2003-017- Joint Use Agreement Between Town And The Santa Clara Water District Providing For Long Term Lease And Joint Use Of Smith Creek Trail And Authorizing The Town Manager To Execute SaiRESOLUTION 2003 -17
RESOLUTION OF THE'TOWN COUNCIL OF THE TOWN OF LOS GATOS
APPROVING JOINT USE AGREEMENT BETWEEN TOWN
AND THE SANTA CLARA WATER DISTRICT 'PROVIDING FOR
LONG TERM LEASE AND JOINT USE OF .SMITH CREEK TRAIL AND
AUTHORIZING'THE TOWN MANAGER TO EXECUTE SAID AGREEMENT
WHEREAS:
A. On August 27,1974, the Town ofLos-Gatos ("Town")entered into an agreement with
the Santa Clara Valley Water District ("District") providing for lease .and joint use of the Smith
Creek Trail fora 25-year term with one 25-year option.
B. Approval of a Joint Use Agreement between theTown and District is now necessary
to update the terms and conditions under which joint use of the Smith Creek Trail can occur for the
use and benefit of the Town's citizens.
C. On November 19, 2001 (Resolution No. 2001-12b) the Town Council approved a
proposed version of joint use agreement for the puiposes described herein.
D. The form of agreement was. modified thereafter and must be re-approved in order to
be considered for .approval by the .governing board of the District.
.RESOLVED:
1. Resolution No. 2001-12b is hereby rescinded.
2. The joint use agreement (Exhibit A) is hereby approved.
3. The'Town Manager is hereby authorized to execute the joint use agreement (Exhibit
A).
PASSED AN'D ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California held on the 1'8`h day of February, 2003, by the following vote:
COUNCIL MEMBERS:
AYES: Steve Glickman, Diane McNutt, .Joe Pirzynski, Mike Wasserman,
Mayor Sandy Decker.
NAYS.: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYO OF THE TOWN OF LOTS GATOS
LOS ATOS, CALIFORNIA
ATTEST.:
~~ ~ ~~~
CLERK OF THE '1 OWN OF LOS GATOS
LOS GATOS, GR~L.IFORNIA
2
~~R: D3.o23
File: Town of Los Gatos
Parcel: 9329-1
JOINT USE AGREEMENT
SANTA CLARA VALLEY WATER DISTRICT, a .public corporation, hereinafter referred to as
"District;" and the Town of Los Gatos, hereinafter referred to as "Town;" AGREE this day of
2003 as follows:
RECITALS:
A. 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.
B. Town .and District recognize that the. premises .are regulated by a variety of federal, state, .and
local .agencies.
C. Town 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. Town 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. 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:
l . District shall and does hereby grant permission to Town to use the premises for the .following
purpose or purposes and subject to the following special restrictions:
• Public pedestrian trail
2. Town shah be responsible for all costs associated with the existing pedestrian trail and .bridge
including providing and maintaining recycling and :garbage receptacles for public use, and
providing for adequate waste removal service. Town shall also be responsible for providing
graffiti removal in .compliance with Town'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 Town facilities.
3. The ,public pathway and corridor, the subject of this Agreement, may be patrolled by Town
personnel and ranger services under contract with Town and/or volunteers supervised by
Town. District shall have no obligation whatsoever to provide or pay for such. services.
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4. Town shall be responsible for the removal and replacement of recreational improvements
installed by the Town in the event District is required to improve Smith Creek in any manner
for flood protection purposes. District shall .involve Town 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 Town's improvements to the premises.
5. Damage occurring to Town's structures or .paving, if any, 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 Town.
6. Town 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. Town and District resolve to utilize their .respective offices to mutually support the
efforts of each other to deliver such services to the public. Town 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. Town 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 Town further agree to notify one
another's designated representative as required prior o commencement of such work,
in order to minimize public impacts.
• In an emergency situation, District shall have rights provided in Paragraph 14 without
consulting Town.
8. Town 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 l . 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 1'91$ and any amendments thereto.
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 Town Manager of the Town or their
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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
Town, according to which entity has .installed ahe improvements.
12. This Agreement shall be fora ,period of 25 (twenty-five) years beginning on the date it is
approved by the District Board of Directors.. Town 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 Tike period under mutually agreeable terms and conditions. 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 Town's Manager for Town,
Notice of intent to terminate may be given by the District's Chief Executive Officer 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 Town along Smith Creek.
13. Town shall have the full control and authority, for purposes of this Agreement, over the use of
the premises, and Town .may restrict, or control, regulate and supervise the public .use thereof.
Town 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 ahe premises as now existing or as may hereafter be .altered), take any
measures of every kind as may in the opinion of Town be necessary for ahe safety of the users
of the premises for any lease purpose. Further, Town 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 Smith 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 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 confemng a right upon Town to have or a
duty upon District to provide water upon the premises at .any time. Town shall bear the cost
and expense of any security, :police
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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 Town's facilities arising from use of the premises under this
Agreement shall be the responsibility of Town.
15. It is also expressly understood by Town 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 Town
and the public; provided, however, that Town 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). Town 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. Tt 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 Town.
(b). Improvements built by Town on the premises shall remain the property of Town and
upon the termination of this Agreement shall be removed by Town, 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 Town's expense upon reasonable notice from District.
17. (a). Town 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 occumng
in consequence of Town's or the ;public's use of the premises or from acts, omissions,
or activities of Town's officers, agents, employees, or independent contractors
employed by Town, 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 the
District shall 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 shall assume the defense of, indemnify, and hold harmless, Town, its officers,
agents, and employees from all claims, liability, doss, 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
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activities of an officer, agent, or employee of Town. 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.
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:
Town District
Town of Los Gatos Santa Clara Valley Water District
P.O. Box 949 5750 Almaden Expressway
Los Gatos, CA 95031 San Jose, California 95118
Attention: Town Manager Attention: 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 Town. 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 Town 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.
WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth.
"Town" "District"
TOWN OF LOS GATOS
SANTA CLARA VALLEY WATER DISTRICT,
a .public corporation
By:
Town Manager
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
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By:
Chief Executive Officer
ATTEST:
ClerkBoard of Directors
APPROVED AS TO FORM:
General Counsel
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