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06-071, Urban Streams Agreement P40-07 0(.-0-11 ~-.Q ... CJ~ ~ ~ ~.c. ARNOLD SCHWARZENEGGER, Governor STATE OF CALIFORNIA -- THE RESOURCES AGENCY DEPARTMENT OF WATER RESOURCES 1416 NINTH STREET, P.O. BOX 942836 SACRAMENTO, CA 94236-0001 (916) 653-5791 August 29,2006 Mr. David Knapp, City Manager City of Cupertino 10300 Torre Avenue Cupertino, California 95014 Dear Mr. Knapp: Enclosed is the executed Agreement for Urban Streams Agreement P40-07. You may begin to invoice against items listed in your workplan for the Stevens Creek Restoration project in Santa Clara County. Invoice instructions (DWR 4214a) and invoice forms (DWR 4214 pages 1 and 2) are available on the Department of Water Resources' Urban Streams Restoration Program's web site at: http://www.watershedrestoration.water.ca.Qov/urbanstreams/pastproi/. A copy of the allowable State Travel and Per Diem rates is also on the web site to help you when filling out invoices for your project. Please submit four copies of the invoice and receipts: one invoice with an oriQinal siQnature and three copies to: Department of Water Resources Division of Planning and Local Assistance Urban Streams Restoration Program Attention: Sara Denzler, Program Coordinator Post Office Box 942836 Sacramento, California 94236-0001 If you have any questions, please call your USRP contact, Kurt Malchow, at (916) 651-9627. Sincerely, Tracey Lind g Contracts Anal Division of Planning and Local Assistance Enclosure cc: Mr. Robert Power, Executive Director Santa Clara Valley Audubon Society 22221 McClellan Road Cupertino, California 95014 Agreement No. P40-07 SAP Contract No. 4600004067 STATE OF CALIFORNIA THE RESOURCES AGENCY DEPARTMENT OF WATER RESOURCES AGREEMENT BETWEEN THE STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES AND the City of Cupertino and the Santa Clara Valley Audubon Society UNDER THE URBAN CREEK RESTORATION AND FLOOD CONTROL ACT THIS AGREEMENT, is entered into as of the 15th day of June, 2005, between the Department of Water Resources of the State of California, (State), and the Sponsor, City of Cupertino, and the Co-sponsor, Santa Clara Valley Audubon Society, (Grantees). State and Grantees hereby agree as follows: 1. Purpose. The purpose of this Agreement is to provide Urban Creek Restoration Program grant funds for the planning and/or execution of a watershed stabilization and flood damage reduction project, as provided for by California Water Code Section 7048, on Stevens Creek in Santa Clara County. Grantees agree to use the grant funds received in accordance with the terms specified in this Agreement and pursuant to the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002 (Proposition 40). 2. Grant Amount. Subject to the availability of funds, State shall provide a grant in the amount of $401,000 to Grantees to assist in financing the urban creek protection, restoration and enhancement project to be carried out as described in the Exhibits listed in paragraph 4 below. 3. Term of Agreement. The term of this Agreement will begin on June 15, 2005 and extend through May 15, 2007. The term may be amended by agreement of the parties. 4. Incorporation of Standard Provisions. This Agreement incorporates: Exhibit A. Standard Clauses Exhibit B. Workplan and Budget Exhibit C. Maintenance Plan Exhibit D. Appraisal Provisions Exhibit E. Land Acquisition Cost Schedule 5. Grantees Responsibilities: A. Grantees shall implement on-site work to be performed as specified in a Work Plan and Budget developed by Grantees' Project Manager with the assistance of the Project Manager(s) for State. B. Grantees shall develop a program to manage streambank stability, stream channel environment and watershed for the purpose of reducing damages from erosion and/or floods and improving the environmental values of the riparian environment. Development of this management program is provided for in the attached Work Plan and Budget. Page 1 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 C. Grantees are solely responsible for design, construction, operation and maintenance of the project. Review or approval of plans, specifications, bid documents or other construction documents by the State is solely for the purpose of proper administration of grant funds by the State and shall not be deemed to relieve Grantees of or restrict their responsibility. Any planning and design assistance provided to Grantees by State is provided pursuant to California Water Code Section 7048 and is not governed by the terms of this Agreement. 6. Project Managers: The Project Manager for State is: Program Coordinator, Urban Streams Restoration Program, Division of Planning and Local Assistance, Department of Water Resources, acting directly or through representatives acting within the scope of delegated authority. The Project Manager for Grantees, is: City Manager, City of Cupertino Grantees hereby delegate authority to the Project Manager to manage performance under the Agreement and to delegate authority to others to provide management and support services required for performance of the work and administration of the Agreement. The delegation of authority to submit invoices requires written consent by both/all Grantees which will be provided to the Department of Water Resources (DWR). State or Grantees may change the foregoing delegations by written notice to the other parties. Grantees shall notify State as soon as feasible if there are changes in the Project Manager or other key participants in the project. Notices by Grantees' Project Manager shall be sent to: Department of Water Resources Division of Planning and Local Assistance Attention: Program Coordinator Urban Streams Restoration Program Post Office Box 942836 Sacramento, CA 94236-0001 Notices by State's Project Manager shall be sent to: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 7. CEQA Compliance. Prior to implementation of the project, Grantees shall comply with all applicable requirements of the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and other applicable federal, State and local laws, rules and regulations. 8. Quarterly Reports: The Project Manager shall submit quarterly progress reports as directed by the State on the status of the project to Urban Streams Restoration Program staff at the Department of Water Resources. The submittal of these reports is a requirement for initial and continued disbursement of grant funds. Page 2 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 9. Project Oversight. State may inspect the project at any reasonable time to ensure it is being carried out in accordance with the work plan and that it is being properly maintained. During the administration of this contract, State may also direct and Grantees shall provide technical, financial, hydrologic, bioengineering, soil and water quality, environmental, water rights, legal analyses and justifications, and other relevant information and resources to ensure the project is being carried out in accordance with this Agreement. 10. Method of Payment. All payments, except those for real property acquisition components of projects, will be made in arrears upon receipt of an original invoice and three copies by the Department of Water Resources, Division of Planning and Local Assistance, Attention: Program Coordinator, Urban Streams Restoration Program, Post Office Box 942836, Sacramento, California 94236-0001. Invoices shall include Agreement number and Work Plan element identification. For real property acquisition components of projects, see paragraph 15. I. a. Projects located in Northern District require one additional copy mailed to: Northern District, Department of Water Resources, Attention: Environmental Scientist, Watershed Management Section, 2440 Main Street, Red Bluff, California 96080-2356. b. Projects located in Southern District require one additional copy mailed to: Southern District, Department of Water Resources, Attention: Environmental Scientist, Recreation and Environmental Studies Section, 770 Fairmont Avenue, Glendale, California 91203-1035. Grantees may submit invoices at intervals of not less than one month. Grantees shall submit an invoice in January of each year for any work (in excess of $5,000.00) completed but not billed for during the previous year. 11. Payment Retention. State reserves the right to withhold from payments made under paragraph 10 up to 10 percent of the total grant amount until it is satisfied that the project being financed by this grant is completed. It is understood that such retentions may be withheld until a report summarizing project results is received and found satisfactory by State. Grantees may substitute securities for such retentions as provided by Government Code Section 22300 and shall receive any interest thereon. 12. Reports. a. Upon completion of the project, Grantees shall provide a final written report in a format as directed by the State that includes (but is not limited to) the following: (1) a description of conditions before the project was executed, (2) a summary of the restoration and planning work and techniques used, (3) a description of the results of the project, (4) an analysis of the techniques used, and (5) a description of planned long-term monitoring. The report must include photographs of restoration activities and techniques. Also include photographs of community participation in planning activities (Le. design charettes, community meetings or site tours) if part of the project. Grantees shall provide on-site photos before, during and after implementation to document project conditions. Grantees will provide specific geographic positions through maps and/or GPS readings of where the photos were taken (photo-points), so images can be produced from the same vantage point in Page 3 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 subsequent years to document long-term vegetation growth, channel formation, and geomorphic response to bankfull and flood flows. b. Grantees shall prepare and submit, as directed by State, an on-line catalog entry form to the California Environmental Information Catalog for information products and reports (e.g., environmental and biological field surveys, natural hazard assessments, geographic information, etc.) relating to California's natural environment that have been prepared with funds made available from Proposition 40 or 50. Of particular interest are those products that characterize site specific conditions with regard to vegetation, wildlife populations, species occurrences and other measures of biological diversity, environmental and ecological condition. The on-line catalog entry form is available at http://Qis.ca.Qov/cataloQ/intro.epl?paQe=usinQ.html. The State shall determine whether, for public policy reasons, a catalog description of any information product or report should be withheld from disclosure in the California Environmental Information Catalog. c. Grantees shall also report general project information on the form provided by the Natural Resources Project Inventory (NRPI) database. Grantees must notify DWR staff when the data is posted. 13. Work Plan and Budget. Items included in the attached Work Plan and Budget, Exhibit B, and designated for funding by DWR may be undertaken by Grantees prior to execution of this contract at their own risk and requires written acknowledgement of such risk by both/all Grantees which will be provided to DWR. 14. Maintenance. Grantees agree to use, manage, and maintain the property acquired, developed, rehabilitated or restored with the grant funds provided in this Agreement consistent with the purposes of the program. Specific maintenance activities are outlined in Exhibit C. Grantees or their successors may, with the approval of State, transfer this responsibility to use, manage, and maintain the property. 15. Property Rights Acquisitions. Grantees may acquire real property rights for the purpose of the protection, restoration, and enhancement of urban creek channels. Whenever any real property fee title or interest is to be acquired with grant funds, the following shall apply: A. Grantees shall submit a preliminary title report, vesting documents, and a fully conformed appraisal report to State pursuant to the Appraisal Requirements, Exhibit D. The report shall be prepared and signed by a qualified general appraiser, who is licensed by the California Department of Real Estate Appraisers and demonstrates compliance with the Uniform Standards for Professional Appraisal Practices (USPAP). The reports shall be submitted to State for approval prior to disbursal of funds for the acquisition. For low value property interests, State, in its sole discretion, may waive any of the foregoing submittal requirements. B. The property rights shall be acquired from a willing seller and in compliance with current laws governing acquisition of properties by public agencies. C. Grantees shall provide sufficient notice to adjacent landowners and other members of the public to enable public input on interests that may be affected by the acquisition and changes in land use. Page 4 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 D. Grantees shall use, manage, and maintain the property in a manner consistent with the purpose of the acquisition, for at least [N/A] years. Grantees further assume all management and maintenance costs associated with the acquisition, including the costs of ordinary repairs and replacements of a recurring nature, and costs of enforcement of regulations. State shall not be liable for any cost of such management or maintenance. E. Grantees shall identify all riparian rights that will be affected by a real property acquisition and propose appropriate treatment of such rights. F. Fee title shall generally be acquired by the local agency co-sponsor. However, if the non- profit co-sponsor has 501 (c)(3) status, it may acquire fee title. In the latter case, fee title shall be transferred within 180 days after completion of the on-site work to the local agency co-sponsor, which hereby agrees to accept such transfer. G. An Irrevocable Offer to Dedicate a real property interest for public use that is less than a fee title, such as an easement or license, shall include the following provisions, and shall be recorded concurrently with the instrument that conveys the real property interest to Grantees: 1. the entity with the authority to accept the offer to dedicate the real property interest shall be identified in the offer and shall be the local agency co-sponsor with the capacity to accept an offer to dedicate title to the real property interest for public use; and 2. the irrevocable offer to dedicate can only be extinguished or abandoned by such local agency after at least [N/A] years and in accordance with applicable laws and regulations. H. Grantees shall complete the attached Acquisition Cost Schedule, Exhibit E, which includes budget items relevant to the acquisition. I. Method of payment. Funds provided by State for real property acquisitions shall be deposited by State with an escrow holder acceptable to State and with escrow instructions regarding funding and disbursal provided by State. If the escrow does not close by the date set forth in State's escrow instructions, or such other date as may be agreed to by the parties, the funds shall be returned to State. J. Grantees shall supply a copy of any recorded vesting documents to State after close of escrow. 16. Amendment The provisions of this agreement may be amended by agreement between State and Grantees. Page 5 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Approved as to Legal Form and Sufficiency: STATE OF CALIFORNIA DEPARTMENT OF WATER RESOURCES By Ch' fCounsel (~ o ~artment of Water Resources . O. Box 942836 acramento, CA 94236-0001 By Chie , Division of Planning and Local Assistance Sponsor: City of Cupertino By SlJ W ~Y' 1.f(~ Signature J,\I( i) ~ ~/JA-PfJ Printed Name Address: 10300 Torre Avenue Cupertino, CA 95014 Title: City Manager Co-sponsor: Santa Clara Valley Audubon Society ~/ By ~/f- Signature fdJar r: fbweL Printed Name Address: 22221 McClellan Road Cupertino, CA 95014 Title: Executive Director Attachments Page 6 of 6 Agreement No. P40-07 SAP Contract No. 4600004067 EXHIBIT A STANDARD CLAUSES State of California The Resources Agency DEPARTMENT OF WATER RESOURCES STANDARD CLAUSES A-1. Worker's Compensation Clause. Grantees affirm that they are aware of the provisions of Section 3700 of the California 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 Grantees affirm that they will comply with such provisions before commencing the performance of the work under this Agreement. Grantees will also make their contractors and subcontractors aware of this provision and determine that they have complied with it before commencing work on the project. A-2. Claims Dispute Clause Any claims that Grantees may have regarding the performance of this Agreement, including but not limited to claims for additional compensation or an extension of time, shall be submitted to the Director, Department of Water Resources, within thirty days (30) calendar days of their accrual. State and Grantees shall then attempt to negotiate a resolution of such claims and process an amendment to this Agreement to implement the terms of any such resolution. A-3. National Labor Relations Board Clause In accordance with Public Contract Code Section 10296, Grantees declare under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Grantees within the immediately preceding two-year period because of Grantees' failure to comply with an order of a federal court which orders Grantees to comply with an order of the National Labor Relations Board. A-4. Nondiscrimination Clause During the performance of this Agreement, Grantees, their contractors and subcontractors shall not deny the Agreement's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, medical condition, marital status, age (over 40) or sex. Grantees shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. Grantees, their contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 et seq.), the regulations promulgated thereunder (California Administrative Code, Title 2 Page 1 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 Sections 7285.0 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Government Code Sections 11135-11139.5) and the regulations or standards adopted by the awarding State agency to implement such article. Grantees, their contractors and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. Grantees shall include the nondiscrimination and compliance provisions of this clause in all contracts to perform work under the Agreement. Grantees, their contractors and subcontractors shall permit access by representatives of the Department of Fair Employment and Housing and the awarding State agency upon reasonable notice at any time during normal business hours, but in no case less than 24 hours notice, to such of their books, records, accounts, other sources of information and their facilities as said Department or Agency shall require to ascertain compliance with this clause. Grantees' signatures on this Agreement shall constitute a certification under penalty of perjury under the laws of the State of California that Grantees have, unless exempted, complied with the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Code of Regulations Section 8103. A-5. State to be Held Harmless Grantees agree to indemnify the State of California, Department of Water Resources and its officers, agents and employees against and to hold the same free and harmless from any and all claims, demands, damages, losses, costs, expenses or liability whether partially or entirely or directly or indirectly due or incident to the project. A-6. Compliance with Laws, Regulations, Permit Requirements Grantees shall at all times comply with, and require their contractors and subcontractors to comply with, all applicable Federal and State laws, rules and regulations and permits and all applicable local ordinances, specifically including but not limited to labor, environmental, procurement and safety laws, rules, regulations, permits and ordinances. A-7. Successors and Assigns This Agreement and all of its provisions shall apply to and bind the successors and assigns of the parties. No assignment or transfer of this Agreement or any part hereof, rights hereunder or interest herein by the Grantees shall be valid unless and until approved by State and made subject to such reasonable terms and conditions as State may impose. Page 2 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 A-8. Audit Requirement Pursuant to Government Code Section 8546.7, the parties shall be subject to the examination and audit by State and the State Auditor General for a period of three years after final payment under this Agreement with respect to all matters connected with its performance, including but not limited to the cost of administering this Agreement. All records of Grantees shall be preserved for this purpose for at least three years after completion of the project. A-9. Inspections (a) State shall have the right to inspect the work being performed at any and all reasonable times during the term of the Agreement. This right shall extend to all of Grantee's contracts and subcontracts, and Grantees shall include provisions ensuring such access in all their contracts entered into pursuant to this Agreement. (b) State shall have the right to inspect the project site at any and all reasonable times after completion of the project to ensure compliance with paragraphs 1 and 7 of this Agreement. (c) During regular office hours, each of the parties shall have the right to inspect and to make copies of any books, records, or reports of the other parties relating to this Agreement. Each of the parties shall maintain and shall make available at all times for such inspection accurate records of all of their costs, disbursements and receipts with respect to their activities under this Agreement. A-10. Performance Evaluation Grantee's performance under this Agreement will be evaluated after completion. A-11. Contracting Officer of State The contracting officer of State shall be the Chief of the Division of Planning and Local Assistance of the Department of Water Resources of the State of California and that person's successors or duly authorized representatives. The contracting officer shall be responsible for all discretionary acts, opinions, judgments, approvals, reviews and determinations required by State under the terms of this Agreement. A-12. Remedies Not Exclusive The use by either party of any remedy specified herein for the enforcement of this Agreement is not exclusive and shall not deprive the party using such remedy of, or limit the application of, any other remedy provided by law. Page 3 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 A-13. Amendments This Agreement may be amended in writing by mutual agreement of the parties. Any request by Grantees for amendments must be in writing, stating the amendment requested and the reason for the request. Grantees shall make requests in a timely manner and in no event less than 60 days before the effective date of the amendment. A-14. Waiver of Rights It is the intention of the parties hereto that from time to time either party may waive any of their rights under this Agreement unless contrary to law. Any waiver by either party hereto of rights arising in connection with this Agreement shall not be deemed to be a waiver with respect to any other rights or matters. A-15. Notices All notices required either expressly or by implication to be given by one party to the other under this Agreement shall be signed for State by its contracting officer and for Grantees by such officers as from time to time they may authorize in writing to so act. All such notices shall be deemed to have been given if delivered personally or if enclosed in a properly addressed, postage-prepaid envelope and deposited in a United States Post Office for delivery by registered or certified mail. A-16. Ownership and Use of Property Rights, Photographs, Audio and/or Video Recordings and other Publications. Grantees shall provide the Department with reasonable access to all original photographic materials, and audio and video recordings of work funded by this grant, and hereby authorize State to use any part or all of the photographic materials, master audio and master video recordings for State's purposes. Grantees shall make available to State for it's review and comment a copy of any completed publication, brochure, video or audio tape produced in whole or in part with funds from this grant, prior to releasing it to parties other than Grantees and Grantees' contractors and subcontractors. No release of such materials shall be made without the joint approval of the State and Grantees. Approval shall not be unreasonably withheld. Grantees agree that patentable and copyrightable property rights, to the extent created with funds provided by State under this agreement, shall be in the public domain and may be used by anyone for any lawful purpose. A-17. Drug Free Workplace Certification By signing this Agreement, Grantees hereby certify under penalty of perjury under the laws of the State of California that Grantees will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug- free workplace by taking the following actions: Page 4 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 1. Publish a statement notifying employees and volunteers that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying action to be taken against employees and volunteers for violations. 2. Establish Drug-Free Awareness Program to inform employees and volunteers about all of the following: (a) The dangers of drug abuse in the workplace. (b) The person's or organization's policy of maintaining a drug-free workplace, (c) Any available counseling, rehabilitation and assistance programs, and (d) Penalties that may be imposed upon for drug abuse violations. 3. Every employee and volunteer who work on the proposed Agreement or grant: (a) Will receive a copy of the company's drug-free policy statement, and (b) Will agree to abide by terms of the company's statement as a condition of employment on or participation in the Agreement or grant. This Agreement or grant may be subject to suspension of payments or termination, or both, and the Grantees may be subject to debarment if the department determines that: (1) the Grantees have made a false certification, or (2) the Grantees have violated the certification by failing to carry our the requirements noted above. A-18. Americans with Disabilities Act By signing this Agreement, Grantees assure State that they comply with the Americans With Disabilities Act (ADA) of 1990, (42 U.S.C. 12101 et seq.), which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. A-19. Conflict of Interest Current State Employees: (a) No State officer or employee shall engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any State agency, unless the employment, activity or enterprise is required as a condition of regular State employment. (b) No State officer or employee shall contract on his or her own behalf as an independent contractor with any State agency to provide goods or services. Page 5 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 Former State Employees: (a) For a two-year period from the date he or she left State employment, no former State officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any State agency. (b) For a twelve-month period from the date he or she left State employment, no former State officer or employee may enter into a contract with any State agency if he or she was employed by that State agency in a policy-making position in the same general subject area as the proposed contract within the twelve-month period prior to his or her leaving State service. A-20. Child Support Compliance Act For any Agreement in excess of $100,000, Grantees acknowledge that: (a) Grantees recognize the importance of child and family support obligations and shall fully comply with all applicable State and Federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Familv Code; and; (b) Grantees, to the best of their knowledge, are fully complying with the earnings assignment orders of all employees and are providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. A-21. Recycled Materials Grantees hereby certify under penalty of perjury that 0 (enter value or "0") percent of the materials, goods and supplies offered or products used in the performance of this Agreement meet or exceed the minimum percentage of recycled material as defined in Sections 12161 and 12200 of the Public Contract Code. A-22. Severability If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, all other provisions of this Agreement be construed to remain fully valid, enforceable, and binding on the parties. A-23. Governing Law This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. Page 6 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 A-24. Software Copyright Where software usage is an essential element of performance under the Agreement, Grantees certify that they have appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Agreement for acquisition, operation or maintenance of computer software in violation of copyright laws. A-25. Air or Water Pollution Violation Grantees shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. A-26. Union Organizing Grantees acknowledge the applicability of Government Code 16645 through 16649 to this Agreement and hereby certify that: (1) No State funds disbursed by this grant will be used to assist, promote or deter union organizing. (2) Grantees shall account for State funds disbursed for a specific expenditure by this grant, to show those funds were allocated to that expenditure. (3) Grantees shall, where State funds are not designated as described in (2) above, allocate, on a pro-rata basis, all disbursements that support the grant program. (4) If Grantees make expenditures to assist, promote or deter union organizing, Grantees will maintain records sufficient to show that no State funds were used for those expenditures, and Grantees shall provide those records to the Attorney General upon request. A-27. Budget Contingency Clause State and Grantees agree that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no further force and effect. In such event, State shall have no liability for further payment of any funds whatsoever to Grantees or to furnish any other considerations under this Agreement and Grantees shall not be obligated for any further performance of any provisions of this Agreement. Page 7 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 If funding for this program in any fiscal year is reduced or deleted by the Budget Act State shall have the option to either: cancel this Agreement with no liability occurring to State, or offer an Agreement Amendment to Grantees to reflect the reduced amount. A-28. Travel and Per Diem Expenses Reimbursement will be in accordance with the current State travel and per diem rates. Page 8 of 8 Agreement No. P40-07 SAP Contract No. 4600004067 Exhibit B Work Plan Department of Water Resources - Urban Streams Restoration Grant Program City of Cupertino Planning and Design - Produce plans and specifications for stream restoration and re-vegetation based on engineering and modeling results. Submit plans and design specifications to the Department of Water Resources for comment prior to finalizing them and amending the Agreement to modify the construction budget. Survey and stake out project site prior to construction. Site Preparation - Install tree protection fencing, temporary silt fencing and dewatering diversion for in-situ stream restoration work that includes removal of diversion dam and 1st low flow crossing. Install tree protection fencing and temporary silt fencing in area of new channel construction. Remove 20 trees (10 native and 10 non-native) necessary for construction of new stream channel. Stream Restoration - In situ pool and riffle extension Extend 600 feet of pools and riffles from the diversion dam to 1 st low flow crossing. This area of the stream, referred to as "Reach A", continues from the diversion dam (to be demolished) to the first low flow crossing. In this section of creek, the diversion dam and first low flow crossing will be removed and the existing pool and riffle habitat will be extended for 600 feet. A small creek access will be preserved (in the location of the first low flow crossing) to facilitate environmental education programs. Sycamore-oak riparian forest plantings will be installed along the banks to aid in stabilizing the creek banks. Spawning gravels will be added to the riffle zones. The proposed work will occur within the existing channel. These enhancements will provide higher quality habitat than currently available. Stream Restoration - Realigned stream channel Create an 850-foot creek meander with eight pools and riffles to replace 2nd and 3rd low flow crossings. This area of the stream is referred to as "Reach B." Spawning gravels will be added in the riffle zones and sycamore-oak riparian plantings will stabilize the banks. In realigning the creek, the channel would be lengthened to allow the current elevation drop created by the low flow crossings to be spread out over a longer linear distance. The channel will also be widened to create both a lower and upper bankfull bench for planting. The lengthened and widened channel will help to stabilize the new creek channel and diminish the active erosion occurring in the current thalweg. Riparian Habitat Re-Establishment for Both Stream Restoration Sites Zone 1 Low Riparian/ Within Bank flow Re-establish planting above and within the ordinary high water (OHW) line. This zone occurs on the lower channel bars and waters' edge, lower bank, and lower bankfull benches. A multitude of native plant species will be placed within 15 feet of the low-flow shoreline of the creek to provide important in-stream shelter cover for fish while reducing stream temperatures through shading of the creek: Agreement No. P40-07 SAP Contract No. 4600004067 Exhibit B Zone 2 Middle and High Terrace Riparian This zone is classified as the upper bankfull bench, upper bank, top of bank, and inner floodplain areas and will be planted with species that can tolerate periodic to infrequent flooding, and are typically found on the upper creek banks, top of bank, and occasionally along the low flow shoreline. All plants used for re-vegetation will be grown from locally derived stock. Former Channel Conversion and Creation of Backwater Wetland Approximately 650 feet of the former channel will be filled to create a plug that directs flow to the new channel. Approximately 200 feet of the former channel would be maintained as a backwater wetland habitat where the new channel meets the former at its most downstream junction. This area will create a seasonal backwater and will be planted with willows, cottonwoods and sycamores. Maintenance and Monitoring Regular monitoring site visits will take place during first year of the plant establishment period to ensure replacement of lost vegetation and/or irrigation. In all, eight monitoring site visits and an annual monitoring report will be prepared in the first year. The following year two monitoring site visits will be conducted and a second annual monitoring report will be prepared for distribution to all funding and jurisdictional agencies. More details of the maintenance and monitoring protocols will be submitted to the Department of Water Resources upon completion of the design plans and prior to amending the budget. Agreement No. P40-07 SAP Contract No. 4600004067 EXHIBIT B - BUDGET Urban Streams Restoration Program Grant: Stevens Creek Project TASK DWR IN-KIND TOTAL TIMELlNE 1. PlanninQ and DesiQn: * Survey and construction stakinQ: $ 20,000.00 $ 20,000.00 $ 40,000.00 Fall 2006 Plans and specifications - stream restoration and re-vegetation: $ 42,000.00 $ 42,000.00 $ 84,000.00 Sprinq 2006 Final engineering and modelinq: $ 10,000.00 $ 10,000.00 $ 20,000.00 Sprinq 2006 Permittinq fees: $ 2,500.00 $ 2,500.00 $ 5,000.00 Sprinq 2006 PlanninQ and DesiQn Subtotal: $ 74,500.00 $ 74,500.00 $149,000.00 2. Construction: Site Preparation Install silt fencing, de-watering, clear vegetation: $ 32,800.00 $ 32,800.00 $ 65,600.00 Fall 2006 Stream Restoration - Extend 600 feet of pools and riffles from diversion dam to the first low-flow crossina: $ 11,275.00 $ 11,275.00 $ 22,550.00 Summer 2007 Stream Restoration - Create 850-foot creek meander to replace 2nd and 3rd low-flow crossings to stabilize the new creek channel and diminish active erosion: $ 157,025.00 $ 157,025.00 $314,050.00 Fall 2006 Riparian habitat re-establishment: Both stream restoration sites: reveqetation with native plants: $ 17,750.00 $ 17,750.00 $ 35,500.00 Fall 2006 Former channel conversion and creation of backwater wetland - partially fill and create wetland habitat in the former channel: $ 69,125.00 $ 69,125.00 $138,250.00 Summer 2007 Construction Inspection (5%): $ 14,400.00 $ 14,400.00 $ 28,800.00 Construction Subtotal: $ 302,375.00 $ 302,375.00 $604,750.00 3. Maintenance and MonitorinQ: Monitorinq site visits - first year of plant establishment period: $ 5,000.00 $ 5,000.00 $ 10,000.00 2007 Replacement of lost veqetation and/or irriqation: $ 2,500.00 $ 2,500.00 $ 5,000.00 2007 -2008 Eight monitorinq site visits, first annual monitorinq report: $ 12,500.00 $ 12,500.00 $ 25,000.00 2007 Two monitoring site visits, second annual monitoring report: $ 5,000.00 $ 5,000.00 $ 10,000.00 2008 Monitoring Subtotal: $ 25,000.00 $ 25,000.00 $ 50,000.00 TOTAL PROJECT COST: I $ 401,875.00 I $ 401,875.00 I $803,750.00 I Note: Prior to initiating construction, grantees shall submit final designs and a more detailed construction budget to DWR for review. An Amendment to the Agreement will be prepared at that time to reflect the updated budget. P40-07 SAP Contract No. 4600004067 Exhibit C City of Cupertino STEVENS CREEK MAINTENANCE AND MANAGEMENT PROTOCOLS The project site lies entirely on public land. City employees are on-site daily. Informal monitoring will be continuous and maintenance ongoing. There will be established protocols for meeting CEQA mitigation and permit conditions for the revegetation, channel reconfiguration and bioengineering components of the project. An establishment period of three to five years will be necessary to ensure the health of the riparian plantings and the removal of invasive species. The Project will also adhere to the Santa Clara Valley Water District Bank Protection Monitoring Protocols that require particular monitoring efforts be performed 1, 3 and 5 years after the installation. The Water District is a funding and technical partner in this effort and will be conducting its own monitoring. Maintenance and monitoring efforts for the project will be planned as part of a management process developed by the Fisheries and Aquatic Habitat Collaborative Effort (FAHCE). The formation of the FAHCE is a result of a settlement between environmental groups and the Santa Clara Valley Water District over the District's water release practices and stream stewardship. The Santa Clara Valley Water District is now bound by the settlement to ensure the success of this and other environmental enhancement efforts along Stevens Creek. The FAHCE is a consortium of several local agencies, and has provided comprehensive monitoring and management objectives for Stevens Creek. The Stevens Creek Corridor project is the first demonstration project the District is partnering to undertake, and the District will be working closely with an "Adaptive Management Team" comprised of representatives of the Santa Clara Valley Water District (District), U.S. Fish and Wildlife Service, National Marine Fisheries, California Department of Fish and Game, Trout Unlimited, Pacific Coast Federation of Fishermen Associations, and California Trout, Inc. These agencies and non-profit organizations will review all reports and monitoring measures required by the FAHCE agreement. The Adaptive Management Team will review inter-annual and seasonal variation in hydrologic conditions, limiting factors that affect achievement of the plan's objectives and results compared to agreed-upon performance measures. The measures are intended to assess multiple benefits including improvements to habitat for fish, wildlife and plant species, and more generally the ecological condition of Stevens Creek. CiTY OF CUPEIUINO July 11,2006 Department of Water Resources Division of Planning and Local Assistance Urban Streams Restoration Program Att: Tracey Lindberg P.O. Box 942836 Sacramento, CA 94236-0001 Re: Letter of Consent to Submit Invoices(fiscal agent) Pursuant to Page 2, Item No.6 of Grant Agreement No. P40-07 between the City of Cupertino and the Santa Clara Valley Audubon Society and the California Department of Water Resources, the City of Cupertino City Manager, David Knapp, is hereby delegated as the person to submit invoices for the grantees for reimbursement under the terms of the contract. Sincerely, \"\ J \ 1./ By .Y~' l.AJ ~ David W. Knapp, City Manager City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 Printed on Recycled Paper July 11, 2006 . \ \. ~ '})\--"~S~c- ,~~ '-.,:' -. >,'--'-=J_"-'~' '\ Y ,_/-~"" - i"t ~ f . , ,\.. ,~, J!ft l ;>;, ,t ,L~~ .4~ Santa Clara Valley Audubon Society Founded' 1926 Department of Water Resources Division of Planning and Local Assistance Attention: Tracey Lindberg Urban Stream Restoration Program PO Box 942836 Sacramento; CA 94236-0001 SUBJECT: Letter of COl!-sent to.Submit Invoices (fiscal agent) Pursuant to page. 2, item 60f Grant Agreement No. P40-07 between the City of Cupertino and '. the Santa Clara Valley Audubon Society and the California Department of Water Resources, David Knapp, City Manager, is hereby delegated as the person to submit invoices forthe grantees for reimbursement under the terms of the contract. SinCere,lY, A,z5 /, ',/,. . ..7/f;fL. . Robert C. Power, Executive Director SantaClara Valley Audubon Society 22221' McClellan :Road Cupertino, CA 95014 22221 McClellan Road, Cupertino,CA 95014 · Phone: 408.252.3747 · Fax: 408.252.2850 e.mail: scvas@scvas.org · www.scvas.org o Printed on Recycled Paper with Soy Ink STATE QF CALIFORNIA-THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER,Governor DEPARTMENT OF WATER RESOURCES 1416 NINTH STREET, P.O. BOX 942836 ;~.,,;.y 4, SACRAMENTO, CA 942360001 (916~ 6535791 September 16, 2008 Mr. David W. Knapp General Manager City of Cupertino 10300 Torre Avenue Cupertino, California 95014-3255 Dear Mr. Knapp: Enclosed is the executed Agreement for Urban Streams Amendment 2, P40-07. You may invoice against items listed in your workplan for the Stevens Creek Corridor Park and stream restoration project in Santa Clara County. If you have any questions, please contact Sara Denzler at (916) 651-9625. Sincerely, , ~l!/IJ 1J'U'/.il~ } Kathryn A. acconi Associate overnmental Program Analyst Division of Planning and Local Assistance Enclosure cc: Mr. Robert C. Power, Executive Director (w/enclosure) Santa Clara Audubon Society 22221 McClellan Road Cupertino, California 95014 Ms. Gail Seeds (w/enclosure) Stevens Creek Corridor Restoration Manager City of Cupertino 10300 Torre Avenue Cupertino, California 95014-3255 Agreement No. P40-07 - ~ SAP Contract No. 4600004067 Am 2 STATE 01= CALIFORNIA THE RESOIJRCES AGENCY DEPARTMENT OF~ WATER RESOURCES AGREEMENT BETWEEN THE STATE OF CALIFORNIA DEPARTMENT OF VIJATER RESOURCES AND the City of Cupertino and the Santa Clara Valley Audubon Society UNDER THE URBAN CREEK RESl'ORATION AND FLOOD CONTROL ACT This AMENDMENT 2 to Agreement No. P40-07, made in triplicate, is entered into as of this 14th day of May, 2007 between the Department of Water Resources c~f the State of California, hereinafter called the State, and the Sponsor, City of Cupertino, and the Co-sponsor, Santa Clara Audubon Society, hereinafter called the Grantees. 1. This Amendment 2 to Agreement No. P40-Oi extends the termination date, as requested by the Sponsor, for the planning and/or execution o~f a watershed stabilization and flood damage reduction pro;ect on Stevens Creek in Santa Clara County. The termination date is extended from May 15, 2007 to May 15, 2009. 2. As shown in the attached revised budget (Exhibit C-1), the following changes are made: a. Reduce the Maintenance and Monitoring budget by $25,000 for a total of $0. b. Increases Site Preparation Budget by $25,000. c. Other minor changes in subtask amounts. 3. All other provisions of Urban Streams Agreernent No. P40-07 remain unchanged. IN WITNESS WHEREOF, the parties have executecl this Amendment 2 as of the date first above written. Approved as to Legal Form STATE OF CALIFORNIA and Sufficiency: DEPARTMENT O WATER RESOURCES 4S ~l gy _ Chief Counsel 'ef, Division lan ing and oj~~ Department of Water Resources Local Assista e P. O. Box 942836 Sacramento, CA 94236-0001 ~ Sponsor: City of Cupertino By LU Signature (Z~J i c~ t,J ~it/ A f~C~ Printed Name Address: 10300 Torre Avenue Title Cupertino, CA 95014-3255 Co-sponsor: Santa Clara Valley Audubon Society By . Signatu e .~.~'~"i i~i Printed Name Address: 22221 McClellan Road Title f~`>'?'~' l~T~ic~~;~ Cupertino, CA 95014 EXHIBIT C-1 Agreement No. P40-07 BUDGET SAP Contract No. 4600004067 Am. 2 c~ty Original Funding Original Current Funding Current Request Match Total Request Match Total Plannin~ & DesiEn Survey, topography, staking 20,000 20,000 40,000 Hydrological engineering 20,000 20,000 40,000 Plans & specifications 42,000 42,000 84,000 42,000 42,000 84,000 Final engineering 10,000 10,000 20,000 12,500 12,500 25,000 Permit fees 2,500 2,500 5,000 0 0 0 Planning & Design Subtotal: -74,500 74,500 149,000 74,500 74,500 149,000 SCVWD Original Fundin; Original Current Funding Current Request Match Total Request Match Total Construction Site Preparation 32,800 32,8~0 65,600 Bid Item 1: Mobilization 32,800 32,800 65,600 Bid Item 9: Flow Diversion & Dewatering 25,000 25,000 50,000 Stream Restoration - create pools & riffles 1 1,275 ] 1,2'75 22,450 Bid Item 12: Riffle-pool sequences 11,275 11,275 22,450 Stream Restoration - new channel 157,025 157,0:?5 314,050 Bid Item 10: Earthwork Excavation 107,025 107,025 214,050 Bid Item 12: Import 0.5-1 Ton Boulders I5,000 15,000 30,000 Bid Item 15: Import Channel Bed Fill 35,000 35,000 70,000 Riparian Habitat Re-establishment 17,750 17,7:>0 35,500 Bid Item 41: Creek Restoration Planting ] 7,750 ] 7,750 35,000 Create Backwater Wetlands 69,125 69,125 138,250 Bid Item 11: Place Engineered Fill 69,125 69,125 138,250 Construction Inspection/Testing/ Construction management services 14,400 14,40Q 28,800 ]4,400 14,400 28,800 Construction Subtotal: 302,375 302,3 i 5 302,375 327,325 327,325 803,250 Maintenance & Monitorin~ Monitoring work, year one 5,000 S,OC~O 10,000 0 0 **0 Replacement of vegetation/irrigation 2,500 2,SC0 5,000 0 0 **0 Monitoring, lst annual report 12,500 ]2,SC0 25,000 0 0 **0 Monitoring, second report 5,000 5,000 10,000 0 0 **0 Monitoring Subtotal: 25,000 25,000 50,000 0 0 **0 TOTAL PROJECT: 401,875 401,875 803,750 401,875 401,875 803,750 * *Note: Maintenance & monitoring work will be performed & paid for by Cit~~. City will provide $50,000 toward these costs, and fully pay for those items noted in the original grant request. Those costs will not be a"match" item under this grant program since they will occur after reimbursement deadlines.