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16-059 License Agreement, County of Santa Clara and the City of Cupertino for Property Along Lawrence Expressway Just North of Mitty Way, APN 375-21-001 County of Santa Clara RECEIVED �ouN T� Roads and Airports Department ��2'���� � ��i�O FEB 1 7 2�16 � � /�: �� �/ `s � ,�� I o I Skyport Drive PUBLIC WORKS DEPARTMENT "y �a� Sanlose. Cali(ornia�s� �a�soz �TA GV� 1-4-05-573-2400 February 12, 2016 John Raaymakers Public Works Project Manager City af Cupertino 10300 Torre Avenue Cupertino, CA 95014 Subject: License Agreement for permission to preform environmental testing on Santa Clara County property (APN: 375-21-001), San Jose, CA Dear Mr. Raaymakers: Enclosed is a fully executed original license agreement for the County parcel located adjacent to the Lawrence Expressway just north of Mitty Way in San Jose. Please contact me two days in advance of entering the property so arrangements can be made to unlock the gate. Regards, i - ��1, n C�4�� �(�'��-(��— < .� Frank Schober Associate RealEstate Agent Roads & Airports Department County of Santa Clara Board of Supervisors: A9ike N'asserman, Cindy Chaaez. Da��e Cortese, Ken Yeager.5. Joseph Simitian � Counry Executive:Je((rey v.Smith ,ra, LICENSE AGREEMENT BETWEEN THE COUNTY OF SANTA CLARA AND THE CITY OF CUPERTINO FOR PROPERTY ALONG LAWRENCE EXPRESSWAY JUST NORTH OF MITTY WAY (APN: 375-21-001) This is a License Agreement (the"Agreement-') by and between the CountS� of Santa Clara ('County') and the City of Cupertino. a municipal corporation ('Licensee"). The parties hereby agree to the terms and conditions of this License as follow�s: 1. Grant of License and Premises The County hereby grants a non-exclusive. revocable license ('License") to Licensee and its duly authorized employees, oPticers. agents and representatives to enter onto County owned property located adjacent to Lawrence Expressway just north of Mitty Way (APN 375- 21-001) in San Jose. California. and more particularl; sho��n in Exhibit "A", attached hereto and incorporated by reference herein (the "Premises"). The Licensee shall notif}� Coimty rivo (2) days prior to entering the Premises. Licensee shall access the Premise through the eristing County gate located along the Lawrence Expressway. In no event shall the term of this License estend beyond March 31. 2016. 2. Permitted Use The License is for the limited purpose to allow Licensee to enter the Premises to perform encironmental testing_ includine soil boring and sampling. The Licensee shall follow all ofthe Count�'s requirements reYerred to in Exhibit C. attached hereto and incorporated herein by reference. The County reser�es the right to observe all sampling and obtain duplicate samples at the timc the Licensee performs the sampling. The Licensee shall provide copies of its test results from the sampling to the County �vithin thirty (30) calendar days after receipt of same. All soil from sampling shall be remoced from Premises on the date of sampling. 3. Term This Agreement is effective when fully executed and terminates March 31, 2016, unless terminated earlier pursuant to this Agreement This Agreement ma}' be terminated earlier b}' either party. in whole or in part, upon ten (10) calendar day written notice for any reason �chatsoe��er. Lieensee shall ��aeate and eease to hace aecess to the Premises ten (10) calendar da}'s follo��ing the Countti's notice of termination and shall be responsible for cleanup of the Premises pursuant to Section 8 herein. The County at its sole option may require Licensee to remediate any violation of the tenns and conditions of this License bevond the termination date of this License. 2016 License Agreement# 00t APN: 375-21-001 City of Cupertino 4. Premises As Is; Assumption of Risk Count}' provides the Yremises "as is" and makes no representations regarding the condition or suitability of the Premises for any use. Licensee assumes all risks and damages to persons or property caused by the exercise oY Licensee's privileges granted under this Agreement or by any �vrongdoing or negligent act or omission of Licensee. Licensee waires any and al] claim against the County for injuries or damages sustained by Licensee at the Premises and for any injuries or damages to property. except to the eYtent caused by County's sole negligence or willful misconduct as determined by a court of competent jurisdiction. �. Repair and Vlaintenance Licensee shall keep the Premises in �ood and attractive order, condition and repair, normal wear and tear excepted. County retains the right to make any alterations, improvements or additions to the Premises. Licensee shall not make. or permit to be made, any alteration. addition or improvement to the Premises without the prior written consent of County, whicli consent may be granted. conditionally granted, or �i ithheld in Count�'s sole discretion. 6. Utilities and Services Licensee at its sole cost and expense shall furnish the Premises with all utilities required for Licensee's intended use of the Premises. 7. Site Specific Safety Plan Prior to commencing tlie acti�ities on the Premises, Licensee shall ha�e a Site Specific Safetr Plan appropriate to soil boring and sampling. The Site Specific Safety Plan shall indude instructions regarding procedures and contacts in the event of emergency. Licensee shall provide County with a copy of the Site Specific Safet} Plan �cithin ten calendar days of written request by the County. 8. Clean Up Licensee shall clean-up and restore the Premises upon termination of this License. Premises clean-up and restoration shall be to the satisfaction oY County. Premises clean-up and restoration shall be completed b}' the date of termination. Licensee shall be responsible for the removal and disposing of all materials generated by Licensee or utilit}' workers, induding but not limited to, debris. trash, fuel, construction material and equipment, discharge, leakage, spillage, emission or pollution of any type at an authorized facilit}' at Licensee's expense. In the event Licensee does not clean up the Premises to the satisfaction of the County and the County incurs clean-up costs. Licensee shall reimburse the County all costs incurred within thirty (30) calendar days of a request for reimbursement by the County. 9. Assignment This Agreement and the License granted hereunder are personal to Licensee, and shall not, without the prior written consent of County. �hich may be withheld in the sole and absolute discretion of County, be assignable in whole or in part. 2 2016 License Agreement# 001 APN: 375-21-001 City of Cupertino ]0. No Interest in Property No Iegal title or leasehold interest in the Premises or appurtenances thereto shall be construed to have been created or ��ested in Licensee as a result of this Agreement, the license granted hereunder. or the use or occupanc}� of the Premises by Licensee. Neither this Agreement nor any memorandum or assignment hereof shall be filed in any place of public record by the parties hereto. 11. Obey All Laws Licensee shall comply �=ith all applicable Federal, State and local laws, statutes and ordinances, including, but not limited to, those go�erning its intended use of the Premises. Licensee further ackno�tiiedges that it �aill be subject to any amended rules. regulations, or standards during the term of this Agreement. If the amended rules, regulations, or standard would prohibit or materially adversely affect Licensee�s continued operation of its business activities under the terms of this Agreement Licensee shall have the right to terminate this Agreement as set forth herein. County shall not be liable to Licensee for any direct, indirect, or consequential damages of any kind on account of exercise of authority under this section. 12. Security Srstem If Licensee chooses to install a security system on the Premises for its own equipment, Licensee shall submit its plans Yor same to County for prior approval. 13. Pest Management Licensee is responsible for pest management on the Preinises. Licensee must compl}� ���ith the County's Integrated Pest Management and Pesticide Use Ordinance, Division B28 of the Santa Clara Countv Ordinance Code attached as Exhibit D. l4. Hazardous Materials Hazardous materials are defined as those substances listed in the Comprehensive Em�ironmental Response. Compensation and Liability Act 42 U.S.C. Section 9601 eI seq. ('CERCLA"), and the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et se2., or those �vhich meet the toxicity, reactivity. corrosieity or flammability criteria of the above regulations, as �iell as any other substance ��hich poses a hazard to human health or to the environment Licensee shall ensure that no hazardous materials are brou��ht onto the Premises. Licensee shall indemnifv. defend and hold harmless County. its ofticers. employees and agents, against any claim, liability. loss. expense or damage, including reasonable attorney s fees and costs, w�ith respect to the presence or remediation oY hazardous materials arising from or related to the use of the Premises b}' Licensee. This indemnity shall survive the termination or eYpiration of this License. 3 2016 License Agreement# 001 APN: 375-21-001 City of Cupertino I�. IndemniFcation and Insurance Licensee shall compl}' with the insurance and indemnification requirements set forth in Exhibit B attached hereto and incorporated herein unless proof of self-insurance is provided. The indemnity provided in Exhibit B shall survive any� temiination or expiration of this Agreement Licensee shall provide the Certificate(s) of Insurance ��hich e�idences meeting the insurance coverage prior to entr} onto the Premises. 16. Applicable Law This License and each and everq related document are to be governed by. and construed in accordance �ith, the la���s of the State of California. 17. County No Smoking Policy Licensee and its employees, agents and subcontractors, must compl}� with the County s No Smoking Policy, as set forth by the Board of Supervisors Policy Manual section 3.47 (as amended from time to time), which prohibits smoking: (1) at the Santa Clara Valley Medical Center Campus and all Count}'-o�vned and operated health facilities, (2) within 30 feet surrounding County-owned buildings and leased buildings wrhere the County is the sole occupant, and (3) in all County vehicles. 18. Severability If any provision of this License is held by a court of competent jurisdiction to be illegal, invalid or tuienforceable, the remaining provisions ��ill remain in full force and effect. 19. Non-Discrimination Licensee shall comply �vith all applicable federal, state. and local laws and regulations including Santa Clara County s policies concerning nondiscrimination and equal opportunity in contracting. Such laws include but are not limited to the followin¢: (I) I'itle VII of the Civil Rights Act of 1964 as amended; (2) Americans with Disabilities Act of 1990; (3) The Rehabilitation Act of 1973 (Sections 503 and 504)_ (d) California Fair Employment and Housing Act(Government Code sections 12900 eI se9.); and, (5) California Labor Code sections 1101 and 1 102. Licensee shall not discriminate against any subcontractor, employee, or applicant for employment because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, me�tal disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status in the recruitment, selection for training including apprenticeship, hiring. employment, utilization, promotion, layoff, rates of pay or other forms of compensation. 4 2016 License Agreement# 001 APN: 375-21-001 City of Cupertino 20. Notices All notices required to be given hereunder, or �n hich eitller party may wish to give, shall be in writing and shall be served either b} personal delivery or by certitied or registered mail, postage prepaid, addressed as follows: To Countv: To Licensee: County of Santa Clara Citp of Cupertino Roads and Airports Department Public Works Manager Real Estate Section 10300 Torre Avenue 101 Skyport Drive Cupertino, CA 9�014 San Jose. CA 95110 or to such other place as either party may designate by written notice. 21. Exhibits Exhibits: A through D, inclusive. which Exhibits are attached to this Agreement and incorporated herein bv this reference. 22. Entire Agreement This Agreement represents the entire agreement between the parties relative to tlie use of the Premises. An� prior or contemporaneous oral or �vritten agreements by and between the parties and tlieir agents and representati�es relative to such use are revoked and extinguished by this Agreement. 23. Authoriri� Licensee represents and ��anants that the person ��ho executes this Agrecment is duly authorized by Licensee to do so, and that all I,icensee and its personnel possess all the necessary licenses and petnlits required by any governmental agenc}� in order to carry out the purpose set forth in this Agreement. / / / / / / 5 2016 License Agreement#001 APN: 375-21-001 City of Cupertino 24. Counterparts This Agreement shall only become effective and binding upon full execution hereof by County and delivery of a signed copy to Licensee. This Agreement may be executed in one or more counterparts, and each of which, so executed, shall be deemed to be an original, and all such counterparts together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this License Agreement as follows: COUNTY LICENSEE Date: 2 /�� /�� Date: I �� � ` M�� . ��,� ���.� ��-- Michael M r ter, Director David Brandt, C�ty Manager Roads and irports Department City of Cuper[ino County of Santa Clara OFFICE OF THE COUNTY EXECUTIVE: �� ` � ;�- L� -��/� , . --% Sylvia �alle o� Date Deputy Coun(y Execut� APPROVED A ORM AND LEGALITY: ��`��/ E. Ray Ruiz Date Deputy County Counsel Attachments: Exhibit A Location Map Exhibit B Insurance and Indemnification Requirements Exhibit C General Provisions Exhibit D Integrated Pest Management Ordinance 6 � /�/J �. v\`�� �„�_� t i I L �/ l I 1 l I I I I I 1 I I I 1 I I I I I I � X '�LJ ` � �I I I � I I I I� ��� � O _ � ' � III I D ? 1 _I. 1 0 - m - - / - - I � ? LAWRENCE EXPRESSWAY � Q�� L_L_L_L_1_L_L� I I - - -�---- �3 �� I Q � � " " "� O � � MITTY � -r � O� i- HIGH SCHOOL _ � � _ _ I I � — ---� �i-- —'ssp'o— _ _ � �\ — _ __ ' � — — � \� � �—��—��-��� �� � ---I �`_" - _ � � � LOCATION MAP CITY OF CUPERTINO LICENSE AGREEMENT ( APN 375- 21 - 001 ) EXHIBIT B INSURANCE REOUIREMENTS FOR LICENSES WITH LICENSEES ON COUNTY PROPERTY Indemnitication To the tullest e�tent allo�ved b} la��, Licensee will indemnif}, reimburse, hold harmless and defend County including. without limitation. County's emplo�ees, agents, contractors. subcontractors and representatives (collectively. '`County�). from any and all Iiability, damages. loss. costs. and obligations. including, but not Iimited to, court costs and reasonable attorney's fees. arising out of an� claim. suit,judgment. loss or expense occasioned by. but not limited to. injur� or death of an} person or loss or damage to any propem. that is suffered or sustained b} Licensee induding. without limitation, its employees, agents. contractors. subcontractors and representatives. or any person using. occupying or visiting the Premises. or by any person in, on or about the Premises. from any cause �ahatsoever during the Tenn oFthe License. excepting onl�claims arising from the gross negligence or�villful misconduct of County. Licensee's obligation under this Indemnitication section «ill survive the tennination or expiration of this License with respect to an}'daims or liabilities arising out of an injurp to person or damaee to property that occurred during thc Tcnn of the Liccnsc and any holdover period. County� shall have the right to approve legal counsel providing Count}'s defense and such approval shall not be unreasonabl} withheld. Insurance Without limiting the Licensee's indemnitication of[he Count}. Licensee. shall at its own expense, provide and maintain the follo�ving insurance coverage in full force and effect throughout the term ofthis License: A. EvidenceofCoveraee Prior to commencement of this License. Licensee shall provide a Certificate of Insurance certifying that coverage as rcquired has been obtained. [ndividual endorsements esecuted b} the insurance carrier shall accompan} the certiticate. In addition. a certified copy of the policy or policies shall be provided by Licensee upon request. For long-tenn Licenses a periodic review/change of insurance requirements may be made every five years to ensure appropriate coverage by Coimty standards is in place. B. Oualifvin¢ Insurers AII policies shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V. according to the current Best's Key Rating Guide. unless othenvise approved by County's Insurance Manager. Re��. 02i2010(E�hibi�t3-�) I EXHIBIT B C. �]otice ofCancellation .VI covcrage as required herein shall not be canceled or changed so as to no longer meet the specified County insurance requirements without 30 days' prior �aritten notice of such cancellation or change being delivered ro the Count} of Santa Clara or their designated agent. D. Insurance Reauired L Commercial General Liabiliri� Insurance - for bodil�� injury (including death) and propertg damage which provides limits as follo�cs: a. Each occurrence - $1.000.000 b. General aggregate - $2.000.000 c. Personal Injw} - $L000.000 2. General liabilitv coveraee shall include: a. Premises and Operations b. Personal Injury liability c. Severabilityofinterest 3. General liabilitv coveraee shall include the follo�vine endorsemenC a coo�� of�vhich shall be orovided to Che Coimt��: Additional Insured Endorsement, ��hich shall read: "County of Santa Clara. and members of the 6oard of Supervisors of the County of Santa Clara. and the officers, agents, and employees of the County of Santa Clara, individually and collectively. as additional insureds.'� Insurance afforded b� the additional insured endorsement shall appl� as primary insurance. and other insurance maintained b} the County of Santa Clara, its ofticers, agents, and emplo�ees shall be excess onl� and not contributing with insurance provided under this polic�'. 4. Automobile Liabilitv Insurance For bodilr� injur�� (including death) and propertv damage �chich provides total limits of not less than one million dollars ($I.000.000) combined single limit per occurrence applicable to all o��ned, non-owned and hired vehicles. Re��. 02/2010(Fxhibit B-5) 2 EXHIBIT B 5. Workers' Comoensation and Emalover's Liability [nsurance a. Statutor� Califomia Workers' Compensation coverage including broad fonn all-states coverage. b. Gmployer's Liability coverage tor not less than one million dollars ($I.000_000) per occurrence. 6. Propertvinsurance Licensee shall maintain not less than fifty thousand dollars ($�0.000) Fire Legal Liability on all real property being Licensed. including improvements and betterments owned b} County�, and shall name Countc as a loss payee. Licensee shall also provide fire insurance on all personal property contained within or on the Licensed premises. The policy shall be written on a standard "all risk" conreact. excluding earthquake and flood. The contract shall insure for not less than nineq� (90) percent of the actual cash value of the personal property. and Licensee shall name County as an additional insured. 7. Interruntion of Business [nsurance Licensee shalL at its sole cost and expense. maintain business interruption insurance by «fiich the minimum monthly rent will be paid to Lessor tor a period of up to one (l) year if the premises are destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance. «ith vandalism and malicious mischieFendorsements E. Waiver of Subroeation Except as may be specifically provided for elsewhere in this License, Coimty and the Licensee hereby each mutually ��aive any and all rights of recovery from the other in event of damage to the premises or propem- of either caused by acts of God. perils of tire, ligh[ning, and all other all-risk perils as detined in insurance policies and forms approved for use in the state of Califomia. Each party shall obtain any special endorsements. if required by their insurer. to evidence canpliance�aith the aforementioned waiver. Rea.02/2010(G�hibit B-5) 3 EXHIBIT C GENERAL PROVISIONS 1. Emergency Contacts -Names and telephone numbers of two (2) responsible persons will be furnished to the Land Development Office at Skyport Drive prior to start of work for emergency contacts, twenty-four (24) hours a day, seven (7) days a week. The contractor or Licensee will have a supervisory representative available for contact on the project at all times during the construction duration. 2. Material Storage- No material will be stored near the edge of pavement, the traveled way, or within the shoulder line which would create a hazardous condition to the traveling public. 3. Traffic Protection - The Licensee shall make adequate provisions for the protection of the traveling public. Two (2) copies of a proposed traffc control procedure shall be submitted to the Land Development Permit Office for approval prior to any change in traffic patterns on any roads. 24 hours prior to starting work that i nvolves an approved traffic detour, the Licensee shall inform Santa Clara County. Communications al (408) 299-2501 and the appropriate local garbage collection company of the date(s), time(s) and details of the detour. 4. Traffc Lanes - Two (2) 12-foot traffic lanes shall be open to The traveling public during all hours of darkness, and on all weekends and holidays. One Lane, one-way traffic may be permitted under the control of not less than two (2) competent flagmen during normal working hours. No work within a traveled roadway shall be undertaken until all materials, equipment, and labor forces are available to pursue the work to completion within five (5) work days, unless prior approval is obtained from the Department. 5. Signs-Any signs to be constructed in the execution of this Permit are to be approved by the Roads and Airports Department of the Countyof Santa Clara prior to placement of signs. 6. Traffic Control Signs -Traffic control and warning signs shall be installed in accordance with the latest issue of "Manual of Traffic Controls for Construction & Maintenance Work Zones" of the State of California, Department of Transportation.(Caltrans). 7. Permanent Monuments - Any property corner stake, street monument or other permanent survey monument that will be disturbed during construction shall be shown on the plans for the work and referenced, removed and reset by competent persons legally qualified to perForm this work. 1 of 3 8. Facility Relocation - Licensee shall be responsible for any required relocation, and cost thereof, of existing utilities or encroachments which may be affected by this Permit. 9. Damages Caused By Licensee/Repairs - all necessary road repairs resulting from the encroachment permit work shall be made in accordance with County standards and specifications at the sole expense of the Licersee. The Licensee is required to repair any damage caused by the Licensee or its contractors as a consequence of labor performed under the Permit within the time indicated by the County. If the Licensee fails to make the repairs within the time indicated,the County at its sole option is authorized to repair the damage and may recover all cost incurred, including overhead and administrative costs, from the Licensee, its surety or insurance carrier. A. Prior to any construction activity in the vicinity of the fiber-optic facilities (i.e., conduit, fiber-optic cable, pullbox, splice enclosure, termination panel, and any related fiber-optic improvements), the Licensee or its Contractor shall pothole to locate, identify, and provide necessary precautionary measures to protect the existing fber-optic facilities within the Project limits from being damaged by construction activities. Potholing in dirt area shall be performed by hand and no power tool/equipment shall be permitted. B. If the fiber-optic facilities are damaged by the Licensee's or its Contractor's operations, the Licensee or its Contractor shall make the necessary repair to the damaged fiber-optic facilities in accordance with Section 86.01.06 "Maintaining Existing and/or Temporary Electrical Systems and Traffic Communication Systems" of the County Standard Specifications and the following. The interim and permanent repairs of the damaged fiber-optic cable and related facilities shall be in accordance with the requirements specified below. C. Intermit Repair and Replacement of Damaged Fiber-optic Cable and Related Facilities. a. Within 48 hours of the damage occurrence, the Licensee or its Contractor shall temporarily splice the fiber-optic cable using mechanical or fusion splicing, at the sole discretion of the County. After completion of temporary repairs, the County will determine whether the end equipment operates satisfactorily. If not, the County may direct The Licensee to replace the temporary mechanical splice with a fusion splice within 48 hours. This shall be considered an interim re air only to restore The County's Traffic Management System (TMS� The Licensee or its Contractor shall permanently repair other damaged facilities. such as conduit and pullbox, unless approved otherwise by the County. The repair shall be undertaken in the nearest junction box, by pulling available stack in the cable. If, in the determination of the County, insufficient stack is available, a new junction box shall be installed as directed. b. Within 30 days after the acceptance of the interim repair by the County, the Licensee or its Contractor shall obtain a modified encroachment permit and replace the damaged cable between the system's end-to-end splice points installed during the initial installation (as shown on the Fiber Splicing Details Map available for review in the Engineering Office of Traffic and Electrical 2of3 Operations). During this permanent repair process, the fiber-optic cable shall not be disconnected or the equipment communicating on the cable shall not become norroperational for more than 48 hours. A severrday notice shall be given to the Permit Inspection Unit of the Roads & Airports Department by calling (408) 573-2461 or faxing to (408) 441-0275 prior to any work associated with the permanent repair of the fiber-optic cable. The replacement cable shall be of length and type equivalent to The replaced cable. Cable material, installation and testing shall meet the requirements of the County Standard Specifications as follows: - Section 86.02.08E "Fiber-optic Cable", - Section 86.02.09C Installation of Fiber-optic Cable", - Section 86.02.090 (1) "Fiber-optic Connectors. - Section 86.02.09E S2� "Fiber-optic Cable Splicing, - Section 86.02.09G ' iber-optic Cable Splice Enclosure", and - Section 86.02.13D "Fiber-optic Cable Testing". OTDR and power meter tests shall be done after the repair to assure that a light loss is within the maximum allowable loss. This loss shall be determined by comparison of the test results with OTDR test res�ts on file at the County, derived from the most recent test on each fiber. The OTDR test shall be performed on each fiber strand. The power meter test shall be performed only on fibers terminated on both ends. Both tests shall be done at 1550 nrn and 1310 nm. D. In the event that the Licensee or its Contractor fails to make the necessary repairs and/or replacement of the fiber-optic facilities within the timeframe as specified herein, the County at its sole option may perform the necessary repairs and/or replacement, interim and permanent, of the dama ed facilities and recover all costs and expenses in accordance with the conditions o�the Permit . E. The Licensee or its Contractor shall guarantee the repair work for a period of one year from the date of acceptance by the County in accordance with Section 5.17 Correction of'Work & Guarantee of the County Standard Specifications. 3of3 �.XHIbIT � ORD]NANCE NO.NS-517,70 AN 012UINANCE OF THG BOARD OF SUPF,RVISORS OF TH�COUNTY OF SANTA CLARA ADDING DIVISION i328 OF THE 5ANTA CLARA COUNTY ORUIYANCE COD� R�LATING TO I�TF.GRATI:D P�ST NIANAGER4�NT Ah'D P�STICID� USG Stmmiary This ordivance adds provisions regarding tlte establishment of an Integrated Pest Mnn�gement Progrem Tnd regulates the use of pesticides on County Pj•oPeL•t3'. THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA ORDAINS AS POLL011�S: The Ordinance Code of tlie County of S�nta Clara is hereby amended by tlie addition of a new Division, to be en[itled and to read as follows: Division B28 INTEGRAT�D PEST NIANAG�niENT ANll PESTICIDE USE Cha�ter 1. Gencral Provisim�s Sectiou B28-1. Iutent nnd Pnrposc, T(ie County, in carryiug out its operations, finds it necessary from timc ro time to use pesticides on County property. The intent of this Division is to pintect the heal8i and safety of County employees and the general piiblic, the c�rvironment, �nd water quality, as wel(as to provide sustainable solutions for pest control on County propeity. The Board of Supervisors hereby finds and declares that it sliall be tlie policy of the County of S�ufa Clara to eliminate or reduce pesticide applications on County property to the maximum e�tent feasiUle. Preference shall be given to available non-pesticide alternatives,where feasible, before considering the use of pesticides on County property. This Division concerns the applicatiou of pesticides to property owned by the Count}�of Santa Clara only, and does not concern the application of pesticides to propeiiy that is not o�vued by the Couuty of Santa Clara. IP�i Ordinancc eage t o£t3 5/ztio2 Section B28-2. De6nitimis. Whe�iever used in this Division,the following teii�is shali have the me�nings set tbrtl�belo�v: (a) "Autimicrobial pesticidcs" are pcsticides, such as disinf'ectaiits and sanitizers, di�t are intended to ctisinfect, sanitize, reduce, or mitigate gro«rth or development of microbiotogical organisms; or prolect inanimate objects (for e�ample floors and walls), industrial processes or systems, surfaces,water, or other chemical substances from co�itamination, fotiling,or deterioration caused by bacteria,viilises, fimgi,protozoa,algae, or slimc. (b) "Approved LisP' is the list of pesticides authorized by the County IPM Coordinator For use on County Property developed in accordance�vitli sectio� B28-5. (c) "Carbamates" means esters on N-methyl carbamic acid, which inhibit cholinesterase. (d) "ContcacP' is a binding written agreement, uicluding but not limited to a contract, permit, license or lease behveett a person, firiu, corporation or other entity, including a governmental entity,and the County of Sauta Clara which gr�nts a right to use or occupy propeiiy of tlie Comity or�vhich pirovides pcst managaucnt services. (e) "Counq�Executive"is the County Executive or l�is or lier designee of the County of Santa Clara. (fl "Demonstration site" is a specific area or sitc designated by 1 department to evaluate the use of n pest m�nagement strategy. (g) "DepartmenP' is any agency or depaituic��t of thc Couc�ry of Santa Clara. Department does not inetttde the Vector Conhol District or�ny other local, state, or federal agency. (h) "Departmental IPM Coordinator"is someone desigi�ated by a department head to coordinate the Department's IPM program. (i) "Cowity IPM Coordinator"is tlie person designated by the Cou��ty Executive to implement and oversee the County of Santa Clara's IPM Program. (j) "Feasible"means capable of being accomplished in a successfid mam�er within a reasmiable period of time, taking into account economiq envirocnneutal,social, and tcchnological Fac[ors. (k) "Integrated Pest Management(IPM)" is a decision-ntaking process for man�ging pests using monitoring to determine pest-caused injury leveis and combining [P�4 Ordii��nce Page 2 of 13 Si21/02 biologicnl control, cultural practices, mecliauicel ai�d physical tools, aud chemicals to minimize pesticide usage. The method uscs cxtci�sive laiowledge about pests, such�s infestatiou thresholds, liFe histories,environntental requiremen�s, and natural enemies ro compleme��t and facilitate biological and other natural control o£pests. Tlie method uses the least hazardous pesticides only as a last resort for controlling pests. (I) "IPM Tecl�nieal Advisory�Group(IPM TAG)" is the technical advisory group to fhe County for the IPM Program and is further described in section 828-9. (m) "Organophosphates"meTus orgauophosphorus esters, whicl� inhibit cholinesterase. (n) "Pest" is any insect, rodent, nematode, fungus,weed, or any other form of terrestrial or aquatic plant or nnimal life or viius, bacteria, or other microorganism (except certain insects,viruses,bacteria, or other microorganism on or in living man m•living animnls). (o) "Pesticide" is �ny substance,or mixture of substances�vhicli is intended to be used for defoliating plants, regulaling plant growth,or for pceventing, destroying,repelling, or mitigating any pest,which may infest or be detrimeutal to vegetation,man, animals, or households, or be present in any ngricultural or nonagriculhu'al environment. Pesticide fw• purposes of this llivision does not include antimicrobial agents. (p} "Posting" is to place signs as idenlified in section B28-7 to infoem employees and the public of pesticide use at a given site. (q) "Signal Words"are the words used on a pesticide label--Danger, Warning, Cautiou--to indicate level of tosicity. (r) `°1'oxicity Category I Pesticide ProducP' is any pesticide product that meets United States Euvironroental Protection Agency criteria Yor Toxicity Categoiy I w�der Sectiai 156.10 of Part 156 of Title 40 of the Code of Federal RegulTtions. (s) "Toxicity Categoiy II Pesticide YroducP' is any pesticide product that meets United States Euviromnentaf Yrotection Ageucy criteria for Toxicity Category II under Section I 5G.10 of Part l56 of Title 40 of the Code of Federal Regulations, Secfion B28-3. General�xemptions. (a) 1'his Division sliall not apply to the use of any pesticide for the purpose of improving or maintaining water quality at any County owned or operated drinking water treatuient plants, waste�vater treatment pinnts, reservoirs, and releted collection, distribution, aud uertment facilities. IPM Ordinance Page 3 of l3 5/21/02 (b) Tliis Division shall not appfy to any use of pcsticides ai County propei�ty by any department when performing pest management or pcsticidc activitics autliorized by state or federal In�vs or regulutions. (c) Tliis Division shall not apply to tlte use of pesticides by the Vector ConUrol District. (d) This Division shall not apply to Tntimicrobial pesticides or pesticides used to control pests in or on living himians or animals. (e) This Division shall not apply to existing Contracts except as provided in sectiou B23-10. (fi) 'Chis Division shall not apply to Co�trTcts under negotiation at the time this Division becomes effective for a period of five years. Chapter 2. Pesticide Managemeut Secfim� B28-4. County L�tegrated Pest Management(IPD4)Program. (a) The County IPM Coordinator shall oversee and coordinite implemeutation of the IPM Prograui. (b) The IP�[Program shall include,Uut not be limited to, the following: (i) Ide��tify staff inember(s}respousible for program implementation; (ii) Acquaint Cou��ty workers with the IYM approach and ne�v pest management strategies, as they become kno�vn; (iii) Inform thc public of the County's effort to reduce pesticide use; (iv) Respwid to questions nbout the Cowity's pest management program and pr�ctices; (v) Conduct o��going educatioval programs,wliere�ppropriate; (vi) Maintain records and evaluate program effectiveness; (vii} Develop and maintain tlie Approved List of pesticides. (c) Depertments shall implement the IPM Program consistent with tlte [PM practices outlined below. \4'here Fe�sible, departiuents shall consider a range of potential treatmeuts for die pest problem and employ non-pesticide management tactics first, consider IP\1 Ordinance Page 4 of 13 5/2I/02 the use of chemicals only as a last resort, and scicct and use chemicl(s in nccordance with the provisions of this Division. The IPM practices shall include ways to: (i) ivtoniror pests to detenni�e pest population size,occurrence,�nd natural enemy population, if present Identify decisions and practices that could affect pest pupulations. Keep records of monitoring results; (ii) Set heatment levels foe each pest �t each site based on how much biological, aestltctic or ccouomic da�uage the site can tolerate; (iii) Dctcimiue the most effeclive treatment time, Uased on pest biology and other variables, such as weather, seasonal clianges in �vildlife use and local conditions; (iv) Design construction and building remodels to reduce or eliminate pest habitats and improve efficiency iu facility and landscape maintenance and sanitatio��; (v) Reduce pest incidences Uy modifying management practices such as �vatecing,mulching, ferfilizer use,and pilu7ing; (vi) �fodify pest ecosys[ems, including waste management and food storage, to reduce pest food, living space, and access; (vii) Use physical controls such as hand-weeding, traps and barriers, heat and cold; (viii) Use biological controls such as introducing or enhancing pests' n�tural enemies; (ix) When iudoors, use baits or least toxic metl�ods oFpes[con[rol rathec than sprays; (x) Nlonitor treatment to evaluate effectiveness; (xi) Maintain records as set forth in section B28-8. Secfion B28-5. Pesticide Usc. (a) Approved List. The County IPM Coordinator shalt develop the Approved List using a set of criteria that will be developed with the review and input of tlie IPM TAG. The criteria tvi11 take into account environmental anA human health hazards,pri�iciples of the IPM approach,and technically based metliods,conditions,and specifications for pesticide use.The Comrty IPM Coordinator shall maii�tain the Iist of approved pesticides that may be used on County property. The Approved List shall be reviewed and updated at IPM Ordinance Page 5 of l3 5l21/02 least lnnualfy. The IP�l4 Coordinator may amend tl�is list as needed at any time as long as the products are cousistent�vith tlie established criteria. These amendments shall be communicated to thc IPM TAU in writing at the qu�rterly meetings. (b) Speci£c Exemptions. An exemptiom m�y be obtained from the Cotuity IPM Coordinator for use of a product not on the Approved List as follows: (i) Oiie-year esemptions. The County IPM Coordi��ator may grant a specific exemptioo, with limited coi�ditions for use, for a one-year pw•iod upon a writteu request showing tliat a department has: (1) Identified the need for use; (2) �Iade a good-faith effort to find altcrnativcs to the pesticide; (3) [dentified or demonstrfited that effective ecomm�ic atternatives to the pesficide do not exis[for tl�at E�articular use; and (4) Developed a reasonable ptan for investigatiug�Iternatives to the pesticide during dte exemption period. (ii) An esemption may be continuetl beyond the one-year period by filie�g a uew request for exemptioii as required in subsection(b)(i)above. (iii) The County F,xectttive shall have Hie discretion to revoke any exemptiou. (c) Emergency use ofpesticides. (i) A depaitment respousible for maintenance of a site oc Facility may apply to the County IYM Coordinator for an emergency pesticide use cxemption in the event that a pest outbreak poses an immedilte threat to public health or may eTuse significant economic damage. (ii) if the County IPM Coordivator cannot respo��d to tlic application in� timely mauuer, the DeperUnental IPM Coordinator submitting the application may attthorize the one-time emergenc�� use of the required pesticide aud provide notice of the emergency application to the County IP�I Coordin�tor in �vriting�vithin 48 hours. (iii) Posting of emergency use of pesticides shall be at the time of pesticide application and comply �vith �II other posting requiremei�ts. (iv) Re�orti��g of the exemptio�� aud pesticide uce�vill comply�vith a!I other reporting requirements as stated in section B28-3. IPM Ordinance Page 6 of 13 5/21/02 Section B28-6. Restrictiou an Hie Use of Pesticides. Except for the use of pesticides exempted pursuant to sectioii II28-3, pesticides grautcd an cscmption pursuant to section B28-5(b) or 5(c)or pesticides on the Approved List per section B28-5(a),no deparhnent shall use any oPthe following types of pesticides. A list oi'tiie pesticides�nd pesticide produc[s identified in(b) through (g) below shall 6e on file�vith the Couuty IPivf Coordinator. (a) Toxicity C�tegory I or II pesticide products. (b) Any pesticide containing T chcmical identified by the State of Calif'ornia as a cliemicni known to the State to cause cancer or reproductive or devefopmental roxicity pursuant ro tlie California Safe Drinking Water and Toxic Enforcement Act of 1986. (c) Pesticides identified by the State of California on the Ground�vater Protection List(Section 13145 (d), Food and Agriculhn�al Code, Division 6. Pes[Contcol Operatio��s). (d) Pesticides classified by active ingredient as oiganophosphate type pcsticides as idcntified by Ute United States Enviro�miental Protection Agency(Office of Pesticide Programs, document 735-P-99-14, May 1999), or California F.nvironmental Protection Agency, Deparhne��t of Pesticide Regulation, Chemic2l viquiries Datlbase. (e) Pesticides coutaining carbamate-type chemicals(Califomia Gnvironmental Pro[ection Agency, llepartment of Pcsticidc Rcgulation, Chemical Inc�uiries DataUase.) (t) Any pesticide classified as a human carcinogen, probable human carcinogen or possible liumaii carcinogen bp tlte United States Environmenfal Yrotection Agency, under procedures estalilished in"Proposed Guidelines for Carcinogen Risk Assessment," F,PA/600/P-92/003C,April 1996, or equivalent documents. (g) Auy pesticide group officially designated by tlie California Environmental Protectiou Agency Department of Yesticide Regulation or by the United States F,nvironmental Protectimi agency as posing significant hazard to human health or the cnvironmcut. Sectiou B28-7.Postu�g of Pesticide Use. (a) F,xcept as provided for in section B28-5(c) and sectiou B28-7(b), any department that uses or authorizes the use of a pesticide sliall comply�vith the following posting procedures: IPM Ocdivance Page 7 of I3 5/21i02 • (i) Signs shall be posted at least tlu•ee days before application of ti�e pesticide and retnain posted at least four days after application, except for baits and emergeucy use of pesticides, which are posted at the time of tre�tment in accordance with section B28-5(c)(iii) above and subsection(b)(iii) below; (ii) For buildings and/or landscaped areas adjacent to buildings,signs sl�all be posted a[m�in entry poi�its where the pesticide is applied; (iii) For open areas, signs sli�ll be posted in highly visible locations arouud the perimeter of the area where the pesticide is�pplied; (iv) For vehicles used primarily by county staff,signs shal] be posted at aceas where vehicles are obtained or posting information shall be given to the primary drivers. (v) Signs shall contain the: (I) Trade name and active ingredieut of die pesticide product; (2) Target pest; (3) Date of posting; (4) Date(s) of anticipated pesticide use; tl�e date(s) of actual pesticide use�vill be postcd at the main entrance,park office, or designated site; (5) Signal word ittdicating tlic toxicity categoiry of ttie pesticide pmduct; (6) Date for re-entry of stafPand the public to tlie area treated if applicabte; (7) Iv�ame aud contact number for the department responsible for the application. (vi) Signs shall have a standard design tli<tt is easily recogiiizaUle by the public and�vorkers; (b) �xemptions to posting. (i) Departme�us shall not�e requirzd to post signs in accordance with section B28-7(a) in rigltt-of-way locations and ofher areas tliat the general public does not use for recreational purposes. IP\t Ordinance Page 8 of 13 5/21/02 (1) Each dcpaitmenc tlint uses pesticides in such locatio�s shall provide a public access telephone numUer for information 16out pesticide applications. The public access telephone number shall be posted in a prominen[location at the department's uiain office building. Inf'ormation provided shall include all the items in subsectiou{a)(v) above. (ii} Any pesticide granted an emergency esemption by the County IPM Coordinator shalt not be required to be posted prior to treatment. However,all other requirements for posting as set fortl� in section B28-7(a)shal(be followed. (iii) Any pesticide bait placed in a cont�iner or tr�p, or applied ns �gel or paste in a crack or crevice shall not be required to post signs prior to trealment. Baits, used iudoors, sltall be posted in the vicinity of application. Baits, used outdoors, sliall be posted in the main office, park of[ice,or a designated site. Signs shall be posted according to the requirements as set forth in seclion B28-7(a). (iv) The Couuty IPM Coordinator may in his or her discretion grant nccessary cxcmptions to tlic posting requirements. Section B28-8. Recm�d Keepiug and Reporting. (n) Each department th�t uses pesticides shnll keep records of pest mauagement activities, including information about demo��stration sites and exemptions. A copy oFthis information shall be placed in a centr�lized record keeping area in each department. Where feasible, this infonnation shail be kept in�notebook or elec[ronic equivalent maintained in each occupied building. Encit pest management activity such as pesticide application, uapping or inspection shall be recorded and,when applicable,ii�clude at le�st the following information: (i) Target pest and extent of problem; (ii) Product name,active ingredients, EPA Registration number, formulation, and quantity of pesticide used; (iii) Site of tlie pesticide applicatioii; (iv) Date of pesticide application; (v) Naroe of person conducting pest management activity; (vi) Application equipment number, if applicable; IP\�I OrAinance Page 9 of 13 5l21/02 (vii) Prevention and other non-chemical methods of control recommended or used, and; (viii) Evaluationofeffectiveness. (b) Tlic Departmcutal IPM Coordivator shall keep the following: (i) Records of pesticide use; (ii) A copy of'the label of all pesticides used; and, (iii) The material safety data sheet for each pesticide used. (c) Each dcpartmc�t tliat uses pesticides shall s�ibmit a summaty of pest management records required in section B28-8(a)and(b) to the County IPM Coordinator at least quartcrly. (d} Pest management records, including pesticide use records, are all public records. (e) Pesticide use records sl�all Ue kept indefinitely uutil au electroi�ic database lracking system lias been established. Chapter 3. IPM Implementation Section R28-9. Implementation oPCom�ty Integreted Pesf Management Ordinance. (�) Tliis Division shall be phased-i�i over one to two years in order to pcovide adequate time for det�eloping the Approved List, documenting current IPM pr�ctices andlor reductions, and identifying and implementing alternate pest ma��agement measures. The Cowity IPM Coordinntor shall develop a timetable and format for departments to e�ch submit a plan fa•implementing this Division. (b) A Teclmical Advisory Group(TAG)shall be formed and shall meet�t least four tiuies per year to review the County's IPM program and provide comments to the Cotmty Esecutive. `I'he following representatives�vill be invited to participatc on the'1'ACi: hvo from Pesticide Alternatives of Santa Clara Cotmty; one from the Sai�ta Clara Valley bVater District; one flom tlie County Agrictdtural Conunissioner; oiie from the Santa Clara Cowity Yol(ution Yrevention Committee;one County entployee re��resenting a labor oiganization; ai�d one representative from each of the follo�ving Santa Ciara County ageiicies and departmeiits: Roads aud Airports,Parks a�id Recreation, the Gcnecat Seil�ices Agency, Vnlley Heafth and Hospital System, and Occupational Safety and Environmental IP1�1 OrdinAnCc PTge 10 of 13 5%2 UO2 Compliauce. The Board of Supervisors may at their discretion make clianges to the compositimi of the grot�p as deemed necessa�y. (c) The IPM Coordinator shall provide a quarterly report to one or more Board- designated coinutittees on the stah�s of the IPiVi Program including information about pest problems, pesticide use, list of exemptions, goals a�id pragress, staff training and public education, and anticipa[ed changes that may�ffect pesticide use. Section B28-10. Couuty Contracts �ncl Ensements, (a) Lxcept as peovidcd in (i) below, �vhen a department enters into a new Contract(see section B28-2(d)) or amends an existing Contract to extend the term of the Contract for more than six months beyond the currenl temi nnd nny optionat extension periods, the Conhact shall require compliance with the provisions of this Division including those relating to pesticide restrictions, record keeping, and reporting. (i) The County Executive may orant an esemption for up to five years fi�om Contract compliance with all oi•part of the provisions of this Division in dte event compliance�vould negatively impact Coun[y revenues,prevent the highest and best use of an asset as determiued by thc County�xecutive, or where it is demonstrated tliat full compliance cannot be achieved. Notice of�ny exemption granted pursuant to this subsection(i) shall be given to the applicant and to the IPNI TAG. The notice shal] state that any person dissatisfied �vith the decision of the County Executive may file au appeal with tlie Clerk of tlie Board�vithin fifteen (15) calendar days of thc datc of thc notice. "Che appeal will first be heard before the County's FIousing, Land Use, Environmeiit, �ud Trauspoitafion Committee, wl�icli Committee shall m�ke a recomntendation to the [3oard of Supeivisors. The decision of the Board of Supeivisors shall be final. (b) A contractor,or depaitment on behaff of a contr�ctor, may apply for exemptions authorized under sectiou B28-5(b)aud(c),and this section B28-10. (c) When a department enters into a new lease in which the Counry is occcipying or using property not owned by the County(and thus not within the definition of Contcact iii section B28-2(d)), the County shall use reasonable e£forts to uegotiate Hie use of IPM practices as part of that lease. (d) In enrrent leases in which the County is occupying or using property not o�wied by the County, tlie County slmll encourage the tise of IPM practices whenever practical. (e) When the County is granted an easement, the maintenance of the easement sha11 be in compli�nce with this Division if consisten[with the terms of the easentent. IPM14 OrAinance Page I t of 13 5/21/02 (� A process, which incorporates a request for qualifications, shafl be used in the selection of all contractors fa•pest management services a��d shall Ue in compliance with wuut�� contracting policies and state (aw. "I'he Cotmty IPM Coordinator and the 1'AG ma}� participate iu die process. All contractors applyiug for pest uiauagement services sliall submit� Pest Management Plau, which outlines ho�v they will comPly �vi�h lhe IPM Ordinence. The Plan shall give preference to prevention and other non-pesticide or least tosic methods of pest contcol. Sectiou B28-I1. Pesticide Purchases. All pesticide products and pest co�itrol seivices tliat incfude pesticide applicatia�s shTll comply witli this Divisiou a�td be purchased through the County Prociuement department, not usiug tlic pctty cash or dircct pay metliods. Section B28-12.Policy aud Guidelines. The Cou��ty Executive may recommend policy for Board approval and issue guidelines to implement this llivision. Secfion B2S-13. No Criminal Penalfies or Sflnctions. The provisions of sections A 1-28 of the Sant� Clara County Ordinance Code shall not apply to this Division; nor shall any person, or government official, board, comntission, or agenc}� be respo�tsible For any criminal penalties for�ny violation of the Division. // // // // // // /! // // /! // {/ // (/ // // IPbi Ordinancc Page 12 of 13 Sl21l02 Section 527-14.No Civil Liabilify fo.r Violations of this Chapter. This Division and the�rovisions are directory, az�d are intended to set fo�th goais and program elements for management of pests az�d pesticide use. This chapter is not intended to create a standard of civil liaUility for the acts or faiture to act of the Coimty and its employees and contractors. No person, govemment official, board,commission, or agency shall Ue liaUle in any civil action or proceeding for damages for violation of any of the provisions of this Division. PASSCD AND ADO��E� � the2�p�{d of Supervisors of the County of Santa Clara, State of Califomia,on � U� by the following vote: AYES: AI,VAitADO, IIFALL, GaCP., I:lJTS�J, MCS{QGH NOES: l�.rt�l�; r1BSENT: s ��'�,a�;��z ABSTAIN: %r;.)F;� G������ f�� Donald P: Gage, Chairj� rsc�fi Board of Supervisors . ATTEST: C�;�G�� �(�� P Y IS A. PERIsZ, � C1erk of the Board of Supervisors APPROVED AS 'CO FORM AND LEGALTI'Y: �a-��,.t����`�, Kathy KretEhmer Deputy County Counse► IPM Ordinance Ynge 13 of 13 5l21/02