T-30762-16/1988127_3
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
REVISED – Administrative changes made since original posting on 1/6/2023.
AGREEMENT FOR CONSERVATION EASEMENT-IN-LIEU OF FEES
This AGREEMENT FOR CONSERVATI ON EASEMENT-IN-LIEU OF FEES AGREEMENT (the “Agreement”), for reference dated ______________________, is by and between the City of San José, a California municipal corporation, (“City”), as the administering agency for the San José/Santa Clara Water Regional Wastewater Facility, and the Santa Clara Valley Habitat Agency, a California joint powers authority (“Agency”). The City and Agency may each be referred to as a “Party” and collectively as the “Parties”. Rights and obligations of the Parties set forth in this Agreement shall be effective as of the last date of execution by the Parties set forth in the signature blocks below (the “Effective Date”).
RECITALS
A. City owes the following fees to the Agency (“Agency Fees”):
1. Land Cover Fee $1,052,244.53
2. Burrowing Owl Fee $2,452,919.71
Total $3,505,164,24
City is the owner of record, and joint owner as a tenant in common with the City of Santa Clara of a fee simple interest in and to that certain real property (APN Nos. 015-44-012 and 015-30-098) in Santa Clara County, California that is comprised of approximately three hundred and fifty nine (359) acres and located generally at Los Esteros Road, western area of San José-Santa Clara Regional Wastewater Facility (RWF) buffer lands. City desires to grant a conservation easement to Agency of a portion of that certain real property consisting of two- hundred one and sixty-six hundredths (201.66) acres, more particularly described in Exhibit A attached and incorporated and for all purposes hereinafter referred to as the “Property” (the “Property”).
City desires to grant conservation easement in lieu of paying the Agency Fees required to obtain the permits necessary to construct the following five Capital Improvement Program Projects: Fiber Optic Connection, Iron Salt Feed Station, Construction-Enabling Improvements, Digested Sludge Dewatering Facility, and Headworks Improvements & New Headworks more particularly described in Exhibit B attached and incorporated (the “Projects”), and Agency has approved the proposed dedication, consistent with the Policy for Dedication of Publicly Owned Real Property In Lieu of Payment of Fees adopted by the Habitat Agency Implementation Board by Resolution No. I-2015-007.
The fees to the Agency are as set forth in Section A of the Recital for the 53.051 acres impacted by the Projects. The Agency requires 187.09 acres based on the following requirements:
2 T-30762-16/1988127_3
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
REVISED – Administrative changes made since original posting on 1/6/2023. The Agency Fees for each acre impacted is $70,533, and 93.54 acres are required to meet the equivalent value of the total Agency Fees based on the appraised value. In addition, the Agency requires 93.54 acres to create buffer and recovery zones.
B. Subject to the terms and conditions contained in this Agreement, City desires to dedicate the conservation easement and Agency desires to accept the conservation easement from City in-lieu of payment as provided below.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Agency and City hereby agree as follows:
1. Dedication of Conservation Easement.
1.1 Agreement to Dedicate Conservation Easement. Subject to the terms and conditions set forth herein, City agrees to dedicate to Agency, and Agency agrees to accept from City, the Conservation Easement.
1.2 Conservation Easement Value. The value of the Conservation Easement for the purposes of this dedication is two million eight hundred eighty four million six hundred seventy-seven thousand Dollars ($2,880,0004,677,000) (the “Property Value”). The Property Value satisfies all the payment of fees owed for the Projects.
1.3 Recordation. Agency agrees to record the Conservation Easement Agreement and Agency’s certificate of acceptance in the Official Records of Santa Clara County, and deliver conformed copies of the recorded Conservation Easement Agreement and certificate of acceptance to City.
2. General Provisions.
2.1 Counterparts. This Agreement shall be executed in any number of counterparts and each counterpart shall be deemed to be an original document. Delivery of the executed Agreement may be accomplished by facsimile transmission or electronic mail in PDF format, and if so, the facsimile or an PDF copy shall be deemed an executed original counterpart of the Agreement. All executed counterparts together shall constitute one and the same document, and any signature pages, including facsimile copies thereof, may be assembled to form a single original document.
2.2 Entire Agreement; Partial Invalidity. This Agreement, together with all exhibits and documents referred to, if any, constitute the entire agreement among the Parties with respect to the subject matter, and supersede all prior
3 T-30762-16/1988127_3
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
REVISED – Administrative changes made since original posting on 1/6/2023. understandings or agreements. This Agreement may be modified only by a writing signed by both Parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether attached. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the Parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision.
2.3 Choice of Law and Venue. This Agreement and each related document are to be governed by, and construed in accordance with, the laws of the State of California. Venue for trial or hearing of any dispute between the Parties shall be the Superior Court of California in Santa Clara County or the San Jose Division of Federal Court for the Northern District of California.
2.4 Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement. Unless otherwise expressly provided, all covenants and obligations of the Parties set forth in this Agreement shall survive the Recordation.
2.5 Legal Advice. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question.
2.6 Assignment. Agency shall not assign this Agreement or its rights and obligations hereunder without City’s written approval, which City shall not unreasonably withhold. No assignment shall release the assigning party from its obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the Parties to this Agreement.
2.7 Notices. All notices and demands which either party is required or desires to give to the other shall be given in writing by certified mail, return receipt requested with appropriate postage paid, by personal delivery, by facsimile or by private overnight courier service to the address or facsimile number set forth below for the respective party, provided that if any party gives notice of a change of name or address or number, notices to that party shall thereafter be given as demanded in that notice. All notices and demands so given shall be effective only upon receipt by the party to whom notice, or demand is being given.
4 T-30762-16/1988127_3
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
REVISED – Administrative changes made since original posting on 1/6/2023.
To CityLandowner: City of San José
Environmental Services Department
200 East Santa Clara Street, 10 th Floor
San José, California 95113
Attention: Director
Telephone: (408) 535-8550
Facsimile: (408) 292-6213
City of Santa Clara
Department of Water and Sewer Utilities
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Department Director
Telephone: (408) 615-2000
With a copy to:
Telephone:
Facsimile:
To Agency: Santa Clara Valley Habitat Agency
Attention: Executive Director
535 Alkire Avenue, Suite 100
Morgan Hill, California 95037
Telephone: (408) 779-7261
Facsimile: (408) 825-4866
With a copy to:
Telephone:
Facsimile:
2.8 Corporate Approval. This Agreement, including all exhibits and addendum which require signature concurrently with or as a condition to the effectiveness of this Agreement, and any amendments to the Agreement, except for those which merely require an extension of time, shall not be a valid or enforceable obligation of City unless signed or acknowledged in writing by authorized, officers of Agency, not later than thirty (30) business days after this Agreement and any subsequent amendment has been signed on behalf of Agency and City. Failure of any subsequent amendment for lack of approval pursuant to this provision, however, shall not invalidate or otherwise affect this Agreement in any way.
5 T-30762-16/1988127_3
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
REVISED – Administrative changes made since original posting on 1/6/2023.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written.
AGENCY:
SANTA CLARA VALLEY
HABITAT AGENCY
B y :
N a m e :
Title:
D a t e :
LANDOWNER:
CITY OF SAN JOSÉ
By:
N a m e :
Title:
D a t e :
CITY OF SANTA CLARA
By:
N a m e :
Title:
D a t e :
A-1
A-2
A-3
A-4
A-5
A-6
Reservation of Storm Drain Easement:
Landowner shall reserve from the Easement Area a storm water drain easement, as generally described below, for the use and benefit of the RWF and other properties in the immediate vicinity. Note that this storm water drain easement is specifically excluded from the Easement Area and the no credits shall be given for the acreage reserved from the Easement Area. The Parties agree, without future consideration, to execute and deliver other such documents and take such other action as may be reasonably requested by the other Party to consummate the recoding of the storm drain easement as described herein. For the avoidance of doubt, no obligations contained herein commit any Party to commit any actions related to their regulatory functions.
The location of the reserved storm drainage easement is depicted in the map attached below. The total area of the reserved storm drain easement shall be no greater than 33,900 square feet, the width of the easement shall be no greater than thirty-five (35) feet, and the storm drain itself shall approximately thirty-six (36) inches and shall be buried underground at a depth of approximately ten (10) feet. However, the exact size and corresponding legal description of the storm drainage easement itself is not presently fixed and the Parties agree to enter into an easement agreement for the purposes of a storm drain in conformance with the location and maximum area described in this Exhibit.
B-1
Exhibit B
Description of the Projects
1. Construction‐Enabling Improvements
Addendum to the San José/Santa Clara Water Pollution Control Plant Master Plan Final Environmental Impact Report (SCH#2011052074), File Number PP15‐120.
Project Name: Construction‐Enabling Improvements.
Project Description: This Project will provide the necessary infrastructure to support construction activity for the Plant Master Plan Capital Improvement Program across the San José/Santa Clara Regional Wastewater Facility (Facility) site. It would include Facility access improvements, security, worker parking, contractor trailer, and laydown areas, and future construction management space requirements.
2. Iron Salt Feed Station
Mitigated Negative Declaration for San José/Santa Clara Regional Wastewater Facility Iron Salt Feed Station
Project Initial Study, File Number PP14‐098.
Project Name: Iron Salt Feed Station Project
Project Description: Public project for the construction of two new chemical facilities, the Ferric Chloride Feed Station and Polymer Feed station, at the San José/Santa Clara Regional Wastewater Facility.
3. Fiber Optic Connection
Addendum to the San José/Santa Clara Water Pollution Control Plant Master Plan Final Environmental Impact Report (SCH#2011052074), File Number PP15‐040.
Project Name: Fiber Optic Connection
Project Description: Extension of an existing 2,300 feet fiber optic conduit by 460 feet for an approximate total of 2,760 feet. The project extends southward from a lot immediately north of the Silicon Valley Water Purification Center to Thomas Foon Chew Way along the east side of Zanker Road and Westward from Thomas Foon Chew Way to the west side of Zanker Road.
4. Digested Sludge Dewatering Facility
Addendum to the San José/Santa Clara Water Pollution Control Plant Master Plan Final Environmental
Impact Report (SCH#2011052074), File Number PP18‐018.
Project name: Digested Sludge Dewatering Facility
B-2
Project Description: The project will construct a new facility to mechanically dewater 100% of Regional Wastewater Facility digested sludge. The facility includes a new building located across Zanker Road, and will have decanter centrifuges, feed tanks, pumps, chemical dosing. Other support elements include new sludge storage tanks, sludge pump station, and sludge and centrate return piping.
5. Headworks Improvements and New Headworks
Addendum to the San José/Santa Clara Water Pollution Control Plant Master Plan Final Environmental Impact Report (SCH#2011052074), File Number PP19‐042.
Project name: Headworks Improvements and New Headworks Project Description: The project will rehabilitate the influent conveyance and preliminary treatment facilities at the RWF by constructing a new Headworks No. 3, making improvements to existing Headworks No. 2, and making improvements to the influent conveyance facilities. The new Headworks No. 3 facility will be located along the southern boundary of the operational area, near the existing Emergency Basin and EBOS. It will include components for raw sewage screening, processing, and metering; grit removal; receiving stations for septage, leachate, and vacuum trucks; and an odor control system, as well as a new paved perimeter access road.
B-3