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Home My WebLink About2003-09-08 City Council (4)City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS 4 DATE: SUBJECT: SEPTEMBER 8, 2003 CMR:397:03 APPROVAL OF INDEMNITY AGREEMENT WITH THE SANTA CLARA VALLEY WATER DISTRICT FOR THE BAY-LANDS BICYCLE/PEDESTRIAN TRAIL ALONG SAN FRANCISQUITO CREEK RECOMMENDATION Staff recommends that Council approve the attached indemnity agreement with the Santa Clara Valley Water District for the Baylands Bicycle/Pedestrian Trail along San Francisquito Creek (Attachment A). BACKGROUND The City owns the land underlying the reach of San Francisquito Creek between the Baylands Athletic Center and San Francisco Bay. The City granted easements to the Santa Clara Valley Water District (District) for construction and maintenance of the flood control levees along the creek. In 1984, the City constructed a paved bicycle/pedestrian path atop the southern levee pursuant to permits issued by the District. The path runs between the Baylands Athletic Center and the Friendship Bridge into East Palo Alto. In 2002, the San Francisquito Creek Joint Powers Authority (JPA) and its member agencies, including the City, implemented a project to restore the San Francisquito Creek levees to their original as-built elevations (CMR:251:02). In order to restore the southern levee, the City’s bicycle/pedestrian path had to be removed and replaced. The levee project, including the bicycle/pedestrian path replacement, was completed and the path reopened to traffic in early 2003. DISCUSSION The levee restoration project was a joint effort between all of the JPA member agencies. The roles, responsibilities, and cost obligations for the project were stipulated in an agreement signed by all of the agencies. The agreement stipulated that the District was responsible for preparation of the project design documents, bidding, and construction management for the work along the southern levee. The City was responsible for the cost of replacing the bicycle/pedestrian path and had final discretion over the path’s design. CMR:397:03 Page 1 of 3 The bid documents prepared by the District included a bollard and cable fence along both sides of the path. Public Works and Transportation staff reviewed the District’s design and, after consideration of public safety and aesthetics criteria, determined that the bollard and cable fencing was not needed along the path. Staff directed the District to delete the fencing and to include a two-foot-wide gravel shoulder and reflective white edge striping along both sides of the path as safety features. This design complies with Caltrans bicycle path standards and is consistent with other patl{s in the South Bay. The District eliminated the bollard and cable fencing from the project, but requested that the City agree to indemnify and hold the District harmless from liability for claims for injury and damage arising from the decision not to install the fencing along the path, as called for in the District’s project plans and specifications. Legal staff from the City and the District have negotiated the attached indemnity agreement to address the District’s request. The agreement provides that the City will defend and indemnify the District from claims arising from the decision not to install fences along the path and that the City releases the District from liability to the City for such claims. The path has safety features that are consistent with Caltrans standards and that staff believes will effectively protect public safety. Therefore, staff recommends that Council approve the attached agreement. POLICY IMPLICATIONS Approval of the indemnity agreement is consistent with existing City policies. ENVIRONMENTAL REVIEW Approval of the indemnity agreement is exempt from the provisions of the California Environmental Quality Act (CEQA). ATTACHMENTS Attachment A:Indemnity Agreement PREPARED BY: DEPARTMENT HEAD: CITY MANAGER APPROVAL: ~OE TERESI Senior Engineer GLENN S. ROBERTS Director of Public Works Assistant City Manager CMR:397:03 Page 2 of 3 CC:Roy Weese, SCVWD Emily Cote, SCVWD Cynthia D’Agosta, San Francisquito Creek JPA CMR:397:03 Page 3 of 3 ATTACHMENT A INDEMNITY AGREEMENT BETWEEN THE SANTA CLARA VALLEY WATER DISTRICT AND THE CITY OF PALO ALTO THIS AGREEMENT ENTERED INTO ON , is made by and between the SANTA CLARA VALLEY WATER DISTRICT, a public entity (hereinafter referred to as "DISTRICT") and THE CITY OF PALO ALTO, a Charter City (hereinafter referred to as RECITALS CITY owns land along San F~-ancisquito Creek. The CITY.granted flood control easements to the DISTRICT for construction and maintenance of flood control levees along San Francisquito Creek as shown in the attached map, marked "Exhibit A" and incorporated herein by this reference. The CITY constructed a paved bicycle/pedestrian path atop the levee for public use pursuant to permits issued by the DISTRICT. No fencing was installed along the original levee path. DISTRICT and CITY along with several other parties entered into an agreement for the reconstruction and maintenance of the San Francisquito Creek levees ("Project"), dated July 23, 2002 (the "Reconstruction Agreement"). The Reconstruction Agreement provides that the levee path is to be replaced in a manner approved by the CITY and at CITY’S cost. DISTRICT, as required by the Reconstruction Agreement, produced design plans for the Project which included raising the levees along San Francisquito Creek approximately two feet and repaying the path. The DISTRICT is responsible for constructing the Project according to the engineering plans and specifications. The DISTRICT’s design calls for installing bollard and cable fencing along both sides of the levee path. CITY reviewed DISTRICT’S design plans and after due consideration of the public safety and general welfare determined that fencing along the levee path was not necessary. Eo DISTRICT has requested and CITY has agreed to indemnify and hold DISTRICT harmless from liability for claims for injury and damage to the extent such claims arise from the decision not to install the fencing along the levee path as called for in the DISTRICT plans and specifications. NOW, THEREFORE, in consideration of the mutual covenants contained herein, which both parties agree constitute good and valuable consideration, the parties agree as follows: CITY has requested that DISTRICT include a two-foot wide shoulder and white edge striping along both sides of the levee path. DISTRICT has included these items in the design plans for the Project. DISTRICT agrees to defer to CITY, and CITY agrees to exercise its discretion to determine additional protective measures or devices, if any, that shall be installed on the levee path in lieu of fencing. o CITY waives and releases DISTRICT, from any and all liability to CITY arising from all claims, suits or actions of every name, kind and description brought for or on account of 1 of 2 o o injuries to or death of any person or damage to property or any other loss, damage or expense arising from the decision not to install fencing along the sides of the San Francisquito Creek levees identified in Exhibit A. It is understood and agreed that, pursuant to Government Code Section 895.4 CITY shall defend, indemnify and save harmless DISTRICT, and all DISTRICT officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injuries to or death of any person or damage to property or any other loss, damage or expense arising from the decision not to install fencing along the levee path. This indemnity shall not apply to actions for which DISTRICT is solely negligent or which involve DISTRICT willful misconduct. Nothing in this Agreement is intended to create duties or obligations to or rights in third parties who are not parties to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the maintenance of property different from the standard of care imposed by law. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective the day and year first written above. CITY OF PALO ALTO Date: By: Mayor APPROVED AS TO FORM:ATTEST: By: By: City Attorney City Clerk SANTA CLARA VALLEY WATER DISTRICT Date: By: Chief Executive Officer APPROVED AS TO FORM: By: Assistant General Counsel 2 of 2 )OTBRIDGE-7 ! SAN’ FRANCISQUITO CREEK-~ -. PA~LO ALTO ¯ GOLF COURSE OF LEVEE- WITH FENCE DELETED FROI~ P~NS, PALO ALTO AIRPORT DA~ " 02_216_03 DESIGN DRAWN PHUONG VU CHECKED ROY WEESE ¯ SAN FRANCISQUIT~OI SCALE ¯ OF1