HomeMy WebLinkAboutStaff Report 268-09TO:
FROM:
DATE:
City of Palo Alto
Memorandum
HONORABLE CITY COUNCIL
CITY MANAGER
JUNE 8, 2009
REPORT TYPE: STUDY SESSION
SUBJECT: Status Update on the San Francisquito Creek Joint Powers Authority's
Initial Capital Project
The San Francisquito Creek Joint Powers Authority (JPA) is working cooperatively with the US
Army Corps of Engineers on a comprehensive flood damage reduction and ecosystem restoration
project for San Francisquito Creek. This is a long-term project that will require several more
years of study and design, as well as substantial amounts of federal and local funding. In an
effort to provide some tangible benefits in the near future, the JP A has been pursuing the
implementation of an Initial Capital Project that would provide incrementally improved flood
protection to the communities in the watershed.
The JP A has retained engineering consultant Philip Williams & Associates to assess the·
feasibility of several Initial Capital Project alternatives for San Francisquito Creek. Specifically,
the consultant was asked to study the feasibility of two types of potential projects: 1) providing
increased flow capacity in the reach of creek downstream of Highway 101, and 2) detaining
storm water runoff in the upper watershed in order to reduce flood flows in downstream reaches.
The consultant presented their preliminary findings to the JP A Board at their May 28 meeting
(see attached summary). This presentation was the beginning of a two-month process of
outreach and discussion with the governing bodies of the JPA member agencies, neighborhood
groups, and the community at-large regarding potential Initial Capital Projects to be implemented
by the JP A. At this evening's study session, JP A Executive Director Len Materman will be
presenting the consultant's findings on the project alternatives, with particular emphasis on
potential impacts to City of Palo Alto residents, businesses and City-owned properties. The
doWnstream flood control options would potentially affect the Palo Alto· Golf Course and the
City-owned Faber-Laumeister Tract north of San Francisquito Creek. The upstream detention
scenarios are located on Stanford University lands.
Status Update -San Francisquito' Creek
June 8,2009
Page 2
The study session will be an opportunity for JP A staff to provide information to the Council on
the potential Initial Capital Project alternatives and to solicit comments and feedback. After a
series of meetings with other stakeholders, staff and the JP A Executive Director will return to
Council on July 20 with a recommendation to proceed with a specific project alternative. On
July 23, the JPA Board is scheduled to approve the issuance of a Request for Proposals for a
design professional to conduct the design and environmental review of a defined Initial Capital
Project.
Ienl~flJ; SIDl-=-ancisqUito JPA's Initial;: Projects -c
'GLENN S. ROBERTS JAMES KEENE
Director of Public Works City Manager
Options for the San Francisquito JPA's Initial Capital Projects
Project Schedule in 2009
May 28: Complete Technical Feasibility
June-July: Community Outreach
August: JPA submits application for
Federal credit
September: Engineering Design and
Environmental Planning begins
April 2011: Construction begins
Build capacity to detain water upstream,
increase flow under Highway 101, and
either create a bypass channel through
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This Agreement ("Agreement") is made and entered into as ()f January 25,2007, by and
am()ng the SAN fRANCIS QUITO CREEK JOINT POWERS AUTHORITY, a CalifOl1:llajoilitt
powers authQrity ("AuthQrity"), the SAN MATEO COUNTY FLOOD CONTROL DISTRICT, a
special district Qfthe State QfCalifornia ("'San Mateo"), the SANTA CLARA V ALLEY
WATER DISTRICT, a special district of the State of Cali forma ("Water District "), the CITY
OF EAST PALO ALTO, a municipal corporati()n ("East PallO AltQ"), the CITY Of MENLO
PARK, a municipal cQrporatiQn ("MenlQ Park"), and the CITY OF PALO ALTO, a CalifQrnia
charter city ("'PallO AltQ"), cQllectively referred tQ as Parties lOr individually as Party_
RIECITAlS
A. San FrancisquitQ Creek has a histQry QfflQQding the cQmmunities in and arQund
East PallO Alt(), Menl() Park and Palo AltQ. The latest and the most danwging fl()od Qccurred in
1998.
B. FQllQwing the flQQd Qf 1998, East PallO AltQ, MenlQ Park, PallO AltQ, San MateQ
and Water District fQrmed the San FrancisquitQ Creek JQint PlOwers AuthQrity on May 18, 1999.
These entities are fun members of the AuthQrity_ The AuthQrity was authQrized to represent its
member agencies as the IQcal SPQnsor fQr a U.S. Army CQrps of Engineers' ("CQrps") flQQd
damage reductiQn and ecQsystem restQratiQn project IOn May 23, 2002.
C. The CQrps, wQrking with the Authority as the IQcal sponsQr, completed a
reconnaissance study fQr San Francisquito Creek in 2005. reconnaissance study indicated a
Federal Interest in developing a flQQd damage reductiQn and ecosystem restQratiQn prQject fQr
San Francisquito Creek.
D. Based on the recQnnaissance study and extensive discussiQns between the CQrps
and the AuthQrity, IOn November 17,2005, a Feasibility ClOst Share Agreement ("FCSA") was
entered intQ between the CQrps and the AuthQrity fQr a flood damage reductiQn and eCQsystem
restQration prQject feasibility study of San FrancisquitQ Creek and adjacent tidal areas ("Study").
The CQrps, pursuant tQ the FCSA, has agreed to initiate a project tQ evaluate flQQd protectiQn and
ecQsystem restQratiQn alternatives within the San Francisquito Creek Watershed and tidal areas
as defined within, in Santa Clara and San MateQ CQunties. The FCSA and its associated PrQject
Management Plan is attached as Exhibit A.
E. The FCSA requires the Authority, as the prQject IQcal SPQnSQr, to contribute tQ the
Corps, in cash lOr in-kind services, fifty percent(50%) Qfthe ClOst Qfthe Study, as described in
the FCSA, as the IQcal share. The FCSA alsQ requires the AuthQrity tQ fund lOne hundred percent
(100%) Qfthe ClOst Qf other studies as may be required but nQt identified as funded by the Corps
921111-2 1
in the FCSA, including but not limited to the environmental review that may be required by the
California Environmental Quality Act ("CEQA").
F. San Mateo and Water District agreed to provide up to $1.5 million each ($3
million total) to fund the local share of the Study pursuant to the Agreement for Funding a
Feasibility Study for San Francisquito Creek Among the San Francisquito Creek Joint Powers
Authority, the San Mateo County Flood Control District and the Santa Clara Valley Water
District ("Funding Agreement"), which details the amount, method and timing of financial
contributions from San Mateo and Water District to be applied towards the cost of conducting
the fluvial portion of the Study, and is attached as Exhibit B.
G. East Palo Alto agreed by City Council action on November 15,2005 to provide
up to $33,000 toward the local share of the Study for the particular purpose of including Tidal
Option], as described in the FCSA, in the Study.
H. Menlo Park agreed by City Council action on November 8, 2005 to provide up to
$32,500 toward the local share of the Study for the particular purpose of including Tidal Option
1, as described in the FCSA, in the Study.
I. The FCSA allows the Authority to credit staff time as in-kind services up to
$592,800 toward the local share of the Study.
J. The Joint Powers Agreement between the Parties authorizes the Authority to enter
into contracts with its member agencies to perform any of the duties and responsibilities of the
Authority.
NOW, THEREFORE, in consideration of the foregoing recitals, and the terms and
conditions in the sections contained herein below, the Parties agree, as follows:
I. PROJECT DESCRIPTION AND MUTUAL OBJECTIVES
A. Project Description
The project is to conduct the Study as described in the Project Management Plan
("PMP") of the FCSA for a Flood Damage Reduction and Ecosystem Restoration ("FDRER")
project for San Francisquito Creek and adjacent tidal areas. The Study will investigate the
opportunities to reduce both fluvial (creek) and tidal flooding, which threaten public safety, and
to restore ecosystem quality and function, where possible.
The geographical area of the Study includes the entire watershed of San Francisquito
Creek and tidal areas extending from the northernmost bay-shore point in Menlo Park to the
southernmost bay-shore point in Palo Alto. The proposed area of the Study is shown on the map,
which is attached as Exhibit C. The Study will also consider potential impacts to, and without-
project conditions of, adjacent areas of influence that may not be contained within the proposed
area ofthe Study.
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The Study is the second phase within the planning process of a Corps FDRER project.
The Study will evaluate project alternatives in regard to cost, feasibility and environmental
impacts. Significant elements of the Study include, but are not limited to, the following:
1. Environmental Documents: One element of the Study is the production of
an Environmental Impact Statement ("ElS") in accordance with the National Environmental
Policy Act ("NEPA".) The corresponding Environmental Impact Report, ("EIR"), required by
CEQA, will be developed by the Parties at their own expense. The ElR is expected to use much
of the same supporting material as the ElS and may in fact be nearly the same document.
2. Alternatives and. Engineering Evaluation: Various alternatives will be
identified and scoped through suggestions and input from the Corps, the Authority and its
member agencies, the public and other stakeholders. The Corps, with input from the staff of the
Authority and its member agencies, will evaluate the feasibility of the alternatives with regards
to engineering, costs, environmental impacts and other aspects important to the community.
3. Public Participation: The FDRER project is intended to result in flood
damage reduction and ecosystem restoration within the San Francisquito Creek watershed,
adjacent tidal and wetland areas, and their areas of influence. The Corps, the Authority and its
member agencies have agreed that the community that lives within the watershed, tidal areas,
and areas of influence must be involved in the development of the alternatives and the
environmental documents, and that public outreach and participation is an important element of
the Study.
B. Mutual Objectives
The Parties mutually agree to the following objectives of the Study:
• Develop the Study to-best incorporate and address the concerns of the Authority and its
member and associate member agencies, the public, and other stakeholders.
• Develop a wide range of alternatives within the Study and strive to identify the alternative,
or combination of alternatives, that provides the best flood reduction for the most people at
the most reasonable cost.
• Preserve and restore the natural environment of the creek corridor and tidal area as a
habitable resource for wildlife.
• Improve habitat for steelhead trout.
• Explore opportunities for one or more trails, compatible with the riparian and marshy
natural setting that will accommodate a variety of trail users, with appropriate routing of
paths, points, overlooks, vegetation and screening.
• Protect and restore riparian and aquatic habitat along the creek corridor.
921111-2 3
II. SPECIFIC PROVISIONS
A. Purpose
The Funding Agreement provides for the members of the Authority to enter into an
implementation agreement with the Authority defining the roles and responsibilities of the
members during the Study. This Agreement is the implementation agreement required by the
Funding Agreement. The provisions of this Agreement shall supercede and control over any
conflicting provisions in the Funding Agreement.
B. Contributions
Water District shall contribute $74,100 toward the local share of the Study for the
particular purpose of including Tidal Option 2, as described in the FCSA, in the Study. Upon
written request for full or partial payment of the local share for the Tidal Option 2, as'described
in the FCSA, Water District shall deposit the requested amount of money in an escrow account
managed by Authority. This contribution is in addition to Water District's contribution under the
Funding Agreement. Water District shall not receive any credit or reimbursement for its financial
contribution to the inclusion of Tidal Option 2 in the Study, nor shall East Palo Alto or Menlo
Park receive any credit or reimbursement for their financial contributions to the inclusion of
Tidal Option 1 in the Study, as described in Recitals G and H above.
C. Cooperation in FCSA Implementation
Each Party shall cooperate with and assist the Authority in the implementation of the
FCSA, including providing any reports, studies, data or other documents and information
prepared or held by a Party that may be relevant to the completion of the Study. No credit,
reimbursement or other entitlement shall be provided to a Party for this type of general
assistance.
D. Management of FCSA and Study
Except as specifically provided by this Agreement, the Authority, in its sole discretion,
shall be responsible for the performance of the Authority's obligations under the FCSA related to
conducting and overseeing the Study. The other Parties to this Agreement shall have no rights or
obligations under the FCSA to conduct or oversee the Study, except as provided in this
Agreement. San Mateo, Water District, East Palo Alto, Menlo Park and Palo Alto staffs are
designated as members of Authority'S project management team ("Management Team") that will
consult with and provide advice to the Authority'S Executive Director ("Director") on the
implementation of the FCSA. The Parties shall provide appropriate representatives to the
Management Team and participate in Management Team meetings and activities.
E. Consensus Approval of Work Products
The Director shall strive to obtain consensus for acceptance or approval of documents
developed by the Corps or its consultants or actions regarding the Study from the Management
Team. The individual Management Team members shall support the Management Team and the
Director by providing timely review of documents and issues, and by providing information and
material that promotes Management Team's work
921111·2 4
F. Local Outreach Plan
The Authority shall develop a local public outreach plan to supplement the Corps'
outreach plan for the Study. Public meetings related to the local public outreach plan and the
Corps' outreach plan shall be supported by the member representatives of the Management
Team. Support shall be rendered in the form of materials, venue, attendance, and/or
presentations. Funding for the costs associated with the local outreach plan shall be secured by
the Authority, outside of this Agreement, either as part of its annual operating budget or through
additional financial contributions from the Authority's member agencies.
III. GENERAL PROVISIONS
A. Additional or Advance Funding or In-Kind Contributions
Any funding for the Study in addition to what is stipulated within this Agreement or the
Funding Agreement, or any funding advanced by any of the Parties for the purpose of conducting
the Study at a pace greater than annual Congressional appropriations provide for, or any inwkind
services or contributions rendered towards the Study on behalf of the Authority by any Party,
shall be agreed to by an addendum or amendment to this Agreement as provided below. The
source, timing, manner oftransaction, and administration of contributions for future credit or
reimbursement for any additional or advanced funding or inwkind contribution shall be described
in the addendum or amendment.
An addendum to this Agreement may be proposed by any of the Parties. An addendum
may be used only for additional or advance funding or inwkind contributions towards tasks that
(1) are of a technical or planning nature and (2) have a cost estimate of less than or equal to
$100,000 per task identified in the PMP. An addendum shall be approved in the following
manner:
1. The Party proposing the addendum shall first obtain the approval of the
Management Team. An addendum may be proposed by more than one Party and may include
multiple tasks. After such approval by the Management Team is obtained, the proposing Party
shall prepare an addendum that describes the following:
a. The scope of work for additional funding or in-kind services to be
provided, or the list of tasks identified in the PMP to be accelerated by advance funding.
b. The timetable for the additional services or inwkind contribution to
be performed.
c. The amount of additional or advance funding that will be
contributed or in-kind services that will be performed.
d. The method of credit or reimbursement to the proposing Party.
921111-2 5
2. The proposed addendum shall not become effective until it is approved by
the chief executive officer of each of the Parties, the Board of the Authority and the project
manager of the Corps.
Any other additional or advance funding or in-kind contribution not meeting the
limitations on addendums described above shall be approved only as an amendment to this
Agreement that is approved by the governing body of each Party.
For additional or advance funding or in-kind contributions provided by San Mateo or
Water District as part of an addendum or amendment, the actual costs up to the dollar amount
specified in the addendum or amendment shall be credited by the Corps, upon the Corps'
acceptance of the funded or provided work, against the next cost share invoice under the Funding
Agreement.
For additional or advance funding or in-kind contributions provided by East Palo Alto,
Menlo Park or Palo Alto, the credit or reimbursement shall be provided in the manner described
in the approved addendum or amendment
B. Mutual Hold Harmless
1. Each Party shall defend, hold harmless and indemnify the other Parties,
and their elected and appointed officials, officers, directors and employees from any and all
claims for injuries or damages which arise out of the terms and conditions of this Agreement and
which result from the intentional or unintentional misconduct, negligent acts or omissions of that
Party, and its elected and appointed officials, officers, directors and employees.
2. In the event of concurrent intentional or unintentional misconduct,
negligent acts or omissions by the Parties (or any of their respective elected and appointed
officials, officers, directors and employees), then the liability for any and all claims for injuries
or damages to persons and property which arise out of terms and conditions of this Agreement
shall be apportioned according to the California law of comparative negligence.
3. The duties and obligations of each Party as set forth in this Section HI.B
shall survive and continue in full force and effect after the respective termination of the FCSA
and this Agreement.
C. Retention of Records. Right to Monitor and Audit
The authority shall maintain all records for three (3) years after the Study is terminated or
completed. The records shall be subject to the examination and/or audit of San Mateo, Water
District, East Palo Alto, Menlo Park, and Palo Alto. The Authority shall comply with all
program and fiscal reporting requirements set forth under the FCSA and as required by this
Agreement.
D. Termination of Agreement
This Agreement shall automatically terminate one hundred and eighty (180) days after
the completion of the Study or the termination of the FCSA, whichever first occurs.
921111-2 6
E. Notices
Any notice or other communication required or permitted to be given hereunder shall not
be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail,
postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial courier that
provides a receipt, and addressed to the Parties at the addresses stated below, or at such other
address as a Party may hereafter notify the other Parties in writing:
Authority:
San Mateo:
Water District:
East Palo Alto:
Menlo Park:
Palo Alto:
San Francisquito Creek Joint Powers Authority
701 Laurel Street
Menlo Park, California 94025
Attention: Cynthia D'Agosta, Executive Director
Facsimile No.: (650) 328-7935
San Mateo County Flood Control District
555 County Center, 5th Floor
Redwood City, CA 94063
Attention: Director of Public Works
Facsimile No.: (650) 361-8220
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, California 95118-3614
Attention: Stanley Williams, Chief Executive
Officer
Facsimile No.: (408) 445-1435
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
Attention: Alvin James, City Manager
Facsimile No: (650) 853 -3115
City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Attention: David Boesch, City Manager
Facsimile No: (650) 328-7935
City of Palo Alto
Department of Public Works
250 Hamilton A venue
Palo Alto, CA 94301
Attention: Glenn Roberts, Director of Public Works
Facsimile No: (650) 329-2299
Service of any such notice or other communications so made shall be deemed effective
on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed
921111-2 7
answerback if by facsimile (provided that if any notice or other communication to be delivered
by facsimile is unable to be transmitted because of a problem affecting the receiving party's
facsimile machine, the deadline for receiving such notice or other communication shall be
extended through the next business day); b) as shown by the addressee's return receipt if by
certified mail; and c) as confirmed by the courier service ifby courier; provided, however, that if
such actual delivery occurs after 5:00 p.m. (local time where received) or on a non~ business day,
then such notice or demand so made shall be deemed effective on the first business day
immediately following the day of actual delivery. No communications via electronic mail shall
be effective to give any notice, request, direction, demand, consent, waiver, approval or other
communications hereunder.
F. Severability
In the event any portion of this Agreement is declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this
Agreement and the remaining parts hereof shall remain in full force and effect as fully as though
such invalid, illegal or unenforceable portion had never been part of this Agreement.
G. Governing Law and Compliance with Laws
The Parties agree that California law shall govern this Agreement. In the performance of
this Agreement each Party shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state, and applicable local government.
H. Venue
In the event that suit shall be brought by any Party, the Parties agree that venue shall be
exclusively vested in the state courts of either the County of Santa Clara or the County of San
Mateo, or when appropriate, in the United States Court, for the Northern District of California, in
either the San Francisco or San Jose branch.
I. Assignability and Subcontracting
A Party shall not assign this Agreement or any portion thereof to a third party or
subcontract with a third party to provide services required under this Agreement without the
prior written consent of the other Parties or except as approved by the Board of Directors of
Authority.
J. Ownership of Materials
All reports, documents, or other materials developed or discovered by any Party or any
other person engaged directly or indirectly by any Party to perform the services required
hereunder shall be and remain the mutual property of all Parties without restriction or limitation
upon their use.
K. Entire Agreement
This Agreement constitutes the entire agreement between all the Parties with respect to
this subject matter and supersedes all prior offers and negotiations, oral and written. This
921111-2 8
Agreement may not be amended or modified in any respect whatsoever except by an instrument
in writing signed by authorized representatives of all the Parties.
JL. COlllnterparts
This Agreement may be executed in any number of counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, taken together, shall
be deemed to be one and the same instrument.
[This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page]
921111-2 9
IN WITNESS WHEREOF, the Authority, San Mateo, Water District, East Palo Alto, Menlo
Park, and Palo Alto have duly executed this Agreement as of the date and year first above
written.
Authority:
Date:
921111-2 10
'121111-2
SA.1" MATEO COUNTY FLOOD
CONll' ROIJ STRI CT
BY:~~1~·~",;1<-
Date: \..1 q ! 01 ---.,t4-.. ~ .. ~------.
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(GO\lemMf\m Code S~C;fion 251(0)
U ~rt1fv th.'lt a OOP" 01 the origflla I <1OCUITH'3n~ flrtlld II
the Offioo (If thIS C!~fk of the P~ard of Su~roiscl'S r
San Mateo County l'Ia~ ~n da!!V9f€ld to thE!
~f~sjd~ of thE'! Bearci of Sl.!~rvi~orst
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• ':)I)Ulv CIp,!'V. of the BorH0 o{ SUf)(,:rvisor?
VED AS Trt~RM:
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District Counsel
SANTA CLARA VALLEY WATER
JD>JI§TRICT d
~ " / By:_~~~~~~---,/..fI!.
Nai Hsueh. Acting Chief Executive Officer
Date: 101 -,:1.,j. -dltPlJ 6, -=---
921111-2 12
APPROVED AS TO FORM: eJITY OlF lEA§T PALO ALTO
City Attorney By: Date:# ___ _
921111-2 13
J1jPDT~
City Attorney BY:---v<--r=---f:?'-
921111-2 14
APPROVED AS TO FORM.: C]TV OF lP'AlLO ALTO
(y~~{Tlt.·t-~. 1 ~, .
Senior Assistant City Attorney By:_--"---'t'If-__ ---:--'''---' ___ _
Date: t I :z./2 ej()) 7
II
921111-2 15
EXHIBIT A
AGREEMENT
BETWEEN THE DEPARTMENT OF THE ARMY
AND
THE SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY
FOR THE
SAN FRANCISQUITO CREEK
THIS AGREEMENT is entered into this day, of __ , 20--, by and between the
Department of the Anny (hereinafter the "Government"), represented by the District Engineer
executing this Agreement, and the San Francisquito Creek Joint Powers Authority (hereinafter
the "Sponsor"),
WITNESSETH, that
WHEREAS, the U.S. House of Representatives Committee on Transportation and Infrastructure
has requested the Secretary of the Anny, in accordance with Section 4 of the Flood Control Act
of 1941, P.L. 77-228, 55 Stat. 638 (July 24, 1941), to conduct a study of the Guadalupe River and
Tributaries, California, to detennine whether flood damage reduction, environmental restoration
and protection, stonn water retention, water conservation and supply, recreation and other allied
purposes are advisable in the interest of the San Fransciquito Creek Watershed, including San
Francisquito Creek, Santa Clara and San Mateo Counties, California, pursuant to Resolution, San
Francisquito Creek Watershed, California, Docket 2649, May 22,2002;
WHEREAS, the U.S. House of Representatives Committee on Public Works and Transportation
is authorized to direct commission of this feasibility study by resolution pursuant to the Rivers
and Harbors Act of 1913,33 U.S.C. § 542 (2005);
WHEREAS, the U.S. Anny Corps of Engineers has conducted a reconnaissance study of San
Francisquito Creek in the interest of flood damage reduction, environmental restoration and
protection, stonn water retention, water conservation and supply, recreation and other allied
purposes pursuant to this authority, and has detennined that further study in the nature of a
"Feasibility Phase Study" (hereinafter the "Study") is required to fulfill the intent of the study
authority and to assess the extent of the Federal interest in participating in a solution to the
identified problem; and
WHEREAS, Section 105 of the Water Resources Development Act of 1986 (Public Law 99-662,
as amended) specifies the cost sharing requirements applicable to the Study;
WHEREAS, the Sponsor has the authority and capability to furnish the cooperation hereinafter
set forth and is willing to participate in study cost sharing and financing in accordance with the
tenns of this Agreement; and
WHEREAS, the Sponsor and the Government understand that entering into this Agreement in no
way obligates either party to implement a project and that whether the Government supports a
project authorization and budgets it for implementation depends upon, among other things, the
outcome of the Study and whether the proposed solution is consistent with the Economic and
Environmental Principles and Guidelines for Water and Related Land Resources Implementation
Studies and with the budget priorities of the Administration;
1
NOW THEREFORE, the parties agree as follows:
ARTICLE I -DEFINITIONS
F or the purposes of this Agreement:
A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this
Agreement,from Federal appropriations or from funds made available to the Government by the
Sponsor, and all negotiated costs of work performed by the Sponsor pursuant to this Agreement.
Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses;
supervision and administration costs; the costs of participation in Study Management and
Coordination in accordance with Article IV of this Agreement; the costs of contracts with third
parties, including termination or suspension charges; and any termination or suspension costs
(ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to
properly safeguard the work already accomplished) associated with this Agreement.
B. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of
the effective date of this Agreement, as specified in Article 1I1.A. ofthis Agreement.
C .. The term "excess Study Costs" shall mean Study Costs that exceed the estimated Study Costs
and that do not result from mutual agreement of the parties, a change in Federal law that
increases the cost of the Study, or a change in the scope of the Study requested by the Sponsor.
D. The term "study period" shall mean the time period for conducting the Study, commencing
with the release to the U.S. Army Corps of Engineers San Francisco District of initial Federal
feasibility funds following the execution of this Agreement and ending when the Assistant
Secretary of the Army (Civil Works) submits the feasibility report to the Office of Management
and Budget (OMB) for review for consistency with the policies and programs of the President.
E. The term "PMP" shall mean the Project Management Plan, which is attached to this
Agreement and which shall not be considered binding on either party and is subject to change by
the Government, in consultation with the Sponsor.
F. The term "negotiated costs" shall mean the costs ofin-kind services to be provided by the
Sponsor in accordance with the PMP.
G. The term "fiscal year" shall mean one fiscal year ofthe Government. The Government fiscal
year begins on October 1 and ends on September 30.
ARTICLE II -OBLIGATIONS OF PARTIES
A. The Government, using funds and in-kind services provided by the Sponsor and funds
appropriated by the Congress of the United States, shall expeditiously prosecute and complete the
Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and
policies.
2
B. In accordance with this Article and Article lILA., III.B. and IILC. of this Agreement, the
Sponsor shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other
than excess Study Costs. The Sponsor may, consistent with applicable law and regulations,
contribute up to 50 percent of Study Costs through the provision of in-kind services. The in-
kind services to be provided by the Sponsor, the estimated negotiated costs for those services,
and the estimated schedule under which those services are to be provided are specified in the
PMP. Negotiated costs shall be subject to an audit by the Government to determine
reasonableness, allocability, and allowability.
C. The Sponsor shall pay a fifty (50) percent share of excess Study Costs in accordance with
Article III.D. of this Agreement.
D. The Sponsor understands that the schedule of work may require the Sponsor to provide cash
or in-kind services at a rate that may result in the Sponsor temporarily diverging from the
obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such
temporary divergences shall be identified in the quarterly reports provided for in Article III.A. of
this Agreement and shall not alter the obligations concerning costs and services specified in
paragraph B. of this Article or the obligations concerning payment specified in Article III of this
Agreement.
E. If, upon the award of any contract or the performance of any in-house work for the Study by
the Government or the Sponsor, cumulative financial obligations of the Government and the
Sponsor would result in excess Study Costs, the Government and the Sponsor agree to defer
award of that and all subsequent contracts, and performance of that and all subsequent in-house
work, for the Study until the Government and the Sponsor agree to proceed. Should the
Government and the sponsor require time to arrive at a decision, the Agreement will be
suspended in accordance with Article X., for a period of not to exceed six months. In the event
the Government and the sponsor have not reached an agreement to proceed by the end of their 6
month period, the Agreement may be subject to termination in accordance with Article X.
F. No Federal funds may be used to meet the Sponsor's share of Study Costs unless the Federal
granting agency verifies in writing that the expenditure of such funds is expressly authorized by
statute.
G. The award and management of any contract with a third party in furtherance of this
Agreement which obligates Federal appropriations shall be exclusively within the control of the
Government. The award and management of any contract by the Sponsor with a third party in
furtherance of this Agreement which obligates funds of the Sponsor and does not obligate
Federal appropriations shall be exclusively within the control of the Sponsor, but shall be subject
to applicable Federal laws and regulations.
H. The Sponsor shall be responsible for the total cost of developing a response plan for
addressing any hazardous substances regulated under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767, (codified
at 42 U.S.C. Sections 9601-9675), as amended, existing in, on, or under any lands, easements or
rights-of-way that the Government determines to be required for the construction, operation, and
maintenance of the project. Such costs shall not be included in total study costs.
3
ARTICLE III -METHOD OF PAYMENT
A. The Government shall maintain current records of contributions provided by the parties,
current projections of Study Costs, current projections of each party's share of Study Costs, and
current projections of the amount of Study Costs that will result in excess Study Costs. At least
quarterly, the Government shall provide the Sponsor a report setting forth this information. As of
the effective date of this Agreement, estimated Study Costs are $7,463,100 and the Sponsor's
share of estimated Study Costs is $3,731,550. In order to meet the Sponsor's cash payment
requirements for its share of estimated Study Costs, the Sponsor must provide a cash contribution
currently estimated to be $3,731,550. The dollar amounts set forth in this Article are based upon
the Government's best estimates, which reflect the scope of the study described in the PMP,
projected costs, price-level changes, and anticipated inflation. Such cost estimates are subject to
adjustment by the Government and are not to be construed as the total financial responsibilities
of the Government and the Sponsor.
B., The Sponsor shall provide its cash contribution required under Article II.B. of this Agreement
in accordance with the following provisions:
1. For purposes of budget planning, the Government shall notify the Sponsor by
September 1 of each year of the estimated funds that will be required from the Sponsor to meet
the Sponsor's share of Study Costs for the upcoming fiscal year.
2. No later than 60 calendar days prior to the scheduled date for the Government's
issuance of the solicitation for the first contract for the Study or for the Government's anticipated
first significant in-house expenditure for the Study, the Government shall notify the Sponsor in
writing of the funds the Government determines to be required from the Sponsor to meet its
required share of Study Costs for the first fiscal year of the Study. No later 30 calendar days
thereafter, the Sponsor shall verify to the satisfaction of the Government that the Sponsor has
deposited the required funds in an escrow or other account acceptable to the Government, with
interest accruing to the Sponsor.
3. For the second and subsequent fiscal years of the Study, the Government shall, no later
than 60 calendar days prior to the beginning of the fiscal year, notify the Sponsor in writing of
the funds the Government determines to be required from the Sponsor to meet its required share
of Study Costs for that fiscal year, taking into account any temporary divergences identified
under Article II.D of this Agreement. No later than 30 calendar days prior to the beginning of the
fiscal year, the Sponsor shall make the full amount of the required funds available to the
Government through the funding mechanism specified in paragraph B.2. of this Article.
4. The Government shall draw from the escrow or other account provided by the Sponsor
such sums as the Government deems necessary to cover the Sponsor's share of contractual and
in.;;house fiscal obligations attributable to the Study as they are incurred.
5. In the event the Government determines that the Sponsor must provide additional
funds to meet its share of Study Costs, the Government shall so notify the Sponsor in writing.
No later than 60 calendar days after receipt of such notice, the Sponsor shall make the full
amount of the additional required funds available through the funding mechanism specified in
paragraph B.2. of this Article.
4
C. Within ninety (90) days after the conclusion of the Study Period or termination of this
Agreement, the Government shall conduct a final accounting of Study Costs, including
disbursements by the Government of Federal funds, cash contributions by the Sponsor, the
amount of any excess Study Costs, and credits for the negotiated costs of the Sponsor, and shall
furnish the Sponsor with the results of this accounting. Within thirty (30) days thereafter, the
Government, subject to the availability of funds, shall reimburse the Sponsor for the excess, if
any, of cash contributions and credits given over its required share of Study Costs, other than
excess Study Costs, or the Sponsor shall provide the Government any cash contributions required
for the Sponsor to meet its required share of Study Costs other than excess Study Costs.
D. The Sponsor shall provide its cash contribution for excess Study Costs as required under
Article II.C. of this Agreement by delivering a check payable to "FAO, USAED, SAN
FRANCISCO" to the District Engineer as follows:
1. After the project that is the subject of this Study has been authorized for construction,
no later than the date on which a Project Cooperation Agreement is entered into for the project;
or
2. In the event the project that is the subject of this Study is not authorized for
construction by a date that is no later than 5 years of the date of the final report of the Chief of
Engineers concerning the project, or by a date that is no later than 2 years after the date of the
termination of the study, the Sponsor shall pay its share of excess costs on that date (5 years after
the date of the Chief of Engineers or 2 year after the date of the termination of the study).
ARTICLE IV -STUDY MANAGEMENT AND COORDINATION
A. To provide for consistent and effective communication, the Sponsor and the Government
shall appoint named senior representatives to an Executive Committee. The Executive
Committee shall include from the government, the District Engineer, Deputy District Engineer
for Project Management, and the Chief, Planning/Engineering Division, and from the Sponsor,
the Director ofthe San Francisquito Creek Joint Powers Committee, the Public Works Director
of the San Mateo County Flood Control District, and the Lower Peninsula Watershed Manager of
the Santa Clara Valley Water District. Thereafter, the Executive Committee shall meet regularly
until the end of the Study Period.
B. Until the end of the Study Period, the Executive Committee shall generally oversee the Study
consistently with the PMP.
C. The Executive Committee may make recommendations that it deems warranted to the District
Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute.
The Government in good faith shall consider such recommendations. The Government has the
discretion to accept, reject, or modifY the Executive Committee!s recommendations.
D. The Executive Committee shall appoint representatives to serve on a Study Management
Team. The Study Management Team shall keep the Executive Committee informed of the
progress of the Study and of significant pending issues and actions, and shall prepare periodic
reports on the progress of all work items identified in the PMP.
5
E. The costs of participation in the Executive Committee (including the cost to serve on the
Study Management Team) shall be included in total project costs and cost shared in accordance
with the provisions of this Agreement.
ARTICLE V -DISPUTES
As a condition precedent to a party bringing any suit for breach of this Agreement, that party
must first notify the other party in writing of the nature of the purported breach and seek in good
faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through
negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute
resolution with a qualified third party acceptable to both parties. The parties shall each pay 50
percent of any costs for the services provided by such a third party as such costs are incurred.
Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the
parties from performance pursuant to this Agreement.
ARTICLE VI -MAINTENANCE OF RECORDS
A. Within 60 days of the effective date of this Agreement, the Government and thy Sponsor shall
develop procedures for keeping books, records, documents, and other evidence pertaining to
costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will
properly reflect total Study Costs. These procedures shall incorporate, and apply as appropriate,
the standards for financial management systems set forth in the Uniform Administrative
Requirements for Grants and Cooperative Agreements to state and local governments at 32
C.F.R. Section 33.20. The Government and the Sponsor shall maintain such books, records,
documents, and other evidence in accordance with these procedures for a minimum of three years
after completion of the Study and resolution of all relevant claims arising therefrom. To the
extent permitted under applicable Federal laws and regulations, the Government and the Sponsor
shall each allow the other to inspect such books, documents, records, and other evidence.
B. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition
to any audit that the Sponsor is required to conduct under the Single Audit Act of 1984, 31
U.S.C. Sections 7501-7507. Any such Government audits shall be conducted in accordance with
Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other
applicable cost principles and regulations. The costs of Government audits shall be included in
total Study Costs and shared in accordance with the provisions of this Agreement.
ARTICLE VII -RELATIONSHIP OF PARTIES
The Government and the Sponsor act in independent capacities in the performance of their
respective rights a~d obligations under this Agreement, and neither is to be considered the
officer, agent, or employee of the other.
ARTICLE VIII -OFFICIALS NOT TO BENEFIT
No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to
any share or part of this Agreement, or to any benefit that may arise therefrom.
6
ARTICLE IX -FEDERAL AND STATE LA WS
In the exercise of the Sponsor's rights and obligations under this Agreement, the Sponsor agrees
to comply with all applicable Federal and State laws and regulations, including Section 601 of
Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense
Directive 5500.11 issued pursuant thereto and published in 32 C.F.R. Part 195, as well as Army
Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and
Activities Assisted or Conducted by the Department of the Army".
AR TICLE X -TERMINATION OR SUSPENSION
A. This Agreement shall terminate at the conclusion of the Study Period, and neither the
Government nor the Sponsor shall have any further obligations hereunder, except as provided in
Article IIlC.; provided, that prior to such time and upon thirty (30) days written notice, either
party may terminate or suspend this Agreement. In addition, the Government shall terminate this
Agreement immediately upon any failure of the parties to agree to extend the study under Article
ILE. of this agreement, or upon the failure of the sponsor to fulfill its obligation under Article III.
of this Agreement. In the event that either party elects to terminate this Agreement, both parties
shall conclude their activities relating to the Study and proceed to a final accounting in
accordance with Article III.C. and III.D. of this Agreement. Upon termination of this Agreement,
all data and information generated as part of the Study shall be made available to both parties.
B. Any termination of this Agreement shall not relieve the parties ofliability for any obligations
previously incurred,
including the costs of closing out or transferring any existing contracts.
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become
effective upon the date it is signed by the District Engineer for the U.S. Army Corps of
Engineers, San Francisco District.
BY=·~~~~~~~~~ __
Pliilip T. E
Lieutenant Colonel, Corps of Engineers
District Engineer
San Francisco District
EK JOINT POWERS
8
EXHIBIT B
Agreement for Funding a Feasibility Study for San Francisquito Creek Among the
San Francisquito Creek Joint Powers Authority, the San Mateo County Flood Control
District and the Santa Clara Valley Water District
This Agreement ("Agreement") is made and entered into as of _, 2005, by
and among the SAN FRANCISQUITO CREEK JOINT POWERS AUTHORITY, a California
joint powers authority ("Authority"), the SAN MATEO COUNTY FLOOD CONTROL
DISTRICT, a special district of the State ofCa:lifornia ("San Mateo"), and the SANTA CLARA
VALLEY WATER DISTRICT, a special district of the State of California ("Santa Clara"),
collectively referred to as Parties, or individually as Party.
RECITALS
A. San Francisquito Creek has a history of flooding the communities in and around
East Palo Alto, Menlo Park and Palo Alto. The latest and the most damaging flood occurred in
1998.
B. Following the flood of 1998, the cities of East Palo Alto, Menlo Park and Palo
Alto along with the San Mateo County Flood Control District and the Santa Clara Valley Water
District formed the San Francisquito Creek Joint Powers Authority on May 18, 1999. These
entities are full members of the Authority. The Authority was authorized to represent its member
agencies as the sponsor for a U.S. Corps of Engineers' ("Corps") flood control project on May
23,2002.
C. The Corps, working with the Authority, which is considered the local sponsor, has
completed a reconnaissance study for San Francisquito Creek. The reconnaissance study results
indicated a Federal Interest in developing a flood control project for San Francisquito Creek.
Therefore, the Corps plans to progress to the feasibility study (the "Study") phase ofthe San
Francisquito Creek Flood Damage Reduction and Ecosystem Project (the "Project") which
requires a cost sharing agreement with a local sponsor.
D. The Authority is proposing to enter into a Feasibility Cost Share Agreement
(FCSA) with the U.S. Department of the Army, San Francisco District of the Corps for a flood
control project feasibility study of San Francisquito Creek. The Corps, pursuant to the FCSA,
has agreed to initiate a project to evaluate flood protection within the San Francisquito Creek
Watershed in Santa Clara and San Mateo Counties.
E. The FCSA requires the Authority, as the project sponsor, to contribute to the
Corps, in cash or in-kind services, fifty percent (50%) of the cost of the Corps' evaluation of
flood control protection as the local share of the Study Costs as defined in the FCSA (the "Study
Costs").
F. San Mateo and Santa Clara, on behalf of themselves and the other members of the
Authority within their respective jurisdictions, on July 23, 2001, agreed to provide up to $1.5
million each as the local share to fund the Study Costs and the Authority Costs.
856737vl 1
G. The Parties understand that there will be an implementation agreement between
all members of the JP A that will identify roles and responsibilities for the members during the
feasibility phase ofthe Project (the "Implementation Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals, and the covenants and
conditions in the sections contained herein below, the parties agree as follows:
AGREEMENT
1. Funding Payment and Amount
San Mateo and Santa Clara agree to contribute up to One Million Five Hundred
Thousand Dollars ($1,500,000.00) each to fund the Authority's contribution to the Study Costs.
In connection with the Study Costs, San Mateo and Santa Clara shall each deposit into an
escrow account as described in Section 2 of this Agreement, the amount requested, within twenty
(20) days of receiving a request for payment from the Authority. Authority will make requests
for payment in accordance with estimated costs provided by the Corps to meet the sponsor's
share of Corps' costs for the succeeding fiscal year. Requests for payment from San Mateo and
Santa Clara shall be in equal amounts and at the same time. Requests for payments, however,
shall not be issued until an escrow account has been established as described in Section 2.
The amount, method and timing of any credit for any approved in-kind services provided
by either San Mateo or Santa Clara shall be as provided for in the Implementation Agreement
that will be entered into after the FCSA is approved and executed by the Authority and the
Corps.
2. Escrow Account
The Authority shall establish an independent interest bearing escrow account to receive
the cash contributions required for Study Costs. The escrow account shall be segregated from
any Authority accounts. Escrow instructions for the escrow account must be approved by both
San Mateo and Santa Clara before the escrow account is established. Any escrow account fees
or charges shall be deducted equally from the cash contribution amount deposited by San Mateo
and Santa Clara The escrow account shall be overseen by the Authority subject to disbursement
as herein provided.
Interest shall accrue and be held for the benefit of San Mateo and Santa Clara and shall
be paid annually to San Mateo and Santa Clara.
3. Disbursement of Funds.
The Authority shall review all requests for payment under the FCSA submitted by the
Corps. Upon determining that a request for payment or portion of a request for payment is
deemed appropriate and justified by Authority's Executive Director, Authority shall promptly
issue escrow instructions to disburse funds from the escrow account to the payee. The Authority
shall not disburse funds from the escrow account except in accordance with this Section.
856737vl 2
The Authority shall provide semi-annual reports to the participating JPA members of
receipts and expenditures made to and from the escrow account.
4. Management of FCSA and Study.
The Authority, in its sole discretion, shall be responsible for the performance ofthe
Authority's obligations under the FCSA related to conducting and overseeing the Study. San
Mateo and Santa Clara shall have no rights or obligations under the FCSA to conduct or oversee
the Study, except as provided in this Agreement or as may be provided in the Implementation
Agreement. San Mateo and Santa Clara are members of the Authority's project management
team that will consult with and provide advice to the Executive Director on the implementation
of the FCSA.
5. Mutual Hold Harmless.
A. The Authority shall defend, hold harmless and indemnifY San Mateo and
Santa Clara, their officers, directors and employees from any and all claims for injuries or
damages which arise out of the terms and conditions of this Agreement and which result from the
intentional or unintentional misconduct, negligent acts or omissions of Authority, its officers,
directors and/or employees.
B. San Mateo shall defend, hold harmless, and indemnifY Santa Clara and the
Authority, its officers, directors and employees from any and all claims for injuries or damages
to persons and/or property which arise out of the terms and conditions of this Agreement and
which result from the intentional or unintentional misconduct, negligent acts or omissions of San
Mateo, their officers, directors and/or employees.
C. Santa Clara shall defend, hold harmless, and indemnifY San Mateo and the
Authority, its officers, directors and employees from any and all claims for injuries or damage to
persons and/or property which arise out of the terms and conditions of this Agreement and which
result from the intentional or unintentional misconduct, negligent acts or omissions of Santa
Clara, their officers, directors and/or employees.
D. In the event of concurrent intentional or unintentional misconduct,
negligent acts or omissions by San Mateo, Santa Clara and the Authority (or each of their
respective officers, directors and/or employees), then the liability for any and all claims for
injuries or damages to persons and/or property which arise out of terms and conditions of this
Agreement shall be apportioned according to the California law of comparative negligence.
E. The duties and obligations of this Section 5 shall survive and continue in
full force and effect after the termination of the FCSA and this Agreement.
6. Retention of Records, Right to Monitor and Audit
The Authority shall maintain all records for three (3) years after the Study is terminated
or completed. The records shall be subject to the examination and/or audit of San Mateo and
Santa Clara. Each year on January 2, or on a date mutually agreed to by the Parties and prior to
termination and upon termination, the Authority shall submit to San Mateo and Santa Clara a
856737vl 3
statement of activities and balances for the escrow account to each party. The Authority shall
comply with all program and fiscal reporting requirements set forth under the FCSA and as
required by this Agreement.
7. Termination of Agreement.
This Agreement shall automatically terminate one hundred and eighty (180) days after
the completion of the Study or termination of the FCSA.
8. Refund of Undisbursed Funds.
Undisbursed funds and interest shall be returned to San Mateo and Santa Clara within
ninety (90) days of the completion of the Study or the termination of the FCSA and payment of
all financial obligations of the Authority to the Corps under the FCSA. All undisbursed funds in
the escrow account, including any interest earned thereon, shall be divided equally between San
Mateo and Santa Clara.
9. Notices.
Any notice or other communication required or permitted to be given hereunder shall not
be effective unless it is given in writing and shall be delivered (a) in person, (b) by certified mail,
postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight
courier that guarantees next day delivery and provides a receipt, and addressed to the parties at
the addresses stated below, or at such other address as either party may hereafter notify the other
parties in writing:
Authority:
San Mateo:
Santa Clara:
San Francisquito Creek Joint Powers Authority
701 Laurel Street
Menlo Park, California 94025
Attention: Cynthia D' Agosta, Executive Director
Facsimile No.: (650) 328-7935
San Mateo County Flood Control District
555 County Center, 5th Floor
Redwood City, CA 94063
Attention: Director of Public Works
Facsimile No.: (650) 361-8220
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, California 95118-3614
Attention: Stanley Williams, Chief Executive
Officer
Facsimile No.: (408) 445-1435
Service of any such notice or other communications so made shall be deemed effective
on the day of actual delivery (whether accepted or refused) as evidenced by: a) confirmed
answerback ifby facsimile (provided that ifany notice or other communication to be delivered
856737vl 4
by facsimile is unable to be transmitted because of a problem affecting the receiving party's
facsimile machine, the deadline for receiving such notice or other communication shall be
extended through the next business day), b) as shown by the addressee's return receipt ifby
certified mail, and c) as confirmed by the courier service if by courier; provided, however, that if
such actual delivery occurs after 5:00 p.m. (local time where received) or on a non-business day,
then such notice or demand so made shall be deemed effective on the first business day
immediately following the day of actual delivery. No communications via electronic mail shall
be effective to give any notice, request, direction, demand, consent, waiver, approval or other
communications hereunder.
10. Severability.
In the event any portion of this Agreement is declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall be severed from this
Agreement and the remaining parts hereof shall remain in full force and effect as fully as though
such invalid, illegal or unenforceable portion had never been part of this Agreement.
11. Governing Law and Compliance with Laws
The parties agree that California law shall govern this Agreement. In the performance of
this Agreement each party shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state, and applicable local government.
12. Venue
In the event that suit shall be brought by any party to this contract, the parties agree that
venue shall be exclusively vested in the state courts of either the County of Santa Clara, or the
County of San Mateo or where otherwise appropriate, exclusively in the United States Court,
Northern District of California, in either Redwood City or San Jose, California.
13. Assignability and Subcontracting.
Parties shall not assign this Agreement or any portion thereof to a third party or
subcontract with a third party to provide services required under this Agreement without the
prior written consent of the other parties. Notwithstanding, Authority may contract with an
accounting firm or an escrow company to fulfill its obligations under Section 2.
14. Ownership of Materials
All reports, documents, or other materials developed or discovered by any Party or any
other person engaged directly or indirectly by any Party to perform the services required
hereunder shall be and remain the mutual property of all Parties without restriction or limitation
upon their use.
15. Entire Agreement
This Agreement constitutes the entire agreement between the Authority, San Mateo and
856737vl 5
Santa Clara with respect to the subject matter hereof and supersedes all prior offers and
negotiations, oral and written. This Agreement may not be amended or modified in any respect
whatsoever except by an instrument in writing signed by authorized representatives of the
Authority, San Mateo and Santa Clara.
16. Further Actions.
The Authority, San Mateo and Santa Clara agree to execute all instruments and
documents, and to take all actions, as may be reasonably required to consummate the transaction
contemplated by this Agreement. This agreement shall be in full force and effect only upon
execution of the FCSA by the Authority.
17. Counterparts.
This Agreement may be executed in any number of counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, taken together, shall
be deemed to be one and the same instrument.
[This Remaining Space Intentionally Left Blank; Signatures Begin On The Next Page]
856737vl 6
(
(
IN WITNESS WHEREOF, the Authority, San Mateo and Santa Clara have executed this , .
Funding Agreement as of the date and year first above written.
Authority:
APPROVED AS TO FORM:
General Counsel
ATTEST:
856737vl
......---.-.,.,:0 CREEK JOINT POWERS
SAN MATEO COUNTY FLOOD
CONTROL DISTRICT
By: _/);t,---,--'~!/ ·dt----\--
Richard Gordon
President, Board of Supervisors
Date: \\ -2 -D6
SANTA CLARA VALLEY WATER
CONTROL DISTRICT
Stanle
Chief
Date: __ I/ dt-z-4tt_v_( ___ _
7