13-078 Cupertino Sanitary District, Relocation of Sewer Pipes Stevens Creek Corridor Phase 2 AGREEMENT
Stevens Creek Corridor Park and Restoration Phase 2 Project—
Cupertino Sanitary District Sewer Main Relocation
Cost Sharing Agreement
This AGREEMENT is made and entered into on 6''l1-- , 2013, by and between the CITY
of Cupertino (CITY) and the CUPERTINO SANITARY DISTRICT (CuSD), also referred to as Party or
collectively as PARTIES.
RECITALS
1. CITY and SANTA CLARA VALLEY WATER DISTRICT (SCVWD) 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.
2. The Stevens Creek Corridor Master Plan and mitigated negative declaration prepared pursuant to
CEQA were completed in June 20, 2006 by CITY; and
3. CITY has completed, from the Stevens Creek Corridor Master Plan, a first phase of project
improvements that included a pedestrian-bicycle trail, public amenities,the removal of barriers to fish
passage, creek restoration and riparian and upland plantings, and the creation of freshwater wetland
areas next to the creek; and
4. CITY identified a second phase project which includes an extension of the pedestrian-bicycle trail,
additional public amenities, improvement of conditions for fish and wildlife, creek restoration and
riparian and upland plantings, creation of a freshwater wetland area next to the creek, and relocation
of a sanitary sewer main (the "SCC Phase 2 Project"), and approved a mitigated negative declaration
for the SCC Phase 2 Project on September 20,2011; and
5. CITY desires to construct the improvements identified in the SCC Phase 2 Project, which will open
to the public city-owned land north of Blackberry Farm Park along Stevens Creek, extend the Stevens
Creek Trail to northward to Stevens Creek Boulevard,and provide a restored creek channel with good
fish passage and steelhead rearing habitat, and a freshwater wetland area adjacent to the stream
channel,to provide for creek restoration and protection of local wildlife and other benefits; and
6. The proposed creek restoration requires the relocation of the existing sanitary sewer main, and CuSD
wishes to share the relocation costs with the City because it shares an interest in maintaining and
promoting healthy creeks
NOW THEREFORE, in consideration of and upon the terms and conditions hereinafter specified, the
Parties agree as follows:
1. Project Description for Cost Sharing Agreement
A portion of the SCC Phase 2 Project involves the relocation of a section of sanitary sewer main
on the east side of Stevens Creek within Blackberry Farm Golf Course, between two existing manholes
along the 8th and 9th golf holes (the "Sewer Relocation"). The scope of the Sewer Relocation includes the
installation of approximately 695 feet of HDPE pipe, one new manhole, and reconstruction of two
existing manholes. Upon completion and acceptance by CuSD board, the City plans to grant the new
sanitary sewer main and corresponding utility easement the District.
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Because the Sewer Relocation benefits the community., the City, and CuSD, CuSD desires to share in the
cost of the Sewer Relocation. The purpose of this Agreement is to provide the terms for cost sharing for
the Sewer Relocation.
2. Project Manager
CITY will be solely responsible for the implementation and construction of the SCC Phase 2
Project. CuSD will have no responsibility for implementation or construction of the SCC Phase 2 Project.
Any consultants or contractors will be wholly City responsibility.
3. California Environmental Quality Act(CEQA)
CITY has acted as the lead agency and project proponent as described by CEQA. A Mitigated
Negative Declaration for the SCC Phase 2 Project was prepared and adopted by the CITY on September
20, 2011.
4. 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.
5. Staff Support
CuSD will provide limited staff support, as determined by CuSD, at no cost to CITY for
coordination with CITY, including attending project team meetings, attending public meetings, reviewing
documents and reviewing construction progress of project elements covered by this Agreement.
6.Payments
A. CuSD will provide payments to the CITY for completion of the Sewer Relocation up to a
total of seventy four thousand six hundred dollars ($74,600.00) as follows: (1) ten
thousand dollars ($10,000) for general engineering costs; (2) one half of the total
construction cost of the Sewer Relocation.
B. City will invoice CuSD on completion of construction for the Sewer Relocation.
C. CuSD will pay invoices from the CITY within 45 days.
7. Other Costs
All staff costs, overhead and other similar expenses will be borne by the CITY or CuSD,
whichever incurs the cost. CuSD agrees to prepare and pay for appropriate easement and quitclaim
documents related to the sewer main relocation for City review and approval
8.DISTRICT Use of Park Facilities
CuSD may use park facilities up to 4 times per year for meetings of less than 25 people at same
rates charged to CITY staff and consistent with City pclicy regarding rental and use of City facilities.
9. Term of the Agreement
Term of the Agreement will be for a period of 3 years from the effective date.
10.Assignability
Without the written consent of the other, neither CITY nor CuSD 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 CuSD to assign or transfer will be void
and of no effect.
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11.Indemnification
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, the parties agree that all losses or
liabilities incurred by a party shall not be shared pro rata but instead the City and CuSD agree that
pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold
each of the other parties, their officers, board members, employees and agents, harmless from any claim,
expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8)
occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its
officers, board members, employees or agents, under or in connection with or arising out of any work,
authority or jurisdiction delegated to such party under this Agreement, provided, however, that in no
event shall CuSD be liable for an amount in excess of the total set out in paragraph 5 of this Agreement.
No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage
or liability occurring by reason of the negligent acts or omissions or willful misconduct of other parties
hereto, their officers, board members, employees or agents, under or in connection with or arising out of
any work, authority or jurisdiction delegated to such other parties under this Agreement.
12.Nondiscrimination
CITY and CuSD 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 military 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.
13.Termination
A. Either CITY or CuSD has the right to terminate this Agreement, without cause, by giving not
less than a three-month written notice of termination to the other PARTY.
B. If either CITY or CuSD 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 District Manager/Engineer of CuSD are empowered to
terminate this Agreement on behalf of their respective agencies.
D. In event of termination, CITY and CuSD 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 up to and including the date of
termination will be due and payable in proportion to the amount of work completed and in
accordance with Provision 1I.5 (Payment).
14. Governing Law and Compliance with Laws
CITY and CuSD agree that California law will govern this Agreement. In the performance of this
Agreement CITY and CuSD will comply with all applicable laws, ordinances, codes and regulations of
the federal, state, and local government.
15. Ownership of Materials
A. All reports, documents, or other materials developed or discovered by either CITY or CuSD 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
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other records under its control as may be reasonably required for the PARTIES to perform
under this Agreement.
B. CITY and CuSD 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.
16.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 Cupertino Sanitary District
10300 Torre Avenue 20863 Stevens Creek Blvd. Suite 100
Cupertino,CA 95014 Cupertino, CA 95014
Attn.: City Manager Attn.: District Manager/Engineer
17. 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 CuSD.
18. 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.
19.Venue
In the event that suit is brought by either CITY or CuSD, 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.
20.Disputes
A. This Agreement requires that CITY and CuSD 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 CuSD 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 CuSD 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
CuSD from exercising any rights it may have to enforce the terms of this Agreement at law or
in equity.
21.Waiver
The CITY and CuSD 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.
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22.Amendments
This Agreement may be amended, upon mutual agreement of the City Manager of CITY and the
District Manager/Engineer of the CuSD in writing.
CITY OF CUPERTINO DISTRICT
By: / .-'' L�� By: 14 ,a,`; g:--114.7r
ZL
G David Brandt William Bosworth
City Manager Pro-Tern President of the Board of Directors
Date: 6 / / 7 7 ( Date: yt.e S / &J
ATTEST: ATTEST:
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City Clerk Pro-Tern Secretary of the Board
APPROVED AS TO FORM: APPROVED AS TO FORM:
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iy Attorney 1 / Di ' ounsel ��
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�/ OFFICE OF THE CITY CLERK
• CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
yot.19j. TELEPHONE: (408) 777-3223• FAX: (408)777-3366
WEBSITE:www.cupertino.org
CUPERTINO
June 18, 2013
Cupertino Sanitary District
Attn: District Manager/Engineer
20863 Stevens Creek Blvd., Suite 100
Cupertino, CA 95014
RE: Agreement
Enclosed for your records is a fully executed original copy of your agreement with the
City of Cupertino. If you have any questions, please contact the Public Works Department
at (408) 777-3354.
Sincerely,
Dorothy Ste fott
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Public Works