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HomeMy WebLinkAboutStaff Report 322-05control methods and to monitor the spread of both weeds and nurtured native plant stands. In 2002, the originalS-year term .of the Stewardship Agreement was extended another five years. In 2004, Acterra lost its native plant nursery facility (outside the City of Palo Alto) to commercial development and was in urgent need of a new location. In August 2004" Acterra received Architectural Review Board (ARB) approval for a small nursery maintenance structure on a portion of the 7.7 acre parcel. Under the direction of City staff, Acterra has been operating the nursery on a month-to-month agreement pending development and approval of a long-term agreement. DISCUSSION The purpose of the attached license agreement (Agreement) is to have the City and Acterra cooperate in the preservation, protection and enhancement of the 7.7 acre parcel, the Preserve, local creeks and other open space areas. Under the direction of the City staff, Acterra will operate a non-profit nursery facility on a 0.53 portion of the parcel to grow native plants and trees to be placed in parks and to propagate native plants for re-vegetation of the 7.7 acre parcel, the Preserve and other open space areas. Acterra will be responsible for providing all labor, materials and supplies necessary to germinate and maintain plants; and for furnishing all water, electricity and other utilities needed for operation of the nursery. City staff and Acterra meet annually to review Acterra' s annual work plan of activities to be carried out on the 0.53-acrea portion of the parcel including the restoration of that portion of the parcel and other primary restoration sites. They will also jointly develop performance objectives and standards for Acterra's activities, including but not limited to the number and location of plants to be planted each year. On or before August 1 of each year of the agreement, Acterra and City staffwill conduct a performance review to evaluate the activities that have been carried out.on the 0.53 acre portion of the parcel and other restoration sites f.or the past fiscal year, and to determine conformance to the , agreed-upon performance objectives and standards. The performance review shall serve as a basis for consideration of any extension of the term of the Agreement.' Under the terms ofthe Agreement, the City shall retain the right of overall management of the 7.7- acre parcel; review of all activities proposed for the parcel; and, responsibility for fire management and maintenance .of the creek and the ingress and egress road. Either party may terminate the Agreement, without cause, upon 90 days written notice to the .other party. The City may revoke the' Agreement for cause immediately upon pr.oviding written notice to Acterra. RESOURCE IMPACT Acterra will be responsible f.or all costs associated with the installation and operation of the nursery and habitat restoration and maintenance. Minimal Open Space Division staff time will be required to supervise this project. POLICY IMPLICATIONS: In accordance with Policy and Procedures 1-11, Leased Use of City Land/Facilities, the public has been notified of the Council's consideration of the proposed agreement. The proposed agreement represents an extension t.o the City's previous use of volunteers and is in accordance with Policy and Procedures 1-15, PubliclPrivate Partnerships, which encourages the cooper~tion between the City and the private sector .or n.onprofit organizations in providing services, facilities or other capital CMR :322:05 Page 2 of3 , , " " . AGREEMENT Now, therefore, in consideration of these covenants, terms and conditions, the parties hereto mutually agree as follows: 1. PURPOSE The purpose of this Agreement is to have both parties cooperate in the preservation, protection and enhancement of the Property, Foothills Park, the Pearson-Arastradero Preserve and local creeks by providing ACTERRA access to and use of a .53 acre of the Parcel (the "Property") as provided in this Agreement. The Property is depicted as "Nursery Operation" on the map set forth in Exhibit B, attached to and made a part of this Agreement 2. GRANT OF LICENSE CITY grants ACTERRA a revocable license to enter upon and use the Property for the specific and limited uses set forth in this Agreement. Access to the Property is granted to ACTERRA, its employees, agents and contractors for the sole purposes described below. A. Installation and maintenance of improvements, as approved by CITY, for a nursery facility on the Property in accordance with the requirements set forth in Section 3 below. B. Operation of the nursery facility in accordance with the annual work plan and other requirements described in Section 3 below. C. Habi tat restoration, including removal of non-native plants and replacement with native plants, erosion control and maintenance of the Property in accordance wi th the annual work plan and, other requirements described in Section 3 below. D. Necessary activities related to the activities described in subsection A, Band C of this section 2. E. Prohibitions and Limitations. Except as may be required to accomplish the permitted use(s) described above, the use(s) and activities authorized under this Agreement shall not: 050627 sm 0100364 1. 2. 3 . significantly disturb the surface of the Property; be inconsistent with those permitted on the Property; interfere in any way with the City's ownership rights and privileges on the Property; and/or 2 this Agreement. ACTERRA's failure to substantially conform to the agreed upon performance objectives and standards shall be grounds for the City to terminate this Agreement on a "for cause" basis pursuant to Section 9 below. D. Improvements to City Standards. Any work performed for the Property and improvements placed or constructed thereon shall be done to CITY standards and approved by the City Manager, or designee, and shall, upon acceptance, become the property of the CITY. E. Maintenance of Property. ACTERRA shall maintain the nursery and associated structures on the Property in a neat and safe condition. No materials, equipment, supplies or structures that are not directly related to the propagation of native plants or the habitat restoration activities on the Property shall be stored or maintained on the Property. ACTERRA shall promptly remove any and all waste materials or discarded or unneeded supplies from the Property. F. Restoration of Property Upon Termination. Immediately upon completion of the use of the Property permitted by this Agreement, or upon the expiration of the term of this Agreement, whichever occurs first, ACTERRA shall return the Property to CITY as nearly as practicable to the same condition it was in'prior to ACTERRA's use of the Property, as determined by City representatives, excepting any improvements accepted by CITY and the habitat restoration work. At that time, ACTERRA shall remove from the Property any and all improvements, equipment or materials used in conducting the permitted activities. The forgoing shall include compliance with the following condition contained in Final Conditions of Approval issued by the CITY'S Planning Division for the construction of a small nursery maintenance structure to be used solely for propagating and storing native plants and maintaining records related to those plants (File No. 04-D-16, 04-ARB-46), approved by the Architectural Review Board August 10, 2004: "should the nursery structure cease to be needed for plant restoration purposes, the structure and the foundations shall be removed within six weeks." 'ACTERRA expressly acknowledges its financial obligation to fulfill this restoration condition promptly. G. Compliance with Laws. ACTERRA shall comply wi th all applicable laws, ordinances, codes and regulations of the federal, state and local governments with respect to its use of the Property. 050627 sm 0100364 4 date that the additional 5-yearterm would commence. 9. TERMINATION Either party may terminate this Agreement, without cause, upon (90) days written notice to the other party. CITY may revoke the license or otherwise terminate this Agreement for cause immediately upon providing written notice of the revocation or termination to ACTERRA. 10. SCHEDULE OF HOURS, PROCEDURES AND DECORUM ACTERRA shall at all times maintain a written schedule setting forth the operating hours and operating procedures for the activities to be performed on or from the Property (the "Schedule") . Upon written request, ACTERRA shall furnish the City Manager, or designee, with a copy of the Schedule. Should the City Manager, or designee, determine that any part of the Schedule is not justified with regard to fairly satisfying the needs of the public, ACTERRA, upon written notice from the City Manager, or designee, shall modify the Schedule to the satisfaction of the Ci ty Manager or designee. Prior to issuing such a notice, the City Manager, or designee, shall personally review and confer with the designated representative of ACTERRA. ' ACTERRA and/or its representative will be perceived by the public as acting for CITY in maintaining and using the Property, therefore, ACTERRA will be expected to maintain a level of decorum among its employees and representatives working on the Property. ACTERRA shall at all times retain active, qualified, competent, and experienced personnel to supervise ACTERRA'S operations on the Property. ACTERRA shall require its representatives to be courteous, and neat in appearance at all times. ACTERRA shall not allow any person (s) in or ,about the Property who shall use offensive language and/or act in a boisterous or otherwise improper manner. ACTERRA shall maintain a close supervision over volunteers, and insure the maintenance of a high standard of service to the public. 11. UTILITIES ACTERRA shall be solely responsible for and shall pay, prior to delinquency, all charges for utilities supplied to the Property during the term of this Agreement. ACTERRA shall be solely responsible for the installation of separate meters for all utilities should they be necessary. 050627 sm 0100364 6 Insurance shall be in full force and effect commencing on the first day of the term of this Agreement. Each insurance policy required by this Agreement shall: 1. Be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. 2. Include a waiver of all rights of subrogation against the CITY and the members of the City Council and elective or appointive officers or employees, and each party shall indemnify the other against any loss or expense including reasonable attorney fees, resulting from the failure to obtain such waiver. 3. Provide that the CITY, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of· ACTERRAi products and completed operations of ACTERRAi premises owned, occupied or used by ACTERRAi or automobiles owned, leased, hired or borrowed by ACTERRA. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents or volunteers. 4. Provide that for any claims related to this Agreement, ACTERRA's (or if applicable its contractors and agents) insurance coverage sh,all be primary insurance as respects the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents or volunteers shall be excess of ACTERRA' s, or its contractors and agents, insurance and shall not contribute with it. 5. Provide that any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the CITY, its officers, officials, employees, agents or volunteers. 6. Provide that the insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 050627 sm 0100364 8 · . 13. NO RIGHTS OTHER THAN AS SPECIFICALLY GRANTED The parties agree that this Agreement confers only the right to access and use the Property as specifically described in section 2 of this Agreement and no other rights in the Property or otherwise are granted to ACTERRA or its members or volunteers. 14. CITY'S RIGHTS CITY shall have the right to enter the Property at any time. CITY reserves the right to use the Property in any manner, provided such use does not unreasonably interfere with the rights granted to ACTERRA in this Agreement. CITY may provide its own educational programs, conduct research, do habitat restoration, remove and control non-native, invasive weeds, litter removal, erosion controls, or contract with others to perform these duties on the Property. 15. ASSIGNMENT -EXCLUSIVE TO LICENSEE The access rights granted in this Agreement are personal and limited solely to ACTERRA and its employees, agents and contractors for the purposes set forth in this Agreement. ACTERRA agrees not to commit waste or to construct, allow or maintain any use, construction or operate any equipment which constitutes a nuisance on the Property or which may in any way interfere with the use, enjoyment or possession of the Property by City, or the City's lessee(s) or licensee(s) on the Property, if any. The Property shall not be used by ACTERRA, for any purpose other than as stated in this Agreement. Neither this Agreement, nor the rights granted to ACTERRA within it, shall be assignable or otherwise transferable without the prior written consent of City. Unless specifically stated to the contrary in any written consent to an assignment, no assignment or other transfer will release or discharge ACTERRA from any duty, responsibility or liability under this Agreement. 16. DISTINCTION FROM REGULATORY APPROVAL ACTERRA agrees and acknowledges that this Agreement does not and shall not be construed to indicate or imply that the CITY, acting as a permitting authority, has hereby granted ACTERRA any approval or permi ts required by law for the use of the Property as contemplated in this Agreement. 17. NOTICES Unless otherwise required by the terms of this Agreement, whenever notice is required by this Agreement,· it shall be mailed, fist class, postage prepaid, to the following: II 050627 sm 0100364 10 9. INSPECTION CITY's employees and agents shall have the right at all reasonable times to inspect the Property to determine if the provisions of this Agreement are being complied with. 10. HOLD HARMLESS ACTERRA hereby waives all claims, liability and recourse against CITY including the right of contribution for loss or damage of or to persons or property arising from, growing out of or in any way connected with or related to this Agreement. CITY and its elected and appointed officials, officers, agents, employees and volunteers (individually and collectively "Indemnitees") shall have no liability to ACTERRA or to any other person or entity for, and to the fullest extent permitted by law, ACTERRA shall indemnify, hold harmless and defend the Indemnitees against any and all claims, liability, demands, damages, losses, attorneys' fees, defense costs including expert witness fees, court costs, and any other costs or expenses, arising out of or in any manner related to the operation or maintenance of the Property described herein or ACTERRA' S performance or non performance of the terms of this Agreement, regardless of the passive or active negligence of the Indemnitees. In the event CITY or another Indemnitee are named as co-defendant, ACTERRA shall notify CITY of such fact and shall represent the Indemnitees in such legal action unless CITY undertakes to represent the Indemnitees as co-defendants in such legal action, i~ which event ACTERRA shall pay to CITY its litigation costs, expenses and attorneys' fees. CITY shall be entitled to recover its attorney fees and costs in any action against ACTERRA t,o enforce the terms of this section 10. 11. TAXES AND ASSESSMENTS This Agreement may create a possessory interest that is subject to the payment of taxes levied on such interest. It is understood and agreed'that all taxes and assessments (including but not limited to the possessory interest tax) which become due and payable upon the Property or upon fixtures, equipment, or other property installed or constructed thereon, shall be the full responsibility of ACTERRA and ACTERRA shall pay the taxes and assessments prior to delinquency. 12. DISPOSITION OF ABANDONED PERSONAL PROPERTY If ACTERRA abandons the Property or is dispossessed thereof by process of law or otherwise, title to any personal property belonging to ACTERRA and left on the PREMISES forty-five (45) days after such abandonment or dispossession shall be deemed to have been transferred to CITY. CITY shall have the right to remove and to dispose of such property without liability therefor to ACTERRA 050627 8m 0100364 14 , ,