19-154 Cupertino Union School District, Maintenance and Improvement of Certain Open Space Areas Within Certain School SitesAGREEMENT BETWEEN CITY OF CUPERTINO, CUPERTINO UNION SCHOOL
DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF CERTAIN
OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES
THIS AGREEMENT, made and entered into by and between CITY OF CUPERTINO, a
municipal corporation of the State of California, herein called "CITY" and the CUPERTINO
UNION SCHOOL DISTRICT OF SANTA CLARA COUNTY herein called"DISTRICT";
RECITALS:
WHEREAS, section 10900 et seq. of the Education Code authorizes cities and school
districts to organize, promote and conduct programs of community recreation for the promotion
and attainment of general educational and recreational objectives, and to construct, maintain and
operate recreation centers, including playgrounds and outdoor playing FIELDS; and
WHEREAS, section 10905 of the California Education Code authorizes public authorities
to enter into agreements with each other for the maintenance of recreation centers; and
WHEREAS, section 10910 of the Education Code provides that the governing body of any
school district may use or grant the use of grounds of the school district to any other public
authority for the purposes of such Act, whenever such use does not interfere with schools uses;
and
WHEREAS,the Parties have jointly kept open for school student and general public use in
the City certain open space areas at the elementary and middle schools, and they desire to continue
arrangements for their common use; and
WHEREAS, it is the policy of CITY and DISTRICT to maintain recreational facilities
within their respective jurisdictions in order to maximize recreational opportunities for both the
students of DISTRICT and the residents.of CITY, and in order to reduce capital and operational
costs to both CITY and DISTRICT; and
AGREEMENT BmVEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROWMEIvf NT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
Page 1 of 18
WHEREAS,CITY and DISTRICT desire to provide for continued maintenance of nine(9)
open space areas of certain existing school sites of DISTRICT on a long-term basis; and
WHEREAS,the Parties are interested in continuing a long-term,joint funding arrangement
under which the CITY will continue to undertake the maintenance of certain open space areas at
eight (8) elementary schools and one (1) middle school locations to enhance their usability by
school students and the general public,
WHEREAS, it is the intent of CITY and DISTRICT that the land which is the subject of
this Agreement continue to be used or open space and recreational purposes, be improved to
enhance such use, without interfering with the instructional programs at the sites, as provided
herein;
NOW, THEREFORE, in consideration of the covenants and conditions hereinafter set
forth, and pursuant to the provisions of the Education Code hereinafter referred to, it is agreed as
follows:
1. DEFINITIONS
The terms used in this Agreement will have the meanings set forth below, unless context clearly
indicates otherwise.
a. `BUSINESS MANAGER"means the Chief Business Official of the DISTRICT, including
any authorized representative.
b. "CAPITAL IMPROVEMENT"(collectively,the"CAPITAL]IMPROVEMENTS")means
any improvement which has a stand alone cost exceeding $20,000, or which has a useful
life of, or whose useful life can be extended, at least five to seven years, or which has a
useful life of at least five to seven years after it is capable of providing a functional use.
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE,AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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c. "CAPITAL IMPROVEMENT ZONE" (collectively, the "CAPITAL IMPROVEMENT
ZONES")means areas of the open space as noted in Attachment 1 that the DISTRICT may
construct CAPITAL IMPROVEMENTS without the CITY's approval. Attachment 1 and
its Exhibits are incorporated by reference herein.
d. "CITY"means the City of Cupertino
e. "CITY MANAGER"means the City Manager of the CITY, including any authorized
representative.
f. "DIRECTOR"means the Director of Public Works of the CITY, including any
authorized representative or designee.
g. "RECREATION DIRECTOR"means the Director of Parks &Recreation of the CITY,
including any authorized representative or designee.
h. "DISTRICT"means the Board of Education.
i. "FIELD"(collectively,the"FIELDS")means any one of the athletic field areas referred to
in the description of"OPEN SPACE AREAS".
j. "IMPROVEMENT"(collectively, the"IMPROVEMENTS")means any physical addition,
alteration, or betterment of the OPEN SPACE AREAS.
k. "LAW" (collectively, the "LAWS") means any code, statute, constitution, ordinance,
resolution, regulation, rule,judicial decision, administrative order, or other requirement of
and municipal, county, state, federal, or other governmental agency or authority having
jurisdiction over the parties or the Schools, in effect at the time of execution of the
Agreement or at any time during the term hereof, including without limitation, any
regulation or order of an official entity or body.
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTAIO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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1. "MAINTENANCE" means the care and servicing on an ongoing and repeating basis by
personnel for the purpose of maintaining OPEN SPACE AREAS in proper condition,proper
working order, sound upkeep, safe condition, in good repair, by providing for systematic
inspection, detection, and correction of incipient failures either before they occur or before
they develop in to major defects. It includes the inspection, replenishment, preservation,
adjustments, and replacement of unserviceable parts and components, including, but not
limited to irrigation and drainage systems. It includes mowing, edging and other hardscape
care similar to those conducted at CITY park locations.
m. "OPEN SPACE AREAS" means the open space areas including athletic FIELDS and
related amenities,the dimensions of which for reference purposes are outlined below limits
of which are shown in Attachment 1. Site plans included in this agreement are presented as
Exhibits A through I of Attachment 1. Each Exhibit consists of site diagrams and site
profiles of real property encompassing an OPEN SPACE AREA within real property
consisting of a school site of DISTRICT. For purposes of this Agreement, whenever
reference is made to school OPEN SPACE AREA, such reference shall be construed to
pertain to the areas described below:
OPEN SPACE AREAS MAINTAINED BY CITY AREA EXHIBIT PROFILE
Collins Elementary School open s ace site 2.51 A A.1
Eaton Elementary School open s ace site 4.58 B B.1
Faria Elementary School open space site 4.18 C C.1
Garden Gate Elementary School open space site 2.97 D D.1
Lincoln Elementary School open space site 3.10 E E.1
Regnart Elementary School opens ace site 4.12 F F.1
Stevens Creek Elementary School open s ace site 3.14 G G.I
Hyde Middle School open space site 7.87 H H.1
Kennedy Middle School open s ace site 13.35 I I.1
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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n. "PROVISION"(collectively,the"PROVISIONS")means any agreement,clause, condition,
covenant, qualification, recital, restriction, reservation, term, or other stipulation in this
Agreement that defines or otherwise controls, establishes, or limits the performance
required or permitted by any party to this Agreement. All PROVISIONS, whether
covenants or conditions, which are applicable to the DISTRICT, will be deemed to be both
the covenants and conditions.
o. "SITE PLAN"designates the limit of the OPEN SPACE AREAS at each and every location
and as shown in Attachment 1. Note that Exhibits A through Exhibit I reflect current
conditions with no changes proposed by the City.
p. "SCHOOL" (collectively, the "SCHOOLS") means any one of the following elementary
or middle schools:Collins Elementary School,Eaton Elementary School,Faria Elementary
School,Garden Gate Elementary School,Lincoln Elementary School,Regnart Elementary
School, Stevens Creek Elementary School, Hyde Middle School, and Kennedy Middle
School.
q. "SUPERINTENDENT"means the Superintendent of schools for the DISTRICT,including
any authorized representative or designee.
r. "2019 CLEAN WATER AND STORM PROTECTION FEE"means the Clean Water and
Storm Protection fee established in 2019 by Ordinance 19-2183.
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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2. CITY MAINTENANCE OBLIGATION FOR SCHOOL OPEN SPACE AREAS
a. Commencing on January 1,2017,the CITY,at its cost and expense,will mow,trim,fertilize
and perform other MAINTENANCE work of a general nature at the OPEN SPACE
AREAS, in accordance with the CITY's quality standards for parks and at a level that is
equivalent with other park locations maintained by the CITY. The CITY will directly pay
for the cost of water associated with OPEN SPACE AREAS maintained by the City and
will be reimbursed for the cost of water per Paragraph 6 "Consideration Between the
Parties".Any or all services required to maintain and renovate the OPEN SPACE AREAS
maintained by the City may be performed by licensed contractors hired and managed by
the CITY.
b. In performing MAINTENANCE at designated OPEN SPACE AREAS as noted in
Attachment 1, the CITY will use its best efforts to prevent interference with the
DISTRICT's use of the OPEN SPACE AREAS during regular school hours and priority
shall be given to CITY personnel and equipment between the hours of 6:00 a.m. to noon or
as needed with notification to the DISTRICT. CITY may access OPEN SPACE AREAS at
any time for routine and emergency MAINTENANCE purposes and will provide the
DISTRICT with a mowing schedule for OPEN SPACE AREAS annually. For the purpose
of providing MAINTENANCE, up to four times during the school year, with three (3)
weeks advance notice,the CITY may require DISTRICT to curtail all use of those areas of
the OPEN SPACE AREAS needed for MAINTENANCE. The CITY will do so only if
necessary, and for a maximum of one day at a time.
c. All gates providing access to all OPEN SPACE AREAS shall be locked with both CITY
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING To MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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and DISTRICT locks in a manner that provides dual access. In the case where only a single
lock can be used, the DISTRICT shall supply the lock and provide the CITY with two (2)
keys for each lock used.
d. For the purpose of preventing or abating hazardous conditions, the CITY may require that
DISTRICT curtail use of OPEN SPACE AREAS at OPEN SPACE AREAS maintained by
the City as noted in Attachment I at any time and without prior notification, until the
hazardous conditions are remedied. In such cases the CITY will minimize the DISTRICT's
lack of access to the OPEN SPACE AREA. FIELDS may be closed to public use by the
CITY from December through February;however DISTRICT may continue to use FIELDS
at their discretion and only if conditions are safe and use will not damage FIELD to the
extent that non-routine MAINTENANCE is required to repair damage or unless otherwise
notified by the CITY. shall not use FIELDS maintained by the CITY if the CITY has
notified the DISTRICT specifically to not use the FIELDS and the FIELDS and are fenced
off and signed as closed.
e. The CITY may apply pesticides to OPEN SPACE AREAS maintained by the City only on
days when school is not in session and students will not be using the OPEN SPACE
AREAS. A minimum of one (1)week's advance notification will be provided by the CITY
to the DISTRICT for every occasion a pesticide is applied to any OPEN SPACE AREA.
CITY shall post notification signs for outdoor pesticide applications as required by State
law.
f. CITY will provide advance notification when a contractor managed by the CITY will access
OPEN SPACE AREAS maintained by the City. Contractor personnel must be in their
company's standard uniform at all times they are maintaining OPEN SPACE AREAS and
AGREEMENT BEnVEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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directly supervised by CITY personnel.
g. Any and all concerns or issues of the DISTRICT governing the MAINTENANCE or use of
OPEN SPACE AREAS maintained by the CITY shall be communicated within twenty four
24) hours to the CITY by the Superintendent or Designee and shall be directed to the
DIRECTOR.
h. Prior to the beginning of the academic school year, the DIRECTOR and
SUPERINTENDENT or Designee will meet to discuss the use and MAINTENANCE of all
OPEN SPACE AREAS.
i. The MAINTENANCE on sites applies only to those OPEN SPACE AREAS primarily
designed, intended and used for recreational activity, including,but not limited to athletic
FIELDS, baseball diamonds, soccer FIELDS and/or approved equipment (including but
not limited to storage of City permitted equipment).
j. The MAINTENANCE obligations undertaken by CITY only include the areas within the
boundaries of the Attachment 1, Exhibit A through Exhibit I site diagrams. Such
MAINTENANCE shall be at the cost and expense of CITY.
3. WATER CONSERVATION
The CITY may implement and impose all water conservations measures at the OPEN
SPACE AREAS noted in Allacllrrienl 1, Exhibit A through Exhibit I as set furlh in the
Cupertino Municipal Code Section 15.32.050.
4. CAPITAL IMPROVEMENTS
a. The DISTRICT may, at its sole cost and expense, make temporary or permanent
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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capital improvements in those areas of the Facilities identified as Capital Improvement
Zones on the Facilities Site Plans without approval by CITY. DISTRICT shall provide
a minimum of six (6) months' notice to CITY of all capital improvements. The
DISTRICT, at its sole cost and expense, will maintain and repair any capital
improvements.
b. The DISTRICT may, at its sole cost and expense, make temporary or permanent
capital improvements in those areas of the Facilities not identified as Capital
Improvement Zones on the Facilities Site Plans only with approval by CITY. DISTRICT
shall provide a minimum of six (6)months' notice to CITY of all capital improvements.
The DISTRICT, at its sole cost and expense, will maintain and repair any capital
improvements.
c. The CITY may, at its sole cost and expense, make temporary or permanent capital
improvements in all areas of the Facilities only with approval by Council and Board
of Education. CITY shall provide a minimum of six (6) months' notice to DISTRICT
of all capital improvements. The CITY, at its sole cost and expense, will maintain and
repair any capital improvements.
d. If either party during the term of this Agreement seeks the installation of substantial
IMPROVEMENTS not included in SITE PLANS (Attachment 1) to one or more OPEN
SPACE AREAS in this Agreement, this Agreement shall be amended. The cost and
expense of preparation of such amendment shall be borne by the party proposing it,or shall
be borne jointly if CITY and DISTRICT jointly proposed it. No such amendment shall be
effective unless and until it shall have been approved by the governing boards of CITY and
DISTRICT.
AGREEMENT BETWEEN CITY OF CUPCRTMO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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5. USAGE OF FACILITIES
a. The DISTRICT will have use priority of all OPEN SPACE AREAS between the hours of
7:00am and 4:00pm on scheduled school days, through the regular academic school year
with the exception of Hyde Middle School and Kennedy Middle School, where the
DISTRICT shall have use priority from 7:00 am to 5:00 pm Mondays through Thursdays
and from 7:00 am to 4:00 pin Fridays.. When proper notice is provided by the
DISTRICT, the CITY will make every attempt to accommodate DISTRICT activities
taking place after 4:OOpm; however if the CITY has a previously scheduled permit
in conflict of the DISTRICT request, the CITY permit will have priority. Approved
DISTRICT activities that extend beyond 4:00pm shall be permitted through the
CITY at no cost to the DISTRICT. For these properly scheduled events,the
DISTRICT has sole responsibility to restrict public access to any OPEN SPACE AREAS
during those times. A Facility Use Permit requesting interscholastic events taking place
after 4:00pm on all OPEN SPACE AREA(s) including dates, times and duration are to
be submitted by the DISTRICT to the CITY at least one month prior to the beginning of
each school year and at least one month prior to any change or additional request being
anticipated. Any changes or additional requests will be submitted in the form of a new
Facility Use Permit.The CITY shall provide the DISTRICT a list of approved permits for
OPEN SPACE AREAS. The DISTRICT and CITY shall meet quarterly to review all
approved permits for OPEN SPACE AREAS and any DISTRICT after hour usage
requests.
b. The CITY will have use priority of the elementary and middle school facilities at all OPEN
SPACE AREAS after 4:00pm on scheduled school days and at all other times, including
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CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
Page 10 of 1S
this use priority schedule may be agreed upon, in writing,by RECREATION DIRECTOR
and BUSINESS MANAGER. The CITY will cooperate with the DISTRICT in a manner
which will afford the DISTRICT an adequate opportunity to use the OPEN SPACE AREAS
for its activities,programs and other needs.
c. The CITY, at its sole cost and expense, will administer public exclusive use permits of all
OPEN SPACE AREAS in accordance with the CITY's permit policies. All permit holders
will be notified of DISTRICT rules concerning use of any OPEN SPACE AREAS. The
CITY will solely be responsible for determining the parameters of the use priority system
and schedule, as well as permit or user fees to be charged to members of the general public,
including individuals and organized groups, for the use of any OPEN SPACE AREAS
during such times as the CITY may exercise use priority. Such fees will conform to the
Laws governing school grounds and those which are applicable to the CITY's property.The
CITY will retain all fees collected for the use of any OPEN SPACE AREAS covered by
the Agreement. Any person or group permitting OPEN SPACE AREAS shall have equal
access to parking on school property on a first-come, first-served basis and according to
any use restrictions posted by DISTRICT.
d. The CITY shall monitor and enforce the use of any OPEN SPACE AREAS to determine
whether such uses comply with conditions of the permits and DISTRICT rules concerning
use of any OPEN SPACE AREAS. If such use of any OPEN SPACE AREA does not
comply with the conditions of the particular permit or other applicable LAWS, the CITY
shall terminate the further use of an OPEN SPACE AREA by the user.
e. Any person or group who leases a building of the DISTRICT may use any OPEN SPACE
AREAS, including FIELDS, on a casual or drop-in basis and shall share them with
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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members of the public also using them on a casual or drop-in basis. Any person or group
will be required to secure a permit for an OPEN SPACE AREAS from the CITY if they
desire to have exclusive use and shall respect the exclusive use of any OPEN SPACE
AREAS by any person or group that has obtained a permit from the CITY for such use.
f. CITY and DISTRICT may modify usage upon mutual written agreement of the
RECREATION DIRECTOR and the BUSINESS MANAGER or their designees.
6. CONSIDERATION BETWEEN THE PARTIES
a. The consideration from CITY to DISTRICT under this Agreement consists of said
undertaking by CITY of obligations to maintain OPEN SPACE AREAS owned by the
DISTRICT and as further detailed in Attachment 1, Exhibit A through Exhibit I.
b. The consideration from DISTRICT to CITY under this Agreement consists of the
Authorization by DISTRICT of CITY to utilize all OPEN SPACE AREAS for recreational
purposes.
c. The DISTRICT will reimburse the CITY annually in March of each year for the prior
calendar year for water cost according to the following amount:
2017 base year amount will be S 135,000
Annual adjustment to the base year will be calculated using the effective Schedule 1 General
Meter Service rates as authorized by California Public Utilities Commission and published
by San Jose Water Company for the All Other Customer rate charge provided for water
provided per 100 cubic feet(CCF).
The base rate for 2017 is$5.10/CCF (rate charge).
Annual adjustment calculation for the duration of this agreement shall be as follows:
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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Prior Year Water Reimbursement Amount x (Rate Charge Effective in December of the
Prior Year/Last Effective Rate Charge)
Example reimbursement amount for water used in 2018 assuming quantity rate charge of
5.25/CCF effective in December 2017.
135,000 x ($5.251$5.10) = $135,000 x 1.0294 = $138,970
d. This payment is due and payable for the prior calendar year based on the formula detailed
above. The last payment to be received will be by March 30, 2033 for the time period of
January 2032 through June 30, 2032.
e. The CITY will reimburse DISTRICT annually for the cost of Clean Water and Storm
Protection Fees for OPEN SPACE AREAS maintained by the CITY. Reimbursement
will occur no later than thirty(30) days upon receipt of DISTRICT's full annual payment.
OPEN SPACE AREAS MAINTAINED BY AREA
2019*
CITY Reimbursement
Collins Elementary School open s ace site 2.51 476.90
Eaton Elementary School open s ace site 4.58 870.20
Faria Elementary School open space site 4.18 794.20
Garden Gate Elementary School open space 2.97 564.30
site
Lincoln Elementary School open space site 3.10 589.00
Regnart Elementary School open s ace site 4.12 782.80
Stevens Creek Elementary School open space 3.14 596.60
site
Hyde Middle School open s ace site 7.87 1,495.30
Kennedy Middle School open space site 13.35 $2,536.50
The 2019 reimbursement is calculated at the FY 19/20 fee of $190/Acre. The Clean
Water and Storm Protection Fees may increase by a maximum of 3% per year. Future
reimbursements will be calculated at the applicable fiscal year Clean Water and Storm
Protection fee for school sites.
AGREEMENT BETWEEN CITY OF CUPERTNO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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7. DISTRICT SELLING OF DESIGNATED SCHOOL OPEN SPACE AREAS
DISTRICT shall notify CITY a minimum of three hundred sixty-five(365)days in advance of any
OPEN SPACE AREA that will be sold, conveyed or otherwise disposed which are the subject of
this Agreement at schools with OPEN SPACE AREAS prior to June 30, 2032.
8. ASSIGNMENT—SUBCONTRACTORS AND EMPLOYEES
a. The Parties shall give their personal attention to the faithfid performance of this Agreement
and shall not assign,transfer, convey, or otherwise dispose of this Agreement or any right,
title or interest in or to the same or any part thereof without the prior written consent of the
other Party, and then only subject to such terms and conditions as the other Party may
require.The consent to one assignment shall not be deemed to be consent to any subsequent
assignment. Any assignment without such approval shall be void and, at the option of the
other Party, shall terminate this Agreement and any license or privilege granted herein.
b. This Agreement and any interest herein shall not be assignable by operation of LAW
without the prior written consent of the other party.The DISTRICT shall be responsible for
employing or engaging all persons necessary to perform the services of the DISTRICT
hereunder.The CITY shall be responsible for employing or engaging all persons necessary
to perform the services of the CITY hereunder.
9. DUTY OF PARTIES TO DEFEND INDEMNIFY AND HOLD HARMLESS
a. Each Party shall defend, indemnify and hold harmless the other Party (including its
officers, employees and agents) against any claim, loss or liability arising out of the
performance of this Agreement by such Party. Nothing contained herein shall be construed
as a waiver of any immunities or defenses that a Party may have under applicable
AGREEMENT BETWEEN CITY OF CUPERTNO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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provisions of the law, including the provisions of the California Tort Claims Act
Government Code Section 801 et seq.). This mutual indemnification agreement is adopted
pursuant to Government Code Section 895.4 and in lieu of and notwithstanding the pro rata
risk allocation which might otherwise be imposed between the parties pursuant to
Government Code Section 895.6. This provision shall survive expiration or termination of
this Agreement.
b. At all times during the term of this Agreement,the CITY and DISTRICT will within twenty
four(24)hours notify one another of any condition of the OPEN SPACE AREAS,of which
it has knowledge,which may constitute or present a danger or threat to person or property.
The tender of such notice shall not compromise any Provision of indemnification as set
forth in this Paragraph.
10. TIlVIE IS OF THE ESSENCE
Time is of the essence of this Agreement.
11. FORCE MAJEURE
If, due to act of God, fire, flood, storm, inclement weather, earthquake, drought, acute
restrictions or limitations on acquisition and/or consumption of water, epidemic, riot, war or
insurrection,plant or animal infestation or disease, sudden and severe energy shortage, striker,
work stoppage,work slowdown,or other concerted job action,or other condition of emergency
or disaster beyond the control of CITY which makes performance of its construction and/or
MAINTENANCE obligations under this Agreement impossible or extremely impracticable,
such obligations shall be suspended during such time as any such condition or conditions exist.
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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12. DISCRIMINATION PROHIBITED
I
Neither CITY nor DISTRICT shall discriminate in the employment or persons engaged in the
I
performance of this Agreement on account of race, color,national origin, ancestry, religion,
sex,physical handicap,or medical condition,in violation of State or Federal LAW,or on any
basis otherwise prohibited by State or Federal LAW.
13. NOTICES
All notices hereunder shall be given in writing and mailed,postage prepaid,by certified mail,
addressed as follows:
To CITY: City of Cupertino
Director of Public Works
10300 Torre Avenue
Cupertino, CA 95014
To DISTRICT: Cupertino Union School District
Office of the Superintendent
10301 Vista Drive
Cupertino, CA 95014
14. EFFECT OF WAIVER OF BREACH OR VIOLATION
i
The waiver by either party of any breach or violation of any term, covenant, or condition of
this Agreement or of any provision or law shall not be deemed to be a waiver of any other
term, covenant, condition or LAW, or of any subsequent breach or violation of the same or
any other term, covenant, or condition of LAW. The subsequent acceptance by either party I
of any money which may become due hereunder shall not be deemed a waiver of any
preceding breach of violation by the other party of any term or condition of this Agreement,
or of any applicable LAW.
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND LMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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15. LEGAL ACTIONS
Any disputes regarding this Agreement shall be resolved according to the LAWS of the State
of California. Any legal proceedings shall be initiated in the courts of the State of California
and the County of Santa Clara, irrespective of any other possible jurisdictional conditions.
16. TERM OF AGREEMENT
a. This Agreement shall become effective upon the execution thereof by all parties. This
Agreement may be terminated by either party upon three hundred sixty-five (365) days'
notice.
b. The obligations set forth in Paragraph 6 of this Agreement shall continue to be in force
notwithstanding the amendment of other provisions of this Agreement pursuant to
Paragraph 4.
c. Unless the CITY and the DISTRICT mutually agree in writing to extend this Agreement
one time for an additional five (5) years, this Agreement shall terminate on June 30, 2032.
Any extension must be subject to the terms and provisions of this Agreement unless
superseded by a jointly executed amendment or agreement.
d. Non-Appropriation
This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code and the
DISTRICT Board Policies, and Agreement will terminate without any penalty:
1) At the end of any fiscal year in the event that funds are not appropriated for the following
fiscal year, or
2) 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 Paragraph
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPERTINO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
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shall take precedence in the event of a conflict with any other covenant,term, condition, or
provision of this Agreement.
17. INTEGRATED AGREEMENT
This document represents the entire and integrated Agreement between CITY and DISTRICT
and supersedes all prior negotiations, representations or agreements, either written or oral,
including the November 16, 2016 Agreement between the Parties regarding the same subject
matter. This document may be amended only by written instrument,signed by both CITY and
DISTRICT. All provisions of this Agreement are expressly made conditions.
IN WITNESS WHEREOF, CITY and DISTRICT have executed this Agreement on tho?-6 day
of 12019.
Attest: City of Cupertino
City Clerk
B
l
Approved as to form: Cupertino Unified School District
s
City Attorney
1145051.1
AGREEMENT BETWEEN CITY OF CUPERTNO,CUPERTNO UNION SCHOOL DISTRICT PERTAINING TO MAINTENANCE AND IMPROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
Page 18 of 18
i
shall take precedence in the event of a conflict with any other covenant,term,condition,or
provision of this Agreement.
17. INTEGRATED AGREEMENT i
This document represents the entire and integrated Agreement between CITY and DISTRICT
and supersedes all prior negotiations, representations or agreements, either written or oral,
including the November 16, 2016 Agreement between the Parties regarding the same subject
matter. This document may be amended only by written instillment,signed by both CITY and
DISTRICT. All provisions of this Agreement are expressly made conditions.
IN WITNESS WHEREOF, CITY and DISTRICT have executed this Agreement on thGZ6 day
of 2019_
Attest: City of Cupertino
City Clerk
By
Mayor
Approved as to form: Cupertino Unified School District
v V
City Attorney 7 7
1145051.1
AGREEMENT BETWEEN CITY OF CUPERTINO,CUPFR71NO UNION SCHOOL DrsTRICT PERTAINTNO TO MAINTENANCE AND INTROVEMENT OF
CERTAIN OPEN SPACE AREAS WITHIN CERTAIN SCHOOL SITES 2017-2032(August 2019)
Page i8 of18
City Council Actions August 20, 2019
4. Subject: Updated Joint Use Agreement between the City of Cupertino and Cupertino
Union School District (CUSD) pertaining to maintenance and improvements of certain
open space areas within specific school sites for reimbursement of authorized Clean Water
and Storm Protection Fees
Recommended Action: 1. Authorize the City Manager to execute an updated Joint Use
Agreement between the City of Cupertino and CUSD; and 2. Authorize expenditures in
the amount of $8,705.80 from the Non-Point Source Fund to reimburse CUSD for Clean
Water and Storm Protection Fees associated with certain open space areas within specific
school sites
Authorized the City Manager to execute an updated Joint Use Agreement between the City
of Cupertino and CUSD; and 2. Authorize expenditures in the amount of $8,705.80 from
the Non-Point Source Fund to reimburse CUSD for Clean Water and Storm Protection Fees
associated with certain open space areas within specific school sites; and 3. Provided
direction to staff and the City Manager to approach the CUSD Administration and its
Superintendent regarding the subsequent inclusion of both Lawson Middle School and
Sedgewick Elementary School properties in the Joint Use Agreement.
5. Subject: Adopt the City of Cupertino Annex to the Santa Clara County Community
Wildfire Protection Plan as the City of Cupertino Community Wildfire Protection Plan.
Recommended Action: Adopt Resolution No. 19-107 which adopts the City of Cupertino
Annex to the Santa Clara County Community Wildfire Protection Plan as the City of
Cupertino's Community Wildfire Protection Plan.
Adopted Resolution No. 19-107 which adopts the City of Cupertino Annex to the Santa
Clara County Community Wildfire Protection Plan as the City of Cupertino's Community
Wildfire Protection Plan.
6. Su 'ect:Award Byrne Avenue Sidewalk Improvements, Project Number 2016-10
Recommended Action: Authorize the City Manager to award a contract to Granite
Construction Company in the amount of $1,853,984 and approve a construction
contingency of $185,398, for a total of $2,039,382 for the Byrne Avenue Sidewalk
Improvements,Project Number 2016-10
Authorized the City Manager to award a contract to Granite Construction Company in the
amount of $1,853,984 and approve a construction contingency of $185,398, for a total of
2,039,382 for the Byrne Avenue Sidewalk Improvements, Project Number 2016-10.
Site plan exhibits
included with
Agreement 16-168