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CC Resolution No. 9190 ..,: RESOLUTION NO. 9190 A RESOLUTION OF 11IE CITY COUNCIL OF 11IE CITY OF CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT BETWEEN 11IE CITY OF CUPERTINO AND 11IE FRIENDS OF STEVENS CREEK TRAIL WHEREAS, there has been presented to the City Council an agreement between The Friends of Stevens Creek Trail and the City of Cupertino providing for definition of the relatoinship between the City and the Friends and outlining responsiblities for both parties; and WHEREAS, the terms, conditions and provisions of the agreement have been reviewed and approved by the City Attorney and the Director of Parks and Recreation. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned agreement and authorizes the City Manager and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of September. 1994 by the followiJig'vote: .Y!m: Members of the ~ Conncil A~S: Bautista, Burnett, Dean, Sorensen, Koppel NOES: None ABSENT: None ABSTAIN: None A lTEST: APPROVED: /s/ Kim Marie Smith City Clerk /s/ Barb Koppel Mayor, City of Cupertino AGREEMENT BETWEEN THE CITY OF CUPERTINO AND THE FRIENDS OF STEVENS CREEK This Agreement is made and entered into on , 1994 by and between the CITY OF CUPERTINO, hereinafter referred to as "CITY," municipal corporation of California, and FRIENDS OF STEVENS CREEK TRAIL, hereinafter referred to as "FRIENDS," a California nonprofit corporation. RECITALS FRIENDS and CITY each agree and represent that the purpose and intent of this Agreement is to promote cooperation, to recognize mutual interest, and to fonnulate provisions governing the relationship between FRIENDS and CITY. NOW, THEREFORE, the parties agree as follows: Article I Obliiation of FRIENDS and CITY. A. Obligations of FRIENDS. 1. Community Awareness. FRIENDS shall conduct activities such as educational and promotional talks before civic, school and governmental agencies and plan and conduct trail runs, walks, cleanup days, special events and other similar activities. 2. Fund Raising. Funds raised by FRIENDS shall be used by CITY to augment other funds available to CITY for the Stevens Creek Trail Project. CITY shall not reduce or replace other funds or funding levels for the Trail because of the availability of funds from FRIENDS. Fund raising will include the collection of private donations through activities such as a gift catalog, special events and solicitation. Funds raised by such activities, except for reasonable operating expenses of the Friends, shall be transferred to the Cities for the purpose of supporting the development of Stevens Creek Trail. 3. Nonprofit Status. During the entire tenn of this Agreement, FRIENDS shall apply for and/or remain a private, educational and charitable corporation which is recognized by State and Federal tax authorities as authorized to accept contributions which are deductible from income tax. Future changes in Federal and State law eliminating or reducing tax reductions for such contributions shall not result in a breach of this Agreement unless FRIENDS fails or refuses to make changes in its organization, operations or legal authority to operate as necessary to retain a nonprofit status. AGREEMENT BETWEEN THE CITY OF CUPERTINO AND THE FRIENDS OF STEVENS CREEK This Agreement is made and entered into on , 1994 by and between the CITY OF CUPERTINO, hereinafter referred to as "CITY," municipal corporation of California, and FRIENDS OF STEVENS CREEK TRAIL, hereinafter referred to as "FRIENDS," a California nonprofit corporation. RECITALS FRIENDS and CITY each agree and represent that the purpose and intent of this Agreement is to promote cooperation, to recognize mutual interest, and to fonnulate provisions governing the relationship between FRIENDS and CITY. NOW, THEREFORE, the parties agree as follows: Article r Obli~ation of FRIENDS and CITY. A. Obligations of FRIENDS. 1. Cornmunity Awareness. FRIENDS shall conduct activities such as educational and promotional talks before civic, school and governmental agencies and plan and conduct trail runs, walks, cleanup days, special events and other similar activities. 2. Fund Raising. Funds raised by FRIENDS shall be used by CITY to augment other funds available to CITY for the Stevens Creek Trail Project. CITY shall not reduce or replace other funds or funding levels for the Trail because of the availability of funds &om FRIENDS. Fund raising will include the collection of private donations through activities such as a gift catalog, special events and solicitation. Funds raised by such activities, except for reasonable operating expenses of the Friends, shall be transferred to the Cities for the purpose of supporting the development of Stevens Creek Trail. 3. Nonprofit Status. During the entire tenn of this Agreement, FRIENDS shall apply for and/or remain a private, educational and charitable corporation which is recognized by State and Federal tax authorities as authorized to accept contributions which are deductible from income tax. Future changes in Federal and State law eliminating or reducing tax reductions for such contributions shall not result in a breach of this Agreement unless FRIENDS fails or refuses to make changes in its organization, operations or legal authority to operate as necessary to retain a nonprofit status. 4. Mailing. FRIENDS shall pay all mailing and distribution costs of all publications it generates or authorizes, including special advertising and publications associated with fund-raising activities. 5. Reporting on Use of Funds and Examinations of Documents. a. Annual report. FRIENDS will provide to the City's Parks and Recreation Department, copies of annual reports and board meeting minutes. b. Examination and submittal of records. FRIENDS shall make available all of its financial records at any reasonable time for examination by the City Manager or his designee, and shall, upon request, provide copies of such records to CITY's representatives. FRIENDS will provide an annual financial statement, including a balance sheet and statement of operations, which shall also include all amounts remitted to CITY. c. Minutes of board meetings. 6. Insurance. FRIENDS shall take out prior to commencement of the perfonnance of the terms of the AGREEMENT, pay for, and maintain until completion of the AGREEMENT, the following types of Policies. These Policies must cover at least the following, which are minimum coverages and limits. I. Comprehensive General Liability Insurance; including the following: A. Premises Operations (including completed operations, if the exposure exits). B. Broad Form Blanket Contractual. C. Personal Injury coverages A, B and C. I. All coverages must have a minimum of $1 ,000,000 per occurrence, $2,000,000 aggregate. 2 7. Indemnification. FRIENDS hereby agree to and shall indemnify, defend and hold CITY, its officers, agents and employees harmless from any liability for damage or claim for damage for personal injury, including death, and/or property damage which may arise from the willful misconduct or negligent performance of this Agreement by FRIENDS or FRIENDS' volunteers, participants, agents or employee operations under this Agreement. 8. Meetings To Be Open; Notice. Board meetings of FRIENDS shall be open to the public. 9. Trail Work Days. As arranged with the Department of Public Works, FRIENDS shall provide periodic trail and creek work days. B. The Obligations of CITY. I. CITY shall provide office space for FRIENDS at McClellan Ranch Park as per a separate agreement. 2. CITY shall keep officers of FRIENDS informed of relevant issues pertaining to the development of the Stevens Creek Trail. a. City facilities will be made available to the FRIENDS for meetings and fund raising events, subject to City's policies on use of City facilities. b. City shall establish appropriate accounting procedures for CITY to use when processing funds accepted from FRIENDS. Such procedures shall provide an auditable tracking of revenues and expenditures of funds turned over to CITY by FRIENDS. 3. CITY Representation. The Director of Parks and Recreation shall serve as City liaison to FRIENDS. 3 Article II. Terms of A¡reement. Breach. Other Conditions. A. Term of Agreement. This Agreement shall commence on the date written above and continue indefinitely unless either party gives written notice in writing of its intent to terminate at least sixty (60) days prior to the effective date of termination. In the event the agreement is terminated, FRIENDS shall submit to City a final accounting of funds raised. B. Termination. This Agreement may be terminated by either party for material breach of its terms or obligations. Prior to such termination, the terminating party shall give written notice of the breach and shall allow a ninety (90) day period in which to cure the breach. In addition to any other remedy provided by law, any material or financial irregularity coming to the attention of CITY may be cause for immediate suspension of the agreement until a remedy or explanation of the irregularity is made to the satisfaction of CITY's Finance Director. C. Modification of Agreement. This Agreement may be modified at any time upon the agreement of both parties. The party wishing the modification shall submit a written proposal for modification to the address provided for notice. D. Notices. Any notice required to be given by this Agreement shall be sufficient if hand delivered, mailed, faxed or sent prepaid by commercial ovemight delivery services as follows or to such other addresses as the affected party shall specify in writing. To CITY: Director of Parks and Recreation City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 To FRIENDS: Friends of Stevens Creek Trail McClellan Ranch Park 22221 McClellan Road Cupertino, CA 95014 4 E. No Assignment. This Agreement is personal to FRIENDS and shall not be assigned by FRIENDS at any time without the express written consent of CITY's City Council. Neither shall FRIENDS assign any of its rights hereunder without such consent. CITY's City Council retains the right to approve or deny such an assignment in its sole and absolute discretion. F. No Hypothecation. FRIENDS shall not hypothecate or otherwise encumber or borrow against any asset, right of action, funds or other thing of value provided to FRIENDS by CITY without the express written consent of CITY's City Council. CITY's City Council retains the right to approve or deny approval of such transaction in its sole and absolute discretion. G. Authority to Act. Unless otherwise specified in this Agreement, CITY's City Manager or his or her written designee shall be the sole party authorized to act on behalf of CITY with regard to this Agreement. Unless otherwise specified in this Agreement. FRIENDS' president or his or her written designee shall be the sole party authorized to act on behalf of FRIENDS. Dated for convenience and effective on the date first written above and executed at Cupertino, California. By Friends of Stevens Creek Trail President By Donald D. Brown City Manager Attested By Kim Smith City Clerk Approved as to fonn Charles T. Kilian City Attorney 5