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Document Date: 2/28/2007
Document Tape: Resolution
Preserve dame:
Keywords(no more than 4): Santa Clara Valley Water Easement
Project Name:
Project Number:
Vendor or Other Party:
Name(First):
Name (Last):
Address:
APN Number:
Document No, 07-07
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RESOLUTION No. 07-nZ
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
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District on February 28, 2007 at a Regular Meeting thereof, by the following vote:
AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, K. Nitz, C. Riffle, P. Siemens
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
yVl
Secretary Pr dent
Board of Directors oard of 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.
y
C ICJ Q PI AKW KUrN
District Clerk
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RESOLUTION NO.07- 07
RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT AUTHORIZING THE PRESIDENT OR
APPROPRIATE OFFICER TO EXECUTE THE GRANT
OF AN EASEMENT AND LICENSE TO SANTA CLARA
VALLEY WATER DISTRICT,AND AUTHORIZING
GENERAL MANAGER TO EXECUTE ANY AND ALL
OTHER DOCUMENTS NECESSARY OR
APPROPRIATE TO CLOSING OF THE
TRANSACTION(SIERRA AZUL OPEN SPACE
PRESERVE—SANTA CLARA VALLEY WATER
DISTRICT)
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 Grant of Easement and License between Santa
Clara Valley Water district and Midpeninsula Regional Open Space District, a copy of which is
attached hereto and by reference made a part hereof.
Section Two. The General Manager or the President of the Board of Directors or other
appropriate officer is authorized to execute the Easement granting real property interests being
conveyed by the District.
Section Three. The General Manager of the District or the General Manager's designee is further
authorized to execute any and all other documents necessary or appropriate to the closing of the
transaction.
Section Four. The Board of Directors finds that the granting of this real property interest is in
accordance with the Basic Policy of the District and is not detrimental to the open space character
of the Sierra Azul Open Space preserve, and will further the purposes of the District.
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Recorded at the request of
and when recorded return to:
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, CA 95119-3614
Attn: Chief Executive Officer
No Documentary Transfer Tax Due: Exempt From Recording Fees:
Revenue & Taxation Code §11922 Government Code §§6103, 27383
GRANT OF EASEMENT AND LICENSE
WHEREAS, the Santa Clara Valley Water District, a public district ("SCVWD"), was formed to
develop, transport, store, protect, and deliver water; and
WHEREAS, the Midpeninsula Regional Open Space District, a public district ("MROSD"), was
formed by voter initiative to solicit, receive, and hold conveyances of real property and partial
interests in real property by purchase, exchange, gift, or bargain purchase for conservation,
scenic and open space purposes; and
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WHEREAS, MROSD owns certain lands lying in and adjacent to the banks of Guadalupe Creek,
between the outlet of Guadalupe Reservoir and the confluence of Guadalupe Creek and Pheasant
Creek and including that certain public roadway known as Hicks Road, all in Santa Clara
County, and more particularly described herein; and
WHEREAS, SCVWD is obligated to undertake that certain project known as the Upper
Guadalupe River Fish Passage Modifications Concrete U-Frame Channel at Guadalupe Creek,
("Project"); and
WHEREAS, MROSD finds the Project is consistent with its mission and is therefore fully
supportive of the goals of the Project; and
WHEREAS, the Guadalupe River Watershed is the subject of a process under §30')(d) of the
Clean Water Act [33 U.S.C. §§1251 et seq. (1977)] to develop and allocate an appropriate Total
Maximum Daily Load ("TMDL") for mercury under the leadership of SCVWD and the
California Regional Water Quality Control Board, San Francisco Bay Region ("RWQCB"); and
WHEREAS, the potential for the presence of mercury exists on and about the Easement Property
as defined in Paragraph 1 below; and
WHEREAS, MROSD and SCVWD agree that SCVWD should assume all liability and
responsibility for any release or discovery of Hazardous Materials, including but not limited to
mercury in any forrn, as a result of, or in any connected with, the Project;
NOW THEREFORE, consistent with the recitals set forth above, and for valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and because of the mutual
covenants, terms, conditions, and restrictions contained in this Agreement, pursuant to the laws
of the State of California, SCVWD and MROSD agree:
1. Grant of Easement and License.
MROSD hereby grants, and SCVWD hereby accepts, a permanent easement over, in, and on that
portion of Guadalupe Creek owned by MROSD lying northerly of Hicks Road, as generally
depi Icted on Exhibit A and as specifically described in Exhibit B, both attached to and
incorporated in this Agreement by this reference (the "Easement Property"), for the purpose of
conducting the authorized project activities ("Authorized Project Activities") identified in
Paragraph 3 below to implement the Project described in Paragraph 2 below. MROSD also
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grants SCVWD a revocable License over the real property generally depleted in Exhibit C (the
"License Property"). The Easement Property and the License Property shall hereafter be
collectively referred to as the"Property".
2. Proiect Description.
The Project consists of the construction and maintenance of the Upper Guadalupe River Fish
Passage Modifications as described in the following documents:
(a) Final Map and Construction Plan (dated February 2006)
(b) Final Specifications and Contract Documents (dated March 2006)
(c) Operations and Maintenance Guidance Manual (dated January 16, 2007)
Each of these documents (collectively, the"Project Documents") is fully incorporated into this
Agreement by this reference.
Authorized Proiect Activities.
The Authorized Project Activities involve modifying the existing I 100-foot long concrete U-
frame channel in a section of Guadalupe Creek approximately 2,000-feet upstream of the
Pheasant Road intersection, as more specifically set out in the Project Documents identified in
Paragraph 2 above and the maintenance thereof.
4. Requirements and Restrictions.
In connection with the performance of the Authorized Project Activities hereunder, SCVWD
shall at all times:
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a Cause its employees, consultants, agents, contractors, subcontractors and their
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respective employees who perform Authorized Project Activities to adhere to the
scope of work and all of the specifications, design criteria, applicable laws, codes and
standards, work, material, equipment, pollution and storm water controls, work
scheduling and coordination requirements, and all other requirements, practices and
restraints set forth in the Project Documents.
(b) Ensure that MROSD is provided with accurate work schedules indicating when each
of the Authorized Project Activities will be performed on the Property.
(c) Ensure that the existing sidewalls of the U-frame channel are not altered or modified
in any way, and are protected-in-place from damage by the Authorized Project
Activities.
(d) Ensure that no new discharge pathways are created into Guadalupe Creek in
connection with the Authorized Project Activities.
(e) Ensure that any sediments removed from the U-Frame Channel and Guadalupe Creek
are properly characterized, managed as Hazardous Waste if required under federal or
California environmental laws, and properly disposed of according to such laws, all at
no cost or expense to MROSD. SCVWD agrees that MROSD shall not be deemed a
generator of any solid, liquid, or Hazardous Waste generated in connection with
performing the Authorized Project Activities.
(f) Ensure that all areas of the Guadalupe Creek's banks altered in connection with
performing the Authorized Project Activities are restored to a condition that will
prevent erosion and sediment from entering Guadalupe Creek.
5. Additional Conditions for Maintenance, Monitoring and Remediation.
(a) Authorized Project Activities on the License Property are limited solely to the
maintenance and monitoring purposes set out in Paragraph 3 and subject to the
requirements and restrictions set out in Paragraphs 4 hereof. The License granted
herein is revocable by MROSD, at its sole discretion, upon 72-hour written notice to
SCVWD.
(b) SCVWD shall notify MROSD and all other public entities with jurisdiction over such
matters, at least 72 hours in advance of any Authorized Project Activities that will
require closure or otherwise restrict access on Hicks Road.
(c) SCVWD shall notify MROSD and all other public entities required by law to receive
such notice at least 48 hours in advance of any Authorized Project Activities that
involve,sampling in any medium (air, soil, or water) the product of which will be
subjected to laboratory analysis and will result in a data point or other report and shall
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' promptly provide MROSD with copies of all such reports, analysis and data points
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without cost to MROSD.
(d) SCVWD shall at all times obtain, and act in full compliance therewith, all permits and
entitlements required for Authorized Project Activities on the Property and shall
provide MROSD with copies of such promptly upon issuance thereof.
(e) SCVWD shall, at all times when conducting Authorized Project Activities on the
Property, maintain the insurance coverage as set out in Paragraph 18 hereof.
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(f) Upon request, promptly provide MROSD, upon request, with copies of all
documents, reports, analyses, data, photographic or video materials, and any other
material concerning the Project or the Authorized Project Activities without cost to
MROSD.
6. Reasonable Care.
SCVWD shall cause its employees, consultants, agents, contractors, subcontractors and their
respective employees to perform their work activities on the Property, including but not limited
to the Authorized Project Activities, in a safe and workmanlike manner.
7. Damage to Property.
j SCVWD shall promptly repair any damage to the Property, and to any trees, equipment, personal
property, buildings, structures or other improvements to the Property (collectively, "Damaged
Property") caused by, arising from, or in connection with the entry on or use of the Property, or
any activities undertaken thereon by the SCVWD or its employees, consultants, agents,
contractors, subcontractors and their employees, including but not limited to damages resulting
from failure to adhere to the Project Docuinents. SCVWD shall restore any damage arising from
Authorized Project Activities in, to or on the Property to a standard equal to, or better than, the
condition existing prior to such damage. If the Damaged Property is beyond repair, SCVWD
shall pay for the Damaged Property at replacement cost.
8. Waste.
Any and all solid, liquid or other form of Hazardous Waste generated by SCVWD's employees,
consultants, agents, contractors, subcontractors or their respective employees shall remain the
property of the SCVWD. At no cost or expense to MROSD, SCVWD shall remove any and all
such Hazardous Waste as soon as practicable and no later than required by law, and cause it to be
disposed at a licensed disposal facility that accepts the type of Hazardous Waste at issue.
9. California Health & Safety Code Section 25359.7 Notice.
Pursuant to California Health & Safety Code Section 25359.7, MROSD hereby gives notice to
SCVWD, and SCVWD hereby acknowledges receipt of such notice from MROSD, that MROSD
has reasonable cause to believe, based on prior mercury mining operations in the vicinity of the
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Property, that a release of hazardous substances has come to be located on or beneath the
Property.
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10. Indemnification and Hold Harmless.
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SCVWD agrees to indemnify, protect, defend (with counsel reasonably acceptable to MROSD)
jand hold MROSD harmless from and against any and all claims, demands, orders, information
requests, causes of action, actions, suits, administrative or other proceedings, costs, losses,
expenses,judgments, damages, penalties, fines and liabilities, whether known or unknown,
absolute or contingent, foreseeable or unforeseeable or liquidated or unliquidated arising out of,
directly or indirectly, or in any way connected with SCVWD's use of the Property for the
Authorized Project Activities, and any activities related in any manner to the Project, including
without limitation, claims arising from Project impacts off of the Property ("Claim" or
"Claims"). SCVWD's indemnification of MROSD shall include, without limitation, any Claim
for soil, groundwater or other environmental investigation, monitoring, testing, remediation or
cleanup of any kind, or personal or bodily injury relating to the presence or potential presence of
mercury, mercury compounds or any other Hazardous Material. Claims shall also include,
without limitation, those arising from (i) short-term construction related disturbances to stream
sediments causing transport of sediments downstream; (ii) long-term altered stream
geomorphology and hydrology causing erosion and transport of sediments downstream, and (iii)
damage to the U-frame channel causing instability and potential failure or excessive erosion and
sediment transport. As used in this Agreement, the term "Hazardous Material" includes, without
limitation, all substances that are now or in the future identified, regulated or controlled by any
local, state or federal law or regulation as a"hazardous substance," "hazardous material,"
hazardous waste," or"toxic substance" including without limitation the Comprehensive
Envirorunental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.
("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
("RCRA"), the Clean Water Act, 33 U.S.C. § 1251 et seq., the Carpenter-Presley-Tanner
Hazardous Substance Account Act, Cal. Health & Safety Code § 25300 et seq. ("HSAA"),
Hazardous Waste Control Law, Cal. Health & Safety Code § 25100 et seq., Porter-Cologne
Water Quality Control Act, Cal. Water Code § 13000 et seq., or the Safe Drinking Water and
Toxic Enforcement Act of 1986, Cal. Health & Safety Code § 25249.5 et seq.
11. Release and Waiver.
Except to the extent that a Claim arises solely from the active negligence or willful misconduct
c at law r in
SCVWD releases and forever discharges MROSD from an claim o
of MROS
D, SC Y
g
whether known or unknown that SCVWD has or may have in the future arising out of
equity, h Y g q ty,
the physical, environmental, or legal condition of the Property or SCVWD's use of the Property
Project, including without limitation an claim for legal ore equitable contribution or an
for the Pro g q Y
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clam under California Health & Safety Code Section 25359.7 CERCLA, RCRA or the HSAA
or similar provision.
SCVWD SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542, WHICH PROVIDES:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTION OF THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
12. Remedial Action Responsibility.
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j If required by the RWQCB, the California Department of Toxic Substances Control (DTSC), the
United States Environmental Protection Agency (EPA) or any other governmental authority
having jurisdiction over Hazardous Material in the environment, SCVWD shall promptly
commence and proceed with due diligence to complete any environmental investigation and
remediation of any Hazardous Material at, in, under, around or emanating from the Property,
arising from Authorized Project Activities, to standards that satisfy the requirements of any
governmental authority exercising its jurisdiction. SCVWD shall be solely responsible for
payment of the costs of all such investigation and remediation.
13. TMDL Credit.
If implementation of the Project results in a credit in the RWQCB's TMDL process, SCVWD
Ili and MROSD agree that all of such credit shall be fully credited to and attributed to MROSD.
14. Compliance with Laws.
At no cost or expense to MROSD, SCVWD and its employees, consultants agents, contractors,
subcontractors and their respective employees shall obtain authorization for and perform the
Authorized Project Activities in compliance with all federal, state and local statutes and
ordinances, and with all regulations, orders, permits, and directives of appropriate governmental
agencies that exist at the time the authorization is obtained and the Authorized Project Activities
are performed.
15. Permits.
At no cost or expense to MROSD, SCVWD and its employees, consultants, agents, contractors,
subcontractors and their respective employees shall obtain any and all governmental permits
licenses and approvals that are necessary for performing the Authorized Project Activities.
16. Liens and Claims.
SCVWD shall not permit any environmental, mechanic's, materialmen's or other similar liens or
claims to stand against the Property for labor or materials furnished in connection with
performance of any of the Authorized Project Activities. Upon reasonable and timely notice of
any such lien or claim delivered to SCVWD by MROSD, SCVWD may bond and contest the
validity and the amount of such lien, but SCVWD will immediately pay any judgment rendered,
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will pay all proper costs and charges, and will have the lien or claim released at no.cost or
expense to MROSD.
17. Insurance.
SCVWD shall cause all consultants, agents, contractors and subcontractors involved in
performing the Authorized Project Activities, at their sole cost and expense, to keep in force at
all times during the performance of the Authorized Project Activities, all of the following
minimum insurance coverages:
(a) Commercial General Liability insurance covering all operations, including coverage for
completed operations and for contractual liability and including all liability assumed
under this Agreement. The property damage portion shall include coverages for "x," "c,"
and "u" hazards. The Bodily Injury and Property Damage Coverage shall have minimum
limits of$2,000,000 per occurrence and aggregate.
MR.OSD shall be named as an additional insured on all such Commercial General
Liability insurance policies and SCVWD shall provide MROSD with all certificates of
insurance evidencing such additional insured status, as set forth below, no later than three
(3) business days before commencement of any of the Authorized Project Activities. If
the standard ISO Form wording for"OTHER INSURANCE" is not contained in the
Commercial General Liability insurance policies, endorsements must be provided that
this insurance will be primary insurance and no insurance of the additional insured will
be called upon to contribute to a loss.
(b) Workers' Compensation and Employers' Liability insurance, including coverage under
United States Longshoreman's and Harbor Worker Act, when applicable, with minimum
$1,000,000 limits of Employees' Liability coverage and containing a waiver of
subrogation in favor of MROSD.
(c) Auto Liability insurance covering use of any automobiles with a Combined Single Limit
of$1,000,000 per person and per accident. j
(d) All such insurance coverage shall not be cancelable, or subject to material change,
without thin 30 calendar days prior written notice to MROSD. SCVWD shall provide
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MROSD with an ACORD 25-S Certificate of Insurance, or a successor or comparable
form acceptable to MROSD, and shall at all times ensure that such form accurately
v required herein a e e insurance coverages es r fired h r m m b
reflects the coverages then in effect. The i s
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met by a program of self-insurance or pooled risk with comparable coverages limits and
acceptable to and approved in advance by MROSD.
18. Cooperation.
The parties agree to use reasonable efforts to coordinate their activities so as to minimize any
inconvenience to or disruption of MROSD's activities on the Property and to facilitate
performance of the Authorized Project Activities.
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19. Notice.
Any notice, demand, request, consent, approval, or communication that either party desires or is
required to give to the other under this Agreement shall be in writing and shall either be served
personally or sent by first class mail, postage prepaid, addressed as follows:
To SCVWD: To MROSD:
Santa Clara Valley Water District Midpeninsula Regional Open Space District
5750 Almaden Expressway 330 Distel Circle
San Jose, CA 95118-3686 Los Altos, CA 94022-1404
Attn: Chief Executive Officer Attn: General Manager
Telephone: (408) 265-2600 Telephone: (650) 691-1200
Facsimile: (408) 266-0271 Facsimile: (650) 691-0485
or to such other address as either party from time to time shall designate by written notice to the
other.
20. No Warranties or Representations.
MROSD conveys, and SCVWD accepts, this Grant of Easement "AS-IS" without any warranties
or representations as to the quantity of land or the location or extent of the Property, its
condition, fitness or suitability for the Project.
21. General Provisions.
(a) Controlling Law. The laws of the State of California shall govern the interpretation and
performance of this Agreement.
(b) Authority to Execute Agreement. Each party, and the individual executing on behalf of
such party, commits and represents to the other party that it has full and final authority to
execute this Agreement, and that no further action on the part of such party, its
management, or Board of Directors is necessary to make this Agreement a valid and
binding obligation of such party.
(c) Liberal Construction. Any general rule of construction to the contrary notwithstanding, if
any provision g interpretation rovision in this instrument is found to be ambiguous, an inte retation consistent
with the purpose of this Agreement that would render the provision valid shall be favored
over any interpretation that would render it invalid. This instrument shall be construed in
accordance with its fair meaning and shall not be construed against either party on the
basis that such party prepared this instrument.
an provision of this Ag
reement, or the application of it to an
(d) Severabihty. If y p g pp any person or p
circumstance, is found to be invalid,the remainder of the provisions of this Agreement,
or the application of such provision to persons or circumstances other than those as to
which it is found to be invalid, as the case may be, shall not be affected thereby so long
as the purposes of this Agreement can still be carried out.
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(e) Entire Agreement. This document, together with all of its Exhibits, constitutes the
complete agreement between the parties regarding the matters set forth herein and any
other communications, representations or warranties, whether written or oral, are of no
force or effect upon and after execution of this Agreement.
No Third Party Rights. This Agreement is made and entered into for the sole benefit and
protection of SCVWD and MROSD and their respective successors and assigns. No
person or entity other than SCVWD and MROSD and their respective successors and
assigns shall have any right of action under this Agreement or any right to enforce its
terms and provisions.
(g) Successors. The covenants, terms, conditions, obligations and restrictions of this
Agreement shall be binding upon, and inure to the benefit of SCVWD', MROSD and their
respective successors and assigns, and shall continue as servitudes running in perpetuity
with the Property.
(h) Termination of Rights and Obligations. Except as expressly provided otherwise in this
Agreement, a party's rights and obligations under this Agreement shall terminate upon
the transfer of such party's interest in the Agreement, or of the fee title to the Property, as
the case may be, except that rights, obligations, and liability relating to acts or omissions
occurring prior to transfer shall survive transfer.
(i) Captions. The captions in this Agreement have been inserted solely for convenience of
reference and are not a part of this Agreement and shall have no effect upon construction
or interpretation.
Counterparts. SCVWD and MROSD may execute this Agreement in two or more
'counterparts with each counterpart deemed an original instrument. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be
controlling.
(k) Attorney Fees. If legal action shall be brought by either of the parties, the party
prevailing in the action shall be entitled to recover from the party not prevailing the costs
of the suit and reasonable attorney's fees. For purposes of this Agreement, the reasonable
fees for attorneys employed by either MROSD or SCVWD, either under contract or by
statute, shall be based on the fees regularly charged by private attorneys with an
equivalent number of years of experience in the subject matter area of the law actively
practicing within the San Francisco Bay Area.
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IN WITNESS WHEREOF, SCVWD and MROSD execute this Agreement:
Santa Clara Valley Water District:
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By: Date:
Stanley M. Williams
Chief Executive Officer
Approved as to Form and Procedure: Attest:
By: --- By:
Debbie Cauble
District Counsel District Clerk
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MIDPENINSULA REGIONAL OPEN SPACE DISTRICT:
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f By: Date:
Kenneth C. Nitz
President, Board of Directors
Approved as to Form and Procedure: Attest:
By: By:
Susan Schectman Sally Rice
General Counsel District Clerk
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EXHIBIT A
SANTA CLAR.a COUNTY
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PARCEL 2 o9�Go
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PARCEL 1
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LOCATION
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GUADALUPE WATERSHED GUADALUPE CREEK
L'IIDPENINSL'LA REGIONAL PROJ. NO. 3026
FILE NO. 118
OPEN SPACE DISTRICT iAPN 575 04-007
Sara Cforo1�ailey Water District LOS GATOS. CA 95032
DRAWN JGP
DATE 07/15/05 I
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MIDPE )ULA REGIONAL OPEN SPACE DISTRICT
SHEEP 3.�,
GUADALUPE RUBBISH
DISPOSAL CO. INC.
DOC#4 586042
q 575-W-006
qcR 11 I
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o ET 2__• I
?EIDPE \INSULA REGIONAL.
OPEN SPACE DISTRICT r
DOC#1293 3034
57 5-04-(.)0 i
f
CUADALUPE RUBBISH
D1SPOS.JL CO. INC:.
C1P?a DOC#458604 �\
N
C.� ;i>-a4 clo6 c
t�S E2
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(7)
ti
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A F BEARING:BASIS A
cD '1
o The basis of bearing, N44°05'42'E along the southeasterly
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line of the lands described in the deed recorded as Document �t1DP1_NIN ACE DISTRICT
� ', UPliti 31.ACL• D1S1-RICT
0-
Number 4586042 of Official Records,Santa Clara County D(X:#12933034
Records was taken as the basis of bearings. 575-04-007
o t
Iw LAND S,
w �� AREAS TO BE ACQUIRED
DWIGHT J.
_U BUSALACH1 PARCEL 1 = 6478 Sq.Ft. or 0.149 Ac.±
¢o /' APARCEL 2 = 4330 Sq.Ft. or 0.099 Ac.±
li(S 17 0
Area In Hicks Road = 2271 Sq.Ft. or 0.052 Ac.±
2-31-05 `Q TOTAL = 13079 Sq.Ft. or 0,300 Ac.±
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0
F0 CA.��F
a PROJ. NO. 13026
0
oSar*o GorOVolley Woter DisbicE SCALE: 1" = 300' FILE NO. 18
0 APN 575-04-007
s REV. APPR. DATE DESCRIPTION TITLE REPORT NO.
s 1 I I DRAWN JGP
2 DATE 07/13/05
Sheet 1 of 3
MIDPENIN—LA REGIONAL OPEN SPACE DISTRICT
z....L T.P.0.8. MATCH LINE SEE SHEET 3
PARCEL 1
I
I 3
t
i
�690 II
s' Gt:ADALUPF RUBBIS1-I
DISPOSAL CO. INC.
DOC#4 58604 2
575-04-006
'Po
I[DPENINSULA REGIONAI.
OPEN SPACT? DISTRICT
DOC# 12933034
573-04-OU7
2
`�C14 BASIS OF BEARING:
LO s�
The basis of bearing, N44105'42"E along the southeasterly
line of the lands described in the deed recorded as DocumentCD
Number 4586042 of Official Records, Santa Clara County
Records was taken as the basis of bearings.
� P.O.B. (PARCELS i & 2) �
.1p Fd. Granite Mon. ;
SAND S� "C.C.C.F.LLJ
" /
DWIGHT J.CL 110`s9.
U BUSAU�C I 0 moo.
C J r'Li XI 3 k�e
o
Gas OS
. 12-31-05LU
t a 6
U I'
F0F CAL\FO
E: PROJ. NO. 3026
G18
� 0 Clarolfalley Woker DistrictSCALE: 1" = 100' FILE NO.
� APN 575-04-007 I
REV. APPR. DATE DESCRIPTION TITLE REPORT NO.
0 1 I DRAWN JGP
31
DATE 07/13/05
U 2
"' Sheet 2 of 3
MIDPENINSI" " REGIONAL OPEN SPACE DISTRICT
L15 LINE TABLE
S27,.5p'OZ L14 LINE BEARING LENGTH
fan Sr9 r L1 N83`46'15"E 42.30'
�\ L2 N11°11'37"E 20.91Y
L3 N00'38'42"E 12.83'
See Detail
and. L4 N29°06'29"E 22.24'
/< L5 N05141'22"W 42.25'
/�O '1° L6 N41"02'24"1N 14.02'
J r4 s L7 S42'31'03"E 71.43'
e �r o o• L
\ S v L8 I N42"31'03"W 21.90'
L9 N45'35'22"W 20.78'
L10 N44'53'54"W 30.07'
�0a DETAIL L11 N61°04'58"W 45.51'
�C .00 N.T.S. L12 N64'49'13"W 45.53'
'dos L13 N59'03'48'W 46.40'
O- L14 N62°09'17"E 13 8 8'
7 rO„ L 15 N62'09'17"E 12.97'
U 1.
� Lib S23`42'28"E 49.9
L17 S23`42'28"E 12.69'
l L ig S62`45'55"E 7.89'
L19 542'31'03"E 114.77'
CURVE TABLE
CURVE RADIUS DELTA LENGTH GUADALUPf1 RUI3BISII
C1 135.D0' 35°21'02" 83.29' DISPOSAI, CO. [NC'.
C2 420.00' 16'1V05" 118.64' IOC #45$6042
C3 395.00' 9°23'39" 64.76' �
C4 455.00' 6'50'42" 54.30
C5 455.00' 8'18*21" 65.96,
C6 i95.00' 31-13.47" 106.29' L10 T.P.0.B.
JIIDPENINSUI_A REGIONAL L9 L8 PARCEL 2
OPEN SPACE DISTRICT \
DOC:# 1293 3034 L6
175-04-M7
n .
BASIS OF BEARING:
The basis of bearing, N44'05'42"E along the southeasterly 30.00.,
line of the lands described in the deed recorded as Document30.00 — Proposed R/W
Number 4586042 of Official Records, Santa Clara County
Records was taken as the basis of bearings. l L3
J t2, m
SAND S
DWIGHT J. l 4 >
U BUS C I � �' �• �
_ � •O � u, ca . _
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1 F. 12 31-05
�Q- T.P.O.B.
�l O� PARCEL 1 MATCH LINE SEE SHEET 2
FOF CAS\F
PROJ. NO, 3026
Santa Gara Valley Waken Diklid SCALE: 1"= 100' FILE NO. 18
APN 575-04-007
REV. APPR. DATE DESCRIPTION TITLE REPORT NO.
' DRAWN JGP
1
DATE 07/13/05
2
Sheet 3 of 3
EXHIBIT B
SAN'T' A CI. ARA VALLEY WATER DISTR`T
San .lose, California
By-J.GAR.CIA-PAUNIL
Date: July 13. 2005
Date Revised:
Revised By:
Checked by:
PROJECT: FISH PASSAGE MODIFICATIONS FOR ti-FRAME CHANNEL IN GUADALUPE RIVER
PROPERTY: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT File No.: 3026-19
of C.,diforma, described as ffllows�
(hat certain rcl'il property situate In the Count? of'Santa Cima, Stag. of
Being a portion of the lands described as PARCEL ONE in the deed recorded as Document Number 12931304
of Official Records. in the,office of the Recorder. County Of Santa Clara. State of Ca11fbrma, to \k.lt:
PARCEL I
BEGINNINGatthe found i-ganitz monument markedCCCF"as described in the deed recorded as Document
Number 4586042, Santa Clara County Records-, thence along the southeasterly line of the lands as described in
said deed, S44'05'42"'W 66.00 feet to a point on the general northerly line of the lands described as PARCEL
ONE In the deed recorded as Document Number 12933034, Santa Clara County Record,,, thence along said
creneral northerly line as described in said deed, the following three courses: N69'1 I'38-W 50.00 feet:
Z,
N48n59'56"W 327.97 feet, N64'I 4'22"W 481.34 feet to thegencral easterly line of the lands as described in
said deed; thence along said general easterly line, N09"02"17"W 149.46 1'ect to the TRUE POINT OF
BEGINNING; thence leaving said general easterly line. S83)'46'15"W41.10 feet loapoint on the northeasterly
line ofl-ficks Road asshowrionthal-certain Unrecorded Record ol'Survey entitled"Baseline Monumentat ion
of Hicks Road and Sun-OLindino,", Santa Clara Count,,! Surveyor's Office; thence along said northeasterly line
ol'Hicks Road, N06"06'55\\.! 97. 19 feet- thence leaving said northeasterly line of Hicks, Road the following
rOUr Courses: N I I'll I'37"E 20.90 feet: N00"39'42F__ 12.83 f'cet, N29`06'29"E 22.24 feet, N05'41'22-W
42.25 fect.: thence along a curve to the Jcft, having a radius of 135.00 feet, through a central an,-,Ic oil'
1 '02", for an arc distance of 83.29 feet, thence NA P)02'24"W 14.02 feet to a point on the.general easterly,
line of the lands described as PARCEL ONE in the deed recorded as Document Number 12931034, Santa
Clara County Records. thence along said general easterly line, S42`3 1'03"71.43) I'cet, thence continuing along
said
acricral easterly line, S09'02'37-E 222.80 feet to the TRUE POINT OF BEGINNING.
Containing 6478 square feet or 0.149 acre of land, more or less.
PARCEL
BEGINN ING at the found granite monument rnarked"CCCFas described in the deed recorded as, Document
Number 4586042, Santa Clara County Records; thence along the southeasterly IMC Of the lands as,described M
deed,
said -e d, S44'05'42"W 66.00 feet to a point on the genera} northerly line of the lands described as PARCEL
ONE in the deed recorded as Document Number 12933014, Santa Clara Count-\, Records, thence along said
ueneral northerly line as described in said deed. the following three Courses: N69'I 1 '38\.\! 50.00 feet:
N48"59`56\V 32711.97 feet: N64"14"22-W 481.34 feet to the general easterly line of the aforesaid PARCH.
ONE, thence alon,_, said (general easterly line of said PARCEL ONE, N09'02'37"W 172.26 feet; thence
ontinuffla ;aid -crieral easterly line of said PARCEL ONE. N42")1 '103-W 93.33) feet to the TRUE POINT-
Pzlue I tl 2
0: D:i f;i 31 126-I y d L IC
OF BEGINNING: thence leaving general easterly line ofsaid PARCEL C N45"35'22"W 20.78 feet;
thence N44"53'54-W 30.07 feet:. thence alone a cunoe to the left, havin_ a ramus of 420.00 feet, through a
central angle of 16"1 1'05", for all arc distance of 118.64 Peer; thence N61'04'58"W 45.51 feet; (hence
N64049'13"W 45.53 feet; thence along a curve to the left, having a radius of 395.00 feet, through a central
angle of 09°2 3'39", for an are distance of 64.76 feet to a point of reverse curvature; thence along a curve to the
right, having a radius of 455.00 feet, through a central angle of 06°50'42",for an arc distance of 54.36 feet to a
point on the northeasterly line of Hicks Road as shown on that certain Unrecorded Record of Survey entitled'
Baseline Monumentation of Hicks Road and Surrounding .Area", Santa Clara County Surveyor's Office;
thence leaving said point,and continuing along said curve to the right, having a radius of455.00 feel,through
a central angle of 08'18'21", for an arc distance of'65.96 feet: thence N59°03'48"W 46.40 feet;thence along a
curve; to the right, having a radius of 195.00 feet, through a cenira) angle of 31°l3'47", for an are distance of
106.29 feet; thence N62"09'17"E 13.88 feet to a point on said northeasterly line of said Hicks Road; thence
i leaving said point, N62"09'17"E 12.97 feet to the aforesaid general easterly line of said PARCEL ONE;thence
along said general easterly line of said PARCEL ONE, S23n42'28"E 49.91 feet to a point on said northeasterly
line of Hicks Road; thence leaving said point,and continuing along said general easterly line of said PARCEL
ONE, S23042'28"E 12.69 feet; thence continuing along said �oeneial easterly line ofsaid PARCEL ONE,
S62°45'55"E 7.89 feet to a point on said northeasterly line of Flicks Road; thence leaving said point, and
continuing along said general easterly line of said PARCEL ONE, S62°45'55"E 405.74 feet: thence
continuing said general easterly line of said PARCEL ONE., S42°31 '03" 114.77 feet to the TRUE POINT OF
BL•GINNiNG.
Containing 6601 square feet or 0. 151 acre of land, more or less.
BASS OF BENRING:
The basis of bearing, N44'05'42"E along the southcas(erly line of the lands described as Document Number
4586042 of Official Records, Santa Clara County Records was taken as the basis of bearings for this
description.
The description was prepared by me or under my direction in confbrrrlance with the requirements of tile Land
Surveyor's Act.
D�'t'I']t J. BLlSii)aCC}ll, PI_S7903 vats
\,AN D SUNG
Prepared by the Santa Clara Valley Water District, San Jose, CA
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MIDPENINSULA REGIONAL PROJ. NO. 3026
o FILE NO. 21
I
OPEN SPACED DI
STRICT
o Soria GQfQ��WQEet disri� DR 575-04-007
LOS GATOS, CA 9503? PRAWN JGP
DATE 12/15/06
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UIDPEI 'JLA REGIONAL OPEN SPACE DISTRICT
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N BASIS OF BEARING:
o The basis of bearing. N44°05'42E along the southeasters
g y ?lllll'LNJNSI'1_.\ R1:Gli>.\:\ .
line of the lands described in the deed recorded as Document OVEN SPACE DISTRCT
=� Number 4586042 of Official Records-Santa Clara County 1)(X-a 129330a4
CL PARCEL C1NL•
Records was taken as the basis of bearings.
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FOF CA�-1F
a PROJ. NO. 3026
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SCALE: 1" = 300' FILE NO. 21
QorO VaH �2r Dlskdd
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APN 575-04-007
REV. APPR. DATE DESCRIPTION TITLE REPORT NO.
y 1 DRAWN JGP
2 DATE 12/14/06
Sheet 1 of 3
MIDPE 'ULA REGIONAL OPEN SPACE DISTRICT
N MATCH LINE SEE SHEET 2
I 3
N N0
0
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Gi:11I�:'11_I:PE 12tiI3Y,[Sli
CC). INC.
DOC:# 4-3K6042
\ 575-W--006
MIDPENINStTI_A RI,CIIUNAI,
OPEN SPACE DIS'FRIC"I'
DOC # 12933034
PARCEL ONE
7 -04-cx)7 \
CV \ Z
`"i BASIS OF BEARING: ��
ss
cc The basis of bearing, N44'05'42"E along the southeasterly 3000
line of the lands described in the deed recorded as Document 300°
Number 4586042 of Official Records, Santa Clara County
Ln
Records was taken as the basis of bearings.
�, L�.� P.D.B.
Fd. Granite Mon.
LLJ� �ANp S� "C.C.C.F "
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PROJ. NO. 3026
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oSCALE:
Soma Qafa Val Wdef Di�id 1" = 100' FILE NO. 21
0 APN 575-04-007
?:: REV, APPR. DATE DESCRIPTION TITLE REPORT NO.
1 DRA
WN JGP
U 2 DATE 12/14/06
Sheet 2 of 3
I MIDPE' 'ULA REGIONAL OPEN SPACE DISTRICT
LINE TABLE
\\ LINE BEARING LENGTH
L1 N42'31'03"W 71.43'
L2 S41'02'24'E 14.02'
L3 S05'41'22"E 42.25'
\ L4 S29'06'29"W 22.24'
L5 SOO'38'42"W 12.83'
\�tp L6 S11*11'37"W 20.90'
H�c, L7 N55'42'25W. 12.31'
L8 S64'49'1YE 45.53'
A r L9 S61'04'58-E 45.51'
y \ L10 S44"53'54"E 30.07'
L11 S45"35'22"E 20.78'
L12 S42"31'03"E 21.90'
�a.
h
CURVE TABLE (;UAI)AI-XPE RT'PBISIi
CURVE RADIUS DELTA LENGTH I)IS110SAL CC). fN('.
C1 135.OD' 35"21'02" 83.29' : ? L)OC. # 4586{ya 2
C2 455.00' 06'50'42' 54.36' 5i5_{}q_t)I}6
C3 395.00' 09"23'39" 64.76' �0
C4 420.00' 16'11'05" 118.64'
\ L10
MIDPENIINSIA-A REGION-Al. L11. T.P.O.B.
OPEN SPACE DISTRIC I' L12
DOC# 12933034
PARCEL ONF Lz .
57 5-04-007
\ n
o BASIS OF BEARING:
1
! o
—° The basis of bearing, N44'05'42"E along the southeasterly l o N
r Document °' w
line of the lands described in the deed recorded as �, --Proposed RrN
nta Clara '
Number 4586042 of Official Records, Sa County
Records was taken as the basis of bearings. 'Ls
j L8 0
LU
Y if
Uj LA ND S
30.Up'�30.00' v
DWIGHT J.
Q
EXP. 12 31-07 MATCH LINE SEE SHEET 3
w 9rFOFCp�-1F0�� I - --
0
0- PROJ. NO. 3026
0
oto Cl SanofaVaney Wotes Dis�id6 SCALE: 1" = 100' FILE NO. 21
APN 575-04-007
REV. APPR. DATE DESCRIPTION TITLE REPORT NO.
1 DRAWN JGP
U
2 DATE 12114/06
Sheet 3 of 3
Cover Sheet for Scanning by ECS,
Originating Department General Manager
Laserfiche Template Board of Directors
Template Fields
Document Date: 2/28/2007
Document Ing: Resolution
Preserve Name:
Keywords(no more than 4): Fogarty V. MROSD Settlement
Project Name:
Project Number:
Vendor or Other Party:
Name (First):
Name(Last):
Address:
APN Number:
Document No. 07-08
Additional Field:
Additional Field:
Additional Field:
Additional Field:
RESOLUTION NO. 07- 08
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on February 28, 2007 at a Regular Meeting thereof, by the following vote:
AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, K. Nitz, C. Riffle, P. Siemens
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
/ VI
Secretary P sident -
Board of Directors oard of Directors
O S
I, the District Clerk of the Midpeninsula Regional Open pace 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.
M" v�u-f-
District Clerk
1
RESOLUTION NO. 07-og_
RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT AUTHORIZING APPROVAL AND RATIFYING
THE SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE IN FOGARTY
V.MROSD; AUTHORIZING OFFICER TO EXECUTE CERTIFICATES OF
ACCEPTANCE OF GRANT DEED AND QUITCLAIM DEED TO DISTRICT;
AUTHORIZING GENERAL MANAGER TO EXECUTE SETTLEMENT AGREEMENT
WITH FIRST AMERICAN TITLE COMPANY REGARDING CLAIM NO. SM0369 AND
AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER
DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE
TRANSACTION(COAL CREEK OPEN SPACE PRESERVE-LANDS OF FOGARTY)
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 approve
and ratify the Settlement Agreement and Mutual General Release between Thomas J. Fogarty, K. Angela
MacFarlane, and Brian Beckey and the Midpeninsula Regional Open Space District, a copy of which is attached
hereto and by this reference made a part hereof, and authorizes the General Manager or appropriate officers to
execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors or other appropriate officer or the General Manager is
authorized to execute appropriate Certificates of Acceptance for the Deeds described in the Settlement
Agreement on behalf of the District.
Section Three. The General Manager is authorized to execute a Settlement Agreement with First American Title
Company to resolve and release the claims submitted by the District under Title Policy Number SM-283197,
Claim Number SM0369, relating to the matters at issue in Fogarty v. Midpeninsula Regional Open Space District
and the related Cross-Complaint, Case. No. CIV441934 in exchange for receipt of the sum of Fifty-Five
Thousand Dollars($55,000.00). The form of the Settlement Agreement is subject to approval by the General
Counsel.
Section Four. The General Manager or his designee is authorized to execute any and all other documents in
escrow necessary or appropriate to the closing of the transaction and implementation of the Settlement
Agreement and Mutual General Release.
Section Five. The General Manager of the District is authorized to expend up to$10,000.00 to cover the cost of
title insurance, lot line adjustment or parcel reconfiguration, escrow fees and other miscellaneous costs related to
this transaction.
Section Six. The General Manager and General Counsel are further authorized to approve any technical
revisions to the attached Agreements and documents which do not involve any material change to any term of the
Agreements or documents,which are necessary or appropriate to the closing or implementation of this
transaction.
Section Seven. It is intended, reasonably expected, and hereby authorized that the District's general fund will be
reimbursed in the amount of$400,000 from the proceeds of the next long-term District note or bond issue. This
Section of this Resolution is adopted by the Board of Directors of Midpeninsula Regional Open Space District
solely for purposes of establishing compliance with the requirements of Section 1.103-18 of the Treasury
Regulations. The reimbursement of this payment expenditure is consistent with the District's budgetary and
financial circumstances. There are no funds or sources of moneys of the District that have been, or are
reasonably expected to be, reserved or allocated on a long-term basis, or otherwise set aside to pay the costs of
this open space land acquisition project which are to be paid or reimbursed out of proceeds of indebtedness to be
issued by the District. The Board of Directors hereby declares the District's official intent to use proceeds of
indebtedness to reimburse itself for this open space land acquisition project expenditure.
* * * * * * * * * * * * * * *
i
AMENDMENT TO SETTLEMENT AGREEMENT
AND
MUTUAL GENERAL RELEASE
This AMENDMENT TO SETTLEMENT AGREEMENT AND MUTUAL GENERAL
RE "Amendment")
27
LEASE (the is entered into this day of January, 2010 b
— Y and between
THOMAS J. FOGARTY, K. ANGELA MacFARLANE and BRIAN BECKEY (hereinafter
collectively referred to as "FOGARTY"), and MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT (hereinafter referred to as "MROSD").
WHEREAS, FOGARTY and MROSD entered into that certain Settlement Agreement
and Mutual General Release on February 16, 2007 (the "Agreement"), a true and correct copy of
which is attached as Exhibit 1 hereto and made a part hereof, providing, in pertinent part, for a
conveyance of land to MROSD as specified in Section I thereof;
WHEREAS, subsequent to the execution of the Agreement, FOGARTY and MROSD
undertook diligent efforts to apply for a lot line adjustment from the County of San Mateo for the
lot line for Parcel "C" as specified in Section IA of the Agreement, but FOGARTY discovered
that certain improvements on Parcel "C" had insufficient setbacks to the lot line and may have
been constructed without issuance of all required permits;
WHEREAS, FOGARTY has proposed, and MROSD has agreed, that the parties adjust
the lot line to a new location and dimension instead of the lot line for Parcel "C" specified in
Section I of the Agreement, and FOGARTY and MROSD accordingly submitted an
application for a lot line adjustment which was approved by the County of San Mateo and
recorded September 19, 2008, Document 2008-105680 CONE, San Mateo County Official
Records, a true and correct copy of which is attached hereto as Exhibit 2 and made a part hereof
(hereinafter the "Approval of Lot Line Adjustment").
NOW, THEREFORE, the parties agree as follows:
I Paragraph I A of the Agreement is hereby revised as follows:
A. Conveyance of Land to MROSD.
"FOGARTY shall execute and record a deed conveying fee title to MROSD to all
of the land described and shown as Parcel "IA" in the Approval of Lot Line Adjustment" in the
form annexed hereto marked as Exhibit 3 (the "deed")".
2. Section I B of the Agreement is hereby revised as follows:
"FOGARTY shall quitclaim all right, title and interest in and to the "Proposed 40' Road
Easement to benefit PCL C" shown over portions of parcels "A" and "B" at Book 47 of Parcel
Maps, page 78, San Mateo County Official Records, in the form annexed hereto marked as
Exhibit 4 (the "quitclaim")".
3. Section I C of the Agreement is hereby revised as follows:
C. Development Restriction.
"FOGARTY shall execute and record an enforceable development restriction to
MROSD over a northwesterly portion of Parcel "C", now known as Parcel "2A" pursuant to the
Approval of Lot Line Adjustment, in the form annexed hereto marked as Exhibit 5 (the
"development restriction"). The development restriction shall provide that FOGARTY may use
and maintain the existing building and pond but shall not further develop or improve said
property. The development restriction shall run with the land, bind FOGARTY's successors in
title, and be enforceable pursuant to Civil Code section 1468. The development restriction shall
extinguish all density credits from the County of San Mateo for the area described in said
development restriction".
4. Section I G of the Agreement shall be modified as follows:
G. Dates for Performance.
"FOGARTY shall fully execute the deed, quitclaim deed, and development
restriction, have said instruments fully acknowledged, and return said instruments in recordable
form to MROSD no later than January 31, 2010".
5. Section I H shall be added to the Agreement as follows:
H. Quitclaim of Portion of Conservation Easement.
WROSD shall quitclaim all of its right, title and interest under that certain Grant
of Conservation Easement recorded July 28, 1982, as Document No. 82064165, San Mateo
County Official Records, solely as to the portion of Parcel "B" of the above-referenced Parcel
Map recorded August 17, 1979, Book 47 of Parce I Maps pages 77-78, San Mateo County
Official Records,that has been made a part of Parcel "2A" pursuant to the Approval of Lot Line
Adjustment, to accommodate the setback violations and encroachment of the cottage located
thereon, as more particularly described in the form attached hereto marked as Exhibit 6.
6. Section I I shall be added to the Agreement as follows:
"FOGARTY represents that the only lien on any portion of Parcel C is that certain Deed
of Trust in favor of EverBank and Mortgage Electronic Registration Systems, Inc., recorded
December 28, 2007, Document 2007-181764, San Mateo County Official Records (the
"EverBank Deed of Trust"). FOGARTY shall use its best efforts to obtain a consent of the lender
Linder the EverBank Deed of rust to the Approval of Lot Line Adjustment, deed, and
development restriction, substantially in the form annexed hereto marked as Exhibit 7.
7. Construction of this Amendment. This Amendment modifies the terms and
provisions of the Agreement. In the event of any inconsistency between the terms and provisions
of this Amendment and the terms and provisions of the Agreement, the terms and provisions of
the Amendment shall control. Except as modified herein, the terms and provisions of the
Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, we have signed this Agreement as of the date first above
written.
CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING. DO NOT SIGN IF
YOU DO NOT UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS.
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a public district
0� BY
THOMAS J. F ART tep en E. Abbors
ITS General Manager
K. AN A MacFARLANE
B AN IECKE
4
EXHIBIT 1
SETTLEMENT AGREEMENT
AND
MUTUAL GENERAL RELEASE
This SETTLEMENT AGREEMENT AND THIS MUTUAL GENERAL
RELEASE is entered into this 16th day of February, 2007,by and between THOMAS J.
FOGARTY, and K. ANGELA MacFARLANE, and BRIAN BECKEY (hereinafter jointly
referred to as"FOGARTY") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
(hereinafter referred to as "MROSD").
WHEREAS, a dispute has arisen and THOMAS J. FOGARTY and K. ANGELA
MacFARLANE have filed an action against MROSD in the Superior Court of the State of
California, County of San Mateo, entitled THOMAS J. FOGARTY et al v. MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT, and MROSD has filed a Cross-Complaint against
THOMAS J. FOGARTY and K. ANGELA MacFARLANE, all part of Action Number
CIV 441934 (hereinafter the"Action");
WHEREAS, since the litigation commenced K. ANGELA MacFARLANE has
conveyed an interest in the property to BRIAN BECKEY;
WHEREAS,the parties hereto desire to settle the whole of their differences and
release each other from any and all claims arising out of or in connection with the matters
alleged in the Action;
NOW,THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. GRANT DEEDS AND CONSIDERATION.
A. Conveyance of Land to MROSD.
FOGARTY shall convey fee title to MROSD to all of the land described as Parcel
"B" on that certain Parcel Map recorded August 17, 1979,Book 47 of Parcel Maps pages 77-78,
700632103vl - 1 -
D. Restriction on Trail Location.
MROSD shall have the right to construct a trail on Parcel "B", but the location of
such trail shall be limited to a corridor along the southwesterly portion of Parcel "B", adjacent to
the common boundary line between Parcel "A" and Parcel"B", as follows: Beginning at the
southerly corner of Parcel "B" and extending along the common boundary line between Parcels
"A" and"B" for a distance of 200 feet, the corridor for said trail shall extend to 100 feet of the
common boundary line between Parcels"A" and"B". From that point 200 feet northwesterly
from the southerly comer of Parcel "B,"to the northwesterly comer of Parcel "B", the corridor
trail shall be placed within a corridor which shall be within 50 feet of the common—boundary line
between Parcel"A" and parcel "B". MROSD shall confer with FOGARTY on the trail location
and consider comments by FOGARTY on trail location to minimize any views from the trail of
the FOGARTY residence.
E. Neighbor Permit to MACFARLANE and BECKEY.
MROSD shall issue a Neighbor Permit to MacFARLANE and BECKEY to allow
them pedestrian use of Parcel B on the terms provided in this paragraph I.E. The Neighbor
Permit will allow pedestrian use only,with dogs on leash,but no bicycle or equestrian use, and
allows closure for fire danger, safety and environmental reasons.
F. Consideration, Donation to MROSD or POST, Payment to
Fogarty.
The value for the real property conveyances from FOGARTY described herein is
determined to be a total of ONE MILLION FIVE HUNDRED THOUSAND AND 00/100THS
DOLLARS ($1,500,000.00). FOGARTY hereby irrevocably makes a donation regarding said
conveyances, to be made to MROSD or Peninsula Open Space Trust at FOGARTY's election,to
be exercised in FOGARTY's sole discretion, in the amount of ONE MILLION ONE
700632103vl -3-
San Mateo County Official Records. The parties acknowledge that Parcel `B"was the subject of
a Lot Line Adjustment that includes the northwesterly portion of Parcel"C" shown on said
Parcel Map. By conveyance of fee title to MROSD in accordance with the terms and provisions
of the Subdivision Map Act and the ordinances of the County of San Mateo, the parties shall
cause a lot line adjustment to revert the lot line for Parcel "C"to the locations and dimensions
shown at Book 47 of Parcel Maps,page 78, San Mateo County Official Records. MROSD shall
bear the obligation and cost of processing the lot line adjustment with the County of San Mateo.
B. Ouitclaiim of Easement.
FOGARTY shall quitclaim all right,title and interest in and to the "Proposed 40'
Road Easement to benefit PCL C"shown over portions of parcels"A"and "B" at Book 47 of
Parcel Maps, page 78, San Mateo County Official Records. MROSD shall prepare said
quitclaim deed.
C. Development Restriction.
FOGARTY shall grant an enforceable development restriction to MROSD over
the northwesterly portion of parcel C that is be the subject of the lot line adjustment described
hereinabove. Said area is also described in the second and third paragraphs of the section
entitled"Parcel 1"on Exhibit A of that certain Grant Deed recorded September 19, 2001,
Document 2001-146839, San Mateo County Official Records. The development restriction shall
provide that FOGARTY may use and maintain the existing building and pond but shall not
further develop or improve said property.The development restriction shall be in a form that
shall run with the land, bind FOGARTY's successors in title, and be enforceable pursuant to
Civil Code section 1468. The development restriction shall include all density credits from the
County of San Mateo for the area described in said Conservation Easement. MROSD shall
provide the initial draft of the development restriction to MROSD.
700632103YI -2-
HUNDRED THOUSAND AND 00/100THS DOLLARS ($1,100,000.00). Through an escrow to
be held at First American Title Company,MROSD shall pay to FOGARTY the total sum of
FOUR HUNDRED THOUSAND AND 00/100THS DOLLARS ($400,000.00). Said funds will
be paid upon delivery of the grand deed, quitclaim deed, and Conservation Easement described
in paragraphs IA, 1B, and 1C. MROSD makes no representation or warranty to FOGARTY
concerning the tax consequences of this transaction and FOGARTY OGARTY conclusively agrees to
exclusively rely on his own tax advisors for advice on all tax consequences related hereto. The
tax effect or deductability of this transaction by FOGARTY shall not be a condition to this
Agreement and this Agreement shall be binding upon the parties regardless of the tax effects
thereof.
G. Dates for Performance.
MROSD shall submit the grant deed and quitclaim Deed to FOGARTY and
FOGARTY shall fully execute the same,have the instruments fully acknowledged, and return
said instruments in recordable form to MROSD within thirty(30) days of the date first above
written.
2. MUTUAL RELEASE.
FOGARTY and MROSD hereby release, acquit, and forever discharge the other,
his, her and its successors, assignees, agents, servants, employees,heirs, administrators, trustees,
attorneys,title insurers, and executors, of and from any and all actions, causes of action, claims,
demands, damages, costs, loss of service, expenses and debts whatsoever, in law and in equity,
which they have,have had, or which they or their successors, assignees, agents, servants,
employees, heirs, administrators, trustees, attorneys, and executors, hereinafter can, shall or may
have against said above-named parties on account of or in any way growing out of any matter or
thing which has happened, developed or occurred in the past,present or fixture,whether known
700632103v1 -4-
J
or unknown, suspected or unsuspected, which are in any way connected with, based upon,
related to or arising out of the matters alleged in the Action, including all pleadings filed in the
Action, including any facts alleged in any prior or subsequent pleadings or any facts arising out
of any discovery in the Action. The release by FOGARTY shall include claims, if any, based on
any acts or omission of MROSD's,title insurer, First American Title Insurance Company, and its
affiliate, First American Title Company,related to the Action. The release by MROSD shall
include claims, if any,based on acts or omissions of FOGARTY'S title insurer, Old Republic
Title Insurance Company, related to the Action.
3. DISMISSALS.
The parties shall dismiss their respective complaint and cross-complaint, if any,
against each other with prejudice, each party to bear its own attorneys' fees and costs.
FOGARTY and MROSD agree to refrain and forbear from commencing, instituting or
participating in, either as a named or unnamed party, in any lawsuit, action or other proceeding
against.the other whether brought by themselves or by others on their behalf based on or arising
out of any of the matters, things or facts described or included in the action.
4. AUTHORITY.
FOGARTY and MROSD agree that all parties hereto, and each of them,represent
and warrant that each has the right,power, and authority to execute this Agreement, and further
represent and warrant that they, and each of them,have the exclusive right to prosecute and
compromise the matters set forth in of this Agreement and that none of them has sold, assigned,
conveyed, or otherwise transferred such rights. Each person who has signed this agreement in a
representative capacity hereby represents and warrants that he is duly authorized to enter into this
agreement. FOGARTY and MROSD each warrant that they have not heretofore assigned,
700632103vi '5-
hypothecated or transferred, nor will they in the future in any manner assign or transfer or
purport to assign or transfer to any entity, person, or corporation, any claim, demand, or cause of
action based on or arising out of or in connection with the action.
5. INTEGRATION.
FOGARTY and MROSD agree that no representation or promise not expressly
contained in this Agreement has been made and fiu-ther acknowledge that they are not entering
into this Agreement on the basis of any promise or representation, express or implied. This
Agreement contains the entire agreement between the parties hereto and the terms hereof are
contractual and not a mere recital. This Agreement supersedes any prior agreements and contains
the entire agreement of the parties on the matters covered. Each party hereto has fully and
personally investigated the subject matters of this release and has consulted such independent
counsel as required, and does not rely on any statement of fact or opinion by or of any of the
parties to this general release.
F
6. WAIVER OF CIVIL CODE SECTION 1542.
FOGARTY and MROSD agree that this settlement includes all injuries and
damages to person and/or property whatsoever arising from the matters,things or facts described
or included in the Action, whether such injuries and damages be known or unknown, foreseen or
unforeseen, and whether,they are latent or occur later. FOGARTY and MROSD agree that they
have read and fully understand the statutory language of Section 1542 of the Civil Code of the
State of California and, as to injuries and damages related to the Action, expressly and
specifically waive all rights under said Statute,which reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
700632103vl -6-
7. FULL SETTLEMENT.
FOGARTY and MROSD agree that this Agreement expresses a full, final, and
complete settlement of all of the claims of each party has against the other and shall not be
deemed or treated as an admission of liability or responsibility by the undersigned or anyone for
anyev
ents, activities acts or omissions. Neither shall this Agreement be deemed to be evidence
of the existence,nature or amount of damages alleged by any party hereto, as all payments made
hereunder are in compromise only, and to avoid litigation.
8. ATTORNEYS FEES.
FOGARTY and MROSD agree that the prevailing party in any action or
proceeding henceforth between the parties in regards to any action to enforce this Agreement
shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which
they may be entitled.
9. C'ONSTRUCTION.
FOGARTY and MROSD agree that each of the parties hereto and their counsel
h �ave reviewed this Agreement and agree that any rule of construction to the effect that
ambiguities in the interpretation of this release or any amendment or exhibits thereto, are to be
shall be overned b and
resolved against the drafting party and shall not apply. This Agreementg, y
construed in accordance with the laws of the State of California. This Agreement may be
executed in counterparts.
700632103vl -7-
-FebFE . 16. 2 O73 3:91PM =I HAMERSIOUGHessafftoe 4' ���► c
R NO. 949 • P. 2. '�•c'
E _td. �� zr�or 2���Pu ..�s�i �A�E�s�o�� NO, 94 a 'P. 1 f 3
10. C�U �i COG'Rr JURI�Sj1 'r"►(7N.
Tlaia AF=m=is entered into pursuaAt to Code Of Civil ProcI:dW*Section 664.6
and Met pAr6ec stipulAte dolt the Colin al►stl retain jurisdiction to tx mrce,the terms of this
Agreement until performance in fuli of the terms hemf.
We nave carefitl]y read the I'oregoiny release sud know the eontenis thcrcorand
WC sign the same as our own rme act.
IN WITNESS WHMOF.we have 9iped this Agreement as as ox*dale fgeSt
above written.
CAUTION: MS SIGN1NtDC Ng�
,��YF Yt�Lt Dt7!�T'LY}'X tl+r� Q�i�_I3t)R lIVI7 AY 'I
M URMS.
MMPBN'INS''ULA REGIONAL
OPEN SPAN DESTRUCT
BY
TH0MWAS T.F Ty
i
!'1
S
K.ANGELA MacFAYJ.A E
ECir.EY'
�rE6, i b nUMIM-= u-rim r_ N0. 942 P , 314E31
HAMERSLOUGH
10. CONTD;UINQ COURTJ_URISDICTION.
This Agreement is entered into put-suant to Code of Civil Procedure Section 664,6
and the parties stipWatc that the Court shall retain jurisdiction to enforce the tarns of this
A.greemcnt until perfonnance in full of the terms hereof.
We have carefully read the foregaiug release and know the contents thcreof and
we sign the same as our own free act.
IN VVTINESS WHEREOF,we have signed this Agreement as of the date first
above written.
CAIMON; TIC IS_A RELEASE.READ BEFORE SIGNING.DO NOT
SIGN IF YOU DO NOT UNDERSTAND AND AGREE TO BIS BQUND BY
I=TERMS,
MMI'ENINSULA REGIONAL
OPEN SPACE]DISTRICT
BX
THOMAS J.FOGAR
ITS..
M�
.Al acFARLANE
BRIAN BECKEY
U3 NW_700632103v!(4) 8
OJC 1G4 k'JG
rEa. 16. 20`07 2:43PW �. HAMERSLOUGH _ NO. 942? P. 4/4./
10. CO O T I 10 .
This Agreement is entered into pursu,ard to Code of Civil Procedure-Section 664.6
and the parties stipulate d1k the Court shall retain jurisdiction to enfo=the terms of this
Agreement unffl performance in full of the tears hereof
We have carefully read the foregoing release and know the contents thereof and
we sign the same as our own fine act.
Tait 'WITNESS WHEREOF,we have signed this Agreement as of the date first
above written.
CA.=ON: �' A.R=641 MAD BEFORE SMtN'G DO 1rFOT
IGN IF YOU DO NOT I.MM99� AND AtT D TO BE BOLDM BY
THE TYM
MMPEI INS'ULA REGIONAL
OPEN SPACE DISTRICT
BY
THONLkS s.FOGAPTY'
ITS
I£,ANGELA MacFAR LA B
i
BOCKBY
i
i
US_NW1 700632103vi(4)
TOTAL P.02
02/16/2007 10:40 F.0 6506910487 HROSD Z 002
10, CONTINUING COURT JURISDICTION.
This Agreement is entered into pursuant to Code of Civil Procedure Section 664.6
and the parties stipulate that the Court shall retain jurisdiction to enforce the terms of this
Agreement until performance in full of the terms hereof:
We have carefully read the foregoing release and know the contents thereof and
we sisal the same as our own free act
we have signed Agreement
�T1�7'NESS OF this A men a date IN V�:HEI2E as of the first
above written.
CAUTION: THIS IS A RELEASE.READ BEFORE SJQtM G.DO-NOT
SIGN IF YOU DO NOT UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS.
MMP i L:kREGIONAL OPEN
SPACE TMC'I
THOMAS J.F'OGARTY L. CRAIG BF=ON
General Manager
C
K.ANGELA.MacFARLANE .
BRLAN BECKEY
700632103v1
-8-
ATTORNEY'S CERTIFICATE
I, the undersigned, am a member of the State Bar of California and am the
attorney of record for THOMAS J. FOGARTY and K. ANGELA MacFARLANE in*the
foregoing Action have read the foregoing Settlement Agreement and Mutual General Release
and have advised my clients as to the same.
DATED: February 16, 2007 ROSSI, HAMERSLOUGH, REISCHL&
CHUCK
By:
Ronald R. Rossi
ATTORNEY'S CERTIFICATE
I, the undersigned, am a member of the State Bar of California and am the
attorney of record for MIDPENINSULA REGIONAL OPEN SPACE DISTRICT in the
foregoing Action. I have read the foregoing Settlement Agreement and Mutual General Release
Of All Claims and have advised my clients as to the same.
DATED: February 16, 2007 PILLSBURY WINTHROP SHAW
PITTMAN LLP
By:
S Sommer
US_NW_700632103_1(4)_ -9-
FE6. 16:2007 '2:36PM ROP' AMERSLOUGH NO. 940 P.. 13
ATTORNEY'S IFICA TE
I,the undersigned, am a member of the State Bar of California and am the
attorney of record for MOPENINSULA REGIONAL OPEN SPACE DISTRICT in the
foregoing Action.I have read the foregoing Settlement Agreement and Mutual General Release
Of All Claims and have advised my clients as to the same.
DATED: February 16,2007 JEFFER MANGELS BUTTLER MAYWAR.O
By.
7 assen
700632103vl
EXHIBIT 2
l
Recorded at the Request of. For Clerk Use Only
and When Recorded Return to
Stephanie Skangos 2008-105680 CONF
Planning and Building Department 09:35am 09t19/08 LL. Fee: NO FEE
455 County Center, 2nd Floor Count of pages 5
Mail Drop PLN122 Recorded in Official Records
Redwood City, CA 94063 County of San Mateo
. Warren Slocum
Assessor-County Clerk-Recorder
111111111111111111111111111111111 1811�Il 1�1111111 El ill
* 2 0 0 8 0 1 0 5 6 8 0 A R
Exempt from Fees Pursuant to Government
Code Section 27383
County of San Mateo
Planning and Building Department
APPROVAL OF LOT LINE ADJUSTMENT
' Pursuant to Government Code Section 66412(d)
Planning File No PLN 2007-00343
The application of K. Angela MacFarlane and Brian Ronald Beckey for adjustment of property
line between parcels owned by them located at 1330 Crazy Pete's Road,Woodside and the
adjacent vacant lot,identified as Assessor's Parcel Numbers 080-260-160 and 080-260-150, is
hereby approved as follows:
Description of New Property Configurations
PARCEL"lA"
Parcel "B"and aportion of Parcel"C" as both parcels are shown on that certain map entitled
"PARCEL MAP OF A RESUBDIVISION OF PARCEL 'Y AS SHOWN ON VOLUME. 22
OF PARCEL MAPS,PAGE 49,FILED IN SAN MATEO COUNTY AND BE-ING DES-
CRIBED IN BOOK 776 OF OFFICIAL RECORDS,PAGE 1524, SAN MATED COUNTY,
CALIFORNIA,"filed in the office of the County Recorder of San Mateo County', State of
California on August 17, 1979, in Volume 47 of Parcel Maps at Pages 77 and 78,said portion
being more particularly described.as follows:
Beginning at a point in the southwesterly boundary of said Parcel "C", said point being the
southeasterly terminus of the line shown as"S 33°51'58'"'E 279.30"'; thence from said point
of beginning and run along said line North 33°51'58"West 279 30 feet to the most westerly
common corner of said Parcels"B".and "C";thence along the westerly line of said Parcel "C"
North 5°57'06"East 36 07 feet; thence leaving said westerly line South 29033'48"Fast 307 86
feet to the point of beginning
APPROVAL OF LOT LINE ADJUSTMENT
File No PLN 2007-00343
Page 2 of 3
EXCEPTING THEREFROM a portion of'said Parcel "B"described as follows:
Beginning at a point in the northerly line of'said Parcel "B", said point being the northwesterly
terminus of the line shown as "S 81°41'56"E 275.75"; thence from point of beginning and
leaving said northerly line South 89°37'19" West 72.72 feet; thence North 36°18'02" West
109 51 feet to a point in said northerly line;thence along said northerly line South 57°27'28"
East 163.17 feet to the point of*beginning
PARCEL "2A"
Parcel "C" and a portion of Parcel "B"as both parcels are shown on that certain map entitled
"PARCEL MAP OF A RESUBDIVISION OF PARCEL '3' AS SHOWN ON VOLUME 22
OF PARCEL MAPS, PAGE 49,FILED IN SAN MAT'EO COUNTY AND BEING DES-
CRIBED IN BOOK. 776 OF OFFICIAL RECORDS, PAGE 1524, SAN MA'I'EO COUNTY,
CALIFORNIA,"filed in the office of the County Recorder of San Mateo County, State of
California on August 17, 1979,in Volume 47 of Parcel Maps at Pages 77 and 78,said portion
being more particularly described as follows:.
Beginning at a point in the northerly line of said Parcel "B", said point being the northwesterly
terminus of the line shown as "S 81°41'56"E 275 75"';thence from point of beginning and
leaving said northerly line South 89*37'19"West 72 72 feet;thence North 36018'02"West
109.51 feet to a point in said northerly line; thence along said northerly line South 57°27'28"
East 163.17 feet to the point of beginning
EXCEPTING THEREFROM a portion of said Parcel "C"described as follows:
Beginning at a point in the southwesterly boundary of said Parcel "C", said point being the
southeasterly terminus of the line shown as "S 33*51'58"E 279 30"'; thence from said point
of beginning and run along said line North 33051'58"West 279.30 feet to the most westerly
common coiner of said Parcels"B"and"C";thence along the westerly line of said Parcel "C"
North 5057'06"East 36.07 feet;thence leaving said westerly lime South 291133'48"East 307.86
feet to the point of beginning.
The property lines described above are now recognized by this office as the lines dividing the
property in question.
Lisa Grote Date
Community Development Director
APPROVAL OF LOT LINE ADJUSTMENT
File No PL.N 2007-003-43
Page 3 of 3
We,as owners of record, hereby acknowledge ou, consent to the above-described lot line
adj ustment.
K Date
Bri Ro d Bec ey Date
LG/SS:cdn—SKS0646_WCN.DOC
FRM00104.DOC
(3/12/07)
State of California
Count)? of'San Mateo
On 3 O g before me, kim2E,,o a
Notary Public, personally appeared LISA GROTE, who proved to me on the basis of'satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed the same in her authorized capacity, and that by her signature on the
instrument the person,or the entity upon behalf of which the person acted, executed the
instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing pararg graph is true and correct.
WITNESS my band and official seal.
CnN spa
OM&A"V 16711056
NC*W%oft.COMMIC 7
so jjCft0 C%MW
Signature
EXHIBIT 3
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
Attention: General Counsel
330 Distel Circle
Los Altos, CA 94011
No Recording Fee Under Govt. Code § 27383
DEED
The undersigned grantor declares:
Documentary transfer tax is zero, conveyance to exempt public district.
FOR VALUABLE CONSIDERATION,receipt of which is hereby acknowledged, K.
ANGELA MacFARLANE and BRIAN RONALD BECKEY hereby QUITCLAIM to
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a public district, that certain real
property in the County of San Mateo, State of California, described as follows:
All that property described as Parcel"1A"in that Approval of Lot Line
Adjustment letter filed in the office of the County Recorder of San Mateo County,
State of California on September 19, 2008 as Document No. 2008-105680 CONF,
San Mateo County Official Records, said property being more particularly
described as follows:
i
PARCEL "lA"
Parcel B and a ortion o c portion f Parcel C as both parcels are shown on that certain
map entitled"PARCEL MAP OF A RESUBDIVISION OF PARCEL `3' AS
SHOWN ON VOLUME 22 OF PARCEL MAPS, PAGE 49, FILED IN SAN
MA.TEO COUNTY AND BEING DESCRIBED IN BOOK 776 OF OFFICIAL
RECORDS,PAGE 1524, SAN MATEO COUNTY, CALIFORNIA", filed in the
office of the County Recorder of San Mateo County, State of California on
August 17, 1979, in Volume 47 of Parcel Maps at Pages 77 and 78, said portion
being more particularly described as follows:
Beginning at a point in the southwesterly boundary of said Parcel "C", said point
being the southeasterly terminus of the line shown as "S 33°51'58"E 279.30"';
thence from said point of beginning and run along said line North 33°51'58" West
279.30 feet to the most westerly common corner of said Parcels "B"and"C";
thence along the westerly line of said Parcel "C"North 5157'06"East 36.07 feet; j
thence leaving said westerly line South 29°33'48" East 307.86 feet to the point of
beginning.
I
700659003v3
I
i
EXCEPTING THEREFROM a portion of said Parcel "B" described as follows:
Beginning at a point in the northerly line of said Parcel "B", said point being the
northwesterly terminus of the line shown as "S 81°41'56"E 275.75"'; thence
o »
leaving said northerly line South 89 37 19 West
from point of beginning and g y
e North 36°18'02"West 109.51 feet to a point in said northerly
feet; thence No
72.72 f
line; thence along said northerly line South 57127'28 East 163.17 feet to the point
of beginning.
t t
IN WITNESS WHEREOF, the undersigne
d have executed his instrument.
K. ANG ELA MacFARLANE
BRIAN RONALD BECKEY
[ATTACH ACKNOWLEDGMENTS]
2
700659003v3
i
i
EXHIBIT 4
i
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
Attention: General Counsel
330 Distel Circle
Los Altos, CA 94011
QUITCLAIM OF PROPOSED 40' ROAD EASEMENT
The undersigned declares:
transfer tax is zero computed on full value of property conveyed.
documentary P P
Count doc P
Y
RECITALS
A. K. ANGELA MacFARLANE and BRIAN RONALD BECKEY are the legal and
equitable owners of Parcels`B"and"C" as shown on that certain Map entitled"Parcel Map of a
Resubdivision of Parcel 3 as shown in Volume 22 of Parcel Maps, Page 49, filed in San Mateo
County and being described in Book 7776 of Official Records,Page 1524, San Mateo,
» State of California
f the Cozen Recorder of San Mateo County,
e Office o ty
California filed in the O County
on August 17, 1979,Volume 47 of Parcel Maps, at Pages 77 and 78, as adjusted by that certain
Approval of Lot Line Adjustment approved by the County of San Mateo and recorded
September 19, 2008,Document 2008-105680 CONF, San Mateo County Offi
cial Records. Sa
id
Parcel Map is hereinafter referred to as the Parcel Map". THOMAS J. FOGARTY is executing
this Quitclaim of Easement pursuant to that certain Settlement Agreement dated February 16,
2007, as amended in January 2009.
B. The Parcel Map reflects a certain Proposed 40' Road Easement to Benefit
Parcels "A" `B" and"C", and a Proposed 40' Road Easement to benefit Parcel"C"beginning
approximately 50 feet northwesterly of the most southeasterly point of the common property line
between Parcel"A" and Parcel"B"as shown on the Parcel Map,thence North 58' 46' 18" West
a distance of 312.25 feet, thence North 4° 20' 42" East a distance of 85.68 feet, and thence North
as reflected as courses"29"
1 .95 feet all , "13", and"12" at
57 13 57 East
t a dist
ance of 98
Volume 47 page 78 of the Parcel Map (hereinafter the"Proposed 40' Road Easement").
MacFARLANE, BECKEY and FOGARTY acknowledge and agree that the Proposed 40'
Easement is of no force and effect and hereby deliver and record their Quitclaim of the Proposed
40' Road Easement.
700658782v3
i
WHEREFORE, the parties hereto acknowledge as follows:
QUITCLAIM
K. ANGELA MacFARLANE, BRIAN RONALD BECKEY and THOMAS J.
FOGARTY hereby QUITCLAIM the Proposed 40' Road Easement to MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT, a public district.
K. ANGELA MacFARLANE,BRIAN RONALD BECKEY, and THOMAS J.
FOGARTY further acknowledge that the Proposed 40' Road Easement is not and shall not
hereafter be construed to be appurtenant to Parcel "C"shown on the Parcel Map, nor to Parcel
"2A" as described in the Approval of Lot Line Adjustment recorded September 19, 2008,
Document 2008-105680 CONF, San Mateo County Official Records.
This QUITCLAIM shall bind K. ANGELA MacFARLANE, BRIAN RONALD
BECKEY, and THOMAS J. FOGARTY and all successors in title to Parcel "C"shown on the
Parcel Map and Parcel"2A"as described in the Approval of Lot Line Adjustment approved by
the County of San Mateo and recorded September 19, 2008, Document 2008-105680 CONF, San
Mateo County Official Records.
IN WITNESS WHEREOF, the undersigned have executed this instrument.
K. ANGELA MacFARLANE
BRIAN RONALD BECKEY
THOMAS J. FOGARTY
[ATTACH ACKNOWLEDGMENTS]
2
700658782v3
EXHIBIT 5
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
Attention: General Counsel
330 Distel Circle
Los Altos, CA 94011
DEVELOPMENT RESTRICTION
This Development Restriction(the"Restriction") is entered into this day of January,
2009, by and between K. ANGELA MacFARLANE and BRIAN RONALD BECKEY
(hereinafter jointly referred to as "MacFARLANE and BECKEY") and MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT, a public district (hereinafter referred to as "MROSD"),
as follows:
RECITALS
A. MacFARLANE and BECKEY are the owners of that certain real property
described as Parcel"2A" as shown on that certain Approval of Lot Line Adjustment recorded
September 19, 2008,Document 2008-105680 CONF, San Mateo County Official Records.
B. MacFARLANE and BECKEY desire and agree to impose a development
restriction on that portion of said Parcel "2A" described below(the"Subject Property") on the
terms hereinafter set forth.
C. MROSD is the owner of Parcel"A" as shown on that certain Map entitled"Parcel
Map of a Resubdivision of Parcel 3 as shown in Volume 22 of Parcel Maps,Page 49, filed in San
Mateo County and being described in Book 7776 of Official Records, Page 1524, San Mateo,
California"filed in the Office of the County Recorder of San Mateo County, State of California
on August 17, 1979,Volume 47 of Parcel Maps, at Pages 77 and 78, and the owner of Parcel
"W'shown on that certain Approval of Lot Line Adjustment recorded September 19, 2008,
Document 2008-105680 CONF, San Mateo County Official Records, and adjacent lands
constituting part of that certain open space preserve commonly known as the Coal Creek Open
Space Reserve.
WHEREFORE,the parties agree as follows:
RESTRICTION
1. Definitions.
1.1 MacFARLANE and BECKEY. "MacFARLANE AND BECKEY" are the
owners of Parcel"2A" as shown on that certain Approval of Lot Line Adjustment recorded
September 19, 2008,Document 2008-105680 CONF, San Mateo County Official Records, and
7006590040
the covenantor of the Subject Property to be affected and burdened pursuant to Civil Code
Section 1468(a).
1.2 MROSD. "MROSD" is the owner of Parcel "A" as shown on the Parcel
Map, and the owner of Parcel "IA" shown on that certain Approval of Lot Line Adjustment
recorded September 19, 2008,Document 2008-105680 CONF, San Mateo County Official
Records, and the covenantee in ownership of the land to be benefited pursuant to Civil Code
Section 1468(a).
1.3 Parcel Map. The "Parcel Map" shall mean that certain Map entitled
"Parcel Map of a Resubdivision of Parcel 3 as shown in Volume 22 of Parcel Maps, Page 49,
filed in San Mateo County and being described in Book 7776 of Official Records, Page 1524,
San Mateo, California" filed in the Office of the County Recorder of San Mateo County, State of
California on August 17, 1979, Volume 47 of Parcel Maps, at Pages 77 and 78.
1.4 Parcels "A"and"lA". "Parcels `A' and 'IA"' shall mean Parcel"A" as
shown on that certain Map entitled"Parcel Map of a Resubdivision of Parcel 3 as shown in
Volume 22 of Parcel Maps, Page 49, filed in San Mateo County and being described in Book
7776 of Official Records, Page 1524, San Mateo, California"filed in the Office of the County
Recorder of San Mateo County, State of California on August 17, 1979,Volume 47 of Parcel
Maps, at Pages 77 and 78, owned by MROSD, and Parcel "lA" shown on that certain Approval
of Lot Line Adjustment recorded September 19, 2008, Document 2008-105680 CONF, San
Mateo County Official Records. Parcels"A" and"lA" shall be the land to be benefited under
this Restriction pursuant to Civil Code section 1468(a).
1.5 Subject Property. "Subject Property" shall mean Parcel "2A" shown on
that certain Approval of Lot Line Adjustment recorded September 19, 2008,Document 2008-
105680 CONF, San Mateo County Official Records, as follows:
Development Restriction Area
A portion of Parcel "2A" as described in that Approval of Lot Line
Adjustment letter filed in the office of the County Recorder of San Mateo
County, State of California on September 19, 2008 as Document No.
2008-105680 CONF, San Mateo County Official Records, said portion
being more particularly described as follows:
All that portion of said Parcel "2A"lying westerly of a line defined as
North 5°57'06"East 368.09 feet, more or less,beginning at the
southeasterly terminus of the course called"South 29°33'48" East 307.86
feet"in said description and running to a point in the northeasterly line of
said Parcel"2A".
Also constituting a portion of Parcel"C" as shown on the Parcel Map. The Subject Property
shall be the land affected and burdened by this Restriction pursuant to Civil Code section
1468(a).
2
7006590040
2. Declaration of Restriction. MacFARLANE and BECKEY hereby declare that the
Subject Property is, and shall be,held, conveyed,hypothecated, encumbered, leased, rented,
used, maintained and occupied subject to the limitations, restrictions and covenants contained
herein, all of which are declared and agreed to be for the benefit of Parcels "A"and "IA", and to
enhance, maintain and protect the value, desirability, and attractiveness of Parcels "A" and "IA",
and their natural, scenic, and open space values. All of the limitations, restrictions and covenants
shall constitute a covenant between MacFARLANE and BECKEY as the owners of Parcel"C"
and the Subject Property, and MROSD as the owner of Parcels "A" and"lA", to refrain from
doing development on the Subject Property for the benefit of Parcels "A" and"IA", which
covenant shall run with both Parcel"C" and the Subject Property, and Parcels "A" and"1 A", and
be binding upon each successive owner, during their ownership, of all or any portion of
Parcel"C" and the Subject Property affected thereby, and upon each person having any interest
therein, and upon each successive owner, during their ownership, of all or any portion of
Parcels"A" and "lA"benefited thereby. The parties acknowledge that the land of the
covenantor which is to be affected and the land of the covenantee to be benefited are particularly
described herein; that successive owners of the land are to be bound hereby for the benefit of
Parcels"A" and"IA"; that the acts described herein relate to the use, repair, maintenance and
preservation of the Subject Property; and that this Restriction is to be recorded in the Office of
the Recorder of San Mateo County in which the within lands are situated.
3. Restriction on Development. MacFARLANE and BECKEY may use and
maintain the existing building and pond on the Subject Property; provided, however, that
MacFARLANE and BECKEY shall continue to maintain the Subject Property as open space,
and shall not further develop or improve the Subject Property with flirther or additional
improvements. This Restriction shall also extinguish and transfer to MROSD and Parcels"A"
and"lA" any and all density credits from the County of San Mateo applicable to the Subject
Property.
4. Successive Owners. This development restriction shall run with the land and bind
all successive owners of Parcel "C" and the Subject Property and benefit all successive owners
of Parcels "A" and"lA".
IN WITNESS WHEREOF, the undersigned have executed this Development Restriction.
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a public district
K. ANGELA MacFARLANE
By:
BRIAN RONALD BECKEY
[ATTACH ACKNOWLEDGMENTS]
3
700659004v3
t
t
EXHIBIT 6
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
K. ANGELA MacFARLANE and
BRIAN RONALD BECKEY
1330 Crazy Pete's Road
Woodside, CA 94062
QUITCLAIM OF PORTION OF CONSERVATION EASEMENT
The undersigned declares:
County documentary transfer tax is zero, computed on full value of property conveyed.
RECITALS
A. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT (hereafter"MROSD")
is a public district and the holder and successor grantee under that certain Grant of Conservation
Easement recorded July 28, 1982, as Document No. 82064165, San Mateo County Official
Records (the "Conservation Easement"), affecting that certain Parcel "B" as shown on that
certain Map entitled"Parcel Map of a Resubdivision of Parcel 3 as shown in Volume 22 of
Parcel Maps,Page 49, filed in San Mateo County and being described in Book 7776 of Official
Records,Page 1524, San Mateo, California" filed in the Office of the County Recorder of San
Mateo County, State of California on August 17, 1979, Volume 47 of Parcel Maps, at Pages 77
and 78. Said Parcel Map is hereinafter referred to as the "Parcel Map".
B. A portion of said Parcel "B",became apart of Parcel"2A"pursuant to that certain
Approval of Lot Line Adjustment approved by the County of San Mateo by and recorded
September 19, 2008, Document 2008-105680 CONF, San Mateo County Official Records (the
"Approval of Lot Line Adjustment").
C. K. ANGELA MacFARLANE and BRIAN RONALD BECKEY are the legal and
equitable owners of Parcel "C" as shown on said Parcel Map subject to the Approval of Lot Line
Adjustment, and Parcel"2A" as described in the Approval of Lot Line Adjustment.
WHEREFORE,the parties hereto acknowledge as follows:
OUITCLAINI
MROSD hereby Quitclaims the Conservation Easement over the portion of Parcel"B"
which is now part of Parcel"2A" as shown on the Approv al of Lot Line Adjustment, said portion
being described as follows:
Beginning at a point in the northerly line of said Parcel"B", said point being the
northwesterly terminus of the line shown as "S 81'41'56"E275.75"'; thence from point
of beginning and leaving said northerly line South 89'37'19" West 72.72 feet; thence
701072026v1
North 36118'02" West 109.51 feet to a point in said northerly line; thence along said
northerly line South 57°27128" East 163.17 feet to the point of beginning.
IN WITNESS WHEREOF, the undersigned has executed this instrument.
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT, a public district
By:
[ATTACH ACKNOWLEDGMENTS]
r
l
2
701072026v1
I�
EXHIBIT
i
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
K. ANGELA MacFARLANE and
BRIAN RONALD BECKEY
1330 Crazy Pete's Road
Woodside, CA 94062
CONSENT OF LENDER TO APPROVAL OF
LOT LINE ADJUSTMENT AND RELATED DOCUMENTS
This Lender's Consent to Approval of Lot Line Adjustment and Related Documents (the
"Consent") is entered into this day of January, 2009, by and between Mortgage Electronic
Registration Systems Inc., a Delaware corporation("MERS"), solely as beneficiary under that
certain Deed of Trust recorded December 28, 2007, Instrument 2007-181764, San Mateo County
Official Records, and K. Angela MacFarlane and Brian Ronald Beckey("MacFarlane and
Beckey"), as follows:
RECITALS
A. MERS is the beneficiary under that certain Deed of Trust recorded December 28,
2007,Document 2007-181764, San Mateo County Official Records (the"Deed of Trust"), as
nominee for lender EverBank, a federal savings association, and its assignees. The Deed of
Trust is secured by real property that was part of Parcel"C" as shown on that certain Map
entitled "Parcel Map of a Resubdivision of Parcel 3 as shown in Volume 22 of Parcel Maps,
Page 49, filed in San Mateo County and being described in Book 7776 of Official Records,
Page 1524, San Mateo, California"filed in the Office of the County Recorder of San Mateo
Co
unty, State of California on August 17, 1979, Volume 47 of Parcel Maps, at Pages 77 and 78,
ty, gus
as more fully described in Exhibit A of the Deed of Trust(hereinafter the "Property").
MacFarlane and Beckey are the trustors under the Deed of Trust.
B. MacFarlane and Beckey, and the adjacent property owner, Midpeninsula Regional
Open Space District, a public district, have entered into that certain Approval of Lot Line
Adjustment approved by the County of San Mateo and recorded September 19, 2008, Document
2008-105680 CONF, San Mateo County Official Records (the"Approval of Lot Line
701382844vl
I
Adjustment"), to accommodate certain setback requirements and privacy for the improvements
situated on the Property, along with a deed(the"deed") and development restriction(the
"development restriction") on the northwesterly portion of the Property. The Property is now
part of Parcel"2A"as described in the Approval of Lot Line Adjustment. Copies of the
Approval of Lot Line Adjustment, deed, and development restriction are attached hereto
respectively marked as Exhibits "A", "B", and "C"and incorporated herein by this reference.
C. MERS and MacFarlane and Beckey desire to provide for the lender's consent to
the Approval of Lot Line Adjustment, deed, and development restriction to conform the Deed of
Trust to the legal lot configuration approved by the County of San Mateo in accordance with the
California Subdivision Map Act.
WHEREFORE, the parties agree as follows:
CONSENT
MERS herebyconsents to the Approval of Lot Line Adjustment deed, and v pP development
ment
Adjustment, d-, p
restriction. MERS and MacFarlane and Beckey agree that in the exercise of any of the rights and
remedies under the Deed of Trust, administration of the loan secured by the Deed of Trust,
and/or resort to the security under the Deed of Trust, the parties shall conform to the lot lines and
restriction as amended and set forth the Approval of Lot Line Adjustment, deed and development
restriction. The parties acknowledge that this Consent is bein
g furnished t
P g g o the Midpeninsula
Open Space District with the intent that it shall rely thereon.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
K. ANGELA MacFARLANE Delaware Corporation
By.
BRL N RONALD BECKEY
I
[ATTACH ACKNOWLEDGMENTS]
2
701382844v1
SETTLEMENT AGREEMENT
AND
MUTUAL GENERAL RELEASE
This SETTLEMENT AGREEMENT AND THIS MUTUAL GENERAL
RELEASE is entered into this 16th day of February, 2007, by and between THOMAS J.
FOGARTY, and K. ANGELA MacFARLANE, and BRIAN BECKEY (hereinafter jointly
referred to as "FOGARTY") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
(hereinafter referred to as "MROSD").
WHEREAS, a dispute has arisen and THOMAS J. FOGARTY and K. ANGELA
MacFARLANE have filed an action against MROSD in the Superior Court of the State of
California, County of San Mateo, entitled THOMAS J. FOGARTY et al v. MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT, and MROSD has filed a Cross-Complaint against
THOMAS J. FOGARTY and K. ANGELA MacFARLANE, all part of Action Number
CIV 441934 (hereinafter the "Action");
WHEREAS, since the litigation commenced K. ANGELA MacFARLANE has
conveyed an interest in the property to BRIAN B y p p y ECKEY;
WHEREAS, the parties hereto desire to settle the whole of their differences and
release each other from any and all claims arising out of or in connection with the matters
alleged in the Action;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. GRANT DEEDS AND CONSIDERATION.
A. Conveyance of Land to MROSD.
FOGARTY shall convey fee title to MROSD to all of the land described as Parcel
"B" on that certain Parcel Map recorded August 17, 1979, Book 47 of Parcel Maps pages 77-78,
US_NW_700632103_I(4)_ ]
San Mateo County Official Records. The parties acknowledge that Parcel "B" was the subject of
a Lot Line Adjustment that includes the northwesterly portion of Parcel "C" shown on said
Parcel Map. By conveyance of fee title to MROSD in accordance with the terms and provisions
of the Subdivision Map Act and the ordinances of the County of San Mateo, the parties shall
cause a lot line adjustment to revert the lot line for Parcel "C"to the locations and dimensions
shown at Book 47 of Parcel Maps, page 78, San Mateo County Official Records. MROSD shall
bear the obligation and cost of processing the lot line adjustment with the County of San Mateo.
B. Quitclaim of Easement.
FOGARTY shall quitclaim all right, title and interest in and to the "Proposed 40'
Road Easement to benefit PCL C" shown over portions of parcels "A" and "B" at Book 47 of
Parcel Maps, page 78, San Mateo County Official Records. MROSD shall prepare said
quitclaim deed.
C. Development Restriction.
FOGARTY shall grant an enforceable development restriction to MROSD over
the northwesterly portion of parcel C that is be the subject of the lot line adjustment described
hereinabove. Said area is also described in the second and third paragraphs of the section
entitled "Parcel I"on Exhibit A of that certain Grant Deed recorded September 19, 2001,
Document 2001-146839, San Mateo County Official Records. The development restriction shall
provide that FOGARTY may use and maintain the existing building and pond but shall not
further develop or improve said property. The development restriction shall be in a form that
shall run with the land, bind FOGARTY's successors in title, and be enforceable pursuant to
Civil Code section 1468. The development restriction shall extinguish all density credits from the
County of San Mateo for the area described in said development restriction. MROSD shall
provide the initial draft of the development restriction to FOGARTY.
USNW700632103_1(4)_ 2
D. Restriction on Trail Location.
MROSD shall have the right to construct a trail on Parcel "B", but the location of
such trail shall be limited to a corridor along the southwesterly portion of Parcel "B", adjacent to
the common boundary line between Parcel "A" and Parcel "B", as follows: Beginning at the
southerly comer of Parcel "B" and extending along the common boundary line between Parcels
"A"and "B"for a distance of 200 feet, the corridor for said trail shall extend to 100 feet of the
common boundary line between Parcels "A"and "B". From that point 200 feet northwesterly
from the southerly comer of Parcel "B,"to the westerly comer of Parcel "B", the corridor trail
shall be placed within a corridor which shall be within 50 feet of the common boundary line
between parcel "A" and parcel "B". MROSD shall confer with FOGARTY on the trail location
and consider comments by FOGARTY on trail location to minimize any views from the trail of
the FOGARTY residence.
E. Neighbor Permit to MACFARLANE and BECKEY.
MROSD shall issue a Neighbor Permit to MacFARLANE and BECKEY to allow
them pedestrian use of Parcel B on the terms provided in this paragraph I E. The Neighbor
Permit will allow pedestrian use only, with dogs on leash on the same terms as the general
public, but no bicycle or equestrian use, and allows closure for fire danger, safety and
environmental reasons.
F. Consideration, Donation to MROSD or POST, Payment to
Fogarty.
The value for the real property conveyances from FOGARTY described herein is
determined to be a total of ONE MILLION FIVE HUNDRED THOUSAND AND 00/1 OOTHS
DOLLARS ($1,500,000.00). FOGARTY hereby irrevocably makes a donation regarding said
conveyances, to be made to MROSD or Peninsula Open Space Trust at FOGARTY's election, to
USNW700632103_1(4)_ 3
be exercised in FOGARTY's sole discretion, in the amount of ONE MILLION ONE
HUNDRED THOUSAND AND 00/1 OOTHS DOLLARS ($1,100,000.00). Through an escrow to
be held at First American Title Company, or other escrowholder acceptable to the parties,
MROSD shall pay to FOGARTY the total sum of FOUR HUNDRED THOUSAND AND
00/100THS DOLLARS ($400,000.00). Said funds will be paid upon delivery of the grand deed,
quitclaim deed, and development restriction described in paragraphs IA, I B, and IC. MROSD
makes no representation or warranty to FOGARTY concerning the tax consequences of this
transaction and FOGARTY conclusively agrees to exclusively rely on his own tax advisors for
advice on all tax consequences related hereto. The tax effect or deductability of this transaction
by FOGARTY shall not be a condition to this Agreement and this Agreement shall be binding
upon the parties regardless of the tax effects thereof.
G. Dates for Performance.
MROSD shall submit the grant deed and quitclaim Deed to FOGARTY and
FOGARTY shall fully execute the same, have the instruments fully acknowledged, and return
said instruments in recordable form to MROSD within thirty (30) days of the date first above
written.
2. MUTUAL RELEASE.
FOGARTY and MROSD hereby release, acquit, and forever discharge the other,
his, her and its successors, assignees, agents, servants, employees, heirs, administrators, trustees,
attorneys, title insurers, and executors, of and from any and all actions, causes of action, claims,
demands, damages, costs, loss of service, expenses and debts whatsoever, in law and in equity,
which they have, have had, or which they or their successors, assignees, agents, servants,
employees, heirs, administrators, trustees, attorneys, and executors, hereinafter can, shall or may
have against said above-named parties on account of or in any way growing out of any matter or
USNW700632103_1(4)_ 4
thing which has happened, developed or occurred in the past, present or future, whether known
or unknown, suspected or unsuspected, which are in any way connected with, based upon,
related to or arising out of the matters alleged in the Action, including all pleadings filed in the
Action, including any facts alleged in any prior or subsequent pleadings or any facts arising out
of any discovery in the Action. The release by FOGARTY shall include claims, if any, based on
any acts or omission of MROSD's, title insurer, First American Title Insurance Company, and its
affiliate, First American Title Company, related to the Action. The release by MROSD shall
include claims, if any, based on acts or omissions of FOGARTY'S title insurer, Old Republic
Title Insurance Company, related to the Action.
3. DISMISSALS.
The parties shall dismiss their respective complaint and cross-complaint, if any,
against each other with prejudice, each party to bear its own attorneys' fees and costs.
FOGARTY and MROSD agree to refrain and forbear from commencing, instituting or
participating in, either as a named or unnamed party, in any lawsuit, action or other proceeding
against the other whether brought by themselves or by others on their behalf based on or arising
out of any of the matters, things or facts described or included in the action.
4. AUTHORITY.
FOGARTY and MROSD agree that all parties hereto, and each of them, represent
and warrant that each has the right, power, and authority to execute this Agreement, and further
represent and warrant that they, and each of them, have the exclusive right to prosecute and
compromise the matters set forth in of this Agreement and that none of them has sold, assigned,
conveyed, or otherwise transferred such rights. Each person who has signed this agreement in a
representative capacity hereby represents and warrants that he is duly authorized to enter into this
USNW700632103_1(4)_ 5
agreement. FOGARTY and MROSD each warrant that they have not heretofore assigned,
hypothecated or transferred, nor will they in the future in any manner assign or transfer or
purport to assign or transfer to any entity, person, or corporation, any claim, demand, or cause of
action based on or arising out of or in connection with the action.
5. INTEGRATION.
FOGARTY and MROSD agree that no representation or promise not expressly
contained in this Agreement has been made and further acknowledge that they are not entering
into this Agreement on the basis of any promise or representation, express or implied. This
Agreement contains the entire agreement between the parties hereto and the terms hereof are
contractual and not a mere recital. This Agreement supersedes any prior agreements and contains
the entire agreement of the parties on the matters covered. Each party hereto has fully and
personally investigated the subject matters of this release and has consulted such independent
counsel as required, and does not rely on any statement of fact or opinion by or of any of the
parties to this general release.
6. WAIVER OF CIVIL CODE SECTION 1542.
FOGARTY and MROSD agree that this settlement includes all injuries and
damages to person and/or property whatsoever arising from the matters, things or facts described
or included in the Action, whether such injuries and damages be known or unknown, foreseen or
unforeseen, and whether they are latent or occur later. FOGARTY and MROSD agree that they
have read and fully understand the statutory language of Section 1542 of the Civil Code of the
State of California and, as to injuries and damages related to the Action, expressly and
specifically waive all rights under said Statute, which reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
USNW700632103_1(4)_ 6
release, which if known by him must have materially affected his
settlement with the debtor.
7. FULL SETTLEMENT.
FOGARTY and MROSD agree that this Agreement expresses a full, final, and
complete settlement of all of the claims of each party has against the other and shall not be
deemed or treated as an admission of liability or responsibility by the undersigned or anyone for
any events, activities, acts or omissions. Neither shall this Agreement be deemed to be evidence
of the existence, nature or amount of damages alleged by any party hereto, as all payments made
hereunder are in compromise only, and to avoid litigation.
8. ATTORNEYS FEES.
FOGARTY and MROSD agree that the prevailing party in any action or
proceeding henceforth between the parties in regards to any action to enforce this Agreement
shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which
they may be entitled.
9. CONSTRUCTION.
FOGARTY and MROSD agree that each of the parties hereto and their counsel
have reviewed this Agreement and agree that any rule of construction to the effect that
ambiguities in the interpretation of this release or any amendment or exhibits thereto, are to be
resolved against the drafting party and shall not apply. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. This Agreement may be
executed in counterparts.
USNW700632103_1(4)_ 7
10. CONTINUING COURT JURISDICTION.
This Agreement is entered into pursuant to Code of Civil Procedure Section 664.6
and the parties stipulate that the Court shall retain jurisdiction to enforce the terms of this
Agreement until performance in full of the terms hereof.
We have carefully read the foregoing release and know the contents thereof and
we sign the same as our own free act.
IN WITNESS WHEREOF, we have signed this Agreement as of the date first
above written.
CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING. DO NOT
SIGN IF YOU DO NOT UNDERSTAND AND AGREE TO BE BOUND BY
THE TERMS.
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
BY
THOMAS J. FOGARTY
ITS
K. ANGELA MacFARLANE
BRIAN BECKEY
USNW700632103_1(4)_ 8
ATTORNEY'S CERTIFICATE
1, the undersigned, am a member of the State Bar of California and am the
attorney of record for THOMAS J. FOGARTY and K. ANGELA MacFARLANE in the
foregoing Action have read the foregoing Settlement Agreement and Mutual General Release
and have advised my clients as to the same.
DATED: February 16, 2007 ROSSI, HAMERSLOUGH, REISCHL &
CHUCK
By:
Ronald R. Rossi
ATTORNEY'S CERTIFICATE
1, the undersigned, am a member of the State Bar of California and am the
attorney of record for MIDPENINSULA REGIONAL OPEN SPACE DISTRICT in the
foregoing Action. I have read the foregoing Settlement Agreement and Mutual General Release
Of All Claims and have advised my clients as to the same.
DATED: February 16, 2007 PILLSBURY WINTHROP SHAW
PITTMAN LLP
By: Scott A. Sommer
USNW700632103_1(4)_ 9
A
ATTORNEY'S CERTIFICATE
I, the undersigned, am a member of the State Bar of California and am the
attorney of record for MIDPENINSULA REGIONAL OPEN SPACE DISTRICT in the
foregoing Action. I have read the foregoing Settlement Agreement and Mutual General Release
Of All Claims and have advised my clients as to the same.
DATED: February 16, 2007 JEFFER MANGELS BUTTLER MARMARO
By:
Michael J. Hassen
i
US_NW_700632103_1(4)_ 10
I