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HomeMy WebLinkAbout2003-11-10 City Council (2)City of Palo Alto City Manager’s Report TO: FROM: AHONORABLE CITY COUNCIL ~ CITY MANAGER DEPARTMENT:COMMUNITY SERVICES DATE:NOVEMBER 10, 2003 CMR: 473:03 SUBJECT:COOPERATIVE AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE PENINSULA OPEN SPACE TRUST (POST) REGARDING THE MANAGEMENT OF THE POST ARASTRADERO PROPERTY REPORT IN BRIEF In October 2002, a 13-acre privately-owned parcel of land within the Arastradero Preserve, formerly owned by Jacqueline Bressler, bounded by Arastradero Road and extending from Gate A to near Portola Pastures Drive, was auctioned by the Superior (bankruptcy) Court. The Peninsula Open Space Trust (P.O.S.T.) successfully bid on the property with the intent of protecting the land from development. POST seeks to enter into a cooperative agreement with the City of Palo Alto to manage the property which is adjacent to city park land. The property would not be open to the public at this time. Existing park rangers who patrol the adjoining 609-acre Arastradero Preserve would be responsible for patrolling the POST property. No increases in staffing or operational expenses are anticipated for the management of this property. CMR.473:0~Page 1 of 3 RECOMMENDATION Staff recommends that Council approve the attached cooperative agreement with the Peninsula Open Space Trust for the management of the 13-acre POST Arastradero property and authorize the City Manager to sign the attached ageement. BACKGROUND The Arastradero Preserve, which extends from the western boundary of Stanford University, to the eastern edge of the City-owned Foothills Park, and from the northern town limit of Los Altos Hills to John Marthens Lane, was purchased in 1979 as the result of an inverse condemnation lawsuit against the City of Palo Alto brought by Arastra LTD. One 13-acre in-holding of land along Arastradero Road not belonging to Arastra LTD remained privately held by Jacqueline Bressler and was operated as a stable and horse boarding facility. The stable, barn and out-buildings were completely destroyed by a wildfire in 1985. No structures were ever rebuilt on the property. The property is zoned Open Space -Residential. The Peninsula Open Space Trust is a non-profit land trust corporation dedicated to "preserving the beauty, character and diversity of the San Francisco Peninsula" through land conservation. Since its inception in 1977, POST has protected more than 50,000 acres of open space land on the Peninsula. Land purchased by POST is generally repurchased by the Midpeninsula Regional Open Space District, Santa Clara County Parks or local jurisdictions. The Peninsula Open Space Trust bought the property with the intent of protecting the land from development. DISCUSSION The POST Arastradero property is situated near the center of the Arastradero Preserve directly across Arastradero Road from the Preserve parking lot. The elliptical-shaped parcel is studded with oak trees and includes a section of Arastradero Creek, which flows through the Preserve into Matadero Creek. It includes riparian and oak woodland habitat. The proposed agreement with POST for the management of the property is similar to cooperative agreements between POST and other park and open space agencies. The terms of the agreement are similar to an existing agreement between the Midpeninsula Regional Open Space District and the City of Palo Alto for the management of the Foothills Open Space Preserve along Page Mill Road (adjoining Foothills Park). The management ageement provides the City of Palo Alto an opportunity to support maintenance of the land as undeveloped open space in exchange for minimal services of patrol and monitoring. RESOURCE IMPACT The cooperative a~eement would have very slight impacts on the workload of park rangers. The property is completely surrounded by the Arastradero Preserve and can be CMR:473:03 Page 2 of 3 easily monitored by rangers from adjoining trails and roads. Because the property will not be accessible by the public, maintenance of the property is minimal.No compensation is requested by the City of Palo Alto or POST for this agreement. POLICY IMPLICATIONS This cooperative agreement is consistent Council direction and with Policy N-1 of the Natural Environment element of the City’s Comprehensive Plan in that it preserves and protects open space areas in a manner that meets habitat protection goals and public safety concerns. TIMELINE Once signed by the City Manager and executed by POST, the agreement will go into effect immediately. The agreement expires when the property is resold. ENVIRONMENTAL REVIEW The cooperative management of an existing facility where no public use or access is anticipated is not considered an action subject to the California Environmental Quality Act; therefore, no environmental assessment is needed at this time. Environmental review will be conducted prior to opening the land to public access or recreation if the land is purchased by the City of Palo Alto. ATTACHMENTS Attachment A:Management Agreement PREPARED BY: ~REG t~ETTS Superintendent, Ope 8p~E--& Sciences DEPARTMENT HEAD:~PA~ T. THILTGEN CITY ~NAGER ~PROV~:~r ~ices ~LY H~SON ~ Assistant City Manager CMR:473:03 Page 3 of 3 ~AGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT ("Agreement"), dated for reference purposes as of the day of October 2003, {s between PENINSULA OPEN SPACE TRUST, a California non-profit public benefit corporation (~POST"), and the City of Palo Alto ("the City"). RECITALS: A. Whereas, POST is the owner of a parcel of real property located at 1525 Arastradero Road, in the City of Palo Alto and County of Santa Clara, California, generally knowm as the Arastradero Property, containing approximately thirteen and seven tenths (13.7) acres, and more particularly described in Exhibit "A", which is attached hereto. The Arastradero Property is referred to herein as the "Property." B. Whereas, the Property is surrounded by the City’s Arastradero Open Space Preserve, and the City desires to acquire the Property in the future from POST. C. Whereas, the City desires to enter into this Agreement for the purpose of managing the Property as a cohesive unit with the Arastradero Open Space Preserve prior to acquisition of the Property from POST. D. Whereas, POST desires that the City immediately manage and assume al! responsibility for the Property until such time as the City or other party acquires the Property. AGREEMENT: NOW, THEREFORE, POST and the City (collectively, the "Parties") hereby agree as follows: i.Use and Management of the Property. i.i Use. During the term of this Agreement and any extension thereof, the City agrees to use the Property for the purpose of open space preservation and to use the Property as part of the eco!ogical and scenic resources of the midpeninsula area. Without limiting the .generality of the foregoing, the City’s rights include but are not limited to: I.i.i The City may maintain all existing trails and improvements incidental thereto on the Property. 031027 cl 0072330 1 1.1.2 The City shall not permit the general public to use the Property at any time, with the exception of public passage across the existing De Anza trail, crossing over a small portion of the south end of the Property, which use shal! continue to be allowed in a manner consistent with its current use as an access trai! for the Arastradero Open Space Preserve. Authorized users of the Property shall include employees of the City, or its contractor, with a specific role in the management of the Property; POST employees and any person(s) accompanied by a POST employee; any person(s) who have been provided written authorization from POST to use the Property. 1.1.3 The City may install gates, appropriate signage, and fencing as necessary in the sole opinion of the City and may undertake such other steps as the City deems necessary or appropriate for the proper and safe management of the Property and to prevent unauthorized use of the Property. 1.1.4 Notwithstanding anything herein to the contrary, the City shall not, without POST’s prior written consent (which consent may be granted or withheld in POST’s absolute discretion),make or permit to be made any physical alterations or changes to the Property other than as may be reasonably necessary for the purpose of preventing unauthorized access to the Property or to comply with the terms of this Agreement. 1.2 Patrol.The City will patrol and manage the Property in a manner not inconsistent with similar City holdings and will make reasonable efforts to insure that the Property is kept in a safe and sanitary condition and that deleterious or incompatible uses of the Property are prohibited. Should any trespass or other unauthorized use or activities occur upon the Property, the City may exercise its authority to correct these matters including, where necessary, issuing citations to enforce City regulations and ordinances on the Property. 1.3 Term 1.3.1 Right to Terminate. The City shall be responsible for management of the entire Property for that period of time from the date of execution of this Agreement Until the City or other entity acquires fee title ownership of the Property from POST ("Agreement Term") or exercises ownership-like rights contrary to the City’s interest in the Property. 031027 cl 0072330 2 1.3.2 Surrender of Property. Except as otherwise provided in this Agreement, upon the expiration or earlier termination of the Agreement Term, to the maximum extent the same is reasonably within the contro! of the City, the City shall surrender the Property in substantially the same condition as it was in upon the effective date, except for any changes to such condition made or caused to be made by POST or any of POST’s agents, lenders, contractors, engineers, consultants, employees,subcontractors,licensees,invitees and representatives or due to force majeure events beyond the control of the City. 1.3.3 Removal of Improvements.Except as POST may otherwise agree or direct in writing, in POST’s sole discretion, upon expiration or termination of this Agreement, the City shall remove from the Property any improvements made or installed by or on behalf of the City, except those made prior to the agreement and those utility connections and appliances for which a public utility easement has been granted by POST prior to or during the term of the Agreement. 2.Insurance; Indemnity; Notification. 2.1 Insurance: Prior to exercising the rights granted under this Agreement, The City shall provide POST with a letter of self-insurance acceptable to POST. Additionally, prior to starting work, the City’s contractor shall provide POST certificates showing POST as an additional insured party as to all insurance coverage provided concerning the City’s activities on the Property under this Agreement. The following policies of insurance shall be obtained and maintained by the City’s contractors in the amounts specified herein: 2.1.1 Commercial general liability insurance with a minimum limit of not less than two million dollars ($2,000.000.00) per occurrence (combined single limit) for bodily injury and property damage, and not less than two million dollars ($2,000.000.00) aggregate, for each personal injury liability, products-completed operations, premises operations, blanket contractua!, and each accident; 2.1.2 Automobile liability insurance for owned and non-owned, leased and rented vehicles with a minimum limit of not less than two million dollars ($2,000.000.00) per occurrence (combined single limit) for bodily injury and property damage; 031027 cl 0072330 3 2.1.3 Workers’ Compensation in accordance with the Laws of the State of California, providing coverage for all employees of the City’s contractor; 2.1.4 Such commercial general liability insurance shall name the City, its board members, officers, employees, and agents as additional insured as respects any liability arising out of the City’s contractors performance of work under this Agreement. Coverage shall be provided in accordance with the limits specified and the conditions indicated therein. Claims-made policies are not acceptable. Such insurance shall not be canceled until POST has received at least thirty (30) days’ prior written notice of such cancellation, except for i0 day notice for non-payment of premium. The City’s contractors shall be responsible for notifying POST of such change or cancellation; 2.1.5 The City’s self-insurance and/or the City’s contractors insurance is considered primary as respects any other valid or collectible insurance that POST may possess, including any other self-insured retention’s POST may have, and any other insurance POST possesses shall be considered excess insurance only and shall not be required to contribute with this insurance; and, 2.1.6 Any insurance carrier of the City’s contractor shall be admitted and authorized to transact insurance business in the State of California and shall be rated at least A-:VII in Best’s Key Rating Guide. 2.2 Notification. POST and the City agree to notify each other in writing within ten (!0) days after POST or the City, as the case may be, receives any written complaint or claim with respect to this Agreement or the Property. The delivery of written notification shall include a copy of all pleadings if a complaint is filed, or of all correspondence and exhibits if a claim is not filed. 3. Legal Responsibility and Indemnification. During the life of this Agreement, the City shall have full legal responsibility for management, control and operation of the Property and the condition thereof and for al! activities conducted thereon, and in this respect, except as otherwise set forth, herein, the City shall hold POST harmless from and defend POST against any and all claim or liability for injury or damage to any persons or property whatsoever occurring during the life of this Agreement in, on, or about the Property arising out of any condition of the Property or of any act, neglect, fault or 031027 cl 0072330 4 omission by the City with respect to the City responsibilities as set out in this Agreement. POST likewise agrees to indemnify, defend and hold harmless the City and its agents, officers, officials, and employees against any and all claims or liability for injury or damage to persons or property arising out of or resulting from the negligent acts or fault of POST, or its agents, employees, officers, or servants, in connection with the Property. In the event of concurrent negligence, each party will bear responsibility for its acts in proportion to its fault under the doctrine of comparative negligence. 4. Real Property Taxes and Assessments. POST hereby promises to pay, prior to delinquency, a!l Impositions. For the purpose of this Agreement,~Impositions" means all taxes, assessments, rates, charges,license fees, municipal liens, levies, excises or imposts,whether general or special, or ordinary or extraordinary, of every name, nature and kind whatsoever, if any, lawfully imposed by any governmental authority or entity, that may be levied, assessed, charged or imposed or may be or become a lien or charge upon the Property or any part thereof. Impositions also include, but are not limited to, the payment of installments on any bonds or periodic charges imposed or required by any governmental authority or entity. 5. Deed of Trust Obligations. The City shall carry out all of POST’s obligations to maintain the Property and keep it in good order and repair as required by the provisions set forth in any Deed of Trust that is secured or may be secured in the future by this property. POST shall give the City a copy of any such Deed of Trust. 6. Compliance with Laws. The City shall comply with any and all federal, state, and local laws, statues, codes, ordinances, regulations, rules, orders, permits, licenses, approvals and requirements applicable to the use and occupancy of the Property by the City shall not commit and shall not knowingly permit others to commit waste upon the Pr6perty. 6.1 Maintenance and Utilities. During the Agreement Term, the City shall not use the Property for any purpose whatsoever except as expressly provided in this Agreement. The City shall be solely responsible for the cost of providing any utilities or other services necessary for the City’s Use and occupancy of the Property and the City shall promptly pay and/or discharge any liens that may be recorded against the Property or the City’s interest therein resulting from any work performed or materials ordered by or on behalf of the City. During the 031027 cl 0072330 5 Agreement Term, the City shall maintain and repair the Property in such manner as reasonably necessary to preserve its existing character; provided, however, that the City shall not be obligated to make any materia! capital improvements to the Property. 7. Assignment. The City may not assign this Agreement to any other party. In the event of an assignment, the City shall remain liable for the performance of all of the City’s obligations under this Agreement, except if and to the extent such obligations are released in writing by POST. 8. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof, the parties agree first to participate in non-binding mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through mediation, or if there is any remaining ~unresolved controversy or claim subse’quent to mediation, any remaining unresolved controversy or claim shall be settled by arbitration. The parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et seq. Hearings shall be held in San Mateo or Santa Clara County, California. If the parties are unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. 9.Miscellaneous Provisions. 9.1 Invalidity. If any term or provision of this Agreement or the application to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons whose circumstances other than those as to which it is held invalid or unenforceable, shall not be affected. 9.2 Writing.No waivers, alterations or modifications of this Agreement shall be valid unless in wr±ting duly executed by both POST and the City. 9.3 Construction. The captions appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such paragraphs of this Agreement or in any way affect this 031027 cl 0072330 Agreement. Any gender used shall be deemed to refer to any other gender more grammatically applicable to the party to whom such use of gender relates. The use of singular shal! be deemed to include the plural and, conversely, the plural sha!l be deemed to include the singular. 9.4 Notices. Any notice, demand or request required hereunder shal! be given in writing at the addresses set forth below by any of the following means: (a) personal service; (b) telephonic facsimile transmission; (c) nationally recognized overnight commercial mail service; or (d) registered or certified, first class U.S. mail, return receipt requested; or (e) electronic mail. fol!ows: If intended for the City,shall be addressed as City of Palo Alto 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303-0862 Attn: Frank Behest, City Manager frank.benest@cityofpaloalto.org TEL: (650) 329-2392 FAX: (650) 325-5025 Copy to: City of Pa!o Alto City Attorney’s Office P.O. Box 10250 Palo Alto, CA 94303-0862 Attn: Grant Kolling, Senior Asst. City Attorney grant.kolling@cityofpaloalto.org TEL: (650) 329-2171 FAX: (650) 325-2646 If intended for POST, shall be addressed to: Peninsula Open Space Trust 3000 Sand Hill Road Bldg. #4, Suite 135 Menlo Park, CA 94025 Attn: Walter Moore wmoore@openspacetrust.org TEL: (650) 854-7696 FAX: (650) 854-7703 031027 cl 0072330 7 Such addresses may be changed by notice to the other Party given in the same manner asabove provided. Any notice, demand or request sent pursuant to either clause (a) or (b), above, shall be deemed received upon such personal service or upon dispatch by electronic means (provided, however, that a dispatch by facsimile transmission that occurs on any day other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until 9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent pursuant to clause (c), above, shall be deemed received on the business day immediately following deposit with the commercial mai! service and, if sent pursuant to clause (d), above, shall be deemed received forty-eight (48) hours following deposit in the U.S. mail. 9.5 Authority to Sign. The parties executing this Agreement on behalf of POST and the City represent that they have authority and power to sign this Agreement on behalf of POST a~d the City, respectively. 9.6 Indemnification. The City and POST each agree to indemnify and hold harmless the other against and from any and all causes, claims, actions or proceedings arising from any breach or default in the performance of any obligation on the other’s part to be performed pursuant to the terms of this Agreement, and from and against all costs, attorneys’ fees, expenses and liabilities incurred in or about such claim or any action or proceeding brought thereon. If any action or proceeding is brought against POST or the City by reason of any such claim, the City or POST, upon notice to the other, shall defend the same at their expense by counsel reasonably satisfactory to the defended entity. 9.7 Entry by POST. POST reserves and shall at any and all times have the right to enter the Property for any purpose. 9.8 Conflict of Laws.This Agreement shall be governed by and construed pursuant to the laws of the State of California. 9.9 Attorneys’ Fees. If either party should bring suit or seek arbitration under this Agreement, or because of the breach of any provision of this Agreement, then all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party therein shall be paid by the other party, which obligation on the part of the other party shall be deemed to have accrued on the date of the commencement of such action or 031027 cl 0072330 8 arbitration and shall be enforceable whether or not the action is prosecuted to judgment. 9.10 Waiver. The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. 9.11 Time. Time is of the essence with respect to the performance of every provision of this Agreement in which time or performance is a factor. 9.12 Prior Agreements. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. 9.13 Amendments. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the Parties or their respective successors-in-interest. 9.14 Applicable Law; Severability. As used herein the term ~all Applicable Laws" shall mean and refer to all state, federal and local ordinances, statutes and laws including but not limited to all such statutes, laws and ordinances referred to herein. Any provision of this Agreement that shall prove to be invalid, void or illegal in no way affects, impairs or invalidates any other provisions hereof, and such other provisions shall remain in full force and effect. 9.15 Signs.The City shall be responsible for notifying POST of the loss or damage of all POST signs on the Property. The City shall not place signs on or about the Property other than those provided by or agreed upon by POST or as permitted in Section 1.1.2 above. i0.Hazardous Substances. i0.i Use~ The City shall not store, use, generate, transport, introduce, or dispose of any Hazardous Substances in or on the Property, or knowingly allow or permit any other person or entity to do so, except that the City may store, use, generate, transport, introduce, or dispose of such quantities of Hazardous Substances normally used for the purpose of the City’s routine and customary pest control, and vegetation management and control operations. The City shall submit to POST copies of all permits, reports, or other documentation pertaining to 031027 cl 0072330 9 Hazardous Substances, if any, submitted by the City to any governmental agency at the same time such documents are submitted to the governmenta! agency. 10.2 Definition."Hazardous Substances" means any hazardous substance, pollutant, or contaminant as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended and reauthorized, hydrocarbon and petroleum products and byproducts; pesticides regulated under the Federa! Insecticide, Fungicide and Rodenticide Act, as amended; asbestos, polychlorinated bipheny! and other substances regulated under the Toxic Substances Control Act, as amended; chemicals and compounds subject to the Occupational Safety and Health Standards, Hazard Communication, as amended; radioactive materials or radioactive wastes; ~toxic wastes under the Resource Conservation and Recovery Act, as amended; hazardous substances as defined in Chapter 6.5, Division 20 of the California Health and Safety Code, and any other hazardous substance, pollutant or contaminant defined in regulations promulgated pursuant to statutes described above. Hazardous Substances shall not include any substance that occurs naturally in the soil or the Property or in the groundwater thereunder. 10.3 The City’s Indemnity. The City shall indemnify, defend, and hold POST harmless from any expenses, fees, claims, liabilities or costs arising from, and shall perform (or cause others to perform), all investigation, remediation and monitoring required by any Applicable Laws with respect to any Hazardous Substances, to the extent required by any Applicable Laws with respect to Hazardous Substances. 10.4 POST’s Obligations. POST shall be responsible for al! investigation, remediati0n and monitoring for any Hazardous Substances introduced or permitted to be introduced in, on, or under the Property by POST or any of its employees, agents, contractors, invitees, or licensees (~POST Hazardous Substances") to the extent required by any Applicable Laws with respect to Hazardous Substances. 10.5 POST’s Indemnity. POST shall indemnify, defend, and hold the City harmless from any expenses, fees, claims, liabilities or costs, and shall perform (or cause others to perform), all investigation, remediation and monitoring required by any Applicable Laws with respect to Hazardous Substances arising from any POST Hazardous Substances. 031027 cl 0072330 1 0 POST AND the CITY, by their execution below, indicate their consent to the terms of this Agreement. THE CITY:POST: CITY OF PALO ALTO, By: Frank Behest Its: City Manager Date: PENINSULA OPEN SPACE TRUST, a California non-profit public benefit corporation By: Audrey Rust Its:President ATTEST: Date: By : Date: 03 I027 c| 0072330 EXHE31T A Real property in the City of Palo Alto, County of Santa Clara, State of California, described as follows: Beginning at a point which lies North 66° 30’ 46" West, a distance of 642.43 feet from 3 x 4 post marked "M-H-03", said point being the Southwesterly comer of "Tract 3306, Page Mill Estates", recorded in Book 153 of Maps, at page 40-42, Records of said County; thence along the following courses and distances; South 23° 44’ 16" West, 290 feet North 68° 32"00" West 241.00 feet, South 66° 43’ 42" West 165.00 feet; North 87° 36’ 45" West 554.84 feet, North 49° 17’ 51" West 146.04 feet, North 75° 13" 35" West 395.00 feet and North 57° 16’ 53" West 198.00 feet to a point on a curve; thence along said curve to the right of radius 550 feet, Northeasterly and Easterly, through a central angle of 32° 46’ 04", a distance of 314.55 feet to a point of compound curvature, said point being the Westerly point of curvature of a curve, of radius of 4025 feet, as shown in the Map entitled, *~Record of Survey of a Portion of Rancho El Corte De Madera", recorded in Book 118 of Maps, at page 12, Records of said County; thence along the Southerly line of the 77.219 acre parcel described in said Records of Survey, and along a curve to the right of radius 4025 feet, through a central angle of a 2° 04’ 16" a distance of 145.50 feet, thence North 80° 48’ 50" East, a distance of 71.70 feet; thence along a tangential curve to the right of a radius of 525 feet, through a central angle of 17° 42’ 17" a distance of 162.23 feet, thence South 81° 28’ 53" East, a distance of 587.45 feet thence along a tangential curve to the right of radius of 525 feet, through a central angle of 12° 49’ 05" a distance of 117.45 feet; thence South 68° 39’ 48" East a distance of 390.00 feet to the point of beginning.