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
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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