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HomeMy WebLinkAboutSCVWD - Joint Use Agreement for Camino Arroyo Bridge Project SCVWD ENACTED COpy Contract Admil1is~r::1tiofi Unit . A'1lliL1____.. FlU":; ~, '3')"f> "'" _.---~._--.. File: City of Gilroy X-File: 5015-7, 5031-4 and -50 JOINT USE AGREEMENT For West Branch Llagas Creek In Vicinity of Camino Arroyo Bridge SANT A CLARA V ALLEY WATER DISTRICT, a public entity, hereinafter referred to a " istrict;" and the City of GILROY, hereinafter referred to as "City;" AGREE this VJfuday of (f; 2008, as follows: WITNESSETH: RECITALS: A. District is the owner of certain real property (hereinafter "the Premises"), described on "Exhibit A" attached 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 recognize that the Premises was acquired by the District for a flood protection project along West Branch Llagas Creek and any improvements installed by the City are subject to relocation and/or removal by City when improvement or maintenance of the flood protection project requires such relocation or removal as determined by the District. D. District activities to provide and maintain flood protection, water resource protection, and stream stewardship must not be hindered by use of the Premises by the City. E. City has funds to construct and operate its proposed facilities on the Premises, and funds have been appropriated for the current fiscal year to meet all of its obligations contained in this agreement. F. The parties find it to be in the public interest to provide for joint use of the Premises by means of an Agreement therefor under the following terms and conditions: AGREEMENT: City and District, agree to use the Premises for non-vehicular (except for maintenance, emergency, and enforcement vehicles) recreational purposes, for flood protection and water resource protection purposes under the following provisions: 1. District hereby grants permission to City to use the Premises for the following purpose or purposes and subject to the following special restrictions: Purposes . Park and Recreational Uses open to the public including walking, bicycle riding and nature study. Page 1 of 6 . Construction and placement of facilities, improvements and fixtures (such as signs and benches) to facilitate trail purposes that do not hinder District vehicles, District maintenance, flood flows, or the integrity or physical aspect of the District's facility. City may install, as approved by District permit, pavement, landscaping, and fencing. . Maintenance and repair of any facilities, improvements and fixtures constructed by the City. Special Restrictions . City will restrict public entry to the Premises to daylight hours. . Prohibited uses include swimming, boating, rafting and fires. Dogs (except on leash), or other domestic animals are prohibited from the Premises. City shall assume responsibility to restrict and control such uses. . City will not erect or provide picnicking facilities of any kind upon the Premises. . The construction and placement of facilities, improvements and fixtures are subject to the issuance of a District encroachment permit. Upon completion of construction and placement of facilities upon Premises, City will provide a manual that identifies the frequency and specific protocol for City maintenance and operation activities on the Premises. 2. City will provide and maintain recycling and garbage receptacles for public use, and provide for adequate waste removal service. City will provide for trash removal along the trail and on the Premises that may have been generated from trail users. City may encourage volunteer groups to participate in District's "Adopt-A-Creek" program. 3. City will 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 trail consistent with its implementation of the same program at comparable City facilities. 4. The Premises, 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 has no obligation whatsoever to provide or pay for such services. 5. City must remove and, if it so chooses, replace recreational improvements installed by the City if necessary for the improvement, modification, maintenance or repair of West Branch Llagas Creek in any manner for District purposes. District will inform City in preconstruction planning, as described in Paragraph 8, in the event a District flood project is needed, to minimize District's project impact on City's improvements to the extent feasible. 6. City and District recognize the unique nature of the resources and recreational uses covered by this agreement and the beneficial effects to both parties of providing these resources to the public. City and District resolve to utilize their respective offices to mutually support the efforts of each other to deliver such services to the public. City and District further agree to cooperate in order to resolve disputes and assist each other in responding to public inquiries arising from the activities of either party. 7. Damage to District's or City's facilities arising from public use of the Premises under this Agreement will be the responsibility of the City. District will continue to perform routine maintenance of the Premises for flood protection purposes in a manner consistent with its maintenance of comparable facilities or creeks. Page 2 of 6 8. In non-emergency situations, City and District staff will 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; . 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 at least ten (10) work days prior to commencement of such work, in order to minimize public impacts. City will bear the cost and expense of any security, police or other expenditure necessary to temporarily prohibit or control public access to the Premises that the District would not ordinarily incur to complete scheduled routine maintenance pursuant to this provision. Damage to District's or City's facilities arising from use of the Premises under this Agreement will be the responsibility of City. Damage occurring to City's trail improvement or structures by reason of District's non-negligent maintenance or other activity during routine maintenance or by reason of natural forces will not be the responsibility of the District to repair or restore. All costs for such repair or restoration are to be borne by City. In an emergency situation, District will respond without notice or precondition to meet or consult with City. 9. Construction work during spring nesting season will be avoided whenever possible. The parties acknowledge that the spring nesting season occurs between February I and July 15. 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 and the City to implement adequate mitigation measures to protect the nesting area. Environmental impact will be considered prior to all work. Any and all work related to this clause will be completed in accordance with applicable federal, state, and local environmental health and safety regulations including the federal Migratory Bird Act of 1918, Clean Water Act, Endangered Species Act, the California Fish and Game Code and the Porter-Cologne Act and any amendments thereto. 10. The parties will cooperate to create and install signage which benefits the programs of each party such as warnings, entrance signage, interpretive signs and benches, and joint uses when applicable. The Deputy Operating Officer of the District and City Engineer of the City or their designees will meet and confer on a periodic basis to plan and install appropriate signage which serves the needs of both parties. All signs placed on the Premises by City, excepting existing ones, or publications that identify the facility (e.g. park, trail) by name will include the District's logo in equal size and symmetric relationship to any other logos. All signs or publications placed by the City that are intended to interpret the water resources should be developed in cooperation with the District's Watershed Customer Relations and will include the District's logo in equal size and symmetric relationship to any other logos. Maintenance responsibility for signage and benches will be the responsibility of either the District or the City, according to which entity has installed the improvements. Page 3 of 6 11. This Agreement will be for a period of twenty-five (25) 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 City's intent to renew or to terminate may be given by the City's City Manager. Notice of intent to terminate may be given by the District's CEO for the District. It is understood and agreed that at District's sole discretion, this agreement may be superseded and incorporated into any future joint use agreement or lease arrangement with the City along West Branch Llagas Creek. 12. Subject to the conditions and restrictions contained in this agreement, City has the full control and authority, for public or recreation purposes over the public use of the Premises, and City may restrict, or control, regulate and/or supervise the public use thereof. City may, at its discretion consistent with the right of District hereinafter described, and without diminution of the flood protection or water resource protection 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 purpose under this Agreement. City has the sole responsibility for the maintenance in usable and safe condition of every facility provided upon the Premises by City. 13. It is expressly understood that District is engaged in flood protection and the protection of water resources and that the terms and conditions of this Agreement will not in any way interfere with the absolute, free, and unrestricted right of District to operate and maintain for flood protection and water resource protection purposes the stream bed and banks or any appurtenant works thereto, or to repair or construct any of its works, or to allow the raising or lowering of the height of the water present upon the Premises; and it is further understood that nothing herein contained will be construed as conferring a right upon City to have or a duty upon District or provide water upon the Premises at any time. 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. City is responsible for the control of or limiting the use of Premises because of flood flows or for any other reason. City is responsible for determining the conditions under which to exercise said control or limit the use of the Premises which may in any way affect the health and safety of the users of the Premises. 15. (a). City will have the right 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 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 will not constitute an obstruction to flood flows and will not interfere with the use of the Premises for District purposes, and does not in anywise extend to consideration of the health and safety of users ofthe Premises, which latter consideration is the responsibility of City, or to the advisability of such improvements. (b). Improvements built by City on the Premises will remain the property of City and upon the termination of this Agreement will be removed by City, leaving the Premises in a condition as near as reasonably possible to their condition prior to such improvements. If District requires that such an improvement must be removed or relocated, the same will be done at City's expense upon Page 4 of 6 reasonable notice from District. The parties understand and agree that such removal and relocation may require prior compliance with the provisions of the Califomia Environmental Quality Act. If removal or relocation of City improvements, including vegetation installed by City, requires mitigation under the California Environmental Quality Act, City will be responsible for all costs required to fulfill any required mitigation responsibilities. (c) Nothing in this Agreement, however, shall be deemed to bind the City to undertake any specific construction or other improvement on the Premises, except as may be necessary for the health and safety of users of the Premises. 16. (a). City will 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 arising during the initial term of this Agreement, or any renewal thereof, to the extent 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 ofthe 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 to the extent that such claims, liability, loss, damage and/or injury 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 the District will operate 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 other cause of any kind or nature. (b). District will 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 to the extent arising from District's exercise of its flood protection or water resource protection 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 to the extent that such claims, liability, loss, damage and/or injury arise 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 will operate 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 other cause of any kind or nature. 17. Any and all notices required to be given hereunder will 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: Page 5 of 6 City City of Gilroy Community Development Department 7351 Rosanna Street Gilroy, CA 95020 District Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118 Attention: Clerk of the Board 18. This agreement, and all the terms, covenants, and conditions hereof, will apply to and bind the successors and assigns of the respective parties hereto; provided, that either City or District will neither assign nor sublet this Agreement without prior written consent of the other. 19. 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 with the exception of District permits issued in accordance with Paragraph 15 (a). WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth. "City" CITY OF GILROY B~~ Thomas 1. Haglu City Administrator AT14~T: 1/ / b' . 'M.1ity Attorney "District" SANTA CLARA VALLEY WATER DISTRICT, a public entity /', ,,1': ._' (, <.L.. ' I ( . I I' /1. t. .... J--r' 1/ By: \ V,,:".j 1,/ Iv-c,l-....~_=f_)\i'-(..'" Olga M\trtin Steele Chief Ececutive Officer ATl;? ~ ;f~~ ~r Clerk/Board of Directors ]VED AS TO FORM: ~J.)'I-'~ De Cauble District Counsel Page 6 of 6 CITY TRAIL AND SCVWD MAINTENANCE ACCESS ROAD CAMINO ARROYO BRIDGE WEST BRANCH -"* LLAGAS CREEK SCVWD MAINTENANCE/~~ ACCESS -.---/ SCVWD FEE TITLE PROPERTY J PROPOSED CITY FEE TITLE PROPERTY WITH SCVWD EASEMENT o 50 100 - - 200 300 I FEET Santa Clara Valley Water District 0 5750 Almaden Expressway San Jose, CA 95118-3614 Camino Arroyo City Trail Joint Use Agreement EXHIBIT A