P&R 04-01-04
CUPEIUINO
AGENDA
Parks and Recreation Commission
Thursday, April 1 , 2004
Jeanne Bradford
Speaker's
Podium
Rod Brown, Chair
Frank Jelinch, Vice-Chair
Cary Chien
CITY HALL, COUNCIL CHAMBER, 10300 TORRE AVENUE, CUPERTINO, CA 95014-3255
408-777-3110 - Website: www.cupertino.org
CUPERTINO GOVERNMENT
Cupertino is a general law city organized under and
subject to statutes of the state of California. It is
governed by a five-member city council, with the
mayor as the presiding officer. The Parks and
Recreation Commissioners are appointed by and
report directly to the City Council.
PARKS AND RECREATION COMMISSION
The commission regularly meets the first Thursday
of each month. These meetings are held in the
Council Chambers of City Hall, starting at 7 p.m.
Urgent business may require an adjourned meeting to
be held. These will be noticed beforehand. Anyone
may review copies of agendas as soon as they are
printed or minutes of the commission meeting after
they have been approved. These are available in the
City Clerk's office and the Web at
www.cuoertino.org.
CONDUCT OF BUSINESS
The chair is the presiding officer of the commission.
All statements and questions are to be addressed to
the chair whether by members of the commission, the
staff, or the general audience.
The proceedings of the meeting are video and audio
taped. Therefore, it is essential for members of the
audience, who wish to address the commission, to
come to the lectern and identify themselves.
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons
wishing to address the commission on any matter not
on the agenda. Such presentations are restricted to
three (3) minutes. Speaker's cards are available at
each meeting and may be completed and submitted to
the recording secretary prior to the start of the
meeting. Oral Communications is not intended as
the means for debate or decision-making, but only for
the making of a presentation in person.
COMMISSION POLICY
It is the intent of the commission to provide the
opportunity for any person to communicate with
commission on any matter of community interest or
within the commission's purview. To assure fairness
to advocates on all sides of an issue, debates and
actions taken will be limited to those items
previously placed on the agenda. Items of an urgent
nature, which cannot be carried forward to the
following council meeting, may be processed under
certain conditions.
PUBLIC PARTICIPATION
The commission encourages expression of views by
its citizens on matters of concern to those persons.
Oral presentations during public hearings are one
method of expressing these views, or citizens may
address the commission under Oral Communications
if the item does not appear on the agenda. Another
method widely used is the written communication. If
any such communication pertains to an agenda item
and is received by the Parks and Recreation
Administration office prior to noon on the Monday
preceding the commission meeting, it will be
duplicated and distributed as supporting information
to the pertinent agenda item.
TELEVISED MEETINGS
Commission meetings are televised on AT&T Cable
Services, Cupertino Channel 26. Broadcast schedule:
1" Thursday of the month (live) at 7 p.m.
Dates and times are subject to change. Confirm
meeting schedule with the Parks and Recreation
office at 777-3110. Copies of the City Channel
program schedule are available in the City Hall
lobby, the Cupertino Scene, and on the City's
website at www.cuoertino.org .
AGENDAS AND MINUTES ON THE 'WEB"
Agendas and minutes for current and prior meetings
are available on City of Cupertino's Website at
www.cuoertino.org. This site includes a convenient
keyword search feature.
In compliance with the Americans with Disabilities
Act (ADA), the City of Cupertino will make
reasonable efforts to accommodate persons with
qualified disabilities during public meetings. If
special assistance is required, please contact the
Parks and Recreation office at 777-3110 at least 48
hours in advance of the meeting.
I-
CUPEIQ1NO
PARKS AND RECREATION COMMISSION
Regular Meeting
Thursday, April 1, 2004, 7 p.m.
City Hall Council Chambers
AGENDA
1.
CALL TO ORDER
2.
PLEDGE OF ALLEGIANCE
3.
ROLLCALL
4.
MINUTES OF PREVIOUS MEETING
A. Regular meeting of March 4, 2004.
5.
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the commission on
any matter not on the agenda. Speakers are limited to three (3) minutes a person. In most
cases, state law will prohibit the commission from making any decisions with respect to a
matter not listed on the agenda.
6.
WRITTEN COMMUNICATIONS
A. Letter to Mr. Tom McNair from Glenn Goepfert, Assistant Director of Public
Works, March 9, 2004, regarding use of City property for construction staging.
7.
NEW BUSINESS
A. Update on the construction progress of City Center Park and the plan to program
and maintain it.
Consider canceling the May 6 regular meeting due to the Portal Park re-dedication
event.
B.
8.
MISCELLANEOUS - NO ACTION REQUIRED
A. Commission reports
B. Staff oral updates
9.
ADJOURNMENT
Adjoum to the regular meeting of Thursday, June 3, 2004.
In compliance with the Americans with Disabilities Act (ADA), the city of Cupertino will
make reasonable efforts to accommodate persons with qualified disabilities. If you require
special assistance, please contact the Parks and Recreation office at 777-3110 at least 48
hours in advance of the meeting.
DRAFT
PARKS AND RECREATION COMMISSION
CITY OF CUPERTINO
REGULAR MEETING
THURSDAY, MARCH 4, 2004
I.
CALL TO ORDER
Chairperson Brown called the regular meeting of the Parks and Recreation Commission
to order at 7 p.m.
2.
PLEDGE OF ALLEGIANCE
3.
ROLL CALL
Commissioners present:
Jeanne Bradford, Rod Brown, Frank Jelinch, Roger Peng,
Cary Chien
None
Therese Ambrosi Smith, Director; Don McCarthy,
Recreation Supervisor; Colleen Manning, Recreation
Coordinator; Michael Bookspun, Recreation Coordinator;
Marie Preston, Administrative Secretary
Commissioners absent:
Staff present:
4.
MINUTES OF PREVIOUS MEETING
A. The regular meeting of February 5, 2004, and the regular adjourned meeting of
February 25, 2004.
ACTION:
The minutes of February 5 and February 25, 2004, were unanimously
approved as written.
5.
ORAL COMMUNICATIONS
Deborah Jamison, Rumford Drive, spoke on her findings of the west side ofthe
McClellan Ranch Park property being used as a construction site. She displayed several
photographs of the area. She stated that the area is being used as a staging area with
vehicles, construction materials, and debris for the building of the McNair house that is
upslope from the Simms house. She reported that Mr. McNair has received permission
from the city to build the house using public property, which is preserved land, in an
open-ending way. She has found this situation very upsetting that the nature preserve is
being treated in this fashion. She stated that the debris, some of it toxic, is within feet of
the Stevens Creeks. She was concerned with the lack of concem for liability. She asked
what compensation to the city for the restoration to the area is expected? She expressed
alarm at the reseeding of the area with common grass, which is what a nature preserve
would not want to happen because they are non-native grasses. She asked what
'1. A,
Parks and Recreation Commission
March 4, 2004
Page 2 of9
constraints, what restraints, what requirements, and what compensation could be imposed
now. She cannot find out who permitted this situation.
Chairman Brown stated that among the Commission there is a lot of interest in this issue
and the details ofthe monitoring and restoration plans. The Commission agreed they
wanted to "get to the bottom of this." They requested more information for the next
meeting.
Director Smith stated that she will ask Glenn Goepfert, Assistant Public Works Director,
to come to the next meeting and give a report.
Ed Hirshfield commended the Commission and staff on the way the entire renovation of
the Sports Center was handled. He commented on the process that has disrupted everyone
at the Sports Center, that he believes it is unwarranted. He believes it is time for the
Commission to say, "let's put an end to this."
Grace Toy, Crescent Road, distributed a packet of material:
. Email string regarding Notice of No Show
. Email string regarding Court #1 Reservation and Usage By Our
Guests/Documentation for Team Tennis Policy from City Council Members
She reported that she believes that those in authority are creating an opportunity to attack
their integrity. They want to reach out to the pass-holders who have been misinformed
and misled. She talked about a pass-holder who verbally assaulted her, management's
investigation, and that management did not withdraw that person's membership as the
policy states. She stated that this incident has tarnished the Sports Center. She stated that
the recent survey had negative comments about her and her husband. She believes that
the survey was invalid; she believes that they were set up. She does not like the new
policy and believes that it does not allow for more equal opportunity to use Court One.
Commission Comments
Commission Chien asked if the person who verbally attacked Mrs. Toy was sent a letter
reprimanding her action. Director Smith stated that a letter had been sent.
7.
WRITTEN-None
8.
UNFINISHED BUSINESS
A. Review of Cupertino Sports Center policies and recommendation to City Council
- Supervisor McCarthy highlighted the background on why the Sports Center
policies were being reviewed, the Policy Evaluation Committee's input on policy
changes, the customer satisfaction survey results, and the resulting proposed
changes. Proposed policy changes covered cancellations, court one reservations
during prime time, court one designated play times during prime time, day passes,
Parks and Recreation Commission
March 4, 2004
Page 3 of9
the Cupertino Tennis Club access to courts during prime time, pass-holders 16
years of age and younger, and sigillng off of policies.
Staff answered clarifying questions from Commission.
Commissioner Chien stated that one of the policies under fitness center and
multipurpose room is that modern sports drinks are the only ones allowed; he
thought he saw Coke in the fridge. He suggested if the policy states that, the soda
should be removed.
Chairman Brown asked if any information had been gathered about increased
lighting of the courts. Supervisor McCarthy stated that he had met with an
electrical contractor. Some of the discoveries from those meetings were that the
transformer to the entire site was near capacity. The contractor did suggest that
more contemporary lighting fixtures were more efficient and could spill better
light; to retrofit current fixtures for five courts would cost at least $70,000. If the
transformer has to be improved and or booster needs to be added, there could be
an additional $50,000 added to this project. Supervisor McCarthy reminded the
Commission that the current fixtures are over 30 years old and unforeseen
conditions could be expected and repairs could be costly. At this time, due to the
budgetary constraints, Supervisor McCarthy did not request it in the budget.
Public Comments
Tonv Tov, Crescent Road, stated that he supports the Court One once-per-week
reservation policy. Staff recommended twice a week for CTC matches. He would
like to see the week start on Monday. He stated that member's records of
reservations couldn't be verified. He believes the cancellation policy is
unreasonable. He stated that staff informed him that it had drizzled and he should
not go to the Center to play tennis. He found out that the manager had determined
that the courts were playable and his reservation was noted as a "no show." He
believes this was not fair.
Grace Tov, Crescent Road, believes the once-per-week reservation policy
provides inequitable reservation opportunities. She would like Court One to be
used as a walk-on court due to open slots on the reservation sheets. She does not
agree with the policy sheet being covered because it has phone numbers on it -
their reservation does not list their phone number, but other reservations do have
phone numbers. She reported that on USTA evenings, there are a lot of
unauthorized visitors; these people know there are no court monitors, and take
advantage of this situation.
Parks and Recreation Commission
March 4, 2004
Page 4 of9
Commission Comments
Chairman Brown asked about the archive policies and if the previous sheets are
kept. In answer, Supervisor McCarthy stated that reservation data is kept for one
month, the manager reviews them for summary purposes, and then they are
destroyed. Data is kept for UST A leagues so that management knows from year-
to-year how much access they have had, if they abiding by the rules, etc.
Chairman Brown asked about the weather policy for cancellations. Supervisor
McCarthy stated that regarding the specific date in question, it is staff's call. If
the courts are safe to play, we will let people out there. Staff has the ultimate say
in whether the courts are open or not.
Staff Comments
Supervisor McCarthy stated that in regard to the co-sponsored tennis club and
Team Tennis, it is not only important, but it is essential, that when a league
schedule is determined that the Center block those particular times for the league
play; this policy has been supported by the Commission in the past.
Regarding open times on Court One, as mentioned by Ms. Toy, Supervisor
McCarthy stated that those times were due to inclement weather patterns. Once
the fair weather months start, any open times on Court One, during prime time,
are going to be minimal.
Public Comments
Grant Gower, Rjdgeway Drive, president of the Cupertino Tennis Club, requested
the Commission support their mission to increase participation and enjoyment of
tennis in the community. He asked that the Commission continue the present
priority system for court allocation to the City Council. He reported that the
customer satisfaction survey reflected the general satisfaction with the current
policies, delight with the facility, and their support of the management amongst
the tennis playing pass-holders. He reported that CTC has promoted their club in
creative ways to the Asian community to increase membership in their club,
which will also increase membership in the Center, as club members are required
to have one-year memberships in the Center.
Deborah Jamison, Rumford Drive, stated there was a disconnect between the
fitness activities that take place at the Sports Center and the fitness activities that
take place at the Quinlan Community Center. She suggested that membership and
revenues in the Sports Center could possibly be increased if a "deal" were
developed where if a person became a member of the Sports Center, they could
also sign up for other fitness activities in other parts of the city for some
percentage off.
Parks and Recreation Commission
March 4, 2004
Page 5 of9
Commission Comments
Commissioner Jelinch stated that the Sports Center staff spends a lot of time
trying to accommodate people, and sometimes everyone cannot be
accommodated. He commended staff for all their work in developing fair policies
for the majority of members. He is pleased with the recommended policies.
Commissioner Chien stated that all involved need to move on. He stated that the
edited lines in the customer satisfaction survey should be removed all together in
the spirit of reconciliation because it is good for the community.
Commissioner Bradford requested that people should have the intention that they
can peacefully co-exist with one another. This disagreement has gone on for two
years and it is time to end it. She would rather there not be a policy on what day
of the week is the beginning of the week. She recommended that staff not have
any policy, which cannot be enforced. In general, she supported the revised
policies.
Commissioner Peng was pleased with the results of the customer satisfaction
survey. He also supported the revised policies. He encouraged everyone to go
along with the spirit of democracy and look at what is in the best interest of the
whole community.
Chairman Brown added comments in support of the Sports Center staff. He
believes the process to air differences has been good, but it is now time to make
decisions on the policies and move on to other topics. He stated that the
Commission does not want to get involved in the micromanaging of the Sports
Center policies that are put together by staff.
ACTION:
A motion was made, seconded, and unanimously passed to accept the staff
recommendations for the policies.
ACTION:
A motion was made, seconded, and unanimously passed to reaffirm the
UST A scheduling priority at the Cupertino Sports Center.
9.
NEW BUSINESS
A. Recommendation to City Council regarding charging field use fees for nonprofit
youth sports groups - Recreation Coordinator, Michael Bookspun, presented
research gathered on youth sports leagues. He listed the affected Cupertino
leagues, the approximate amount of money the City spends on sport field
maintenance, and an analysis of charges levied by other cities in the area of
nonprofit sports field use. He recommended to the Commission that $11 per
player per season be assessed to nonprofit youth sports organizations for an
approximate annual revenue of $44,429.
Parks and Recreation Commission
March 4, 2004
Page 6 of9
Commissioner Comments
Commissioner Jelinch asked to confirm that the money raised will be five percent
of the real cost of maintaining the fields. Director Smith stated that this money
would go to helping keep a person on the Public Works grounds keeping staff-
Public Works is currently down five maintenance positions.
Chairman Brown asked if there were any existing contracts with the leagues.
Coordinator Bookspun stated that the contracts are in the form of Parks and
Recreation permits that are approved annually or bi-annually, and which are of no
cost.
Commissioner Chien asked if adult leagues were a part of this recommendation.
Coordinator Bookspun stated that the recommendation was strictly for nonprofit
youth leagues, which were the only group that wasn't being charged for field use.
He reported that nonprofit adult leagues are charged a minimum of $50 an hour to
use the fields.
Commissioner Peng stated that the recommendation seems reasonable. He asked
ifhe knew why other cities chose to use another form (charge per hour) to charge
fees. Coordinator Bookspun said that other cities were monitoring fees
administratively similarly to a facility rental and they were systems that had been
set up for some time and were labor intensive.
Commissioner Jelinch asked how the money would be collected and
administered. Supervisor McCarthy stated that the details still need to be ironed
out; however, the city would have to establish how many kids were on their
rosters, and once evaluated, the city would know the dollar amount. In terms of
the mechanism for collection, this has not been determined. Supervisor McCarthy
stated that the youth leagues are cooperative and supportive of this endeavor.
Supervisor McCarthy stated that the $11 per youth is an average of what other
cities are currently charging and there will be increases annually.
Chairman Brown asked if there was a target for this revenue generation.
Supervisor McCarthy reported that the target is to help support the maintenance of
the fields, but there is no single focus or target.
Commissioner Bradford asked staff if they knew what Santa Clara and Gilroy
were going to do next year, are they going to do per person or hour-based?
Coordinator Bookspun stated that he didn't have that information.
Director Smith reported that the City Council will be having its hearing on the fee
schedule April 5, 2004. Because this was a new category of fee, it was presented
Parks and Recreation Commission
March 4, 2004
Page 7 of9
to the Commission so that people had an opportunity to speak. At that time, April
5, the City Council will be considering all fees.
Public Comments
Robert Jovce, Myer Place, De Anza Youth Soccer League, stated that the
Cupertino fields have been the envy of the soccer community throughout northern
Califomia. He stated that they are concemed with the current budget crisis and
can see that city hours are being cut for maintenance and code enforcement. Code
enforcement has done a marvelous job of policing fields. He reported that
Danville and Walnut Creek have fields that have surpassed Cupertino, but they
also charge on the high end - $19 per player and $17 per hour respectively. He
stated that the De Anza Youth Soccer League is in favor of charging $20 per
player.
Rob Wells, Rose Garden Lane, Cupertino National Little League, has found there
has been little resistance with the idea of charging for field use. The only area of
resistance has been the fairness issue. He asked if the fees raised would be
directed to the specific benefits for the leagues; how would they see that the
money was going back into the fields the revenue was being generated for; and
are all users of facilities in the city being charged at a fair rate? He stated that
Parks and Recreation staff have been very fair in the process. He announced that
the fields are wonderful, they want to do their share, and want to see that a fair
policy be applied to all. He reported that the league intends to put $15,000 into
facilities this year; they want to be a good partner, and have an improved
relationship with the city. He stated that he would like to see the resources of the
volunteers applied more effectively to make the fields as safe and playable as
possible. The city should be commended for the current state of the fields.
Director Smith stated that volunteerism is valuable and our crew puts on clinics to
help volunteers learn how to maintain the fields. She was unsure if it was possible
to specifically challenge a certain number of dollars raised by fees from a group
that uses a particular field back to that particular field; right now, we are trying to
support positions that have been cut.
David Guthrie, St. Joseph of Cupertino School, wanted the Commission to know
that though they were not in the analysis, they do use the fields. He supports the
program to raise money that contributes toward the maintenance of the fields.
Kent Sauarcia. S. Tantau Avenue, Cupertino National Little League, is more
neutral than opposed to the fee charge. His main concern is that the fees raised
are not used for other areas in the city unrelated to the fields. If the money raised
were directly used toward field maintenance, he would be supportive of the
charge.
Parks and Recreation Commission
March 4, 2004
Page 8 of9
Commission Comments
Commissioner Bradford thanked the speakers. She stated that she couldn't
remember a time when the public was supportive ofthe city raising fees. She
commended the speakers for their support and stated that it showed a true
partnership with the City. She was pleased that they acknowledged the quality of
the fields they have had use of over the years and acknowledgement ofthe
dilemma in trying to offset some of the lost revenue. She supports the flat fee
charge and believes it is fair. Regarding directed funds, it was her understanding
that the money would go back into Public Works, but there was no way to target
certain dollars to go back to specific fields. Director Smith stated that the money
could be directed toward field maintenance.
Commissioner Peng also stated he preferred the per-play method because it would
keep the process streamlined.
Commissioner Chien thanked Coordinator Bookspun for his fine report that
communicated the issue clearly. He thanked the speakers for understanding the
city's position. Though he understands that families would be paying for this
increase, he believes that $11 is affordable. And with the money going back into
the fields, families should see the benefits. He supports the fee charge.
Commissioner Jelinch stated he sees it as a win-win for everyone. He believes
that support of high quality fields is important.
Chairman Brown echoed the same comments of the good works of the staff in
keeping such quality fields going. He believes that how the money is raised
should be up to staff to decide what is more workable for them. He stated that he
would support higher fees. He asked staff if the quality of the fields would be
able to be maintained as in the past by re-directing resources? Director Smith
answered that this process should be evaluated in a year. She also stated that she
would pass on the kudos regarding the condition of the fields to the park
maintenance staff. Chairman Brown agreed to evaluate the process next year.
Commissioner Bradford asked if it was the intention to complete the plan before
going to the City Council. Director Smith stated that Council would be interested
in the amount to be charged, the number of people affected, and what the revenue
will be from the fees.
ACTION:
A motion was made, seconded and unanimously passed to recommend to
City Council the $11 per player fee for the nonprofit youth sports groups.
Parks and Recreation Commission
March 4,2004
Page 9 of9
10.
MISCELLANEOUS - NO ACTION REQUIRED
A. Staff Oral Reports:
a. Budget update - Director Smith highlighted the proposed fee schedule for
the new Community Hall, which will open with the library in September
2004. On April 5, the City Council will review co-sponsored club fees. In
the past, the city has been able to allow them free use of facilities, but the
charter they signed guarantees a reduced rate. What is going to be
proposed with the fee schedule is that they will be charged at the nonprofit
rate, which is a reduced rate.
B.
Community Contacts:
a. Commissioner Jelinch announced the annual meeting of the California
State Board of Parks and Recreation Commissioners in Anaheim. At this
meeting, he is going to be swom in as president. One of the charges of
this commission is to lobby before Congress on national park issues. One
of his goals as president is to enhance the park issue efforts.
Commissioner Chien reported that he attended the Lunar New Year Unity
Parade. He stated that the organizers are looking for volunteers and
committee chairs for next year's parade. Chairman Brown said that he
had heard the parade might include Sunnyvale.
Commissioner Peng was a performer for the Lunar New Year Unity
Parade.
Chairman Brown reported that he has been getting email about fee
schedules and requested staff to forward the agenda to them so they can
inform people. Director Smith told the Commission that the Council
would review the fee schedules on April 5; the Council packet and agenda
will come out on April I.
b.
c.
d.
II.
ADJOURNMENT
Chairperson Brown adjoumed the meeting at 9 p.m.
Respectfully submitted
Marie Preston, Administrative Secretary
Televised Council meetings may be viewed live on Cable Channel 26, and may also be viewed
live or on demand at www.cuvertino.orl!. Videotapes of the televised meetings are available at
the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364.
Minutes approved at the
, 2004, regular meeting.
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
FAX (408) 777-3333
CITY OF
CUPEIQ1NO
PUBLIC WORKS DEPARTMENT
Ralph A. Qualls, Jr., Director
March 9, 2004
Mr. Tom McNair
460 Lotus Lane
Mountain View, CA 94043
Subject: Use of City Property for Construction Staging
Dear Mr. McNair:
As you are aware, your agreement with the City for access over City property to the
construction site at 22261 McClellan Road (APN 357-04-067) is for the right of entry
only. However, it appears that your construction forces are also using the City property
for storage of construction materials and as a porta-potty site. In addition, your
construction forces have allowed trash to accumulate on the City property adjacent to the
construction site.
You must immediately take the steps necessary to remove the trash and all equipment and
materials that are being stored on City property. If you find it impractical to stage your
construction from your own parcel, you may need to amend the existing agreement with
the City. As Public Works had previously reminded you, your present agreement requires
you to restore the City property you have used to its original state. An amendment to the
agreement that allows additional uses of the City land will likely include additional
conditions of use.
Please contact me at (408) 777-3244 as soon as possible concerning this matter and your
schedule for taking the necessary actions. The City would also like to see an updated
project schedule.
Sincerely,
~ort~
Assistant Director of Public Works
Copy to: Ralph Qualls, Director, Public Works
Therese Ambrosi Smith, Director, Parks and Recreation Department
6.A.
Printed on Recycled Peper
CITY OF
CUPEIQ1NO
PARKS AND RECREATION ADMINISTRATION
DIRECTOR'S REPORT TO PARKS AND RECREATION COMMISSION
Agenda Date: April I, 2004
Item 7.A.:
Update on the construction progress of City Center Park and the plan to
program and maintain it.
If you have been by the corner of Stevens Creek and De Anza Boulevards, you've probably
noticed that the artwork has been installed and that the new comer park is nearing completion.
Attached is a copy of the license agreement that provides the city use of the property for public
purposes.
This park/plaza will tentatively be open to the public on May 8. The Commission will receive a
report at the meeting regarding opportunities and constraints for programming this site.
mp
g:lparks and recreation adminldirectors reportldirectors report 0401O4.doc
Pontod on Recycled Papal
LICENSE AGREEMENT
This License Agreement ("Agreement") is made effective this :zt. ;.\\ day of
.June.
, 1997 by and between the CUPERTINO CITY CENTER OWNERS
.' ASSOCIATION, a non-profit corporation organized under the laws of the State of California
("Association"), as Licensor, and the CITY OF CUPERTINO, a General Law
("City"), as
Licensee.
RECITALS
A
Association is the owner of .that certain real property situated in the City of
Cupertino, County of Santa Clara, State of California, described as Lot 8 of Tract Map No. 7953
recorded on February 27, 1987 in Book 571 of Maps, Pages 36 and 37, of the Official Records of
Santa Clara County (the "Property"). The Property is part of Cupertino City Center, a complex
of office and residential buildings (the "Project"). Attached hereto as Exhibit "A" is a map
depicting the Property and the Project.
B.
On September 2, 1987 there was recorded in the Official Records of Santa Clara
County in Book K281 beginning at Page 2071 a First Amendment to Declaration ("Declaration")
of Covenants Conditions and Restrictions and Grant of Easements for Cupertino City Center (the
"Declaration Amendment"). Paragraph 8 of the Declaration Amendment provides, inter alia, as
follows:
"Lot 8 of Tract 7953 shall include a "park" area (the area bounded
by private streets and public sidewalks) which shall be made
available for public use. The "park" area shall at all times be
subject to the control of the Association. No structures will be
constructed on the "park" area without the approval of the City of
Cupertino, other than typical park furniture and equipment. The
City of Cupertino is declared to be a third party beneficiary of this
covenant. "
1Hl1\337361.02
72-042409400001
1.4,
-1-
.~-
Coul'\~11 (
Resolution No. 9751 was adopted and passed by the City ~ of the City on
C.
December 11, 1996 approving, in concept, an agreement for the improvement of an existing
private park located on the Property. This Agreement is to fulfill the requirements of the
-, aforesaid Resolution.
NOW, THEREFORE, the parties agrees as follows:
1.
Association does hereby grant and convey to City a non-exclusive, irrevocable
license for the use of the Property as a public park, subject to the limitations and covenants set
forth herein. The use of the Property currently being made for automobile parking shall continue
. and not be affected or altered by the aforesaid grant.
2.
City is to install, at City's expense, on the Property, a system of trees, irrigation
pipes, walkways and park furniture all of which shall be in substantial conformance with the
conceptual plan attached hereto as Exhibit "B" (the "Plan"). Any material changes in the Plan by
City are subject to the approval of the Association, which approval will not be unreasonably
withheld. Any changes in the Plan must be in writing and approved by both City and Association.
~'
The improvements to be made pursu~t to the ,Jß.al! are referred to herein as the "Improvements".
A'õ'õoc.lc.tior\ <'.Iti "D"'.
Gi-tJr- agrees to cooperate with i\'sseeultil3li and any non-profit organization which may, for
purposes of fund raising, cause the installations of bricks or other paving materials to the
Improvements.
3.
The Improvements shall be completed in a good workmanlike manner, with
materials of good quality. It is Association's expectation that the quality of the Improvements
will be consistent with the quality achieved by the City in creating and constructing the City of
Cupertino Memorial Park.
Upon completion of the Improvements, City will provide to
Association a copy of "as built" plans and specifications for the completed work. City will be
IHLI\337361.02
72.042409400001
-2-
responsible for any and all defects arising out of materials and/or labor in connection with such
work. Not in limitation of the foregoing, it will be the obligation of City to replace any and all
landscaping which dies or fails to grow to a healthy condition within a period of one (1) year
., following its installation. Subject to the foregoing, following completion of the Improvements,
Association will assume responsibility for all repair and maintenance of the Improvements
including but, not limited to, the payment of all uti~ty costs serving the PropertY. In the event
that any trees or other plant material is partially or completely destroyed through no fault of the
Association, and after the one (1) year period for which City is responsible for such trees or other
plant materials, then Association shall replace said trees or plant material at Association's cost,
provided that Association will not be required to install trees larger than twenty-four (24) inch
box in size.
4.
The PropertY will be open as a park to the general public at all times and City may
allow or sponsor public events thereon. City will not sponsor or allow organized public events to
occur on the PropertY unless the organization holding the event provides City with (i) adequate
liability insurance (not less than One Million Dollars ($1,000,000) per occurrence), naming both
the City and the Association as additional insureds and (ü) assurances of reasonable security and
crowd control measures required by the event. Such organized events shall not include events
which are primarily commercial in nature or which are conducted for profit unless such events are
approved in advance in writing by Association. City's use of the license will not interfere with the
normal operation and use of the Project nor reflect negatively on the image of the Project.
5. City shall have the right to install, su~ to the Association's consent, wmch
consent will not be unreasonably withheld, on ~~maf l'éæ¡ of the PropertY. public art at City's
sole expense. Following the installation of such public art, City will bear all costs of maintenance,
IHLI\337361.02
72.Q424094OODO1
-3-
repair and/or replacement thereof, including, but not limited to, the cost of any utilities utilized in
the operation thereof. Said public art shall not unreasonably interfere with the current signage in
that location.
6.
City shall not suffer or permit to. be enforced against the Property, or any part
thereof, any mechanic's, materialman's, contractor's, or subcontractor's liens, claims or demands
arising ITom the Work. City agrees to indemnify, defend, and hold Association and the Property
ITee. and harmless from all liability for any such claims, liens, and demands, together with
reasonable attorneys' fees and all costs and expenses in connection therewith.
7.
Subject to the Declaration and to the applicable zoning, Association for itself and
. ,
its members reserves the right to use the Property for any lawful purpose not inconsistent with
this Agreement including the use of the Property, ITom time to time, as a temporary construction
staging area for construction being perfOlmed on the Cùpertino City Center Project of which the
Property is a portion.
8.
City agrees to indemnify, defend with counsel approved by Association, and hold
Association harmless from all liability, claims, demands, damages and/or losses, including
attorneys fees, resulting or arising out of the use of the Property pursuant to this Agreement by
City, its agents, employees, contractors, subcontractors, licensees and/or invitees. Association
agrees to indemnify, defend with counsel approved by City, and hold City harmless from all
liability, claims, demands, damages and/or losses, including attorneys fees, resulting or arising out
of the use of the Property pursuant to this Agreement' by Association, its agents, employees,
contractors, subcontractors, licensees and/or invitees.
9.
In the event it is necessary for either party to employ an attorney or other person
or Commence an action to enforce any of the provisions of this Agreement and of the prevailing
IHLI\337361.02
72-0424094ûoon1
-4-
party shall be entitled to recover all costs of enforcement in connection therewith, incÌuding but
not limited to court costs, expert witness fees, and attorneys' fees.
10.
In the event of a material breach of this Agreement by City and the failure of City
.' to cure said breach within thirty (30) days of written notice ITom Association (or such longer
period as shall reasonably be required to effect such cure within such thirty (30) days and pursues
the cure with due diligence), then in such event, and in addition to any other remedies available at
law or equity, Association shall have the right to terminate the license granted hereunder upon
written notice to City.
. !
11. Each of the parties agrees that it shall, upon request of the other party,\execute and
deliver such further documents and do such other acts and things as are reasonably necessary and
appropriate to effectuate the tenDS and conditions of this Agreement.
12.
The Agreement shall be construed and enforced in accordance with and governed
by the laws of the State of California.
13.
The Agreement shall constitute a covenant rumùng with the land and shall be
recorded in the Official Records of Santa Clara County.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date
first above written.
CUPERTINO CITY CENTER OWNERS
ASSOCIATION, a non-profit corporation organized
under the laws of the State of California
~
By:
Its:
John J. MurphY, Secretary
CITY OF.
i .
By: ~
¡to - ,~~ \Í""'---
IHLI\337361.02
72-042409400001
-5-
m
~. ì
:[~
"';
..
"
!:!
r -- roo. . -....., .."
.. (') ~ s. ~ -...., '.~
.. ...- þ , ..æ
,"""","" ""'.~- . C""'.'" ¡¡; ::~~
:!"'f:--:--:-~-¡'õ~--"::-:-;i~"'Q" ~.J'~ Ë' .;;¡: ~ ,~~'! ~~
I...... -..,. r"'-- '~îl ....j
::.,.'.':::;"';~:"':~::';'\'.':: I¡;:'~ ~* 9'~r:!Dr- ;: . e
~"";"",:"'-"., 'i', ".-"-- II.... c '\,..1: ~ .. 5 g
:¡'~':'-:::I"" ":,i!I"1 ,~..:i,::~',:,,'j> );.1: ;J
I~'" "."'. '.':1 1 "i'."'L".r-'~.< "...: !: ë;
:¡':'~"""':"':YI,'U!~'{i:"~\';~:~'~~':;"": ~ lI..ê~
", ",'; -:t;.\ '.,'., ... ,.,,-1
L___- - - -'œ. - -~~.;,J'j L__"A~'- .:.:-::~,~-j~i'::""::"":L_T-- - -_..!"!."--.~ --=---1~" ~ z
; t 'a '1' '.."'. 'I~"':'~":
.' II '~,,~\';:~-¡""-~U'-11' ,,' I' ... .. .. -' ",,( I ::0: ~1;';~6:"'-"" :'~'.i'_I.....'i",::,,;;;...f.<....,...il =1 '- ; ~
". . .:., ~ J !!I~~~[i~;.~]~~~. . : ...';. :
'-"~'M}: ,,~.., '!"':'\I~
,i jl'~}¡~!t;i:.~~;t,èt~i I ~
'" ...'" '" '" ..,'
.." "
l~
D E-ANZ A----<-- -- - -"'-.. -B LVD,
=,
.
I:::
II ~;~1i1f~~~~~;:\ ~~ ~ ~7Ë¡ ..'
, ',', -;; 'ì-I
.J" "\:: ," ';':~P~i,tJ,~,L,.
r- ,,', ,I V' :,', 'T.
't¡ '~};\:)r,;:::' ~ ;\};
'""'~_:,,¡: ¡ '\,:~¡
1 ',.":' :~'~;::,~;.~ :~.:': . ",=,
L___~__~~'~-,~:~~dJ
4,'
r7'-----¡;õ--:-;~ 1
I' ~.;; ;;""'" \0.. ;"'¡;'~.r" I
I~'~: ',' ,0' "1'E I
lI;" ," ~ i
I "J I
I: - :I~
1; ~ "-' ;[a
I I
I 1
I I
I ,>,
L------!.).,...._-_':"~-J
..
..
:;, '
,i
1.--'
~
';
r-_ní-~r.-- :~~;.~,~:
,.\ ' !':, , 1)11
~-- '-, ,:. ¡ , ' '::... I
"'( ?,:' ': I~ " . I'
\.,' r.\ ';1
, :1
, , =1
", ' .. .- :1
"!" \,' 1
"\., . :' I
",' I
;-"".1,
- ." II
EXHIBIT A
. ','
. -
1~
I
."
.'1
<
fT1
z
VI
n
:c
1"1
1"1
""
Q
l ~~ )
n'-----' I
"
"
"
...
z
c
'"
n
... ..
.. "
þ
n
-t
n
"'z
z "
...'"
",'"
;:j~
CD
r
<
?
I
I
..
. :r
- ..
, '"
'"
=
..'
, r~~,a
~IEj
H EAR T 0 F THE C IT Y
~~~.
I 51
4-Seasons Orchard
.çc.QQJ
4-Seasons Orchard
IL
\~~~~~ç
. Retail Frontage
~ --:-7" " Along Square ~
;J,. I
, I
,:::~
. . . .. ,
Seating Area I . . ",
With Sundial
"" ¡",
II ,; ¡
I.~~ '::;~::.;
EXHIBIT B
Th. City of Cupertino
.t\pp<"dix A
RESOLUTION NO. 9858
A RESOLUTION OF TIffi CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE A MODIFIED LICENSE
AGREEMENT BETWEEN THE CUPERTINO CITY CENTER OWNERS
ASSOCIATION AND THE CITY OF CUPERTINO REGARDING THE USE OF
SPECIFIC PRO.pERTY LOCATED IN THE SOUTHEAST CORNER OF
INTERSECTION OF DE ANZA BOULEVARD AND STEVENS CREEK
BOULEVARD FOR PUBLIC PARK USE
WHEREAS, on May 5, 1997, the City Council authorized the City Manager to execute a
License Agreement regarding the use and maintenance of the subject property; and
WHEREAS, upon final review of the Agreement by the City and by the Cupertino City
Center Associates, each party agrees that the indemnification clause (paragraph 8) of said
Agreement warrants amendment; and
WHEREAS, the terms, conditions and provisions of trus modified agreement have been
reviewed and approved by the City Manager and the Director of Community Development and
the Public Works Department.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby approves the aforementioned modified License Agreement in concept as described on
Exhibit A and authorizes the City Manager to execute said agreement on behalf of the City of
Cupertino. .The final agreement shall be approved as to form and content by the City Attorney.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 2nd day of June, 1997, by the following vote:
Vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Members of the Citv Council
Burnett, Chang, Dean, Sorensen, Bautista
None
None
None
ATTEST:
APPROVED:
/s/ Kimberly Smith
City Clerk
/s/ John Bautista
Mayor, City of Cupertino
. !l~J~~P~~~ '~g~;T~; ~~~~\~~i;;,~~;6~, ~;~:;D ;']i;~:;:~:,i:~:
ë;~;;::::~~{l:q~-d!-~;:"~f~¡~q ð
.i/.,~A/J.L" " "" "".,..~"" "",.--..-".. ..,...'
c'{~~:"T;r ",