03-031 Joint Use Regnart Creek Trail/SCVWD5750 ALMADEN EXPWY
SAN JOSE, CA 951 1 8361 4
TELEPHONE (4081 265-2600
FACSIMILE (408) 266-0271
www.valleywater.org
AN EQUAL OPPORTUNITY EMPLOYER
PUl~~.I~ t~i~~~S
March 4, 2003
Ms. Carmen Lynaugh
Department of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Subject: Joint Use Agreement for Regnart Creek, Cupertino (File No. 2017)
Dear Ms. Lynaugh:
Please find enclosed three signed copies of the .loint Use Agreement between the Santa Clara
Valley Water District and the City of Cupertino. Please have the appropriate persons attest and
sign the three copies and return two fully executed copies to Rahn Springer at the water district.
Please note that the signature line for the Mayor of Cupertino will have to be revised to read the
current Mayor.
Thank you for your assistance in this matter. If you have any questions, please contact Rahn
Springer at 265-2607, Ext. 3054 or e-mail him at t•sprin er(a,valleywater.org.
Sincerely,
.~~~
Elizabet .Ellis
Deputy ClerkBoard of Directors
Encls.
The mission of the Santa Clara Valley Water District is a healthy, safe and enhanced quality of living in Santa Clara County ~,
through the comprehensive management of water resources in a pra ~tical, costeffective and environmentally sensitive manner. ~~
File: City of Cupertino
X-File: 2017
JOINT USE AGREEMENT
SANTA CLARA VALLEY WATER DISTRICT, a public corporation, hereinafter referred to as
"District;" and the City of Cupertino, hereinafter referred to as "City;" AGREE this 18th day
Of February, 2003 , as fOIIOwS:
RECITALS:
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 California Department of Water Resources,
the U.S. Army Corps of Engineers, and i:he California Department of Fish and Game,
agree to use the Premises for nonvehicular (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 the following terms and conditions:
AGREEMENT:
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, Cite shall provide and maintain recycling and
garbage receptacles for public use, and provide for adequate waste removal service
with respect to City-owned improvemeni:s. 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 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. District shall have no obligation whatsoever to provide or pay for
such services.
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4. City must remove and if it so chooses, rE~place recreational improvements installed by
the City in the event District is required i:o improve, maintain or repair Regnart Creek
in any manner for District purpose's. District shall inform City in preconstruction
planning, as described in Paragraph 7, in the event a District flood control project is
needed, to minimize District's project im~~act on City's improvements to the Premises.
5. Damage to District's or City's facilities arising from public use of the Premises under
this Agreement shall be the responsibilit~i of City.
6. City and District staff shall meet whene~rer necessary for the purpose of scheduling
routine maintenance, including, but not liirlited 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 imp~~cts.
• The requirements of this section do not apply in emergency situations.
7. In non-emergency situations, City and District staff shall meet whenever necessary
for the purpose of scheduling routine maintenance, including, but not limited to:
(a) Maintenance issues related to improvements;
(b) 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's designated representativE~ as required prior to commencement of such
work, in order to minimize public imE~acts;
City shall bear the cost and expense ~~f any security, police or other expenditure
necessary to temporarily prohibit or control public access to the Premises, which
expenditure District would not ordinarily incur in order to complete scheduled routine
maintenance pursuant to this provision.
Damage occurring to City's structures or paving by reason of District's non-negligent
maintenance or other activity during scheduled routine maintenance pursuant to this
provision, or by reason of natural forces, will not be the responsibility of District to
repair or restore. All such costs for such repair or restoration are to be born by City.
In emergency situations, District shall respond without notice or a requirement to meet
or consult with City. City's inform~ition will be available through community
emergency response systems which are ~~ot the subject of this Agreement.
8. Native plants selected by a licensed landscape architect with native habitat
experience should be used for revegetati~~n purposes.
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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 survey by a
qualified biologist will be undertaken tc determine the presence of nesting. If no
nesting activity is reported, then the worN; may proceed. If nesting activity is reported,
the biologist is expected to recommend the implementation of adequate mitigation
measures. Environmental impact shall ~~e 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 <~nd safely regulations including the federal
Migratory Bird Act of 1918 and any amernJments thereto.
10. The parties shall cooperate to create arn~ install signage which benefits the programs
of each party such as warnings, entrance signage, interpretive signs and benches,
and joint uses when applicable. The Chief Executive Officer of the District and the
Director of Public 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 develoF>ed 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 be the responsibility of eitf~er the District or the City, according to which
entity has installed the improvements.
11. This Agreement shall be for a period of thirty (30) 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 ninc;ty (90) days prior to the termination date,
renew this Agreement for a like period u~~on the same terms and conditions. This
Agreement may be terminated by eithE:r 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 tl~e District.
12. Subject to the conditions and restrictions contained in this Agreement, City shall have
the full control and authority, for purpo;~es 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 discretion but clmsistent 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. 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 Regnart 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
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growth. It is expressly understood 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 containr:d 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. In emergency situations, District will not be liable for damage to City
improvements, structures, paving or facilities. Repair or restoration of such damage
shall be in the discretion of and at the expense of City. It is also expressly understood
by City that the level of water upon the P~emises 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 u:~e 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. Not withstanding the
above, District shall make reasonable efi~orts to notify City in advance of any unusual
flooding occurrences.
(a). City shall have the right to k~uild any improvements on the Premises
necessary, or convenient to the enjoyment of this Agreement, provided the location of
any such improvement is, in each case during the term of this Agreement, first
approved by District and signified by issu~~nce of a District permit. It is fully understood
and agreed that District's basis of appro~ial or disapproval of improvements is limited
to its responsibility to insure that the sarrle shall not constitute an obstruction to flood
flows and shall not interfere with the us~~ of the Premises for flood control or water
conservation purposes, and does not in ~~nywise extend to consideration of the health
and safety of users of the Premises, whi~~h latter consideration is the responsibility of
City.
(b.) Improvements built by City on th~~ 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, reasonably requires that such an improvement must be
removed or relocated, the same shall k;e done at City's expense upon reasonable
notice from 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 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.
Except as described above, This Agreement to defend, indemnify, and hold harmless
the District shall operate irrespective of tl~e basis of the claim, liability, loss, damage,
or injury and irrespective of whether thE~ act, omission, or activity is a condition of
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premises or any other cause of any kind r~r nature.
(d.) 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 excep1:ing 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. Except as described above, This agreement to defend,
indemnify, and hold harmless shall opE~rate irrespective of the basis of the claim,
liability, loss, damage, or injury, and irrespective of whether the act, omission, or
activity is a condition of premises or any c>ther cause of any kind or nature.
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 Santa Clara Valley Water District
10300 Torre Avenue 5750 Almaden Expressway
Cupertino, CA 95014 San Jose, California 95118
Attention: Director of Public Works 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 respective parties hereto; provided, that
City shall neither assign nor sublet this Agreement without prior written consent of
District.
This agreement includes any and all exhibits, covenants, agreements, conditions, and
understandings between City and District concerning the Premises. There are no
covenants, agreements, conditions, or understandings, either oral or written, between
the parties hereto other than herein set forth.
WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth.
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