CC 05-02-2023 Item No. 8. Art In-Lieu Fees for Jollyman All-Inclusive Playground_Supplemental Report
CITY COUNCIL STAFF REPORT
SUPPLEMENTAL 1
Meeting: May 2, 2023
Agenda Item # 8
Subject
Consider approving the use of funds from the Art In‐Lieu Fees for the Jollyman All‐
Inclusive Playground (AIPG) Capital Improvement Programs (CIP) project.
Recommended Action
1. Approve the use of appropriations of $338,146.86 from the Art In‐Lieu Fee in the
General Fund, for artwork within the Jollyman AIPG CIP project;
2. Adopt Resolution No. 23‐XXX (Attachment A) approving budget modification
no. 2223‐274 increasing appropriations and revenue by $338,146.86 in the Capital
Improvement Program Capital Projects Fund and increasing apportions in the
General Fund to transfer out restricted funds for the Jollyman All‐Inclusive
Playground Project (budget unit 420‐99‐051, PVAR 007); and
3. Authorize the City Manager to execute any necessary contract amendments for a
contingency of $100,489 for a total contract amount of $490,000 on the
professional design services agreement between the City of Cupertino and MIG,
Inc. for the Jollyman AIPG Project (Project 2019‐15).
Supplemental information:
Recommended Action #3 in the staff report has been modified to delete the
request for additional contingency (see Attachment C).
Staff’s responses to questions received from Councilmembers are shown in
italics.
Q1: Councilmember question (Chao)
Where are these numbers coming from to get to $490,000? Below are the most recent
agreements with MIG regarding the All‐Inclusive Playground at Jollyman Park and
the most recent plans I could find. It would have been nice to have had this included
as attachments to Agenda Item #8. The reference in the Staff Report to “Project 19‐
015” was no help in locating this agreement and the subsequent amendment or the
plans! I had to brute force go through every year to find these so I’m hoping to save
y’all time if you are interested in reviewing them.
IMPORTANT…Please note that in the Staff Report Recommended Action #3
“Authorize the City Manager to execute contract amendments for contingency of
$100,489 for a total contract amount of $490,000” …I don’t see how they got that
number. If you look at Amendment #1, I took the max allowed amount to $401,511.00.
If you add $100,489 to that amount it takes it to $502,000!
Staff response:
At the December 7, 2021 City Council meeting (Item #21), the Design Professional Services
Agreement with MIG was approved in the amount of $389,511, and City Council approved an
additional $77,900 for contingency for design services for a total budget for design services of
$467,411. Amendment 1 to the design professional services contract utilized $12,000 of the
contingency to add design of the Adult‐Assistive Bathroom Facility to the project scope. This
leaves $65,900 contingency for the MIG contract.
Upon review, the Recommended Action #3 in the staff report has been modified to delete the
request for additional contingency (see Attachment C).
Q2: Councilmember question (Chao)
Based on Agreement 21‐272, Amendment 1, it has a schedule on page 38 of 54 (see in
RED below).
Q2A: Where is MIG on this project now?
Q2B: Are they within their budget? If not, how much are they over now?
Staff response: MIG has completed the conceptual design and 50% construction documents.
MIG has invoiced $212,600 to date and is within budget.
Q3: Councilmember question (Moore)
What is the price breakdown of the individual components of this $338,146.86? This is
a very exact number so please show each line item and how it totals to this amount.
Based on Agreement 21‐272 MIG, Amendment1 – All‐Inclusive Playground at
Jollyman Park, Page 38 of 54 below:
Staff response:
Each item is listed below with estimated costs:
Create a Presentation and attend one Art Commission
Meeting
$3,550
Kaleidoscope Installation at Slide Hill $83,000
Colorful Peeking Windows $18,500
Viewing Binoculars $26,200
Musical Bench $63,000
Bird Scavenger Hunt $23,000 ‐ $43,000
Multilingual Tactile Sign $46,000
Stair Mural $8,000
Contingency $50,500 ‐ $54,500
Total w/ Contingency (*any unused funds get transferred
back to the current account)
$315,200 ‐ $339,200
Q4: Councilmember question (Moore)
A) Based on the above schedule, is Task3 Concept Design completed? If so, where is
it posted?
B) Based on the above schedule, is Task 4 Construction Documents completed? If so,
have they gone out to bid? If not, why not?
Staff response:
The conceptual design is posted on the project websites:”
https://www.cupertino.org/our‐city/departments/public‐works/capital‐
improvement‐program‐projects/all‐inclusive‐playground‐at‐jollyman‐park
https://engagecupertino.org/jollyman?tool=forum_topic#tool_tab
The project has not been released for bid as it is still in the design process. The outreach and
conceptual phases were completed in November 2022. The projected date for release of the bid
documents is August 2023.
Q5: Councilmember question (Moore)
The Staff Report says that there are no guidelines BUT our municipal code is VERY
CLEAR on what is considered “ArtWork in Public and Private Developments”. It
defines exactly what it can and cannot be! How can you go against a clear definition
in our municipal code?
Staff response:
The art features for Jollyman All‐Inclusive Playground will be unique features
commissioned by artists or custom designed and fabricated and will not be mass‐
produced from a standard design.
Q6: Councilmember question (Moore)
Is the Art in‐Lieu of funding in a Special Revenue Fund? I do not see one named
something which would account for this designated funding.
Staff response: Art in‐Lieu funding is a restricted fund balance in the General Fund.
The account was created this year, so it wasnʹt shown separately in last yearʹs budget.
Q7: Councilmember question (Moore)
Why is municipal code CMC Section 19.148 not mentioned in agenda item #8 staff
report?
Staff response: The staff report was focused on the use of art in‐liulieu fees for
purposes consistent with the Municipal Code.
Q8: Councilmember question (Moore)
Why has there not been an effort, before now, to develop a policy on how Art‐In‐Lieu
dollars is to be used?
Staff response:
Due to infrequent payment of art‐in‐lieu fees, a policy for use of art in‐lieu fees was not
established as a priority. Staffing resources have been focused on other City priorities.
Q9: Councilmember question (Moore)
During the November 22, 2021, commission meeting, there were questions asked of
Staff about how the large in‐lieu fee would be handled. The same questions have
been asked since that time. Why wasnʹt a policy put in place when ʹin‐lieuʹ fees
became an alternative for private projects? Or at the very least, once this large amount
of ʹin‐lieuʹ $ was approved by Arts and Culture Commission, why was a policy not
discussed and drafted for presentation to Arts and Culture Comm and City Council?
Staff response:
Due to infrequent payment of art‐in‐lieu fees, a policy for use of art in‐lieu fees was not
established as a priority. Staffing resources have been focused on other City priorities.
Q10: Councilmember question (Moore)
Is it likely that the city will again have a sizable amount of funds in this art‐in‐lieu
bucket?
Staff response: Unknown, but the municipal code discourages the payment of art in‐
lieu fees.
Q11: Councilmember question (Moore)
Is it reasonable to deplete the bucket without a true policy/procedure adopted? How
would the city judge/determine a projectʹs successes and lessons learned?
Staff response: Staff recommendation is based on the belief that including public art
features within this unique project are an appropriate use of the art in‐lieu funds. City
Council is being presented with this opportunity for consideration.
Successes and/or failures can be measured against the goals and policies of the General
Plan, or other measures determined by the Council or Commissions.
Q12: Councilmember question (Moore)
Why does the Staff report refer to the suggested five bulleted AIPG elements as ʹartʹ,
when the municipal code explicitly states that they are not ʹartʹ? See CMC 19.148?
Staff response:
All the proposed art elements would be artist commissioned and/or custom designed and
fabricated. None of the proposed elements would be mass‐produced from a standard design.
The assumptions the question makes about the requirements of the Municipal Code and/or the
nature of the proposed installation are incorrect.
Q13: Councilmember question (Moore)
What is the breakdown of bid costs for each of the five elements being considered?
Staff response:
This project has not been released for bid to date. The items listed below are estimated
design and construction costs.
Create a Presentation and attend one Art Commission
Meeting
$3,550
Kaleidoscope Installation at Slide Hill $83,000
Colorful Peeking Windows $18,500
Viewing Binoculars $26,200
Musical Bench $63,000
Bird Scavenger Hunt $23,000 ‐ $43,000
Multilingual Tactile Sign $46,000
Stair Mural $8,000
Contingency $50,500 ‐ $54,500
Total w/ Contingency (*any unused funds get transferred
back to the current account)
$315,200 ‐ $339,200
Q14: Councilmember question (Moore)
Fiscal Impact Chart p. 3 of Staff report ‐ ʺFully fundedʹ so why allocate $338K to
include something not in approved design?
Staff response:
While developing the project design, the project team identified and deemed the
opportunity to utilize the art in‐lieu fees for this project as appropriate to present to
the Council for consideration. To include the proposed art elements within the project
design, the additional funding allocation is necessary to facilitate the design,
fabrication, and installation.
Q15: Councilmember question (Moore)
Do the County and State funds totaling $2,448,201 have required project milestones
and completion date that, if not met, would result in forfeiture of grant funds? If so,
what are those dates and is the project on track to meet deadline?
Staff response:
Yes, both county and state funding have target completion dates. Santa Clara County All‐
Inclusive Playground Grant is June 2024. State of California Specified Grant is June 2026.
The County grant is the critical path.
Q16: Councilmember question (Moore)
The city has two other large park projects in the works. Memorial Park and ʹLawrence
Mittyʹ Park have both taken many years to get where they are at this point. Why
would they not be considered as projects that would benefit from all, or a portion of,
the $338K? With ʹartʹ that would truly meet the criteria of the municipal code?
During the last 12 months or more, there have been public comments made to the
cityʹs consultants in reference to the use of these in‐lieu fees for sound wall ʹartʹ,
enhanced entrance ʹartʹ, and cultural ʹartʹ. The suggestions could satisfy the municipal
code definition of approved art.
Staff response:
At this time, no other projects are currently aligned for the use of these funds. The public
requested more art features, including sensory art & color, during the outreach phase.
Q17: Councilmember question (Moore)
Why is the total amount of $338K being proposed for only one location in the city, as
opposed to ʹsharing the wealthʹ? The $338K was calculated as 1.25% of the
construction valuation of one single project (Public Storage). That amount of $338K is
over 16% the city funded amount of $2,084,034. And for something that will go above
and beyond the current design that took a very long time to arrive at.
Staff response:
The new playground was designed to meet the current budget. The addition of custom art
features could not be accommodated with the existing budget. The proposed art features add a
layer of inclusivity, as they go beyond providing just physical play features by offering
intergenerational appeal and more sensory opportunities.
Q18: Councilmember question (Moore)
How is it fiscally responsible to spend an additional $100K(+) on ʹcontract
amendmentsʹ when the in‐lieu funds could be applied to project(s) not already fully
designed or fully funded?
Where is that $100+K cost shown as being added to the existing budget for the AIPG
project?
Staff response:
The art in‐lieu funds are restricted to uses of public art and cannot be used for other elements
of a project, therefore the funds cannot be used to solve funding gaps for other projects.
The funding will be reflected in the project should it be approved by Council.
Q19: Councilmember question (Moore)
Could the Torre Ave Annex project benefit from the $338K bucket with art that
fulfills the requirements of the municipal code? Was that project/site considered?
Were any other projects considered?
Staff response:
Opportunities for art at other City facilities have not been evaluated.
Q20: Councilmember question (Moore)
Has the Budget for the Jollyman AIPG increased from the stated $4,532,235? This is
stated to be a fully funded project with some dollars to spare ($4,557,235 is total of the
existing 4 Funding Sources. This is $25,000 over the Budget total).
Staff response:
The project budget has not increased. Staff requests that the Council increase the funding for
the Jollyman AIPG project by $338,146.86 for art‐related expenses. The new playground was
designed to meet the current budget. The addition of custom art features could not be
accommodated with the existing budget. The proposed art features add a layer of inclusivity,
as they go beyond providing just physical play features by offering intergenerational appeal
and more sensory opportunities.
Attachments Provided with Original Staff Report:
A. Draft Resolution
B. Art Concept Options
Attachments Provided with Supplemental 1:
C. Redlined Staff Report with Change