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CC Resolution No. 98-017RESOLUTION NO. 98-017 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF JOINT USE AGREEMENT BETWEEN THE SANTA CLARA VALLEY WATER DISTRICT AND THE CITY OF CUPERTINO IN CONJUNCTION WITH CREEKSIDE PARK WHEREAS, there has been presented to the City Council a Joint Use Agreement between the Santa Clara Valley Water District and the City of Cupertino in conjunction with the City's Creekside Park; and WHEREAS, the terms, conditions, and provisions of said Joint Use Agreement have been reviewed and approved by the Director of Public Works and the City Attorney. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the Joint Use Agreement and authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5th day of January, 1998, by the following vote: Vote Members of the City Council AYES: Burnett, Dean, James, Statton, Chang NOES: None ABSENT: None ABSTAIN: None ATTEST: Mayor, ~lt~) of"C'~uP'~° JOINT USE AGREEMENT File: Joint Use Regnart Creek City of Cupertino X-File: 2017-2 SANTA CLARA VALLEY WATER DISTRICT, a public corporation, hereinafter referred to as "District;" and CITY OF CUPERTINO, hereinafter referred to as "City;" AGREE this ~ day of , as follows: RECITALS: Ao 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. 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 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 enfomement vehicles) and recreational purposes as well as for flood control and water conservation purposes. Do The parties fred 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 City shall be responsible for compliance with City's graffiti abatement program within the premises. 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. City shall be responsible for the removal and replacement of recreational improvements installed by the City in the event District is required to improve Regnart or Calabazaa 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 public pathway and financial investments. District will not be liable for damage or claims of damage to City's improvements whether or not such damage or claims of damage result from, or are claimed to result from, lawful District operation upon or adjacent to or affect the premises, except where mutually agreed that damage is the result of District negligence. District or District's agents shall endeavor to not damage or destroy improvements made by City. RE1734e (11/1S/97) lof4 0~GINA[ 10. 11. 12. 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 of 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 12 without consulting City. City will encourage volunteer groups to participate in District's "Adopt-A-Creek" program. Native plants selected by a qualified landscape architect should be used for revegetation purposes by both City and District. Work during spring nesting season will be avoided except in emergencies. Environmental impact shall be considered prior to all work. 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 Public Works Department of the City or their designees shall meet and confer on a periodic basis to. plan and install appropriate signate which serves the needs of both parties. This Agreement shall be for a period of 30 years beginning on the date of this Agreement. 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. However, if there are deficiencies that can be corrected by City, District will not terminate this Agreement without giving City the opportunity to correct the deficiencies. Notice of intent to renew or 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. 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. RE1734e (11/18/97) 2 of 4 13. 14. 15(a). 16(a). District shall have the sole responsibility to maintain Regnart and Calabazas 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 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 apputfenant 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. 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. City shall have the fight to build 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. 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. 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. 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. 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 RE1734e (11/18/97) 3 of 4 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 95014 Attention: Director of Public Works 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. WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth. SANTA CLARA VALLEY WATER DISTRICT, a public corporation By: By: City" ATTEST: Chair/Board of Directors "District" ATI~EST: City Clerk APPROVED AS TO FORM: Clerk/Board of Directors APPROVED AS TO FORM: City Attorney General Counsel RE~734e (11/IS/97) 4 of 4 ~-~G~ul~ani & I[ull,,Inc. 2~31 ,Stevens Creek Blvd.. Suite 230 Cupedlno, CA 9~14 ~408) 257-8448 (,108) 257-~458 (Fax) PLAT OF 16' ACCESS EASEMENT FOR'BENEFIT OF THE CITY OF CUPE RTl N 0 OVER S.C.V.W.D. RIGHT-OF-WAY CUPE~RT INO . CALIFORNIA [DATE: 4-23-97 [~: 1"= 5Ct J, DF_.~IGNED: M. I'L j! J SHE=-r I OF 1 J'