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HomeMy WebLinkAboutSCVWD - Joint Use Agreement for Lions Creek at Terminus of Tapestry Drive SCVWD ENACTED COpy Contract Admin!z;tr3(ion Una AG\'l.!iT: A~297f..~ Fill'.:: 13.:I 3~J~ File: City of Gilroy X-File: 5039-23, -24 and -44 JOINT USE AGREEMENT For Lions Creek At Terminus of Tapestry Drive SANTA CLARA VALLEY WATER DISTRICT, a California special district, hereinafter referred to as "District;" and the City of GILROY, a California municipal corporation, hereinafter referred to as "City;" AGREE this a day of ,limp , 2009, 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 were acquired by the District for a flood protection project along Lions 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 or the Natural Resource Conservation Service ("NRCS"). 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. The Gilroy Unified School District ("GUSD") and the City have agreed to plans and specifications by which the GUSD has offered to build and dedicate, and the City will accept ownership of, a bridge and ancillary facilities on the Premises ("Bridge"). The City has the funds to operate its proposed Bridge on the Premises. Funds have been appropriated for the current fiscal year to meet all City obligations contained in this Agreement. F. City has included Premises in its Trails Master Plan as part of a future trail system along Lions Creek to expand recreational opportunities to its residents. City and District anticipate that, if funding and appropriate environmental approvals are obtained, the Premises will become a part of a larger recreational area along Lions Creek. G. 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: ORIGINAL O:\Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 10f7 AGREEMENT: City and District agree to use the Premises for the Bridge, flood protection and water resource protection purposes under the provisions set forth below. 1. (a.) City expects to enter into an improvement agreement that shall, among other things, set forth the terms of construction of Bridge improvements on the Premises, which terms will include the right of City to remove (or require removal of) Bridge improvements if Bridge is not accepted by the City (the "Improvement Agreement"). The Improvement Agreement shall require GUSD to ensure security of the Premises during construction and undertake graffiti removal and trash removal on the Premises prior to City's acceptance of the Bridge. In addition, the Improvement Agreement shall require GUSD to submit an initial schedule for completion of the Bridge, which schedule should require completion to take place prior to the end of 2009. Per the Improvement Agreement, GUSD shall also be required to meet and confer with the City and/or the District to discuss bridge construction upon request from either District or City. The District shall not issue a permit for the GUSD to construct the Bridge on the Premises unless and until the City and GUSD have entered into an Improvement Agreement that contains the conditions set forth herein. City will notify the District in writing within fifteen (15) business days after its acceptance of the Bridge from the GUSD. (b.) The parties agree that during the time of construction, and prior to City's acceptance, of the Bridge (or City's assumption of control of the Bridge as further described in paragraph l(e), below), City shall not maintain control over the day to day construction activities and safety of the Premises. Nevertheless, City shall indemnify and hold harmless District for damages that may be incurred by District during such construction as set forth in paragraph 17, below. City's responsibilities under paragraphs 3, 4, 5, 8, 13 and 15 related to Public Use of the Bridge Improvements and for any maintenance to the Premises shall not take effect until such time as City accepts GUSD's offer of dedication of the Bridge. (c.) If the GUSD does not complete, and City does not accept dedication of, the Bridge by October I, 2009, City and District shall request meet and confer with the GUSD to discuss progress in Bridge construction, any delays thereto, and outstanding items necessary for City to accept dedication of the Bridge. If desired by either party, the GUSD shall also be asked to propose a revised schedule for satisfactory completion of Bridge construction. Without prior written agreement of District, however, City shall not agree to a revised schedule that delays completion of Bridge construction beyond October 1, 2010 ("Outside Completion Date"). Unless the District otherwise agrees in writing, if the GUSD is unable or unwilling to complete Bridge construction by the Outside Completion Date, City shall assume control of the Premises and all improvements thereon and remove the Bridge within the earlier of (i) 180 days after City receives written notice from the GUSD that it will not complete Bridge construction by the Outside Completion Date, or (ii) April 1, 2011. City shall ensure that it secures a contractual right from GUSD in the Improvement Agreement to remove the Bridge if GUSD is unable or unwilling to complete Bridge construction by the Outside Completion Date. 2. District hereby grants permission to City to use the Premises for the following purpose or purposes and subject to the following special restrictions: Purposes . Construction and placement of a pedestrian bridge, pavement, lighting and fencing, primarily to provide community access to Christopher High School. City may construct 0:\ Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 2 of? facilities, improvements and fixtures (such as signs and benches), at City's discretion, to facilitate any existing or later-approved trail purposes. . Maintenance and repair of the Bridge and any other facilities, improvements and fixtures constructed by the City. Special Restrictions . No motorized vehicles (except for motorized wheelchairs) shall be permitted on the Premises except for those used for maintenance, emergency, and enforcement purposes. . Users of the Premises shall not be permitted to use the Bridge to enter into Lions Creek or to make any fires on the Premises. 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 on the Premises are subject to the issuance of a District encroachment permit. . City improvements shall not hinder District vehicles, District maintenance, flood flows, or the integrity or physical aspect of the District's facility. 3. City will provide for removal of trash that may have been generated by Bridge users on the Premises. City may encourage volunteer groups to participate in District's "Adopt-A-Creek" program. 4. City will provide graffiti removal from the Bridge or any other improvements on the Premises in compliance with City's graffiti abatement program. 5. The Premises 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. 6. City agrees that it will be responsible for the maintenance, removal and (at City's option) replacement of any Bridge improvements on the Premises. In addition, City must remove and, if it so chooses, replace any additional recreational improvements installed by the City if necessary for the improvement, modification, maintenance or repair of Lions Creek in any manner for District purposes. District will inform City in preconstruction planning in the event a District flood project is needed, to minimize District's project impact on City's improvements to the extent feasible. 7. City and District agree to cooperate in order to resolve disputes and assist each other in responding to public inquiries arising from the activities of either party. 8. Damage to District's or City's facilities, including the Bridge, to the extent arising from public use of the Premises pursuant to this Agreement will be the responsibility ofthe City. 9. District will continue to perform routine maintenance on the Premises for flood protection purposes in a manner consistent with its maintenance of comparable facilities or creeks. 10. In non-emergency situations, City and District staff will meet whenever necessary for the purpose of scheduling routine maintenance, including, but not limited to: O:\Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 3 of? . Maintenance Issues related to the Bridge and any other improvements on the Premises; . 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 fifteen (15) business 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 ofthe Premises under this Agreement will be the responsibility of City. District is not responsible for any damage occurring to the Bridge or City's improvements located within the Premises that result from the District's maintenance, construction or reconstruction or use of the Premises or other water management and/or flood control facilities located on or near the Premises. All such costs for repairing such damage to City's improvements will be borne by City. In an emergency situation, District may provide maintenance without notice or precondition to meet or consult with City. II. Any construction work on the Premises during spring nesting season will be avoided whenever possible. The parties acknowledge that the spring nesting season occurs between February 1 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. 12. This Agreement will be for a period of twenty-five (25) years beginning on the date that 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 Administrator. Notice of intent to terminate may be given by the District's CEO. It is understood and agreed that, at the parties' sole discretion, this Agreement may be superseded and incorporated into any future joint use agreement or lease arrangement with the City along Lions Creek. Upon the termination or expiration of this Agreement, the City, at its sole cost and expense, shall restore the Premises as near as reasonably possible to the condition the Premises was in as of the effective date of this Agreement. 13. Subject to the conditions and restrictions contained in this Agreement, City has the full control and authority over the public use of the Premises, and City may restrict, or control, regulate 0:\ Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 4 of? 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 District's flood protection or water resource protection function 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 accepted for dedication or installed upon the Premises by City. 14. 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. 15. 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 preventing or limiting the public's use of the Premises because of flood flows or for any other reason in order to protect the health and safety of the users of the Premises. City is responsible for determining the conditions under which to exercise such control over the Premises. 16. (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 of the Premises, which latter consideration is the responsibility of City, or to the advisability of such improvements. (b). Improvements built by or accepted for dedication by City on the Premises will remain the property of City (unless otherwise agreed by the parties in writing) and, upon the termination of this Agreement, will be removed by City, leaving the Premises in a condition as near as reasonably possible to the condition that existed prior to such improvements. If District requires that any improvement must be removed or relocated, the same will be done at City's expense upon 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 the users of the Premises. 17. (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 O:\Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 5 of? extent resulting from construction of the Bridge or 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 to the extent that such claims, liability, loss, damage, and/or injury arise from the willful malfeasance 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 malfeasance 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 ofthe 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. 18. 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: City Distriet City of Gilroy Community Development Department 7351 Rosanna Street Gilroy, CA 95020 Santa Clara Valley Water District 5750 Almaden Expressway San Jose, California 95118 Attention: Clerk of the Board 19. 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. 20. 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 16 (a). O:\Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page 6 of? "City" WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth. "District" APPROVED AS TO FORM: .,'~ d," ~~? (, a . CJ---I Lmda A. Call on City Attorney SANTA CLARA VALLEY WATER DISTRICT, a California Special District BY:~ Beau G Ie Chief Executive Officer ATTEST: (-I~ I i1KJ~ ~q Lauren Knoff Clerk/Board of Directors APPROVED AS TO FORM: !~ Anthony T ulcher Assista District Counsel O:\Christopher HS\JUA \Lions Creek JUA 2009 Christopher HS Ped Bridge.doc IVPAPP1791232.3 043009-04706140 Page? of? Christopher High School Pedestrian Bridge on SCVWD fee title right of way between four gates Lions Creek I I jill, i ! ~_.-I!.~i ~ _ Ie ,_ i ~~Ti~, JiC,_]_ I IQ.L i I -~ -.Ill ~ - L ,"" ~_ L_ I ' I -- I _ L._ ! I : I l 'tJ I> liD :CT:I IUl if 111I I- .5 Ie: ICT:I ICI) L Sunrise Dr ) l_ o 137.5275 550 825 1,100 Feet - - ^ Lions Creek Trail Santo CJaoVolleyWcl:erOislric!U Joint Use Agreement Exhibit A