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99-129 Santa Clara Valley Water District – joint use agreement, Stevens Creek joint use area • • y�CY/ File: 1029-99 � I • JOINT USE AGREEMENT SANTA CLARA VALLEY 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 (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 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 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: 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. orig REI734j 1 of 5 J. 5. 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 survey 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 the programs 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. RE1734j 2 of 5 16(a). 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. 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. (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 Santa Clara Valley Water District 10300 Torre Avenue 5750 Almaden Expressway Cupertino, CA 95104 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: 6(litiCBy: - 7- • "City" Chair/Bo4 of Directors Mayor, City of Cupertino " D stlict" ATTEST: ATTEST: � ' / ( 4' d0 City Clerk Cler ard of Directors l �� APPROV 4 AS TO `O t4 APPROVED AS TO FORM: City Attorney ' ' Ge eral .unsel RE1734j 5 of 5 L J _ I — STa _ CREE. 11 'C =I 1 , . I` LW— _.) _I s ��. a a / � sow_ L a 1 (—' �Saoc0 I > Gm I 1 1 I// / r?-1 )I / I, °w Mr r� AN td 1 r 1 1 Il 1 1 ` I-____ Ji e I i = Ce J I i I ' �i \ // SITE m 1 j / m 1 I 1 I h I U fljHt —;r 71-7-1;4I I C Ys E ! LI 1 :1-1 HI 1. I I 4 1 irx, 11 �- pi Iaor ( -'- 7 j .O -_ —� III I 1 1 ,• MC CLRLLAN RD àjra1Aii4. II 1ei SUBJECT al IN • • AP 357-13-036 r ( 41. T$PIø*1 i1, 1„ —) IIIIIIIIIIII , a w 1 7-rvATa ivrSrn�DR_ -- ,� '' f 11 11 11 1 11 ? III , ;_ Irte- ,N , I , I Ii 1 1 'E I I i ' ' i--J Stevens Creek S SaritCiZ ! .Hey 'H , -_ _1 Joint Use Area / r i \� with the ` e \` 1 I —v City of Cupertino ` c L r"` \ �,,,�� Lands of SCVWD L r� A � ,