathe control. Level 1: Designed to continue water safety skills as well as develop body position and kicks. Swimmers must be water safe and able to kick in streamline for 5 yards to pass. Level 2: Designed to continue water safety skills as well as develop a strong foundation for Freestyle. Swimmers learn to kick in streamline for 10 yards, rolling onto their back for a breath. Level 3: Designed to develop a strong foundation for Freestyle. Swimmers learn to kick in streamline for 10 yards with a side breath. Freestyle: Swimmers learn freestyle beginning with body position, efficient flutter kicks, freestyle arms, and side breathing. Backstroke: Swimmers continue to review and improve their freestyle while learning backstroke. They develop body position, rotation, effective kicks and backstroke arms. Breaststroke: Swimmers will begin to learn the difference between short axis and long axis strokes, with an emphasis on the importance of a proper kick and glide. Each of the four parts of breaststroke will be isolated to yield a successful breaststroke. Butterfly: Students learn the importance of a full body dolphin kick and undulation, timing of kicks with pull and recovery. Lessons Advanced: Swimmers continue to refine all four strokes as well as develop more advanced techniques, including starts, turns and finishes. Lessons Elite: The goals for swimmers in the class are to become proficient in all four competitive strokes, swim terminology, and receive coaching in and out of the water. Swim Camp Whether just learning to swim or developing strokes, your child receives a daily, 45- minute, level-appropriate lesson from a trained Swim School instructor (ratio 4:1). A child’s swim level is assessed on the first day of camp, and campers with similar abilities are grouped together. More advanced swimmers also get a workout-style swim session in a 25-yard format to practice what they have learned. Daily hands-on lessons in small focused groups invariably lead to rapid advancement in a child’s swim skills. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 22 Rev. April 20, 2015 In addition to swim instruction, campers have daily swim-related workouts, free swim time for land and camp games, crafts, and lunch. Your child should come home healthy- tired but able to have loads of fun the entire week! Sample Daily Activities 8:45 Camper check-in 9:00 Camp games, settle in for Director Address 9:30 Group A: Swim lesson, Group B: Land games for swim strength and conditioning followed by a healthy snack 10:15 Group A: Healthy snack followed by land games for swim strength and conditioning. Group B: Swim lesson plus, for more advanced swimmers, a swim work-out 11:00 Transition out of pool (sunscreen!) 11:15 Lunch from home enjoyed on the benches or picnic-style on the grass 11:45 Camper choice: land games, crafts, relax with friends 12:45 Transition to free swim 1:00 Free swim 1:50 Get ready for pick-up or transfer to extended care Is This Camp for You? For ages 5 to 12 years (on the first day of camp) For campers who HAVE COMPLETED kindergarten Camp is for kids who are comfortable in the water, enjoy social group situations, and respond well to instruction Ideal before any family vacation that includes water activities! Pre-K Camp Palo Alto Swim and Sport offers Pre-K Aquatics camp for kids age 4.5-6! For our little ones, Camp Palo Alto provides fun, instruction, and encouragement in a safe, friendly environment. Each camper receives a daily 45-minute swim lesson from a Palo Alto Swim School instructor, plus has time for land games, crafts and a light lunch. They’ll enjoy community and team fun while developing a love of water and swim skills. Your child should come home healthy-tired but not destroyed for the rest of the day! When you check out each day, stick around to enjoy Open Swim with your child. Spending time in the pool together reinforces what they’ve learned and improves their feel for the water. Open Swim starts at noon! Sample Daily Schedule 8:45 Check-in 9:00 Welcome and games 9:45 Crafts and snack 10:45 Fun stretching 11:00 Swim lesson 11:45 Dry off, get ready for lunch 12:00 Lunch time with friends and counselors 12:30 Story time DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 23 Rev. April 20, 2015 1:00 Free swim in Baby Pool or play games 1:50 Pick up or transfer to extended care For ages 4.5 to 6 years (on the first day of camp) For campers who have NOT COMPLETED kindergarten, or who need extra assistance Campers are toilet trained and can manage the toilet independently 4:1 child-to-adult ratio both during swim lessons and with counselors on land Ideal before any family vacation that includes water activities! Morning Extended Camp We are pleased to offer early Extended Camp from 8:00 to 8:45 a.m., so you can drop off your kids and be on your way! You can be sure that check-in will be fast and your child will receive great care for a happy start to the day! Afternoon Extended Camp Extended camp is just the ticket for your child to rest and re-energize, play social games, read, advance some new skills or listen to music! Tried and true, our counselors provide a safe and lively afternoon of new and varied activities, full of opportunities for the campers to mix and mingle or have some quiet time; build and create; or have fun with more sports! The kids won’t miss a beat, as they seamlessly transition to the afternoon segment of their day of excitement. Pool Parties Have a birthday party or special event at the pool! Reserve two hours of fun for your family and friends! Party includes: Swim admission for 12 kids and 4 adult chaperones (over age 18), 2 large picnic tables reserved for your group Masters Swim We welcome swimmers of all abilities, age 18 and up, who are interested in regular structured workouts. Previous experience in competitive swimming is not necessary. Masters swimmers include beginners, triathletes, former collegiate athletes, nationally ranked competitors and everything in between — all ages, shapes, and sizes. Every workout is different and you’ll learn something each and every time. Along with ongoing conditioning at workouts, the team provides stroke instruction, intra-club activities, competitions, and social events throughout the year. We focus on developing swimming skills, enhancing the enjoyment of swimming through regular workouts and professional instruction, and the promotion of lifetime fitness through swimming. Youth Swim Team Year round competitive swim team offering high quality professional coaching and technique instruction for all ages and abilities. The goal is to provide every member an opportunity to improve swimming skills and achieve success at his or her level of ability, from novice to international competitor. We are constantly growing and training young swimmers to maintain a well-rounded competitive swim team. Lap Swim Lanes are dedicated to lap swimming in the deep pool at Rinconada seven days per week year round. Two lifeguards are on duty at all times. We observe circle swimming when there are more than two swimmers per lane. The number of lanes for Lap Swimming DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 24 Rev. April 20, 2015 varies according to scheduled activities in each pool, but during the times below, you will find designated lap lanes. Look for the yellow cones on deck. If you are registered to pay for laps monthly, you can come to Recreation Swim any time. Choose to swim laps or play with your kids—your time in the pool is already paid for. Even drop-in fees are good all day for both Laps and Open/Recreation Swim. Open/Recreation Swim Lifeguards are on duty at all times during open swim. No registration required, just drop in (or use a pass) to play in the round pool and deep pool; many open swim sessions include use of the diving boards. Children 5 years and younger must have a parent/guardian (16+) in the pool, within arm’s reach at all times. Children 6 – 12 years must have a parent/guardian (16+) on the pool deck supervising them, unless they are attending a registered class or program. DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 25 Rev. April 20, 2015 EXHIBIT B SCHEDULE OF PERFORMANCE Program Aquatics Seasons Offered Swim lessons Spring, Summer, Fall and optional Winter Swim camps Summer Lap swim Spring, Summer, Fall, and Winter (all seasons) Open/Recreational swim Spring, Summer, Fall and optional Winter Masters Swim Spring, Summer, Fall, and Winter (all seasons) Youth Swim Team Spring, Summer, Fall, and Winter (all seasons) DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 26 Rev. April 20, 2015 INITIAL POOL SCHEDULE DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 27 Rev. April 20, 2015 EXHIBIT C PAYMENT PLAN Revenue Sharing CONTRACTOR will collect revenue from customers for all programs they provide under this agreement and any Rinconada Pool subcontracts they hold subject to the prices listed in this agreement. For the purposes of the revenue share, CONTRACTOR shall maintain an annual profit and loss statement (“Statement”) during the Term and any Extended Term of this Agreement. CONTRACTOR will pay gross revenues of as much as 12% of all revenues collected from all programs provided on behalf of the City of Palo Alto with the CITY based upon the following table: Annual Total Revenue Dollars Percent of all gross revenue from all programs under this contract owed to City up to $1.25 million 1% $1,250,001 to $1,500,000 2% $1,500,001 to $1,750,000 3% $1,750,001 to $2,000,000 4% $2,000,001 to $2,500,000 5% $2,500,001 to $3,000,000 8% For each additional $500,000 in revenue, the gross revenue percentage will grow 1% point up to a maximum of 12% $5,000,001 and up 12% The percent of gross revenue is not a graduated rate (e.g. for the first $1.25 million, 1% revenue is owed, for the next $200,000, 2% is owed). The percent of gross revenue that is applicable for a given year applies to all gross revenue. For example, if gross revenue is $1.85 million, 4% of all gross revenue would be owed to the CITY. Projections of gross revenue shall be provided to the CITY within 20 days of the end of every calendar quarter. Revenue share payments for each calendar year shall be paid to the CITY no later than January 31 of the following year. Additional Services The CONTRACTOR shall provide additional services only by advanced, written authorization from the CITY. The CONTRACTOR, at the CITY’s project manager’s request, shall submit a detailed written proposal including a description of the scope of DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 28 Rev. April 20, 2015 services, schedule, level of effort, and CONTRACTOR’S proposed maximum compensation, including reimbursable expense, for such services. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s project manager and CONTRACTOR prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. No Reimbursable Expenses The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CONTRACTOR shall not be reimbursed for any expenses DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 29 Rev. April 20, 2015 EXHIBIT C-1 INITIAL PRICING Resident Rates Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $48 $135 $6 Open Swim $6 Swim Lessons Group $30 $22 Private $30 $70 Masters $30 $88 $250 $20 Masters + Lap $30 $125 $360 Camps $360 per week Youth Swim Team PASA pricing applies Non-Resident Rates Program Annual Fee Monthly Quarterly Drop-In Per Lesson/Session Lap Swim $56 $156 $7 Open Swim $7 Swim Lessons Group $30 $24 Private $30 $70 Masters $30 $88 $250 $20 Masters + Lap $30 $133 $385 Camps $360 per week Youth Swim Team PASA pricing applies Note: Seniors (60+) will receive a 30% discount on all pricing and Youth (0-18) will receive a 25% discount on all pricing (excluding camps and swim lessons). No discount on annual administrative fees. Administrative fees will only be charged once per calendar year and are capped at $50 per family DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 12 Rev. April 20, 2015 EXHIBIT D INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS IN THE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW: REQUIRED TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES YES WORKER’S COMPENSATION EMPLOYER’S LIABILITY STATUTORY STATUTORY YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE BLANKET CONTRACTUAL SEXUAL ABUSE OR MOLESTATION, AND FIRE LEGAL LIABILITY BODILY INJURY PROPERTY DAMAGE BODILY INJURY & PROPERTY DAMAGE COMBINED. $3,000,000 $3,000,000 $3,000,000 $4,000,000 $4,000,000 $4,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED BODILY INJURY - EACH PERSON - EACH OCCURRENCE PROPERTY DAMAGE BODILY INJURY AND PROPERTY DAMAGE, COMBINED $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 NO PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $2,000,000 YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS” DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 13 Rev. April 20, 2015 A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303 DocuSign Envelope ID: C93F3BEC-29C5-4E39-9F96-BFB04CBEC745 City of Palo Alto (ID # 9688) City Council Staff Report Report Type: Action Items Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: 350 Sherman Ave Garage Construction Title: Approval of: 1) Construction Contract C19173521 with Swinerton Builders in the Amount of $39,395,153; 2) Amendment Number 3 to Contract C16163034 with Nova Partners, Inc. in the Amount of $1,249,193 for Construction Management Services; 3) Amendment Number 1 to Contract S18171787 with Romig Engineers, Inc. in the Amount of $99,000; 4) Authorization to Negotiate and Execute Four Easements for Underground Shoring Tie-backs; 5) Authorization to Negotiat e and Execute a Short-term Lease for a Parking Lot from the County of Santa Clara; 6) Authorization to Negotiate and Execute a Month -to-Month Lease of Parking Stalls from Caltrain; and 7) A Budget Amendment for Capital Improvement Fund Project PE-18000 for the New California Avenue Area Parking Garage From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council: 1. Approve and authorize the City Manager or his designee to execute the attached contract with Swinerton Builders (Attachment A) in an amount not to exceed $39,395,153 for the New California Avenue Area Parking Garage, Capital Improvements Program project PE-18000; 2. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with Swinerton Builders for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $2,954,636; 3. Approve and authorize the City Manager or his designee to execute Amendment Number 3 to Contract Number C16163034 with Nova Partners, Inc. (Attachment B) to add construction management for the New CITY OF PALO ALTO City of Palo Alto Page 2 California Avenue Area Parking Garage to the scope of services and increase compensation by $1,249,193 for a total contract amount of $5,808,928; 4. Approve and authorize the City Manager or his designee to execute Amendment Number 1 to Contract S18171787 with Romig Engineers, Inc. (Attachment C) to increase compensation by $99,000 for a total contract amount of $149,000 as a sole source contract, exempt from competitive solicitation as impractical and unavailing under PAMC 2.30.360(b)(2); 5. Authorize the City Manager or his designee to negotiate and enter into easement agreements with four adjacent private property owners for shoring tie-backs beneath those properties including a total not-to-exceed compensation of $25,000 combined; 6. Authorize the City Manager or his designee to negotiate and enter into a short-term lease agreement with the County of Santa Clara for the parking lot on the southeast corner of Grant Avenue and Birch Streets; 7. Authorize the City Manager or his designee to negotiate and enter into a month-to-month lease agreement for up to 44 parking stalls on the California Avenue Caltrain Station parking lot; and 8. Amend the Fiscal Year 2019 Budget Appropriation for the Capital Improvement Fund by: a. Increasing the New California Avenue Area Parking Garage project (PE-18000) Fiscal Year 2019 appropriation by $2,450,000; and b. Decreasing the Infrastructure Reserve by $2,450,000. Executive Summary Approval of the attached construction contract and amendments to consultant agreements is the next major step in the delivery of the new California Avenue Area Parking Garage and the Public Safety Building (PSB). The requested authorizations to negotiate compensation and execute four easement agreements will allow the underground excavation for the garage to commence and proceed smoothly. The requested authorizations to negotiate two lease agreements for nearby parking will lessen the impact of the temporary loss of public parking during construction of the garage. The requested budget amendment for the new California Avenue Area Parking Garage project provides the necessary funding to execute the attached contracts and pay for related project costs such as parking mitigations, permits, and utility connection fees. Construction is anticipated to begin in early 2019 and be City of Palo Alto Page 3 completed by fall 2020. The PSB construction would begin after the new public garage is fully functional so that there are no further public parking impacts. Background The Public Safety Building (PSB) (PE-15001) and New California Avenue Area Parking Garage (PE-18000) were among nine key projects included in the 2014 Council Infrastructure Plan. The PSB was identified as the plan’s highest priority project. In December 2015, Council selected 250 Sherman Avenue as the site for the PSB within the California Avenue Business District and identified 350 Sherman Avenue for the new public parking garage. The two projects are linked such that the new parking garage will mitigate for the loss of existing surface parking on the PSB site. A single Environmental Impact Report (EIR) for the combined project was certified by Council on June 11, 2018 (Staff Report ID# 8967). The City intends to complete the public parking garage prior to starting PSB construction. The new parking garage will be four levels above grade and two stories below grade, serving the needs of the California Avenue business district. The garage will replace existing stalls at the two locations and provide approximately 310 new parking stalls to the California Avenue business district. The garage construction will involve a cut-off wall to limit groundwater impact, cast-in-place post-tensioned structural concrete, and provisions for an integrated solar canopy. The height of the California Avenue Parking Garage will be approximately 49'-0" above sidewalk level to the top of future roof-mounted photovoltaic (PV) panels. Construction at this stage includes only the support structure for the PV panels. The PV panel installation on the garage is expected during the PSB construction phase. Infrastructure to feed the PV-generated electricity into the adjacent PSB is part of the plans. On June 11, 2018, Council approved a finding that the New California Avenue Area Parking Garage project is “Substantially Complex” under Public Contract Code 7201 (Staff Report ID# 9270). This allows the City to withhold 10 percent from each payment application from the contractor (retention). Typically retention is limited to only 5 percent. Discussion Prequalification City of Palo Alto Page 4 Projects that require significant specialized experience or expertise or that are complex, large scale or costly warrant using a process to prequalify prospective bidders and/or subcontractors to ensure that the bidders have demonstrated the attribute of trustworthiness, quality, financial fitness, capacity, and experience to prosecute the work successfully and within the time specified by the City. The City Manager authorized the use of contractor prequalification for New California Avenue Area Parking Garage on May 9, 2018. On June 7, 2018, a notice inviting general contractors to submit prequalification applications was posted through the City’s eProcurement system. The invitation was open for 21 days. On June 28, 2018, five general contractors submitted pre- qualification applications. The applications were scored according to an objective set of criteria that was established prior to the published invitation. Three of the five contractors received scores high enough to be deemed prequalified. Bid Process On September 18, 2018, a notice inviting formal bids (IFB) for the New California Avenue Area Parking Garage Project was posted and sent to the three prequalified contractors (Swinerton Builders, McCarthy Building Companies, Inc., and Build Group, Inc.) through the City’s eProcurement system. The bidding period was 36 calendar days. Bids were received from two of the prequalified contractors on October 24, 2018 as listed on the attached Bid Summary (Attachment D). Summary of Bid Process Bid Name/Number New California Avenue Area Parking Garage Proposed Length of Project 540 Calendar Days Number of Prequalified Contractors Eligible to bid on the project 3 Total Days to Respond to Bid 36 Calendar Days Pre-Bid Meeting? Yes (not mandatory) Number of Bids Received: 2 Base Bid Price Range $39,393,653 to $39,750,000 The apparent low bidder was selected based upon the total of the base bid without consideration of the add alternates. Base bids ranged from $39,393,653 City of Palo Alto Page 5 to $39,750,000 and from 5.15% to 6.10% above the engineer’s estimate of $37,465,410. Staff has reviewed all bids submitted and recommends the bid totaling $39,393,653 submitted by Swinerton Builders be accepted and Swinerton Builders be declared the lowest responsible bidder. The recommended award amount includes the bid add-alternate item for a webcam to display and document the day-to-day construction progress. Swinerton Builders’ bid for the construction webcam service is $1,500. The webcam does not constitute a surveillance technology under the City’s recently adopted “Surveillance and Privacy Protection” ordinance. It will be located on the construction site and not be capable of viewing individuals that are not on the site. PAMC §2.30.680(c)(1) excludes from the definition of a surveillance technology “any technology that collects information exclusively on or regarding city employees or contractors”. A second add-alternate price was provided for individual stall occupancy lights that would be tied to the Automated Parking Guidance System (APGS). Swinerton Builders’ bid for the individual lights above each stall is $180,000, and staff does not recommend this for award. The specified APGS is a camera-based system that has grouped occupancy lights in the center drive aisle to cover multiple stalls. Each camera sensor unit typically covers six stalls. If all stalls managed by a camera sensor are occupied, the light is red. If at least one stall is still available, the light above the drive aisle near that stall is green. Although the camera-based APGS can include individual stall occupancy lights at the higher cost, these systems do not typically have individual lights above each stall. In the future, the camera-based system could be used for charging hourly rates for parking based upon optional license plate reading technology. Future implementation of this feature would first require new Council policy on parking fees. In accordance with the City’s Surveillance and Privacy Protection ordinance, it would also require Council approval to use the APGS as surveillance technology for a purpose, in a manner, or in a location outside the scope of prior Council approval (PAMC §2.30.630(c)). Additionally, although the APGS as currently defined would not constitute a surveillance technology, the system is a design-build component of the project and specific details about the system will be better understood pending a future submittal by the contractor. If future information indicates that the APGS would meet the definition of a surveillance technology, staff will return to Council to satisfy the requirements of the Surveillance and Privacy Protection ordinance. The camera-based APGS will be able to track the total number of stalls that are occupied, so open stall quantities can be displayed on directional signs at City of Palo Alto Page 6 the entry to the garage. The final design of the garage signage will be completed during construction and is subject to review by the Architectural Review Board (ARB). The construction contingency amount of $2,954,636, which equals 7.5 percent of the total contract, is requested for related, additional, but unforeseen work that may develop during the project. Typically, a 10 percent contingency is requested. The project team will strive to limit contingency use to 7.5 percent, but it may prove necessary to return to Council in the future for an increase in the contingency authorization. Staff asked Build Group, Inc. why they did not submit a bid after applying for and receiving prequalification status. Build Group, Inc. indicated that they had committed to other projects and did not have the resources to commit to this project in 2019. Nova Partners, Inc. Contract Amendment On June 13, 2016, Council approved a contract with Nova Partners, Inc. for program management of the nine Council Infrastructure Plan projects (Staff Report ID# 6809). The contract included “Optional Task 5” for Construction Management (CM) services. The attached contract amendment (Attachment B) adds the necessary scope and compensation for CM services during the construction of the New California Avenue Area Parking Garage. CM services include conducting weekly OAC (Owner/Architect/Contractor) meetings to review the project schedule and open items that require resolution, reviewing contractor payment applications for level of completeness for payment, reviewing change order requests, provision of special inspections and testing, processing contract change orders, providing expert review of entitlement to changes, reviewing of project schedules, and monitoring adherence to the contract requirements and general conditions. RossDrulisCusenbery Architecture, Inc. – Future Contract Amendment On December 12, 2016, Council approved a contract with RossDrulisCusenbery Architecture, Inc. (RDC) in the amount of $7,007,992 to provide Design and Environmental Assessment Services for the new PSB and the new California Avenue Area Parking Garage (Staff Report ID# 7417). A future contract amendment is needed to add the necessary scope and compensation for City of Palo Alto Page 7 additional Construction Administration (CA) work for the New California Avenue Area Parking Garage and to add funding for additional design services for the PSB. Staff plans to bring the RDC contract amendment to Council at a later date for approval once it is fully negotiated. Romig Engineers, Inc. Contract Amendment On April 10, 2018, the City executed contract S18171787 with Romig Engineers, Inc. (Romig) for geotechnical investigation on the parking garage property for $50,000. Because of Romig’s knowledge and experience with the site geology, cut-off wall parameters, basement design, and setting staff recommends awarding a sole-source contract amendment (Attachment C) for the geotechnical services that are required during construction. Romig is also an integral part of the design team. Ideally, Romig would be a subconsultant to RDC, however, due to liability concerns, architects do not typically want to directly subcontract for the geotechnical services. The City, therefore, now needs to extend and increase the contract amount for Romig from $50,000 to $149,000, which is beyond the level that normally requires a competitive solicitation. Romig is highly qualified and the best choice for this project. They were originally selected due to their work on other major nearby projects such as 385 Sherman Avenue (i.e. the Visa building directly across the street from the garage). For the above reasons, Staff is requesting an exemption from competitive solicitation as being impractical and unavailing under PAMC 2.30.360(b)(2). Tie-Back Easements for Garage Basement Construction Staff has been in discussions with four adjacent private property owners to negotiate easements for shoring tie-backs that are proposed to extend beneath four private properties directly across from the new garage on Jacaranda Lane. The staff recommendation includes authorization to negotiate, finalize, and execute these four easement documents including a not-to-exceed compensation amount of $25,000 for all four easements. Parking Mitigations During Construction Concurrent to the parking garage design process, Staff has been planning numerous mitigations for the temporary loss of parking during the construction of the new garage. On September 12, 2018, Staff held a community meeting about the upcoming construction. Numerous ideas for parking mitigation were presented and discussed. Staff further refined the ideas, and the current City of Palo Alto Page 8 mitigation plan includes the following: 1. Reconfigure Parking Lot C-6 to add approximately 30 new stalls. Parking Lot C-6 is the site where the PSB will be constructed. Reconfiguring this parking lot before building the PSB will allow for the partial closure of the 200 block of Sherman Avenue to provide a staging area for the garage construction. The reconfiguration work is included in the contract with Swinerton Builders. 2. Lease the Santa Clara County parking lot on the southeast corner of Grant Avenue and Birch Street. Staff has been working with County personnel to draft a short-term lease to allow Palo Alto to temporarily take control of this parking lot for the purpose of providing parking for California Avenue Business District parking permit holders. The lot provides approximately 43 stalls that were part of the under-utilized parking supporting the Courthouse. The staff recommendation includes authorization to finalize negotiations and execute the lease that will then go to the County Board of Supervisors for final approval. The lease is anticipated to include payments of approximately $150,000 for the duration of the project. 3. Lease up to 44 stalls on a month-to-month basis from Caltrain. The leased stalls are at the far end of the Cal Ave Caltrain Station parking lot. The stalls will be designated for the use of Swinerton Builders’ employees and subcontractors. The stalls on this lot are currently underutilized. The staff recommendation includes authorization to finalize negotiations and execute the lease. The lease is anticipated to include payments of approximately $75,000 for the duration of the project. Another parking mitigation idea that is still being considered consists of the conversion of a portion of Mimosa Lane to one-way traffic. This would allow the addition of 4 to 5 new parking spaces beside Country Sun Natural Foods. Further outreach for this idea is being conducted. In addition to these mitigations that create physical parking spaces, Staff will continue to work with the California Avenue merchants on outreach and messaging to help minimize parking impacts. A full list of expected parking impacts and mitigations is presented in Attachment E. Timeline City of Palo Alto Page 9 Construction of the garage is expected to begin in early 2019 and be complete before fall 2020. The PSB construction would begin shortly after the garage is fully functional. Resource Impact Project Costs Prior Years Actuals FY 2019 Adopted Budget FY 2019 Changes FY 2019 Modified Budget Future Years Estimated Costs Updated Project Total Design $1,488,138 $228,271 $228,271 $1,716,409 Construction $43,603,537 $2,450,000 $46,053,537 $46,053,537 Salary & Benefits $1,300,000 $1,300,000 $1,060,000 $2,360,000 Total $1,488,138 $44,903,537 $2,678,271 $47,581,808 $1,060,000 $50,129,946 On October 15, 2018, Council authorized the delivery and sale of Certificates of Participation (COPs) to finance the construction of the New California Avenue Area Parking Garage (Staff Report ID# 9689). The budgeted construction amount plus the recommended budget amendment for the garage will be provided by this financing. The debt will be serviced via transient occupancy tax (TOT) revenues that have been allocated by Council to completion of the 2014 Council Infrastructure Plan projects. For the New California Avenue Area Parking Garage, an additional appropriation of $2,450,000 is needed to cover the cost of the project’s construction phase. Prior to bidding, Staff’s total project cost estimate for the garage was $47.9 million. The low bid for construction of the garage is the principal driver for the increased costs. The factors in the increase are summarized below: Construction bid (with 7.5% contingency): $1.14 million Building permit cost increase: $0.40 million Parking mitigation costs: $0.24 million Construction management cost: $0.27 million Design and construction administration cost: $0.40 million The increases for construction management and for design and construction City of Palo Alto Page 10 administration result primarily from the addition of the second basement level to the garage, but also account for increased costs during design that resulted from separating the garage and PSB architectural review processes. The requested budget amendment results in a new project cost estimate for the New California Avenue Area Parking Garage of $50.1 million. Policy Implications The construction contract awarded in this report will require the parking in-lieu fee to be adjusted per section 16.57.030 of the City of Palo Alto Municipal Code. Staff will return to Council in the event this report is approved to present the recalculated parking in-lieu fee. Environmental Review An Environmental Impact Report for the PSB and the New California Avenue Area Parking Garage was prepared and was certified by Council on June 11, 2018 (Staff Report ID #8967), by adoption of Resolution No. 9772. Attachments: Attachment A - Swinerton Builders Contract C19173521 Attachment B - C16163034- Amendment 3- Final Attachment C - Romig Contract Amendment 1-Final Attachment D - IFB 173521 Bid Summary Attachment E - Parking Mitigation Summary Table Invitation for Bid (IFB) Package 1 Rev. March 17, 2017 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT Contract No. C19173521 City of Palo Alto New California Avenue Parking Garage Project Invitation for Bid (IFB) Package 2 Rev. March 17, 2017 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT TABLE OF CONTENTS SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS…………………………………….…………..6 1.1 Recitals…………………………………………………………………………………………………………………….6 1.2 Definitions……………………………………………………………………………………………………………….6 SECTION 2 THE PROJECT………………………………………………………………………………………………………...6 SECTION 3 THE CONTRACT DOCUMENTS………………………………………………………………………………..7 3.1 List of Documents…………………………………………………………………………………………….........7 3.2 Order of Precedence……………………………………………………………………………………………......7 SECTION 4 CONTRACTOR’S DUTY…………………………………………………………………………………………..8 4.1 Contractor's Duties…………………………………………………………………………………………………..8 SECTION 5 PROJECT TEAM……………………………………………………………………………………………………..8 5.1 Contractor's Co-operation………………………………………………………………………………………..8 SECTION 6 TIME OF COMPLETION…………………………………………………………………………………….......8 6.1 Time Is of Essence…………………………………………………………………………………………………….8 6.2 Commencement of Work…………………………………………………………………………………………8 6.3 Contract Time…………………………………………………………………………………………………………..8 6.4 Liquidated Damages…………………………………………………………………………………………………8 6.4.1 Other Remedies……………………………………………………………………………………………………..9 6.5 Adjustments to Contract Time………………………………………………………………………………….9 SECTION 7 COMPENSATION TO CONTRACTOR……………………………………………………………………….9 7.1 Contract Sum……………………………………………………………………………………………………………9 7.2 Full Compensation……………………………………………………………………………………………………9 SECTION 8 STANDARD OF CARE……………………………………………………………………………………………..9 8.1 Standard of Care…………………………………………………………………………………..…………………9 SECTION 9 INDEMNIFICATION…………………………………………………………………………………………..…10 9.1 Hold Harmless……………………………………………………………………………………………………….10 9.2 Survival…………………………………………………………………………………………………………………10 SECTION 10 NON-DISCRIMINATION……..………………………………………………………………………………10 10.1 Municipal Code Requirement…………….………………………………..……………………………….10 SECTION 11 INSURANCE AND BONDS.…………………………………………………………………………………10 Invitation for Bid (IFB) Package 3 Rev. March 17, 2017 CONSTRUCTION CONTRACT 11.1 Evidence of Coverage…………………………………………………………………………………………..10 SECTION 12 PROHIBITION AGAINST TRANSFERS…………………………………………………………….…11 12.1 Assignment………………………………………………………………………………………………………….11 12.2 Assignment by Law.………………………………………………………………………………………………11 SECTION 13 NOTICES …………………………………………………………………………………………………………….11 13.1 Method of Notice …………………………………………………………………………………………………11 13.2 Notice Recipents ………………………………………………………………………………………………….11 13.3 Change of Address……………………………………………………………………………………………….12 SECTION 14 DEFAULT…………………………………………………………………………………………………………...12 14.1 Notice of Default………………………………………………………………………………………………….12 14.2 Opportunity to Cure Default…………………………………………………………………………………12 SECTION 15 CITY'S RIGHTS AND REMEDIES…………………………………………………………………………..13 15.1 Remedies Upon Default……………………………………………………………………………………….13 15.1.1 Delete Certain Services…………………………………………………………………………………….13 15.1.2 Perform and Withhold……………………………………………………………………………………..13 15.1.3 Suspend The Construction Contract…………………………………………………………………13 15.1.4 Terminate the Construction Contract for Default………………………………………………13 15.1.5 Invoke the Performance Bond………………………………………………………………………….13 15.1.6 Additional Provisions……………………………………………………………………………………….13 15.2 Delays by Sureties……………………………………………………………………………………………….13 15.3 Damages to City…………………………………………………………………………………………………..14 15.3.1 For Contractor's Default…………………………………………………………………………………..14 15.3.2 Compensation for Losses…………………………………………………………………………………14 15.4 Suspension by City……………………………………………………………………………………………….14 15.4.1 Suspension for Convenience……………………………………………………………………………..14 15.4.2 Suspension for Cause………………………………………………………………………………………..14 15.5 Termination Without Cause…………………………………………………………………………………14 15.5.1 Compensation………………………………………………………………………………………………….15 15.5.2 Subcontractors………………………………………………………………………………………………..15 15.6 Contractor’s Duties Upon Termination………………………………………………………………...15 SECTION 16 CONTRACTOR'S RIGHTS AND REMEDIES……………………………………………………………16 16.1 Contractor’s Remedies……………………………………..………………………………..………………….16 Invitation for Bid (IFB) Package 4 Rev. March 17, 2017 CONSTRUCTION CONTRACT 16.1.1 For Work Stoppage……………………………………………………………………………………………16 16.1.2 For City's Non-Payment…………………………………………………………………………………….16 16.2 Damages to Contractor………………………………………………………………………………………..16 SECTION 17 ACCOUNTING RECORDS………………………………………………………………………………….…16 17.1 Financial Management and City Access………………………………………………………………..16 17.2 Compliance with City Requests…………………………………………………………………………….17 SECTION 18 INDEPENDENT PARTIES……………………………………………………………………………………..17 18.1 Status of Parties……………………………………………………………………………………………………17 SECTION 19 NUISANCE……………………………………………………………………………………………………….…17 19.1 Nuisance Prohibited……………………………………………………………………………………………..17 SECTION 20 PERMITS AND LICENSES…………………………………………………………………………………….17 20.1 Payment of Fees…………………………………………………………………………………………………..17 SECTION 21 WAIVER…………………………………………………………………………………………………………….17 21.1 Waiver………………………………………………………………………………………………………………….17 SECTION 22 GOVERNING LAW AND VENUE; COMPLIANCE WITH LAWS……………………………….18 22.1 Governing Law…………………………………………………………………………………………………….18 22.2 Compliance with Laws…………………………………………………………………………………………18 22.2.1 Palo Alto Minimum Wage Ordinance…………….………………………………………………….18 SECTION 23 COMPLETE AGREEMENT……………………………………………………………………………………18 23.1 Integration………………………………………………………………………………………………………….18 SECTION 24 SURVIVAL OF CONTRACT…………………………………………………………………………………..18 24.1 Survival of Provisions……………………………………………………………………………………………18 SECTION 25 PREVAILING WAGES………………………………………………………………………………………….18 SECTION 26 NON-APPROPRIATION……………………………………………………………………………………….19 26.1 Appropriation………………………………………………………………………………………………………19 SECTION 27 AUTHORITY……………………………………………………………………………………………………….19 27.1 Representation of Parties…………………………………………………………………………………….19 SECTION 28 COUNTERPARTS………………………………………………………………………………………………..19 28.1 Multiple Counterparts………………………………………………………………………………………….19 SECTION 29 SEVERABILITY……………………………………………………………………………………………………19 29.1 Severability………………………………………………………………………………………………………….19 SECTION 30 STATUTORY AND REGULATORY REFERENCES …………………………………………………..19 Invitation for Bid (IFB) Package 5 Rev. March 17, 2017 CONSTRUCTION CONTRACT 30.1 Amendments of Laws…………………………………………………………………………………………..19 SECTION 31 WORKERS’ COMPENSATION CERTIFICATION………………………………………………….….19 31.1 Workers Compensation…………………………………………………………………………………….19 SECTION 32 DIR REGISTRATION AND OTHER SB 854 REQUIREMENTS………………………………..…20 32.1 General Notice to Contractor…………………………………………………………………………….20 32.2 Labor Code section 1771.1(a)…………………………………………………………………………….20 32.3 DIR Registration Required…………………………………………………………………………………20 32.4 Posting of Job Site Notices…………………………………………………………………………………20 32.5 Payroll Records…………………………………………………………………………………………………20 Invitation for Bid (IFB) Package 6 Rev. March 17, 2017 CONSTRUCTION CONTRACT CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT entered into on December 10, 2018 (“Execution Date”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and Swinerton Builders ("Contractor"), is made with reference to the following: R E C I T A L S: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Contractor is a California corporation duly organized and in good standing in the State of California, Contractor’s License Number 92 and Department of Industrial Relations Registration Number 1000000296 . Contractor represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Construction Contract. C. On September 18, 2018, City issued an Invitation for Bids (IFB) to contractors for the New California Avenue Area Parking Garage (“Project”). In response to the IFB, Contractor submitted a Bid. D. City and Contractor desire to enter into this Construction Contract for the Project, and other services as identified in the Contract Documents for the Project upon the following terms and conditions. NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows: SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS. 1.1 Recitals. All of the recitals are incorporated herein by reference. 1.2 Definitions. Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the General Conditions. If there is a conflict between the definitions in this Construction Contract and in the General Conditions, the definitions in this Construction Contract shall prevail. SECTION 2 THE PROJECT. The Project is the New California Avenue Area Parking Garage Project, located at 350 Sherman Avenue, Palo Alto, CA 94306 ("Project"). Invitation for Bid (IFB) Package 7 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 3 THE CONTRACT DOCUMENTS. 3.1 List of Documents. The Contract Documents (sometimes collectively referred to as “Agreement” or “Bid Documents”) consist of the following documents which are on file with the Purchasing Division and are hereby incorporated by reference. 1) Change Orders 2) Field Orders 3) Contract 4) Bidding Addenda 5) Special Provisions 6) General Conditions 7) Project Plans and Drawings 8) Technical Specifications 9) Instructions to Bidders 10) Invitation for Bids 11) Contractor's Bid/Non-Collusion Declaration 12) Reports listed in the Contract Documents 13) Public Works Department’s Standard Drawings and Specifications (most current version at time of Bid) 14) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards (most current version at time of Bid) 15) City of Palo Alto Traffic Control Requirements 16) City of Palo Alto Truck Route Map and Regulations 17) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre- Qualification Checklist (if applicable) 18) Performance and Payment Bonds 3.2 Order of Precedence. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a claimed inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to decide which document or provision shall govern as may be in the best interests of the City. Invitation for Bid (IFB) Package 8 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 4 CONTRACTOR’S DUTY. 4.1 Contractor’s Duties Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents, all of which are fully incorporated herein. Contractor shall provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including, but not limited to, provision of all necessary labor, materials, equipment, transportation, and utilities, unless otherwise specified in the Contract Documents. Contractor also agrees to use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents. SECTION 5 PROJECT TEAM. 5.1 Contractor’s Co-operation. In addition to Contractor, City has retained, or may retain, consultants and contractors to provide professional and technical consultation for the design and construction of the Project. The Contract requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other contractors retained by City to construct other portions of the Project. SECTION 6 TIME OF COMPLETION. 6.1 Time Is of Essence. Time is of the essence with respect to all time limits set forth in the Contract Documents. 6.2 Commencement of Work. Contractor shall commence the Work on the date specified in City’s Notice to Proceed. 6.3 Contract Time. Work hereunder shall begin on the date specified on the City’s Notice to Proceed and shall be completed not later than . within Five Hundred Forty calendar days (540) after the commencement date specified in City’s Notice to Proceed. By executing this Construction Contract, Contractor expressly waives any claim for delayed early completion. 6.4 Liquidated Damages. Pursuant to Government Code Section 53069.85, if Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time, including any approved extensions thereto, City may assess liquidated damages on a daily basis for each day of Unexcused Delay in achieving Substantial Completion, based on the amount of Nine thousand dollars ($9,000) per day, or as otherwise specified in the Special Provisions. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents, regardless of impact on the time for achieving Substantial Completion. The assessment of liquidated damages is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer by delay in completion of the Work. The City is entitled to setoff the amount of liquidated damages assessed against any payments otherwise due to Contractor, Invitation for Bid (IFB) Package 9 Rev. March 17, 2017 CONSTRUCTION CONTRACT including, but not limited to, setoff against release of retention. If the total amount of liquidated damages assessed exceeds the amount of unreleased retention, City is entitled to recover the balance from Contractor or its sureties. Occupancy or use of the Project in whole or in part prior to Substantial Completion, shall not operate as a waiver of City’s right to assess liquidated damages. 6.4.1 Other Remedies. City is entitled to any and all available legal and equitable remedies City may have where City’s Losses are caused by any reason other than Contractor’s failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.5 Adjustments to Contract Time. The Contract Time may only be adjusted for time extensions approved by City and memorialized in a Change Order approved in accordance with the requirements of the Contract Documents. SECTION 7 COMPENSATION TO CONTRACTOR. 7.1 Contract Sum. Contractor shall be compensated for satisfactory completion of the Work in compliance with the Contract Documents the Contract Sum of Thirty Nine Million Three Hundred Ninety Five Thousand One Hundred Fifty Three Dollars ($39,395,153). [This amount includes the Base Bid and Additive Alternates #11.] 7.2 Full Compensation. The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover all Losses arising out of the nature of the Work or from the acts of the elements or any unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work until its Acceptance by City, all risks connected with the Work, and any and all expenses incurred due to suspension or discontinuance of the Work, except as expressly provided herein. The Contract Sum may only be adjusted for Change Orders approved in accordance with the requirements of the Contract Documents. SECTION 8 STANDARD OF CARE. 8.1 Standard of Care. Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised personnel. All services performed in connection with this Construction Contract shall be performed in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope and complexity of the Project. Invitation for Bid (IFB) Package 10 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 9 INDEMNIFICATION. 9.1 Hold Harmless. To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter individually referred to as an “Indemnitee” and collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and liability, loss, damage, claims, expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in performing the Work or its failure to comply with any of its obligations under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Except as provided in Section 9.2 below, nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. Pursuant to Public Contract Code Section 9201, City shall timely notify Contractor upon receipt of any third-party claim relating to the Contract. 9.2 Survival. The provisions of Section 9 shall survive the termination of this Construction Contract. SECTION 10 NON-DISCRIMINATION. 10.1 Municipal Code Requirement. As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. Contractor acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 11 INSURANCE AND BONDS. 11.1 Evidence of coverage. Within ten (10) business days following issuance of the Notice of Award, Contractor shall provide City with evidence that it has obtained insurance and shall submit Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions. Invitation for Bid (IFB) Package 11 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 12 PROHIBITION AGAINST TRANSFERS. 12.1 Assignment. City is entering into this Construction Contract in reliance upon the stated experience and qualifications of the Contractor and its Subcontractors set forth in Contractor’s Bid. Accordingly, Contractor shall not assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent shall be null and void, and shall be deemed a substantial breach of contract and grounds for default in addition to any other legal or equitable remedy available to the City. 12.2 Assignment by Law. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor or of any general partner or joint venturer or syndicate member of Contractor, if the Contractor is a partnership or joint venture or syndicate or co-tenancy shall result in changing the control of Contractor, shall be construed as an assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity. SECTION 13 NOTICES. 13.1 Method of Notice. All notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing and shall be deemed served on the earlier of the following: (i) On the date delivered if delivered personally; (ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and addressed as hereinafter provided; (iii) On the date sent if sent by facsimile transmission; (iv) On the date sent if delivered by electronic mail; or (v) On the date it is accepted or rejected if sent by certified mail. 13.2 Notice to Recipients. All notices, demands or requests (including, without limitation, Change Order Requests and Claims) from Contractor to City shall include the Project name and the number of this Construction Contract and shall be addressed to City at: To City: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to: City of Palo Alto Public Works Administration 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Matt Raschke AND Invitation for Bid (IFB) Package 12 Rev. March 17, 2017 CONSTRUCTION CONTRACT Nova Partners, Inc. 207 Moffet Blvd. Mountain View, CA 94043 Attn: Hans de Roos In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following: Palo Alto City Attorney’s Office 250 Hamilton Avenue P.O. Box 10250 Palo Alto, California 94303 All Claims shall be sent by registered mail or certified mail with return receipt requested. All notices, demands, requests or approvals from City to Contractor shall be addressed to: Swinerton Builders 260 Townsend Street San Francisco, CA 94107 Attn: Terry McKellips 13.3 Change of Address. In advance of any change of address, Contractor shall notify City of the change of address in writing. Each party may, by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be provided. SECTION 14 DEFAULT. 14.1 Notice of Default. In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents, City may give written notice of default to Contractor in the manner specified for the giving of notices in the Construction Contract, with a copy to Contractor’s performance bond surety. 14.2 Opportunity to Cure Default. Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract Documents within two (2) Days (or such shorter time as City may reasonably require) after receipt of written notice. However, if the breach cannot be reasonably cured within such time, Contractor will commence to cure the breach within two (2) Days (or such shorter time as City may reasonably require) and will diligently and continuously prosecute such cure to completion within a reasonable time, which shall in no event be later than ten (10) Days after receipt of such written notice. Invitation for Bid (IFB) Package 13 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 15 CITY'S RIGHTS AND REMEDIES. 15.1 Remedies Upon Default. If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 14, then City may pursue any remedies available under law or equity, including, without limitation, the following: 15.1.1 Delete Certain Services. City may, without terminating the Construction Contract, delete certain portions of the Work, reserving to itself all rights to Losses related thereto. 15.1.2 Perform and Withhold. City may, without terminating the Construction Contract, engage others to perform the Work or portion of the Work that has not been adequately performed by Contractor and withhold the cost thereof to City from future payments to Contractor, reserving to itself all rights to Losses related thereto. 15.1.3 Suspend The Construction Contract. Ci ty may, without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract for as long a period of time as City determines, in its sole discretion, appropriate, in which event City shall have no obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume Work. 15.1.4 Terminate the Construction Contract for Default. City shall have the right to terminate this Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as required by Section 14. City’s election t o terminate the Construction Contract for default shall be communicated by giving Contractor a written notice of termination in the manner specified for the giving of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be effective immediately, unless otherwise provided therein. 15.1.5 Invoke the Performance Bond. City may, with or without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond. 15.1.6 Additional Provisions. All of City’s rights and remedies under this Construction Contract are cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation in the Contract Documents of certain breaches as material shall not waive the City’s authority to designate other breaches as material nor limit City’s right to terminate the Construction Contract, or prevent the City from terminating the Agreement for breaches that are not material. City’s determination of whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of its rights and remedies for default under the Construction Contract, shall be binding on all parties. No termination or action taken by City after such termination shall prejudice any other rights or remedies of City provided by law or equity or by the Contract Documents upon such termination; and City may proceed against Contractor to recover all liquidated damages and Losses suffered by City. 15.2 Delays by Sureties. Time being of the essence in the performance of the Work, if Contractor’s surety fails to arrange for completion of the Work in accordance with the Performance Bond, within seven (7) calendar days from the date of the notice of termination, Contractor’s surety shall be deemed to have waived its right to complete the Work under the Contract, and City may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that City determines advisable under the circumstances. Contractor and its surety shall be jointly and severally Invitation for Bid (IFB) Package 14 Rev. March 17, 2017 CONSTRUCTION CONTRACT liable for any additional cost incurred by City to complete the Work following termination. In addition, City shall have the right to use any materials, supplies, and equipment belonging to Contractor and located at the Worksite for the purposes of completing the remaining Work. 15.3 Damages to City. 15.3.1 For Contractor's Default. City will be entitled to recovery of all Losses under law or equity in the event of Contractor’s default under the Contract Documents. 15.3.2 Compensation for Losses. In the event that City's Losses arise from Contractor’s default under the Contract Documents, City shall be entitled to deduct the cost of such Losses from monies otherwise payable to Contractor. If the Losses incurred by City exceed the amount payable, Contractor shall be liable to City for the difference and shall promptly remit same to City. 15.4 Suspension by City 15.4.1 Suspension for Convenience. City may, at any time and from time to time, without cause, order Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s expense, comply with the order and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume and continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order shall not be the exclusive method for City to stop the Work. 15.4.2 Suspension for Cause. In addition to all other remedies available to City, if Contracto r fails to perform or correct work in accordance with the Contract Documents, City may immediately order the Work, or any portion thereof, suspended until the cause for the suspension has been eliminated to City’s satisfaction. Contractor shall not be ent itled to an increase in Contract Time or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract Documents. City’s right to suspend the Work shall not give rise to a duty to suspend the Work, and City’s failure to su spend the Work shall not constitute a defense to Contractor’s failure to comply with the requirements of the Contract Documents. 15.5 Termination Without Cause. City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole upon written notice to Contractor. Upon receipt of such notice, Contractor shall, at City’s expense, comply with the notice and take all reasonable steps to minimize costs to close out and demobilize. The compensation allowed under this Paragraph 15.5 shall be the Contractor’s sole and exclusive compensation for such termination and Contractor waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from termination without cause. Termination pursuant to this provision does not relieve Contractor or its sureties from any of their obligations for Losses arising from or related to the Work performed by Contractor. Invitation for Bid (IFB) Package 15 Rev. March 17, 2017 CONSTRUCTION CONTRACT 15.5.1 Compensation. Following such termination and within forty-five (45) Days after receipt of a billing from Contractor seeking payment of sums authorized by this Paragraph 15.5.1, City shall pay the following to Contractor as Contractor’s sole compensation for performance of the Work : .1 For Work Performed. The amount of the Contract Sum allocable to the portion of the Work properly performed by Contractor as of the date of termination, less sums previously paid to Contractor. .2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors: (i) Demobilizing and (ii) Administering the close-out of its participation in the Project (including, without limitation, all billing and accounting functions, not including attorney or expert fees) for a period of no longer than thirty (30) Days after receipt of the notice of termination. .3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were fabricated for subsequent incorporation in the Work. .4 Profit Allowance. An allowance for profit calculated as four percent (4%) of the sum of the above items, provided Contractor can prove a likelihood that it would have made a profit if the Construction Contract had not been terminated. 15.5.2 Subcontractors. Contractor shall include provisions in all of its subcontracts, purchase orders and other contracts permitting termination for convenience by Contractor on terms that are consistent with this Construction Contract and that afford no greater rights of recovery against Contractor than are afforded to Contractor against City under this Section. 15.6 Contractor’s Duties Upon Termination. Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the notice directs otherwise, do the following: (i) Immediately discontinue the Work to the extent specified in the notice; (ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as may be necessary for completion of such portion of the Work that is not discontinued; (iii) Provide to City a description in writing, no later than fifteen (15) days after receipt of the notice of termination, of all subcontracts, purchase orders and contracts that are outstanding, including, without limitation, the terms of the original price, any changes, payments, balance owing, the status of the portion of the Work covered and a copy of the subcontract, purchase order or contract and any written changes, amendments or modifications thereto, together with such other information as City may determine necessary in order to decide whether to accept assignment of or request Contractor to terminate the subcontract, purchase order or contract; (iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that City elects to accept by assignment and cancel, on the most favorable terms reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to accept by assignment; and (v) Thereafter do only such Work as may be necessary to preserve and protect Work already in progress and to protect materials, plants, and equipment on the Project Site or in transit thereto. Upon termination, whether for cause or for convenience, the provisions of the Contract Documents remain in effect as to any Claim, indemnity obligation, warranties, guarantees, Invitation for Bid (IFB) Package 16 Rev. March 17, 2017 CONSTRUCTION CONTRACT submittals of as-built drawings, instructions, or manuals, or other such rights and obligations arising prior to the termination date. SECTION 16 CONTRACTOR'S RIGHTS AND REMEDIES. 16.1 Contractor’s Remedies. Contractor may terminate this Construction Contract only upon the occurrence of one of the following: 16.1.1 For Work Stoppage. The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of an order of a court or other public authority other than City having jurisdiction or due to an act of government, such as a declaration of a national emergency making material unavailable. This provision shall not apply to any work stoppage resulting from the City’s issuance of a suspension notice issued either for cause or for convenience. 16.1.2 For City's Non-Payment. If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of notice from Contractor, Contractor may terminate the Construction Contract (30) days following a second notice to City of Contractor’s intention to terminate the Construction Contract. 16.2 Damages to Contractor. In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph 15.5.1 above. Contractor agrees to accept such sums as its sole and exclusive compensation and agrees to waive any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect and incidental damages, of any kind. SECTION 17 ACCOUNTING RECORDS. 17.1 Financial Management and City Access. Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Construction Contract in accordance with generally accepted accounting principles and practices. City and City's accountants during normal business hours, may inspect, audit and copy Contractor's records, books, estimates, take-offs, cost reports, ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these documents for a period of three (3) years after the later of (i) Final Payment or (ii) final resolution of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law. Invitation for Bid (IFB) Package 17 Rev. March 17, 2017 CONSTRUCTION CONTRACT 17.2 Compliance with City Requests. Contractor's compliance with any request by City pursuant to this Section 17 shall be a condition precedent to filing or maintenance of any legal action or proceeding by Contractor against City and to Contractor's right to receive further payments under the Contract Documents. City many enforce Contractor’s obligation to provide access to City of its business and other records referred to in Section 17.1 for inspection or copying by issuance of a writ or a provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony. SECTION 18 INDEPENDENT PARTIES. 18.1 Status of parties. Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures’ of the other party. City, its officers or employees shall have no control over the conduct of Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein set forth. SECTION 19 NUISANCE. 19.1 Nuisance Prohibited. Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in the performance of services under this Construction Contract. SECTION 20 PERMITS AND LICENSES. 20.1 Payment of Fees. Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall provide, procure and pay for all licenses, permits, and fees, required by the City or other government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation shall be paid to the Contractor for these items or for delays caused by non-City inspectors or conditions set forth in the licenses or permits issued by other agencies. SECTION 21 WAIVER. 21.1 Waiver. A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. Invitation for Bid (IFB) Package 18 Rev. March 17, 2017 CONSTRUCTION CONTRACT SECTION 22 GOVERNING LAW AND VENUE; COMPLIANCE WITH LAWS. 22.1 Governing Law. This Construction Contract shall be construed in accordance with and governed by the laws of the State of California, and venue shall be in a court of competent jurisdiction in the County of Santa Clara, and no other place. 22.2 Compliance with Laws. Contractor shall comply with all applicable federal and California laws and city laws, including, without limitation, ordinances and resolutions, in the performance of work under this Construction Contract. 22.2.1 Palo Alto Minimum Wage Ordinance. Contractor shall comply with all requirements of the Palo Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of work in a calendar week within the geographic boundaries of the City, Contractor shall pay such employees no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked within the geographic boundaries of the City of Palo Alto. In addition, Contractor shall post notices regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060. SECTION 23 COMPLETE AGREEMENT. 23.1 Integration. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended only by a written instrument, which is signed by the parties. SECTION 24 SURVIVAL OF CONTRACT. 24.1 Survival of Provisions. The provisions of the Construction Contract which by their nature survive termination of the Construction Contract or Final Completion, including, without limitation, all warranties, indemnities, payment obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect after Final Completion or any termination of the Construction Contract. SECTION 25 PREVAILING WAGES. This Project is not subject to prevailing wages. Contractor is not required to pay prevailing wages in the performance and implementation of the Project in accordance with SB 7, if the public works contract does not include a project of $25,000 or less, when the project is for construction work, or the contract does not include a project of $15,000 or less, when the project is for alteration, demolition, repair, or maintenance (collectively, ‘improvement’) work. Or Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work Invitation for Bid (IFB) Package 19 Rev. March 17, 2017 CONSTRUCTION CONTRACT in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations (“DIR”). Copies of these rates may be obtained at the Purchasing Division’s office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. SECTION 26 NON-APPROPRIATION. 26.1 Appropriations. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that the City does not appropriate funds for the following fiscal year for this event, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Construction Contract are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 27 AUTHORITY. 27.1 Representation of Parties. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. SECTION 28 COUNTERPARTS 28.1 Multiple Counterparts. This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. SECTION 29 SEVERABILITY. 29.1 Severability. In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected. SECTION 30 STATUTORY AND REGULATORY REFERENCES. 30.1 Amendments to Laws. With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference is deemed to be the version in effect on the date that the Contract was awarded by City, unless otherwise required by law. SECTION 31 WORKERS’ COMPENSATION CERTIFICATION. 31.1 Workers Compensation. Pursuant to Labor Code Section 1861, by signing this Contract, Contractor certifies as follows: Invitation for Bid (IFB) Package 20 Rev. March 17, 2017 CONSTRUCTION CONTRACT “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.” SECTION 32 DIR REGISTRATION AND OTHER SB 854 REQUIREMENTS. 32.1 General Notice to Contractor. City requires Contractor and its listed subcontractors to comply with the requirements of SB 854. 32.2 Labor Code section 1771.1(a) City provides notice to Contractor of the requirements of California Labor Code section 1771.1(a), which reads: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or Section 10164 or 20103.5 of the Public Contract Code, provided the contactor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” 32.3 DIR Registration Required. City will not accept a bid proposal from or enter into this Construction Contract with Contractor without proof that Contractor and its listed subcontractors are registered with the California Department of Industrial Relations (“DIR”) to perform public work, subject to limited exceptions. 32.4 Posting of Job Site Notices. City gives notice to Contractor and its listed subcontractors that Contractor is required to post all job site notices prescribed by law or regulation and Contractor is subject to SB 854-compliance monitoring and enforcement by DIR. 32.5 Payroll Records. City requires Contractor and its listed subcontractors to comply with the requirements of Labor Code section 1776, including: (i) Keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by, respectively, Contractor and its listed subcontractors, in connection with the Project. (ii) The payroll records shall be verified as true and correct and shall be certified and made available for inspection at all reasonable hours at the principal office of Contractor and its listed subcontractors, respectively. Invitation for Bid (IFB) Package 21 Rev. March 17, 2017 CONSTRUCTION CONTRACT (iii) At the request of City, acting by its project manager, Contractor and its listed subcontractors shall make the certified payroll records available for inspection or furnished upon request to the project manager within ten (10) days of receipt of City’s request. City requests Contractor and its listed subcontractors to submit the certified payroll records to the project manager at the end of each week during the Project. (iv) If the certified payroll records are not produced to the project manager within the 10-day period, then Contractor and its listed subcontractors shall be subject to a penalty of one hundred dollars ($100.00) per calendar day, or portion thereof, for each worker, and City shall withhold the sum total of penalties from the progress payment(s) then due and payable to Contractor. This provision supplements the provisions of Section 15 hereof. (v) Inform the project manager of the location of contractor’s and its listed subcontractors’ payroll records (street address, city and county) at the commencement of the Project, and also provide notice to the project manager within five (5) business days of any change of location of those payroll records. IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed the date and year first above written. CITY OF PALO ALTO ____________________________ Purchasing Manager City Manager APPROVED AS TO FORM: ____________________________ City Attorney or designee APPROVED: ____________________________ Public Works Director CONTRACTOR Officer 1 By:___________________________ Name:________________________ Title:__________________________ Date: _________________________ Officer 2 By:____________________________ Name:_________________________ Title:___________________________ Date:____________________________ Page 1 of 10 Revision July 20, 2016 AMENDMENT NO. 3 TO CONTRACT NO. C16163034 BETWEEN THE CITY OF PALO ALTO AND NOVA PARTNERS, INC. This Amendment No. 3 (this “Amendment”) to contract no. C16163034 is entered into as of December 10, 2018, by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and NOVA PARTNERS, INC, a California corporation, formerly located at 855 El Camino Real, Suite 307, Palo Alto, CA 94302 and now located at 201 Moffett Boulevard, Mountain View, CA 94043 (“CONSULTANT”). City and Consultant are referred to herein collectively as the “Parties”. R E C I T A L S A. The Contract (as defined below) was entered into between the parties for the provision of Program Management Services for nine major projects including the New California Avenue Area Parking Garage. B. The Parties desire to amend the Contract to add Construction Management (CM) Services for the New California Avenue Area Parking Garage project to the scope of services and to increase the compensation by One Million Two-Hundred Forty-nine Thousand One Hundred Ninety-three dollars ($1,249,193), from Four Million Five Hundred Fifty-nine Thousand Seven Hundred Thirty-five Dollars ($4,559,735) to a new not-to-exceed amount of Five Million Eight Hundred Eight Thousand Nine Hundred Twenty-eight Dollars ($5,808,928). NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Definitions. The following definitions shall apply to this Amendment: a. Contract. The term “Contract” shall mean contract no. C16163034 between CONSULTANT and CITY, as amended by: Amendment No. 1, dated November 27, 2017, and Amendment No. 2, dated February 21, 2018. b. Other Terms. Terms used and not defined in this Amendment shall have the meanings assigned to such terms in the Contract. SECTION 2. Section 1, “SCOPE OF SERVICES”, of the Contract is hereby amended to read as follows: “CONSULTANT shall perform the Services described at Exhibit “A”, entitled “SCOPE OF SERVICES”, and Exhibit “A-1”, entitled “PROFESSIONAL SERVICES TASK ORDER”, as approved by City, Exhibit DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 2 of 10 Revision July 20, 2016 “A-1”, entitled “SCOPE OF SERVICES, AMENDMENT NO. 1”, and Exhibit “A-2”, entitled “SCOPE OF SERVICES, AMENDMENT NO. 3, ADDED”, in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY.” SECTION 3. Section 2, “TERM”, of the Contract is hereby amended to read as follows: “The term of this Agreement shall be from the date of its full execution through completion of the services in accordance with the Schedule of Performance exhibits attached at Exhibit “B”, Exhibit “B-1” and Exhibit “B-2”, as applicable, unless terminated earlier pursuant to Section 19 of this Agreement”. SECTION 4. Section 3, “SCHEDULE OF PERFORMANCE”, of the Contract is hereby amended to read as follows: “Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit “B”, Exhibit “B-1” and/or Exhibit “B-2”, as applicable. Each such exhibit is hereby attached to and made a part of this Agreement by this reference as though fully set5 forth herein. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement t o extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT.” SECTION 5. Section 4, “NOT TO EXCEED COMPENSATION”, of the Contract is hereby amended to read as follows: “The compensation to be paid to CONSULTANT for performance of the services described in Exhibit “A”, entitled “SCOPE OF SERVICES”; Exhibit “A-1”, entitled “PROFESSIONAL SERVICES TASK ORDER”, as approved by City; Exhibit “A-1”, entitled “SCOPE OF SERVICES, AMENDMENT NO. 1”; and Exhibit “A-2”, entitled “SCOPE OF SERVICES, AMENDMENT NO. 3, ADDED” (collectively, “Basic Services”); and any reimbursable expenses specified in Exhibit “C” shall not exceed Five Million Two-Hundred Eighty Eight Hundred Forty-Four Dollars ($5,280,844). CONSULTANT agrees to complete all Basic Services, including such reimbursable expenses, within this amount. In the event Additional Services (defined below) are authorized, the total compensation for Basic Services, Additional Services and reimbursable expenses shall not exceed Five Million Eight Hundred Eight Thousand Nine Hundred Twenty-Eight Dollars ($5,808,928). The applicable rates and schedule of payment are set out at Exhibit “C-1”, entitled “SCHEDULE OF RATES” or Exhibit “C-2”, entitled “SCHEDULE OF RATES, AMENDMENT NO.3”, as applicable. Each such exhibit is hereby attached to and made a part of this Agreement in full by this reference. Any work performed or expenses DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 3 of 10 Revision July 20, 2016 incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “C”. CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. “Additional Services” shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit “A”, Exhibit “A-1”, or Exhibit “A-2”.” SECTION 6. Exhibits The following exhibits to the Contract are hereby added or amended, as indicated below in this Section, to read as set forth in the attachments to this Amendment, which are hereby incorporated into this Amendment, and into the Contract, in full by this reference: a. Exhibit “A-2” entitled “SCOPE OF SERVICES, AMENDMENT No. 3” – Added b. Exhibit “B-2” entitled “SCHEDULE OF PERFORMANCE, AMENDMENT No. 3” – Added c. Exhibit “C” entitled “COMPENSATION, AMENDMENT No. 3”- Amended, replaces previous d. Exhibit “C-2” entitled “SCHEDULE OF RATES, AMENDMENT NO.3”- Added SECTION 7. Legal Effect. Except as herein modified, all other provisions of the Contract, including any exhibits thereto, shall remain in full force and effect. SECTION 8. Incorporation of Recitals. The recitals set forth above are terms of this Amendment and are hereby fully incorporated herein by this reference. (SIGNATURE BLOCK FOLLOWS ON THE NEXT PAGE.) DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 4 of 10 Revision July 20, 2016 SIGNATURES OF THE PARTIES IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Amendment on the date first above written. CITY OF PALO ALTO City Manager (Contract over $85k) APPROVED AS TO FORM: City Attorney or designee (Contract over $25k) NOVA PARTNERS, INC. Officer 1 By: Name: Title: Officer 2 (Required for Corp. or LLC) By: Name: Title: Attachments: EXHIBIT "A-2": SCOPE OF SERVICES, AMENDMENT NO. 3-ADDED EXHIBIT "B-2": SCHEDULE OF PERFORMANCE, AMENDMENT NO. 3-ADDED EXHIBIT “C”: COMPENSATION, AMENDMENT NO. 3-AMENDED-REPLACES PREVIOUS EXHIBIT “C-2”: SCHEDULE OF RATES, AMENDMENT NO. 3-ADDED DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Vice President David Marks CFO Dennis Coonan Page 5 of 10 Revision July 20, 2016 EXHIBIT “A-2” SCOPE OF SERVICES AMENDMENT NO.3, ADDED Task 5.2: Construction Management Services for the New California Avenue Area Parking Garage The Consultant shall provide construction management (CM) services for the New California Avenue Area Parking Garage Project. CM services consist of monitoring and managing the construction contract while coordinating the progress of the work with the City and the project architect and the architect’s team of subconsultants. 1. Construction management for the New California Avenue Area Parking Garage shall include the following: a. Review general contractor’s baseline project schedule and monitor continuously during project duration, advising on schedule adherence and status. b. Review general contractor’s monthly project schedule updates and monthly application for payment. c. Conduct weekly Owner/Architect/Contractor (OAC) meetings and document/publish meeting minutes. d. Monitor Requests for Information (RFI’s), response times, submittal approvals, and change requests during construction to maintain the project schedule. e. Manage project change orders, review for validity, and process requests on appropriate City forms to allow for City approval. Consultant will create and manage the change order log for the project. f. Review all payment applications for accuracy to allow City to issue payment. g. Review invoices and add service requests from Architect for validity. h. Review field progress and maintain open communication between project team members during the construction phase. i. Publish a monthly construction report summarizing progress. Report shall be submitted to City for inclusion on the City web site. j. Manage Basecamp file storage for project files. k. Provide Special Testing and Inspection services (geotechnical excluded). l. Provide photo documentation consisting of monthly interior and exterior progression images and major slab concrete pours and Mechanical, Electrical, and Plumbing (MEP) installations. 2. CM Services for the New California Avenue Area Parking Garage does not include: a. Preparation of permit applications or permit fees b. Air fare, per diem or other out of town travel expenses c. Geotechnical Services, Waterproofing Inspections, or Commissioning d. Blueprinting or major copying services e. Contracts of equipment vendors, design consultants, and contractors. DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 6 of 10 Revision July 20, 2016 3. Special Inspection and Testing Scope: DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 7 of 10 Revision July 20, 2016 EXHIBIT “B-2” SCHEDULE OF PERFORMANCE AMENDMENT NO. 3, ADDED CONSULTANT shall commence performance of Task 5.2 (Construction Management Services for the New California Avenue Area Parking Garage) of Exhibit “A-2”, upon issuance of Notice to Proceed. These services shall be performance for the duration of the project unless earlier terminated by CITY in its sole discretion. For information purposes, Task 5.2 is expected to be performed from January 1, 2019 through July 31, 2020 and consist of a total duration of 19 months from commencement of construction; however, that timeframe may be modified by CITY as project needs require. DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 8 of 10 Revision July 20, 2016 EXHIBIT “C” COMPENSATION, AMENDMENT NO. 3 (AMENDED – REPLACES PREVIOUS) The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the schedule of rates attached as Exhibit “C-1” and Exhibit “C-2”, up to the not to exceed budget amount for each task set forth below. CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY’s Project Manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, and the total compensation for Additional Services do not exceed the amounts set forth in Section 4 of this Agreement. REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto’s policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone service charges, cellular phone service charges, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $1,000 shall be approved in advance by the CITY’s project manager. ADDITIONAL SERVICES The CONSULTANT shall provide Additional Services (defined in Section 4, “Not to Exceed Compensation”) only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s project manager’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit “C-1” and/or Exhibit “C-2”. The Additional Services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s Project Manager and CONSULTANT prior to commencement of such services. Payment for Additional Services is subject to all requirements and restrictions in this Agreement. (Continued on the next page.) DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 9 of 10 Revision July 20, 2016 BUDGET SCHEDULE DESCRIPTION NOT-TO-EXCEED AMOUNT BASIC SERVICES Year 1 Year 2 Year 3 Total Task 1.1: Project Management, Planning, and Coordination (Projects 1-9) $140,898 $140,898 $140,898 $422,694 Task 1.2: Project Management System (Projects 1-9) $175,000 $100,000 $100,000 $375,000 Task 2: Acquisition and management of project consultants (Projects 1-3) $144,975 $144,975 $144,975 $434,925 Task 3: Design/Document reviews (Projects 1-3) $206,762 $206,762 $206,762 $620,286 Task 4: Pre-Construction services (Projects 1-3) $283,650 $283,650 $283,650 $850,950 Task 5.1: Construction Management services for Fire Station 3 Replacement $0 $326,604 $0 $326,604 Task 5.2: Construction Management services for New California Avenue Area Parking Garage $0 $0 $1,135,630 $1,135,630 Task 6: Budget and schedule management (Projects 1-9) $63,985 $63,985 $63,985 $191,955 Task 7.1: On-call services for Transportation Projects $333,400 $253,400 $0 $586,800 Task 7.2: On-call services (allowance) $100,000 $100,000 $100,000 $300,000 TOTAL BASIC SERVICES $1,448,670 $1,620,274 $2,175,900 $5,244,844 REIMBURSABLE EXPENSES $12,000 $12,000 $12,000 $36,000 TOTAL BASIC SERVICES AND REIMBURSABLES $1,460,670 $1,632,274 $2,187,900 $5,280,844 ADDITIONAL SERVICES – 10% OF ABOVE $146,067 $163,227 $218,790 $528,084 TOTAL NOT-TO-EXCEED AMOUNT $1,606,737 $1,795,501 $2,406,690 $5,808,928 DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B Page 10 of 10 Revision July 20, 2016 EXHIBIT “C-2” SCHEDULE OF RATES AMENDMENT NO. 3, ADDED 2018 1. Principal $196 per hour 2. Sr. Project Manager $181 per hour 3. Project Manager $160 per hour 4. Sr. Estimator / Sr. Cost Mgr $181 per hour 5. Estimator & Peer Reviews $165 per hour 6. Project Accountant/ Admin $155 per hour 7. Scheduler $181 per hour 2019 1. Principal $202 per hour 2. Sr. Project Manager $187 per hour 3. Project Manager $165 per hour 4. Sr. Estimator / Sr. Cost Mgr $187 per hour 5. Estimator & Peer Reviews $170 per hour 6. Project Accountant/ Admin $160 per hour 7. Scheduler $187 per hour 2020 1. Principal $209 per hour 2. Sr. Project Manager $193 per hour 3. Project Manager $170 per hour 4. Sr. Estimator / Sr. Cost Mgr $193 per hour 5. Estimator & Peer Reviews $175 per hour 6. Project Accountant/ Admin $165 per hour 7. Scheduler $193 per hour DocuSign Envelope ID: A3C3AD2D-096D-4834-A62A-CB8CDAF0025B 1 Revision July 20, 2016 AMENDMENT NO. 1 TO CONTRACT NO. S18171787 BETWEEN THE CITY OF PALO ALTO AND ROMIG ENGINEERS, INC. This Amendment No. 1 (this “Amendment”) to contract no. S18171787 (“Contract” as defined below) is entered into as of December 10, 2018 by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“CITY”), and ROMIG ENGINEERS, INC., a California corporation, DIR Registration #1000056882, located at 1390 El Camino Real, San Carlos, CA 94070 (“CONSULTANT”). R E C I T A L S A. The Contract was entered into between the parties for the provision of geotechnical investigation services for the California Avenue Area Parking Garage proposed on Lot C-7 (“Project”). B. The parties wish to amend the Contract in order to (i) increase the compensation from Fifty Thousand Dollars ($50,000) to a new not-to-exceed amount of One Hundred Forty Nine Thousand Dollars ($149,000), (ii) expand the scope of services to include geotechnical consulting, observation of construction, witness load tests, perform soil tests, report on findings, and the other tasks detailed in Exhibit “A-1” added here, and (iii) extend the term by an additional 1.5 years through October 9, 2020, as detailed in this Amendment. NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Definitions. The following definitions shall apply to this Amendment: a. Contract. The term “Contract” shall mean contract no. S18171787 between CONSULTANT and CITY, dated April 10, 2018. b. Other Terms. Terms used and not defined in this Amendment shall have the meanings assigned to such terms in the Contract. SECTION 2. Section 1, “SCOPE OF SERVICES”, of the Contract is hereby amended to read as follows: “CONSULTANT shall perform the Services described in Exhibit “A” and Exhibit “A-1”, in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY.” DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 2 Revision July 20, 2016 SECTION 3. Section 2, “TERM”, of the Contract is hereby amended to read as follows: “The term of this Agreement shall be from the date of its full execution through completion of the services in accordance with the Schedule of Performance attached at Exhibit “B” and Exhibit “B-1” but in no event later than October 9, 2020 unless terminated earlier pursuant to Section 19 of this Agreement.” SECTION 4. Section 3, “SCHEDULE OF PERFORMANCE”, of the Contract is hereby amended to read as follows: “Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit “B” and Exhibit “B-1”, attached to and made a part of this Agreement. Consultant is not responsible for delays due to causes beyond their responsible control. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT.” SECTION 5. Section 4, “NOT TO EXCEED COMPENSATION”, of the Contract is hereby amended to read as follows: “The compensation to be paid to CONSULTANT for performance of the Basic Services and any authorized Optional Services described in Exhibit “A” and Exhibit “A-1”, as provided for therein, shall not exceed One Hundred Thirty-six Thousand Eight Hundred Dollars ($136,800) as detailed in Exhibit “C” (“Compensation”). CONSULTANT agrees to complete all such Basic Services and any authorized Optional Services within this amount. In the event Additional Services (defined below) are authorized, the total compensation for Basic Services, Optional Services and Additional Services shall not exceed One Hundred Forty-nine Thousand Dollars ($149,000), as detailed in Exhibit “C” (“Compensation”). The applicable schedule of rates is set out at Exhibit “C-1”, entitled “SCHEDULE OF RATES,” which is attached to and made a part of this Agreement. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit “C”. CONSULTANT shall not receive any com pensation for Additional Services performed without the prior written authorization of CITY. “Additional Services” shall mean any work that is determined by CITY to be DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 3 Revision July 20, 2016 necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit “A” or Exhibit “A-1”. SECTION 6. Exhibits. The following exhibit(s) to the Contract are hereby added or amended, as indicated below in this Section, to read as set forth in the attachments to this Amendment, which are incorporated into this Amendment, and into the Contract, in full by this reference: a. Exhibit “A-1” entitled “SCOPE OF SERVICES, AMENDMENT NO.1” (ADDED) b. Exhibit “B-1” entitled “SCHEDULE OF PERFORMANCE, AMENDMENT NO.1” (ADDED) c. Exhibit “C” entitled “COMPENSATION” (AMENDED-REPLACES PREVIOUS) SECTION 7. Legal Effect. Except as herein modified, all other provisions of the Contract, including any exhibits, shall remain in full force and effect. SECTION 8. Incorporation of Recitals. The recitals set forth above are terms of this Amendment and are hereby fully incorporated herein by this reference. (SIGNATURE BLOCK FOLLOWS ON THE NEXT PAGE.) DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 4 Revision July 20, 2016 SIGNATURES OF THE PARTIES IN WITNESS WHEREOF, the parties hereto have by their duly auth orized representatives executed this Amendment on the date first above written. CITY OF PALO ALTO City Manager (Contract over $85k) APPROVED AS TO FORM: City Attorney or designee (Contract over $25k) ROMIG ENGINEERS, INC. Officer 1 By: Name: Title: Officer 2 (Required for Corp. or LLC) By: Name: Title: Attachments : EXHIBIT "A-1" entitled “SCOPE OF SERVICES, AMENDMENT NO.1” (ADDED) EXHIBIT "B-1" entitled “SCHEDULE OF PERFORMANCE, AMENDMENT NO.1” (ADDED) EXHIBIT "C" entitled “COMPENSATION, AMENDMENT NO.1” (AMENDED – REPLACES PREVIOUS) DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 President Glenn Romig 5 Revision July 20, 2016 EXHIBIT “A-1” SCOPE OF SERVICES, AMENDMENT NO.1 (ADDED) The following Geotechnical Engineering services shall be provided by CONSULTANT to support construction of the New California Avenue Area Parking Garage at 350 Sherman Avenue, Palo Alto, California. Task Description A-1 Review design/build shoring plans; summarize results in letter A-2 Up to 10, 4-hour site visits for intermittent construction observation of seepage cut-off wall A-3 Up to 4, 4-hour site visits for intermittent construction observation during installation of soldier beams in cut-off wall A-4 Review and respond to up to 12 Requests for Information (RFIs) from contractor A-5 Up to 12, 4-hour site visits for intermittent construction observation during the installation and grouting of tie-back anchors A-6 Up to 6, 5-hour site visits to witness load testing of tie-back anchors and review contractor installation and load testing records A-7 Prepare summary letter re tie-back installation and load testing A-8 Up to 4, 3-hour site visits to observe and test lower-level mat subgrade A-9 Up to 6, 4-hour site visits to observe and test miscellaneous structural fill and backfill A-10 Up to 12, 3-hour site visits to observe and test utility trench backfill A-11 Up to 6, 3-hour site visits to observe and test foundation subgrades for at-grade improvements A-12 Up to 12, 3-hour site visits to observe and test subgrade and aggregate base (AB) for on- site and off-site pavements A-13 Miscellaneous geotechnical consultation as requested by City, Construction Manager, or Architect A-14 Up to 8, 3-hour site visits by and engineering support by project engineers A-15 Project coordination, scheduling and management A-16 Prepare construction observation summary letter at completion The following tasks shall be considered “Optional Services”. CONSULTANT will provide the Optional Services below if requested and authorized by the City’s project manager: Task Description O-1 Near full-time construction observation of seepage cut-off wall O-2 Near full-time construction observation of tie-back installation and grouting DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 6 Revision July 20, 2016 EXHIBIT “B-1” SCHEDULE OF PERFORMANCE, AMENDMENT NO. 1 (ADDED) Geotechnical Services for construction of the New California Avenue Area Parking Garage) is expected to proceed from January 2019 through July 2020 and consist of a total duration of 19 months from commencement of construction. DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 7 Revision July 20, 2016 EXHIBIT “C” COMPENSATION, AMENDMENT NO. 1 (AMENDED – REPLACES PREVIOUS) The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the hourly rate schedule attached as exhibit C-1 up to the not to exceed budget amount for each task set forth below. CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY’s Project Manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, Optional Services, and Additional Services does not exceed the amounts set forth in Section 4 of this Agreement. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Task 1 $1,900 (Pre-Proposal Consultation with Project Team) Task 2 $2,500 (Project Coordination/Mark Borings and CPTs/Notify USA) Task 3 $1,450 (Santa Clara Valley Water District (SCVWD) Permit Application and Fees (Drilling and CPT) Task 4 $17,600 (Exploratory Borings/ Grouting/Drum Spoils) Task 5 $7,300 (CPTs/Grouting/Coordination) Task 6 $4,050 (Laboratory Testing, not including environmental testing of spoils) Task 7 $3,800 (Report of Findings and Testing Summary Report) Tasks A-1 through A-16 $60,000 (Geotechnical Engineering services to support construction) DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 8 Revision July 20, 2016 Sub-total Basic Services $98,600 Reimbursable Expenses $0 Total Basic Services and Reimbursable Expenses $98,600 Additional Services (Not to Exceed) $12,200 Optional Services Task 8 $850 (Utility Locator Service) Task 9 $3,750 (Chemical Testing and Off-Haul of Soil and Drums Time and Expense for normal lab turnaround time) Task 10 $3,600 (Post Report Geotechnical Consultation – Time and Expense) Task O-1 $15,000 (Near full-time construction observation of seepage cut-off wall) Task O-2 $15,000 (Near full-time construction observation of tie-back installation and grouting) Sub-total Optional Services $38,200 Maximum Total Compensation $149,000 ADDITIONAL SERVICES The CONSULTANT shall provide Additional Services (as defined in Section 4, “NOT TO EXCEED COMPENSATION” of this Agreement) only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY’s project manager’s request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT’s proposed maximum compensation for such services based on the rates set forth in Exhibit C-1. The Additional Services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY’s project manager and CONSULTANT prior to commencement of the services, pursuant to a written amendment to this Agreement per Section 27.4 of this Agreement. Payment for Additional Services is subject to all requirements and restrictions in this Agreement. DocuSign Envelope ID: 4F3D3AF4-723C-4BCE-8EC2-4B84C4DA8800 Bid Summary Results for Project New California Avenue Area Parking Garage (IFB 173521) Issued on 09/18/2018 Bid Due on October 24, 2018 3:00 PM (Pacific) Item Number Description Swinerton Builders McCarthy Building Companies, Inc. 1 BASE BID - All work shown on the New Parking Garage drawings and technical specifications and with reference to IFB appendices and the reconfiguration of the adjacent Parking Lot C-6 to included tree removals, clearing and grubbing, partial demolition, light fixture relocation, slurry seal, striping, and signage. $38,858,653 $39,215,000 2 Allowance for Unforeseen Utilities $50,000 $50,000 3 Allowance for Dewatering $300,000 $300,000 4 Allowance for Removal and Disposal of Hazardous Materials $75,000 $75,000 5 Allowance for Construction Noise Reduction Measures per EIR Mitigation Requirements $20,000 $20,000 6 Allowance for Design and Installation of Emergency Responder Radio System - Antenna, amplifiers / distribution equipment, monitoring equipment, permit etc. (Conduit and Infrastructure to be included in base bid) $20,000 $20,000 7 Allowance for Code Signage and Parking Directional Signage (signage not called out in the drawings or technical specifications) $5,000 $5,000 8 Allowance for Illuminated Monument Signage - Structural and Electrical provision to be included in base bid per drawings and technical specifications. Allowance is for sign manufacture and installation. $50,000 $50,000 9 Allowance for registration of of project in SMARTS and development of project SWPPP plan $15,000 $15,000 BASIS OF AWARD:$39,393,653 $39,750,000 ADD ALTERNATES 10 Provide individual LED lights above each parking stall in conjunction with the specified Parking Guidance System (PGS). [Note: The Base Bid includes the PGS without individual LED lights above each stall.] $180,000 $300,000 11 Provide construction webcam per technical specification ( Contractor must also submit the bid form) $1,500 $50,000 Total with all Add Alternate Items $39,575,153 $40,100,000 Item Description Spaces Lost / New Demand Spaces Gained / Demand Reduction Notes - Garage Construction on Lot C-7 143 Existing surface parking - Garage Construction Staging around C-7 22 On-street parking that will be unavailable during construction 1 Reconfigure Lot C-6 30 Net gain from added stalls and re-sizing sub- standard stalls. 2 Lease Courthouse Lot B 43 3 Lease Caltrain Lot for Contractor Parking 44 44 Proposed contractor parking. Monday-Friday. 4 Make Mimosa Lane one-way and add on-street parking 5 Requires updated signage and striping. 5 Improve demarcation of existing on-street parking to improve efficiency 5 Several potential locations identified in Cal Ave Business District. 6 Allow non-EV parking in EV spaces during peak hours (11am-2pm) 4 7 Stanford Shuttle Service 20 Estimated demand reduction. Started in Sept. 2018. TOTAL 209 151 Net loss = 58 (less impact than recent solar canopy work) 1 Parking Mitigation Summary Table City of Palo Alto (ID # 9910) City Council Staff Report Report Type: Action Items Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Change of Land Use in Non -Complying Facilities (Downtown) Title: PUBLIC HEARING: Adoption of an Ordinance Amending Section 18.18.120 (Grandfathered Uses and Facilities) of Chapter 18.18 (Downtown Commercial District) of Title 18 (Zoning) of the Palo Alto Municipal Code (PAMC) to Adjust Regulations Relating to Noncomplying Facilities. California Environmental Equality Act ( CEQA), This Ordinance is Within the Scope of the Comprehensive Plan Environmental Impact Report (EIR) Certified and Adopted on November 13, 2017 by Council Resolution No. 9720; Alternatively, the Ordinance is Exempt From Environmental Review Under CEQA Guidelines Section 15061(b)(3) (Continued From December 3, 2018) From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that Council: 1. Find the attached ordinance within the scope of the Comprehensive Plan Environmental Impact Report (EIR) certified and adopted on November 13, 2017 by Council Resolution No. 9720; and, 2. Adopt the attached ordinance; and, 3. Direct staff to initiate a text amendment to amend Palo Alto Municipal Code (PAMC) Section 18.18.120 in accordance with the procedures set forth in PAMC Chapter 18.80 with review and recommendation by the Planning and Transportat ion Commission and in accordance with the Council’s action on the attached ordinance. Executive Summary The recommendation in this report temporarily restores Municipal Code regulations that were changed during a 2016 zoning code update. The 2016 amendment restricts property owners who wish to remodel, improve, or replace buildings that exceed today’s development standards City of Palo Alto Page 2 from changing one land use to another. For instance, a building that exceeds allowed floor area cannot remodel to convert a restaurant space into a retail use. To preserve the public health, safety, and welfare, while a permanent change is considered by the Planning and Transportation Commission (PTC), staff recommends adoption of the proposed ordinance. Background Palo Alto Municipal Code Chapter 18.18 regulates what a Downtown property owner can do with a building that no longer complies with today’s zoning rules; it also regulates land uses that are no longer permitted. Last summer, staff learned of a change to the subject zoning code chapter. The change may have been unintentional and occurred in January 2016 when the Council adopted a wide ranging set of minor or clarifying zoning amendments. Among those amendments, staff highlighted a change to PAMC Section 18.18.120 (Grandfathered Uses and Facilities) that clarifies when minor modifications to the building envelope of a non -complying building are permitted for the purpose of improving the structure’s pedestrian-oriented features. The 2016 amendments also included a change requiring non-complying buildings to retain the same use of the property when remodeling, improving, or replacing the building. Before the amendment, land uses in non-complying buildings, or facilities, could be replaced with other land uses provided they were permitted or conditionally permitted in the zone and met other applicable requirements. This latter amendment was included in the 2016 ordinance as presented to both the PTC and the City Council, and it was duly enacted pursuant to the Palo Alto Municipal Code. The change was not, however, highlighted in the ordinance, and the accompanying staff reports included no reference or policy analysis related to the change. Based on the foregoing, it is possible the regulation prohibiting a change of use in non -complying buildings was an administrative error made when drafting the ordinance. Discussion Palo Alto’s zoning code, like most in California and elsewhere, have regulations that control what an owner can do when they have either a land use or building that does not conform to current standards. Typically, non-complying uses are permitted to continue in a building but may not be altered, changed or expanded in a manner that increases the degree of non - compliance. Similarly, non-complying buildings can be altered or remodeled, and in some instances in Palo Alto, rebuilt, provided, again, there is no increase to the degree of non - compliance with any development standard. It is unusual, however, for local zoning ordinances to restrict changes to otherwise lawfully permitted land use in non-complying buildings. City of Palo Alto Page 3 Staff became aware of the code change after new owners of the President Hotel announced their interest in converting its residential units to a hotel. This property has received a considerable amount of attention, but there are lesser known examples that are impacted by this code provision. The Cheesecake Factory recently closed its doors on University Avenue and the property owner is seeking to convert this space into a retail use but is unable to renovate for a retail use under the current code. A restaurant/wine bar that is located in a building slightly over the maximum allowed floor area is seeking to occupy a former retail space but is unable to make necessary structural changes to the building for this change of use. The former North Face building on Alma, after siting vacant for an extended period of time , proposed to remodel to change the retail space to a personal service use and has been prevented from doing so. In the case of the President Hotel, the applicant has asserted that application of the current code would run afoul of the Ellis Act, among other state laws. The proposed ordinance seeks to revert the Downtown non -complying facilities regulations back to the pre-2016 standard. This involves a modest adjustment striking the operable clause in PAMC Section 18.18.120 (b)(2). Because there are a number of property owners that are affected by the potentially inadvertent code change, staff is pursuing a temporary resolution that is consistent with the code that allows the city to address an immediate need to preserve the public health, safety, and welfare, while a permanent change is considered by the Planning and Transportation Commission pursuant to PAMC Section 18.80.090. Policy Implications Although the current code may have some legitimate basis in policy (e.g. it favors replacement of non-conforming buildings with conforming development) it has had a number of negative impacts. If the Council decides not to amend the code, the City can expect additional downtown property owners objecting to the standard and frustrated by an inability to remodel to fill tenant spaces based on market demand and subject to the City’s other regulatory requirements. Some property owners may be reluctant to redevelop property, including housing projects, based on this policy. There are approxmiately 250 Downtown properties and a number of them are non-complying with respect to maximum building height or maximum floor area. These buildings would be prevented from remodeling, improving, or replacing their facilities to change from existing land uses to other permitted or conditionally permitted land uses, including a change from non-retail to retail, which other City policies support. Resource Impact There are no significant resource or fiscal impacts associated with the recommendation in this report. Timeline As directed by the City Council, staff will present an ordinance to the PTC codifying the City of Palo Alto Page 4 proposed changes and return to Council in the first half of next y ear. Environmental Review This proposed ordinance is within the scope of the Comprehensive Plan Environmental Impact Report (EIR) certified and adopted on November 13, 2017 by Council Resolution No. 9720. Alternatively, the Ordinance is exempt from environmental review under CEQA Guidelines Section 15061(b)(3). Attachments: Attachment A: Ordinance Amending PAMC Section 18.18.120 (CD-C - Grandfathered Uses and Facilities) (PDF) jb SL/Amending ORD 18.18 (DC) District 1 July 2018 ** NOT YET ADOPTED ** DRAFT Ordinance No. ____ Ordinance of the Council of the City of Palo Alto Temporarily Amending Section 18.18.120 (Grandfathered Uses and Facilities) of Chapter 18.18 (Downtown Commercial District) of Title 18 (Zoning) of the Palo Alto Municipal Code (PAMC) to Adjust Regulations Relating to Noncomplying Facilities. The Council of the City of Palo Alto ORDAINS as follows: SECTION 1. Findings and declarations. The City Council finds and declares as follows: A. Section 18.18.120 of the Palo Alto Municipal Code governs permissible noncomplying uses and facilities in the Downtown Commercial zone district. B. In 2016, the provisions of Section 18.18.120 governing permitted uses in noncomplying facilities seeking to remodel, improve, or replace site improvements were updated to: 1) allow minor modifications to building envelope through Architectural Review; and 2) require that such facilities maintain continual use and occupancy for the same use. C. The requirement that noncomplying facilities maintain continual use and occupancy for the same use has resulted in potentially unintended consequences, including the inability for noncomplying facilities to change from eating and drinking services to retail uses. D. A temporary reversion of this requirement to the previously existing language is necessary to preserve the public health, safety, and welfare, while a permanent change is considered by the Planning and Transportation Commission pursuant to Palo Alto Municipal Code Section 18.80.090. SECTION 2. Section 18.18.120 (Grandfathered Uses and Facilities) of Chapter 18.18 (Downtown Commercial (CD) District) of Title 18 (Zoning) is hereby amended to read as follows: 18.18.120 Grandfathered Uses and Facilities (a) Grandfathered Uses (1) The following uses and facilities may remain as grandfathered uses, and shall not require a conditional use permit or be subject to the provisions of Chapter 18.70: (A) Any use which was being conducted on August 28, 1986; or (B) A use not being conducted on August 28, 1986, if the use was temporarily discontinued due to a vacancy of 6 months or less before August 28, 1986; or jb SL/Amending ORD 18.18 (DC) District 2 July 2018 (C) Any office use existing on April 16, 1990 on a property zoned CD and GF combining, which also existed as a lawful conforming use prior to August 28, 1986, notwithstanding any intervening conforming use. (2) The grandfathered uses in subsection (1) shall be permitted to remodel, improve, or replace site improvements on the same site, for continual use and occupancy by the same use, provided such remodeling, improvement, or replacement complies with all of the following: (A) shall not result in increased floor area; (B) shall not relocate below grade floor area to above grade portions of the building; (C) shall not result in an increase of the height, length, building envelope, building footprint or any other increase in the size of the improvement. For purposes of this section, “building envelope” shall mean the three dimensional shape and size occupied by an existing building. It is not the maximum, buildable potential of the site; (D) shall not increase the degree of noncompliance, except pursuant to the exceptions to floor area ratio regulations set forth in Section 18.18.070; or (E) in the case of medical, professional, general business or administrative office uses of a size exceeding 5,000 square feet in the CD-S or CD-N district that are deemed grandfathered pursuant to subsection (1), such remodeling, improvement, or replacement shall not result in increased floor area devoted to such office uses. (F) The Director may approve minor changes to the building’s footprint, height, length, and the building envelope through Architectural Review of minor aesthetic architectural improvements and to improve pedestrian-orientation provided there is no increase to the degree of any non-complying feature. (3) If a grandfathered use deemed existing pursuant to subsection (1) ceases and thereafter remains discontinued for 12 consecutive months, it shall be considered abandoned and may be replaced only by a conforming use. (4) A use deemed grandfathered pursuant to subsection (1) which is changed to or replaced by a conforming use shall not be reestablished, and any portion of a site or any portion of a building, the use of which changes from a grandfathered use to a conforming use, shall not thereafter be used except to accommodate a conforming use. (b) Grandfathered Facilities (1) Any noncomplying facility existing on August 28, 1986 and which, when built, was a complying facility, may remain as a grandfathered facility and shall not be subject to the provisions of Chapter 18.70. (2) The grandfathered facilities in subsection (1) shall be permitted to remodel, improve, or replace site improvements on the same site for continual use and occupancy, by the same use, provided such remodeling, improvement, or replacement complies with all of the following: (A) shall not result in increased floor area; (B) shall not relocate below grade floor area to above grade portions of the building; jb SL/Amending ORD 18.18 (DC) District 3 July 2018 (C) shall not result in an increase of the height, length, building envelope, building footprint, or any other increase in the size of the improvement; (D) shall not increase the degree of noncompliance, except pursuant to the exceptions to floor area ratio regulations set forth in Section 18.18.070; (E) The Director may approve minor changes to the building’s footprint, height, length, and the building envelope through Architectural Review of minor aesthetic architectural improvements and to improve pedestrian-orientation provided there is no increase to the degree of any non-complying feature. SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Council finds that the Ordinance is within the scope of and in furtherance of the Comprehensive Plan 2030 which was evaluated in that certain Final Environmental Impact Report (“Final EIR”) certified and for which findings were adopted by Council Resolution Nos. 9720 and 9721 on November 13, 2017, all in accordance with the California Environmental Quality Act (“CEQA”). Pursuant to Section 15168 of the State CEQA Guidelines, the City has determined that no new effects would occur from and no new mitigation measures would be required for the adoption of this Ordinance. The Council further and alternatively finds, that even if this Ordinance were not within the scope of the Comprehensive Plan 2030, it would be exempt from environmental review under Section 15061(b)(3) of the State CEQA Guidelines. SECTION 5. This Ordinance shall be effective on the thirty-first date after the date of its adoption and shall expire upon adoption of replacement legislation by the City Council or on December 31, 2019, whichever occurs first. Upon expiration of this Ordinance, the City Clerk shall direct the City’s codifier to update the Palo Alto Municipal Code as appropriate. INTRODUCED: PASSED: AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: jb SL/Amending ORD 18.18 (DC) District 4 July 2018 ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Deputy City Attorney City Manager ____________________________ Director of Planning & Community Environment City of Palo Alto (ID # 9769) City Council Staff Report Report Type: Informational Report Meeting Date: 12/10/2018 City of Palo Alto Page 1 Summary Title: Annual Report Development Impact Fees Schedule Title: Annual Report Development Impact Fees Schedule From: City Manager Lead Department: Administrative Services Executive Summary The Annual Status Report on Developers’ Fees provides specific information about development impact fees imposed by the City. The schedule prepared in accordance with Government Code Section 66006 (AB1600) must be made available to the public at least 15 days before the Council meeting at which it is considered and within 180 days of the close of the fiscal year. Since the report is scheduled on the City Council Agenda of January 21, 2019, it is being included as an information report this December to allow time for public review in excess of the minimum 15-day advanced posting requirement. Additional information will be available in the January 21, 2019 report. Attachments: • Attachment A: FY18 Development Impact Fees Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Stanford Research Park/San Antonio/West FUND El Camino Fund Bayshore Fund Purpose and Authority Traffic impact fees imposed on new Traffic impact fees imposed on new for Collection nonresidential development in the nonresidential development in the Stanford Research Park/El Camino San Antonio/West Bayshore Areas Real CS zone to fund improvements to fund capacity improvements at at eight identified intersections.four identified intersections. PAMC Ch. 16.45 PAMC Ch. 16.46 Amount of the Fee $12.42 per square foot $2.55 per square foot Fund Balance July 1, 2017 $3,273,857 $890,209 Activity in 2017-18 Revenues Fees Collected 1,217 12,546 Interest Earnings 64,659 18,539 Unrealized Gain/Loss Investments (51,018)(17,078) -------------------------------------------------------------------------------------------------------------------- Total Revenues $14,858 $14,007 Expenditures Inter-agency expenses (1,000,000)0 -------------------------------------------------------------------------------------------------------------------- Total Expenditures (1,000,000)0 -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $2,288,715 $904,216 -------------------------------------------------------------------------------------------------------------------- Net Funds Available $2,288,715 $904,216 Unexpended balance at next finding date (FY 2017-18)$1,376,491 $828,208 USE OF FEES:USE OF FEES: Expenditure in FY 2018 include $1M to County of Santa Clara for support of intersection improvements at Page Mill Road/Hanover and Page Mill Road/Hansen concurrent with construction of the project at 1050 Page Mill Road. No expenditures have been made from this fund in Fiscal Year 2018. Page 1 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Commercial Housing University Avenue Parking FUND In-Lieu Fund In-Lieu Fund Purpose and Authority Fees imposed on large commercial Fees collected from non-residential for Collection and industrial development to development within the University Ave. contribute to programs that increase Parking Assessment District in lieu of the City's low income and moderate-providing the required number of income housing stock.parking spaces. PAMC Ch.16.47 PAMC Ch 16.57 Amount of the Fee $20.37 per square foot $67,730 per space Fund Balance July 1, 2017 $19,277,863 $3,562,575 Activity in 2017-18 Revenues Fees Collected 275,001 1,894,981 Interest Earnings 160,749 107,699 Unrealized Gain/Loss Investments (181,187)(89,134) -------------------------------------------------------------------------------------------------------------------- Total Revenues 254,563 1,913,545 Expenditures Salaries and Benefit (23,188) Other Contract Services (10,102) Liability Insurance (35) -------------------------------------------------------------------------------------------------------------------- Total Expenditures (33,325)0 -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $19,499,101 $5,476,120 Other Commitments/Appropriations Reserve for Notes Receivable include:$1,290,000 for 2811 Alma, and $4,137,254 for 801 Alma, $7,700,000 for Bueva Vista Mobile Home Park.(13,127,254) Reserve for Encumbrance (8,975) -------------------------------------------------------------------------------------------------------------------- Net Funds Available $6,362,872 $5,476,120 Unexpended balance at next finding date (FY 2017-18)0 $0 USE OF FEES:USE OF FEES: Expenditures in Fiscal Year 2018 are for $23.0K for Management Analyst salaries and benefit, $10.1K for consultancy fees. The additonal $7.7M Reserve for Notes Receivable is a loan to Santa Clara County Housing Authority (SCCHA) for the purchase of Buena Vista Mobile Home Park. No expenditures have been made from this fund in Fiscal Year 2018. Page 2 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Residential & Non-Residential Housing Residential & Non-Residential Housing Community Facilities Community Facilities FUND Parks Community Centers Purpose and Authority Fees imposed on new residential and Fees imposed on new residential and for Collection non-residential development approved non-residential development approved after Jan 28, 2002 for Parks. after Jan 28, 2002 for Community Centers. PAMC Ch. 16.58 PAMC Ch. 16.58 Amount of the Fee Residential: Single family $11,917 per residence (or $17,795 per residence larger than 3,000 sq ft); Multi-family $7,801 per unit (or $3,944 per unit smaller than or equal to 900 sq ft) Residential: Single family $3,089 per residence (or $4,626 per residence larger than 3,000 sq ft); Multi-family $2,033 per unit (or $1,026 per unit smaller than or equal to 900 sq ft) Nonresidential: Commercial/Industrial $5,061 per 1,000 sq ft or fraction thereof; Hotel/Motel $2,288 per 1,000 sq ft or fraction thereof. Nonresidential: Commercial/industrial $286 per 1,000 sq ft or fraction thereof; Hotel/Motel $129 per 1,000 sq ft or fraction thereof. Fund Balance July 1, 2017 $4,446,289 $5,869,478 Activity in 2017-18 Revenues Fees Collected 331,880 93,461 Interest Earnings 91,453 114,687 Unrealized Gain/Loss (86,316)(84,642) -------------------------------------------------------------------------------------------------------------------- Total Revenues $337,017 $123,506 Inter-Agency Expenses (2,500,000) Operating Transfer to Capital Projects Fund (250,000)0 -------------------------------------------------------------------------------------------------------------------- Total Expenditures (250,000)(2,500,000) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $4,533,306 $3,492,984 -------------------------------------------------------------------------------------------------------------------- Net Funds Available $4,533,306 $3,492,984 Unexpended balance at next finding date (FY 2021-2022)4,196,289 $3,369,479 USE OF FEES:USE OF FEES: Budget transfers in FY 2018 were made to Capital Project fund in the amount of $150K for Dog Park Installation (PG- 18001) and $100K for Turf Management Plan (PG-18002) in Expenditure in Fiscal Year 2018 is payment of $2.5M to Avenida. This is a grant funding to make necessary seismic and other improvements to the existing building at 450 Bryant Street, Palo Alto, CA. Page 3 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Residential & Non-Residential Housing Residential Housing Community Facilities In-Lieu Fund FUND Libraries Purpose and Authority Fees imposed on new residential and Fees collected from residential for Collection non-residential development approved developments of three or more units in after Jan 28, 2002 for Libraries. lieu of providing the required below- PAMC Ch. 16.58 market rate unit(s) to low and moderate income households. PA Comprehensive Plan and PAMC Chapter 18 Amount of the Fee Residential: Single family $1,079 per residence (or $1,606 per residence larger than 3,000 sq ft); Multi-family $645 per unit (or $355 per unit smaller than or equal to 900 sq ft)Varies Nonresidential: Commercial/industrial $272 per 1,000 sq ft or fraction thereof; Hotel/Motel $114 per 1,000 sq ft or fraction thereof. Fund Balance July 1, 2017 $1,005,487 $22,696,317 Activity in 2017-18 Revenues Fees Collected 35,996 869,530 Webster Wood Property Rental 5,850 Interest Earnings 20,959 280,715 Unrealized Gain/Loss Investments (19,595)(194,174) -------------------------------------------------------------------------------------------------------------------- Total Revenues $37,360 $961,921 Expenditures Salaries and Benefits (23,188) Contract Services (159,784) Liability Insurance (34) -------------------------------------------------------------------------------------------------------------------- Total Expenditures 0 (183,006) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $1,042,847 $23,475,232 Other Commitments/Appropriations Reserve for Reappropriations (310,477) Reserve for Encumbrances (34,023) Reserve for Notes Receivable include $375,000 for 3053 Emerson, $3,804,850 for Tree House Apts, $747,734 for Sheridan Apts., $2,285,026 for 801 Alma, $923,372 for Palo Alto Housing Project, $600,000 for 2811-2825 Alma St., $203,561 for Colorado Park Housing, $64,523 for El Dorado Palace, and $6,800,000 for Buena Vista Mobile Home Park.(15,804,066) -------------------------------------------------------------------------------------------------------------------- Net Funds Available $1,042,847 $7,326,666 Page 4 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Unexpended balance at next finding date (FY 2021-2022 Residential & Non Residential Housing Communities Facilities Libraries, FY2017-18- Residential Housing In-Lieu)$1,005,487 $0 USE OF FEES:USE OF FEES: No expenditure of funds have been made from this Fund in Fiscal Year 2018. Expenditures in Fiscal Year 2018 include $23.2K for Management Analyst salaries and benefit, $140K to Palo Alto Housing Corp for BMR admin fees and $20K for consultancy fees. The additonal $6.8M Reserve for Notes Receivable is loan to Santa Clara County Housing Authority (SCCHA) for the purchase of Buena Vista Mobile Home Park. Page 5 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 Charleston-Arastradero Corridor Citywide Transportation Pedestrian and Bicyclist Safety FUND Purpose and Authority Fees collected from new development and Transportation impact fees imposed for Collection re-development within the Charleston-on new development in all parts of the Arastradero Corridor to provide for pedest-City to fund congestion reduction rian and bicyclist safety improvements.projects. PAMC Ch. 16.60 PAMC Ch. 16.59 Amount of the Fee Residential: $1,306 per residential unit; Commercial: $0.38 per sq ft $3,575 per net new PM peak hour trip Fund Balance July 1, 2017 $8,862 $2,967,955 Activity in 2017-18 Revenues Fees Collected 11,614 238,810 Interest Earnings 241 48,479 Unrealized Gain/Loss (160)(43,412) -------------------------------------------------------------------------------------------------------------------- Total Revenues $11,695 $243,877 Expenditures Operating Transfer to Capital Projects Fund (12,000)(1,378,361) -------------------------------------------------------------------------------------------------------------------- Total Expenditures (12,000)(1,378,361) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $8,557 $1,833,471 -------------------------------------------------------------------------------------------------------------------- Net Funds Available $8,557 $1,833,471 Unexpended balance at next finding date (FY2017-18-Charleston- Arastradero, FY2017-18 Citywide Transportation)$0 $0 USE OF FEES:USE OF FEES: Budget transfer of $12K was made to Capital Project Fund in FY2018 for Charleston Arastradero Corridor Improvements Project (PE-13011) Budget transfers to Capital Project Fund in Fiscal Year 2018 in the amount of $1M for Churchill Avenue Enhanced Bikeway (PL- 14000) and $378K for Traffic Signal and Intelligent Transportation System (PL- 05030) Page 6 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 New Public Safety Facilities General Government Facilities FUND Purpose and Authority Fees imposed on residential and Fees imposed on residential and non- for Collection non-residential development to fund residential development to fund facilities police and fire facilities (including fire associated with municipal administration. apparatus and vehicles)PAMH Ch. 16.58 PAMC Ch. 16.58 Amount of the Fee Residential: Single family $1,036 per unit; Multi-family $829 per unit Residential: Single family $1,305 per unit; Multi-family $1,044 per unit Nonresidential: Commercial $579 per 1,000 sq ft. or fraction thereof; Industrial $193 per 1,000 sq. ft. or fraction thereof; Hotel/Motel $772 per 1,000 sq ft or fraction thereof. Nonresidential: Commercial $729 per 1,000 sq ft. or fraction thereof; Industrial $243 per 1,000 sq. ft. or fraction thereof; Hotel/Motel $974 per 1,000 sq ft or fraction thereof. Fund Balance July 1, 2017 $87,160 $109,820 Activity in 2017-18 Revenues Fees Collected 59,841 75,406 Interest Earnings 2,237 2,818 Unrealized Gain/Loss (2,459)(3,098) -------------------------------------------------------------------------------------------------------------------- Total Revenues $59,619 $75,126 -------------------------------------------------------------------------------------------------------------------- Total Expenditures 0 0 -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $146,779 $184,946 -------------------------------------------------------------------------------------------------------------------- Net Funds Available $146,779 $184,946 Unexpended balance at next finding date FY 2019-20 $1,596 $2,011 USE OF FEES:USE OF FEES: No expenditure of funds have been made from this Fund in Fiscal Year 2018. No expenditure of funds have been made from this Fund in Fiscal Year 2018. Page 7 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 (INFORMATION ONLY) Public Art Fund Parkland Dedication FUND Purpose and Authority for collection Fees imposed on new commercial develoments (including mixed use projects), including new construction, remodels, additions and reconstruction that (i) have a floor area of 10,000 sq. ft. or more, and (ii) have a construction value of $200,000, or more, exclusive of costs for architecture, design, engineering, and required studies; and all new residential projects of five or more units to fund public art for private developments. Fees on parkland dedication imposed on new residential and non-residential development. Govt Code Sec. 66477 (Quimby Act) PAMC Ch. 16.61 Amount of the Fee 1% of first $109.36 million construction valuation and .9% of construction valuation for valuation in excess of $109.36 million Single Family: $60,474 per unit; Multi- Family: $41,683 per unit. This applies only to residential projects that require a subdivision or pacel map. Land dedication is required for subdivisions resulting in more than 50 parcels. Parkland Dedication Fee - Land: Single Family: 531 sq. ft, per unit; Multi-Family: 366 sq. ft. per unit. When parkland dedication applies, park impact fees do not apply. Fund Balance July 1, 2017 $550,763 $3,331,902 Activity in 2017-18 Revenues Fees Collected 211,268 699,069 Interest Earnings 11,548 70,240 Unrealized Gain/Loss Investments (11,869)(66,902) Operating Transfer from General Fund 154,824 -------------------------------------------------------------------------------------------------------------------- Total Revenues $365,771 $702,407 Expenditures Salaries and benefits (186,214) Liability Insurance (1,127) Transfer to Capital Projects Fund (400,000) -------------------------------------------------------------------------------------------------------------------- Total Expenditures (187,341)(400,000) -------------------------------------------------------------------------------------------------------------------- Ending Balance June 30, 2018 $729,193 $3,634,309 -------------------------------------------------------------------------------------------------------------------- Net Funds Available $729,193 $3,634,309 This fund is not subject to AB1600 requirements and is listed only for information purposes. This fund is not subject to AB1600 requirements and is listed only for information purposes. Page 8 of 9 Attachment A City of Palo Alto Annual Report on Development Impact Fees for Period Ending June 30, 2018 (INFORMATION ONLY) FUND Water and Wastewater Collection Purpose and Authority Capacity fees charged to developers that for Collection are adding load to the water and sewer systems effective July 1, 2005. California Government Code Sect 66000 Amount of the Fee Water Capacity Fees: 5/8 in., 3/4 in E- Meter. $5,000, 1 in. E-Meter $9,400, 1 1/2 in. E-Meter $18,850, 2 in. E-Meter $56,250 , 4 in. Compound Meter by est. $125/FU (min. 5,000 FU) , 6 in. Compound Meter by est. $125/FU (min. 7,000 FU) Fire Service Capacity Fees: 2 in. $750, 4 in. $9,000, 6 in. $22,530, 8 in. $43,080, 10in. $69,510 Sewer Capacity Charges: 4 in. connection with 5/8 in Water Meter (W M) $5,250, 4 in connection. with 1-in WM $15,750, 4 or 6 in. connection with 1-1/2 in WM $31,668, 6 in. connection with 2 in. WM $94,500, 6 in. and larger connection with 4 in. or larger W M by est. at $210/FU Activity in 2017-18 Capacity Fees Collected Water $531,348 Wastewater Collection 328,545 Total USE OF FEES: The fees are used exclusively for water and sewer system improvements Page 9 of 9