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1982-114-Approving Amendments To Joint Powers Agreement Between Town Of Los Gatos And Mid peninsula Regional Open Space DistrictRESOLUTION NO. 1982 -114 A RESOLUTION APPROVING AMENDMENTS TO JOINT POWERS AGREEMENT BETWEEN TOWN OF LOS GATOS AND MIDPENINSULA REGIONAL OPEN SPACE DISTRICT. BE IT RESOLVED that the Mayor of the Town of Los Gatos is hereby authorized and directed to execute an AMENDMENT TO JOINT POWERS AGREEMENT (copy of which is attached hereto) 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 7th day of June , 1982, by the following vote: AYES: COUNCIL MEMBERS Ruth Cannon, Thomas J. Ferrite, Brent N. Ventura and Peter W. Siemens NOES: COUNCIL MEMBERS MarLyn J. Rasmussen ABSENT: COUNCIL MEMBERS None ABSTAIN: COUNCIL MEMBERS None 1 MAYOR 0 -TA T OF LOS GATOS ATTEST: CLERK OF THE TOWN OF LOS ATOS AMENDMENT TO JOINT POWERS AGREEMENT 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 Resolution number 81 -42, dated September 28, 1981, amending said Joint Powers Agreement, and 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 and Resolution number 1981 -206, dated September 21, 1981., amending said Joint Powers Agreement, and WHEREAS, paragraph 15 of said Joint Powers Agreement as amended provides for the amendment of said Acreement in writing at any time by mutual consent of the parties thereto. NOW, THEREFORE, DISTRICT and TOWN hereby agree to amend said Joint Powers Agreement as amended as follows: Section 1. Paragraph 3 of said Joint Powers Agreement shall be amended to read as follows: 3. PURCHASE TERMS. TOWN and DISTRICT agree to share equally (50 % -50%) 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 said paragraph 14. Said total purchase price shall be deposited by DISTRICT 1i10 escrow 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 DISTRICT of the easement required as a part of paragraph 6 herein); or within ten (10) days after noti- fication to TOWN and /or DISTRICT from a court having competent jurisdiction that it has determined the amount of just compensation necessary to acquire the property by Final Order of Condemnation. Section 2. Paragraph 4 of said Joint Powers Agreement shall be amended in its entirety to read as follows: 4. 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 Ht:ndred Sixty Five Thousand Six Hundred Fifteen and N01100 Dollars ($465,615), with the possibility that additional Land and Water Conserva- tion Funds may be awarded, to reimburse the parties for a portion of the full purchase price. It is hereby agreed by the parties hereto that, contingent upon State and /or Federal approval, as required, the responsibility, obligations, and funding under said Grant be transferred to DISTRICT by resolution of the parties. Amendment to Jo t Powers Agreement Page two It is further agreed that in the event said grant is transferred to DISTRICT, as provided herein, the net proceeds from said grant and any additional Land and Water Conservation Funds as may be awarded from time to time, after deduction of the State surcharge, shall be paid first to DISTRICT as reimbursement for amounts advanced in escrow (or the Court as appropriate), as provided in paragraph 3 herein, in excess of the then net balance of the Fund as established.in paragraph 14; in the event that the total purchase price is less than the total of said fund plus the net grant proceeds, the remaining balance shall be appropriated in the manner provided in paragraph 14. In the event that the transfer of said grant to DISTRICT is not accomplished, 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 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. Section 3. Paragraph 5 of said Joint Powers Agreement shall be amended as follows: 5. CLOSE OF ESCROW AND COSTS. It is agreed by the parties hereto that escrow shall close in accordance with paragraph 3 hereinabove through an account with First American Title Guaranty Company, 675 North First Street, San Jose, California, or other such escrow agent as may be designated by DISTRICT. It is further agreed that all escrow fees and title insurance costs, if required as a part of this transaction, shall be shared equally by TOWN and DISTRICT and paid from the fund as established in paragraph 14 herein. Section '4. Paragraph 6 of said Joint Powers Agreement shall be amended as follows: 6. TITLE. Fee title to said Property shall vest in DISTRICT, Amendment to Joint wers Agreement Page Three subject to existing easements, encumbrances and other clouds on the title to said property as acceptable to DISTRICT. Concurrently with close of escrow, as above - mentioned, DISTRICT shall convey or cause to be conveyed to TOWN a recorded Park, Recreation, Scenic and Open Space Easement (hereinafter "Easement ") upon, over and across said Property. Said Easement shall be in the form labeled Exhibit "C" as attached hereto and incorporated herein by this reference, which form is hereby approved by the parties hereto. DISTRICT shall furnish TOWN a duplicate copy of any policy of title insurance and escrow closing statement. Section 5. Paragraph 10 of said Joint Powers Agreement shall be amende as o ows: 10. OPEN SPACE USE, A. DEFINED. Any and all public facilities and uses which might e developed or enhanced on said Property, which would be considered by the parties hereto to be open space or low intensity recreation uses, as further defined in the Easement attached hereto as said Exhibit "C" B. DEVELOPMENT. DISTRICT shall plan, design and develop suc aci ities as are reasonably necessary for public use and enjoyment of said Property for open space or low intensity recreation as defined herein. TOWN shall have the right of design review and recommendation privileges as further described in the Easement attached as said Exhibit "C ". Any and all open space development shall be funded equally by TOWN and DISTRICT. C. MANAGEMENT. Except as provided in clause 8 herein, DISTRICT shall be responsible for all operations, patrol and maintenance of said Los Gatos Creek Park as long as said Property is developed and operated for open space and low intensity recreation purposes as defined herein - above. 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 of development or use than those enumerated or given by way of example in the Easement attached as said Exhibit "C ". Section 6. Paragraph 12 of said Joint Powers Agreement shall be amende as o lows: 12. SALE AS SURPLUS. It is understood and agreed that in the event any or all of said Property is declared free of its dedicated use (see paragraph 7) and sold by DISTRICT, with the mutual consent of TOWN, as provided for in the Easement described in Exhibit "C" herein, the proceeds of any such sale shall be equally shared by TOWN and DISTRICT. Amendment to Joint Powers Agreement Page four Section 7. 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: TOWN OF LOS GATOS r BY: Mayor, Town of Los Gatos ATTEST:7` Town Clerk DATE - , 1 f Jf Z MIDPENINSULA REGIONAL OPEN SPACE DISTRICT BY: President, Board of Directors ATTEST: District Clerk DATE: PARK, RECREATION, SCENIC AND OPEN SPACE EASEMENT WHEREAS, the Midpeninsula Regional Open Space District, a public district, hereinafter referred to as "DISTRICT ", and the Town of Los Gatos, a political subdivision of the State of California, hereinafter referred to as "TOWN" have heretofore entered into that certain Joint Powers Agreement dated April 20, 1981 and amended September 28, 1981 and June 9, 1982; and WHEREAS, pursuant to which agreement, TOWN and DISTRICT agreed to participate jointly in purchase costs and fees associated with acquisition of the proposed "Los Gatos Creek Park" as described in Exhibit "A", attached hereto and incorporated herein by this refer- ence (hereinafter called Subject Property or Property); and WHEREAS, TOWN and DISTRICT desire that said Subject Property shall forever remain as part of the parks, recreational, ecological and aesthetic resource of the Midpeninsula area; and WHEREAS, it is now the desire and intention of TOWN and DISTRICT, pursuant to said Joint Powers Agreement, that the lands described in Exhibit "A" be made subject to an easement for park, recreation, scenic and open space purposes for the benefit of TOWN, its successors and assigns. NOW, THEREFORE, in consideration of the substantial payment being made toward the purchase of the Subject Property by the parties, the public benefit to be derived therefrom, and in order to insure that the Subject Property will be preserved in perpetuity, DISTRICT hereby grants to TOWN, and TOWN hereby accepts from DISTRICT an easement upon, on, over, under, and across the Subject Property as described in said Exhibit "A" for parks, recreation, scenic and open space purposes, as follows: District Covenants 1. DISTRICT hereby COVENANTS, for itself, its successors and assigns, that all of the land described in Exhibit "A" shall be forever used and operated as, and maintained and managed for, open space, wilderness, park, agricultur- al, watershed, scenic, or similar purposes (hereafter re- ferred to as permitted uses) and for no other uses or purposes inconsistent therewith, all as contemplated by`or coming within the following portion of DISTRICT's Basic Policy as adopted by DISTRICT's Board of Directors on March 27, 1974, to wit: "The DISTRICT will follow a land management policy that D T p� of � , Open Space Easeme Los Gatos Page two Provides proper care of open space land, allowing public access appropriate to the nature of the land and consistent with ecological values." 2. Permitted Uses The permitted uses which are allowed under the terms and conditions of this easement without further restriction include, but are not limited to the following: a) b) c) d) e) f) g) h) i) j) k) 1) m) n) Pedestrian hiking trails Equestrian riding trails Casual public picnicking Portable sanitary facilities for use of Nature study and education Photography Subject Property Public water facilities for use of Subject Property Kite flying Scenery painting Wildlife observation Compatible agricultural uses Meditating Unpaved public parking areas Primitive campsites (back pack camping) DISTRICT shall plan, design and develop such facilities as are reasonably necessary for public use and enjoyment of said Property for open space or permitted uses as defined above. TOWN shall have the right of design review and recommendation privileges on any and all open space development subject.to the terms of paragraph 3 herein. With regard to open space development of said property, an application for design review and recommendation shall be made by DISTRICT to TOWN. The application shall include a site plan showing the location of all proposed trails, planted or landscaped areas, proposed grading or other development or improve- ments, and indicating the proposed uses or activities on the property. Within 60 days from the filing of the application with TO;,iN, TOWN shall review the site plan and drawings, and shall make its recommendations, based upon the following objectives: a) To ensure construction and operation in a manner that will be orderly, harmonious, and compatible with existing or potential uses of adjoining or nearby sites. b) To ensure that sound principles of environmental design and ecological balance shall be observed. c) To ensure adherence to the terms, conditions and purposes of this agreement and the definition of open space or low intensity recreational use as defined above Open Space Easement Los Gatos 3. Right Of DISTRICT to Page three or Reject TMMi l s DISTRICT, for the purpose of this easement, shall consider but shall be free to accept or reject the recommendations of TOWN resulting from the design review referred to in Paragraph 2 above. However, nothing herein shall limit the rights of TOWN or other governmental agencies having jurisdiction over the subject property as provided by law, ordinance or other source. Prohibited Uses Use and development of the Subject Property which would significantly change or compromise scenic or natural values shall be prohibited, except as to those permitted uses referred to'in Paragraph 2 above. DISTRICT hereby covenants and agrees that the Subject Property shall not be used for any of the following purposes: a) Construction or maintenance on or within the Subject Property of advertising signs of any kind or nature, except for identification purposes consistent with the public use of said property for parks, recreation, scenic and open space purposes. b) Commercial extraction of minerals or natural resources from the land. c) Construction of any residential, commercial or industrial structure including, without limitation, any hotel, inn, condominium, town house, or rental apartment project, except for the possible limited residential use by personnel engaged in maintenance and patrol of the Subject Property. d) Operation on the Subject Property of any motor bike, trail bike, go -cart or other motor - driven or powered vehicles except those motor - driven or powered vehicles reasonably necessary for DISTRICT herein to use, develop, patrol or maintain the Subject Property or by the public to reach the recreational facilities provided, but in accordance with the permitted uses pursuant to the terms, conditions, restrictions and covenants set forth for the Subject Property herein. e) Dumping or placing of any public trash, waste or garbage, except in receptacles maintained by DISTRICT or TOWN. f) Use of firearms, airguns or dangerous weapons by the public. g) Hunting or exploitation of natural wildlife, except where required for public health and safety. h) Commercial cutting of standing timber other than for public safety or consistent pubkiet.. ses o' :!e Qf i) Planting of.vegetation on the Subject Property, except for approved soil management, erosion control, reforestation, compatible agricultural uses and planting of native California vegetation, and normal landscaping and screening of park and recreation areas and public facilities in connection therewith, consistent with the intent and purpose of this instrument. j) Excavation or other topographic changes except for specific park, recreation and open space projects consistent with the intent and purpose of this agree- ment. The general topography of the Subject Property shall be maintained in its present condition. k) Use of the Subject Property which does or will materially alter the natural landscape or open space character of the Subject Property other than those specifically excepted. 1) Any use other than parks, recreation, scenic or open space uses as provided herein. m) The development of said property for any amusement or "theme park" or any use that would require more than 5% of the total land area to be paved or otherwise developed with impervious surface (roads, parking lots, roofs, or similar development). n) Use of fireworks and pyrotechnics. o) Hang gliding or parachuting 5. It is the intent of this easement to prohibit any development or physical improvements which would impair the.visual resource of said Subject Property, and to limit the use and development on the Subject Property to those permitted uses referred to in Paragraph 2 herein - above. All other uses and development on the Subject Property, except those uses prohibited in Paragraph 4 hereinabove, shall also be prohibited unless specifically and mutually considered and approved by TOWN, by action of its TOWN Council, and DISTRICT, by action of its Board of Directors. 6. Condemnation If the property described herein is sought to be acquired, appropriated or condemned for another public use by any public or quasi - public entity, the presumptions contained in Section 1240.680 or the Code of Civil Procedure and Section 5542.5 of the Public Resource Code shall apply and be asserted. EX,'H 1 D) IT Open Space Ea. .nent Page five 7. Remedies Upon Default a) In the event the DISTRICT, or any successor in interest of the DISTRICT, breaches or violates any of the covenants, conditions, or restrictions contained herein, TOWN, pursuant to action by the Town Council, shall give the then record owner of the Subject Property written notice of such breach violation. Any such notice shall specify with particularity the nature of the breach or violation claimed and shall set forth in detail the action which the party giving such notice requests be taken in order to cure the claimed breach or violation. b) If such breach or violation continues uncured for a period of sixty (60) days or more after the giving of such notice, TOWN shall have the right to prosecute any proceeding at law or in equity against the then record owner of the Subject Property or any other person violating,.attempting to violate, or breaching any of the provisions contained herein, in order to prevent the violating or breaching party or any such person from violating or attempting to violate or breach any of the covenants conditions, or restrictions contained herein. The remedies available under this paragraph shall include, by way of illustration, but not limitation, ex parte applications for temporary restraining orders, pre- liminary injunctions, and permanent injunctions enjoining or remedying any such violation or breach or attempted violation or breach. C) If TOWN or DISTRICT, or any successor of DISTRICT shall bring an action against any of the other parties hereto by reason of the violation or breach of any covenant, condition, or restriction contained herein, or otherwise arising out of this easement, the pre- vailing party in such suit or proceeding (as deter- mined by the Court) shall be entitled to recover attorneys' fees which shall be payable whether or not such action or proceeding is prosecuted to judgment, provided that no award of attorneys' fees shall be rendered against either party unless the court finds that such party's action or inaction is willful and in bad faith. B. It is further understood and agreed that this easement and each and every term, condition, restriction and covenant contained herein is made and intended for the benefit of TOWN, its successors and assigns, and that it consititutes an enforceable restriction. This easement is expressly intended by TOWN and DISTRICT to run with the land described in Exhibit "A ", to constitute an equitable servitude therein, and sha13(:bi�nd eac and Open Space Easemen Los Gatos Page six every successive owner of said land, or of any interest therein, and shall be enforceable by TOWN, its succes- sors and assigns. 9. Motgagee Prtection Nr o breach or o violation of any of the covenants, conditions or restrictions contained herein shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust made in good faith and for value encumbering the Subject Property or any portion thereof, but all of the covenants, conditions and restric- tions contained herein shall be binding upon and effective against each owner of the Subject Property, or any portion thereof whose title hereto is acquired by foreclosure, trustee's sale, or otherwise. 10. Severabilit Inva i anon of any one or more of the covenants, con- ditions, restrictions, or other provisions contained therein by judgment or court order shall not invalidate any of the other covenants, conditions, restrictions, or other provisions contained herein and the same shall remain in full force and effect. 11. Amendment and Termination This Agreement sha be effective as of the date of recordation hereof in the Office of the Santa Clara County Recorder, and may, with written consent of District, be amended in whole or in part or terminated only by a written instrument executed by TOWN, or any successor of TOWN (by reorganization or otherwise), pursuant to resolution adopted by the Town Council of Los Gatos in behalf of and for the owners and occupants of all other parcels or real property located in the TOWN, and by all of the then record owners thereafter recorded in the Office of the Santa Clara County Recorder. Nothing herein shall be deemed to require the approval or consent of any other owner or occupant of any other parcel of real property located in the Town of Los Gatos for the amendment, in whole or in part, or for the termination of this agreement. 12. Failure to Enforce Not a Waiver The failure oT TOWN or its successor to enforce any of the provisions eontained herein shall in no event be deemed a waiver of the right to do so thereafter nor of the right to enforce any other provision hereof. 13. Discretion of DISTRICT It is acknowledged by the parties that DISTRICT is a public agency governed by an elected Board of Directors which is charged with the management of its lands pur- suant to the California Public Resources Code (see, e.g., Sections 5541, 5565). It is not the intent of the parties to limit said Board's good faith exercise of discretion in its effort to enforce rules, regulations or policies pursuant to this agreement upon or with respect to the Subject Property. Exhibit C Page 6 of 7 Open Space Easement Los Gatos TOWN OF LOS GATOS Ma or Attest: Dated: Page seven MIDPENINSULA REGIONAL OPEN SPACE DISTRICT President, Board of Directors Attest: District Clerk Dated: r-d ME12T C