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HomeMy WebLinkAboutSCVWD - Joint Use Agreement Lions Creek - Amendment No. 1AMENDMENT NUMBER.ONE TO THE JOINT USE AGREEMENT FOR Lions Creek From Kern Avenue to West Branch Llagas Creek Confluence West Branch Llagas Creek From Lions Creek Confluence to Farrell Avenue This Amendment Number One to the Joint Use Agreement for Lions Creek and West Branch Llagas Creek ( "Joint Use Agreement "), between the City of Gilroy ( "City "), a California charter city and municipal corporation of the State of California, and the Santa Clara Valley Water District ( "District "), a California Special District created by the California Legislature, is entered into on this 22 day of JULY 2014, ( "Amendment Effective Date ") WHEREAS, The City and District entered into the Joint Use Agreement, effective November 9, 2010; and WHEREAS, The City was provided the right to use certain District -owned real property described in Exhibit A of the Joint Use Agreement (Exhibit B of this Amendment Number One) for the purpose of operation of a pedestrian and /or bicycle trail for public use, including construction, maintenance, and repair of trail - related incidents such a pedestrian bridge, paving, signs, benches, fencing, and gates that are first approved by the District as evidenced by issuance of a District permit; and WHEREAS, The parties now desire to include additional District -owned real property, described in Exhibit A, of this Amendment Number One, generally described as being along West Branch Llagas Creek from Upper Miller Slough to Leavesley Road and along Upper Miller Slough from Roger's Lane to West Branch Llagas Creek for the purpose of construction of trail improvements and a pedestrian bridge consistent with the purposes of the Joint Use Agreement; and NOW THEREFORE, the parties hereby agree to the following: 1. As of the Amendment Effective Date, the real property described in Exhibit A of this Amendment Number One becomes part of the Premises (as that term "Premises" is defined in the Joint Use Agreement), and that real property described in Exhibit A of this Amendment One is subject to the terms and conditions of the Joint Use Agreement. 2. City will provide for trash removal on the Premises that is reasonable likely to have been generated from the public's use of the trail facilities which are. constructed in the area described in Exhibit A of this Amendment Number One, in addition to providing trash removal referenced in the Joint Use Agreement. 3. Except as amended by this Amendment Number One, all other terms and conditions of the Joint Use Agreement will remain in full force and effect. Page 1 of 11 The parties acknowledge and accept the terms and conditions of this Amendment Number One as evidenced by the following signatures of their duly authorized representatives. CITY OF GILROY A California charter city and Municipal corporation of the State of California By: Thomas J HagluM Citv Administrator APPROVED AS TO FORM: Lin Ilon City Attorney SANTA CLARA VALLEY WATER DISTRICT a Special District, created by the California Legislature By: Beau G Chief Executive Officer A4EST: ich6le . king, CMC Clerk/ Board of Directors APPROVED AS TO FORM Gaid, ':� . ( A`� Jo eph Aranda Assistant District Counsel Page 2 of 11 1 A; Page 3 of 11 f ♦ s� �� t4 r�'''f�, ��I ♦ ttt t �� Santa Clara Valley Water District ti yv • �• a �• off • AGREEMENT BETWEEN CITY OF -• • i Page 3 of 11 File: City of Gilroy Lions Creek and West Branch Llagas Creek X- Files: 5031 -23 thru 25, 56 thru 59 and 5039 -3 thru 7, 29, 37 thru 40, 42 JOINT USE AGREEMENT Lions Creek From Kern Avenue to West Branch Llagas Creek Confluence West Branch Llagas Creek From Lions Creek Confluence to Farrell Avenue SANTA CLARA VALLEY WATER DISTRICT, a California Special District created by the California Legislature, hereinafter referred to as "District;" and the CITY of GILROY, a California charter city and municipal corporation of the State of California, hereinafter referred to as "City:" AGREE this gnday of November _, 2010 ( "Agreement Effective Date"), as follows: RECITALS: A. Whereas, 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. A portion of Lions Creek and West Branch Llagas Creek are located within the Premises: B. Whereas, City desires to construct a public pathway known as the Lions Creek Parkway Trail and the Wren to Kern Trail for pedestrians and bicycles along Lions Creek and West Branch Llagas Creek, consistent with the City's General Plan; C Whereas, City And District recognize that the Premises was arquirPd by the District for flood protection purposes as part of the PL -566 flood protection project along Lions Creek and West Branch Llagas Creek, and any improvements installed by the City are subject to relocation and /or removal by City (at City's sole cost) if a future flood protection project (or any other District project) requires such relocation or removal as determined by the District; D. Whereas, the City has an interest in using Premises to enable the City to provide certain recreational opportunities to the public that do not unreasonably interfere with the District's mission of flood protection water resource management, and stream stewardship: E. Whereas, the parties find it to be in the public interest to provide for joint use of the Premises by means of an Agreement unJer the following terms and conditions; Now, therefore, the parties agree as follows: 1) Purpose and Limitations of Use. District hereby grants permission to City to use the Premises for the following purposes and subject to the following limitations of use: Exhibit B Page 4 of 11 t� .t V v Puroose Operation of a pedestrian and /or bicycle trail for public use, including construction, maintenance, and repair of trail - related incidents such as a pedestrian bridge, paving, signs, benches, fencing, and gates that are first approved by the District as evidenced by issuance of a District permit. Limitations of Use Public access on the trail within the Premises must only be passive in nature. Hence, picnic facilities, barbecues, fires, swimming, boating, dogs or other domestic animals (except on leash), equestrian use, and any type of motorized vehicles or cycles are not permitted on the Premises and City must ensure that such uses do not occur on the Premises. City must restrict entry to the Premises to daylight hours. 2) Trash and Litter Removal. City will provide for trash removal on the Premises that is reasonably likely to have been generated from the public's use of Lions Creek Parkway Trail or the Wren to Kern Trail. City will be responsible for maintaining and emptying trash receptacles and rubbish removal as reasonably necessary. District will manage the Adopt - A -Creek program providing an opportunity for local community volunteers to participate in litter pick -up. 3) Graffiti Removal. City will provide gra`fiti 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 pathway consistent with its implementation of the same program at comparable City facilities. City will have the primary responsibility for removal of graffiti, on the Premises, reasonably attributed to trail use. 4) Security. The Premises must be reasonably patrolled by City personnel and/or ranger services under contract with City and /or volunteers supervised by City. District has no obligation whatsoever to provide or pay for any such patrol services. 5) Public Complaints. City is responsible for responding to all public complaints and inquiries regarding City's improvements on the Premises, including the public trail, and to all inquiries regarding the public's use of the Premises. 6) Removal or Relocation of City Improvements. If District requires that any City improvement on Premises be removed or relocated for any District purpose, the City will do so at its own expense within 90 days of receiving notice from the District. 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. District will inform City during preconstruction planning in the event a District project is performed on the Premises, in order to reasonably minimize District's project impact on City's improvements located on the Premises. In the event a District project is constructed, any replacement of the City's trail will be the responsibility of the City, subject to District approval. Exhibit B Page 5 of 11 7) Water Level Fluctuations. It is 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 public's use of Premises because of such water levels, flood flows, or for any other reason. City is responsible for determining the conditions under which to exercise said control or to limit the use of the Premises to ensure the health and safety of the public using the Premises. 8) Signage. -he parties will cooperate to create and install signage that 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 the City Engineer of the City or their respective designees will meet and confer on a periodic basis to plan the installation of appropriate signage which serves the needs of both parties. All signs placed on the Premises by City (except existing signs that identify the facility (e.g. Trail) by name) must include the District's logo in equal size and symmetrical relationship to any other logos contained on such signs. In addition, all City signs or City publications placed on the Premises that describe water resources must be developed in conjunction with the District's Watershed customer relations staff. Each party is responsible for the maintenance and upkeep of its signage installed on the Premises. 9) Bird Nesting Season. Construction and maintenance work during nesting season (generally between February 1" and August 31") will be avoided whenever possible. If construction or maintenance work must be done during the nesting season, a pre- construction survey by a qualified biologist must be undertaken to determine the presence of nesting. 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 impacts 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 but not limited to the federal Migratory Bird Treaty Act of 1918, Clean Water Act, Endangered Species Ac% the California Fish and Game Code and the Porter - Cologne Act and any amendments thereto. 10) Maintenance and Repair. District is responsible for performing routine maintenance on the Premises for flood protection and water resource management purposes in a manner consistent with its maintenance of comparable facilities or creeks. City is responsible for the maintenance and repair of recreational improvements on the Premises. 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. In an emergency situation, District will respond without notice to the City. In non - emergency situations. City and District staff will meet, whenever necessary, for the purpose of scheduling routine maintenance, including. but not limited to: Exhibit B Page 6 of 11 41� A" (a) Maintenance issues related to improvements. (b) Method and timing of issues related to affected wildlife. (c) 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. 11) Damage to City's Improvements on Premises. District is not responsible for any damage occurring to the City's improvements or structures located on the Premises that results from the District's maintenance, construction or reconstruction activities or from its water management and /or flood protection facilities located on or near the Premises. including (without limitation) any flood flows, or inundation of Lions Creek or West Branch Llagas Creek onto the Premises Further, City is responsible for any damage occurring to either the District's or City's improvements or structures located on the Premises that results from the Public's use of the Premises All such costs for repairing such damage to District's or City's improvements will be borne by City. 12)Term of Agreement and Renewal Option. The term of the Agreement (including the rights and obligations contained therein) is twenty -five (25) years commencing on the Agreement Effective Date. The City, upon providing the District with no less than ninety (90) days written notice, but no more than 180 days nonce prior to the expiration of the initial 25- year term, may renew this Agreement for an additional 25 -year period. 13) Termination of Agreement for Cause. A party may terminate this Agreement for "cause' after providing the other parry with at least 90 days prior written notice of such 'cause" and its intent to terminate this Agreement For purposes of this Agreement. "cause" means a material breach of this Agreement, including (without limitation) a breach of a party's maintenance responsibilities and responsibilities to maintain its improvements in a safe manner. If there are deficiencies that can be corrected by either party, neither party will terminate this Agreement without first providing the other party an opportunity to correct such deficiency within said 90 -day written notice period, or such longer period as agreed to by the non - breaching party in writing Upon the termination or expiration of this Agreement. City must remove its improvements from the Premises, and leave the Premises in a condition as near as reasonably practical to its condition prior to the installation and /or development of such improvements. If the trail is removed from the Premises due to a flood protection project or other District projec:, this Agreement will terminate upon District providing the City with written notice. Notice of intent to renew or to terminate may be given by the City Administrator for City. Notice cf intent to terminate may be given by the Chief Executive Officer for the District. 14) City's Responsibility for Public Use. Subject to the conditions and restrictions contained in this Agreement, City has the full control and authority, for public and recreation purposes over the use of the Premises, and City may restrict, or control. regulate and /or supervise the Public use :hereof. City may. at its discretion, consistent with the right of District hereinafter Exhibit B Page 7 of 11 described, and without diminution of the flood protection or water resources management 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 health and 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. 15)District's Superior Rights. It is expressly understood that District is engaged in flood protection. the protection of water resources, and stream stewardship 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, water resource management, and stream stewardship 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. 16) City's Subordinate Rights. 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 the 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 the same will not constitute an obstruction to flood flows and will not interfere with the use of the Premises for any District purpose, and does not in any way 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. 17) Indemnification by City. Notwithstanding any other provision of this Agreement, City agrees to indemnify, defend and hold harmless the District, its agents, officers, directors. and employees from and against any and all demands, claims, damages, losses and reasonable expenses, including but not I mited to liabilities, obligations, claims, costs, reasonable expenses (including without limitation interest, penalties and reasonable attorney's fees), fines, levies, assessments, demands, damages or judgments of any kind or nature, whether in law or equity (including without limitation, death or injury to any person, property damage, administrative and judicial orders and consents, or any other loss) to the extent they arise out of, pertain to, or relate to the: (i) public use of the Premises, (ii) public's use of real property adjacent to the Premises, or (iii) negligence or willful misconduct of the City's officers, agents, employees, or independent contractors, excepting comparative liability resulting from the negligence or willful misconduct of an officer, agent, or employee of the 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. 18) Indemnification by District. Notwithstandinq any other provision of this Agreement, District agrees to indemnify. defend and hold harmless the City, its agents, officers, Exhibit B Page 8 of 11 'fit] directors, and employees from and against any and all demands. claims, damages, losses and reasonable expenses, including but not limited to liabilities, obligations. claims, costs. reasonable expenses (Including without limitation interest, penalties and reasonable attorney's fees), fines, levies, assessments, demands, damages or judgments of any kind or nature, whether in law or equity (including without limitation, death or injury to any person, property damage, administrative and judicia orders and consents. or any other loss) to the extent they arse out of. pertain to, or relate to the active negligence or willful misconduct of the District's officers, agents, employees, or independent contractors, excepting comparative liability resulting from the negligence or willful misconduct of an officer, agent, or employee of the City. This Agreement, to defend. indemnify, and hold harmless will operate irrespective of the bass 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 19) Notices. 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: District: City of Gilroy Santa Clara Valley Water District Attention, Community Development Dept. Attention: Clerk of the Board 7351 Rosanna Street 5750 Almaden Expressway Gilroy. CA 95020 San Jose, CA 95118 20)Successors and Assigns. This Agreement, and all terms, covenants, and conditions hereof, will apply to and bind the successors and assigns of the respective parties hereto. City will neither assign nor sublet this Agreement without the prior written consent of the District. 21) Choice of Law. This Agreement is governed by California law. 22) Amendments. This Agreement may riot be modified or amended except in writing signed by both parties. 23) Compliance with Laws. Each party must, in all activities undertaken pursuant to this Agreement, comply and cause its contractors, agents, and employees to comply with all federal, state, and local laws, statues, orders, ordinances, rules. and regulations. 24) Not Real Property Interest. It is expressly understood that this Agreement does not in any way whatsoever grant or convey any permanent easement, fee or other interest in a party's real property to the other party. 25) Attorney's Fees. In the event of .a dispute between the parties with respect to the terms or conditions of this Agreement, the prevailing party is entitled to collect from the other its Exhibit B Page 9 of 11 reasonable attorney's fees as established by the judge or arbitrator presiding over such dispute. 26) Entire Agreement. This Agreement, together with all exhibits attached hereto, constitutes the entire agreement between the parties concerning the public's recreational use of the Premises and supersedes all prior written aid oral understandings concerning the public's recreational use of the Premises. WITNESS THE EXECUTION HEREOF, effective the Agreement Effective Date hereinabove set forth. "City" CITY OF GILROY A California charter city and M yr Aet 'd poration of the State of Cal.fornia By. Thomas J Hagl nd City Admiriatrator ATTEST vty, na Fregls City Clerk APPROVED AS TO FORM Linda Callon City Attorney "District" SANTA CLARA VALLEY WATER DISTRICT, a Spew, Nstt irt, rrnate d by tnra Caiifnrma Legwature By Beau Goldm Chief Executivo Officer ATTEST Michele L King Clerk of the Board of Directors APPROVED AS TO FORM- Anthol Fulcher Assis nt District Counsel Exhibit B Page 10 of 11 0 l N f�e� pye m m � c � m � � a' p13 E s Y m SCVWD fee title right of way iOm� I IL n F Lions Creek n N 0 250 500 1,000 1,500 2,000 Feet B Ions Creek and West Branch Llagas Cree Santa Cloro Valley Water District .Joint use Agreement Exhibit Exhibit Page 11 of 11 A Page 11 of 11