HomeMy WebLinkAboutSCVWD - Joint Use Agreement for Morey Channel South
File: A/C Leases
City of Gilroy
X-File: 5053-3, 13
JOINT USE AGREEMENT
SANTA CLARA V ALLEY WATER DISTRICT, a public corporation, hereinafter referred to as
"District;" and the City of Gilroy, hereinafter referred to as "City;" AGREE this 6th day of
February 2001 , as follows:
RECITALS:
A. District is the owner of certain real property (hereinafter "the premises"), shown crosshatched
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. City has ascertained that adequate funds have been appropriated to construct and operate its
proposed facilities on the premises and that adequate funds have been appropriated to meet all
of its obligations contained in this Agreement.
E. City and District wish the City to build a bicycle and pedestrian access bridge on District
property to allow bicyclists and pedestrians to traverse the South Morey Channel.
F. 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 the following
purpose or purposes and subject to the following special restrictions:
. Construct, inspect, administer, and maintain a bicycle and pedestrian access bridge over
South Morey Channel and related improvements including, but not limited to, lighting,
landscaping, grates, and guards, as determined by the City and approved by the District.
2. City shall be responsible for providing and maintaining recycling and garbage receptacles for
public use, and providing for adequate waste removal service. City shall also be responsible for
providing 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 park and pathway consistent with its implementation of the same program at
comparable City facilities.
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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.
District shall have no obligation whatsoever to provide or pay for such services.
4. City shall be responsible for the removal and replacement of bicycle and pedestrian access
bridge installed by the City in the event District is required to improve South Morey Channel
in any manner for flood protection purposes. District shall involve City in preconstruction
planning, as described in Clause 7, in the event a District flood control project is needed, to
minimize District's project impact on City's improvements to the premises.
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, all such costs for such repair or restoration are to be born by
City.
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 the parties of either team.
7. City and District staff 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 14 without
consulting City.
8. City will encourage volunteer groups to participate in District's" Adopt-A-Creek" program.
9. Native plants selected by a licensed landscape architect with native habitat experience should
be used for revegetation purposes.
10. 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. Any and all work related to this clause shall be completed in accordance
with applicable federal, state, and local environmental health and safely regulations including
the federal Migratory Bird Act of 1918 and any amendments thereto.
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11. The parties shall 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 General Manager of the District and Director of Community Development 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.
All signs excepting existing ones or publications that identify the facility (e.g. park, trail) by
name should include the District's logo in equal size and symmetric relationship to any other
logos. All signs or publications that are intended to interpret the water resources should be
developed in cooperation with the District's Public Information Office and should also include
the District's logo in equal size and symmetric relationship to any other logos. Maintenance
responsibility for signage and benches shall be the responsibility of either the District or the
City, according to which entity has installed the improvements.
12. This Agreement shall be for a period of 30 (thirty) 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 upon mutual consent of the parties. This
Agreement may be terminated by either party upon ninety (90) days prior written notice to the
other. Notice of intent to renew or to terminate may be given by the City's Director of
Community Development for City. Notice of intent to terminate may be given by the
District's General Manager 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 requested by City along South Morey Channel.
13. 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.
14. District shall have the sole responsibility to maintain South Morey Channel 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 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.
City shall 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 the activities described in this clause. Damage to District's or
City's facilities arising from use of the premises under this Agreement shall be the
responsibility of City.
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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, 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.
16.
(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 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 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. It is further understood that the City is under no obligation to build any
improvements if funding is unavailable or if construction otherwise becomes
impracticable.
(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.
17.
(a).
(b).
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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 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,
40f5
damage, or injury, and irrespective of whether the act, omission, or activity is merely
a condition rather than a cause.
18. 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 Gilroy
7351 Rosanna Avenue
Gilroy, CA 95020
Attn: Director of
Community Development
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, CA 95118
Attn: Clerk of the Board
19. 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.
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.
21. No amendments, modifications, alterations or changes to the terms of this Agreement shall be
effective unless and until made in writing signed by both parties hereto.
22. This Agreement shall not be construed or deemed to be an Agreement for the benefit of any
third party or parties; and, no third party or parties shall have any claim or right of action
hereunder for any causes whatsoever.
WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth.
.~~
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SANTA CLARA VALLEY WATER DISTRICT,
a public corporation
~~~~
ATTEST:
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
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f\-d,J City Attorney
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General Counsel
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