08-044 Santa Clara Valley Water Dist.SCVWD ENACTED COPY
Contract Administration Unit
AGMT: 31 q FILE: a 3 ~-'
AGREEMENT
Stevens Creek Corridor Restoration Project
Cost Sharing Agreement
~~~ ~ ~ ~~o~ 2008, by and between the CITY
This AGREEMENT is made and entered into on ,
of Cupertino (CITY) and the Santa Clara Valley Water DISTRICT (DISTRICT), also referred to as Party
or collectively as PARTIES, for the restoration of a portion of STEVENS CREEK.
RECITALS
WHEREAS, CITY and DISTRICT entered into an agreement on July 23, 2004 to develop a master plan
for the re-development of Blackberry Farm and Stevens Creek. This property extends along Stevens
Creek between Stevens Creek Boulevard and McClellan Road and is called the Stevens Creek Corridor
(SCC). It is owned by the CITY and DISTRICT.
WHEREAS, the master plan and CEQA document for the SCC were completed in June 20, 2006 by
CITY; and
WHEREAS, CITY has identified, from the Stevens Creek Corridor Master Plan, a first phase project for
construction which includes the removal of barriers to fish passage, creek restoration and riparian
plantings, and the creation of freshwater wetland areas next to the creek; and
WHEREAS, DISTRICT has committed to the community, under the voter approved Clean, Safe Creeks
and Natural Flood Protection Program (CSC Program), to create additional riparian habitat; and
WHEREAS, CITY has received grant funding from outside sources in support of the Phase I project; and
has also successfully competed for DISTRICT Clean Safe Creeks enhancement grant funding; and
WHEREAS, DISTRICT has initialed a draft Sett/ement Agreement Regarding Water Rights of the Santa
Clara Vallex Water DISTRICT on Coyote Guadalupe and Stevens Creeks (FAHCE Settlement) as part
of the Fisheries and Aquatic Habitat Collaborative Effort (FAHCE) program; and
WHEREAS, SCC is located within DISTRICT'S Cold Water Management Zone identified in the draft
FAHCE Settlement, and under the terms of the draft FAHCE Settlement, DISTRICT will be obligated to
remove certain barriers to steelhead trout migration, complete a geomorphologically-based stream
restoration project, and complete an in-stream and streamside habitat restoration project on Stevens
Creek; and
WHEREAS, DISTRICT is willing to start implementation of this project in advance of finalization of the
draft Settlement Agreement in the interests of accomplishing the benefits of the project in a timely
fashion, with the intent of meeting the future requirements of the FARCE Settlement Agreement and
obtaining credits in advance.
WHEREAS, CITY and DISTRICT each have an interest to provide open space, trails and other public
recreational opportunities, to protect and restore creeks, riparian corridors and natural resources within
their jurisdiction; and
NOW, DISTRICT and CITY desire to jointly engage in the construction of the first phase of the SCC
Master Plan to provide for creek restoration and protection of local wildlife.
Page 1 of 6
THEREFORE, for the consideration and upon the terms and conditions hereinafter specified, it is agreed
as follows:
I. PROJECT DESCRIPTION & MUTUAL OBJECTIVES
1. Project Description
The project. is to construct the first phase of the project described in Stevens Creek Corridor Park
Master Plan and Restoration Plan Initial Study/Mitigated Negative Declaration (April 2006, City of
Cupertino) (Master Plan). The project combines the three parks along Stevens Creek between Stevens
Creek Boulevard and McClellan Ranch Road into a single multi-purpose park. The new park is intended
to have an environmental emphasis with an extension of the Stevens Creek Trail running the entire length
of the park, restored creek channel with good fish passage and steelhead rearing habitat, freshwater
wetlands in some of the abandoned stream channel and a 9-hole golf course.
The Blackberry Farm picnic facilities will be reduced from a capacity of 4,000 to a capacity of 800. Most
of the hardscape removed by the picnic area renovation will be replaced with native riparian vegetation.
Educational and environmental elements are proposed to be added.
As part of the stream restoration, 2 of the barriers listed in the draft FAHCE Settlement as priority barriers
will be removed and replaced with a stream section that has been designed to provide fish passage and
good steelhead rearing habitat. These barriers are called the Blackberry Farms Road Crossing and the
Blackberry Farms Irrigation Diversion in section 6.5.2.2(B) of the draft FAHCE Settlement.
The master planning process covered the entire project area and resulted in an overall plan with CEQA
review. This Agreement is to provide the terms for cost sharing for the construction of Reach A and B.
2. Mutual Objectives
CITY and DISTRICT have agreed to mutual objectives for the SCC:
• Maximize ecosystem processes that are sustainable and self-maintaining in order to minimize
invasive species management and reduce non-native vegetation over time;
• Preserve and restore the natural environment of the creek corridor for park users and as a habitat for
wildlife;
• Protect and restore riparian and aquatic habitat along the creek corridor;
• Provide for members of the community to enjoy the property in the creek corridor year-round and
serve more residents;
• Minimize the effects of park operations on surrounding residents and on the creek corridor
• Provide a trail or trails compatible with the natural setting that will accommodate a variety of trail
users, with appropriate routing of paths, points, overlooks, vegetative screening, and site-specific
interpretive elements;
• Encourage educational uses of the creek corridor and support environmental programming at
McClellan Ranch;
• Remove barriers and improve the habitat for steelhead trout.
Page 2 of 6
II. SPECIFIC PROVISIONS
1. Project Manager
CITY will be solely responsible for the implementation and construction of the Stevens Creek
Corridor Master Plan. District will have no responsibility for implementation or construction of the SCC
Master Plan. Any consultants or contractors will be wholly City responsibility.
2. California Environmental Quality Act (CEQA) Document
CITY has acted as the lead agency and project proponent as described by CEQA. A Mitigated
Negative Declaration for the SCC was prepared and certified by the CITY on June 20, 2006. District will
be responsible for any subsequent CEQA analysis and approval or other action it takes with regard to this
Agreement.
3. Outreach & Public Participation
CITY will develop, implement and coordinate public information materials that inform the public
of construction progress as City determines necessary, at its own expense.
4. Staff Support
A. DISTRICT will provide limited staff support, as determined by District, at no cost to CITY for
coordination with C[TY, including attending project team meetings, attending public meetings, reviewing
documents and reviewing construction progress of project elements covered by this Agreement.
B. DISTRICT will provide biological assistance with fish relocation during construction at no
cost to the CITY and will conduct the relocation effort in a manner consistent with procedures identified
in the project permits and authorizations, and with applicable regulations and requirements. DISTRICT
written expert advice will prevail regarding conflicts with consultants.
5. Payments
A. District will provide payments to the CITY for completion of these milestones up to $803,768
as follows;
1. $401,884 for the removal of 2 fish barriers as an early implementation of the FAHCE
Settlement to remove two barriers to steelhead passage;
2. $401,884 will be paid to the CITY for the enhancement grant award entitled Clean
Safe Creeks and Natural Flood Protection Environmental Enhancement Program for the Stevens
Creek Corridor Restoration Partnership for the enhancement of 4 acres of riparian habitat. This
amount will be proportionally reduced if the acreage is less than 3.6 acres based on the following
formula:
Enhancement Grant Award =Acres Restored x $401,884
4 acres
follows:
B. DISTRICT will pay invoices from the CITY within 45 days. CITY may invoice DISTRICT as
1. $130,000 when DISTRICT receives 100% Plans from CITY;
2. $200,000 when the contract for the construction is approved by the CITY Council;
3. $201,884 when the two fish barriers are removed; and
4. $271,884 when the riparian habitat is planted-and flow is restored to the stream reach.
Invoice 4 will be adjusted based on the formula in II.S.A.2.
Page 3 of 6
6. Other Costs
All staff costs, overhead and other similar expenses will be borne by the CITY or DISTRICT,
whichever incurs the cost.
7. DISTRICT Use of Park Facilities
DISTRICT may use park facilities up to 4 times per year for meetings of less than 25 people at
same rates charged to CITY staff.
III. GENERAL PROVISIONS
1. Term of the Agreement
Term of the Agreement will be for a period of 3 years from the effective date.
2. Assignability
Both CITY and DISTRICT agree that particular work assignments have been made in the interest
of dividing the work to complete the Project. Without the written consent of the other, neither CITY nor
DISTRICT will assign or transfer any interest in this Agreement or any of the obligations hereunder
except to contractors or consultants working directly for them. Any unauthorized attempt by CITY or
DISTRICT to assign or transfer will be void and of no effect.
3. Indemnification
CITY and DISTRICT will each defend, indemnify, and hold harmless the other party, its
directors, council members, employees, and agents against any claim, loss or liability arising out of or
resulting in any way from work performed under this Agreement due to the willful or negligent acts
(active or passive) or omissions by the CITY or DISTRICT or its directors, council members, employees,
and agents.
4. Nondiscrimination
CITY and DISTRICT will not discriminate, in any way, against any person in connection with or
related to the performance of this Agreement because he/she is a veteran or because of a physical or
mental disability (including HIV and AIDS), nor on the basis of race, color, religion, gender, national
origin, ancestry, marital status, sexual orientation, age (over 40), medical condition (cancer) parental
status, pregnancy, the exercise of family care leave rights, or political affiliation.
5. Termination
A. Either CITY or DISTRICT has the right to terminate this Agreement, without cause, by giving
not less than athree-month written notice of termination to the other PARTY.
B. If either CITY or DISTRICT fails to perform any of its material obligations under this
Agreement, in addition to all other remedies provided by law, the other PARTY may terminate
this Agreement immediately upon written notice.
C. The City Manager of CITY and the Chief Executive Officer of DISTRICT are empowered to
terminate this Agreement on behalf of their respective agencies.
D. In event of termination, CITY and DISTRICT will deliver to the other PARTY, upon request,
copies of reports, documents, and other work performed by either PARTY under this
Agreement. The cost of work performed under this Agreement to the date of termination will
be due and payable in proportion to the amount of work completed and in accordance with
Provision II.S (Payment).
Page 4 of 6
6. Governing Law and Compliance with Laws
CITY and DISTRICT agree that California law will govern this Agreement. In the performance
of this Agreement CITY and DISTRICT will comply with all applicable laws, ordinances, codes and
regulations of the federal, state, and local government.
7. Ownership of Materials
A. All reports, documents, or other materials developed or discovered by either CITY or
DISTRICT or any other person engaged directly or indirectly by them to perform the services required
hereunder will be and remain the mutual property of both PARTIES without restriction or limitation upon
their use. CITY and DISTRICT will make available to the other PARTY such other records under its
control as may be reasonably required for the PARTIES to perform under this Agreement.
B. CITY and DISTRICT will maintain all documents and records produced under this Agreement
for a minimum period of three years, of or any longer period required by law, from the date of termination
or completion of this Agreement.
8. Notification
Any and all notices or other communications required to be given hereunder will be deemed to
have been delivered upon deposit in the United States mail, postage prepaid, addressed as specified below
or as later amended in writing:
CITY DISTRICT
CITY of Cupertino Santa Clara Valley Water DISTRICT
10300 Torre Avenue 5750 Almaden Expressway
Cupertino, CA 95014 San Jose, California 95118-3614
Attn.: City Manager Attn.: CEO
9. Successors and Assigns
This Agreement, and all the terms, covenants, and conditions hereof, will apply to and bind the
successors and assigns of the CITY and DISTRICT.
10. Signing by Counterpart
This Agreement may be signed in counterpart and each signed document will constitute the whole
as if a single document was signed by both PARTIES.
11. Venue
In the event that suit is brought by either CITY or DISTRICT, each agrees that venue will be
exclusively vested in the state courts of either the County of Santa Clara, or in the United States Court,
Northern DISTRICT of California, in San Jose, California.
12. Disputes
A. This Agreement requires that CITY and DISTRICT work together in good faith to achieve the
intent of this Agreement. In the event that a dispute arises as to the proper interpretation of the respective
obligations and responsibilities of the parties under this Agreement, or as to any other aspect of this
Agreement, CITY and DISTRICT agree that they each will assign the appropriate individuals to meet and
make good faith efforts to negotiate in order to arrive at a resolution of the dispute.
B. If after employing this informal resolution process either CITY or DISTRICT may request an
independent, mutually agreed upon mediator to facilitate further negotiation with the costs shared equally
between each PARTY. However, nothing herein will prevent either CITY or DISTRICT from exercising
any rights it may have to enforce the terms of this Agreement at law or in equity.
Page 5 of 6
13. Waiver
The CITY and DISTRICT agree that waiver by either PARTY of any breach or violation of any
term or condition of this Agreement will not be deemed to a waiver of any other term of condition
contained herein or a waiver of any subsequent breach or violation of the same or any other term or
condition. The acceptance by a PARTY of the performance of any work or services by the other PARTY
will not be deemed to be a waiver of any term or condition of this Agreement.
14. Amendments
This Agreement may be amended, upon mutual agreement of the City Manager of CITY and the
General Manager of the DISTRICT in writing.
CITY OF CUPERTINO
By:
David W. Knapp
City Manager
Date ~ . ~ ~~
ATTEST:
~~
City Clerk
APPROVED A TO FORM
/ ~~~/
Ci~'y Attorney
DISTRICT
By: ~ ~ C~~~~
Ol Martin Steele
Chief Executive Officer
Date
Page 6 of 6
APR 2 ~ 200
ATTE T:
Cler of the Board
AP OVED AS TO FORM
C
Assistant District Counsel