CC 05-02-2023 Item No. 8_Written CommunicationsFrom:Lisa Warren
To:City Council; City Clerk
Cc:Chad Mosley
Subject:Questions related to May 2, 2023 City Council Agenda Item #8 -Use of Art In-Lieu Fees for Jollyman CIP
Date:Monday, May 1, 2023 12:19:39 AM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Mayor Wei, Vice Mayor Mohan, Council Members Chao, Fruen and Moore,
Please consider the following questions as they relate to Item #8 (consent
calendar) for the May 2, 2023 City Council Regular Meeting. I would
appreciate getting some responses prior to the meeting. I also hope that
one, or more, of you will pull this item from consent, for discussion and
public comment. It is unclear to me why it is currently listed as a consent
item.
Thank you,
Lisa Warren
* Why is municipal code CMC Section 19.148 not mentioned in agenda item #8 staff report?
* Why has there not been an effort, before now, to develop a policy on how Art-In-Lieu
dollars is to be used ?
* 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 wasn't a policy put in place when 'in-lieu' fees became an alternative for private projects
? Or at the very least, once this large amount of 'in-lieu' $ 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 ?
* Is it likely that the city will again have a sizable amount of funds in this art-in-lieu bucket ?
* Is it reasonable to deplete the bucket without a true policy/procedure adopted ? How would
the city judge/determine a project's successes and lessons learned ?
* Why does the Staff report refer to the suggested five bulleted AIPG elements as 'art', when
the municipal code explicitly states that they are not 'art' ? See CMC 19.148
* What is the breakdown of bid costs for each of the five elements being considered ?
* Fiscal Impact Chart pg 3 of Staff report - "Fully funded' so why allocate $338K to include
something not in approved design ?
* 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 ?
*The city has two other large park projects in the works. Memorial Park and 'Lawrence Mitty'
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 'art' 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 city's
consultants in reference to the use of these in-lieu fees for sound wall 'art', enhanced entrance
'art', and cultural 'art'. The suggestions could satisfy the municipal code definition of approved
art.
* Why is the total amount of $338K being proposed for only one location in the city, as
opposed to 'sharing the wealth' ? 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.
* How is it fiscally responsible to spend an additional $100K(+) on 'contract amendments'
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 ?
* 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 ?
* 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).
From:Peggy Griffin
To:City Council
Cc:City Clerk; City of Cupertino Fine Arts Commission
Subject:2023-05-02 City Council Mtg-ITEM8 Art In-Lieu money - MORE QUESTIONS
Date:Sunday, April 30, 2023 10:32:50 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
PLEASE INCLUDE THE FOLLOWING EMAIL IN WRITTEN COMMENTS FOR THE
2023-05-02 City Council Meeting, Agenda Item #8, Using/Abusing Art In-Lieu Fees for Jollyman All-
Inclusive Playground
Dear City Council,
There are several additional questions that need to be asked/answered regarding this agenda item
#8.
Q3: 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
Q4A: Based on the above schedule, is Task3 Concept Design completed? If so, where is it posted?
Q4B: Based on the above schedule, is Task 4 Construction Documents completed? If so, have they
gone out to bid? If not, why not?
Q5: 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! Q4: How can you go against a clear definition in our municipal code?
Sincerely,
Peggy Griffin
From:Peggy Griffin
To:City Council
Cc:City Clerk; City of Cupertino Parks and Recreation Commission
Subject:2023-05-02 City Council Mtg-ITEM8 - All-Inclusive Playground-Documents omitted and questions!
Date:Sunday, April 30, 2023 9:09:07 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
PLEASE INCLUDE THE FOLLOWING EMAIL IN WRITTEN COMMENTS FOR THE
2023-05-02 City Council Meeting, Agenda Item #8, Using/Abusing Art In-Lieu Fees for Jollyman All-
Inclusive Playground
Dear City Council,
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!
Q1: Where are these numbers coming from to get to $490,000?
Q2: Based on Agreement 21-272, Amendment1, 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?
I hope these questions are answered before any decision is made.
Sincerely,
Peggy Griffin
Agreement 21-272 MIG, All-Inclusive Playground at Jollyman Park
Max Compensation not to exceed $389,511.00
Paid in one lump sum, all inclusive, based on Exhibit C.
Based on Jollyman Park Aug. 2, 2021 RFQ and Addenda
Signed Dec. 9, 2021 by Acting City Manager Dianne Thompson
PAGE 20 of 37 PROJECT SCOPE ASSUMPTIONS:
https://records.cupertino.org/WebLink/DocView.aspx?
id=942290&dbid=0&repo=CityofCupertino&searchid=3e982790-8ef9-47f4-9cf8-0b0aa8a77d89
Agreement 21-272 MIG, Amendment1 – All-Inclusive Playground at Jollyman Park
Changed to actual costs
Not to exceed $401,511.00; no payment in excess of contract price.
Additional services not to exceed $12,000.00
Signed Oct. 13, 2022 by City Manager Wu
PAGE 38 of 54 – EXHIBIT B: Schedule
https://records.cupertino.org/WebLink/DocView.aspx?
id=977582&dbid=0&repo=CityofCupertino&searchid=3e982790-8ef9-47f4-9cf8-0b0aa8a77d89
2018-10-10 Project Application with plans
This is what the city proposed to win the grant.
https://www.cupertino.org/home/showpublisheddocument/24281/636928460339570000
2018-10-02 CC Item #14 All-Inclusive Playground – Conceptual Plans
The last presentation I can find. It seems like the Staff Report should have provided:
The current plan for the project.
The status of the current schedule – where they are in that schedule.
https://records.cupertino.org/WebLink/DocView.aspx?
id=702795&page=16&dbid=0&repo=CityofCupertino&searchid=9021f439-e774-451c-bf6a-e491b1c6aee6
From:Peggy Griffin
To:City Council; Evelyn Moran; Chad Mosley
Cc:City of Cupertino Fine Arts Commission; City Clerk
Subject:2023-05-02 City Council Mtg ITEM8 - Violation of Muni Code using Art In-Lieu fee!
Date:Sunday, April 30, 2023 4:50:00 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
PLEASE INCLUDE THIS EMAIL AND ALL ATTACHMENTS IN WRITTEN COMMUNICATION FOR THE
May 2, 2023 City Council Meeting, Agenda Item 8 – Jollyman Park All-Inclusive Playground.
Dear City Council and Staff,
I am appalled at this item even appearing on the City Council agenda for several reasons:
1. The city is having a budget crisis and staff is proposing to increase an already completely funded
project by $338,146.96 that is on target to meet schedules!
2. Due to this proposed change, staff is increasing the MIG design contract by $100,489. In the
report it’s called a “contingency” but really it’s increasing the contract to make this change!
3. The Staff Report says “no policy has been developed, and the CMC does not provide guidance”
yet
a. We have an entire Muni Code Section 19.148 REQUIRED ARTWORK IN PUBLIC AND
PRIVATE DEVELOPMENTS that addresses this topic!
b. We also have CC Resolution No. 05-040 that has specific documents and agreements that
artists must sign before their artwork can be displayed or accepted!
4. It’s in violation of our Municipal Code:
a. Muni Code 19.148.040(C) specifically states playground equipment is INELIGIBLE! (See
below)
5. It does not follow the intent of the Public Artwork requirement in our Muni Code.
a. Muni Code Section 19.148 and the City Council Resolution No. 05-040, which the code
refers to, is geared towards promoting individual artists! There are waiving of copyrights.
There is the requirement of the artwork being an unique, one-of-kind, signed artwork.
Many places it talks about the artwork being visible from the street as motorists drive by.
b. If I were a developer being forced to pay an Art In-Lieu fee I would be very upset at the mis-
use of the fees I was forced to pay!
6. This is a money grab!
PLEASE DO NOT ALLOW THIS! PLEASE uphold the letter and the intent of this law. Don’t play games
with public money.
Sincerely,
Peggy Griffin
VIOLATION OF MUNICIPAL CODE SECTIONS