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1981-206-Authorizing The Mayor To Execute Amendment To Joint Powers Agreement With Mid peninsula Regional Open Space District Dated April 20, 1981RESOLUTION NO. 1981 -206 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AMENDMENT TO JOINT POWERS AGREEMENT WITH MID - PENINSULA REGIONAL OPEN SPACE DISTRICT DATED APRIL 20, 1981. BE IT RESOLVED, and it is hereby resolved that the Town Council of the Town of Los Gatos does hereby approve that agreement entitled AMENDMENT TO JOINT POWERS AGREEMENT (copy of which is made a part of this resolution); and BE IT FURTHER RESOLVED that the Mayor is authorized and hereby directed to execute said agreement on behalf of the Town of Los Gatos. PASSED AND ADOPTED BY THE TOWN COUNCIL OF THE TOWN OF LOS GATOS, CALIFORNIA, at a regular meeting held this 21st day of September , 1981, by the following vote: AYES: COUNCIL MEMBERS Ruth Cannon, Thomas J. Ferrito, Brent N. Ventura and Peter W. Siemens NOES: COUNCIL MEMBERS Marlyn J. Rasmussen ABSENT: ABSTAIN: ATTEST: i CLERK OF THE 10 N OF LOS, ATOS COUNCIL MEMBERS None COUNCIL MEMBERS None SIGNED:, MAYOR OF THE T WN OF LOS GATOS AMENDMENT TO JOINT POWERS AGREEMENT WHEREAS, the Town of Los Gatos, hereinafter referred to as TOWN, adopted Resolution number 1981 -89, dated April 20, 1981, approving and authorizing final execution of said Joint Powers Agreement, dated April 20, 1981, and WHEREAS, the Midpeninsula Regional Open Space District, hereinafter referred to as DISTRICT, adopted Resolution number 81 -26, dated April 8, 1981, approving and authorizing execution of a Joint Powers Agreement for the cooperative purchase of Los Gatos Creek Park, and WHEREAS, paragraph 17 of said Joint Powers Agreement provides for the amendment of said Agreement in writing at any time by mutual consent of the parties thereto. NOW, THEREFORE, TOWN and DISTRICT hereby agree to amend said Joint Powers Agreement as follows: Paragraph 2 of said Joint Powers Agreement shall be amended in its entirety to read as follows: ACQUISITION. It is agreed by the parties hereto that TOWN CE DISTRICT shall be responsible for all acquisition activities, including, but not limited to, the initiation of eminent domain proceedings. At all times during the acquisition process DISTRICT and TOWN staffs and expertise will be available for the acquisition project. Staff time and overhead costs of both TOWN and DISTRICT shall be pro- vided at no cost to the other party. It is further agreed, that in the event it is necessary to acquire said property by exercise of the power of eminent domain, TOWN and /or DISTRICT shall utilize the services of the firm of Rodgers, Vizzard and Tallett through DISTRICT, and DISTRICT will coordinate such activities. Any and all other costs of acquisition, including, but not limited to: legal fees, expert witness fees, appraisal and engineering costs and other out -of- pocket expenses shall be shared equally by the parties hereto, including, but not limited to reason- able fees and costs as may be determined by the court should the parties hereto or either of them fail to prevail in any action (s) in eminent domain, or the parties hereto choose to abandon the proceedings in accordance with paragraph 14 hereinbelow. Paragraph 3 of said Joint Powers Agreement shall be amended in its entirety to read as follows: 3. PURCHASE TERMS. TOWN and DISTRICT agree to share equally 50 %/507/ the total purchase price as determined by nego- tiated purchase, negotiated settlement, or Final Order of Condemnation, or other means, subject to the terms of paragraph 14 hereinbelow; the payment required for said purchase shall be made from the Fund established in paragraph 14. Said total purchase price shall be deposited AMENDMENT TO JOINT POWERS AGREEMENT Page 2 by DISTRICT into - escrow (or with the court, if applicable) along with all necessary documents for closure within thirty (30) days after notification to TOWN that DISTRICT is ready, willing and able to close escrow in accordance with this Agreement (including execution by TOWN and DISTRICT of the easement required as a part of paragraph 6 herein); or within ten (10) days after notification to TOWN and /or DISTRICT from a court having competent juris- diction that it has determined the amount of just compen- sation necessary to acquire the property by Final Order of Condemnation. Paragraph 4 of said Joint Powers Agreement shall be amended in its entirety to read as follows: GRANT FUNDS. It is understood that TOWN has applied for, received, and executed a project contract for a Federal financial assistance grant of Land and Water Conservation Funds in the maximum amount of Four Hundred Sixty Five Thousand Six Hundred Fifteen and NO /100 Dollars ($465,615), with the possibility that additional Land and Water Conservation Funds may be awarded, to reimburse the parties for a portion of the full purchase price. It is hereby agreed that the net proceeds from said Grant and any additional amounts as may be awarded from time to time, after deduction of the State surcharge, shall be divided equally between TOWN and DISTRICT. (At the current State surcharge rate of 1.6% of the total project amount, each party would receive a $229,144 reimbursement of the current grant amount). TOWN shall upon notification from DISTRICT or the court, as appropriate, and within the time frame provided in paragraph 3 hereinabove, make an advance deposit with the escrow agent or with the court, as appropriate, of TOWN'S one -half share of all of said Land and Water Conservation Grant Funds as may be awarded as of that time. TOWN shall at all times in good faith pursue said grant project and to that end shall, within thirty (30) days after close of escrow or recordation of a Final Order of Condemnation apply through the State of California for reimbursement from the Federal Government, and TOWN shall remit DISTRICT'S share within ten (IO)days of receipt of said funds from the State but in no event later than six (6) months from the date of close of escrow or recordation of the Final Order of Condemnation, provided however, that if through no fault of TOWN said grant funds are no longer available, TOWN shall be released from any and all responsibility to reimburse DISTRICT for DISTRICT'S share of said grant funds. Paragraph 10 B (2nd) of said Joint Powers Agreement shall be correctly numbered 10 C and the sixth word of the second line of said paragraph shall be correctly spelled - "operation ". AMENDMENT TO JOINT POWERS AGREEMENT Page 3 Paragraph 10 is further amended to add as Subparagraph IOD the following: D. USES NOT CONTEMPLATED: DISTRICT shall not be obligated under this agreement to plan, develop, operate, maintain, or patrol any park facility or recreational uses of greater intensity than those enumerated or given by way of example in Paragraph 10 A above. Paragraph 11 of said Joint Powers Agreement shall be eliminated in its entirety. Paragraph 12 of said Joint Powers Agreement shall be renumbered as Paragraph 11 and shall be amended to delete the second sen- tence. Paragraph 13 of said Joint Powers Agreement shall be renumbered as Paragraph 12. Paragraph 14 of said Joint Powers Agreement is hereby deleted. Paragraph 15 of said Joint Powers Agreement shall be renumbered as Paragraph 13. Paragraph 16 of said Joint Powers Agreement shall be renumbered as Paragraph 14 and shall be amended in its entirety to read as follows: 14. FUNDING PARTICIPATION A. TOWN shall, within ninety (90) days after approval and execution of the Amendment to the Joint Powers Agree- ment by both parties, irrevocably deposit with DISTRICT the sum of Seven Hundred Seventy Five Thousand and NO /100 Dollars ($775,000) to be matched by a contribution in an equal amount from DISTRICT, and the total held in a separate account by DISTRICT (hereinafter called the "Los Gatos Open Space Acquisition Fund" or "Fund "), to cover the costs of acquisition as described in Paragraphs 2 and 5 herein, and the cost of purchasing said Property as described in paragraph 3 herein. Said "Fund" shall be maintained and managed by DISTRICT and shall accumulate interest equivalent to the rate earned from time to time by the County of Santa Clara Commingled Investment Fund. Said "Fund ", together with accumulated interest from the date of deposit with DISTRICT by TOWN shall be used for ongoing expenses associated with the purchase of said Property, and DISTRICT shall maintain adequate accounting records of all such expenses which shall be available to TOWN for examination upon the giving of reasonable notice to DISTRICT. AMENDMENT TO JOINT POWERS AGREEMENT If and when said Property is purchased and there are remaining monies in said "Fund" (after payment of the full purchase price and all associated costs of acqui- sition), TOWN and DISTRICT shall endeavor to agree upon other Open Space Lands appropriate for acquisition in the Los Gatos Area; provided however, that either party hereto, may require of the other party, in writing, that the remaining monies be refunded to the parties on an equal share (50 %/50 %) basis. In the event the final purchase price of said property (including all associated costs of acquisition) is in excess of the grant funds identified in paragraph 4 herein, plus the principal and interest accumulated in the Fund as above established ( "Total Sum "), then either TOWN or DISTRICT may withdraw from the acqui- sition if either party hereto elects to withdraw from the acquisition pursuant to this paragraph, and the other party concurs, any costs of abandoning the acquisition proceedings shall be shared equally bet- ween the parties, in accordance with paragraph 2 herein, and this Agreement shall be deemed terminated; provided that if the other party elects to proceed with the acquisition, the withdrawing party shall nevertheless be liable to participate but only to the extent of one -half of the amount of said Total Sum, and this Agreement shall remain in full force and effect. Paragraph 17 of said Joint Powers Agreement shall be renumbered as Paragraph 15. Paragraph 18 of said Joint Powers Agreement shall be renumbered as Paragraph 16. All other terms and conditions of said Joint Powers Agreement shall remain unchanged and in full force and effect. In witness whereof, the parties hereto have executed this Amendment to the Joint Powers Agreement this day of 1 981 . TOWN OF LOS GATOS MIDPENINSULA REGIONAL OPEN SPACE DISTRICT yf Mayo Down of Los Gatos President, Board of Directors ATTEST: ATTEST: Town Clerk District Clerk DATE: DATE: