Authorize Renewal of Joint Use Agreement with Santa Clara Valley Water District�pW N OF
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DATE:
TO:
FROM:
SUBJECT:
COUNCIL AGENDA REPORT
AUGUST 21, 2014
MAYOR AND TOWN COUNCIL
GREG LARSON, TOWN MANAGER
MEETING DATE: 09/02/14
ITEM NO: /
AUTHORIZE THE TOWN MANAGER TO EXECUTE A RENEWAL OF A
JOINT USE AGREEMENT WITH THE SANTA CLARA VALLEY WATER
DISTRICT FOR USE OF DISTRICT PROPERTY ALONG LOS GATOS
CREEK TRAIL
RECOMMENDATION:
Authorize the Town Manager to execute a renewal of a Joint Use Agreement with the Santa
Clara Valley Water District for use of District property along Los Gatos Creek Trail.
BACKGROUND:
In 1994, the Town entered into a Lease Agreement with a twenty (20) year term with the Santa
Clara Valley Water District ( SCVWD) to allow for public recreational use of SCVWD owned
property along Los Gatos Creek at four different locations within the Town limits. The Lease
Agreement was amended in 2005 to exclude one of the locations no longer operated by the
Town. In 2011, the Agreement was further amended to add a new location and allow the
completion of a public trail from Winchester Boulevard through property occupied by Netflix
across SCVWD property, connecting to the Los Gatos Creek Trail.
DISCUSSION:
The SCVWD is requesting a new Joint Use Agreement to replace the existing Lease Agreement
dated December 20, 1994, which will expire on September 30, 2014.
The new Agreement has a twenty -five (25) year tern, commencing on the agreement effective
date, and renewable for an additional twenty -five years upon written notice to SCVWD.
The Agreement terms include use of the SCVWD owned property for trail purposes and assign
responsibility for maintenance of the trail activities to the Town. The SCVWD will retain
responsibility for the property as it relates to flood control and the creek.
PREPARED BY: MATT MORLEY I�K�
Director of Parks and Public Works
Reviewed by: L9 Assistant Town Manager own Attorney Finance
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE A RENEWAL OF A
JOINT USE AGREEMENT WITH THE SANTA CLARA VALLEY WATER
DISTRICT FOR USE OF DISTRICT PROPERTY ALONG LOS GATOS
CREEK TRAIL
AUGUST 21, 2014
CONCLUSION:
Staff recommends that the Town Council authorize the Town Manager to execute a renewal Joint
Use Agreement with Santa Clara Valley Water District for use of District property along the Los
Gatos Creek Trail.
ENVIRONMENTAL ASSESSMENT:
This project is not defined under CEQA, and no further action is required.
FISCAL IMPACT:
There is no fiscal impact to the Town.
Attachments:
1. Joint Use Agreement
File: Town of Los Gatos
Los Gatos Creek
JOINT USE AGREEMENT
between
Town of Los Gatos
and
Santa Clara Valley Water District
Los Gatos Creek
SANTA CLARA VALLEY WATER DISTRICT, a California Special District created by the
California Legislature, hereinafter referred to as "District;" and the TOWN OF LOS GATOS a
municipal corporation of the County of Santa Clara, hereinafter referred to as "Town "; AGREE
this _day of 2014 ( "Agreement Effective Date "), as follows:
RECITALS:
A. Whereas, District is the owner of certain real property (hereinafter "the Premises "),
shown on "Exhibits A and B" attached hereto, so marked and by this reference made a
Part hereof. The Premises are located along Los Gatos Creek at 4 distinct locations
between Towne Terrace and the Town limits near Knowles Drive;
B. Whereas, the Town has an interest in using Premises to enable the Town 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;
C. Whereas, the parties find it to be in the public interest to provide for joint use of the
Premises by means of an Agreement under the following terms and conditions;
Now, therefore, the parties agree as follows:
1) Scope of the License Grant to the Town. Subject to the terms and conditions of this
Agreement, the District hereby grants to Town a non - exclusive license to access and do any
or all of the following on the Premises:
a. To construct, operate, maintain, repair, replace, and remove Town Improvements
for recreational purposes on the Premises including, but not limited to, asphalt
concrete surfaced pedestrian and bicycle trails, pedestrian bridges, fencing and
signage. The construction of such Town Improvements shall require prior review and
approval by the District as signified by issuance of a Water Resources Protection
Ordinance Encroachment Permit ( "District Permit "), and shall be compliant with all
applicable legal and permitting requirements. It is fully understood and agreed that
ATTACHMENT I
File: Town of Los Gatos
Los Gatos Creek
District in its reasonable discretion may approve or disapprove a request for any
permit to construct any Town Improvement on the Premises.
b. To provide non - motorized bicycling, walking, jogging and hiking activities in
accordance with all applicable legal and permitting requirements to the extent such
activities do not interfere with the District's mission of flood protection, water resource
management, and stream stewardship.
c. To host special recreational events (e.g., races) that may include an otherwise
restricted component such as allowing private vehicular access for safety purposes,
so long as the Town first receives a District Permit to host that event.
2) Prohibited Uses of Trail. Town shall post notices at all trail entrances that notify users of
the trail that the following activities are prohibited:
• Entry of motor vehicles (except for maintenance, emergency, and enforcement
vehicles and mobility devices otherwise allowed by law)
• Unleashed dogs
• Equestrians
• Swimming, rafting, boating, fishing
• Picnicking
Subject to the foregoing prohibitions and any other restrictions set forth in this Agreement, Town
shall have the sole authority to adopt any trail rules and regulations pursuant to the Los Gatos
Municipal Code for any Town Improvements on the Premises that will not interfere with District's
mission of flood protection, water resource management, and stream stewardship.
3) Trash and Litter Removal. Town will provide for trash removal on the Premises that is
reasonably likely to have been generated from the public's use of Los Gatos Creek Trail.
Town will be responsible for maintaining and emptying trash receptacles and rubbish
removal as reasonably necessary. District will manage the Adopt -A -Creek program
4) Graffiti Removal. Town will provide 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 pathway consistent with its implementation of the
same program at comparable Town facilities. Town will have the primary responsibility for
removal of graffiti, on the Premises, reasonably attributed to trail use.
5) Security. The Premises must be reasonably patrolled by Town personnel and /or ranger
services under contract with Town and /or volunteers supervised by Town. District has no
obligation whatsoever to provide or pay for any such patrol services.
File: Town of Los Gatos
Los Gatos Creek
6) Public Complaints. Town is responsible for responding to all public complaints and
inquiries regarding Town's improvements on the Premises, including the public trail, and to
all inquiries regarding the public's use of the Premises.
7) Removal or Relocation of Town Improvements. If District requires that any Town
improvement on Premises be removed or relocated for any District purpose, the Town will
do so at its own expense within 90 days of receiving notice from the District. If removal or
relocation of Town improvements, including vegetation installed by Town, requires mitigation
under the California Environmental Quality Act, Town will be responsible for all costs
required to fulfill any required mitigation responsibilities. District will inform Town during
preconstruction planning in the event a District project is performed on the Premises, in
order to reasonably minimize District's project impact on Town's improvements located on
the Premises. In the event a District project is constructed, any replacement of the Town's
trail and amenities will be the responsibility of the Town, subject to District approval.
8) Water Level Fluctuations. It is 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. Town 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. Town 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.
9) Signage. The 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 Public Works
Director of the Town 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 Town (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 Town signs or Town 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.
10)Bird Nesting Season. Construction and maintenance work during nesting season
(generally between February 1s' 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 Town
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,
File: Town of Los Gatos
Los Gatos Creek
Clean Water Act, Endangered Species Act, the California Fish and Game Code and the
Porter - Cologne Act and any amendments thereto.
11) 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. Town is responsible for
the maintenance and repair of recreational improvements on the Premises. Town 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 Town. In non - emergency situations,
Town and District staff will meet, whenever necessary, for the purpose of scheduling routine
maintenance, including, but not limited to:
(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 Town 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.
12) Damage to Town's Improvements on Premises. District is not responsible for any
damage occurring to the Town'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 Los Gatos Creek onto the
Premises. Further, Town is responsible for the any damage occurring to either the District's
or Town's improvements or structures located on the Premises that result from the public's
use of the Premises. All such costs for repairing such damage to District's or Town's
improvements will be borne by Town.
13) Term of Agreement and Renewal Option. The term of this Agreement (including the
rights and obligations contained therein) is twenty -five (25) years commencing on the
Agreement Effective Date. The Town, upon providing the District with no less than ninety
(90) days written notice, but no more than 180 days notice prior to the expiration of the initial
25 -year term, may renew this Agreement for an additional 25 -year period.
14) Termination of Agreement. This agreement may be terminated without cause by either
party upon ninety (90) days prior written notice to the other. Upon the termination or
expiration of this Agreement, Town 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. Notice of intent to renew or to
terminate may be given by the Director of Public Parks and Recreation for Town. Notice of
intent to terminate may be given by the Chief Executive Officer for the District.
File: Town of Los Gatos
Los Gatos Creek
15) Town's Responsibility for Public Use. Subject to the conditions and restrictions
contained in this Agreement, Town has the full control and authority, for public and
recreation purposes over the use of the Premises, and Town may restrict, or control,
regulate and /or supervise the public use thereof. Town may, at its discretion, consistent
with the right of District hereinafter 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
Town be necessary for the health and safety of the users of the Premises for any purpose
under this Agreement. Town has the sole responsibility for the maintenance in usable and
safe condition of every facility provided upon the Premises by Town.
16) 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.
17) Town's Subordinate Rights. Town will have the right to build 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 has the sole, unfettered discretion to approve or disapprove of such
improvements
18) Indemnification by Town. Notwithstanding any other provision of this Agreement, Town
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 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 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
Town's officers, agents, employees, or independent contractors. 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,
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:
File: Town of Los Gatos
Los Gatos Creek
Town: District:
Town of Los Gatos Santa Clara Valley Water District
Attention: Parks and Public Parks Works Attention: Clerk of the Board
Department
110 East Main Street 5750 Almaden Expressway
Los Gatos, CA 95030 San Jose, CA 95118
wlcopy to Community Projects Review Unit
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.
Town 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 not 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
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 and oral understandings concerning the public's
recreational use of the Premises.
(Signatures on next page)
File: Town of Los Gatos
Los Gatos Creek
WITNESS THE EXECUTION HEREOF, effective the Agreement Effective Date hereinabove set
forth.
"Town"
TOWN OF LOS GATOS
A Municipal corporation of the County of Santa Clara
Greg Larson
Town Manager
ATTEST:
Shelley Neis
Clerk Administrator
APPROVED AS TO FORM:
Robert Schult=
Town Attorney
"District"
SANTA CLARA VALLEY WATER DISTRICT,
a Special District, created by the California Legislature
By:
Beau Goldie
Chief Executive Officer
ATTEST:
Michele L. King
Clerk of the Board of Directors
APPROVED AS TO FORM:
Bnan Hopper
Senior Assistant District Counsel
SANTA CLARA COUNTY �g ? t _- N
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