04-133 Joint Use agreement with Santa Clara Valley Water District File: City of Cupertino
X-File: 2017-40
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JOINT USE AGREEMENT ��F?gY r� i�>�s. °�¢' two �*
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SANTA CLARA VALLEY WATER,D er
ISTRICT, a public corporation, h ..�einafter referred to as �.,
District;" and the City::af Cu;pertrn hereinafter referred:to as "City;" AGREE phis . h day v C>
of ,January.; .2ao4 _, as follows:,
RECITALS:
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A. District is the owner of certain real property (hereinafter "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 Ca:Jafo.rnia D parfrnent ofi`U1/ater Resources,
the U S Arm.Corps:�of E'tgineers ancf the Caa�farnia Department,pf Fish:and.Game;
agree to use the Premises for nonvehic;ular (except for maintenance, emergency, and
enforcement vehicles) and recreational purposes and for flood control and water
conservation purposes.
D. City has ascertained that adequate funds have been appropriated to construct and
operate its proposed facilities on the Premises and that adequate funds have been
appropriated to meet all of its obligations contained in this agreement.
E. The parties find it.to be in the public interest to"provide for joint use of the Premises by
means of an Agreement.thereof under following terms and conditions:
AGREEMENT:
1. District shall and does hereby grant permission to City to use the Premises for the
following purpose or purposes and subject to the.following special restrictions:
Bicycle and pedestrian access
2. Except for District-owned facilities, City shall provide and maintain recycling and
garbage receptacles for public use, and provide for adequate waste removal service
with respect to City-owned improvements. City shall also provide graffiti removal in
compliance. with ..City's graffiti abatement program, including graffiti removal from
signs installed in conjunction with and/or accessory to the establishment of a public
park and pathway consistent with its implementation of the same program at
comparable City facilities.
3. The public.pathy`a and corridor, the :subject of this Agreement, may be patrolled by
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City personnel and ranger services under contract with City and/or volunteers
supervised by City. District shall have no obligation whatsoever to provide or pay for
such services.
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' . City nuetrerno and ifitso ohooees, replace recrea[ '.al improvements installed by
the
City in the nt District 'is required to improve, maintain or repair Regnart Creek
in any manner for District purpose's. District shall inform City in pre-construcLion
planning, as described in Paragraph 7, in the event a District flood control project is
needed, to minimize District's pr 'eot1rnpaot on City's improvements to the Premises.
` 5. _ Darnage to District's or City's facili.ties arising from public use ofthe pnsrniaeo under
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8. City and District staff shall meet,when necesse�.for' 'the purpose of schedu,ling
routine nnaint8nanoe, inc1udingi but not limited to.:
w Maintenance issues related toimprovements:
m Method and timing of issues related to affeo1-d wildlife-
a Non-emergency work requiring the use of heavy equipment, barricading, and/or
restricting access to the Pnsrnisa;s. [)isbic± and City further agree to notify one
another'g desdgnated representative as requi[ed prior to commencement.of such
work, inorder to minimize pubU� impacts.
The requirements of this section do not apply in emerge ,s}tuatone. �
7. |n non-emergency situotiono. City and District staff shall meet whenever necessary
for the purpose of scheduling routine rnaintenonce, incJuding, but not limited to.
/�) y�ainten�noeksoueo na|�tedtoin�prov�rn�nts�
(_) Method and timing of issues related to affected wildlife;
(c) Non-emergency work requiring the use of heavy equipment, barricading, and/or
restricting access to the Premises. District and City further agree to notify one
another`o designated representative as naquihad prior to commencement of such
vvork, in-ordorto minimize public impacts,
oth� x CKv shall bear the cost an d expense of any �ecu htv, police or � ' o ditu
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necessary to temporarily prohibit or control public access to the Pnarnisos, which
expenditure District would not ordinarily incur in order to complete scheduled routine maintenance pursuontto this provision.
Damage occurring to City's structures or paving by reason of District's non-negligent
maintenance or otheraotivitv during scheduled routine maintenance pursuant to this
provision, or by reason of natural forces, vvi|| not be the responsibility of District to
repair or reutore. AU such costs for such repair or restoration are to be born by City,
In emergency situations, District shall respond without noLlce or a requirement to meet
or consult with C1ty. City's information will be available throuQh community
emergency response sys1erns, m/hioh are not the subject ofthis Agreement-
8. Native plants selected by a licensed landscape atrchdeot with native habitat
experience'should be used for nsvegetation purposes.
8. 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 sesaon, a survey bye
qualified biologist will be undertaken 10 determine the presence of nesting. If no
nesting activity is reported, then the work may proceed, If nesting activity is reported'
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the biologist is -oected to recommend the implem( ation of adequate mitigation
measures. Env,.)nmental impact shall be considered prior to all work. Any and all
work related to this clause shall be completed in accordance with applicable federal,
state, and local environmental health. and safely.... regulations including the federal
Migratory'bird Act of 1918 and.any amendments thereto.
Z0. The parties shall cooperate to create and install sigriage,which benefits the programs
of each party such as warnings, entrance s:ignage;. interpretive signs= and benches,
and joint uses when applicable. The Chief Executive Officer,of the District and the
Director of Pubiic Works 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.
All signs excepting existing ones or publications that identify the facility (e.g, park,
trail) by name should include the District's' logo in equal size and symmetric
relationship to -any other logos. All signs or publications that are intended to interpret
the water resources should be developed in cooperation with the District's Public
Information Office and should also include the District's logo in' equal size and
symmetric relationship to any other logos. Maintenance responsibility for signage and
benches shall b'e the responsibility of either the District or the City,.according to which
entity has installed the improvements.
11. This Agreement shall be for a period of f3p'{thi.rty) years;;beginning:. on the date it
is approved by the District Board of Directors. City may, upon written notice to District
of intent to do so, given not less than ninety (90) days prior to the termination date,
renew this Agreement for a Like period upon the same terms and conditions. This
Agreement may be terminated by either party upon ninety (90) days prior written
notice to the other. Notice of intent to renew or to terminate may be given by the
City's Director of Public Works for City. Notice of intent to terminate may be given by
the District's Chief Executive Officer for the District.
Agreement.-.. Ci shall have
12 Subject to, the conditions°.and restrictions contained. in this ,�gree� of the
the full control and authority,, for purptases of fihrs Agreement; over the use
Premises, and City
(nay restrict, or control, regulate and supervise the public use
thereof. City may, in its discretion but consistent with the right of District hereinafter
described, and without diminution of the flood control or conservation function or
hazard thereto 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. r urther, 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. Rcpart Creek for flood control and.
water conservation. purposes, to repair and reconstruct the same where necessary for such
u oses and io Perform such periodic: maintenance as may by appropriate to such.
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purposes.. including removal of silt, debris, and obstructive growth. It is expressly
understood that District is engaged in flood control and the conservation or water and.that
the terms.and conditions of this Agreement.shall not in any��-ay'interfere with the absolute,
free and unrestricted. right off' District to operate and ma.intai.n. for flood control and water.
conservation purposes the strearn bed and banks or an), appurtenant works thereto, or to
repair or construct any of its works, or to raise or lower the heir, of' t17e water pres°
upon. the Premises; and it is further understood that noel-i gg herein contained shall be
construed as conferring a right upon City, to' halve, or a duty- upon District to provide, water
upon the Premises at. and- time. In em,orgency situations. District will not 'be liable for
dina ,e to City i�n.provements, structures, paving or'facilities. Repair or restoration of such
damage shall be in the discretion of and ai the expense of City. It is also expressi)J
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understood.by C' ghat the level of water upon the Premi n? )J fluctuate from.day to day
due to c.ontrolle., !or. uncontrolled flows upon -and across the same, and that such
fluctuations may require greater control o,,,,er the use of the Premises by City and the
public; proTided, ho,Never, that Ci.iy shall be responsible for informing itself thereof and of
all other conditions of the Premises whether open or co-�,-ered-,,vh.i:ch may in anrv.ise affect
the health and safety of the users of file Premises hereunder. Not vvitllstandin.g the
a.boN,e. District shall make reasonable efforts to notify City in advance of any unusual
flooding occurrences.
(a). City shall have the right to build. any improvements on the Premises necessary, or
convenient to the enjoyment of the s A.2,Teernent, providcd tl1.e location of any such
improvement i-s, in each case during the term.of tills Agreement. first apprb� d by District
and signif ed b)1 issuance of a.District permit. It is fully u?d.erstood and agreed that
District's Basis of approval or disapproval.of improvements is limited to its responsibility
to insure that the same shall not constitute an obstruction to flood flows and shall not
late.,.fere with the use of the Prerru s for i7ood control or water consenrati.on purposes, and
d.oeS not in any-wise 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 Cin- on the Premises shall remain the property of City and
upon the term.ir.ation of this Agreement slaall be removed by City, leaving the Premises in
a condition as near as reasonably possible to their conditir�n pt-ior to such improj-ements. If
District, reasonably requires that such an improvement must be removed or relocated, the
same shall be done at City's expense upon reasonable noti. e fr6m District.
(c). City shall assume the defense of., indemnify,and hold harmless., District; its officers,
agents, and employees from all claims, liability, loss, damage, and injury of any kind,
nature, or description directly or ill.d.i.rect.ly arising during the initial terra of this
Agreeznent, or any renewal thereof. and resulting from the public use of the Premises
pursuant here-to or from public use of adjacent. Premises of District occurring in .
consequence of City's or tla.e public's use of the Premises or from. acts, omissions, or
activities of City's officers, agents, employees, or independent contractors employed
by ;it��, ex.cepti,�g claims.; :liabi.lity, loss, d.ainage, or injury which arise from the wi.11fdl
or r�eligent acts, omissions, or activities of an officer, agei?t,. or employee of District..
Except as described above; This Agreement to defend; indemnify, and hold harmless
the District shall op late irrespective of the basis of the claim, liability, loss, damage,
or injun, and irresp,ctive of v,,he.ther the act, omission, or activity is a condition of
premises or any other cause of any kind or nature.
(d). District shall assume t1?e defense, of, .indemnify, and 11old harmless, CAI, its '
officers, agents, aI?d. employees from all claims, liability, loss, dw.nage, and injury of any
kind, nature or description directly or in 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
con?tractors cznployed by District excepting claims, ]...I*,ability, loss, damage, or injury which
arises from the rvill;�il or negligent acts, onl.issi.ons or acti�,iti,i✓s of an officer, agent, or
emplo)eee of City. Except as described above.This agreement to defend. indemnity,
and.hold harl.-1?.less s1�a11 operate irrespective of the basis of the claim; liability, loss,
damage, or injia.ry, and irrespective of whether the act,'omission, or activity is a condition
Of premises or any other cause of any kind or nature. Any and all notices requn.red to be
given hereunder shall be deemed to have
been delivered upon deposit u?The United S.tates
mail, postage prepaid, addressed, to either of the parties at.the address hereinafter specified
or as later amended by either part},in v�lriting:
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city Disti-ict
City Of Cupertino Santa Clara.galley Water District
1030 Tome Avenue .-750 Almaden Expressway
Cupertino, C4 95014 ;pan.Jose,"California 95118
Attention:,Director of Public Work..s Attention: Clerk of the Board
This agreement, and all 'the terms., covenants; and conditions hereof, shall apply to and
bind the successors and assigns of the re:,pective patties hereto; provided, that City shall.
neither assign nor sublet this a g-eemen_t WithOut prior vvntten consent of District. '
This a.greem.ent includes any and all exhibits, covenants, agreernents, conditions, and
understandings between City and District- concerrdng the Premises. There are no
covenants, ac-rreements, conditions, or understandings, either oral or written, between the
parties hereto other than herein set forth.,
'WTI'NESS THE EXECUTION FIEREOF;f_he day and year first hereinabove set forth.
"District"'
CITY OF CUPERTINO SANTA CLARA VALLEY WATER
DISTRICT,
a public corporation
David W. Knapp Chain bard of Direct rs
City Manager.
ATTEST: �TTES :
City Clerk ,ter Board of Directors
APPR v dAS T APPROV D AS TO FORM:
Ci Attorna y General Counsel
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RESOLUTION NO. 03-228
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPER.TfN-0
AU't 11:0.RIZING E:'EC TTION OF A JOINT USE AGREEMENT WITH THE SANTA
C:LARA VALI-EY WATER DISTRICT FOR T11.173 R:EGNAPIT CP1 :1 EKl I'R.11IL
WHEREAS, a Joint Use Agreement with the Santa Clara Valley Water District is
necessary because the:Regn.art Creel. Trail passes over land owned by the:District; and
WTfEREAS said azrreement Nvi:l.l-allow for the use of•the land for tricycle and pedestrian
access,
NOW', THEREFORE, BE IT RESOLVED that the City Car In of the City of Cupertino
Hereby authorizes the City Manager to negotiate and execute a Joint Use Agreement for bicycle
and pedestrian access of the R.egnart Cre°k.Trail on behalf of the City of Cupertino.
PASSED AND ADOPTED at a ,reaul.ar meeting of the City Council. of the City of
Cupertino tlus 1.5" day of December, 2003, by the following vote:
Vote ,Members of the City Council THIS Is TO .CERTIFY THAT.THE WITHIN
-- INSTRUMENT IS A'TRUEr At-m CORRECT COPY
OF THE ORIGINAL ON,FIL•E.IN THIS OFFICE.
AYES: James,Kwok, Lowenthal., Sandoval, Wang p
None ATTEST ...�`
NOES: l�on `.�...'
CITY CLERK CIF-THE'Cl7Y CIF'CUP X.
ABSENT: None •--�
ABSTA.I.N: None BY ,f
'r-CITY CLERK
ATTEST: APPROVED:
Is!Kimberly Slnith 7s' Sandra James
C i Clerk Mayor, City of Cupertino
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