HomeMy Public PortalAboutResolution - 05-04- 20050223 - Keyani Funding Agreements RESOLUTION NO. 05-04
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING EXECUTION OF THE FUNDING AGREEMENT
WITH THE COUNTY OF SANTA CLARA AND EXECUTION OF
AN OPEN SPACE EASEMENT, AND AUTHORIZING THE
GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER
DOCUMENTS NECESSARY OR APPROPRIATE TO THE
CLOSING OF THE TRANSACTION (MONTE BELLO OPEN
SPACE PRESERVE—LANDS OF KEYANI)
The Board of Directors of the Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of the Midpeninsula Regional Open Space District does hereby
accept the offer contained in that certain Funding Agreement between the County of Santa Clara and the
Midpeninsula Regional Open Space District, a copy of which is attached hereto and by reference made a
part hereof, and authorizes the General Manager or President of the Board of Directors or other
appropriate officer to execute the Agreement on behalf of the District.
n f the Board of Directors or other appropriate officer
III Section Two. The President o , , is authorized to
execute the attached Open Space Easement conveying certain real property rights by the District to the
County of Santa Clara as provided in said Agreement.
Section Three. The General Manager of the District shall cause to be given appropriate notice of
acceptance to the County. The General Manager is further authorized to execute any and all other
documents in escrow necessary or appropriate to the closing of the transaction.
Section Four. The General Manager and General Counsel are further authorized to approve any technical
revisions to the attached Agreement and documents which do not involve any material change to any term
of the Agreement or documents, which are necessary or appropriate to the closing or implementation of
this transaction.
I
RESOLUTION NO. 05-04
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on February 23, 2005, at a Regular Meeting thereof, by the following vote:
AYES: J. Cyr, M. Davey, N. Hanko, D. Little, K. Nitz , P. Siemens
NOES: None
ABSTAIN: None
ABSENT: L. Hassett
ATTEST: APPROVED:
lecMretary A5ga Pres 'nt
Board of Directors oar d o Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
Di c lerk
i
V.
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
This Assignment of Leases and Security Deposits ("Assignment") is entered into as of
February 9, 2005 ("Agreement") between Peninsula Open Space Trust("POST"), a California
non-profit public benefit corporation ("Assignor") and Midpeninsula Regional Open Space
District ("MROSD"), a California special district("Assignee").
Recitals
A. Assignor and Assignee have entered into a License and Management Agreement dated
February 9, 2005 in which Assignee has agreed to license and manage real property known as
Stevens Canyon Ranch, located in an unincorporated area of the County of Santa Clara, State
of California ("Property"), Assessor's Parcel Numbers 503-04-001, 503-05-016, 503-06-024,
and 503-05-039, and more particularly described in Exhibit A of the Agreement.
B. Assignor has previously entered the following two leases of the Property (collectively,
"Leases"), copies of which are attached, hereto marked Exhibit B, and incorporated in this
Assignment:
1. Lease Agreement between POST and Preston and Karen Kauk, dated
December 21, 2004.
2. Caretaker Lease Agreement between POST and Bryant Westbrook, dated
December 3, 2004.
C. Assignor has accepted and retained security deposits (collectively "Security Deposits") from
tenants under the Leases in the amounts set forth in attached Exhibit B and incorporated in
this Assignment.
D. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all right, title, and
interest in the Leases and the Security Deposits, and Assignee has agreed to assume all
Assignor's obligations under the Leases.
For good and valuable consideration received, Assignor and Assignee agree as follows:
Section 1. Assignment
Assignor assigns all right, title, interest, and obligations in the Leases and the Security Deposits
to Assignee effective December 3, 2004.
Section 2. Notice to Tenants
Following the execution of the Agreement, Assignor shall give notice to the tenants under the
Leases that Assignee has entered into the Agreement to license and manage the Property and has
been assigned the landlord's interest in the Leases.
Section 3. Assumptions
Assignee assumes all the landlord's obligations, duties, responsibilities, and liabilities under the
Leases.
Section 4. Assignor's Covenants
Assignor covenants to the best of its knowledge that the Leases are in full force and effect.
Assignor further covenants to the best of its knowledge that there are no defaults under the
Leases.
Section S. Indemnity
Assignor agrees to indemnify Assignee for any loss, cost or expense, including attorney fees and
court costs, relating to the Leases and accruing on of before the Effective Date of the Agreement.
Assignee agrees to indemnify Assignor for any loss, cost, or expense, including attorney fees and
court costs, relating to the Leases and accruing subsequent to the Effective Date of the
Agreement.
Section 6. Successors
This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs,
executors, administrators, successors in interest, and assigns.
Section 7. Severability
If any term or provision of this Assignment shall be held invalid or unenforceable, the remainder
of this Assignment shall not be affected.
Section 8. Waivers
No waiver or breach of any covenant or provision shall be deemed a waiver of any other
covenant or provision, and no waiver shall be valid unless in writing and executed by the
waiving party.
Section 9. Construction
Headings are solely for the parties' convenience, and are not a part of this Assignment, and shall
not be used to interpret this Assignment. The singular form shall include plural and vice versa,
This Assignment shall not be construed as if it had been prepared by one of the parties, but rather
as if both parties have prepared it. Unless otherwise indicated, all references to sections are to
this Assignment.
Assignment of Leases and Security Deposits Page 2
Section 10. Counterparts
This Assignment may be executed in one or more counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one and the same instrument.
Section 11. Amendment
This Assignment may not be amended or altered except by a written instrument executed by
Assignor and Assignee.
Section 12. Further Assurances
Whenever requested to do so by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, Assignments, confirmations, satisfactions, releases, powers of
attorney, instruments of further assurance, approvals, consents, and any further instruments or
documents that are necessary, expedient, or proper to complete any conveyances, transfers, or
assignments contemplated by this Assignment. In addition, each party shall do any other acts
and execute, acknowledge, and deliver any requested documents in order to carry out the intent
and purpose of this Assignment.
Section 13. Third-Party Rights
Nothing in this Assignment, express or implied, is intended to confer upon any person, other than
the parties and their respective successors and assigns, any fights or remedies.
Section 14. Governing Law
This Assignment shall be governed and construed in accordance with California law.
IlI
Ill
Assignment of Leases and Security Deposits Page 3
POST AND DISTRICT, by their execution below, indicate their consent to the terms of this
License and Management Agreement.
For POST:
PENINSULA OPEN SPACE TRUST,
a California no-profit public benefit corporation
By
Audrey C. Rud, President
Date: �—
For DISTRICT:
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
APPROVE AND A CEPTED:
By:
L. Craig Britton, General Manager
Date: '/,- 0 /U'�-
-T—
APPROVED AS TO FORM:
By: .t-QdV11�
Susan M. Schectman, General Counsel
ATTEST:
Bye
Sallyjk6doldt, Dis6id Clerk
Date: /O A S
4
LICENSE AND MANAGEMENT AGREEMENT
THIS LICENSE AND MANAGEMENT AGREEMENT ("License"), dated as of
February 9, 2005, is by and between the PENINSULA OPEN SPACE TRUST, a California non-
profit public benefit Corporation ("POST"), and MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT, a Public District formed pursuant to Section 3 of Chapter 3 of Division 5 of the
California Public Resources Code("District").
.
RECITALS
A. POST is the owner of a certain parcel of real property ("Property"), located within the
unincorporated area of the County of Santa Clara, State of California and is more particularly
described in Exhibit "A", attached hereto and incorporated herein by this reference.
B. The Property is adjacent to District land and POST desires to transfer the Property to the
District under mutually agreeable terms at some time in the future. POST desires that District
license and manage the Property for the benefit of POST. In return for such services, District
will receive the benefit of the ability to use the Property for purposes consistent with its mission.
C. POST is willing to license the Property to District, and District desires to license the
Property from POST,upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, POST and District(collectively,the "Parties") hereby agree as
follows:
1. License. For and in consideration of the mutual covenants and agreements by the Parties
contained in this License, POST does hereby license to District, and District does hereby license
from POST, all of the Property.
2. License Term. District shall license the Property for a term of two years commencing on
the Effective Date hereof and ending two (2) years from the Effective Date (the "License Term").
As used herein, the term "Effective Date" shall be the date on which this License is executed by
the District's Board President.
3. Consideration. POST and District agree that the consideration for the District's
performance of its covenants and agreements contained herein (including, without limitation,
those regarding indemnification, maintenance and operation of the Property) shall be the
District's rights and privileges to use the Property as set out in this License, and the concurrent
"Assignment of Leases and Security Deposits" entered into between POST&District, a copy of
which is attached hereto marked"Exhibit B," and incorporated by this reference(hereafter
"Assignment").
4. POST's Representations Warranties and Covenants. POST represents, warrants and
covenants as follows:
t
4.1. Organization. POST is duly organized and validly existing under the laws of the
State of California.
4.2. Reguisite Action. All requisite corporate action has been taken by POST in
connection with POST's execution of this License, and has been taken or will be taken in
connection with the agreements, instruments or other documents to be executed by POST
pursuant to this License.
4.3. Title. To POSTs knowledge, POST owns fee simple title to the Property.
5. Management. During the term of this License and any extension thereof, District agrees
to manage the Property for the purpose of open space preservation as part of the ecological,
recreational and scenic resources of the mid-peninsula area. District shall assume full legal
responsibility for management, operation and control of the Property during the License Tenn,
for the conditions thereof, and for all activities conducted by District thereon. District and POST
acknowledge that the District's License is subject to the rights and obligations of the lessees set
out in the leases assigned to District under the Assignment. The parties agree and acknowledge
that, under the leases, the lessees have certain maintenance, management and repair obligations
for the leased Premises. The parties agree that District may authorize the lessees to perform any
of its management obligations under this License. However, such authorization shall not relieve
District of any of its management obligations under this License. District may install gates and
appropriate signing and fencing as District determines is necessary and appropriate, and may
undertake such other steps as District deems necessary or appropriate for the proper and safe
management of the Property.
6. - Patrol. District will patrol and manage the Property in a manner consistent with adjacent
District holdings to ensure that the Property is kept in a safe and sanitary condition and that
deleterious or incompatible uses of the Property are discouraged. Should any trespass or other
unauthorized use or activity occur upon the Property, District may exercise its authority to
correct these matters including,where necessary, enforcing District regulations and ordinances
on the Property. The Property shall be deemed to be property under the operation, control and
management of District for purposes of Public Resource Code Sections 5558 and 5560.5 as a
District park, and shall be deemed to be "District Lands" as defined in District Ordinance
No. 04-1.
7. Use. District shall have the right to use and operate the Property for open space and
recreational purposes including, but not limited to environmental education, occasional special
events, docent-led hikes, and to plan, design and construct low intensity recreational trails for
limited public use.
8. Legal Responsibility and Indemnification.
8.1 District. Except as otherwise agreed herein,District shall hold POST harmless
from, and defend POST and its officers, directors, employees and agents against, any and all
claims or liabilities for injury or damage to any persons of property howsoever occurring
during the life of this License in, on, or about the Property, arising out of any condition of the
Property or of any act, neglect, fault or omission by the District with respect to District
responsibilities as set out in this License.
2
8.2 POST. POST agrees to indemnify, defend and hold harmless District and its
agents, officers, officials, and employees against any and all claims or liabilities for injury or
damage to persons or property arising out of or resulting from the negligent acts or fault of
POST, or its agents, employees, officers, or servants, in connection with the Property.
8.3 Joint Responsibility. In the event of concurrent negligence, each party will bear
responsibility for its acts in proportion to its fault under the doctrine of comparative
negligence.
8.4 Insurance. During the License Term, the District shall maintain in full force and
effect a comprehensive general liability insurance policy applicable to the Property and the
District's activities under this License with limits of liability of at least Two Million Dollars
($2,000,000) aggregate combined single limit for bodily injury and property damage liability;
and One Million Dollars ($1,000,000) combined single limit per occurrence. The District
may satisfy the obligations set out in this Section by participation in a government self-
insurance risk pool authorized under state law, including but not limited to the California
Joint Powers Insurance Authority("CJPIA").
District shall cause the CJPIA or other applicable self-insurance risk pool to issue Evidence
of Coverage naming POST as a Protected Party under the CJPIA Memorandum of Coverage
effective February 10, 2005.
9. Compliance with Laws. District shall comply with any and all federal, state, and local
laws, statutes, codes, ordinances, regulations, rules, orders,permits, licenses, approvals and
requirements applicable to the use and occupancy of the Property by District and District shall
not commit and shall not knowingly permit others to commit waste upon the Property.
10. Surrender of Property. Except as otherwise provided in this License, and subject to acts
of God, upon the expiration or earlier termination of the License Tenn, to the maximum extent
the same is reasonably within the control of District, District shall surrender the Property in
substantially the same condition as it was in upon the Effective Date, except for any changes to
such condition made or caused to be made by POST or any of POST's agents, lenders,
contractors, engineers, consultants, employees, subcontractors, licensees, invitees and
representatives.
11. Maintenance and Utilities., During the License Term, District shall not use the Property
for any purpose except as expressly provided in this License. District shall be solely responsible
for the cost of providing any utilities or other services necessary for District's use and occupancy
of the Property. District may authorize its lessees to pay for the cost of utilities or services under
the leases,but this shall not relieve District of its primary obligation to pay for such costs.
District shall promptly pay and/or discharge any liens that may be recorded against the Property
or District's License interest therein resulting from any work performed or materials ordered by
or on behalf of District. During the License Term, District shall maintain and repair the Property
in such manner as reasonably necessary to preserve its existing character; provided,however,
that District shall not be obligated to make any material capital improvements to the Property.
12. Assignment. District may not assign this License to any other party without the prior
written consent of POST, which consent shall not be unreasonably withheld or delayed with
3
respect to an assignment to a party that expressly assumes in writing all of District's obligations
and liabilities hereunder. In the event of an assignment, District shall remain liable for the
payment of all fees and the performance of all of District's obligations under this License, except
if and to the extent such obligations are released in writing by POST.
13. Miscellaneous Provisions.
13.1 Invalidity. If any term or provision of this License or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
License, or the application of such term or provision to persons whose circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected.
13.2 Successors and Assigns. Subject to the limitations set forth above, the terms,
conditions and covenants of this License shall be binding upon and shall inure to the benefit
of each of the Parties, their heirs,personal representatives, successors or assigns, and shall
run with the land.
13.3 Writina No waivers, amendments, alterations or modifications of this License, or
any agreements in connection with this License, shall be valid unless in writing and duly
executed by both POST and District or their respective successors-in-interest.
13.4 Construction. The captions appearing in this License are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or intent of such
paragraphs of this License or in any way affect this License. Any gender used shall be
deemed to refer to any other gender more grammatically applicable to the party to whom
such use of gender relates. The use of singular shall be deemed to include the plural and,
conversely, the plural shall be deemed to include the singular.
13.5 Notices. Any notice, demand, or request required hereunder shall be given in
writing at the addresses set forth below by any of the following means: (a)personal service;
(b)telephonic facsimile transmission; (c) nationally recognized overnight commercial mail
service; or(d) registered or certified, first class U.S. mail, return receipt requested.
If intended for District, addressed as follows:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If intended for POST, addressed as follows:
Peninsula Open Space Trust
3 000 Sand Hill Road, 1-15 5
Menlo Park, CA 94025
Attn: Audrey C. Rust, President
TEL: (650) 854-7696
FAX: (650) 854-7703
4
Such addresses may be changed by notice to the other party given in the same manner as
above provided. Any notice, demand or request sent pursuant to either clause(a) or(b),
above, shall be deemed received upon such personal service or upon dispatch by electronic
means (provided, however, that a dispatch by facsimile transmission that occurs on any day
other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until
9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent
pursuant to clause(c), above, shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause(d), above,
shall be deemed received forty-eight(48) hours following deposit in the U.S. mail.
13.6 Authority to Sign. The parties executing this License on behalf of POST and
District represent that they have authority and power to sign this License on behalf of POST
and District, respectively.
13.7 Conflict of Laws. This License shall be governed by and construed pursuant to
the laws of the State of California.
13.8 Attorneys' Fees. If either party should bring suit or seek arbitration under this
License,because of the breach of any provision of this License, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein shall be paid by
the other party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action or arbitration and shall be
enforceable whether or not the action is prosecuted to judgment.
13.9 Waiver. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall any custom or
practice that may arise between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of POST or District to insist upon the
performance by District or POST in accordance with said terms.
13.10 Time. Time is of the essence with respect to the performance of every provision
of this License in which time of performance is a factor.
13.11 Prior Agreements. This License contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this License, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
13.12 SeverabiliM. Any provision of this License that shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provisions hereof, and all other
provisions shall remain in full force and effect.
111
POST AND DISTRICT, by their execution below, indicate their consent to the terms of
this License and Management Agreement.
For POST:
PENINSULA OPEN SPACE TRUST,
a California no-profit public benefit corporation
By:
Audrey C. Rus resident
Date: y O�
For DISTRICT:
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
APPROVE AND AA CEPTED:
By:
L. Cra on, General Manager
Dater a/d
APPROVED AS TO FORM:
By:
Susan M. Schectman, General Counsel
ATTEST
:
By•
Sal eifoldt, Di i lerk
Date: a O-
6
EXHIBIT A
28391825
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California,
County of Santa Clara, City of Saratoga, described as follows:
PARCEL ONE:
Commencing at an iron bar at the corner of Lot A of the
Paradise Subdivision in the center of Stevens Creek Road and on
the line between Sections 4 and 5, Township 8 South, Range 2
West, M.D.M. , from which a black oak 10 inches in
diameter bears North 84 deg. 01 West 22 . 77 feet distant; thence
along the center of Stevens Creek Road on the Southerly lines
of Lots A of the Paradise Subdivision, South 43 deg. 041 East
54 .78 feet to an iron bar; thence South 0 deg, 301 East 120 . 12
feet to an iron bar; thence South 28 deg, 191 East 59 .40 feet
to an iron bar on the line between Lots A and B of the Paradise
Subdivision; thence South 61 deg, 411 West 20 feet to a 3/4
inch pipe; thence North 54 deg, 141 West 61. 80 feet to a 411 x
411 post on the Section line between Section 4 and 5, Township 8
South, Range 2 West; thence North 0 deg, 161 East on Section
line between Section 4 and 5, 185. 80 feet to the point of
beginning, being a portion of the Northwest 1/4 of Section 4,
Township 8 South, Range 2 West.
PARCEL TWO:
The Southeast 1/4 of the Northeast 1/4 of Section 5, Township 8
South, Range 2 West, M.D.B. & M. , and ALL of Lots 1 and 2 of
Section 5, Township 8 South, Range 2 West, M.D.B. & M.
EXCEPTING THEREFROM all that portion lying Northerly of the
Southerly line of the Bordi Subdivision" a Map of which was
filed for record in the office of the Recorder of the County of
Santa Clara, State of California, on August 20, 1924 in Book S
of Maps, Page 28 .
PARCEL THREE:
All of Lots 25 and 26, as shown upon that certain Map entitled,
"Map of Bordi Subdivision" , which Map was filed for record in
the office of the Recorder of the County of Santa Clara, State
of California, on August 20, 1924 in Book S of Maps, at Page 28 .
EXCEPTING THEREFROM all that portion of Lot 25 and more
particularly described a follows:
Beginning at an iron bar in the center line of Stevens Creek
Road at the Southerly common corner for Lots 24 and 25, as said
Continued on next page
-2-
EXHIBIT A 28391825
Road and Lots are shown on the Map above referred to; thence
along the said center line of Stevens Creek Road North 44 deg,
151 West 50. 00 feet to an iron bar and North 71 deg, 321 west
31.50 feet to an iron bar; thence leaving said center line and
running North 18 deg. 281 East 90 feet, more or less, . to a 3/4
inch iron pipe at the base of a 60 inch Hickory oak on the
Northerly line of said Lot 25; thence East along the said
Northerly line of Lot 25, for a distance of 127.23 feet, more
or less, to the Northerly common corner for said Lots 24 and
25; running thence South 34 deg. 451 West along the dividing
line between said Lots 24 and 25 for a distance of 159. 63 feet
to the point of beginning.
PARCEL FOUR:
All of Lots 3 and 4 and the South 1/2 of the Northwest 1/4 of
Section 5, Township 8 South, Range 2 West, M.D.B. & M.
Excepting therefrom all that certain tract of land described in
the Deed from Seligman Weilheimer to John Widney, dated January
5, 1893, recorded January 7, 1893 in Book 156 of Deeds, Page
12, Santa Clara County Records, and more particularly described
as follows:
Beginning at a stake marked W. W. 7 standing in the 1/4 Section
line running East and West through the center of Section 5,
Township 8 South, Range 2 West and being distant East 19. 59
chains from the 1/4 Section corner between Sections 5 , and 6
Township 8 South, Range 2 West and from which stake a Madrone 4
inches in diameter marked B.T.W.W. 1 bears South 780 West 31
links and a Madrone 6 inches-in diameter marked B.T.W.W. 1
bears North 51 1/20 East 15 links and running thence North
435.60 feet to a stake marked W. W. 2 from which an iron oak 14
inches in diameter marked B.T.W.W. 2 bears North 11 1/40 East
61 1/2 links and black oak 4 inches in diameter marked B.T.W.W.
2 bears North 63 1/40 East 60 links; thence East 1000 feet to a
stake marked W. W. 3 from which a black oak 6 inches in
diameter marked B.T.W.W. 3 bears North 75 1/40 East 13 1/2
links and black oak 5 inches in diameter marked B.T.W.W. 3
bears South 30 West 12 links; thence South 435 .60 feet to a
stake marked W.W. 4 standing in the 1/4 section line running
East and West through the center of Section 5 Township 8 South,
Range 2 West and thence along said 1/4 Section line, West 1000
feet to the point of beginning. Containing approximately 10. 00
acres and being a part of the South 1/2 of the Northwest 1/4 of
Section 5, Township 8 South, Range 2 West. Courses True.
Variation 16 1/2* East.
APN/ARB: 503-04-001; 503-05-016 & 034 and 503-06-024
End of Legal Description
Continued on next page
-3-
h
I -
Attachment 1
j Funding Agreement
FUNDING AGREEMENT
Stevens Creek County Park & Monte Bello Open Space Preserve
This is a Funding Agreement (Agreement) between the COUNTY OF SANTA CLARA
(COUNTY) and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT (DISTRICT) for the
contribution of COUNTY funds for the DISTRICT's acquisition of real property next to
COUNTY's Stevens Creek County Park and DISTRICT's Monte Bello Open Space Preserve.
RECITALS
A. The DISTRICT purchased from Khodadad Keyani and Judith A. Keyani, Trustees of the
Keyani Family Trust dated June 12, 1986 (Seller), for parks and open space purposes,
property described and shown in Exhibit A (Property), which is attached and incorporated
by reference. The DISTRICT acquired the Property for Five Hundred Fifty Thousand and
No/100s ($550,000.00).
B. The Property adjoins lands owned by COUNTY and DISTRICT. DISTRICT has entered
into a Purchase Agreement to acquire title and possession of the Property on March 18,
2005, pursuant to the Purchase Agreement between DISTRICT and Seller dated December
15, 2004, and approved by the District's Board of Directors by Resolution No. 04-46.
C. The Property is shown respectively in the Regional Parks, Trails, and Scenic Highways
Element of the General Plan and the County-wide Trails Master Plan of Santa Clara County
as potential parkland and a regional trail corridor.
D. COUNTY wishes to enhance the park, open space, and regional trail facilities of the area
by contributing funding to the DISTRICT'S acquisition of the Property. DISTRICT and
COUNTY agree that DISTRICT shall hold fee title to the Property and manage the Property
as part of the DISTRICT'S Monte Bello Open Space Preserve. District shall convey to
COUNTY an Open Space Easement over the Property.
Therefore, it is agreed as follows:
1. PURPOSE OF AGREEMENT
The purpose of the Agreement is to provide the conditions for COUNTY to contribute
to the DISTRICT fifty percent (50%) of the DISTRICT's purchase price of the Property to
add to park, recreation, scenic and open space lands along Stevens Canyon next to
COUNTY's Stevens Creek County Park and DISTRICT's Monte Bello Open Space Preserve
subject to the conveyance in Paragraph 5.
2. TERM
DISTRICT shall acquire the Property and convey an Open Space Easement to the
County within 90 days of execution of the Agreement or COUNTY may terminate the
Agreement without further obligation to the DISTRICT.
3. COUNTY CONTRIBUTION
COUNTY shall contribute Two Hundred Seventy-Five Thousand and No/100 Dollars
($275,000.00) to DISTRICT to assist the DISTRICT with the purchase of the Property upon
receipt of the fully executed Open Space Easement to the County for recording.
In consideration of County's contribution, DISTRICT shall convey to COUNTY an open
Page I ofZ4
DUPLICATE ORT'ITNAL
space easement over the Property in the form set out in the attached Exhibit A, which is
incorporated by reference. DISTRICT shall dedicate the Property to public use as described
in Section 5 below.
4. ACQUISITION RESPONSIBILITY
DISTRICT shall be responsible for all acquisition activities for the purchase of the
Property.
S. DEDICATION
DISTRICT shall dedicate its interests and rights in the Property according to Section
5540 of the California Public Resources Code.
6. HOLD HARMLESS
DISTRICT shall defend, hold harmless and indemnify COUNTY, its officers, agents, or
employees from all claims for injuries to persons or damage to property which arise from
the provisions of this Agreement and which result from negligent acts or omissions of
DISTRICT, its officers, agents or employees.
7. RECITALS & EXHIBITS
The recitals above and the attached exhibits are incorporated into the terms of this
Agreement by reference.
This Agreement shall take effect on the latest date shown below:
COUNTY OF SANTA CLARA MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
By: BY:
Liz iss, Chair, i Presi , Boar of Directors
Bo of Supervisors Z 3 G
Date:
MAR 0 1 2005 Date:
Attest:
Attest:
By.
Y
By: Sally�Thi Idt, Distric erk
PhyIHKW Perez, 11)
Clerk of the Board of Supervisors Date:
Date: MAR 0 1 2005
i
Approved as to form and legality:
Approved as to form and legality: By:
`� ' usan M. Schectman, General Counsel
By: '(� L
Kathryn A. Mrry, U Date: 2
Deputy le-
Counsel
Date: r.P. 2 UoJc'
Page 2 of.?q
Attachment 2
Open Space Easement
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EXHIBIT A
Open Space Easement
Recording requested by, and
when recorded return to:
County of Santa Clara
Parks and Recreation Department
298 Garden Hill Drive
Los Gatos CA 95032
Attn: Real Estate
No Documentary Transfer Tax due:
Revenue&Taxation Code §11922
Exempt From Recording Fees:
Government Code §§6103, 27383
Park: Stevens Creek
OPEN SPACE EASEMENT Project: Keyani/MROSD
APN: 351-16-021
RECITALS
A. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT (DISTRICT) and the COUNTY OF
SANTA CLARA (COUNTY) entered into an agreement (Agreement) dated,
2005, in which the COUNTY granted $275,000 to enable DISTRICT
to purchase real property located in an unincorporated area the County of Santa Clara,
as described and shown in Exhibit I (Open Space Property) and now part of the Monte
Bello Open Space Preserve.
B. DISTRICT an
d COUNTY wish to maintain the Property
rt as Part of the open space,
,
recreational, ecological and aesthetic resources of the midpeninsula area in perpetuity.
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, DISTRICT
grants to COUNTY an easement on the Property for public open space and recreation
purposes as follows:
1. PURPOSE
The purpose of this Easement is to ensure that the Open Space Property will be retained-
in perpetuity in its natural, scenic, open space and wooded condition and to prevent any use
of the Open Space Property that will significantly impair or interfere with its natural, scenic,
open space, wooded condition and recreational values. Accordingly, this Easement restricts
the use of the Open Space Property for the purposes of public recreation, nature study,
enjoyment of views, open space, natural habitat, preservation, environmental protection,
wildlife-oriented education or research, compatible agriculture, and related uses consistent
with this Easement and according to the policies of DISTRICT for use and management of its
open space lands.
2. RESTRICTIONS ON USE BY DISTRICT
DISTRICT covenants and agrees for itself and its successors and assigns that DISTRICT
shall strictly adhere to the following except where contrary rights are specifically retained as
described in section 3 below:
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a. Dedication. DISTRICT shall dedicate the Open Space Property for public park, low-
intensity recreation, open space, and compatible agricultural purposes in perpetuity
according to Section 5540 of the Public Resources Code of the State of California.
b. Natural Resources. No native plant, tree or wildlife species shall be disturbed now
or in the future on the Open Space Property except to abate disease; eliminate an
imminent hazard to the health, safety, or welfare of the general public; or as
approved by DISTRICT as part of a plan for public access, resource management,
and restoration described in Section 3 below without the prior consent of COUNTY
or its successor or assignee.
c. COUNTY Review. COUNTY reserves the right to review and comment on any plan
for significant improvements to the Open Space Property such as, but not limited
to, those improvements and restoration plans described in Section 3 below. At a
minimum, DISTRICT shall submit to COUNTY a site plan showing the location of the
proposed improvements or restoration before DISTRICT's final approval. Within
(60) days from submission of plans to COUNTY, COUNTY shall provide written
comments to DISTRICT. Comments shall be advisory only. DISTRICT shall
consider COUNTY's comments but shall be free to accept, reject, or modify the
plans as deemed necessary. DISTRICT shall make the final decision on any plans
or improvements for the Open Space Property consistent with the terms and
conditions of this Easement.
d. Master Plan. If DISTRICT prepares a Master Plan for Monte Bello Open Space
Preserve that includes the area of the Open Space Property, DISTRICT shall consult
COUNTY during the development of the Master Plan. If a committee or task force is
formed to assist with preparation of the Master Plan, DISTRICT shall offer to include
a COUNTY representative in such a committee or task force.
3. DISTRICT'S PERMITTED USE AND RIGHTS
a. DISTRICT Use. DISTRICT reserves the right to use the Open Space Property for
open space purposes in any manner consistent with the DISTRICT's Basic Policy;
the stated purposes, terms, conditions, restrictions and covenants of this
Easement; DISTRICT's enabling legislation; and with existing zoning and other
laws, rules and regulations of the State of California and the County of Santa Clara,
or any other agency having jurisdiction, as such laws, rules and regulations may
hereafter from time to time be amended.
b. Planning, Development & 012eration. DISTRICT may plan, develop, and use the
Open Space Property for public open space, protection of natural habitat, low-
intensity recreational use,
and compatible agricultural use in accordance with
DISTRICT policies and ordinances. DISTRICT may plan, design, construct and
operate public open space facilities, including but not limited to multi-use trails,
public parking areas, public restrooms, wildlife-observation and environmental-
educational facilities, picnic areas, backpack camps, employee residences,
maintenance facilities, and related infrastructure, such as water systems, consistent
with the limitations set forth in Section 2 above.
c. Natural Resource Projects. DISTRICT may conduct natural resource restoration and
resource-management projects including, but not limited to, removal of non-native
or diseased vegetation, forestation or reforestation with native plants, or scientific
study, consistent with limitations set forth in Section 2 above.
d. Restoration. DISTRICT may restore cultural, historical, and agricultural land uses
deemed consistent with protecting the property's natural resources and compatible
with public open space facilities described above and consistent with limitations set
forth in Section 2 above.
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e. Enforcement. DISTRICT may enforce any law, statute, ordinance, regulation, code
or rule of any lawful governmental authority including, but not limited to,
DISTRICT's Regulations for Use of Midpeninsula Regional Open Space District Lands
as are now in effect and may hereinafter be amended from time to time.
f. DISTRICT Policies & the California Environmental Quality Act (CEQA). DISTRICT
shall plan, use, and manage the Open Space Property according to all applicable
DISTRICT land management policies and CEQA including environmental review and
processes for incorporating public input, public workshops, and public hearings
before DISTRICT Board approval and implementation of any use or management
plans.
4. CONDEMNATION
If another public or quasi-public agency seeks to acquire the Property for another public
use, Section 1240.680 of the Code of Civil Procedure and Section 5542.5 of the Public
Resources Code shall apply and be asserted by both COUNTY and DISTRICT.
5. ENFORCEMENT
DISTRICT grants to COUNTY the right, but not the obligation, to enter upon the Open
Space Property to monitor and enforce any term, condition, restriction, or covenant of this
Easement, or to prevent or prohibit the violation of any conditions, restrictions, or covenants
of this Easement, which will or could destroy the natural and scenic characteristics of the
Open Space Property.
6. COSTS AND RESPONSIBILITIES
DISTRICT retains all responsibility and cost for the ownership, operation, upkeep, and
maintenance of the Open Space Property. DISTRICT shall keep the Open Space Property
free of any liens arising out of any work performed for, materials furnished to, or obligations
incurred by DISTRICT. DISTRICT, its successors, and assigns shall be responsible for,
indemnify, and save harmless COUNTY, its officers, agents, and employees from all
liabilities, claims, demands, damages, or costs arising from the injury or death of any person
or physical damage to any property, or any act, omission, or condition occurring on the
Open Space Property except for the active negligence of COUNTY, its officers, agents, or
employees. DISTRICT's duty to indemnify and save harmless includes the duty to defend as
set forth in Civil Code Section 2778.
7. RECORDING
COUNTY shall record this Easement in the Official Records of Santa Clara County,
California. COUNTY may re-record this Easement whenever re-recording is required to
preserve COUNTY's rights in this Easement.
S. GENERAL PROVISIONS
a. Choice of Law. The internal laws of the State of California shall govern the validity
of this Easement, the construction of its terms, and the interpretation of the rights
and duties of the parties, regardless of any choice of law principles.
b. Rights Cumulative. Each and all of the parties' various rights, powers and remedies
shall be considered cumulative with, and in addition to, any other rights, powers,
and remedies which the parties may have at law or in equity in the event of the
breach of any of the terms of this Easement. The exercise or partial exercise of any
right, power, or remedy shall neither constitute the exclusive election thereof nor
the waiver of any other right, power, or remedy available to such party.
c. Notice. Whenever either party wishes or is required to give any notice, demand, or
request concerning this Easement, each such communication shall be in writing and
Page 5 of 9
deemed to have been validly served, given, or delivered if:
• Deposited in the United States mail, registered or certified with return-
receipt requested, and with proper postage prepaid, or
• Delivered by Federal Express or other private messenger, courier or other
delivery service, or
• Sent by facsimile transmission by telex, telecopy, telegraph, cable or
other similar electronic medium and addressed as indicated as follows:
COUNTY: DISTRICT:
Parks and Recreation Department Midpeninsula Regional Open Space
298 Garden Hill Drive District
Los Gatos CA 95032
330 Distel Circle
Attn: Director Los Altos CA 94022
TEL: (408) 355-2200 Attn: General Manager
FAX:(408) 355-2290 TEL: (650) 691-1200
FAX: (650) 691-0485
A confirmed copy of telegraphic, facsimile, or cabled notice shall promptly be sent by
mail to the addressee. Service of any such communication made only by mail shall be
deemed complete on the date of actual delivery as indicated by the addressee's
registry or certification receipt, or at the expiration of the fourth (4th) business day
after the date of mailing, whichever is earlier. Either party may designate a different
mailing address or a different person to whom such notices or demands are thereafter
to be addressed or delivered, by notice in writing served upon the other as stated
above. Nothing contained in this Agreement shall excuse either party from giving oral
notice to the other when prompt notification is appropriate, but any oral notice given
shall not satisfy the requirements provided in this Section.
d. Severability. If any provision of this Easement or its application to any person or
circumstance is found invalid, the remaining provisions of this Easement or their
application to persons or circumstances (other than those for which it is found invalid)
shall not be affected so long as the purposes of this Easement can still be carried out.
e. Costs of Enforcement. The prevailing party in any litigation or arbitration between the
parties to enforce or to interpret the terms of this Easement shall be entitled to
recover court or arbitration costs and reasonable fees of attorneys, accountants,
consultants, and expert witnesses incurred by such party for the litigation or
arbitration, including costs and fees incurred because of any appeals. The prevailing
party also shall be entitled to recover all costs and fees that may be incurred in
enforcing any judgment or award. This provision shall not be merged into any
judgment, but shall survive any judgment.
f. tions. The captions in this Easement have been inserted solely for convenience of
reference and are not a part of this Easement and shall have no effect upon
construction and interpretation.
9. ENFORCEABLE COVENANT AND RESTRICTION
This Easement, and every term, condition, restriction and covenant in it, is intended
for the benefit of COUNTY, its successors, or assigns, and constitutes an enforceable
restriction. DISTRICT and COUNTY expressly intend that this covenant is to run with the
land to constitute an equitable servitude, and shall bind every successive owner of the
Open Space Property or any interest in it, and shall be enforceable by COUNTY, its
successors, and assigns.
10. NO THIRD PARTY BENEFIT
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I
This Easement is made for the sole benefit and protection of DISTRICT and COUNTY.
Nothing in this Easement shall be deemed to require the approval or consent of any third
party, owner, or occupant of any other parcel of real property located in or out of the
DISTRICT's boundaries other than COUNTY or to create any right in any third party for
enforcement of the terms of this Easement.
This Easement has been executed on the date shown below.
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
By:
President, Board of Directors
Date:
State of California )
County of Santa Clara ) ss.
On , 2005, before me, a Notary
Public in and for said State, personally appeared Larry Hassett, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to this instrument, and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the person or the entity upon behalf of which the person acted executed the instrument.
Notary Public
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EXHIBIT B
Legal Description and Map
Open Space Property
Description:
The land referred to herein is situated in the State of California, County of Santa Clara,
Unincorporated Area, and is described as follows:
THE EAST ONE-HALF OF THE NORTHWEST ONE-QUARTER AND THE EAST ONE-HALF OF
THE NORTHWEST ONE-QUARTER OF THE NORTHWEST ONE-QUARTER OF SECTION 32 IN
TOWNSHIP 7 SOUTH, RANGE 2 WEST, M.D.B.& M.
APN: 351-16-021
Page 8 of 9 i
Upper Stevens crnk
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y I I ♦ ♦ APN 351-16-021
1DO Acres `•ti'
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County Park _ y
a
1 I a Stevens Creek
Master Plan Routes --so.Contours j
County Park
Parcels 10m Cmtours
,
U Lakenpaved Tradl -
Unpaved Road • Buildings S Infrastructure
--- Service Road Fj—].,-rated&y SCCPRD
----Volunteer Trail i I 1
MRDSD Lands
Road I I
nge: cantnMts
f A . T A C L A R A Keyani Property
COUNTY PARKS Date dented sr. sea e.
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Page 9 of 9