17-070 Santa Clara Valley Water District, Stream Bank Erosion Repair along Calabazas Creek North of Bollinger RdAGREEMENT BY AND BETWEEN THE CITY OF CUPERTINO AND THE
SANTA CLARA VALLEY WATER DISTRICT FOR
STREAM BANK EROSION REPAIR ALONG CALABAZAS CREEK
NORTH OF BOLLINGER ROAD
THIS AGREEMENT (hereinafter "AGREEMENT") is made and entered into as of the date it is
fully executed, by and between the CITY OF CUPERTINO (hereinafter "CITY"), a California
municipal corporation, and the SANTA CLARA VALLEY WATER DISTRICT (hereinafter
"DISTRICT"), a special district of the State of California . CITY and DISTRICT may be referred
to individually as a "Party" or collectively as the "Parties " or the "Parties to this Agreement."
RECITALS
WHEREAS, the DISTRICT is the sole owner of a portion of the west bank of Calabazas Creek,
as more particularly shown on Exhibit A, Calabazas Creek north of Bollinger Road : Location
Map ("Location Map"), attached hereto and incorporated herein; and
WHEREAS, erosion continued to impact DISTRICT's property, especially the west bank
described in Exhibit A, Location Map, of Calabazas Creek in an approximately 300-square-foot
area located east of, but in the vicinity of, East Estates Drive , and north of Bollinger Road ; and
WHEREAS , DISTRICT desired to prevent further erosion and determined repairing existing
erosion to be in DISTRICT's best interest because such repair work supports DISTRICT's
efforts to reduce the potential for impacting adjacent properties within CITY's jurisdiction as a
result of flooding ; and
WHEREAS , DISTRICT has the expertise and equipment to make such repairs effectively and
expeditiously, and has experience performing such work on stream banks; and
WHEREAS, CITY will provide funds to DISTRICT to repair the erosion (hereinafter
"PROJECT") in an amount equal to the administrative , design , and construction costs of labor,
equipment, and materials spent on the PROJECT; and
WHEREAS , by entering into this Agreement, the Parties are not in any manner contending or
establishing any liability or causation for the erosion , and this Agreement shall not be admissible
in any subsequent proceeding , if any, regarding such erosion; and
WHEREAS, DISTRICT was willing to perform the PROJECT funded by CITY in an amount not
to exceed the DISTRICT'S cost estimate for the PROJECT; and
WHEREAS, in October 2014 the District completed the PROJECT.
NOW THEREFORE, in consideration of their mutual promises and agreements, and subject to
the terms, conditions and provisions hereinafter set forth , the Parties hereto agree as follows:
City of Cupertino/SC VWD
Stream ba nk eros ion repa ir Agreeme nt
Cal abazas Creek north of Bo llin ge r Road
February 2017
1
AGREEMENT
1. DESCRIPTION OF PROJECT SITE
Approximately 300 square feet of erosion of the Calabazas Creek stream bank west of the main
river channel existed in the vicinity east of East Estates Drive, and north of Bollinger Road, on
the creek side of 10786 East Estates Drive as shown on Exhibit A, Location Map.
In 2010, DISTRICT repaired the bank and the outfall at this location. Subsequently, the steel
pipe from the manhole has failed. Routine and supplemental inspections by CITY and
DISTRICT staff revealed progressive deterioration of the stream bank , which was in need of
repair. The condition of the stream bank at this location was believed, by both CITY and
DISTRICT, to need repairs to maintain appropriate and necessary bank stabilization. In 2014,
DISTRICT'S internal staff performed the necessary repairs and completed the PROJECT.
2. SCOPE OF WORK
2.1 DISTRICT performed the following:
2.1.1 Administer, design, and execute the repair of the erosion described in
Section 1, and coordinate with appropriate local, state, federal, and
regulatory agencies, regarding any permits or approvals for PROJECT .
2.1.2 DISTRICT, as Lead Agency under the California Environmental Quality
Act (CEQA), will perform the repair work under DISTRICT's Stream
Maintenance Program (SMP) Environmental Impact Report and permits,
if authorized by appropriate regulatory agencies.
2.1.3 The repair entails over-excavating a portion of the existing stream bank,
replacing the failed portion of pipe from the manhole located near the top
of bank and installing appropriately-sized layers of boulders at the end of
the outfall pipe. Other affected stream bank surfaces will be hydro-
seeded to minimize the potential for future erosion and reduce the
likelihood of the stream bank being further compromised at this location.
2.2 CITY shall perform the following:
2.2.1 Act promptly to issue an encroachment permit at no cost to DISTRICT, if
deemed necessary by CITY, for DISTRICT to perform and complete
PROJECT in a timely manner to meet the time requirements set forth in
2.1.4.
2.2.2 Ensure its obligations are met as Responsible Agency under CEQA.
2.3 The designated project manager for DISTRICT for the duration of the PROJECT
is Greg Meamber. DISTRICT's project manager shall have all the necessary
authority to direct technical and professional work within the scope of the
AGREEMENT and shall serve as the principal point of contact with CITY. The
designated project manager for CITY for the duration of the PROJECT is Chad
Mosley. Except as superseded by existing CITY law, rule or practice, CITY's
project manager shall have all the necessary authority to review, approve, and
City of Cupertino/SCVWD
Stream bank erosion repair Agreement
Calabazas Creek north of Bollinger Road
February 2017
2
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accept technical and professional work within the scope of the AGREEMENT and
shall serve as the principal point of contact with DISTRICT.
2.4 CITY shall remain the owne r of its outfall on Calabazas Creek downstream of
Bollinger Road notwithstanding DISTRICT'S performance of the PROJECT.
3. COST-SHARING OF PROJECT
3.1 CITY shall pay to DISTRICT the amount of $135 ,000 for performing the
PROJECT, which was the DISTRICT'S engineer's estimate of the cost of the
PROJECT prior to its construction .
3.2 CITY shall make payment to DISTRICT no later than 45 days after full execution
of this AGREEMENT.
4. INSURANCE AND INDEMNIFICATION
4.1 In lieu of and notwithstanding the pro rata risk allocation , which might ot herwise
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 , DISTRICT and CITY 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 in Government Code Section 810 .8) occurring by
reason of the negligent acts or omissions or willful misconduct of the
indemnifying Party, its officers , employees, or agents , under or in connectio n with
or arising out of any work , authority, or jurisdiction delegated to such Party under
this AGREEMENT . No party, nor any officer, board member, or agent thereof
shall be responsible for any damage or liability occurring by reason of the
negligent acts or omissions or willful misconduct of the other Party hereto , its
officers , board members , employees , or agents, under or in connection with or
arising out of any work authority or jurisdiction delegated to such other Party
under this AGREEMENT.
4 .2 DISTRICT and its contractor, if any, performing the work, will secure and
maintain in full force and effect, at all times during PROJECT execution and until
PROJECT completion, bodily injury insurance, property damage insurance and
contractual liability worker compensation and auto coverage in forms and limits of
liability acceptable to both DISTRICT and CITY, naming DISTRICT and CITY
and their respective officers , employees , and agents as additional insured from
and against all damages and claims , loss of liability, cost of expense arising out
of or in any way connected with the PROJECT. DISTRICT is self-insured and
can meet any required obligations through self-insurance.
4.3 The rights, duties , and obligations of the Parties as set forth above in this Section
4 of this AGREEMENT will survive termination , completion , suspension , and
expiration of this AGREEMENT.
Ci ty of Cupert ino /SCVWD
Stream bank erosion repa ir Agreement
Ca labazas Creek north of Bollinger Road
February 2017
3
5. ADDITIONAL PROVISIONS
5.1 A Party's waiver of any term , condition, covenant, or breach of any term,
condition or covenant shall not be construed as a waiver of any other term ,
condition, or covenant or breach of any other term, condition , or covenant.
5.2 This AGREEMENT contains the entire AGREEMENT between DISTRICT and
CITY relating to PROJECT. Any prior agreements, promises, negotiations , or
representations not expressly set forth in this AGREEMENT are of no force or
effect.
5.3 If any term , condition or covenant of this AGREEMENT is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this AGREEMENT shall be valid and binding on DISTRICT and
CITY.
5.4 This AGREEMENT shall be governed and construed in accordance with the laws
of the State of California .
5.5 This AGREEMENT may be executed in counterparts and will be binding as
executed .
5.6 The term of this AGREEMENT shall commence upon execution of the
AGREEMENT by both parties and terminate upon PROJECT completion
notification by DISTRICT and receipt by DISTRICT of payment in full by CITY.
5 . 7 All changes or extensions to this AGREEMENT must be in writing in the form of
an amendment approved by both Parties .
5.8 This AGREEMENT is entered into only for the benefit of the Parties executing
this AGREEMENT and not for the benefit of any other individual, entity, or
person.
5.9 The DISTRICT and its contractors , if any, shall comply with the City's Labor
Compliance Program and all other requirements set forth in Labor Code section
1770 et seq ., will pay prevailing wages and mainta in certified payroll records.
5.9.1 The DISTRICT and its contractors, if any, shall comply with California
Labor Code Section 1810, et seq. which provides that work performed by
employees of contractors in excess of 8 hours per day, and 40 hours
during any one week, must be compensated as overtime , at not less than
1 ½ times the basic rate of pay.
5 .9.2 PAYROLL RECORDS : the DISTRICT and its contractors, if any, shall
Ci ty of Cuperti no/SCVW D
comply with California Labor Code Section 1776 which requires certified
payroll records be maintained with the name , address , social security
number, work classification , straight time and overtime hours worked
each day and week , and the act ual per diem wages paid to each
St ream ba nk eros ion repair Agreement
Cala bazas Creek north of Bo lli nge r Road
February 2017
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made available for inspection as provided in California Labor Code
Section 1776.
5.9.3 APPRENTICES : The DISTRICT and its contractors, if any, shall comply
with California Labor Code Section 1777 .5 regarding apprentices.
6. TERMINATION
6.1 Either DISTRICT or CITY may, upon thirty (30) days ' written notice, terminate
this AGREEMENT at any time prior to DISTRICT'S commencement of the
PROJECT.
6 .2 Once the PROJECT work commences, this AGREEMENT may be terminated
only upon the mutual written consent and terms acceptable to both Parties .
7. NOTICES
7.1 All correspondence relating to the PROJECT , including all notices required by
the terms of this AGREEMENT may be delivered by first class mail addressed to
the appropriate Party at the following addresses :
To D IST R ICT:
To CITY:
Santa Clara Valley Water District
5750 Almaden Expressway
SanJose,CA 95118
Attn: Greg Meamber, Senior Engineer
( 408) 630 -3016
gmeambe r@valleywate r.o rg
City of Cupertino
Public Works Department
10300 Torre Avenue
Cupertino , CA 95014
Attn : Chad Mosley, Senior Engineer
(408) 777-7604
ChadM@cupertino .org
(Remainder of page intentionally left blank ; signatures follow on next page)
City of Cupertin o/SCVWD
Stream ba nk erosio n repa ir Agreement
Ca labazas C reek no rt h of Bol linger Road
February 2017
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IN WITNESS WHEREOF, the Parties have executed the AGREEMENT the day and year set
forth above.
CITY:
CITY OF Cupertino, a California municipal corporation
By: @ ~Director of Public Works
APPROVED AS TO FORM:
~ tb.ld ~ Randolph Hom, City Attorney
ATTEST:
By ~Xi s::::--;s-17
Grace Schmidt, City Clerk
DISTRICT:
CT, a special district
APPROVED AS TO FORM:
By:
Leslie Orta, Senior Assistant District Counsel
City of Cupertino/SCVWD
Stream bank erosion repair Agreement
Calabazas Creek north of Bollinger Road
February 2017
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Date:
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EXHIBITA
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CALABAZAS CREEK, EAST OF EAST ESTATES DR
& NORTH OF BOLLINGER RD
LOCATION MAP
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