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16-113 County of Santa Clara, License Agreement for Property Along Lawrence Expressway Just North of Mitty Way, 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 County 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 follows: 1. Grant of License and Premises The County hereby grants a non-exclusive, revocable license ("License") to Licensee and its duly authorized employees, officers, 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 particularly shown in Exhibit "A", attached hereto and incorporated by reference herein (the "Premises"). The Licensee shall notify County two (2) days prior to entering the Premises. Licensee shall access the Premise through the existing County gate located along the Lawrence Expressway. In no event shall the term of this License extend beyond October 31, 2016. 2. Permitted Use The License is for the limited purpose to allow Licensee to enter the Premises to perform environmental testing, including soil boring and sampling. The Licensee shall follow all of the County's requirements referred to in Exhibit C, attached hereto and incorporated herein by reference. The County reserves the right to observe all sampling and obtain duplicate samples at the time the Licensee performs the sampling. The Licensee shall provide copies of its test results from the sampling to the County within thirty (30) calendar days after receipt of same. All soil from sampling shall be removed from Premises on the date of sampling. 3. Term This Agreement is effective when fully executed and terminates October 21, 2016, unless terminated earlier pursuant to this Agreement. This Agreement may be terminated earlier by either party, in whole or in part, upon ten (I 0) calendar day written notice for any reason whatsoever. Licensee shall vacate and cease to have access to the Premises ten (I 0) calendar days following the County'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 terms and conditions of this License beyond the termination date of this License. 2016 License Agreement# 003 APN: 375-21-001 City of Cupertino 4. Premises As Is; Assumption of Risk : County provides the Premises "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 of Licensee's privileges granted under this Agreement or by any wrongdoing or negligent act or omission of Licensee. Licensee waives any and all 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 extent caused by County's sole negligence or willful misconduct as determined by a court of competent jurisdiction. 5. Repair and Maintenance Licensee shall keep the Premises in good 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, which consent may be granted, conditionally granted, or withheld in County'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 intehded use of the Premises. 7. Site Specific Safety Plan Prior to commencing the activities on the Premises, Licensee shall have a Site Specific Safety Plan appropriate to soil boring and sampling. The Site Specific Safety Plan shall include instructions regarding procedures and contacts in the event of emergency. Licensee shall provide County with a copy of the Site Specific Safety Plan within 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 of County. Premises clean-up and restoration shall be completed by the date of termination. Licensee shall be responsible for the removal and disposing of all materials generated by Licensee or utility workers, including but not limited to, debris, trash, fuel, construction material and equipment, discharge, leakage, spillage, emission or pollution of any type at an authorized facility 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, which may be withheld in the sole and absolute discretion of County, be assignable in whole or in part. 2 r 2oi6 License Agreement# 003 APN: 375-21-001 City ofCnpertino_ 10. No Interest in Property No legal title or leasehold interest in the Premises or appurtenances thereto shall be construed to have been created or vested in Licensee as a result of this Agreement, the license granted hereunder, or the use or occupancy of the Premises by Licensee. Neither this Agreement nor any memorandum or assigmnent hereof shall be filed in any place of public record by the parties hereto. 11. Obey All Laws Licensee shall comply with all applicable Federal, State and local laws, statutes and ordinances, including, but not limited to, those governing its intended use of the Premises. Licensee further acknowledges that it will 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 System If Licensee chooses to install a security system on the Premises for its own equipment, Licensee shall submit its plans for same to County for prior approval. 13. Pest Management Licensee is responsible for pest management on the Premises. Licensee must comply with the County's Integrated Pest Management and Pesticide Use Ordinance, Division B28 of the Santa Clara County Ordinance Code attached as Exhibit D. 14. Hazardous Materials Hazardous materials are defined as those substances listed in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), and the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq., or those which meet the toxicity, reactivity, corrosivity or flammability criteria of the above regulations, as well as any other substance which poses a hazard to human health or to the environment. Licensee shall ensure that no hazardou~ materials are brought onto the Premises. Licensee shall indemnify, defend and hold harmless County, its officers, employees and agents, against any claim, liability, loss, expense or damage, including reasonable attorney's fees and costs, with respect to the presence or remediation of hazardous materials arising from or related to the use of the Premises by Licensee. This indemnity shall survive the termination or expiration of this License. ! 3 2016 License Agreement# 003 APN: 375-21-001 City of Cupertino 15. Indemnification and Insurance Licensee shall comply 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 termination or expiration of this Agreement. Licensee shall provide the Certificate(s) oflnsurance which evidences meeting the insurance coverage prior to entry onto the Premises. I 6. Applicable Law This License and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. I 7. County No Smoking Policy Licensee and its employees, agents and subcontractors, must comply 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: (I) at the Santa Clara Valley Medical Center Campus and all County-owned and operated health facilities, (2) within 30 feet surrounding County-owned buildings and leased buildings where 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 unenforceable, the remaining provisions will remain in full force and effect. 19. Non-Discrimination Licensee shall comply with 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 following: (I) Title VII of the Civil Rights Act of 1964 as amended; (2) Americans with Disabilities Act of I 990; (3) The Rehabilitation Act of 1973 (Sections 503 and 504); (4) California Fair Employment and Housing Act (Government Code sections 12900 et seq.); and, (5) California Labor Code sections 1101 and 1102. Licensee shall not discriminate against any subcontractor, employee, or applicant for employment because ofage, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental 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 20i6 License Agreement# 003 APN: 375-21-001 City of Cnpertino 20. Notices All notices required to be given hereunder, or which either party may wish to give, shall be in writing and shall be served either by personal delivery or by certified or registered mail, postage prepaid, addressed as follows: To County: County of Santa Clara Roads and Airports Department Real Estate Section 101 Skyport Drive San Jose, CA 95110 To Licensee: City of Cupertino Public Works Manager 10300 Torre Avenue Cupertino, CA 95014 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 by this reference. 22. Entire Agreement This Agreement represents the entire agreement between the parties relative to the use of the Premises. Any prior or contemporaneous oral or written agreements by and between the parties and their agents and representatives relative to such use are revoked and extinguished by this Agreement. 23. Authority I I I I I I Licensee represents and warrants that the person who executes this Agreement is duly authorized by Licensee to do so, and that all Licensee and its personnel possess all the necessary licenses and permits required by any governmental agency in order to carry out the purpose set forth in this Agreement. 5 2016 License Agreement# 003 APN: 375-21-001 City of Cupe11ino 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 Micha Road d Airports Department County of Santa Clara APPROVED AS TO FORM AND LEGALITY: ~' Attachments: Exhibit A Location Map LICENSEE Date: tJ8/Js-/J.t ~1 Ad:~ (&7!1§· eA"Y 116/l) ~6avid Brandt, City Manager City of Cupertino Exhibit B Insurance and Indemnification Requirements Exhibit C General Provisions Exhibit D Integrated Pest Management Ordinance 6 MITTY HIGH SCHOOL LOCATION MAP CITY OF CUPERTINO LICENSE AGREEMENT (APN 375,21-001) IT) x I CTJ -I J> EXHIBITB INSURANCEREOUIREMENTSFOR LICENSES WITH LICENSEES ON COUNTY PROPERTY Indemnification To the fullest extent allowed by law, Licensee will indemnify, reimburse, hold harmless and defend County including, without limitation, County's employees, agents, contractors, subcontractors and representatives (collectively, "County"), from any and all liability, damages, loss, costs, and obligations, including, but not limited to, court costs and reasonable attorney's fees, arising out of any claim, suit, judgment, loss or expense occasioned by, but not limited to, injury or death of any person or loss or damage to any property, that is suffered or sustained by Licensee including, 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 whatsoever during the Term of the License, excepting ~nly claims arising from the gross negligence or willful misconduct of County. Licensee's obligation under this Indemnification section will survive the termination or expiration of this License with respect to any claims or liabilities arising out of an injury to person or damage to property that occurred during the Term of the License and any holdover period. County shall have the right to approve legal counsel providing County's defense and such approval shall not be unreasonably withheld. Insurance Without limiting the Licensee's indemnification of the County, Licensee, shall at its own expense, provide and maintain the following insurance coverage in full force and effect throughout the term of this License: A. Evidence of Coverage Prior to commencement of this License, Licensee shall provide a Certificate of Insurance certifying that coverage as required has been obtained. Individual endorsements executed by the insurance carrier shall accompany the certificate. In addition, a certified copy of the policy or policies shall be provided by Licensee upon request. For long-term Licenses a periodic review/change of insurance requirements may be made every five years to ensure appropriate coverage by County standards is in place. B. Qualifying Insurers All 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 otherwise approved by County's Insurance Manager. Rev. 02/2010 (Exhibit B-5) EXHIBITB C. Notice of Cancellation All coverage as required herein shall not be canceled or changed so as to no longer meet the specified County insurance requirements without 30 days' prior written notice of such cancellation or change being delivered to the County of Santa Clara or their designated agent. D. Insurance Required 1. Commercial General Liabilitv Insurance -for bodily injury (including death) and property damage which provides limits as follows: a. Each occurrence b. General aggregate - c. Personal Injury $1,000,000 $2,000,000 $1,000,000 2. General liability coverage shall include: a. Premises and Operations b. Personal Injury liability c. Severability of interest 3. General liability coverage shall include the following endorsement, a copy of which shall be provided to the County: Additional Insured Endorsement, which shall read: "Coiiiity 6ISaiifaC1ara, aiid memliers ofihe-Board ofSupervisors 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 by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. 4. Automobile Liability Insurance For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles. Rev. 02/2010 (Exhibit B-5) 2 " EXHIBITB 5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all-states coverage. b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence. 6. Propertv Insurance Licensee shall maintain not less than fifty thousand dollars ($50,000) Fire Legal Liability on all real property being Licensed, including improvements and betterments owned by County, and shall name County as a loss payee. Licensee shall also provide frre insurance on all personal property contained within or on the Licensed premises. The policy shall be written on a standard "all risk" contract, excluding earthquake and flood. The contract shall insure for not less than ninety (90) percent of the actual cash value of the personal property, and Licensee shall name County as an additional insured. 7. Interruption of Business Insurance Licensee shall, at its sole cost and expense, maintain business interruption insurance by which the minimum monthly rent will be paid to Lessor for a period of up to one (I) year if the premises are destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements E. Waiver of Subrogation Except as may be specifically provided for elsewhere in this License, County and the Licensee hereby each mutually waive any and all rights of recovery from the other in event of damage to the premises or property of either caused by acts of God, perils of fire, lightning, and all other all-risk perils as defined in insurance policies and forms approved for use in the state of California. Each party shall obtain any special endorsements, if required by their insurer, to evidence compliance with the aforementioned waiver. Rev. 02/2010 (Exhibit B-5) 3 EXHIBITC 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 traffic 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 involves 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. Traffic 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 County of 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. 1of3 8. FacilityRelocation -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 Licensee. 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 indica1ed 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 fiber-optic facilities within the Project limits from being damaged by consfructi on 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. lntermit 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 ·· te-mpe-fary---ri1eehani-e-a!--s-pfi·ee-vv~th-a-ftrs-k;}n~sptiee-wtthln-4-8·-t-1oura-·-·fhis-·sh·all· be considered an interim repair 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 2 of3 D. E. Operations). During this permanent repair process, the fiber-optic cable shall not be disconnected or the equipment communicating on the cable shall not become non-operational for more than 48 hours. A seven-day 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 tile 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 \2) "Fiber-optic Cable Splicing, Section 86.02.09G 'Fiber-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 resllts 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 shpll be done at 1550 nrn and 1310 nm. 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 damaged facilities and recover all costs and expenses in accordance with the conditions orthe Permit . The Licensee or its Contractor shall guarantee the repair work for a period of one ~ear from the date of acceptance by {he County in accordance with Section 5.17 Correction of 'Work & Guarantee-of the County Standard Specifications. 3 of 3 " EXH I e, IT J) ORDINANCE NO. NS-517.70 AN ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA ADDING DIVISION B28 OF THE SANTA CLARA COUNTY ORDINANCE CODE RELATING TO INTEGRATED PEST MANAGEMENT AND PESTICIDE USE Summary This ordinance adds provisions regal'ding the establishment of an Integrated Pest Management Program and regulates the use of pesticides on County propel'ty. THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA ORDAINS AS FOLLOWS: The Ordinance Code of the County of Santa Clara is hereby amended by the addition of a new Division, to be entitled and to read as follows: Division B28 INTEGRATED PEST MANAGEMENT AND PESTICIDE USE Chapter 1. General Provisions Section B28-l. Intent and Purpose. The County, in carrying out its operations, finds it necessaiy from time to time to use pesticides on County propel'ty. The intent of this Division is to protect the health and safety of County employees and the general public, the environment, and water quality, as well as to provide sustainable solutions for pest contl'ol on County property. The Board of Supervisors hereby finds and declares that it shall be the policy of the County of Santa Clara to eliminate or reduce pesticide applications on County property to the maximum extent feasible. Preference shall be given to available non-pesticide alternatives, where feasible, before considering the use of pesticides on County property. This Division concems the application of pesticides to property owned by the County of Santa Clara only, and does not concern the application of pesticides to propel'ty that is not owned by the County of Santa Clara. !PM Ordinance 5121102 . / Page 1of13 Section B28-2. Definitions. ' Whenever used in this Division, the following terms shall have the meanings set forth below: (a) "Antimicrobial pesticides" are pesticides, such as disinfectants and sanitizers, that are intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms; or protect inanimate objects (for example floors and walls), industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime, (b) "Approved List" is the list of pesticides authorized by the County !PM Coot'dinator for use on County Property developed in accordance with section B28-5. ( c) "Carbamates" means esters on N-methyl carbamic acid, which inhibit cholinesterase. ( d) "Contract" is a binding written agreement, including but not limited to a contract, permit, license or lease between a person, firm, corporation or other entity, including a governmental entity, and the County of Santa Clara which grants a right to use or occupy propet1y of the Co\mty or which provides pest management services. (e) "County Executive" is the County Executive or his or her designee of the County of Santa Clara. (t) "Demonstration site" is a specific area or site designated by a department to evaluate the use of a pest management strategy. (g) "Department" is any agency or depaLtment of the County of Santa Clara. Department does not include the Vector Control District or any other local, state, or federal agency. (h) "Departmental IPM Coordinator" is someone designated by a department head to coordinate the Depa1tment's IPM program. (i) "County !PM Coordinator" is the person designated by the County Executive to implement and oversee the County of Santa Clara's IPM Prngram. G) "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors. (k) "Integrated Pest Management (!PM)" is a decision-making process for managing pests using monitoring to determine pest-caused injury levels and combining !PM Ordimmco 5/21/02 Page2 of13 biological contl'ol, cultural pl'actices, mechanical and physical tools, and chemicals to minimize pesticide usage. The method uses extensive knowledge about pests, such as infestation thresholds, life histol'ies, environmental requirements, and natural enemies to complement and facilitate biological and other natural control of pests. The method uses the least hazardous pesticides only as a last resort for controlling pests. (I) "!PM Technical Advisol'y Group (IPM TAG)" is the technical adviso1y gl'oup to the County fol' the JPM Program and is further described in section B28-9. (m) "Organophosphates" means organophosphorus estel's, which inhibit cholinestel'ase. (n) "Pest" is any insect, l'Odent, nematode, fungus, weed, 01· any other fol'm of terrestrial Ol' aquatic plant OI' animal life or virus, bacteria, or other microorganism (except certain insects, viruses, bacteria, or other microorganism on or in living man ol' living animals). ( o) "Pesticide" is any substance, or mixtul'e of substances which is intended to be used fol' defoliating plants, regulating plant gl'owth, Ol' fol' preventing, destroying, l'epelling, or mitigating any pest, which may infest or he detl'imental to vegetation, man, animals, or households, or be present in any agriculturnl or nonagl'icultural environment. Pesticide for purposes of this Division does not include antimicl'obial agents. (p) "Posting" is to place signs as identified in section B28-7 to·inform employees and the public of pesticide use at a given site. (q) "Signal Words" al'e the words used on a pesticide label--Danger, Warning, Caution--to indicate level of toxicity. (r) "Toxicity Category I Pesticide Product" is any pesticide product that meets United States Environmental Protection Agency criteria for Toxicity Categ01y I under Section 156.10 of Part 156 of Title 40 of the Code of Federal Regulations. (s) "Toxicity Categmy II Pesticide Product" is any pesticide product that meets United States Environmental Protection Agency criteria fol' Toxicity Categol'y II under Section 156.10 of P81't 156 of Title 40 of the Code ofFederal Regulations. Section B28-3. General Exemptions. (a) This Division shall not apply to the qse of any pesticide for the purpose of improving 01· maintaining water quality at any County owned or operated drinking watel' tl'eatment plants, wastewater treatment plants, reservoirs, and related collection, distribution, and trnatment facilities. IPM Ordinance 5/21/02 Page3of13 (b) This Division shall not apply to any use of pesticides on County prope1ty by any department when performing pest management or pesticide activities authorized by state 01· federal laws or regulations. (c) District. This Division shall not apply to the use of pesticides by the Vector Contt·oJ ( d) This Division shall not apply to antimicrnbial pesticides or pesticides used to control pests in or on living humans or animals. (e) This Division shall not apply to existing Contracts except as prnvided in section B28-10. (f) This Division shall not apply to Contracts under negotiation at the time this Division becomes effective for a period of five years. Chapter 2. Pesticicle Management Section B28-4. County Integrate1l Pest Management (IPM) Program. (a) The County IPM Coordinator shall oversee and coordinate implementation of the IPM Progrnm. (b) The IPM Program shall include, but not be limited to, the following: (i) Identify staffmernber(s) responsible for program implementation; (ii) Acquaint County workers· with the IPM approach and new pest management strategies, as they become known; (iii) Inform the public of the County's effol'! to l'educe pesticide use; (iv) Respond to questions about the County's pest management program and practices; (v) Conduct ongoing educational programs, where appropriate; (vi) Maintain records and evaluate program effectiveness; (vii) Develop and maintain the Approved List of pesticides. ( c) Departments shall implement the IPM Prngram consistent with the IPM practices outlined below. Where feasible, departments shall consider a rauge of potential trnatments for the pest problem and employ non-pesticide management tactics first; consider !PM Ordinance 5/21/02 Page 4of13 the use of chemicals only as a last 1·esort, and select and use chemicals in accordance with the provisions of this Division. The IPM practices shall include ways to: (i) Monitor pests to determine pest population size, occurrence, and natural enemy population, if present. Identify decisions and practices that could affect pest populations. Keep records ofmonitol'ing results; (ii) Set treatment levels for each pest at each site based on how much biological, aesthetic or economic damage the site can tolerate; (iii) Dete1mine the most effective treatment time, based on pest biology and other variables, such as weather, seasonal changes in wildlife use and local conditions; (iv) Design constmction and building remodels to reduce or eliminate pest habitats and improve efficiency in facility and landscape maintenance and sanitation; (v) Reduce pest incidences by modifying management practices snch as watering, mulching, fertilizer use, and pruning; (vi) Modify pest ecosystems, including waste management and food storage, to reduce pest food, living space, and access; (vii) Use physical controls such as hand-weeding, traps and ba11·iers, heat and cold; (viii) Use biological controls such as introducing or enhancing pests' natural enemies; (ix) When indoors, use baits or least toxic methods of pest control rather than sprays; (x) Monitor treatment to evaluate effectiveness; (xi) Maintain records as set forth in section B28-8. Section B28-5. Pesticide Use. (a) Approved List. The County !PM Coordinator shall develop the Approved List using a set of cdteria that will be developed with the review and input of the !PM TAG. The criteria will take into account environmental and human health hazards, principles of the IPM approach, and technically based methods, conditions, and specifications for pesticide use. The County IPM Coordinator shall maintain the list of approved pesticides that may be used on County property. The Approved List shall be reviewed and updated at IPM Ordinance S/21/02 Page S of 13 least annually. The IPM Coordinator may amend this list as needed at any time as long as the products are consistent with the established criteria. These amendments shall be communicated to the IPM TAG in writing at the quarterly meetings. (b) Specific Exemptions. An exemption may be obtained from the County IPM Coordinator fol' use of a pmduct not on the Approved List as follows: (i) One-year exemptions. The County IPM Coordinator may grant a specific exemption, with limited conditions for use, for a one-year period upon a written request showing that a department has: ( 1) Identified the need for use; (2) Made a good-faith effort to find alternatives to the pesticide; (3) Identified or demonstrated that effective economic altematives to the pesticide do not exist for that patticulai· use; and ( 4) Developed a reasonable plan for investigating altematives to the pesticide during the exemption period. (ii) An exemption may be continued beyond the one-year period by filing a new request for exemption as required in subsection (b )(i) above. (iii) The County Executive shall have the discretion to revoke any exemption. ( c) Emergency use of pesticides. (i) A depattment responsible for maintenance of a site or facility may apply to the County IPM Coordinator fot· an emergency pesticide use exemption in the event that a pest outbreak poses an immediate threat to public health or may cause significant economic damage. (ii) If the County IPM Coordinator cannot respond to the application in a timely mannei", the Departmental IPM Coordinator submitting the application may authorize the one-time emergency use of the required pesticide and provide notice of the emergency application to the County IPM Coordinator in writing within 48 hours. (iii) Posting of emergency use of pesticides shall be at the time of pesticide application and comply with all other posting requirements. (iv) Reporting of the exemption and pesticide use will comply with all other reporting requirements as stated in section B28-8. !PM Ordinance Page 6 of 13 5121102 Section B28-6. Restl'iction on tl1e Use of Pestichlcs. Except for the use of pesticides exempted pursuant to section B28-3, pesticides granted an exemption pursuant to section B28-5(b) or 5( c) or pesticides on the Approved List per section B28-5(a), no department shall use any of the following types of pesticides. A list of the pesticides and pesticide products identified in (b) through (g) below shall be on file with the County IPM Coordinator. (a) Toxicity Catego1y I or II pesticide products. (b) Any pesticide containing a chemical identified by the State of California as a chemical !mown to the State to cause cancer or reproductive or developmental toxicity pul'Suant to the California Safe Drinking Water and Toxic Enforcement Act of 1986. ( c) Pesticides identified by the State of California on the Groundwater Protection List (Section 13145 (d), Food and Agdculturnl Code, Division 6. Pest Control Operations). ( d) Pesticides classified by active ingredient as organophosphate type pesticides as identified by the United States Environmental Protection Agency (Office of Pesticide Programs, document 735-F -99-14, May 1999), or California Environmental Protection Agency, Department of Pesticide Regulation, Chemical Inquiries Database. (e) Pesticides containing carbamate-type chemicals (California Environmental Protection Agency, Department of Pesticide Regulation, Chemical Inquiries Database.) (!) Any pesticide classified as a human carcinogen, probable human carcinogen or p()ssible human carcinogen by the United States Environmental Protection Agency, under procedures established in "Proposed Guidelines for Carcinogen Risk Assessment," EPN600/P-92/003C, April 1996, or equivalent documents. (g) Any pesticide group officially designated by the Califomia Environmental Protection Agency Department of Pesticide Regulation or by the United States Environmental Protection agency as posing significant hazard to human health or the environment. Section B28-7. Posting of Pesticide Use. (a) Except as provided for in section B28-5(c) and section B28-7(b), any department that uses 01· authorizes the use of a pesticide shall comply with the following posting procedures: !PM Ordinance 5121102 Page7of13 (i) Signs shall be posted at least three days before application of the pesticide and remain posted at least four days after application, except for baits and emergency use of pesticides, which are posted at the time of treatment in accordance with section B28-5(c)(iii) above and subsection (b)(iii) below; (ii) For buildings and/m· landscaped areas adjacent to buildings, signs shall be posted at main entry points where the pesticide is applied; (iii) For open areas, signs shall be posted in highly visible locations around the perimeter of the area where the pesticide is applied; (iv) For vehicles used primarily by county staff, signs shall be posted at areas where vehicles are obtained or posting information shall be given to the primary drivers. (v) Signs shall contain the: (1) Trade name and active ingredient of the pesticide product; (2) Target pest; (3) Date of posting; (4) Date(s) of anticipated pesticide use; the date(s) of actual pesticide use will be posted at the main entrance, park office, or designated site; (5) Signal wol'd indicating the toxicity category of the pesticide product; (6) Date for re-entry of staff and the public to the area treated if --applis-&W~r--. (7) Name and contact number for the department responsible for the application. (vi) Signs shall have a standard design that is easily recognizable by the public and workers; (b) Exemptions to posting. IPM Ordinance 5121/02 (i) Departments shall not be required to post signs in accordance with section B28-7(a) in right-of-way locations and other areas that the general public does not use for recreational purposes. Page 8of13 (I) Each depa1tment that uses pesticides in such locations shall provide a public access telephone number for information about pesticide applications. The public access telephone number shall be posted in a prominent location at the department's main office building. Information provided shall include all the items in subsection (a)(v) above. (ii) Any pesticide grnnted an emergency exemption by the County IPM Coordinator shall not be required to be posted pt'ior to treatment. However, all other requirements for postiug as set forth in section B28-7(a) shall be followed. (iii) Any pesticide bait placed in a container or trap, or applied as a gel or paste in a crack 01· crevice shall not be required to post signs pl'ior to treatment. Baits, used indoors, shall be posted in the vicinity of application. Baits, used outdoors, shall be posted in the main office, park office, or a designated site. Signs shall be posted according to the requirements as set forth in section B28-7(a). (iv) The County IPM Coordinator may in his or her discretion grant necessary exemptions to the postiug requiremeuts. Section B28-8. Rec01·d Keeping and Repol'ting. (a) Each department that uses pesticides shall keep records of pest management activities, including information about demonstration sites and exemptions. A copy of this information shall be placed in a centralized record keeping at'ea in each department. Where feasible, this information shall be kept in a notebook 01· electronic equivalent maintained in each occupied building. Each pest management activity such as pesticide applicatiou, trapping or inspection shall be recorded and, when applicable, include at least 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 the pesticide application; (iv) Date of pesticide application; (v) Name of person conducting pest management activity; (vi) Application equipment number, if applicable; !PM Ordinance Page 9 of 13 5121102 (vii) Prevention and other non-chemical methods of control recommended or used, and; (viii) Evaluation of effectiveness. (b) The Departmental IPM Coordinator shall keep the following: (i) Records of pesticide use; (ii) A copy of the label of all pesticides used; and, (lii) The material safety data sheet for each pesticide used. (c) Each department that uses pesticides shall submit a summary of pest management records required in section B28-8(a) and (b) to the County IPM Coordinator at least quarterly. ( d) Pest management records, including pesticide use records, are all public records. ( e) Pesticide use records shall be kept indefinitely until an electronic database tracking system has been established. Chapter 3. IPM Implementation Section B28-9. Implementation of County Integrated Pest Management Ordiuance. (a) This Division shall be phased-in over one to two years in order to provide adequate time for developing the Approved List, documenting current !PM practtces and/or reductions, and identifying and implementing alternate pest management measures. The ·Gount-y--1Ptvf-Guordinatur--shaH-deveh':1p-a·tirr1etab}e· and-fornlat-fo1.__depart-ruent-s---to-eaol1--· submit a plan for implementing this Division. (b) A Technical Advisory Group (TAG) shall be formed and shall meet at least four times per year to review the County's !PM program and provide comments to the County Executive. The following representatives will be invited to participate on the TAG: two from Pesticide Alternatives of Santa Clara County; one from the Santa Clara Valley Water District; one from the County Agricultural Commissioner; one from the Santa Clam County Pollution Prevention Committee; one County employee representing a labor organization; and one representative from each of the following Santa Clara County agencies and departments: Roads and Ahports, Parks and Recreation, the General Services Agency, Valley Health and Hospital System, and Occupational Safety and Environmental IPM Ordinance 5/21/02 Page IO of 13 Compliance. The Board of Supervisors may at their discretion make changes to the composition of the group as deemed necessary. ( c) The IPM Coordinator shall provide a quarterly report to one or more Board- designated committees on the status of the IPM Program including information about pest problems, pesticide use, list of exemptions, goals and progress, stafftrnining and public education, and anticipated changes that may affect pesticide use. ,section B28-10. County Contracts and Easements. (a) Except as provided in (i) below, when a department enters into a new Contract (see section B28-2(d)) or amends an existing Contract to extenc! the term of the Contract for more than six months beyond the current term and any optional extension periods, the Contract shall require compliance with the provisions of this Division including those relating to pesticide restrictions, record keeping, and reporting. (i) The County Executive may grant an exemption for up to five years from Contract compliance with all or pai1 of the provisions of this Division in the event compliance would negatively impact County rnvenues, prevent the highest and best use of an asset as determined by the County Executive, or where it is demonstrated that full compliance cannot be achieved. Notice of any exemption granted pursuant to this subsection (i) shall be given to the applicant and to the IPM TAG. The notice shall state that any person dissatisfied with the decision of the County Executive may file an appeal with the Clerk of the Board within fifteen (15) calendar days of the date of the notice. The appeal will first be heard before the County's Housing, Land Use, Environment, and Trnnsportation Committee, which Committee shall make a recommendation to the Board of Supervisors. The decision of the Board of Supervisors shall be final. (b) A contractor, 01· depaitment on behalf of a contractor, may apply for exemptions authorized under sectionB28-5(b) and (c), and this section B28-IO. (c) When a department enters into a new lease in which the County is occupying or using property not owned by the County (and thus not within the definition of Contract in section B28-2(d)), the County shall use reasonable efforts to negotiate the use ofIPM practices as part of that lease. ( d) In current leases in which the Cotmty is occupying or using property not owned by the County, the County shall encourage the use ofIPM practices whenever practical. (e) When the County is granted an easement, the maintenance of the easement shall be in compliance with this Division if consistent with the terms of the easement. IPM Ordinance 5/21102 Pago II of13 • (f) A process, which incorporates a request for qualifications, shall be used in the selection of all contractors for pest management services and shall be in compliance with county contracting policies and state law. The County !PM Coordinator and the TAG may participate in the process. All contractors applying for pest management services shall submit a Pest Management Plan, which outlines how they wilt comply with the ' !PM Ordinance. The Plan shall. give preference to prevention and other non-pesticide or least toxic methods of pest control. Section B28-11. Pesticide Purchases. All pesticide products and pest control services that include pesticide applications shall comply with this Division and be purchased through the County Procurement department, not using the petty cash or direct pay methods. Secti<>n B28-12. Policy and Guidelines. The County Executive may recommend policy for Board approval and issue guidelines to implement this Division. Section B28-13. No Criminal Penalties or Sanctions. The provisions of sections Al-28 of the Santa Clara County Ordinance Code shall not apply to this Division; nor shall any person, or govemment official, board, commission, or agency be responsible for any cl"iminal penalties for any violation of the Division. II fl ff fl ..... 71 fl II II II fl II fl II fl II II !PM Ordinance 5/21/02 Page 12of13 ' . Section B27-14. No Civil Liability fo.r Violations of this CJ1apter. This Division and the provisions are directory, and are intended to set forth goals and program elements for management of pests ana pesticide use. This chapter is not intended to create a standard of civil liability for the acts or failure to act of the ColUlty and its · employees and contractors. No person, government official, board, commission, or agency shall be liable iii any civil action or proceeding for damages for violation of any of the provisions of this Division. PASSED AND ADOPTF;J} 1J.y ,theJi9ffi:d of Supervisors of the Cotmty of Santa Clara, State of Califomia, on MA 'y Z 1 lUUC. by the following vote: AYES: ALVARADO, BEALL, GAGE:, KNrsg, MCHUGH NOES: ABSENT: ABSTAIN: ATTEST: ~·a~ PiIYSA:PEREZ~- Clerk of the Board of Su:pervisors APPROVED AS TO FORM AND LEGALITY: 9s:0d\,\,L1~~ Kathy KretAbrner Deputy Cotinty Counsel IPM Ordinance 5/21/()2 Page 13of13 lfJ!j~ Donald F: Gage, Chair.is Board of Supervisors , CUPERTINO CITY OF CUPERTINO PUBLIC WORKS DEPARTMENT CITY HALL 10300 TORRE AVENUE• CUPERTINO, CA 95014 (408) 777-3354 •FAX (408) 777-3333 RECEIVED AUG; 8 () 2016 TRANS MITT AL PUBLIC WORKS DEPARTMENT To: Frank Schober County of Santa Clara Cc: Roads & Airports Department 101 Skyport Drive San Jose, CA 95110-1302 From: Julia Kinst, Management Analyst City of Cupertino Date: August 16, 2016 Direct phone: 408-777-3354 Email: juliak@cupertino.org Re: License Agreement -Lawrence Expressway MESSAGE: Please return one fully executed original to the address above.