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File #1029-99 SCV Water District - Joint Use Agreement '\. - - File: 1029-99 JOINT USE AGREEMENT SANTA CLARA V ALLEY WATER DISTRICT, a public corporation, hereinafter referred to as "District;" and the CITY OF CUPERTINO, a municipal corporation, hereinafter referred to as "City;" AGREE this 16th day of November , 1999 as follows: RECITALS: A. District is the owner of certain real property (hereir...after "the premises"), described on "Exhibit A" hereto, so marked and by this reference made a part hereof. B. City and District recognize that the premises are regulated by a variety of federal, state, and local agencies. C. City and District, in cooperation with the California Department of Water Resources, the U.S. Army Corps of Engineers, and the 'California Department of Fish and Game, agree to use the premises for nonvehicular (except for maintenance, emergency, and enforcement vehicles) and recreational purposes as well as for flood control and water conservation purposes. D. The parties fmd it to be in the public interest to provide for joint use of the premises by means of an Agreement thereof under the following terms and conditions: AGREEl\1ENT: 1. District shall and does hereby grant permission to City to use the premises for recreational purposes. 2. City shall be responsible for compliance with City's graffiti abatement program within the premises, consistent with its implementation of the same program at comparable City facilities. 3. The public pathway and corridor, the subject of this Agreement, may be patrolled by City personnel and ranger services under contract with City and/or volunteers supervised by City. 4. City shall be responsible for the removal and replacement of recreational improvements installed by the City in the event District is required to improve Stevens Creek in any manner for flood protection purposes. District shall involve City in preconstruction planning, as described in Section 6, in the event a District flood control project is needed, to minimize District's project impact on City's improvements to the premises. @ illHP W RE1734j 1 of 5 <.. - S. Damage occurring to City's structures or paving by reason of District's reasonable and lawful maintenance or other activity or by reason of natural forces will not be the responsibility of the District to repair or restore. 6. City and District shall meet whenever necessary for the purpose of scheduling routine maintenance including but not limited to: Maintenance issues related to improvements; Method and timing of issues related to affected wildlife; Nonemergency work requiring the use of heavy equipment, barricading, and/or restricting access to the premises. District and City further agree to notify one another's designated representative as required prior to commencement of such work, in order to minimize public impacts. In an emergency situation, District shall have rights provided in Paragraph 13 without consulting City. 7. City will encourage volunteer groups to participate in District's'" Adopt-A-Creek" program. 8. Native plants selected by a licensed landscape architect with native habitat experience should be used for revegetation purposes. 9. Construction work during spring nesting season will be avoided whenever possible. The parties acknowledge that the spring nesting season occurs between February 1 and July 1. If construction must be done during the nesting season, a suryey by a qualified biologist will be undertaken to determine the presence of nesting. If no nesting activity is reported, then the work may proceed. If nesting activity is reported, the biologist is expected to recommend the implementation of adequate mitigation measures. Environmental impact shall be conSidered prior to all work. 10. The parties shall cooperate to create and install signage which benefits tJ.'1e prograt"1ls of each party such as warnings, entrance signage, interpretive signs,. and joint uses when applicable. The General Manager of the District and the Director of the Parks and Recreation Department of the City or their designees shall meet and confer on a periodic basis to plan and install appropriate signage which serves the needs of both parties. 11. This Agreement shall be for a period of twenty-five (25) years beginning on the date. it is approved by the District Board of Directors. This Agreement may be terminated by either party upon ninety (90) days prior written notice to the other. Notice of intent to terminate may be given by Director of Public Works for City. Notice of intent to terminate may be given by the General Manager of District for the District. RE 1734j 2 of 5 <" - - 12. City shall have the full control and authority, for purposes of this Agreement, over the use of the premises, and City may restrict, or control, regulate and supervise the public use thereof. City may, in its uncontrolled discretion (but consistent with the right of District hereinafter described, and without substantial or hazardous diminution of the flood control or conservation function of the premises as now existing or as may hereafter be altered), take any measures of every kind as may in the opinion of City be necessary for the safety of the users of the premises for any lease purpose. Further, City shall have the sole responsibility for the maintenance in usable and safe condition of every facility provided upon the premises for purposes of this Agreement. 13. District shall have the sole responsibility to maintain Stevens Creek for flood control and water conservation purposes, to repair and reconstruct the same where necessary for 'such purposes and to perform such periodic maintenance as may be appropriate to such purposes, including removal of silt, debris, and obstructive growth. It is expressly 1,J.Ilderstood that District is engaged in flood control and the conservation of water and that the terms and conditions of this Agreement shall not in any way interfere with the absolute, free and unrestricted right of District to operate and maintain for flood control and water conservation purposes the stream bed and banks or any appurtenant works thereto, or to repair or construct any of its works, or to raise or lower the height of the water present upon the premises; and it is further understood that nothing herein contained shall be construed as conferring a right upon City to have or a duty upon District to provide water upon the premises at any time. Damage to District's facilities arising from use of the premises under this Agreement shall be the responsibility of City . 14. It is also expressly understood by City that the level of water upon the premises may fluctuate from day to day due to controlled or uncontrolled flows upon and across the same, and that such fluctuations may require greater control over the use of the premises by City and the public; provided, however, that City shall be responsible for informing itself thereof and of all other conditions of the premises whether open or covered which may in anywise affect the health and safety of the users of the premises hereunder. 15(a). City shall have the right to build any improvements on the premises necessary, or convenient to the enjoyment of this Agreement, provided the location of <UlY such improvement is, in each case during the term of this Agreement, fIrst approved by District and signifIed by issuance of a District permit. It is fully understood and agreed that District's basis of approval or disapproval of improvements is its responsibility to insure that the same shall not constitute an obstruction to flood flows and shall not interfere with the use of the premises for flood control or water conservation purposes, and does not in anywise extend to consideration of the health and safety of users of the premises, which latter consideration is the responsibility of City. (b). Improvements built by City on the premises shall remain the property of City and upon the termination of this Agreement shall be removed by City, leaving the premises in a condition as near as reasonably possible to their condition prior to such improvements. If District, in the interest of health and safety and in the exercise of lawful powers, requires that such an improvement must be removed or relocated, the same shall be done at City's expense upon reasonable notice from District. RE1734j 3 of 5 - 16( a). City shall assume the defense of, indemnify and hold hannless, District, its officers, agents, and employees from all claims, liability, loss, damage, and injury of any kind, nature, or description directly or indirectly arising during the initial term of this Agreement, or any renewal thereof, and resulting from the public use of the premises pursuant hereto or from public use of adjacent premises of District occurring in consequence of City's or the public's use of the premises or from acts, omissions, or activities of City's officers, agents, employees, or independent contractors employed by City, excepting claims, liability, loss, damage, or injury which arise from the willful or negligent acts, omissions, or activities of an officer, agent, or employee of District. This Agreement to defend, indemnify, and hold harmless shall operate irrespective of whether negligence is the basis of the claim, liability, loss, damage, or injury and irrespective of whether the act, omission, or activity is merely a condition rather than it cause. (b). District shall assume the defense of, indemnify, and hold harmless, City, its officers, agents, and employees from all claims, liability, loss, damage, and injury of any kind, nature or description directly or indirectly arising from District's exercise of its flood control or water conservation purposes on the premises pursuant hereto or from acts,omissions, or activities of District's officers, agents, employees, or independent contractors employed by District excepting claims, liability, loss, damage, or injury which arises from the willful or negligent acts, omissions or activities of an officer, agent, or employee of City. This agreement to defend, indemnify, and hold harmless shall operate irrespective of whether negligence is the basis of the claim, liability, loss, damage, or injury, and irrespective of whether the act, omission, or activity is merely a condition rather than a cause. 17. Any and all notices required to be given hereunder shall be deemed to have been delivered upon deposit in the United States mail, postage prepaid, addressed to either of the parties at the address hereinafter specified or as later amended by either party in writing: City District City of Cupertino 10300 Torre Avenue Cupertino, CA 95104 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118 18. . This Agreement, and all the terms, covenants, and conditions hereof, shall apply to and bind the successors and assigns of the respective parties hereto; provided, that City shall neither assign nor sublet this Agreement without prior written consent of District. RE1734j 4 of 5 - - WITNESS THE EXECUTION HEREOF the day. and year first hereinabove set forth. SANTA CLARA VALLEY WATER DISTRICT , a public corporation BY~~ "City" . Mayor, City of Cupertino of Directors ... strict" ATTEST: ATTEST: c~~~ , aId OfD~ {rt:! APPROVED AS TO FORM: RE1734j 5 of 5