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HomeMy WebLinkAbout61-10 RESOLUTION NO. 61-10 A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF LOS ALTOS HILLS APRROVING AN AGREEMENT BETWEEN THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY AND THE TOWN OF LOS ALTOS HILLS REGARDING THE LOS ALTOS HILLS C-2 TRAIL PROJECT WHEREAS,pursuant to the terms of the Agreement for Trail Easements, Construction, Management and Maintenance and Grant of Trail Easements between the Board of Trustees of The Leland Stanford Junior University, a body having corporate powers under the laws of the State of California("Stanford") and the County of Santa Clara(the"County"), executed by the County on January 3, 2006 (the "Trail Agreement"), Stanford is required to offer to fund improvements to an existing trail within the Town of Los Altos Hills, a municipal corporation ("the Town"), identified as the C-2 trail in the County's Trails Master Plan, and WHEREAS,the Town will conduct an Initial Study and expects to prepare a Mitigated Negative Declaration. The environmental review process will be completed in compliance with the California Environmental Quality Act, and WHEREAS,pursuant to Section 4.d of the Trail Agreement, Stanford and the Town must enter into a written agreement regarding Los Altos Hills C-2 Trail Project, that establishes a funding mechanism for the work to be done, among other things, and WHEREAS, Stanford and the Town desire to enter into such an agreement regarding the Los Altos Hills C-2 Trail Project. NOW, THEREFORE, the City Council of the Town of Los Altos Hills does RESOLVE that the Town hereby approves the proposed agreement between Stanford and the Town of Los Altos Hills attached as Attachment A hereto; and that the City Manager is hereby authorized and directed to execute the Agreement on behalf of the Town. The above and foregoing resolution was passed and adopted by the City Council of the Town of Los Altos Hills at a regular meeting held on the 18th day of November, 2010 by the following vote: AYES: KERR, LARSEN, MORDO, SUMMIT AND WARSHAWSKY NOES: NONE ABSTAIN: NONE ABSENT: NONE By Bree K , Mayor ATTEST: Karen Jost, ty Cler AGREEMENT REGARDING THE LOS ALTOS HILLS C-2 TRAIL PROJECT This Agreement Regarding the Los Altos Hills C-2 Trail Project(the "Agreement")is entered into by and between The Board of Trustees of The Leland Stanford Junior University, a body having corporate powers under the laws of the State of California("Stanford") and the Town of Los Altos Hills, a municipal corporation ("Town"). It is effective as of the date it is executed. RECITALS A. Under the terms of the Agreement for Trail Easements, Construction, Management and Maintenance and Grant of Trail Easements between Stanford and the County of Santa Clara (the"County"), executed by the County on January 3, 2006 (the"Trail Agreement"), Stanford is required to offer to fund improvements to an existing trail within Town, identified as the C-2 trail in the County's Trails Master Plan. This obligation is subject to certain terms and conditions specified in the Trail Agreement, B. In accordance with Section 4.c of the Trail Agreement, Stanford offered Town a choice of three funding mechanisms. Stanford then offered a fourth funding mechanism in a letter from Larry Horton to Carl Cahill, dated May 13, 2008. Town elected a slightly modified version of the fourth funding mechanism as set forth in this Agreement. This Agreement is intended to satisfy the condition in Section 4.d of the Trail Agreement which requires that the parties enter into a written agreement as a condition precedent to Stanford's funding obligation. C. Town will conduct an Initial Study and expects to prepare a Mitigated Negative Declaration. The environmental review process will be completed in compliance with the California Environmental Quality Act. The parties agree as follows: 1.0 The Project. The Los Altos Hills (C-2) Trail Project(the"Project") is a project consisting of the construction and improvement of a trail and other associated landscaping, as more particularly described in the plans and specifications attached as Exhibit A (the"Plans"). The Project will also include the mitigation measures required pursuant to the provisions of the California Environmental Quality Act(collectively, the"Mitigation Measures"). Town shall conduct the environmental review in accordance with the California Environmental Quality Act; upon completion, Town shall provide a summary of the Mitigation Measures to Stanford. Stanford shall reimburse Town up to $30,000 for the cost of the environmental review as part of the Reimbursable Costs in Section 2.0, below. If the total cost of the environmental review exceeds$30,000(as set forth in Exhibit B) or the total cost of the Mitigation Measures exceeds $20,000, the parties will meet and confer regarding the additional costs and if the parties are not able to agree on a cost allocation of the additional costs, then Stanford or the Town may terminate this Agreement in accordance with the terms of Section 12.1. l I� 1.1 Matadero Creek Crossing between Berryhill Court and Baleri Ranch Road. The Plans contain two options for crossing the creek between Berryhill Court and Baleri Ranch Road. As stated in the Plans, these options are mutually exclusive and Stanford will only construct one of them. Town shall notify Stanford in writing of the option it has chosen no later than March 31, 2011 and shall secure any necessary easements by April 30, 2011. Upon providing written notice of election of one option the other option will be deemed rejected. If Town fails to provide the required notice by March 31, 2011, then Town is deemed to have selected Option 2. 2.0 Payment for Project. Stanford shall construct the Project at its sole expense on behalf of Town. Stanford shall pay for the cost of trail design. Stanford shall pay for the cost of permit fees for all permits required for the project. Stanford shall reimburse Town for its reasonable administrative costs and staff and legal fees associated with the Project and this Agreement, including but not limited to the cost of conducting an environmental review of the Project in order to comply with CEQA, (collectively, the"Reimbursable Costs")up to a maximum amount of$60,000. (See Exhibit B for Town's tentative budget for Reimbursable Costs.)Within fifteen (15)business days of execution of this Agreement by both parties, Stanford shall pay Town a deposit of$35,000 to be used to cover the Reimbursable Costs. Town shall keep this money in a separate account and may only use it to pay for Reimbursable Costs. Upon written notice by Town to Stanford that the amount of funds remaining in the deposit account is less than $10,000, Stanford shall pay Town an additional $25,000 that will be 'deposited into the account. Upon written request by Stanford, Town shall supply Stanford with receipts or other documentation verifying all withdrawals from the account and the purpose for each withdrawal. Upon completion of the Project or termination of this Agreement, Town shall pay Stanford any amount that remains in the account. Stanford may pay some initial costs associated with preparation of the environmental review that were incurred prior to approval of this Agreement. These costs will be credited against the$60,000 maximum amount set forth in the Section 2.0. 3.0 Permits. Upon compliance with any applicable laws, Town shall issue all permits required by Town for the Project. Town shall not impose any condition that is inconsistent with this Agreement or that substantially delays the Project or increases its cost. Town and Stanford shall obtain permits from other agencies having jurisdiction over the Project. Town shall be the applicant for all permits; however, Stanford shall prepare and file the applications on Town's behalf. Town and Stanford shall comply with the terms and conditions of such permits. If requested by Stanford, Town shall cooperate with Stanford and shall exercise reasonable efforts to assist Stanford to obtain such permits. Town and Stanford may not do anything that would delay or prevent the issuance of any such permits. "Permits" includes approvals of every kind and nature required by any governmental entity or public utility and in any way related to the Project, including encroachment and grading permits. Town shall secure any easements that are necessary for the construction of the Project. 4.0 Town's Obligation for Design. Town is responsible for the design of the Project. Stanford has retained BKF Inc., Biggs Cardosa, Inc., Cornerstone Earth Group to prepare preliminary plans for the Project. The Town will retain BKF Inc., Biggs Cardosa, Inc., 2 and Cornerstone Earth Group to prepare final design, engineering and construction plans. Stanford shall reimburse the Town an amount not to exceed $150,000 for the cost incurred by BKF, Biggs Cardosa and Cornerstone and the Town staff costs for review of the plans. If the costs incurred by BY-F, Biggs Cardosa and Cornerstone to prepare final design, engineering and construction plans exceed$150,000, the parties will meet and confer regarding the additional costs and if the parties are not able to agree on a cost allocation of the additional costs, then Stanford or the Town may terminate this Agreement in accordance with the terms of Section 12.1. Town approved the Plans for the Project on . In accordance with Section 1.1 above, Town shall provide notice of its selection of one of the two options for crossing Matadero Creek between Berryhill Court and Baleri Ranch Road and obtain any necessary easements. If, during construction, the Plans need to be changed due to unforeseen construction conditions, Town and Stanford shall work together to modify the Plans to accommodate for such conditions. Any changes to the Plans must be approved by Town and Stanford. All significant changes to the Plans must be approved by Santa Clara County's Director of Parks and Recreation in accordance with Section 4.c of the Trail Agreement. 5.0 Stanford's Obligations for Construction and Insurance. Stanford is responsible for constructing the Project in accordance with the Plans (with the options chosen by Town in accordance with Section 1.1 above) approved by Town. Subject to the terms and provisions of this Agreement, Stanford will cause the Project to be (a) constructed in a good and workmanlike manner in compliance with all applicable laws and the Plans and (b) completed no later than December 31, 2011. Stanford shall require that its contractor provide, at the contractor's own cost and expense, the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the construction of the Project by the contractor, its agents, representatives, employees, and subcontractors. Stanford shall require that its contractor provide Certificates of Insurance indicating that the contractor has obtained or currently maintains insurance that meets the requirements of this section and under forms of insurance satisfactory, in all respects, to Stanford and the Town. The contractor shall maintain the insurance policies required by this section at least until the Completed Work is formally accepted by the Town. Verification of the required insurance shall be submitted to Stanford and the Town prior to commencement of construction. 5.1 Workers' Compensation. Stanford shall require that it contractor maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by the contractor. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00)per accident. In the alternative, the contractor may rely on a self- insurance program to meet those requirements,but only if the program of self- insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or the contractor, if a program of self-insurance is provided, shall waive all rights of subrogation against the Town and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 5.2 Commercial General and Automobile Liability Insurance. 3 5.2.1 General requirements. Stanford shall require that its contractor maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than TWO MILLION DOLLARS ($2,000,000.00)per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 5.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage. 5.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. Any failure of contractor to comply with reporting provisions of the policy shall not affect coverage provided to Stanford and the Town and their officers, employees, agents, and volunteers. c. The Town, its officials, officers, employees and agents shall be named as additional insured on the policies. 6.0 Inspection and Acceptance of Improvements 6.1 Delegation of Authority. By approval of this Agreement the Town Council expressly delegates to the Director of Public Works ("Director"), currently Richard Chiu, the authority to approve the work performed by Stanford and to do all other things required of him or her by this Agreement. Any decision or failure to act by the Director may be appealed by Stanford to the Town Council. Town shall expeditiously decide all such appeals in an objective manner and on a good faith basis. 4 6.2 Inspection and Approval. When Stanford deems the Project complete (the "Completed Work"), it shall, in writing, notify the Director who shall promptly inspect the Completed Work. If the Completed Work is in accordance with the Plans, the Director shall, in writing, approve the Completed Work. If the Completed Work is not in accordance with the Plans, the Director may refuse to approve the Completed Work,but only by written notice that sets forth in detail what must be done by Stanford to bring the Completed work into conformance with the Plans ("the corrective or additional work"). Stanford shall then perform the corrective or additional work. Upon completion of the corrective or additional work, Stanford shall notify the Director who shall again promptly inspect the Completed Work, but only to determine whether the corrective or additional work, as set forth in the written notice, has been completed. If it has, the Director shall, in writing, approve the Completed work. Otherwise, this procedure shall be repeated until the Director has approved the work. Town shall not withhold approval for any other reason or unreasonably refuse to approve the Completed Work. The Director shall communicate approval or disapproval no later than 15 working days after notice from Stanford. 6.3 Acceptance and Certification. After approval by the Director, Town shall promptly accept the Completed Work at the next available Town Council meeting. Upon approval and acceptance of the improvements, the Director shall certify in writing that the Completed Work has been satisfactorily completed, at which time the Completed Work will vest absolutely in Town. Stanford shall require its general contractor to (1) provide a one-year warranty against any construction defects for the Completed Work, (2)repair at no cost to the Town or Stanford any defects in the Completed Work that arise within one year of acceptance of the Completed Work by the Town and (3) name the Town as a third-party beneficiary to the construction contract between Stanford and the general contractor. Within thirty(30) days of the Town's acceptance of the Completed Work, Stanford shall pay the Town$30,000 to cover routine trail maintenance costs (as shown on Exhibit C) for the first two years of operation of the trail. Town shall be responsible for all other management, repair, and maintenance of the Completed Work and all improvements owned by Town to which the Completed Work connects. 6.4 Signage. Stanford shall install signs or plaques near each end of the Project of reasonable design and size and in compliance with Town ordinances informing the public of Stanford's participation in the Project. Each sign or plaque regarding Stanford's participation shall contain the following wording, "Los Altos Hills Trail [or other name adopted by Town] donated by Stanford University." 7.0 Indemnification. Stanford is constructing the Project as an agent for Town. From and after acceptance of the Completed Work, Stanford shall have no responsibility for claims that arise from the Completed Work. Town shall indemnify and hold Stanford harmless from, and shall defend Stanford against any and all liabilities,judgments, damages, costs, and claims arising in any manner from the Project including, but not limited to any third party claims by users of the Project, accept to the extent such liability,judgment, damage, costs or claims arise solely from the willful misconduct or negligence of Stanford, its employees, its contractors or agents. 5 8.0 Alternative Dispute Resolution. Any dispute arising under this Agreement shall be referred to binding arbitration as provided herein. 8.1 JAMS. Either party may commence arbitration. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration shall be by a single arbitrator appointed jointly by the parties. If the parties cannot agree on an arbitrator within ten days of the service of the notice commencing the arbitration, the arbitrator shall be named by the process utilized by JAMS. The decisions and awards of the arbitrator(s) shall be final and binding on the parties and may be confirmed, vacated, modified or corrected only as provided in sections 1285 et seq. of the Code of Civil Procedure. 8.2 Neutral. The arbitrator shall be neutral and shall not have been employed or retained by either party during the ten years preceding commencement of the arbitration. The parties shall not engage in any ex parte communication with any arbitrator. 8.3 Attorneys'Fees. In his or her discretion, the arbitrator may award attorneys' fees and costs to the prevailing party. 9.0 Representations. 9.1 Representations by Stanford. Stanford represents that it is authorized and empowered to enter into this Agreement, which is enforceable by Town and that Robert C. Reidy has been duly authorized by Stanford to execute this Agreement on its behalf. 9.2 Representations by Town. Town represents that it is authorized and empowered to enter into this Agreement, which is enforceable by Stanford, and that the City Manager has been duly authorized by the City Council to execute this Agreement. 10.0 Administration. 10.1 Town. The Director shall represent Town with regard to this Agreement and the Project. The Director shall be the recipient of all communications to Town from Stanford and shall communicate to Stanford on behalf of Town with regard to this Agreement and the Project. 10.2 Stanford. Stanford shall provide to the Director by written notice, from time to time, the names of a contact person employed by Stanford ("Stanford's Representative(s)"). Until further notice, Stanford's Representative shall be its Director of Design & Construction, currently Jim Inglis. Stanford's Representative shall represent Stanford with regard to this Agreement and the Project. Stanford's Representative shall be the recipient of all communications to Stanford from-Town and shall communicate to Town on behalf of Stanford with regard to this Agreement and the Project. 10.3 No Personal Liability. This Agreement shall not create any personal liability of any individual to the parties herein for any action or inaction related to their duties as set forth herein. 6 11.0 Notice. All notices required or provided for under this Agreement shall be in writing and shall be delivered personally or by overnight courier service or sent by certified or registered mail, return receipt requested. Any notice given by(a)personal delivery, (b)recognized overnight national courier service or(c) registered or certified mail, return receipt requested, shall be deemed to have been duly given and received upon receipt. Notices to the parties shall be addressed as follows: Town: Richard Chiu, Director of Public Works Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 Fax: 650.941.3160 Email: rchiu@losaltoshills.ca.gov with a copy to: Carl Cahill, City Manager Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 Fax: 650.941.3160 Email: ccahill@losaltoshills.ca.gov with a copy to: Steven Mattas, City Attorney c/o Meyers Nave 575 Market Street, Suite 2600 San Francisco, CA 94105 Fax: 415.421.3 767 Email: smattas@meyersnave.com Stanford: Director of Design & Construction Stanford University Office of Real Estate 2755 Sand Hill Road, Suite 100 Menlo Park, CA 94025 Fax: (650) 854-9268 Email: jinglis@stanford.edu with a copy to: General Counsel Office of the General Counsel Building 170, 3rd Floor, Main Quad, PO Box 20386 Stanford, CA 94305 Fax: (650) 723-4323 Email: zumwalt@stanford.edu As a courtesy, each notice also shall be sent by fax or email,but the failure to do so shall not invalidate the notice given or constitute a breach of this Agreement. Similarly, the copies of the 7 notice provided to the persons shown above are provided solely as a courtesy and the failure to provide one or more copies shall not invalidate the notice given or constitute a breach of this Agreement. Any notice so delivered shall be effective upon the date of personal delivery or, in the case of mailing to the person identified above as the recipient of notices for the party to whom notice is given, on the date of delivery as shown on the U.S. Postal Service return receipt. Any party may change its address for notice by giving ten days' notice of such change in the manner provided in this paragraph. 12.0 Conditions Precedent; Termination. 12.1 Conditions Precedent. Stanford's obligations under this Agreement are expressly conditioned upon: (i) approval by Santa Clara County's Director of Parks and Recreation of the Plans in accordance with Section 4.c of the Trail Agreement, received in writing by Stanford, (ii) completion and attainment of all necessary permits and any necessary easements pursuant to Section 3, (iii) Town's approval of the Plans pursuant to Section 4, and (iv) Stanford's acceptance of the cost of the mitigation measures pursuant to Section 1. If any of these conditions is not satisfied by July 1, 2011, Stanford may elect to terminate this Agreement by written notice to Town. Further, in the event any litigation or challenge is brought or threatened against Stanford or the County with respect to the Trail Agreement, or Stanford or Town with respect to this Agreement, and the same is not resolved to the satisfaction of Stanford in its sole and absolute discretion (and/or Town in its sole and absolute discretion as to any action threatened or brought against Town with respect to this Agreement) on or before July 1, 2011, then either party may elect to terminate this Agreement by written notice to the other party, provided construction has not already commenced. The parties' respective obligations under this Agreement will not commence until expiration of the period to challenge this Agreement under CEQA. If the actual costs for environmental review and Mitigation Measures are greater than the projected costs in Section 1.0, or if the actual costs for design are greater than the projected costs in Section 4.0, and the parties do not agree on an allocation for the additional costs, then either party may terminate this agreement by written notice to the other party. 12.2 Termination. If either party elects to terminate this Agreement as provided in Section 12.1, both parties will be released from any further obligations hereunder. 13.0 No Third Party Beneficiaries. This Agreement is for the benefit of the named parties only and is not intended, and shall not be construed to be for the benefit of any third party. In particular, this Agreement expressly is not for the benefit of any public utility, governmental or other entity that owns any facility or improvement, including utility facilities, the relocation of which is necessary, required or desirable for the Project. This Agreement is not intended to benefit the owners of any such facilities or improvements or any other third party or to relieve such owners or any third parties from any obligation under law or under any franchise or other agreement with Town that requires such owners or third parties to pay for the cost of relocating facilities or improvements made necessary by this Project, or any other public works project. 8 14.0 Exhibits. The following Exhibits are attached to this Agreement and by this reference incorporated herein as if set forth in full. Exhibit A Plans for the Project Exhibit B Town's tentative budget for Reimbursable Costs Exhibit C Town's list of routine maintenance items The parties have executed this Agreement on the dates set forth below. The Board of Trustees of the Leland Stanford Junior University By: Stanford anag ment Com an By � ? Robert C Rei y Vice President fbr Land, Building d Real Estate Date: November A, 2010 Approved as to form: uinn Arntsen, University Counsel Town of Los Altos Hills By: Carl Cahill, City Manager Approved as t form: Steven Matta ity A orney 1546673.1 9