File #1029-99 SCV Water District - Joint Use Agreement
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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.
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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.
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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.
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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.
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