1986-073-Authorizing Acceptance Of Open Space Agreement On Property Known As The Blair Property And Authorizing Mayor To Execute Certificate Of Acceptance Of Grant Of Open Space EasementRESOLUTION 110. 1986-73
RESOLUTION AUTHORIZING ACCEPTANCE OF OPEN
SPACE AGREEMENT ON PROPERTY KNOWN AS THE BLAIR
PROPERTY AND AUTHORIZING MAYOR TO EXECUTE
CERTIFICATE OF ACCEPTANCE OF GRA14T OF OPEN
SPACE EASEMENT
WHEREAS, James Blair and Donna Blair desire to grant to the Midpeninsula
Regional Open Space District and the Town of Los Gatos an open space easement
over approximately 38 acres of their property (Assessor's Parcel No.
537-13-03), a copy of which is attached hereto as Exhibit "1 ";
WHEREAS, in accordance with Government Code Section 51085 on March 12, 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 "I" is consistent with
the Town's General Plan and the Hillside Specific Plan; and
b. The preservation of the land described in Exhibit "I" 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 "l", 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, California, held on the 2nd day of June 1986 by the following
vote.
AYES: COUNCILMEMBERS Joanne Benjamin, Brent N. Ventura,
and Mayor Terrence J. Daily
[IDES: COUNCILMEMBERS None
ABSTAIN: COUNCILMEMBERS None
ABSENT: COUNCILMEMBERS Eric D. Carlson, and Thomas J. Ferrito
SIGNED:
ATTEST:
LEIRK OF 14E �CWN OF LOS GATOS
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Midpeninsula Regional Open
Space District
Old Mill Office - Center
Building C, Suite 135
201 San Antonio Circle
Mountain View, CA 94040
GRANT OF OPEN -SPACE EASEMENT WITH COVENANTS
RECITALS
WHEREAS,
1. The undersigned, James Blair and Donna Blair, husband
and wife, as community property (collectively "GRANTOR "), are
the owners of the fee simple estate in and to that real
Property (the "Subject Property,,), situated in the County of
Santa Clara, State of California, more particularly described
in Exhibit "A" attached hereto and made a part hereof.
2. It is the desire of GRANTOR to grant to Midpeninsula
Regional Open Space District, A Public District (the
"District "), and the Town of Los Gatos (the "Town "), an
open -space easement on, upon, over, and across the .Subject
EXHIBIT "1"
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Property pursuant to Chapter 6.6 (commencing with Section
51070) of Part 1, Division 1, Title 5 of the California
Government Code and Section 5540 of California Public Resources
Code. The District and the Town shall hereinafter collectively
be referred to as "GRANTEE ".
3. The GRANTOR and GRANTEE recognize the scenic,
aesthetic and special character of the region in which their
respective properties are located, and have the common purpose
of conserving the natural values of their respective properties
by the conveyance of an open -space easement on, over, and
across the Subject Property which shall conserve and protect
the bird and .plant population and prevent the use or
development of the Subject Property for any purpose or in any
manner which would conflict with the maintenance of the Subject
Property in its natural, scenic, open and wooded condition.
4. This Grant of Open -Space Easement with Covenants is
referred to herein as the "agreement" or the "easement."
NOW, THEREFORE, for valuable consideration, receipt of
which is hereby acknowledged:
Grant of Open -Space Easement
1. GRANTOR hereby grants to GRANTEE an open -space
easement on, upon, over, and across the Subject Property and
relinquishes to the public in perpetuity the right to construct
improvements thereon.
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2. GRANTOR covenants and agrees for itself and its
successors and assigns that GRANTOR, its successors and assigns
singularly or in combination:
(a) Shall not erect, construct, place or maintain or
grant permission for the erection, construction, placement or
maintenance of any improvement, building or structure or any
other man -made thing whatsoever on the Subject Property which
would impair the open -space nature of the Subject Property
other than such improvements, building, structures, or other
things existing on the Subject Property at the time of the
granting of this easement.
(b) Shall not use or grant permission to others to
use the Subject Property or any portion thereof as a parking
lot, storage area or dump site or otherwise deposit or grant
permission to others to deposit on the Subject Property or any
portion thereof, temporarily or otherwise, anything whatsoever
which is not indigenous or natural to the Subject Property.
(c) Shall not cover or cause the Subject Property to
be covered in whole or in part with any asphalt, stone, or
concrete or other material which does not constitute natural
cover for the land, and shall not otherwise disturb the natural
cover for the land, specifically excluding the repair or
maintenance of any existing roads on the Subject Property or
the placing of gravel or other non - impervious material upon any
roads existing as of the date of this easement.
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(d) Shall not mine, extract, sever or remove nor
grant permission to others to mine, extract, sever or remove or
cause to be mined, extracted, severed or removed any natural
resource found or located on, above or under the Subject
Property or otherwise engage in or grant permission to others
to engage in any activity on the Subject Property which will or
may destroy the natural and scenic open -space characteristics
of the Subject Property.
(e) Shall not fish, trap, hunt, capture, kill or
destroy or grant permission to other for the fishing, trapping,
hunting, capturing or destruction of fish or other marine or
aquatic life of the Subject Property, except for health or
safety purposes and with the prior written consent of the Town,
if required by law.
(f) Shall not hunt trap or grant permission to others
for the hunting or trapping of animal life on the Subject
Property. Pursuant thereto, GRANTOR, its successors or assigns
shall not trap, kill, capture or destroy or grant permission to
Others for the trapping, killing, capturing or destruction of
animal life on the Subject Property, except for health and
safety purposes and with the prior written consent of the Town,
if required by law.
(g) Shall not divide or subdivide the Subject
Property or otherwise convey (other than under threat of
condemnation) a portion of such property less than the whole to
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one or more parties, or convey the Subject Property to two (2)
or more parties each of whom acquires title to less than the
whole of the Subject Property. As used herein "party' means
and includes any person, corporation, partnership, or other
legal entity capable of holding title to real property.
(h) Shall not cut, uproot or remove or grant
permission to others for the cutting, uprooting or removal of
timber or trees or other natural growth found or located on the
Subject Property, except as may be permitted pursuant to
Paragraph 3.
(i) Shall not excavate or grade or grant permission
to others for any excavation or grading to be done, or place or
grant permission to others for the placement of any sand, soil,
rock, gravel or any other such material whatsoever on Subject
Property, except as permitted pursuant to Paragraph 2(c).
(j) Shall not operate or grant permission to others
for the operation on the Subject Property of any motor bike,
trail bike, go -cart or other motor - driven or motor - powered
vehicles, except those motor vehicles for GRANTOR'S use but
only if such use does not impair the open -space nature of the
Subject Property, or such use is reasonably necessary for the
accomplishment of the purpose for which the Subject Property is
used pursuant to the terms and conditions, restrictions and
covenants set forth herein for the Subject Property.
"Grantor's use" as used herein shall be deemed to include use
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by Grantor and Grantor's employees, agents, invitees, and
independent contractors.
Grantee's Rights
3. Notwithstanding any other provision hereof, this
easement agreement shall not restrict, in any manner, GRANTOR's
right: (a) to develop any natural springs on the Subject
Property, to install underground water lines on the Subject
Property, and to remove water from the Subject Property; and
(b) to perform such maintenance, repair and removal work on the
Subject Property as may be necessary to preserve the vegetation
and ground cover in a healthy and safe condition, or to
construct and maintain foot trails on the Subject Property.
Such maintenance, repair and removal work shall include the
pruning of trees, thinning and removal of trees and vegetation
for fire safety purposes, elimination of dead or diseased
growth, and removal of poison oak and other unsafe or hazardous
vegetation, provided a tree removal permit is obtained from the
Town, if required by law.
Right to Prevent Prohibited Use
4. GRANTOR grants to GRANTEE its successors and assigns
for the term of this easement the right, but not the
obligation, to enter upon the Subject Property, at its risk,
for the following purposes: (a) to conduct regular general
inspections of the Subject Property, in no event to exceed more
than one (1) such regular general inspection every three (3)
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calendar years, unless GRANTEE has reasonable cause to believe
that GRANTOR is in material default of the terms of this
agreement, in which case GRANTEE shall have the right to an
interim general inspection, in no event to exceed more than one
(1) interim general inspection of the Subject Property in any
calendar year; and (b) to investigate an alleged specific
violation of the easement agreement, but only after a bona fide
third party complaint or report has been made to GRANTEE of
such specific violation; and (c) to investigate and halt
activity on or use of the Subject Property contrary to the
terms of this easement agreement which, if not immediately
acted upon, would result *in a material breach of this agreement
causing irreparable harm to the open -space nature of the
Subject Property ( "Emergency Inspection "). With respect to the
regular and interim general inspections referred to in
subparagraph (a), GRANTEE shall be required to give GRANTOR
thirty (30) days prior written notice before conducting such
inspections. With respect to GRANTEE's right to enter the
Subject Property after a reported violation pursuant to
subparagraph (b), GRANTEE shall be required to give GRANTOR
prior notice either in writing or by telephone of the claimed
violation within two (2) days of receipt of the specific
complaint or report of the violation, and a period of five (5)
days after receipt by GRANTOR of notice of the violation within
which to respond to GRANTEE regarding the existence of the
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claimed violation and the need for such an inspection. In the
case of an Emergency Inspection referred to in subparagraph
(c), no prior telephone or written notice shall be required
from GRANTEE to GRANTOR before GRANTEE enters upon the Subject
Property, unless reasonable under the circumstances.
Enforcement
5. The stated purposes, terms, conditions, restrictions
and covenants set forth herein and each and all of them,
including the right of GRANTEE to require GRANTOR to perform
any restoration work reasonably required due to a breach of
this agreement, may be specifically enforced or enjoined by
proceedings in the Superior Court of the State of California.
No Authorization for Public Trespass
6. The granting of this easement and its acceptance by
GRANTEE does not authorize and is not to be construed as
authorizing the public or any member thereof to trespass upon
or use all or any portion of the Subject Property or as
granting to the public or any member thereof any dedication or
any other tangible rights in or to the Subject Property or the
right to go upon or use or utilize the Subject Property in any
manner whatsoever. It is understood that the purpose of this
easement is solely to restrict construction of buildings,
structures, and other above ground level edifices on the
Subject Property and to establish the other restrictions
expressly set forth herein with respect to the Subject Property
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so that the Subject Property may be kept in an open -space
condition.
Reservation of Use by GRANTOR
7. GRANTOR reserves the right to use the Subject Property
in any manner consistent with the stated purposes, terms,
conditions, restrictions and covenants of this easement and
with existing zoning and other laws, rules and regulations of
the State of California and the Town or other jurisdiction
having authority, their successors or assigns, as such laws,
rules and regulations may hereafter from time to time be
amended.
Condemnation
8. It the Subject Property or any portion thereof during
the term of this easement is sought to be condemned for public
or quasi - public use, the easement and each and every term,
condition, restriction and covenant contained herein shall
terminate as of the time of the filing of the complaint in
condemnation as to that portion of the Subject Property sought
to be taken for public or quasi - public use only, but shall
remain in effect relative to all other portions of the Subject
Property. GRANTOR shall be entitled to such compensation for
the taking as it would have been entitled had the Subject
Property not been burdened by this easement and nothing in this
agreement shall be construed to give GRANTEE any interest in
any award or payment made to GRANTOR in connection with any
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exercise of eminent domain or transfer in lieu thereof;
Provided, however, that each and every stated term, condition,
restriction and covenant of this easement shall be observed by
GRANTOR, its successors or assigns, during the pendency of such
action and provided further that in the event such action is
abandoned prior to the recordation of a final judgment of
condemnation relative to the Subject Property or any portion
•thereof is not actually acquired for a public or quasi - public
use, the Subject Property shall, at the time of such
abandonment, or at the time it is determined that such property
shall not be taken for public or quasi - public use, once again
be subject to this easement and to each and every stated
Purpose, term, condition, restriction and covenant of this
easement; provided, further, that if the Subject Property is
sought to be acquired, appropriated, or condemned for a use
incompatible with this open space easement as defined herein,
by any other 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 Resources Code may be asserted
by the Grantee to protect its interest in the Subject Property
and preserve the open -space character thereof.
9. Remedies Upon Default.
(a) If GRANTOR, or any successor in interest of
GRANTOR, breaches or violates any of the covenants, conditions,
or restrictions contained in this agreement, GRANTEE shall give
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GRANTOR or its successor in interest written notice of such
breach or 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 GRANTEE requests be
taken in order to cure the claimed breach or violation.
(b) If such breach or violation continues uncured for
a period of more than sixty (60) days after the receipt of such
notice, GRANTEE shall have the right to prosecute any
proceeding at law or in equity against GRANTOR or its successor
in interest in order to prevent the violating or breaching
party from violating or attempting to violate or breach any of
the covenants, conditions or restrictions contained herein;
provided, however, that if the nature of the breach or
violation is such that more than sixty (60) days is reasonably
required for such cure, then GRANTOR shall be allowed such
additional necessary time provided GRANTOR diligently
prosecutes such cure to completion. 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 either party shall bring an action against any
of the other party by reason of the violation or breach of any
covenant, condition, or restriction contained herein, or
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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 reasonable attorneys'
fees and costs which shall be payable whether or not such
action or proceeding is prosecuted to judgment, provided that
no award of attorneys' fees and costs shall be rendered against
either party unless the court finds that such party's action or
inaction is willful and in bad faith.
Enforceable Restriction
10. This easement and each and every term, condition,
restriction and covenant contained herein is intended for the
benefit of the public and constitutes an enforceable
restriction pursuant to the provisions of Section 8 of Article
XIII of the California Constitution and Chapter 6.6 (commencing
with section 51070) of Part 1. Division 1.. Title 5 of the
Government Code and shall bind GRANTOR and its successors and
assigns and each and all of them, and is intended to run with
the land.
Notices
11. Any notices required to be given to GRANTOR shall,
unless otherwise specifically set forth in this agreement, be
in writing and delivered to GRANTOR as follows: Mr. and Mrs.
James Blair, 15310 Kennedy Road, Los Gatos, CA 95030.
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This easement has been executed on this day of
1986.
GRANTOR:
James Blair
Donna Blair
ACCEPTANCE OF OPEN -SPACE EASEMENT WITH COVENANTS
Pursuant to the provisions of Chapter 6.6 of Part 1,
Division 1, Title 5 of the Government Code (commencing with
Section 51070) and Section 5540 of the Public Resources Code,
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT and THE TOWN OF LOS
GATOS hereby accept this grant of easement with the covenants
on this day of , 1986.
GRANTEE:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, A PUBLIC
DISTRICT
By
President, Board of Directors
Attest
District Clerk
THE TOWN OF LOS GATOS T
Ma
yor
7
Attest
Town Clerk
-13-
EXHIBIT A
LEGAL DESCRIPTION:
All that certain real property situate in the Town of
Los Gatos, County of Santa Clara, State of California,
described as follows:
The West 1/2 of the West 1/2 of the Northeast 1/4 of
Section 26 Township 8 South Range 1 West, Na.D.B.& M.
Excepting therefrom the following described real property:
All that real property situate in the Town of Ins Gatos, County
of Santa Clara, State of California and being a portion of
Section.26, Township 8 South, Range 1 West, Mount Diablo Baseline
and Meridian and more particularly described as follows:
Beginning at the Southwest corner of the West Quarter of the
Northeast Quarter of said Section 26;
Thence northerly along the westerly line of said West Quarter,
North 20 East, 256.91 feet, to a-point that is 256.80 feet
distant fran the southerly line of said West Quarter measured at
right angles;
Thence along a line parallel with and distant 256.80 feet
northerly of said southerly line, South 89028'48" East, 678.04
feet to a point in the easterly line of said West Quarter;
Thence southerly along the easterly line of said West Quarter,
South 10 59'04" West, 256.88 feet to the southeasterly corner
of said West Quarter;
Thence westerly along the southerly line of said West Quarter,
North 89028'48" West, 679.03 feet to the Point of Beginning.
Said described parcel being the most southerly 4 acres of the
West Quarter of the Northeast Quarter of said Section 26.
End of description.
EXHIBIT A
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CAT. NO. NNO0627
TO 1944 CA 0 —83)
(Individual)
STATE OF CALIFORNIA
TICOR .TIE INSURANCE
COUNTY OF C SS.
On'�' before me, the undersigned, a Notary Public in and for
said State, personally appeared
, personally known to me or
proved to me on the basis of satisfactory evidence to be
the person =whose name ---F O^ subscribed to the
within instrument and acknowledged that exe-
cuted the same.
WITNESS my hand and official seal.
J
Signature 4""
78NANTA ICIAL SEAL
EN GATES
ubllc -0allfomN
CLARA COUNTY
. Exp. Jury 29, 190
Famy 3omewcc� -=c.� .
(This area for official notarial seal)
CAT. NO, NNO0627
TO 1944CA(1 -83) ijrej- TICORTITLE INSURANCE
(Individual)
STATE OF CALIFORNIA
COUNTY OF = �1.i1°p � SS•
On _JlAhilo `r. 1 -1-640 - before me, the undersigned, a Notary Public in and for
said State, personally appeared —rt7 --JSr r~ _ AA
, personally known to me or
proved to me on the basis of satisfactory evidence to be
the person® whose name V5 _ subscribed to the
within instrument and acknowledged that RS exe-
cuted the same.
WITNESS y hand and official seal.
Signature A . AM
CAT. NO. NNO0627
TO 1944 CA (1 -83)
(Individual)
STATE OF CALIFORNIA
COUNTY OF
On
said State, personally appeared
} Ss.
OFFICIAL SEAL
q NORMAN D. PLOSS
tl NOTARY PUBLIC• CALIFORNIA
SANTA CLARA COUNTY
My Comm. Explm Oct. x, 1988
(This area for official notarial seal)
TICOR TITLE INSURANCE
before me, the undersigned, a Notary Public in and for
, personally known to me or
proved to me on the basis of satisfactory evidence to be
the person— whose name subscribed to the
within instrument and acknowledged that exe-
cuted the same.
WITNESS my hand and official seal.
Signature