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Authorize Renewal of Joint Use Agreement with Santa Clara Valley Water District�pW N OF 1pssAt�6 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 DISTRICT PREMISES - -- % \� :ifii APN 529 -13 -010 �c)\ lee 11 1 i /' ! - R_ /v/e - ftA \ iJ� 1 44/ If DISTRICT PREMISES APN 529 -08 -032 CHESrER i L !_ (l Sr 7 if ! i::i fiEi'E �'• :. ' ._ Creek District Premises` Land Parcels GUADAWPE WATERSHED JOINT USE AGREEMENT LOS GATOS CREEK Santo GaraVallley BETWEEN TOWN OF LOS GATOS & SCVWD PRO1. NO. FILE NO. Water District LOS GATOS CREEK APN 529-13-010,032 DRAWN MEC EXHIBIT A DATE 811/14 SANTA CLARA COUNTY uj � � I Santa Cloro Volley Water District 6 i Ir JOINT USE AGREEMENT LOS GATOS CREEK BETWEEN TOWN OF LOS GATOS & SCVWO FILE NO. APNs 411-1-1-034,424-23-001 LOS GATOS CREEK 424. 2,1111 EXHIBIT B DRAWN MEC r Li ; k DISTRICT PREMISES AP NS: 424- 310 -64, 1' , 424.23 -001 & 424 -24 073 v -- -- y -.. ; 1p i y ji U1 I 2� ' ✓ / ;/ooh, `, • �. �' i `..,,..'*^ - -• Creek - —� - Q District Premises Land Parcels JOINT USE AGREEMENT LOS GATOS CREEK BETWEEN TOWN OF LOS GATOS & SCVWO FILE NO. APNs 411-1-1-034,424-23-001 LOS GATOS CREEK 424. 2,1111 EXHIBIT B DRAWN MEC THIS PAGE INTENTIONALLY LEFT BLANK