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HomeMy WebLinkAbout102-1. Joint Use Agreement for Joe’s Trail..pdf File: City of Saratoga X-File: 9436-48 JOINT USE AGREEMENT FOR A PUBLIC TRAIL AT SARATOGA SUNNYVALE ROAD Santa Clara Valley Water District, a California Special District, hereinafter referred to as “District;” and the City of Saratoga, a municipal corporation of the State of California, hereinafter referred to as “City;” agree this ______ day of , 2010 (“Agreement Effective Date,”) as follows: Background. A. Whereas, 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. The District’s underground treated water pipeline, known as West Pipeline, is located within the Premises; B. Whereas, City desires to provide trail access to the public in a manner that does not interfere with the District’s maintenance and operational activities on the Premises, including maintenance and operation of a water pipeline or any other current or future District improvement; C. Whereas, City has ascertained that adequate funds have been appropriated to construct and operate a public trail (and incidents thereto) on the Premises and that adequate funds have been appropriated to meet all of its obligations contained in this agreement; D. Whereas, the parties find it to be in the public interest to provide for joint use of the Premises by means of this agreement pursuant to the following terms and conditions; and Now, therefore, the Parties agree as follows: 1. District hereby grants permission to City to use the Premises for the following purpose and subject to the following limitations of use: Purpose Operation for public use, of a bicycle and/or pedestrian trail, including installation of trail- related incidents such as signs, 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, barbeques, fires, dogs or other domestic animals (except on leash), equestrian use, and any type of motorized cycles are not permitted on the Premises and City must ensure that such uses do not occur on the Premises. 2. City will provide for trash removal on the Premises that is reasonably likely to have been generated from the public’s use of the Premises, including the trail areas. City will be responsible for maintaining and emptying trash receptacles and rubbish removal as reasonably necessary. City will provide 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 trail consistent with its implementation of the same program at comparable City facilities. 3. The public trail contained within or adjacent to 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. Page 1 of 5 4. If the District reasonably requires that any City improvement on the Premises be removed or relocated, the City must do so at its own expense within 90 days of receiving notice from the District. District will inform City of any impending construction activity within the Premises to enable the City to minimize the impact of such activity on the City’s improvements located on the Premises. Except to the extent replacement would interfere with District improvements, City may, at its own expense, replace City improvements upon District’s completion of the construction activity requiring the initial removal of those improvements. 5. City is responsible for responding to all public complaints and inquiries regarding City’s improvements on the Premises, including the public trail. 6. City understands that District may have a need to engage in maintenance and operational activities on the Premises in support of the West Pipeline and other current or future District improvements. City is responsible for the maintenance and repair of its improvements located on the Premises, including the public trail. In non-emergency situations, City and District staff will 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; and • Non-emergency work requiring the use of heavy equipment, barricading, and/or restricting access to the Premises. Notwithstanding the foregoing, in the event of an emergency situation, the District may engage in maintenance and operational activities on the Premises without first meeting or informing the City. 7. Any construction or major maintenance work during nesting season (generally between February 1st and July 15th) will be avoided whenever possible. If any such 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 is reported, the biologist will be expected to recommend the implementation of adequate mitigation measures. Environmental impacts will be considered prior to all work. Any and all work related to this Section 7 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 Act of 1918, Clean Water Act, Endangered Species Act, the California Fish and Game Code and the Porter-Cologne Act and any amendments thereto. 8. Both parties agree to work together to create and install signage which benefits the programs of each party such as warnings, entrance signage, interpretive signs, and joint uses when applicable. The Deputy Operating Officer for the District and the Director of Public Works for 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. park, Trail) by name) must include a District logo in equal size and symmetrical relationship to other logos contained on such signs. In addition, each party is responsible for the maintenance and upkeep of the signage it installed on the Premises. 9. The term of this 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 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. A party may terminate this agreement “for cause” after providing the other party with at least 90 days written notice of such “cause” and its intent to terminate this agreement. For Page 2 of 5 10. City will have the full control and authority, for purposes of this agreement, over the public’s use of the Premises, and City may restrict, or control, regulate and supervise the public use of the City’s improvements. City may, in its discretion but consistent with the right of District hereinafter described, and without diminution of the water supply or conservation 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 safe use of the Premises by the public. Further, City is responsible for the maintenance in usable and safe condition of every the trail and every other City improvement located on the Premises. 11. City understands that District must have absolute, free and unimpeded access to the Premises to carry out its maintenance and operational activities, including (without limitation) maintaining, operating, replacing, reconstructing, repairing, accessing, and inspecting the West Pipeline or any future improvement installed by the District. City will bear the cost and expense of any security, police or other expenditures that are necessary to temporarily prohibit or control public access to the Premises that the District would not ordinarily incur to carry out its maintenance and operational activities on the Premises. Damage to any District improvement arising from the City’s or Public’s use of the Premises is the responsibility of the City. 12. The City may construct an improvement on the Premises only if all of the following conditions are satisfied: (i) District determines that such improvement does not unreasonable interfere with the District’s current or future use of the Premises, including the maintenance and operation of the West Pipeline; (ii) such improvement receives prior review by and approval of the District as evidenced by issuance of a District permit, and (iii) such improvement (including the construction thereof) is compliant with all applicable legal and permitting requirements (including California Environmental Quality Act requirements). 13. City agrees to 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, that results from the: (i) City’s and/or public’s use of the Premises or property adjacent to the Premises; or (ii) from acts, omissions, or activities of City’s officers, agents, employees, or independent contractors employed by City, excepting claims, liability, loss, damage, or injury arising from the willful or negligent acts, omissions, or activities of an officer, agent, or employee of District. 14. 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 of Saratoga Santa Clara Valley Water District 13777 Fruitvale Avenue 5750 Almaden Expressway Saratoga CA, 95070 San Jose, CA 95118 Attention: City Clerk Attention: Clerk of the Board Page 3 of 5 15. 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 District. 16. This agreement is governed by California law. 17. This agreement may not be modified or amended except in writing signed by both parties. 18. 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 City. 19. 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 attorneys’ fees as established by the judge or arbitrator presiding over such dispute. 20. This agreement, together with all exhibits attached hereto, constitutes the entire agreement between the parties and supersedes all prior written or oral understandings. WITNESS THE EXECUTION HEREOF on the Agreement Effective Date. CITY OF SARATOGA, a municipal SANTA CLARA VALLEY WATER DISTRICT, corporation of the State of California a California Special District By: __________________________ By: _____________________________ Dave Anderson Beau Goldie City Manager Chief Executive Officer ATTEST: ATTEST: ______________________________ _________________________________ Ann Sullivan Michelle King City Clerk Clerk /Board of Directors APPROVED AS TO FORM: APPROVED AS TO FORM: ______________________________ _________________________________ Richard Taylor Anthony Fulcher City Attorney Assistant District Counsel Page 4 of 5