HomeMy Public PortalAboutResolution - 15-23- 20150513 - Closing of the TransactiRESOLUTION 15-23
RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF A
MEMORANDUM OFAGREEMENT, AUTHORIZING THE GENERAL MANAGER OR
OTHER OFFICER TO EXECUTE A CERTIFICATE OF ACCEPTANCE OF GRANT
DEED TO DISTRICT, AUTHORIZING THE GENERAL MANAGER OR OTHER
OFFICER TO EXECUTE THE CONSERVATION EASEMENT DEED, AND
AUTHORIZING 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 PENINSULA
OPEN SPACE TRUST HENDRYS CREEK PROPERTy)
The Board of Directors of Mid peninsula Regional Open Space District does resolve as follows:
SECTION ONE. The Board of Directors of Mid peninsula Regional Open Space District
("MROSD") does hereby accept the offer contained in that certain Memorandum of
Understanding between Peninsula Open Space Trust, Santa Clara Valley Water District, and the
Midpeninsula Regional Open Space District, a copy of which is attached hereto and by reference
made a part hereof, and authorizes the President of the Board of Directors, General Manager or
other appropriate officer to execute the Memorandum of Agreement and all related transactional
documents on behalf of the District to acquire the real property described therein (the "Hen drys
Creek Property").
SECTION TWO. The General Manager, President of the Board of Directors, or other
appropriate officer is authorized to execute a Certificate of Acceptance for the Grant Deed on
behalf of the District.
SECTION THREE. The General Manager, President of the Board of Directors, or other
appropriate officer is authorized to execute a Conservation Easement Deed for the real property
rights being conveyed to Santa Clara V alley Water District.
SECTION FOUR. The General Manager or the General Manager's designee shall cause to be
given appropriate notice of acceptance to the seller and to extend escrow if necessary.
SECTION FIVE. The General Manager or the General Manager's designee is authorized to
expend up to $5,000.00 to cover the cost of title insurance, 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 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.
SECTION SEVEN. The purpose of this Section is to enable MROSD to reimburse its general
fund for the cost of certain land acquisitions. MROSD wishes to finance certain of these real
property acquisitions and expects to use tax-exempt debt, such as bonds, but a tax-exempt
financing is not cost-justified for MROSD unless the principal amount of the financing is large
enough to justify the related financing costs. Consequently, it is MROSD's practice to buy
property with its general funds and, when a tax-exempt financing is cost-justified based on the
aggregate value of acquisitions, to issue tax-exempt obligations to reimburse itself for previous
expenditures of general funds. These general funds are needed for operating and other working
capital needs of MROSD and are not intended to be used to finance property acquisitions on a
long-tenn basis.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * � * * * *
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional
Open Space District on May 13,2015, at a Regular Meeting thereof, by the following vote:
AYES:
NOES:
HANKO, HARRIS, HASSETT, KISHIMOTO, RIFFLE, SIEMENS
NONE
ABSTAIN: NONE
ABSENT: CYR
ATTEST:
Sec;:;;tary 7
Board)'l Dlrectors
APPROVED AS TO FORM:
APPROVED:
Board of Directors
I, the Interim 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.
?-Jn��
Interim District Clerk
2
Resolulions/2015115-23_Henrlrys Creek Propeny
SCVWD ENACTED COPY
Contract Administration Unit
AGMT: £io.3 Fe ME:
MEMORANDUM OF AGREEMENT, FILE NO. 3039-1
BETWEEN THE
SANTA CLARA VALLEY WATER DISTRICT
PENINSULA OPEN SPACE TRUST
AND
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
FOR ACQUISITION OF RIPARIAN CONSERVATION EASEMENT OVER
SANTA CLARA COUNTY ASSESSOR PARCELS 558-27-007, 558-27-008 AND 558-51-005
This Memorandum of Agreement ("MOA") dated for identification purposes June 9 , 2015,
is entered into by and between the Santa Clara Valley Water District ("SCVWD"), the Peninsula
Open Space Trust, ("POST"), and the Midpeninsula Regional Open Space District ("MROSD")
for the purpose of establishing the terms under which SCVWD shall acquire a Conservation
Easement Deed involving certain real property within the unincorporated area of the County of
Santa Clara identified as Assessor Parcels 558-27-007, 558-27-008 and 558-51-005 containing
approximately 117 acres (the "Property").
WHEREAS, the proposed Conservation Easement Deed is attached as Exhibit A hereto and
incorporated herein by this reference; and
WHEREAS, the SCVWD has adopted the following mission statement - "The mission of the
SCVWD is a healthy, safe, and enhanced quality of living in Santa Clara County through
watershed stewardship and comprehensive management of water resources in a practical, cost-
effective, and environmentally -sensitive manner"; and
WHEREAS, the SCVWD has adopted the following Ends Policies in support of this mission:
E-4.1.2. Improve watersheds, streams, and natural resources.
E-4.1.3. Promote the protection of creeks, bay, and other aquatic ecosystems from
threats of pollution and degradation.
E-4.2.1. Support healthy communities by providing access to additional trails, parks and
open space along creeks and in the watersheds.
WHEREAS, the SCVWD's mitigation requirements for its Stream Maintenance Program ("SMP")
include a Stream and Watershed Protection ("S&WP") Program that was planned to be mostly
accomplished by donating funds to park and open space agencies, land trusts, and other land
conservation organizations that would ultimately own title or easement and manage the property;
and
WHEREAS, the Property meets the criteria for the S&WP Program including the requirement
that the land be potentially subject to current or future development or degradation or presents a
unique conservation opportunity; and
WHEREAS, POST currently owns the Property; and
WHEREAS, POST was organized as a non-profit, charitable public benefit corporation to solicit,
receive and hold gifts, legacies, devises and conveyances of real and personal property for
public park, conservation and open space purposes in portions of Santa Clara, Santa Cruz and
1 April 2015 MOA
San Mateo Counties; and
WHEREAS, MROSD was formed by voter initiative with the mission: "To acquire and preserve a
regional greenbelt of open space land in perpetuity; protect and restore the natural environment;
and provide opportunities for ecologically sensitive public enjoyment and education"; and
WHEREAS, MROSD owns and manages the adjoining lands to the north, south and east of the
Property as public open space lands as part of the approximately 19,000 -acre Sierra Azul Open
Space Preserve; and
WHEREAS, MROSD started managing the Property under a separate agreement with POST in
2011; and
WHEREAS, SCVWD, POST and SCVWD have evaluated the Conservation Easement Deed
and believe that acquisition will help each entity fulfill their respective missions; and
WHEREAS, upon POST's transfer of the Property to MROSD, MROSD desires to deed the
Conservation Easement Deed to SCVWD to preserve and protect the natural watershed and
riparian habitat while allowing opportunities for ecologically sensitive public enjoyment;
NOW, therefore, the parties agree as follows:
1. Conveyance of Property and Conservation Easement —
POST shall convey the Property to MROSD by Grant Deed, and MROSD shall
concurrently convey the Conservation Easement Deed, attached hereto as Exhibit "A"
and incorporated by this reference, to the SCVWD and the parties shall close escrow on
or before June 30,_2015.
2. Escrow —
This transaction will be handled through an escrow with Old Republic Title Company
("Title Company"), 361 Lyttton Avenue, Suite 100, Palo Alto, California 94301 (650) 321-
0510, Escrow number 0626025798 ("Escrow"). The Grant Deed and Conservation
Easement Deed shall be recorded by Escrow in the Official Records of the County of
Santa Clara, State of California. SCVWD and MROSD shall pay their respective costs of
escrow and recording fees incurred in this transaction including documentary transfer
stamp tax, if required by law, and title insurance policy expenses, if any.
3. Mutual Obligations —
Prior to close of any escrow set out in Section 2 herein, SCVWD, POST and MROSD
shall cause Grant Deed and the Conservation Easement Deed to be approved and
executed by persons or officers with the authority to do so.
4. Title -
POST warrants that it currently owns fee title to the Property and has the full right, power,
and authority to execute, deliver, and perform its obligations under this MOA.
5. POST's Responsibilities —
By June 12, 2015 POST shall deposit to Escrow a fully executed and recordable
Grant Deed for the Property to MROSD.
2 April 2015 MOA
6. SCVWD Responsibilities
a. By June 26, 2015, SCVWD will complete any necessary or appropriate surveys,
maps, plans, plats and legal descriptions for the Property that will be subject to
the Conservation Easement Deed conveyed by MROSD to SCVWD.
b. SCVWD shall deposit into Escrow One Million Five Hundred Thousand and
No/100 ($1,500,000.00) to Escrow on or before June 26, 2015 payable to Old
Republic Title Company.
c. SCVWD shall deposit an additional Forty Thousand Dollars ($40,000) to Escrow
on or before June 26, 2015 payable to Old Republic Title Company to cover
MROSD's actual costs incurred for professional environmental consultant
services to prepare CEQA environmental review documents for the Hendrys
Creek project (Environmental Review Costs). The SCVWD's total liability for
such Environmental Review Costs shall not exceed Forty Thousand Dollars or the
total amount of such costs (established as set forth in section 7 below)
whichever is less. SCVWD shall. review MROSD's submissions in support of
such Environmental Review Costs by June 26, 2015, and shall deposit into
Escrow either written notice of its approval of the same if it reasonably determines
that MROSD's submissions fully support the Environmental Review Costs being
requested or written notice of its disapproval if it finds that MROSD's submissions
do not fully support the Environmental Review Costs being requested.
d. By June 26, 2015, SCVWD will execute one original Acceptance Certificate for
the original Conservation Easement Deed executed by MROSD and shall deposit
the fully executed and recordable Conservation Easement Deeds to Escrow.
7. MROSD's Responsibilities
By June 12, 2015, MROSD shall execute one original Conservation Easement
Deed and serve it upon the SCVWD so that the SCVWD can execute the
associated Acceptance Certificate and deposit the fully executed and recordable
Conservation Easement Deed to Escrow.
b. By June 12, 2015, MROSD shall deposit into Escrow copies of all invoices
supporting its Environmental Review Costs along with a cover letter summarizing
the same.
c. MROSD shall be responsible for operating costs that are required to manage the
Property as set forth more fully in the Long -Term Management Plan for the
Hendrys Creek Property entered into between MROSD and the SCVWD.
8. Title Company Responsibilities
Title Company shall, when all required funds and instruments have been deposited
into the escrow by the Parties and when all other conditions to Closing have been
fulfilled, cause 1) the Grant Deed and attendant Certificate of Acceptance, and 2) the
Conservation Easement Deed and attendant Certificate of Acceptance, to be
recorded in the Office of the County Recorder of Santa Clara County. Upon the
Closing, Title Company shall cause to be delivered to SCVWD the original of the
policy of title insurance required herein in the amount of $1,500,000 with a copy to
MROSD, and to POST the wire or check for the full purchase price of the Property
less POST's share of costs, if any. The title insurance policy shall name both
MROSD and the SCVWD as insureds. Upon SCVWD's written approval of the
3 April 2015 MOA
Environmental Review Costs deposited in Escrow, the Title Company shall also
provide a wire or check to MROSD for the amount of the Environmental Review
Costs established in MROSD's submission (as set forth in section 7 above) or Forty
Thousand Dollars ($40,000) whichever is less.
9. Notices
Any and all notices required to be given hereunder shall be in writing and may be
delivered personally or shall be deemed to have been delivered upon deposit in the
United States mail, postage prepaid, addressed to either of the parties at the address
hereinafter specified or as later amended by either party in writing,
POST: Walter T. Moore, President
Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
SCVWD: Beau Goldie, Chief Executive Officer
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, CA 95118
MROSD: Stephen E. Abbors, General Manager
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
10. Successors and Assigns; Good Faith
This MOA, and all terms, covenants, and conditions hereof, shall apply to and bind the
successors and assigns of the respective parties hereto. Parties shall meet and confer
as needed to complete this transaction.
11. Applicable Law —
This MOA shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this MOA as of its execution by all
parties.
Peninsula Open Space Trust
B(J ,i
Walter T. Moore, President
Date: s1 201
4 April 2015 MOA
Santa Clara Valley Water District
BY: —�
Beau Goldi ;Chief Executive Officer
Date: June 9, 201 5
Midpeninsula Regional Open Space District
BY:
Stephen . Abbors, General Manager
Date: , • /
5 April 2015 MOA