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1986-044-Authorizing Acceptance Of Open Space Agreement On Property Known As The Eilertsen Property Authorizing Mayor To Execute Certificate Of Acceptance Of Grant Of Open Space EasementRESOLUTION N0, 1986 -44 RESOLUTION AUTHORIZING ACCEPTANCE OF OPEN SPACE AGREEMENT ON PROPERTY KNOWN AS THE EILERTSEN PROPERTY AUTHORIZING MAYOR TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT OF OPEN SPACE EASEMENT WHEREAS, on March 17, 1986, Town of Los Gatos Resolution No. 1986 -36 approved a Joint Powers Agreement with Midpeninsula Regional Open Space District ( "District ") regarding the purchase of the Eilertsen property (Assessor's Parcel No. 537- 08 -02) consisting of approximately 125 acres to protect valuable public open space and creation lands in perpetuity; WHEREAS, the agreement provides that the District will obtain fee title to the property and to convey to the Town a park, recreation, scenic, and open space easement upon, over and across the property, a copy of which is attached hereto as Exhibit "A" incorporated by reference herein; WHEREAS, in accordance with Government Code Section 51085 on February 26, 1986, the Planning Commission of the Town of Los Gatos found that the proposed grant of open space easement is consistent with the Town's General Plan and the Hillside Specific Plan; WHEREAS, in accordance with Government Code Section 51084 the Town Council hereby finds as follows: a. The preservation of the land described in Exhibit "A" is consistent with the Town's General Plan and the Hillside Specific Plan; and b. The preservation of the land described in Exhibit "A" is in the best interest of the Town of Los Gatos because: (1) The land is essentially unimproved, and if retained in its natural state it has scenic value to the public and is valuable as a watershed and as a wildlife preserve and the instrument granting the easement contains appropriate covenants to that end. (2) It is in the public interest that the land be retained as open space because such land will add to the amenities of living in the Town of Los Gatos and will help preserve the rural character of the area. NOW, THEREFORE, BE IT RESOLVED by the Town Council that the Town of Los Gatos accepts the open space easement as set forth in Exhibit "A ", and the Town Council authorizes and hereby directs the Mayor to execute a certificate of acceptance to the document granting said easement. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos held on the 7th day of April 1986 by the following vote: AYES: COUNCILMEMBERS Joanne Benjamin, Eric D. Carlson, Thomas J. Ferrito and Vice -Mayor Brent N. Ventura NOES: COUNCILMEMBERS None ABSTAIN: COUNCILMEMBERS None ABSENT: COUNCILMEMBERS Terrence J. Daily SIGNED: ATTEST: CLERK OF THE TOWN OF LOS'`GATOS VICE - MAYOR OF THE TOWN OF LOS GATOS -2- PARK, RECREATION, SCENIC AND OPEN SPACE EASEMENT WHEREAS, a Public District, Town'of Los Gatos, to as "TOWN," have Powers Agreement d the Midpeninsula Regional Open Space District, hereinafter referred to as "DISTRICT," and the a Municipal Corporation, hereinafter referred heretofore entered into that certain Joint ated March , 1986. WHEREAS, pursuant to the agreement, TOWN and DISTRICT have agreed to participate jointly in the sharing of purchase costs and fees associated with acquisition of the proposed "Eilertsen Addition to the Sierra Azul Open Space Preserve" which is described in Exhibit "I ", as attached hereto and incorporated herein by this reference (hereinafter called Subject Property or Property); and WHEREAS, TOWN and DISTRICT desire that the 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 said Exhibit "I" 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 "I" for parks, recreation, scenic and open space purposes, upon the following terms and conditions: Park Easement Page 2 1. District Covenants. DISTRICT hereby covenants and agrees, for itself and its successors and assigns, that all of the Subject Property as described in Exhibit "I" shall be forever used and operated as, and maintained and managed for, open space, wilderness, park, agricultural, watershed, scenic, low intensity recreation, or similar purposes (hereafter referred to as "Permitted Uses ") and for no other uses or purposes inconsistent therewith, all as contemplated by or in accordance with the follow- ing excerpt from 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 provides proper, care of open space land, allowing public access appropri- ate to the nature of the land and consistent with ecological values." 2. Permitted Uses. Open space and low intensity recrea- tional use, or 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) Pedestrian hiking trails b) Equestrian riding trails C) Mountain bicycle trails d) Casual public picnicking e) Portable sanitary facilities f) Nature study and environmental education g) Photography h) Public drinking water facilities i) Kite flying j) Scenery painting k) Wildlife observation 1) Compatible agricultural uses M) Meditating n) Public parking areas Park Easement Page 3 o) Primitive campsites (back pack camping) P) Other uses which the DISTRICT may from time -to -time determine to be low intensity recreational uses 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. 3. TOWN'S Recommendations Advisory Only. DISTRICT, for the purpose of this Easement, shall consider but shall be free to accept or reject the recommendations or suggestions of TOWN as to how DISTRICT should plan, design and develop such facilities as enumerated 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. 4. 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 DISTRICT shall enact and enforce ordinances or policies that will prohibit any of the following activities on the subject property: 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 as defined herein. b) Commercial extraction of minerals or natural resources from the land. Park Easement Page 4 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 for purposes consistent with this Easement. 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 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. Z) Use firaarm r s, a_rg`1`;S O dang =rc -s weapons by the publicis . g) Hunting or exploitation of natural wildlife, except when required for public health and safety. h) Commercial cutting of standing timber other than for public safety or consistent public purposes. Park Easement Page 5 i) Planting of vegetation on the Subject Property, except for DISTRICT 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 Easement. j) Excavation or other topographic changes except for specific park, recreation and open space projects consistent with the intent and purpose of this Easement_ 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 Permitted Uses enumerated herein. 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 one -tenth of one percent (1 /100) of the total land area to be paved or otherwise developed with imper- vious surface (roads, parking lots, roofs, or similar development). n) Use of fireworks and pyrotechnics. Park Easement Page 6 5. Easement Intent. 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 hereinabove. 6. Condemnation. If the Property described herein is sought tb be acquired, appropriated or condemned for another public use by any public or quasi - public entity, the presumptions contained in Section 1240.680 of the Code of Civil Procedure and Section 5542.5 of the Public Resource Code shall apply and be asserted. 7. Remedies Uoon 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, ToiNNi, pursuant to action by the Town Council, shall give the then record owner of the Subject Property written notice of such breach or violation. Any such notice shall specify with particularity the nature Of the breach or violation clai -ed 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, TOt,?I 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 Park Easement Page 7 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, preliminary 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 the terms of this Easement, the prevailing party in such suit or proceeding (as determined 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. 8. Binding on Successors. It is further understood and agreed that this Easement and each and every term, condition, restric- tion and covenant contained herein is made and intended for the benefit of TOWM , its successors and assigns, and that it constitutes an enforceable restriction. This Easement is expressly intended by TOWN and DISTRICT to run with the land described in Exhibit "I ", to CCnStitute an equitable s=ervitude therein, and shall 'hind each and every successive owner of said Property, or of any interest therein, and shall be enforceable by T04N, its successors and assigns. Park Easement Page 8 9. Mortgagee Protection. No breach or 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 restrictions 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. Severability. Invalidation of any one or more of the covenants, conditions, restrictions, or other provisions contained herein by judgment or court order shall not invalidate any of the other covenants, conditions, restrictions., or other provisions contai -ed herein and the same shall remain in full force and effect. 11. Amendment and Termination. This Easement shall 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 anv successor of TOWN (JV reorganization Or otherwise) , Pursuant to resolution adopted b_v the =wn Council of LOS Gatos in behalf of and for the owners and occupants of all other parcels or real property located in the TOWNI, 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 such amendment, in whole or in part, or for the termination of this ..ase=en' 12. Failure to Enforce Not a 11aiver. The failure of TORT or its successor to enforce any of the provisions contained herein shall in no event be deemed a waiver of the right to do so there- after, nor of the right to enforce any other provision hereof. Park tease:7ent Page y 13, Discretion o` DISTRICT. It is acknowledged by the =_rties that DIST"' CT =s a public agency governed by an elected Board of Directors which is charged with the management of its lands o °,asuant to the California Public Resources Code (see, e.g., Sections 55=1, 5565). It is not the intent of the parties to limit said Board's cooe fait'- of discretion in its effort to enforce rules, regulations or -001;C4 es ru =scant to this Easement upon or with resoect to the Subject Propert-'/. TOMNZ OF ICS GATOS MISPENINSULA REGIONAL OPEN SPACE DISTRICT r� n r By f' By Vice -Mayor Vice - President, Board of Directors ATTEST: Town Clerk �7 r r,/ ATTEST: District Clerk Date-.. y' 2L- 4L Date: Real property situated in the Torn of Los Gatos, County of Santa.Clara, State, of California, described as follows: ALL OF LOTS.11, 12, 13 and 14 in Section 26, Township 8 South, Range 3_ West, Mount Diablo Base and Meridian, according to the Official Map thereof on file in the office of the Federal Bureau of Land Manag went, approved on April 17, 1882. EXCEPTING FROM the parcel of land firstly hereinabove described that certain parcel of land described as follows: PORTION OF LOTS 12 and 13 of Section 26, Township 8 South, Range l West, and being gore particularly described as follows: COMMENCING at the Nortlraest corner of Lot 12, running thence South along the West line of Lots 12 and 13, 40 chains to the *Southwest corner of Lot 13, running thence East along the South line of said Lot 13, 10 chains; thence North and parallel with the first described line 40 chains to a point on the North line of Lot 12; thence West along the said North line of Lot 12, 10 chains to the place of co-- mencemeat. TOGETHER WITH a right of way as provided for in the Deed from L_ G. Casaletto, et ux, to P. E. Rogers, dated April 28, 1923 and recorded May 18, 1923 in Book 23 Official Records, page 486, as follows: RIGHT OF WAY over and across any part or portion of said 40 acres hereby reserved to the Grantors and which said right of way shall be for ingress and egress over the lands of the parties of the first part to the lands of the party of the second part, said right of way when made and built is to be made and built -where most feasible and accessible and of sufficient width for access to said land for any and all kinds of vehicles. A °N: 537 -08 -002 �X`HJBIT Page ®.