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Document Date: 1/30/2008
Document Type: Resolution
Preserve Name:
Keywords(no more than 4): Conservation Easement Beatty
Project Name:
Project Number:
Vendor or Other Party:
Name (First):
Name (Last):
Address:
APN Number:
Document No. 08-05
Additional Field:
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RESOLUTION NO. 08-
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING EXECUTION OF THE FUNDING
AGREEMENT WITH THE COUNTY OF SANTA CLARA
AND EXECUTION OF A CONSERVATION EASEMENT,
AND AUTHORIZING THE GENERAL MANAGER TO
EXECUTE ANY AND ALL OTHER DOCUMENTS
NECESSARY OR APPROPRIATE TO THE CLOSING OF
THE TRANSACTION (SIERRA AZUL OPEN SPACE
PRESERVE—LANDS OF BEATTY TRUST)
The Board of Directors of the Midpeninsula Regional Open Space District does resolve as
follows:
Section One. The Board of Directors of the Midpeninsula Regional Open Space District does
hereby accept the offer contained in that certain Funding Agreement between the County of
Santa Clara and the Midpeninsula Regional Open Space District, a copy of which is attached
hereto and by reference made a part hereof, and authorizes the General Manager or President of
the Board of Directors or other appropriate officer to execute the Agreement on behalf of the
District.
Section Two. The President of the Board of Directors, or other appropriate officer, is authorized
to execute the attached Conservation Easement conveying certain real property rights by the
District to the County of Santa Clara as provided in said Agreement.
Section Three. The General Manager of the District or the General Manager's designee shall
cause to be given appropriate notice of acceptance to the County. The General Manager is
further authorized to execute any and all other documents in escrow necessary or appropriate to
the closing of the transaction.
Section Four. The General Manager and General Counsel are further authorized to approve any
technical revisions to the attached Agreement and documents which do not involve any material
change to any term of the Agreement or documents, which are necessary or appropriate to the
closing or implementation of this transaction.
RESOLUTION 1\1o. 08-
0 5
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on January 30, 2008 at a Special and Regular Meeting thereof, by the following vote:
AYES: Jed Cyr, Mary Davey, Larry Hassett, Curt Riffle,
Ken Nitz , Nonette Hanko, Pete Siemens
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
Secretary President
Board of Directors Board 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.
District Cl
FUNDING AND ACQUISTION AGREEMENT
Lexington County Park/Beatty Property Purchase
This is an Agreement (Agreement) between the COUNTY OF SANTA CLARA
(COUNTY), a political subdivision of the State of California, and the Midpeninsula
Regional Open Space District (DISTRICT), a special district, for the contribution of
COUNTY funds for the DISTRICT's acquisition of real property near COUNTY
Lexington County Park and DISTRICT's Sierra Azul Open Space Preserve.
RECITALS
A. The DISTRICT desires to purchase certain property from The Beatty Trust (Seller)
for parks and open space purposes, which property is described and shown in Exhibit
Al to Attachment A of this Agreement (Property). The DISTRICT will acquire the
Property for approximately One million nine hundred thousand dollars ($1.9 million)
on or about March 28, 2008 (DISTRICT's Acquisition).
B. County wishes to contribute funding for DISTRICT's acquisition in order to
enhance County park resources, and secure the County benefits described within
"Section 1: Purpose of this Agreement."
C. In consideration of County's funding, DISTRICT will convey an interest in the
Property as further described in this Agreement.
1. PURPOSE of this AGREEMENT
COUNTY will provide funding for the DISTRICT's Acquisition of the Property in
order to enhance the County's park, recreation, scenic and open space lands near
Sierra Azul Open Space Preserve next to COUNTY's Lexington Park, and to secure the
Easement described in Section 2(A). DISTRICT will perform all environmental
review, if any is required, under the California Environmental Quality Act, for
DISTRICT's Acquisition and conveyance of Easement to COUNTY.
2. ACQUISITION TERMS and ESCROW INSTRUCTIONS
A. ACQUISITION TERMS. COUNTY will pay Nine hundred fifty thousand
dollars ($950,000.00) to DISTRICT (Purchase Funds), and, in consideration of such,
DISTRICT will convey to COUNTY, and COUNTY will accept, the Conservation
Easement over the Property in the form set out in the attached Exhibit A (Easement),
which is incorporated herein by reference. COUNTY will pay the Purchase Funds as
provided in subsection (b), Escrow Instructions.
B. ESCROW INSTRUCTIONS. This section constitutes the joint escrow
instructions of the County and DISTRICT, and a duplicate original of the
Agreement will be delivered to the Escrow Agent upon the DISTRICT's
opening of escrow, The County and DISTRICT will provide additional
escrow instructions as is necessary and consistent with the Agreement.
Upon DISTRICT's deposit of a fully executed Easement into escrow for
recording, County will have thirty (30) days to deposit the Purchase
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Funds into escrow, along with a fully executed Certificate of Acceptance.
Upon County's deposit of the Purchase Funds into escrow, and
DISTRICT's Acquisition of the Property, the escrow agent is hereby
authorized to record the Easement and Certificate of Acceptance in the
Santa Clara County Office of the Clerk Recorder immediately
following the deed conveying the Property to DISTRICT, and to
disburse the Purchase Funds in accordance with DISTRICT's separate
escrow instructions for the transaction. In the event the County's
Purchase Funds are not available prior to DISTRICT's Acquisition of
Property, at DISTRICT's option, DISTRICT may choose to acquire the
Property in advance of receiving the County's Purchase Funds, provided
that, upon receipt of COUNTY's Purchase Funds, the Easement is
recorded immediately following DISTRICT's Grant Deed. The escrow
agent will provide original and conformed copies of the recorded
Easement to County as indicated on the Easement document.
In the event the transaction is not completed within one year of the effective
date of this Agreement, the COUNTY may pursue all available legal remedies and
terminate this Agreement by written notice to the DISTRICT and escrow agent. Such
notice of termination will be immediately effective. For the purposes of this section,
completion of the transaction means the recording of the Easement and County's
Certificate of Acceptance immediately following the recorded Grant Deed conveying
the Property to DISTRICT.
4. COUNTY'S DELEGATION OF AUTHORITY.
The Board of Supervisors of Santa Clara County grants to the Director of Parks
and Recreation (Director), or the Director's designee, the power and authority to (i)
grant and withhold consents pursuant to this Agreement, (ii) sign on behalf of
County all documents contemplated by this Agreement, and (iii) to make decisions,
give approvals, or terminate the Agreement, as necessary and provided for herein,
subject to approval as to form and legality by the County Counsel.
S. MISCELLANEOUS.
A. ATTACHMENTS. The following attachment is incorporated into the
terms of this Agreement by reference:
Attachment A: Conservation Easement (containing Exhibit Al: Property
Description and Illustrative Plat or Map).
B. TIME. Time is of the essence for this Agreement.
C. ENTIRE AGREEMENT. This Agreement is the entire agreement between
the parties respecting the matters set forth within, and supersedes all prior
negotiations or agreements between the parties, if any.
Page 2 of 3
D. EFFECTIVE DATE OF AGREEMENT. This Agreement takes effect on the
latest date shown below:
COUNTY O SANTA CLARA Midpeninsula Regional Open Space
District
/By* By:
te McHugh, Chair Pete 516mens, President
Board of Supervisors Board of Directors
Attest:
Date: 0 �
Phyll' a. Perez
Cler Board of Supervisors Attest:
Date: MAR 1
2008 By:
Greg Sam, Di tri Clerk
Approv as to form and legality:
-- d Form nd legali approved:
s/a8
Katherine Harasz, By:
Deputy County Counsel Susan Schectman, General Counsel
Page 3 of 3
ATTACHMENT A
I
i
Recording requested by and
when recorded return original
document to:
Clerk of the Board of Supervisors
70 West Hedding Street, loth Floor
San Jose, CA 95110
Return one conformed
copy to:
County of Santa Clara
Parks and Recreation Department
298 Garden Hill Drive
Los Gatos, CA 95032
Attn: Real Estate
Return one conformed copy to:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos CA 94022-1404
Attn: Real Property
No Documentary Transfer Tax due:
Revenue &Taxation Code §11922
Exempt From Recording Fees:
Government Code §§6103, 27383
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Park: Lexington
CONSERVATION EASEMENT Project: Beatty Property
DISTRICT Purchase at Sierra Azul Open Space Preserve
APN: 558-35-001,
558-36-011, 558-36-012
i
RECITALS
A. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT (DISTRICT) and the COUNTY
OF SANTA CLARA (COUNTY) entered into an Agreement (Agreement) dated,
March 11, 2008, in which the COUNTY agreed to pay certain funds to DISTRICT
for DISTRICT's purchase of certain real property located at 17820 Alma Bridge
Road near Sierra Azul Open Space Preserve, adjacent to Lexington County Park
as described and shown in Exhibit Al (Open Space Property).
B. DISTRICT and COUNTY wish to assure that the Property will be maintained as
part of the open space, recreation, ecological and aesthetic resources of Santa
Clara County.
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged,
DISTRICT grants to COUNTY an easement on the Property for the purposes stated
below:
Page 1 of 7
4
1. PURPOSE
The purpose of this Easement is to assure that the Open Space Property will be
retained in perpetuity as public open space for conservation of natural habitat and
wildlife and passive recreational use in its natural, scenic, open space and wooded
condition, and to prevent any use of the Open Space Property that will significantly
impair or interfere with its natural, scenic, open space and wooded condition.
Accordingly, this Easement restricts the use of the Open Space Property to passive
public recreation, including by way of example, hiking, horseback riding, mountain
biking, nature study, enjoyment of views, wildlife oriented education or research, and
to compatible agricultural or natural resource management activities, including by way
of example, grazing and prescribed burning (Purposes).
2. RESTRICTIONS ON USE BY DISTRICT
DISTRICT covenants and agrees for itself and its successors and assigns that
DISTRICT will strictly adhere to the following, except where contrary rights are
specifically retained as described in section 3 below:
a. Natural Resources. No native plant, tree or wildlife species shall be disturbed
now or in the future on the Open Space Property except to abate disease,
eliminate an imminent hazard to the health, safety, or welfare of the general
public, or as approved by DISTRICT as part of a plan to implement the
Purposes of this Easement as defined in Section 1 above, without the prior
consent of COUNTY or its successor or assignee.
c. COUNTY Review. COUNTY may review and comment on any. DISTRICT plan
for improvements to the Open Space Property such as, but not limited to,
those improvements and restoration plans described in Section 3 below. At a
minimum, DISTRICT shall submit to COUNTY a site plan showing the location
of proposed ►improvements or restoration before DISTRICT's final approval.
Within (60) days from submission of plans to COUNTY, COUNTY shall provide
written to comments to DISTRICT. DISTRICT shall make the final decision as
to any plans or improvements for the Open Space Property consistent with
the restrictions and obligations of this Easement.
d. Master Plan. If DISTRICT prepares a Master Plan for Sierra Azul Open Space
Preserve that includes the area of the Open Space Property, DISTRICT shall
consult COUNTY during the development of the Master Plan. If a committee
or task force is formed to assist with preparation of the Master Plan,
DISTRICT shall offer to include a COUNTY representative in such a committee
or task force.
3. DISTRICT's PERMITTED USE AND RIGHTS
a. DISTRICT Use. DISTRICT will use the Open Space Property for the Purposes
of this Easement, and manage the Open Space Property in accordance with
the DISTRICT'S Policies that are consistent with and implement these
Purposes, to the extent permitted by any agency having jurisdiction over the
Open Space Property, as such laws, rules and regulations may hereafter from
time to time be amended. If COUNTY determines that such a change to laws,
rules, and regulations are inconsistent with the requirements of this
Easement, the Easement will prevail.
Page 2 of 7
b. Planning, Development & Operation. DISTRICT may plan, design and
construct facilities for the public's use of the Open Space Property consistent
with the Purposes of this Easement, including but not limited to, multi-use
trails, public parking areas, public restrooms, wildlife observation and
environmental educational facilities, visitor centers, picnic areas, backpack
camps, employee residences, maintenance facilities, and related
infrastructure such as water systems.
c. Natural Resource Activities. DISTRICT may conduct natural resource
restoration and resource management activities, including, but not limited to,
removal of non-native or diseased vegetation, afforestation, or reforestation
with native plants.
d. Restoration. DISTRICT may restore cultural, historical and agricultural or
natural resource management activities including but not limited to grazing
and prescribed burning, deemed consistent with protecting the Purposes of
this Easement.
e. Enforcement. DISTRICT may enforce any law, statute, ordinance, regulation,
code or rule of any lawful governmental authority, including but not limited to
DISTRICT Regulations for Use of DISTRICT Lands, as are now in effect and
as such may hereinafter be amended from time to time.
f. DISTRICT Planning & CEQA. DISTRICT shall plan, use, and manage the Open
Space Property in accordance with the California Environmental Quality Act
(CEQA), including environmental review and processes for incorporating
public input, public workshops, and public hearings before DISTRICT Board
approval and implementation of any use or management plans.
g. DISTRICT OBLIGATION. In consideration of County funding, DISTRICT will,
at DISTRICT's expense, design, construct, develop and maintain a low
intensity public trail connection between the Open Space Property, Lexington
Reservoir County Park, Priest Rock Trail and DISTRICT'S Sierra Azul Open
Space Preserve ("Trail Connection"). District will construct the Trail
Connection within fifteen (15) years from the date of the recording of this
Easement.
4. CONDEMNATION
If another public or quasi-public DISTRICT seeks to acquire the Property for
another public use, Section 1240.680 of the Code of Civil Procedure and Section
5542.5 of the Public Resources Code shall apply and be asserted by both COUNTY and
DISTRICT.
S. ENFORCEMENT
DISTRICT grants to COUNTY the right, but not the obligation, to enter upon the
Open Space Property to monitor and enforce any term, condition, restriction, or
covenant of this Easement, or to prevent or prohibit the violation of any term,
condition, restriction, or covenant of this Easement.
6. COSTS AND RESPONSIBILITIES
DISTRICT retains all responsibility and cost for the ownership, operation, upkeep,
and maintenance of the Open Space Property. DISTRICT shall keep the Open Space
Property free of any liens arising out of any work performed for, materials furnished
to, or obligations incurred by DISTRICT. DISTRICT, its successors, and assigns shall
be responsible for, indemnify, and save harmless COUNTY, its officers, agents, and
employees from all liabilities, claims, demands, damages, or costs arising from the
Page 3 of 7
injury or death of any person or physical damage to any property, any act, omission
or condition occurring on the Open Space Property, except for the active or gross
negligence of COUNTY its officers, agents or employees. DISTRICT's duty to
indemnify and save harmless includes the duty to defend as set forth in Civil Code
Section 2778.
7. GENERAL PROVISIONS
a. Rights Cumulative. Each and all of the parties' various rights, powers and
remedies shall be considered cumulative with and in addition to any other
rights, powers, and remedies which the parties may have at law or in equity
in the event of the breach of any of the terms of this Easement. The exercise
or partial exercise of any right, power, or remedy shall neither constitute the
exclusive election thereof nor the waiver of any other right, power, or remedy
available to such party.
b. Notice. Whenever either party wishes or is required to give any notice,
demand, or request concerning this Agreement, each such communication
shall be in writing and deemed to have been validly served, given, or
delivered:
• if deposited in the United States mail, registered or certified, and
return receipt requested with proper postage prepaid; or
• if delivered by private messenger, courier or other delivery service or;
Addressed or delivered as follows:
COUNTY: DISTRICT:
Parks and Recreation Department Midpeninsula Regional Open Space District
298 Garden Hill Drive 330 Distel Circle
Los Gatos CA 95032 Los Altos CA 94022
Attn: Director Attn: General Manager
TEL: (408) 355-2200 TEL: (650) 691-1200
FAX:(408) 355-2290 FAX: (650) 691-0485
Service of any communication made only by mail shall be deemed complete on
the date of actual delivery as indicated by the addressee's registry or certification
receipt or at the expiration of the fourth (4th) business day after the date of
mailing, whichever is earlier. Either party may designate a different mailing
address or a different person to whom such notices or demands are thereafter to
be addressed or delivered by notice in writing served upon the other as stated
above. Nothing contained in this Agreement shall excuse either party from giving
oral notice to the other when prompt notification is appropriate, but any oral
notice given shall not satisfy the requirements provided in this Section.
C. Severability. If any provision of this Easement or the its application to any
person or circumstance is found invalid, the remaining provisions of this
Easement or their application to persons or circumstances (other than those for
which it is found invalid) shall not be affected so long as the purposes of this
Easement can still be carried out.
d. Costs of Enforcement. The prevailing party any proceeding between the parties
to enforce or to interpret the terms of this Easement shall be entitled to recover
their costs and reasonable fees of attorneys, accountants consultants, and
expert witnesses, including costs and fees incurred because of any appeals. The
Page 4 of 7
prevailing party also shall be entitled to recover all costs and fees that may be
incurred in enforcing any judgment or award. This provision shall not be merged
into any judgment, but shall survive any judgment.
e. Captions. The captions in this Easement have been inserted solely for
convenience of reference and are not a part of this Easement and shall have no
effect upon construction and interpretation.
S. ENFORCEABLE COVENANT AND RESTRICTION
This Easement and every term, condition, restriction and covenant in it is
intended for the benefit of COUNTY, its successors or assigns and constitutes an
enforceable restriction. DISTRICT and COUNTY expressly intended that this covenant
is to run with the land to constitute an equitable servitude and shall bind every
successive owner of the Open Space Property or of any interest in it, and shall be
enforceable by COUNTY, its successors and assigns.
9. BENEFIT
This Easement is made for the sole benefit and protection of DISTRICT and
COUNTY. Except as expressly set out otherwise herein, nothing in this Easement shall
be deemed to require the approval or consent of any third party, owner, or occupant
of any other parcel of real property located in or out of the DISTRICT's boundaries
other than COUNTY or to create any right in any third party for enforcement of the
terms of this Easement.
This Easement has been executed on the date shown below.
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
By:
Pete Siemens, President
Board of Directors
Date:
State of California)
County of Santa Clara) ss.
On 2008, before me, a
Notary Public in and for said State, personally appeared
, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to this instrument, and acknowledged to
me that he executed the same in his capacity, and that by his signature on the instrument, the
person or the entity upon behalf of which the person acted executed the instrument.
Notary Public
Page 5 of 7
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EXHIBIT Al: Property Description
Legal Description Attached
9 P
Page 6 of 7
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DESCRIPTION:
The land referred to herein is situated In the State of California,County of Santa Clara,
Unincorporated Area,and Is described as follows:
PARCEL ONE:
BEGINNING AT A STAKE KNOWN AS"T 1" ON THE SECTION LINE RUNNING NORTH AND SOUTH
BETWEEN SECTION 32 AND SECTION 33 IN TOWNSHIP 8 SOUTH, RANGE 1 WEST, M.D.B.&M,
DISTANT THEREON NORTH 0°24'WEST 1320.00 FEET FROM A STAKE SET BY MCPHERSON IN
MAY 1866, KNOWN AS"MCPHERSON'S CORNER,'SAID STAKE"T'BEING ALSO THE
SOUTHWEST CORNER TO LANDS OF JOSEPHINE STOLTE BEATTY;THENCE LEAVING SAID
SECTION LINL ANU IN A Vyta I ERLY DiREC T iON,.'SOUTH 89^ 36'vvES T 223.72 FEE T TO A P044 T
ON THE EASTERN BOUNDARY OF LANDS CONVEYED BY SANTA CLARA VALLEY WATER
CONSERVATION DISTRICT TO COUNTY OF SANTA CLARA,BY DEED DATED NOVEMBER 16,
1955,AS SHOWN UPON THE MAP ACCOMPANYING SAID DEED, NUMBERED L 101-C.SHEET 5
OF 9 SHEETS, ENTITLED"ROAD THROUGH LANDS OF SANTA CLARA VALLEY WATER
CONSERVATION DISTRICT(EAST SIDE ROAD);THENCE TO AND ALONG SAID EASTERN
BOUNDARY,NORTH 2"25'EAST 39.78 FEET;NORTH 49"15'EAST 210.00 FEET; NORTH 5° 50'
EAST 350.00 FEET;NORTH 1°00'EAST 252.36 FEET TO A POINT ON THE SOUTHERN BOUNDARY
OF PACIFIC TELEPHONE AND TELEGRAPH 20 FEET RIGHT OF WAY FOR CABLE LINE;THENCE
TO AND ALONG SAID SOUTHERN BOUNDARY,NORTH 43'06'EAST 25.53 FEET TO A POINT ON
FIRST ABOVE MENTIONED SECTION LINE;THENCE TO AND ALONG SAID SECTION LINE SOUTH
00 24'EAST 794.43 FEET TO THE PLACE OF BEGINNING.
BEING A PORTION OF LANDS CONVEYED BY SAN JOSE WATERWORKS,TO SANTA CLARA
VALLEY WATER DISTRICT, BY DEED DATED MARCH 26, 1953 AND RECORDED OCTOBER 21,
1953 IN BOOK 274 OFFICIAL RECORDS,PAGE 57,SANTA CLARA COUNTY RECORDS.
PARCEL TWO:
i
BEGINNING AT A STAKE MARKED T.I.ON THE SECTION LINE BETWEEN SECTIONS 32 AND 33,
OF TOWNSHIP 8 SOUTH, RANGE 1 WEST,MOUNT DIABLO MERIDIAN,AND 20,000 CHAINS
NORTH OF A STAKE SET BY A. MCPHERSON IN MAY 1866,AS A CORNER TO SECTIONS 32,33,4
AND 5 OF TOWNSHIPS 8 AND 9 SOUTH,RANGE 1 WEST, MOUNT DIABLO MERIDIAN;RUNNING
THENCE ALONG THE LINE BETWEEN SAID SECTIONS 32 AND 33, NORTH 30 MINUTES WEST 28
CHAINS TO A STAKE MARKED G.B.2 ON THE SOUTH BANK OF A GULCH;THENCE UP THE
CENTER OF SAID GULCH IN AN EASTERLY DIRECTION TO A STAKE MARKED G.B. 3,MARKING
THE 118 SECTION LINE RUNNING NORTH AND SOUTH THROUGH THE WEST 1/2 OF SAID
SECTION 33;THENCE ALONG THE EAST BOUNDARY LINE OF THE WEST 1/2 OF THE
NORTHWEST 114 AND THE EAST BOUNDARY LINE OF THE WEST 1/2 OF THE SOUTHWEST A OF
SECTION 33 AND PARALLEL WITH THE SECTION LINE BETWEEN SECTIONS 32 AND 33,SOUTH
30 MINUTES EAST 30.62 CHAINS TO A STAKE MARKED T.2.;THENCE NORTH 89 DEGREES 28
MINUTES WEST 22.60 CHAINS TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION OF PREMISES WHICH MAY LIE WITHIN THE BOUNDS OF
LOT 1, SECTION 33,TOWNSHIP 8 SOUTH,RANGE 1 WEST.
ALSO EXCEPTING THEREFROM ANY PORTION WHICH MAY LIE WITHIN THE LAND CONVEYED IN
THE DEED FROM JOSEPHINE STOLTE BEATIY,TO SANTA CLARA VALLEY WATER
CONSERVATION DISTRICT,RECORDED FEBRUARY 21, 19671N BOOK 3735 OF OFFICIAL
RECORDS,PAGE 460, RECORDS OF SANTA CLARA COUNTY.
APN: 558-35-001,558-36-012 and 558-36-011
Page 3
Order No.: -56007=98170723-SKT
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EXHIBIT A2:
Property Plat or Map Attached
For Illustrative Purposes Only
Page 7 of 7
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