HomeMy WebLinkAboutCity Council Resolution 11-058 RESOLUTION NO. 11 058
CITY COUNCIL OF THE CITY OF SARATOGA
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA
APPROVING ACQUISITION OF CONGRESS SPRINGS PROPERTY FROM THE
COUNTY OF SANTA CLARA INCLUDING DEDICATION OF CONSERVATION
EASEMENT TO THE COUNTY OF SANTA CLARA PARKS AND RECREATION
DEPARTMENT AND THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AND ADOPTING A NEGATIVE DECLARATION.
WHEREAS, the City desires to purchase the former quarry site property on Congress
Springs Road from the Santa Clara County Roads Department for park and open space purposes
including a major portion of the Saratoga to the Sea trail; and
WHEREAS, the three quarters of the City's purchase will be funded by the County of
Santa Clara Parks and Recreation Department and the Midpeninsula Regional Open Space
District; and
WHEREAS, the Santa Clara County Parks and Recreation Department and the
Midpeninsula Regional Open Space District wish to acquire a conservation easement over the
Property in order to enhance County and District park and open space resources; and
WHEREAS, the City has considered a proposed Negative Declaration for the acquisition
of the property and related implementing actions described in the staff report accompanying this
resolution that found the project would not have a significant adverse effect on the environment.
NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Saratoga
that:
1. the recitals set forth above are true and correct; and
2. the Negative Declaration for the project is hereby adopted together with the findings and
determinations set forth in Attachment A to this Resolution; and
3. the Funding and Acquisition Agreement Quarry Property Purchase set forth in
Attachment B to this Resolution is hereby approved;
4. the Purchase Agreement set forth in Attachment C to this Resolution is hereby approved;
5. the Grant Deed of Conservation Easement set forth in Attachment D to this Resolution is
hereby approved; and
6. the City Manager and City Attorney are authorized to accept non substantive revisions to
the agreements and easement referenced above that effect the intent of the agreements
and easement.
Continued on next page
The above and foregoing resolution was passed and adopted by the Saratoga City Council at a
regular meeting held on the 17 day of August 2011 by the following vote:
AYES: Council Member Manny Cappello, Emily Lo, Jill Hunter,
Vice Mayor Chuck Page, Mayor Howard A. Miller
NAYES: None
ABSTAIN: None
ABSENT: None
Howard A. Miller, Mayor
ATTEST:
V �l DATE: 01/47/
Ann ullivan,
City Clerk
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Attachment A
Findings and Determinations Regarding California Environmental Quality Act Compliance
The City of Saratoga City Council has considered a proposed Negative Declaration for approving a funding
agreement, purchase agreement, and dedication of a conservation easement and related implementing actions
relating to acquisition of the 64 acre Congress Springs Quarry property as described in this resolution. The
foregoing actions are described as the "Project."
1. An Initial Study (IS) and Negative Declaration (ND) were prepared for the Project by the City of Saratoga,
pursuant to the requirements of the California Environmental Quality Act (CEQA, Public Resources Code
sections 21000-21177), CEQA Guidelines (14 California Code of Regulations sections 15000- 15387), and
other applicable requirements.
2. The IS and a notice of intent to adopt a ND were duly noticed and circulated for a 30 -day public review
period from June 27, 2011 to July 27, 2011.
3. All Interested Parties desiring to comment on the ND were given the opportunity to submit written and oral
comments on the adequacy of the ND up to and including the close of the City Council's consideration of
the project on August 17, 2011.
4. The IS and ND represents the City's independent judgment and analysis.
5. On August 17, 2011 the City Council conducted a public meeting on the Project, during which opportunity
was given to address the adequacy of the ND. All comments on the IS and ND raised during the public and
agency comment period and at the Public Hearing(s) on the Project were considered by the City Council and
the City Council was given the opportunity to review all of the information in the administrative record; and
6. After the conclusion of public testimony, the City Council considered all oral and written comments and a
staff recommendation for approval of the ND and reviewed and considered the information in the IS and
ND, public and agency comments on the IS and ND, the administrative record, and the staff report for
completeness and compliance with CEQA, the CEQA Guidelines, and any and all other applicable
requirements.
7. The Project has been the subject of an Initial Study and Negative Declaration under the California
Environmental Quality Act (CEQA) pursuant Section 15070 and following of Title 14, Division 6, Chapter 3
(CEQA Guidelines). The ND has been completed in compliance with the intent and requirements of CEQA,
CEQA Guidelines and any and all other applicable requirements. The City Council has considered the
information contained in the ND and the record in considering the Project and related actions.
8. The documents constituting the record of proceedings upon which this decision is based are located in the
City of Saratoga Public Works Department and are maintained by the Director of that Department.
9. Pursuant to CEQA and CEQA Guidelines, the City Council finds on the basis of, and after review of, the
whole record before it (including the Initial Study, the Negative Declaration, any and all comments received,
and in light of expert and other evidence submitted), that there is no credible, substantial evidence that the
Project may have a significant effect on the environment as to any issue raised.
P: \SARATOGA \Public Works \Quarry Acquisition\Staff Report \Quarry Acquisition Resolution and Reso Att.A.DOC
B. ESCROW INSTRUCTIONS. This section constitutes the joint escrow
instructions of the BUYERS and CITY, and a duplicate original of the Agreement will
be delivered to the Escrow Agent upon the CITY's opening of escrow. The BUYERS
and CITY will provide additional escrow Instructions as is necessary and consistent
with the Agreement. Upon CITY's deposit of a fully executed easement In form and
content acceptable to BUYERS (Easement) into escrow for recording, BUYERS will
have thirty (30) days to deposit the Purchase Funds into escrow, along with a fully
executed Certificate of Acceptance of the Easement. Upon BUYERS' deposit of the
Purchase Funds into escrow, and CITY's acquisition of the Property, the escrow
agent is hereby authorized to record the Easement and Certificate of Acceptance in
the Santa Clara County Office of the Clerk Recorder immediately following the
deed conveying the Property to CITY, and to disburse the Purchase Funds in
accordance with CITY's separate escrow instructions for the transaction. In the
event the BUYERS' Purchase Funds are not available prior to CITY's Acquisition of
Property, at CITY's option, CITY may choose to acquire the Property in advance of
receiving the BUYERS' Purchase Funds, provided that, upon receipt of BUYERS'
Purchase Funds, the Easement is recorded immediately following CITY's Grant Deed.
The escrow agent will provide original and conformed copies of the recorded
Easement to BUYERS as indicated on the Easement document.
In the event the transaction is not completed within one year of the effective
date of this Agreement, BUYERS may pursue all available legal remedies and
terminate this Agreement by written notice to the CITY and escrow agent. Such
notice of termination will be immediately effective. For the purposes of this section,
completion of the transaction means the recording of the Easement and BUYERS'
Certificate of Acceptance immediately following the recorded grant deed conveying
the Property to CITY.
3. COUNTY'S DELEGATION OF AUTHORITY.
The Board of Supervisors of Santa Clara County grants to the Director of Parks
and Recreation (Director), or the Director's designee, the power and authority to (i)
grant and withhold consents pursuant to this Agreement, (11) sign on behalf of
County all documents contemplated by this Agreement, and (iii) to make decisions,
give approvals, or terminate the Agreement, as necessary and provided for herein,
subject to approval as to form and legality by the County Counsel.
4. MISCELLANEOUS.
A. ATTACHMENTS. The following attachment is incorporated into the
terms of this Agreement by reference:
Attachment 1: Grant Deed of Conservation Easement (containing Exhibit A:
Property Description).
B. TIME. Time is of the essence for this Agreement.
C. ENTIRE AGREEMENT. This Agreement is the entire agreement between
the parties respecting the matters set forth within, and supersedes all prior
negotiations or agreements between the parties, if any.
Page 2 of 5
FUNDING AND ACQUISTION AGREEMENT
Quarry Property Purchase
This is an Agreement (Agreement) between the CITY OF SARATOGA (CITY), a
municipal corporation, the COUNTY OF SANTA CLARA (COUNTY), a political
subdivision of the State of California, and the Midpeninsula Regional Open Space
District (DISTRICT), a special district, for the COUNTY and DISTRICT's acquisition of
an interest real property as described below. COUNTY and DISTRICT are referred to
collectively as "BUYERS."
RECITALS
A. The CITY desires to purchase certain property from The Santa Clara County
Roads Department (Seller) for park and open space purposes including a portion of
the "Saratoga to the Sea" Trail that would connect Saratoga from the Hakone
Gardens to Sanborn County Park and then to the Skyline -to- the -Sea Trail as
contemplated by the Circulation Element and the Open Space and Conservation
Element Implementation Program OSC 5.a of the Saratoga General Plan and for
providing regional park connections through the Tollgate area to the Parker Ranch
Open Space and the Fremont Older Open Space Preserve. The property is
described and shown in Exhibit A to Attachment 1 of this Agreement (Property).
The CITY will acquire the Property for approximately One million dollars ($1 million)
on or about October 31, 2011(Acquisition).
B. BUYERS wish to acquire a conservation easement over the Property in order to
enhance County and District park and open space resources including the above
referenced "Saratoga to the Sea" and other trail connections, and secure the County
and District benefits described herein.
C. In consideration of BUYERS' funding, CITY will convey to BUYERS a conservation
easement as described below.
1. PURPOSE of this AGREEMENT
BUYERS will provide funding for the Acquisition in order to enhance the
County's park, recreation, scenic and open space lands near Sanborn Park and the
Fremont Older Open Space Preserve and to secure the Easement described in
Section 2.A. CITY has performed all environmental review required under the
California Environmental Quality Act, for CITY's Acquisition and conveyance of
Easement to BUYERS.
2. ACQUISITION TERMS and ESCROW INSTRUCTIONS
A. ACQUISITION TERMS. COUNTY will pay Five hundred thousand dollars
($500,000.00), and DISTRICT will pay Two hundred fifty thousand dollars
($250,000) to CITY (Purchase Funds), and, in consideration of such, CITY will
convey to BUYERS, and BUYERS will accept, the Conservation Easement (Easement)
over the Property substantially in the form set out in the attached Attachment 1,
which is incorporated herein by reference. BUYERS will pay the Purchase Funds as
provided in subsection (b), Escrow Instructions.
Page 1 of 5
D. EFFECTIVE DATE OF AGREEMENT. This Agreement takes effect on the
latest date signed below:
COUNTY OF SANTA CLARA
By:
Dave Cortese, President
Board of Supervisors
Attest:
Maria Marinos
Clerk Board of Supervisors
Approved as to form and legality:
Katherine Harasz, Deputy County Counsel
CITY OF SARATOGA
By:
Howard A. Miller, Mayor
City Council of the City of Saratoga
Attest:
Ann Sullivan
City Clerk
Approved as to form and legality:
Richard Taylor, City Attorney
Page 3 of 5
Midpeninsula Regional Open Space
District
By:
Larry Hassett, President
Board of Directors
Date:
Attest:
By:
Michelle Radcliffe, District Clerk
Approved as to form and legality:
By:
Susan Schectman, General Counsel
Page 4 of 5
Funding and Acquisition Agreement Attachment 1
[Grant Deed of Conservation Easement (attached)]
Page 5 of 5
RECORDING WITHOUT FEE
UNDER SECTION 6103
CALIFORNIA GOVERNMENT CODE
When Recorded Return to:
County of Santa Clara
Parks and Recreation Dept.
Attn: Real Estate Div.
298 Garden Hill Drive
Los Gatos, CA 95032
And to:
Midpeninsula Regional
Open Space District
330 Distel Circle
Los Altos, CA 94022
GRANT DEED OF CONSERVATION EASEMENT
WHEREAS, City of Saratoga, hereinafter called "Grantor is the owner of certain real property
located within the County of Santa Clara, State of California, and consisting of approximately
sixty -four (64) acres in two parcels. The legal description of the real property is attached hereto
as Exhibit A and incorporated by this reference (hereafter "Property
WHEREAS, THE COUNTY OF SANTA CLARA, hereinafter called "County is a political
subdivision of the State of California, with a Parks and Recreation Department with a mission to
"provide, protect and preserve regional parklands for the enjoyment, education and inspiration of
this and future generations and
WHEREAS, MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District,
hereinafter called "District" (with County, collectively "Grantees was formed by voter
initiative to solicit, receive, and hold conveyances of real property and interests therein by
purchase, exchange, gift, or bargain purchase for public park, recreation, scenic, and open space
purposes; and
WHEREAS, Grantor desires to deed to Grantees and Grantees desire to obtain a conservation
easement over the Property to preserve and protect in perpetuity the natural, scenic and
recreational values of the Property, subject to the restrictions contained herein.
WHEREAS, Grantor and Grantees further desire to support development of the "Saratoga to the
Sea" Trail that would connect Saratoga from the Hakone Gardens to Sanborn County Park and
then to the Skyline -to -the -Sea Trail as contemplated by the Circulation Element and the Open
Space and Conservation Element Implementation Program OSC 5.a of the Saratoga General Plan
by protecting the Property which is a linchpin for the Saratoga to the Sea trail and for providing
regional park connections through the Tollgate area to the Parker Ranch Open Space and the
Fremont Older Open Space Preserve.
WHEREAS, Grantor and Grantees have entered into a Funding Agreement dated
whereby Grantor has contributed funds for Grantees' acquisition of the Property as consideration
for this Easement.
NOW, THEREFORE, in consideration of the above recitals, and the mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the laws of California and in
particular, inter alia, Sections 815 through 816 of the Califomia Civil Code, Grantor hereby
grants to Grantees a Conservation Easement in perpetuity over the Property, subject to the
following terms and conditions:
1. Purpose. The purpose of this Easement is to assure that the Property will be retained in
perpetuity in its natural scenic and open space condition, to prevent any use of the
Property that will significantly impair or interfere with its open space values,.to promote
public access for hiking and other recreation, and implement restoration and erosion
control measures on the Property. Accordingly, this Easement restricts the use of the
Property to activities involving recreation (hiking, picnicking, nature research and study),
enjoyment of views, open space, natural habitat and environmental protection, restoration
and related uses which are consistent with this Easement.
2. Management Plan. To accomplish the purposes of this Easement, Grantor shall, within
five (5) years of the date of this Agreement, develop a Final Management Plan (FMP) for
the Property. The development and implementation of the FMP will be subject to County
and District review and input and all necessary regulatory approvals. The FMP shall
include, but not be limited to, the following:
2.1 Provisions that promote the protection of public resources;
2.2 Provisions for the implementation of an erosion control program;
2.3 Provisions that promote public access for recreation;
2.4 Provisions for the development of the Saratoga -to -the -Sea Trail described in
section 3.
2.5 A program for obtaining any regulatory approvals necessary to allow
implementation of the FMP.
3. Trail Easement and Development. The FMP shall provide for the development and
maintenance of a "Saratoga to the Sea" trail "Trail through the Property as
contemplated by the City of Saratoga General Plan Open Space and Conservation
Element and Circulation and Scenic Highways Element, subject to all necessary
regulatory approvals.
3.1 The Trail alignment shall be planned in consultation with Grantees and shall be
from Hakone Gardens through Property to a point on the western boundary of the
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Property that will allow for a reasonable alignment for a trail continuing to
Sanborn County Park.
3.2 The Trail will be developed by the City, no later than five (5) years after the City
obtains the rights for a trail connecting the Property with Hakone Gardens and
shall be operated and maintained by the City thereafter.
4. Rights of Grantees. To accomplish the purposes of this Easement, Grantor conveys to
Grantees the right:
4.1 To preserve and protect the open space values of the Property.
4.2 To enter upon the Property at reasonable times, in order to monitor Grantor's
compliance with the terms of this Easement and to enforce such terms; provided
that such entry shall be upon reasonable prior notice to Grantor or its successors
in interest of the Property.
4.3 To enter upon the Property at any time in order to monitor potential violation of
compliance with the terms of this Easement and to enforce such terms.
4.4 Pursuant to Section 7 hereof "Disputes and Remedies to prevent any activity
on or use of the Property which is inconsistent with the purposes of this Easement
and to require the restoration of such areas or features of the Property that may be
damaged by any inconsistent activity or use.
4.5 To prepare baseline data. In order to establish the condition of the Property,
Grantees may examine the Easement Property and prepare a report (the "Baseline
Documentation Report") containing an inventory of the Easement Property's
relevant features and conditions, its improvements and its natural resources (the
`Baseline Data A copy of the Baseline Documentation Report shall be
provided to Grantor, and another shall be placed and remain on file with Grantees.
The Baseline Documentation Report shall be signed by the Grantor and Grantees
to acknowledge that it accurately represents the condition of the Easement
Property at the time it is prepared. The parties intend that the Baseline Data shall
be used by Grantees to monitor Grantor's future uses of the Easement Property,
condition thereof, and practices thereon. The parties further agree that, in the
event of a controversy arises with respect to the condition of the Easement
Property or a'particular resource thereof, the parties shall not be foreclosed from
utilizing any other relevant document, survey, or report to assist in the resolution
of the controversy.
5. Prohibited Uses. Any activity on or use of the Property which is inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality of the foregoing,
the following activities and uses are expressly prohibited:
5.1 Subdivision. The legal or defacto subdivision of the Property for any purposes.
(Lot line adjustments in excess of one hundred square feet are subject to the prior
written approval of Grantees.) Any land transferred by lot line adjustment shall
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remain subject to the terms of this Easement, and shall not carry with it any rights
to development density. The term subdivision shall include, but not be limited to,
the creation of a life or future estate in a portion of the Property, the conveyance
of a portion of the Property, or any subdivision as defined by the Subdivision Map
Act, California Government Code Section 66000 et seq.
5.2 Transfer Density Rights. Development rights within the Easement area may not
be transferred or otherwise used within or outside of the Easement area.
5.3 Commercial or Industrial Use. Any commercial or industrial development, use
of, or activity on the Property, including commercial agriculture.
5.4 Building. The placement or construction of any buildings, structures or other
improvements of any kind on the Property (including without limitation, fences,
roads, signs and parking lots) except as part of the Final Management Plan or as
otherwise described as a permitted use in section 6.
5.5 Soil Erosion or Degradation. Any use or activity which causes, or is likely to
cause, significant soil degradation or erosion or significant pollution of any
surface or subsurface waters is prohibited, except where Grantor determines it
reasonably necessary for the construction of trails.
5.6 Tree Cutting. The cutting down, or other removal of live trees, except when
required for safety or fire protection and subject to the prior written approval of
Grantees, which approval shall not be unreasonably withheld.
5.7 Dumping. The dumping or other disposal of wastes, refuse, or debris on the
Property.
5.8 New Utilities. The installation of new utility systems or extensions of existing
utility systems, including, without limitation, water, sewer, power, fuel, and
communication lines and related facilities except as part of the Final Management
Plan or otherwise described as a permitted use in section 6, provided, however
that such new utility systems or extensions must be installed underground.
5.9 Mineral Rights. The exploration for, or development and extraction of, minerals
and hydrocarbons by any mining method.
5.10 Grazing. The grazing of livestock except as part of a resource management plan
implemented in accordance with the Final Management Plan.
5.11 Off Road Vehicles. Use of off-road or all- terrain vehicles or motorcycles.
5.12 Hunting or Shooting. Hunting or trapping of wildlife, or the shooting of guns.
5.13 Noise Limits. Activities (such as concerts) which produce noise levels in excess
of 65 decibels as measured on trails surrounding the Property. Agricultural and
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landscaping equipment such as tractors, chainsaws, and leaf blowers are
specifically excluded from this provision.
5.14 Junk Yards. Storage or disassembly of inoperable automobiles and trucks for
purposes of sale or rental of space for that purpose.
5.15 Excavation. Alteration of land forms by grading or excavation of topsoil, earth,
or rock is prohibited, except where Grantor determines it reasonably necessary for
trails or other public access in accordance with the Final Management Plan.
5.16 Scenic and Natural Character. Activities such as clearing, stripping of native
vegetation, grading, or storage of materials that would clearly degrade the scenic
and natural character of the Property, except where Grantor determines it
reasonably necessary for trails or other public access in accordance with the Final
Management Plan.
5.17 Archeological Resources. The excavation, removal, destruction, or sale of any
archeological artifacts or remains found on the property, except as part of an
archeological investigation approved by Grantor. All excavation plans shall be
reviewed by an archeologist prior to the start of, and during, the excavation.
5.18 No limitation of Grantor's rights to construct and maintain trails and public
amenities. Nothing contained in this section shall be interpreted to limit Grantor's
right to construct and maintain trails and reasonable public amenities as described
herein or in the Final Management Plan.
5.19 Conveyance of Rights to Prohibited Uses. The rights to any use prohibited by this
Easement may not be conveyed in any manner to any person or other legal entity.
6. Permitted Uses. The Grantor may use the property for any purpose not prohibited by
Section 5 and which is consistent with the purpose of this Easement. The following uses
and practices, though not an exhaustive recital of consistent uses, are consistent with the
purpose and intent of this Easement and are not precluded by it:
6.1 To take reasonable measures necessary and appropriate for fire safety and erosion
control as approved by the County of Santa Clara Fire Marshal.
6.2 To remove exotic non native invasive vegetation and restore the area with native
vegetation.
6.3 To implement the Final Management Plan including the construction and
maintenance of public use trails and reasonable public amenities related to trail
use and, in the vicinity of the staging area, picnicking and related low- intensity
uses such as, by way of example only, restrooms, a tot lot, and dog park. It is
understood and agreed by the parties that site constraints may require alterations
to topography and vegetation on or near trails.
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7. Disputes and Remedies. If Grantees determine that Grantor, or Grantor's successors in
interest, or any occupant of the Property is conducting or allowing a use, activity, or
condition on the Property which is prohibited by the terms of this Easement, or that a
violation is threatened, Grantees shall give written notice to Grantor as described in this
section.
7.1 Consultations Regarding Interpretation and Enforcement of Easement. When
any disagreement, conflict, need for 'interpretation, or need for enforcement arises
between the parties to this Easement, each party shall first consult with the other
party in good faith about the issue and attempt to resolve the issue without
resorting to legal action.
7.2 Notice of Violation; Corrective Action. If either Grantee, or Grantees together,
determines that a violation of the terms of this Easement has occurred or is
threatened, Grantee(s) shall give written notice to Grantor of such violation and
request corrective action sufficient to cure the violation and, where the violation
involves injury to the Property resulting from any use or activity inconsistent with
the purpose of this Easement, to request restoration of the portion of the Property
so injured to its prior condition. Such written notice is not required in the event of
any actual or imminent physical harm to the property.
If Grantees disagree whether an alleged action of the Grantor is a violation of the
terms of the Easement, Grantees shall issue a Notice of Entry into Mediation
"Meet and Confer Notice to Grantor. The Meet and Confer Notice shall be
issued not more than ten (10) days after the dispute becomes apparent, and
Grantees shall enter into mediation not more than thirty (30) days after issuing the
Meet and Confer Notice. Upon receipt of the Meet and Confer Notice, Grantor
shall take reasonable measures to suspend the activity that is the subject of the
notice until an agreement is reached between Grantees. Any agreement shall be
in writing and signed by all the parties to this Easement.
7.3 Injunctive Relief. If Grantor fails to cure the violation within thirty (30) days
after receipt of notice thereof from Grantees, or under circumstances where the
violation cannot reasonably be cured within a thirty (30) day period, fail to begin
curing such violation within the thirty (30) day period, or fail to continue
diligently to cure such violation until finally cured, Grantees may bring an action
at law or in equity in a court of competent jurisdiction which seeks to enforce the
terms of this Easement, to enjoin the violation, by temporary or permanent
injunction, and seeks to require the restoration of the Property to the condition
that existed prior to any such injury.
7.4 Forbearance. Enforcement of the terms of this Easement shall be at the discretion
of the Grantees, and any forbearance by Grantees to exercise their rights under
this Easement in the event of any breach of any term of this Easement by Grantor
shall not be deemed or construed to be a waiver by Grantees of such term or of
any subsequent breach of the same or any other term of this Easement or of any of
Grantees' rights under this Easement. No delay or omission by Grantees in the
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exercise of any right or remedy upon any breach by Grantor shall impair such
right or remedy or be construed as a waiver.
7.5 Acts Beyond the Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantees to bring any action against Grantor for any injury to
or change in the Property resulting from causes not involving any affirmative acts
or omissions by Grantor, or causes beyond Grantor's control, including without
limitation, trespassers, fire, flood, storm, and earth movement, or from any
prudent action taken by Grantor under emergency conditions to prevent, abate, of
mitigate significant injury to the Property resulting from such causes.
7.6 Attorneys' Fees. Except as otherwise provided by law, if any litigation is
commenced between any parties to this easement concerning any provision hereof
or the rights and duties of any person in relation thereto, each party shall bear its
own attorneys' fees and costs.
8. Access. No right of access by the general public or to any third parties to any portion of
the Property is conveyed or granted by this Easement.
9. Costs and Responsibilities. Grantor shall have the sole responsibility for the ownership,
liability, operation, upkeep, and maintenance of the Property. Grantor shall be
responsible for, indemnify, and save harmless Grantees, their officers, agents, and
employees from any and all liabilities, claims, demands, damages, or costs resulting
from, growing out of, or in any way connected with or incident to this Easement, except
for active negligence of Grantees, their officers, agents, or employees. The duty of
Grantor to indemnify and save harmless includes the duty to defend as set forth in Civil
Code Section 2778. Grantor waives any and all rights to any type of express or implied
indemnity or right of contribution from Grantees, their officers, agents or employees,
from any liability resulting from, growing out of, or in any way connected with or
incident to this Easement.
10. Subsequent Conveyance of the Property. Grantor shall incorporate by reference hereto
the terms of this Easement in any deed or other legal instrument by which Grantor divests
itself of any interest in all or a portion of the Property, including, without limitation, a
leasehold interest. Concurrent with the full execution of this Easement, Grantor shall
grant Grantees a right of first refusal to purchase the Property or portion thereof and,
pursuant to such grant, shall give written notice to Grantees of the transfer of any interest
in the Property at least 30 days prior to the date of such proposed transfer. If Grantees do
not elect to exercise the right of first refusal, any proposed transfer of any interest in the
Property must be approved by Grantees and may be subject to reimbursement to County
and/or District for any contributions made toward Property improvements. Such
reimbursements shall be made in a manner to be agreed upon between Grantor and
Grantees prior to such proposed transfer. Grantor shall provide a complete copy of this
Easement to its transferee prior to any such transfer. The failure of Grantor to perform
any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
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11. Notices. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: City Clerk
13777 Fruitvale Ave.
Saratoga, CA 95070
408.868.1269 (Telephone)
408.867.8559(Fax)
To Grantees:
County County of Santa Clara
Parks Recreation Department
298 Garden Hill Drive
Los Gatos, CA 95032 -7669
(408) 355 -2200 (Telephone)
(408) 355 -2290 (Fax)
MROSD Midpeninsula Regional Open Space District
Administrative Office
330 Distel Circle
Los Altos, CA 94022 -1404
(650) 691 -1200 (Telephone)
(650) 691 -0485 (Fax)
or to such other address as either party from time to time shall designate by written notice to the
other.
12. Recordation. This instrument shall be recorded by Grantees in the Official Records of
the County of Santa Clara, California. Grantees may re- record this Easement whenever
re- recording is required to preserve Grantees' rights in this Easement.
13. General Provisions.
13.1 Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of California.
13.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of Grantees to
affect the purpose of this Easement. If any provision in this instrument is found to
be ambiguous, an interpretation consistent with the purpose of this Easement that
would render the provision valid shall be favored over any interpretation that
would render it invalid. This instrument shall be construed in accordance with its
fair meaning, and it shall not be construed against either party on the basis that
such party prepared this instrument.
8
13.3 Severability. If any provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of
this Easement, or the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, as the case may be, shall not
be affected thereby, so long as the purposes of this Easement can still be carried
out.
13.4 No Third -Party Rights. This instrument is made and entered into for the sole
benefit and protection of Grantor and Grantees and their respective heirs,
grantees, successors, and assigns. No person or entity other than the parties
hereto and their respective heirs, grantees, successors, and assigns shall have any
right of action under this Easement or any right to enforce the terms and
provisions hereof.
13.5 No Forfeiture. Nothing contained herein is intended to result in a forfeiture or
reversion of Grantor's fee title in any respect. Grantor specifically reserves the
right to convey fee title to the Property subject to this Easement.
13.6 Successors. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, grantees, successors, and assigns, and shall continue as a
servitude running in perpetuity with the Property.
13.7 Cooperation. In light of (a) the regional benefits provided by the Property and the
connections between the Saratoga to the Sea trail and other trails that may be
developed by Grantees and (b) this Easement's protection of the natural values of
the Property, the parties shall cooperate as reasonably necessary to facilitate use
of the Property to satisfy mitigation and similar resource protection requirements
that may be imposed in connection with obtaining regulatory approvals of trails
with connections to the Property.
13.8 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no
effect upon construction or interpretation.
13.9 Consent not to be Unreasonably Withheld. In the event Grantor, as required by
the terms hereof, seeks consent of Grantees, Grantees agree in all such
9
circumstances not to unreasonably withhold consent, regardless whether the
paragraph hereunder requiring grantees' consent so provides.
Grantor
City of Saratoga
By:
Howard A. Miller
Mayor
Date:
Attest:
Ann Sullivan, City Clerk
Date:
Approved as to Form Legality:
Richard Taylor, City Attorney
Date:
Exhibit List:
Exhibit A Property Description
State of California
County of
On 2011 before me, notary public,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged
to me that he /she/they executed the same in his/her /their authorized capacity (ies), and that by
his/her /their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my official seal.
SIGNATURE OF NOTARY
10
Grant Deed of Conservation Easement Exhibit A
Property Description consisting of Exhibits A -1, B -1, A -2, and B-2, attached
EXHIBIT "Al"
LEGAL DESCRIPTION
AUGUST 5, 2011
All that certain real property in the unincorporated area of the County of Santa Clara,
State of California, being a portion of Section 11, Township 8 South, Range 2 West,
Mount Diablo Base Meridian, described as follows:
All that certain real property shown as Parcel "A" on that certain Record of Survey filed
for record in Book 394 of Maps, Pages 29 and 30, Santa Clara County Records, Santa
Clara County, California.
Excepting therefrom a portion more particularly described as follows:
Commencing at the northwest corner of said Parcel "A thence along the northerly line
of said parcel the following four courses: 1) North 84 °56' 57" East 199.98 feet; 2) North
75 °01'57" East 113.78 feet; 3) South 00 °06'37" West 54.01 feet; 4) North 75 °12' 38"
East 45.00 feet to the TRUE POINT OF BEGINNING; thence leaving said northerly
line South 25° 00'00" East 375.00 feet; thence North 90 °00'00" East 150,00 feet; thence
North 25 °00'00" East 80.00 feet; thence North 00 °00'00" East 157.97 feet; thence North
24 °24' 18 West 85.68 feet to said northerly line of said Parcel "A" and also to the
southerly right of way line of Congress Springs Road as said road is shown on said
Record of Survey; thence along said northerly line and also along said southerly right of
way line South 85 °31'57" West 33.77 feet to the beginning of a curve concave
northeasterly having a radius of 220.65 feet; thence northerly and westerly along said
curve through a central angle of 14 °44'20" for an arc length of 56.76 feet to the
beginning of a compound curve concave northeasterly having a radius of 355.00 feet;
thence northerly and westerly along last said curve through a central angle of 14 °32'21"
for an arc length of 90.08 feet; thence North 65 °11'22" West 77.84 feet; thence leaving
said southerly right of way line South 24 °57'46" West 15,94 feet; thence South
75 °12'38" West 55.48 feet to the TRUE POINT OF BEGINNING, con wining 1.89
acres more or less.
SEE EXHIBIT "Bl" ATTACHED HERETO AND MADE A PART HEREOF.
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act.
Karl Barker, P.L.S. #8342 Date
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EXHIBIT "A2"
LEGAL DESCRIPTION
AUGUST 5, 2011
All that certain real property in the unincorporated area of the County of Santa Clara,
State of California, being a portion of Section 11, Township 8 South:, Range 2 West,
Mount Diablo Base Meridian, described as follows:
All of that certain real property shown as Parcel "A" on that certain Record of Survey
filed for record in Book 411 of Maps, Page 51, Santa Clara County Records, Santa Clara
County, California.
SEE EXHIBIT "B2" ATTACHED HERETO AND MADE A PART
HEREOF.
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act.
IDL
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CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by the foregoing GRANT DEED OF
CONSERVATION EASEMENT, dated from the City of Saratoga to the County
of Santa Clara is accepted by the undersigned officer on behalf of the Board of Supervisors of the County
of Santa Clara as authorized by the resolution adopted and the Grantee consents to the
recording of the Grant Deed by the County's duly authorized officer.
I have executed this certificate of acceptance on
By
Director, Parks and Recreation Department
APPROVED AS TO FORM AND LEGALITY:
Katherine Harasz,
Deputy County Counsel
State of California
County of Santa Clara ss.
On 2011, before me, a Notary Public in and for
said State, personally appeared who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to this instrument, and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the person or the entity upon behalf of which the person acted
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
Notary Public
CERTIFICATE OF ACCEPTANCE
(GOVERNMENT CODE SEC. 27281)
This is to certify that the interest in real property conveyed by the foregoing GRANT DEED OF
CONSERVATION EASEMENT dated from the CITY OF
SARATOGA, a California Municipal Corporation to the MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a public district, is hereby accepted by the undersigned on behalf of the District
pursuant to authority conferred by resolution of the Board of Directors of the Midpeninsula Regional
Open Space District bearing No. adopted on and said
District consents to recordation thereof.
Dated 2011
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
By
President, Board of Directors
ATTEST:
Michelle Radcliffe, District Clerk
PURCHASE AGREEMENT
This Purchase Agreement "Agreement is made and entered into by and between
County of Santa Clara, a political subdivision of the State of California, "County") and the City
of Saratoga, a California municipal corporation, "City").
RECITALS
WHEREAS, County is the owner of certain surplus real property which has open space,
park and recreational value, located within an unincorporated area of the County of Santa Clara,
and being more particularly described within the body of this Agreement; and
WHEREAS, City desires to purchase said property for open space preservation, trails,
public access, and to protect the ecological, recreational, and aesthetic resources of the greater
Saratoga area; and
WHEREAS, City's purchase is funded in part by the County of Santa Clara Parks and
Recreation Department and the Midpeninsula Regional Open Space District and in consideration
of this funding City intends to convey to said funders a conservation easement all as more
particularly described in that certain Funding and Acquisition Agreement included for
informational purposes only as Exhibit C to this agreement.
WHEREAS, County wishes to sell and convey the property to City, and City wishes to
purchase said property upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants herein contained, the parties hereto agree as follows:
1. PURCHASE AND SALE
1.1 Property Included in the Sale
a. County agrees to sell to City and City agrees to purchase from County,
subject to the terms and conditions hereinafter set forth, County's real property located within an
unincorporated area of the County of Santa Clara, State of California, containing approximately
sixty -four (64) acres. Said property is more particularly described in the legal description
attached to Preliminary Report Number from Chicago Title Company attached
hereto as Exhibit "A and incorporated herein by this reference.
b. Said property is to be conveyed together with any easements, rights of
way, or rights of use which may be appurtenant or attributable to the aforesaid lands, and any and
all improvements attached or affixed thereto.
c. All of said real property and the items referenced in sections (a) and (b)
above shall hereinafter be called the "Property".
2. PURCHASE PRICE
The total purchase price "Purchase Price for the Property shall be One Million Dollars
($1,000,000.00). On or before the closing, City shall deposit with the Escrow Holder the
Purchase Price, which funds after adjustment as provided in section 4.6 shall be paid to County at
closing.
3. TITLE TO PROPERTY
At closing, County shall convey to City fee simple title to the Property by duly executed
and acknowledged Grant Deed in the form attached as Exhibit B.
4. ESCROW
4.1 Opening of Escrow
Promptly upon execution of this Agreement, an escrow shall be opened at
Chicago Title Company, San Jose CA, or other title company acceptable to City and County
(hereinafter "Escrow Holder through which the purchase and sale of the Property shall be
consummated. A fully executed copy of this Agreement shall be deposited with Escrow Holder
to serve as escrow instructions to Escrow Holder; provided that the parties shall amend the
agreement and/or execute such additional supplementary or customary escrow instructions as
Escrow Holder may reasonably require. The printed portion of any amendments or supplemental
agreements or instructions shall not supersede any inconsistent provisions contained herein.
Escrow Holder is hereby appointed and instructed to deliver, pursuant to the terms of this
Agreement, the documents and monies to be deposited into the escrow as herein provided.
4.2 Closing Date
The time provided for in the escrow for the close thereof shall be on or before October
31, 2011, provided however, that the parties may, by written agreement, extend the time for
Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow Holder
causes the Grant Deed (as defined above) to be recorded in the Office of the County Recorder of
Santa Clara County.
4.3 County's Delivery of Documents
At or before the Closing, County shall deliver to City through Escrow an executed
and recordable Grant Deed, conveying the Property as described in Exhibit "A
2
4.4 City's Delivery of Documents
At or before the Closing, City shall deliver to County through Escrow, the
following:
a. The required Certificate of Acceptance for the Grant Deed, duly executed
by City and to be dated as of the Closing; and
b. The Purchase Price.
4.5 Other Documents
County and City shall, during the escrow period, execute any and all documents
and perform any and all acts reasonably necessary or appropriate to consummate the purchase
and sale pursuant to the terms of this Agreement
4.6 Expenses
County shall pay the escrow fees, the CLTA Standard Policy of Title Insurance, if
required by City, and all recording costs and fees. All other costs or expenses not otherwise
provided for in this Agreement shall be apportioned or allocated between City and County in the
manner customary in Santa Clara County. There are no property taxes on the Property.
4.7 Title Insurance
City shall cause Chicago Title Company, or other title company acceptable to City
and County, to be prepared and committed to deliver to City, a CLTA Standard Policy of Title
Insurance, dated as of the Closing, insuring City in the amount of One Million Dollars
($1,000,000.00) for the Property showing title to the Property vested in fee simple in City,
subject only to the Conservation Easement identified in the Funding and Acquisition Agreement
shown as Exhibit C, and such title exceptions as may be approved in writing by City prior to the
Closing as determined by City in its sole and absolute discretion.
4.8 Closing Instructions
Escrow Holder shall, when all required funds and instruments have been
deposited into the escrow by the appropriate parties and when all other conditions to Closing
have been fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded
in the Office of the County Recorder of Santa Clara County. Upon the Closing, Escrow Holder
shall cause to be delivered to City the original of the policy of title insurance required herein, and
to County Escrow Holder's check for the full purchase price of the Property (less County's
portion of the expenses described in Section 4.6.), and to City or County, as the case may be, all
other documents or instruments which are to be delivered to them. In the event the escrow
terminates as provided herein, Escrow Holder shall return all monies, documents or other things
of value deposited in the escrow to the party depositing the same.
3
5. RIGHTS AND LIABILITIES OF THE PARTIES IN THE EVENT OF
TERMINATION
In the event this Agreement is terminated and escrow is canceled for any reason, all
parties shall be excused from any further obligations hereunder, except as otherwise provided
herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally
liable to Escrow Holder for payment of its title and escrow cancellation charges (subject to rights
of subrogation against any party whose fault may have caused such termination of escrow), and
each party expressly reserves any other rights and remedies which it may have against any other
party by reason of a wrongful termination or failure to close escrow.
6. COUNTY'S REPRESENTATIONS AND WARRANTIES
For the purpose of consummating the sale and purchase of the Property in accordance
herewith, County makes the following representations and warranties to City, which shall survive
close of escrow, each of which is material and is being relied upon by City.
6.1 Authority
County has the full right, power and authority to enter into this Agreement and to
perform the transactions contemplated hereunder.
6.2 Valid and Binding Agreements
This Agreement and all other documents delivered by County to City now or at
the Closing have been or will be duly authorized and executed and delivered by County and are
legal, valid and binding obligations of County sufficient to convey to City the Property, and are
enforceable in accordance with their respective terms and do not violate any provisions of any
agreement to which County is a party or by which County may be bound or any articles, bylaws
or corporate resolutions of County.
6.3 Leases or Occupancy of Premises
County warrants that there are no oral or written leases, licenses, or rental
agreements affecting all or any portion of the Property. County understands and agrees that the
provisions of this Section shall survive the close of escrow and recordation of any Grant Deed(s).
6.4 Good Title
County has and at the Closing date shall have good, marketable and indefeasible
fee simple title to the Property and the interests therein to be conveyed to City hereunder, free
and clear of all liens and encumbrances of any type whatsoever; recorded or unrecorded option
rights or purchase rights or any other right; and, title, interest or easement held by any third party
except for the exceptions permitted under the express terms hereof.
6.5 Integrity of Property
4
Except as otherwise provided herein or by express written permission granted by
City, County shall not, between the time of County's execution hereof and the close of escrow,
cause or allow any physical changes on the Property without City's consent. Such changes shall
include but not be limited to grading, excavating or other earthmoving activities, cutting or
removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements
or structures on the Property.
7. RELEASE
From and after Closing, City hereby waives, releases, acquits and forever discharges County, its
officers, agents and employees of and from any and all suits, causes of action, legal or
administrative proceedings, claims, demands, damages, losses, costs, liabilities, interest, attorney
fees and expenses of whatever kind and nature, in law or in equity, known or unknown, which
City ever had, now has, hereafter can, shall or may have or acquire or possess, or arising out of or
in any way connection with, (a) County's use, maintenance, ownership and operation of the
Property prior to Closing, or (b) the conditions, status, quality, nature, contamination or
environmental state of the Property.
It is the intention of this Section that any and all responsibilities and obligations of County, and
any and all rights of claims of City, its successors and assigns and affiliated entities, arising by
virtue of the physical or environmental condition of the Property are by this release provision
declared null and void of no present or future effect as to such parties.
Grantee agrees to waive the benefits of Section 1542 of the California Civil Code which provides
as follows:
CITY EXPRESSLY WAIVES ITS RIGHTS GRANTED UNDER CALIFORNIA CIVIL
CODE 1542 AND ANY OTHER PROVISION OF LAW THAT PROVIDES A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS THAT CITY DOES NOT KNOW OR
SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS AGREEMENT
TO RELEASE COUNTY.
8. INDEMNITY
City hereby agrees to indemnify, defend and hold County and County's
officers, employees and agents harmless from any claims (including without limitation third party
claims for personal injury or real or personal property damage), actions, administrative
proceedings (including informal proceedings), judgments, damages, punitive damages, penalties,
fines, costs, liabilities (including sums paid in settlement of claims), interest of losses, including
attorneys' fees (including any fees and expenses incurred in enforcing this indemnity), consultant
fees and expert fees that arise directly or indirectly from or in connection with the condition of
the property, including, but not limited to, the presence, suspected presence, release or suspected
release of any hazardous substance of any kind.
5
9. MISCELLANEOUS PROVISIONS
9.1 Access for Investigations
From the date County delivers an executed copy of this Purchase Agreement to
City and until the Closing, City and City's agents, funders, contractors, engineers, consultants,
employees, subcontractors and other representatives (the "City Parties may, upon the giving of
reasonable advance written notice to County, enter upon the Property for the purpose of
inspecting, testing and evaluating the same; provided, however, that City may not perform any
work on the Property without County's prior written consent, which shall not be unreasonably
withheld or delayed and further provided that City shall give County at least 24 hours' prior
notice of each proposed entry by City. City shall indemnify, protect, defend and hold County
free and harmless from and against any and all claims, actions, causes of action, suits,
proceedings, costs, expenses (including, without limitation, reasonable attorneys' fees and costs),
liabilities, damages, and liens caused by the activities of City Parties while upon the Property
prior to the Closing. City's inspections shall be at City's sole expense. City shall repair any
damage to the Property that may be caused by the City Parties while on the Property performing
its inspections.
9.2 Choice of Law
The internal laws of the State of California, regardless of any choice of law
principles, shall govern the validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties.
9.3 Attorneys' Fees
Except as otherwise provided by law, if any arbitration or litigation is commenced
between parties to this Agreement concerning any provision hereof or the rights and duties of any
person in relation thereto, each party shall bear its own attorneys' fees and costs.
9.4 Amendment and Waiver
The parties hereto may by mutual written agreement amend this Agreement in any
respect. Any party hereto may in writing: (i) extend the time for the performance of any of the
obligations of the other party; (ii) waive any inaccuracies in representations and warranties made
by the other party contained in this Agreement or in any documents delivered pursuant hereto;
(iii) waive compliance by the other party with any of the covenants contained in this Agreement
or the performance of any obligations of the other party; or (iv) waive the fulfillment of any
condition that is precedent to the performance by such party of any of its obligations under this
Agreement. The City Manager and the Director of Roads and Airports are each authorized to
agree to an extension of the time for the performance of any obligations on the part of City or
County (respectively) pursuant to this Agreement, and to take any actions and execute any
documents necessary or appropriate to closing escrow and completing this conveyance; provided,
however that the City shall not take title to any third party property other than the Property. Any
6
agreement on the part of any party for any such amendment, extension or waiver must be in
writing.
9.5 Rights Cumulative
Each and all of the various rights, powers and remedies of the parties shall be
considered to be cumulative with and in addition to any other rights, powers and remedies which
the parties may have at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall neither
constitute the exclusive election thereof nor the waiver of any other right, power or remedy
available to such party.
9.6 Notices
Whenever any party hereto desires or is required to give any notice, demand, or
request with respect to this Agreement (or any Exhibit hereto), each such communication shall be
in writing and shall be deemed to have been validly served, given or delivered at the time stated
below if deposited in the United States mail, registered or certified and return receipt requested,
with proper postage prepaid, or if delivered by Federal Express or other private messenger,
courier or other delivery service or sent by facsimile transmission addressed as indicated as
follows:
County: County of Santa Clara
Roads and Airports Department
101 Skyport Drive
San Jose, CA 95110 -1302
Attention: Michael Murdter
Fax: (408) 573 -8905
City: City of Saratoga
City Manager's Office
13777 Fruitvale Ave.
Saratoga, CA 95070
Attention: City Clerk
Fax: (408) 867 -8559
If sent by facsimile, a confirmed copy of such facsimile notice shall promptly be sent by mail (in
the manner provided above) to the addressee. Service of any such communication made only by
mail shall be deemed complete on the date of actual delivery as indicated by the addressee's
registry or certification receipt or at the expiration of the third (3rd) business day after the date of
mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in
writing served upon the other party as aforesaid, designate a different mailing address or a
different person to which such notices or demands are thereafter to be addressed or delivered.
Nothing contained in this Agreement shall excuse either party from giving oral notice to the other
7
when prompt notification is appropriate, but any oral notice given shall not satisfy the
requirement of written notice as provided in this Section.
9.7 Severability
If any of the provisions of this Agreement are held to be void or unenforceable by
or as a result of a determination of any court of competent jurisdiction, the decision of which is
binding upon the parties, the parties agree that such determination shall not result in the nullity or
unenforceability of the remaining portions of this Agreement unless the rights and obligations of
the parties have been materially altered or abridged thereby. The parties further agree to replace
such void or unenforceable provisions with terms which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provisions.
9.8 Counterparts
This Agreement may be executed in separate counterparts, each of which shall be
deemed as an original, and when executed, separately or together, shall constitute a single
original instrument, effective in the same manner as if the parties had executed one and the same
instrument.
9.9 Waiver
No waiver of any term, provision or condition of this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a
further or continuing waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement.
9.10 Entire Agreement
This Agreement is intended by the parties to be the final expression of their
agreement; it embodies the entire agreement and understanding between the parties hereto; it
constitutes a complete and exclusive statement of the terms and conditions thereof, and it
supersedes any and all prior correspondence, conversations, negotiations, agreements or
understandings relating to the same subject matter.
9.11 Time of Essence
Time is of the essence of each provision of this Agreement in which time is an
element.
9.12 Survival of Covenants
All covenants of City or County which are expressly intended hereunder to be
performed in whole or in part after the Closing, and all representations and warranties by either
party to the other, shall survive the Closing and be binding upon and inure to the benefit of the
respective parties hereto and their respective heirs, successors and permitted assigns.
8
9.13 Assignment
Except as expressly permitted herein, neither party to this Agreement shall assign
its rights or obligations under this Agreement to any third party without the prior written
approval of the other party.
9.14 Further Documents and Acts
Each of the parties hereto agrees to execute and deliver such further documents
and perform such other acts as may be reasonably necessary or appropriate to consummate and
carry into effect the transactions described and contemplated under this Agreement.
9.15 Binding on Successors and Assigns
This Agreement and all of its terms, conditions and covenants are intended to be
fully effective and binding, to the extent permitted by law, on the successors and permitted
assigns of the parties hereto.
9.16 Broker's Commission
Each Party represents and warrants to the other Party that is has retained no broker
or other party to whom a commission or finder's fee is due with respect to this transaction. Each
party shall defend, indemnify and hold the other party harmless from and against all claims,
expenses, or costs arising in connection with a breach of this warranty and representation.
9.17 Captions
Captions are provided herein for convenience only and they form no part of this
Agreement and are not to serve as a basis for interpretation or construction of this Agreement,
nor as evidence of the intention of the parties hereto.
9.18 Pronoun References
In this Agreement, if it be appropriate, the use of the singular shall include the
plural, and the plural shall include the singular, and the use of any gender shall include all other
genders as appropriate.
9.19 Dispute Resolution
If a dispute arises out of or relates to this Agreement or the performance or breach
thereof either Party shall call a special meeting of the Parties by written request specifying the
nature of the matter to be addressed and providing relevant documents related to such dispute.
The meeting shall be held at the offices of the County or City, and shall be attended by
representatives of County and City who should have authority to resolve the dispute. The
representatives shall confer in a good faith attempt to resolve the dispute until they either succeed
or one or both Parties concludes that the dispute will not be resolved through additional
meetings.
9
9.20 Acceptance
Provided that this Agreement is executed by County and delivered to City on or
before October 1, 2011, City shall have until midnight October 31, 2011 to accept and execute
this Agreement, and during said period this instrument shall constitute an option and irrevocable
offer by County to sell and convey the Property to City for the consideration and under the terms
and conditions herein set forth. Said offer shall remain irrevocable during this period without the
necessity of execution and acceptance of this Purchase Agreement by City. As consideration for
said irrevocable option, City has paid into escrow and County acknowledges deposit into escrow
of the sum of One Dollar and No /100 ($1.00). If escrow fails to close due to any act or material
breach of this Agreement by City, County may retain the Option Consideration.
Provided that this Agreement is accepted by City, this transaction shall close as
soon as practicable in accordance with the terms and conditions set forth herein.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers to be effective as of the date of final execution by City in
accordance with the terms hereof.
City of Saratoga County of Santa Clara
By: By:
Howard A. Miller Dave Cortese, President
Mayor Board of Supervisors
Date: Date;
Attest: Attest:
Ann Sullivan, City Clerk Maria Marinos
Clerk, Board of Supervisors
Date: Date:
Approved as to Form Legality: Approved as to Form Legality:
Richard Taylor, City Attorney Elizabeth G. Pianca, Deputy County
Counsel
Date: Date:
Exhibit List
A Title Report (including Property description)
B Grant Deed
C Funding Agreement
Page 11 of 18
RECORDING WITHOUT FEE
UNDER SECTION 6103
CALIFORNIA GOVERNMENT CODE
When Recorded Return to:
City Clerk
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070
(Space above this line reserved for Recorder's use only)
GRANT DEED,
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE
COUNTY OF SANTA CLARA, a political subdivision of the State of California, hereby grants
to the CITY OF SARATOGA, a California municipal corporation, the real property located in
the County of Santa Clara, State of California, described on Exhibit A attached hereto and made
a part hereof (the "Property").
TOGETHER WITH any and all rights, privileges and easements incidental or appurtenant
to the Property, including, without limitation, any and all minerals, oil, gas and other
hydrocarbon substances on and under the Property, as well as any and all development rights, air
rights, water, water rights, riparian rights and water stock relating to the Property, and any and all
easements, rights -of -way or other appurtenances used in connection with the beneficial use and
enjoyment of the Property and all of Grantor's right, title and interest in and to any and all roads
and alleys adjoining or servicing the Property.
Executed as of this day of October, County of Santa Clara,
2011.
By:
Its:
Grant Deed Exhibit A
Property Description consisting of Exhibits A -1, B -1, A -2, and B -2, attached
EXHIBIT "Al"
LEGAL DESCRIPTION i
.i' All that certain real property in the unincorporated area of the County of Santa Clara,
State of California, being a port of Section 11, Township 8 South, Range 2 West, r
Mount Diablo Base Meridian, described as follows:
All that certain real property shown as Parcel "A" on that certain Record of Survey filed
for record in Book 394 of Maps, Pages 29 and 30, Santa Clara County Records, Santa o
Clara County, California. t
Excepting therefrom a portion more particularly described as follows:
Commencing at the northwest corner of said Parcel "A thence along the northerly line i
of said parcel the following four courses: 1) North 84 °56' 57" East 199.98 feet; 2) North
75 °01'57" East 113.78 feet; 3) South 00 °06'37" West 54.01 feet; 4) North 75 °12' 38"
East 45.00 feet to the TRUE POINT OF BEGINNING; thence leaving said northerly
line South 25° 00'00" East 375.00 feet; thence North 90 °00'00" East 150.00 feet; thence
North 25 °00'00" East 80.00 feet; thence North 00 °00'00" East 157.97 feet; thence North
24 °23'42" West 85.67 feet to said northerly line of said Parcel "A" and also along the
westerly right of way line of Congress Springs Road as said road is shown on said Record r
of Survey; thence along said northerly line and also along said westerly right of way line =t3
South 85 °31'57" West 33.77 feet to the beginning of a curve concave northeasterly
having a radius of 220.65 feet; thence northerly and westerly along said curve through a
central angle of 14 °44'20" for an arc length of 56.76 feet to the beginning of a compound
curve concave northeasterly having a radius of 355.00 feet; thence northerly and westerly
:1
along last said curve through a central angle of 14 °32'21" for an arc length of 90.08 feet;
thence North 65 °11'22" West 77.84 feet; thence leaving said westerly right of way line
South 24 °57'46" West 15.94 feet; thence South 75 °12'38" West 55.48 feet to the TRUE
POINT OF BEGINNING, containing 1.89 acres more or less.
`r: See Exhibit "Bi" attached hereto and made a part hereof.
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act. b
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Karl Barker P.L.S. #8342 Date
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EXHIBIT "Al"
LEGAL DESCRIPTION
AUGUST 5, 2011
All that certain real property in the unincorporated area of the County of Santa Clara,
State of California, being a portion of Section 11, Township 8 South, Range 2 West,
Mount Diablo Base Meridian, described as follows:
All that certain real property shown as Parcel "A" on that certain Record of Survey filed
for record in Book 394 of Maps, Pages 29 and 30, Santa Clara County Records, Santa
Clara County, California.
Excepting therefrom a portion more particularly described as follows:
Commencing at the northwest corner of said Parcel "A thence along the northerly line
of said parcel the following four courses: 1) North 84 °56' 57" East 199.98 feet; 2) North
75 °01'57" East 113.78 feet; 3) South 00 °06'37" West 54.01 feet; 4) North 75 °12' 38"
East 45.00 feet to the TRUE POINT OF BEGINNING; thence leaving said northerly
line South 25° 00'00" East 375.00 feet; thence North 90 °00'00" East 150.00 feet; thence
North 25 °00'00" East 80.00 feet; thence North 00 °00'00" East 157.97 feet; thence North
24 °24' 18" West 85.68 feet to said northerly line of said Parcel "A" and also to the
southerly right of way line of Congress Springs Road as said road is shown on said
Record of Survey; thence along said northerly line and also along said southerly right of
way line South 85 °31'57" West 33.77 feet to the beginning of a curve concave
northeasterly having a radius of 220.65 feet; thence northerly and westerly along said
curve through a central angle of 14 °44'20" for an arc length of 56.76 feet to the
beginning of a compound curve concave northeasterly having a radius of 355.00 feet;
thence northerly and westerly along last said curve through a central angle of 14 °32'21"
for an are length of 90.08 feet; thence North 65 °11'22" West 77.84 feet; thence leaving
said southerly right of way line South 24 °57'46" West 15.94 feet; thence South
75 °12'38" West 55.48 feet to the TRUE POINT OF BEGINNING, containing 1,89
acres more or less.
SEE EXHIBIT "B1" ATTACHED HERETO AND MADE A PART HEREOF.
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act.
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CURVE TABLE LEGAL DESCRIPTION
CURVE LENGTH 'RADIUS DELTA TANGENT OVER A PORTION OF
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C2 78,92 185.00 E4•26•31' 40.07
C3 121.04 355.00 19•32'06'_ 6111 AUGUST, 2010
EXHIBIT "A2"
LEGAL DESCRIPTION
AUGUST 5, 2011
All that certain real property in the unincorporated area of the County of Santa Clara,
State of California, being a portion of Section 11, Township 8 South, Range 2 West,
Mount Diablo Base Meridian, described as follows:
All of that certain real property shown as Parcel "A" on that certain Record of Survey
filed for record in Book 411 of Maps, Page 51, Santa Clara County Records, Santa Clara
County, California.
SEE EXHIBIT `B2" ATTACHED HERETO AND MADE A PART
HEREOF.
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act.
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CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by this deed dated
from the County of Santa Clara to the City of Saratoga is hereby accepted pursuant to City of
Saratoga Resolution No. 11 and the grantee consents to recordation thereof by its duly
authorized officer.
Dated: By:
Dave Anderson
City Manager
RECORDING WITHOUT FEE
UNDER SECTION 6103
CALIFORNIA GOVERNMENT CODE
When Recorded Return to:
County of Santa Clara
Parks and Recreation Dept.
Attn: Real Estate Div.
298 Garden Hill Drive
Los Gatos, CA 95032
And to:
Midpeninsula Regional
Open Space District
330 Distel Circle
Los Altos, CA 94022
GRANT DEED OF CONSERVATION EASEMENT
WHEREAS, City of Saratoga, hereinafter called "Grantor is the owner of certain real property
located within the County of Santa Clara, State of California, and consisting of approximately
sixty -four (64) acres in two parcels. The legal description of the real property is attached hereto
as Exhibit A and incorporated by this reference (hereafter "Property
WHEREAS, THE COUNTY OF SANTA CLARA, hereinafter called "County is a political
subdivision of the State of California, with a Parks and Recreation Department with a mission to
"provide, protect and preserve regional parklands for the enjoyment, education and inspiration of
this and future generations and
WHEREAS, MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District,
hereinafter called "District" (with County, collectively "Grantees was formed by voter
initiative to solicit, receive, and hold conveyances of real property and interests therein by
purchase, exchange, gift, or bargain purchase for public park, recreation, scenic, and open space
purposes; and
WHEREAS, Grantor desires to deed to Grantees and Grantees desire to obtain a conservation
easement over the Property to preserve and protect in perpetuity the natural, scenic and
recreational values of the Property, subject to the restrictions contained herein.
WHEREAS, Grantor and Grantees further desire to support development of the "Saratoga to the
Sea" Trail that would connect Saratoga from the Hakone Gardens to Sanborn County Park and
then to the Skyline -to -the -Sea Trail as contemplated by the Circulation Element and the Open
Space and Conservation Element Implementation Program OSC 5.a of the Saratoga General Plan
by protecting the Property which is a linchpin for the Saratoga to the Sea trail and for providing
regional park connections through the Tollgate area to the Parker Ranch Open Space and the
Fremont Older Open Space Preserve.
WHEREAS, Grantor and Grantees have entered into a Funding Agreement dated
whereby Grantor has contributed funds for Grantees' acquisition of the Property as consideration
for this Easement.
NOW, THEREFORE, in consideration of the above recitals, and the mutual covenants, terms,
conditions, and restrictions contained herein, and pursuant to the laws of California and in
particular, inter alia, Sections 815 through 816 of the California Civil Code, Grantor hereby
grants to Grantees a Conservation Easement in perpetuity over the Property, subject to the
following terms and conditions:
1. Purpose. The purpose of this Easement is to assure that the Property will be retained in
perpetuity in its natural scenic and open space condition, to prevent any use of the
Property that will significantly impair or interfere with its open space values, to promote
public access for hiking and other recreation, and implement restoration and erosion
control measures on the Property. Accordingly, this Easement restricts the use of the
Property to activities involving recreation (hiking, picnicking, nature research and study),
enjoyment of views, open space, natural habitat and environmental protection, restoration
and related uses which are consistent with this Easement.
2. Management Plan. To accomplish the purposes of this Easement, Grantor shall, within
five (5) years of the date of this Agreement, develop a Final Management Plan (FMP) for
the Property. The development and implementation of the FMP will be subject to County
and District review and input and all necessary regulatory approvals. The FMP shall
include, but not be limited to, the following:
2.1 Provisions that promote the protection of public resources;
2.2 Provisions for the implementation of an erosion control program;
2.3 Provisions that promote public access for recreation;
2.4 Provisions for the development of the Saratoga -to- the -Sea Trail described in
section 3.
2.5 A program for obtaining any regulatory approvals necessary to allow
implementation of the FMP.
3. Trail Easement and Development. The FMP shall provide for the development and
maintenance of a "Saratoga to the Sea" trail "Trail through the Property as
contemplated by the City of Saratoga General Plan Open Space and Conservation
Element and Circulation and Scenic Highways Element, subject to all necessary
regulatory approvals.
3.1 The Trail alignment shall be planned in consultation with Grantees and shall be
from Hakone Gardens through Property to a point on the western boundary of the
2
Property that will allow for a reasonable alignment for a trail continuing to
Sanborn County Park.
3.2 The Trail will be developed by the City, no later than five (5) years after the City
obtains the rights for a trail connecting the Property with Hakone Gardens and
shall be operated and maintained by the City thereafter.
4. Rights of Grantees. To accomplish the purposes of this Easement, Grantor conveys to
Grantees the right:
4.1 To preserve and protect the open space values of the Property.
4.2 To enter upon the Property at reasonable times, in order to monitor Grantor's
compliance with the terms of this Easement and to enforce such terms; provided
that such entry shall be upon reasonable prior notice to Grantor or its successors
in interest of the Property.
4.3 To enter upon the Property at any time in order to monitor potential violation of
compliance with the terms of this Easement and to enforce such terms.
4.4 Pursuant to Section 7 hereof "Disputes and Remedies to prevent any activity
on or use of the Property which is inconsistent with the purposes of this Easement
and to require the restoration of such areas or features of the Property that may be
damaged by any inconsistent activity or use.
4.5 To prepare baseline data. In order to establish the condition of the Property,
Grantees may examine the Easement Property and prepare a report (the "Baseline
Documentation Report") containing an inventory of the Easement Property's
relevant features and conditions, its improvements and its natural resources (the
"Baseline Data A copy of the Baseline Documentation Report shall be
provided to Grantor, and another shall be placed and remain on file with Grantees.
The Baseline Documentation Report shall be signed by the Grantor and Grantees
to acknowledge that it accurately represents the condition of the Easement
Property at the time it is prepared. The parties intend that the Baseline Data shall
be used by Grantees to monitor Grantor's future uses of the Easement Property,
condition thereof, and practices thereon. The parties further agree that, in the
event of a controversy arises with respect to the condition of the Easement
Property or a particular resource thereof, the parties shall not be foreclosed from
utilizing any other relevant document, survey, or report to assist in the resolution
of the controversy.
5. Prohibited Uses. Any activity on or use of the Property which is inconsistent with the
purposes of this Easement is prohibited. Without limiting the generality of the foregoing,
the following activities and uses are expressly prohibited:
5.1 Subdivision. The legal or defacto subdivision of the Property for any purposes.
(Lot line adjustments in excess of one hundred square feet are subject to the prior
written approval of Grantees.) Any land transferred by lot line adjustment shall
3
remain subject to the terms of this Easement, and shall not carry with it any rights
to development density. The term subdivision shall include, but not be limited to,
the creation of a life or future estate in a portion of the Property, the conveyance
of a portion of the Property, or any subdivision as defined by the Subdivision Map
Act, California Government Code Section 66000 et seq.
5.2 Transfer Density Rights. Development rights within the Easement area may not
be transferred or otherwise used within or outside of the Easement area.
5.3 Commercial or Industrial Use. Any commercial or industrial development, use
of, or activity on the Property, including commercial agriculture.
5.4 Building. The placement or construction of any buildings, structures or other
improvements of any kind on the Property (including without limitation, fences,
roads, signs and parking lots) except as part of the Final Management PIan or as
otherwise described as a permitted use in section 6.
5.5 Soil Erosion or Degradation. Any use or activity which causes, or is likely to
cause, significant soil degradation or erosion or significant pollution of any
surface or subsurface waters is prohibited, except where Grantor determines it
reasonably necessary for the construction of trails.
5.6 Tree Cutting. The cutting down, or other removal of live trees, except when
required for safety or fire protection and subject to the prior written approval of
Grantees, which approval shall not be unreasonably withheld.
5.7 Dumping. The dumping or other disposal of wastes, refuse, or debris on the
Property.
5.8 New Utilities. The installation of new utility systems or extensions of existing
utility systems, including, without limitation, water, sewer, power, fuel, and
communication lines and related facilities except as part of the Final Management
Plan or otherwise described as a permitted use in section 6, provided, however
that such new utility systems or extensions must be installed underground.
5.9 Mineral Rights. The exploration for, or development and extraction of, minerals
and hydrocarbons by any mining method.
5.10 Grazing. The grazing of livestock except as part of a resource management plan
implemented in accordance with the Final Management Plan.
5.11 Off Road Vehicles. Use of off -road or all- terrain vehicles or motorcycles.
5.12 Hunting or Shooting. Hunting or trapping of wildlife, or the shooting of guns.
5.13 Noise Limits. Activities (such as concerts) which produce noise levels in excess
of 65 decibels as measured on trails surrounding the Property. Agricultural and
4
landscaping equipment such as tractors, chainsaws, and leaf blowers are
specifically excluded from this provision.
5.14 Junk Yards. Storage or disassembly of inoperable automobiles and trucks for
purposes of sale or rental of space for that purpose.
5.15 Excavation. Alteration of land forms by grading or excavation of topsoil, earth,
or rock is prohibited, except where Grantor determines it reasonably necessary for
trails or other public access in accordance with the Final Management Plan.
5.16 Scenic and Natural Character. Activities such as clearing, stripping of native
vegetation, grading, or storage of materials that would clearly degrade the scenic
and natural character of the Property, except where Grantor determines it
reasonably necessary for trails or other public access in accordance with the Final
Management Plan.
5.17 Archeological Resources. The excavation, removal, destruction, or sale of any
archeological artifacts or remains found on the property, except as part of an
archeological investigation approved by Grantor. All excavation plans shall be
reviewed by an archeologist prior to the start of, and during, the excavation.
5.18 No limitation of Grantor's rights to construct and maintain trails and public
amenities. Nothing contained in this section shall be interpreted to limit Grantor's
right to construct and maintain trails and reasonable public amenities as described
herein or in the Final Management Plan.
5.19 Conveyance of Rights to Prohibited Uses. The rights to any use prohibited by this
Easement may not be conveyed in any manner to any person or other legal entity.
6. Permitted Uses. The Grantor may use the property for any purpose not prohibited by
Section 5 and which is consistent with the purpose of this Easement. The following uses
and practices, though not an exhaustive recital of consistent uses, are consistent with the
purpose and intent of this Easement and are not precluded by it:
6.1 To take reasonable measures necessary and appropriate for fire safety and erosion
control as approved by the County of Santa Clara Fire Marshal.
6.2 To remove exotic non native invasive vegetation and restore the area with native
vegetation.
6.3 To implement the Final Management Plan including the construction and
maintenance of public use trails and reasonable public amenities related to trail
use and, in the vicinity of the staging area, picnicking and related low- intensity
uses such as, by way of example only, restrooms, a tot lot, and dog park. It is
understood and agreed by the parties that site constraints may require alterations
to topography and vegetation on or near trails.
5
7. Disputes and Remedies. If Grantees determine that Grantor, or Grantor's successors in
interest, or any occupant of the Property is conducting or allowing a use, activity, or
condition on the Property which is prohibited by the terms of this Easement, or that a
violation is threatened, Grantees shall give written notice to Grantor as described in this
section.
7.1 Consultations Regarding Interpretation and Enforcement of Easement. When
any disagreement, conflict, need for interpretation, or need for enforcement arises
between the parties to this Easement, each party shall first consult with the other
party in good faith about the issue and attempt to resolve the issue without
resorting to legal action.
7.2 Notice of Violation: Corrective Action. If either Grantee, or Grantees together,
determines that a violation of the terms of this Easement has occurred or is
threatened, Grantee(s) shall give written notice to Grantor of such violation and
request corrective action sufficient to cure the violation and, where the violation
involves injury to the Property resulting from any use or activity inconsistent with
the purpose of this Easement, to request restoration of the portion of the Property
so injured to its prior condition. Such written notice is not required in the event of
any actual or imminent physical harm to the property.
If Grantees disagree whether an alleged action of the Grantor is a violation of the
terms of the Easement, Grantees shall issue a Notice of Entry into Mediation
"Meet and Confer Notice to Grantor. The Meet and Confer Notice shall be
issued not more than ten (10) days after the dispute becomes apparent, and
Grantees shall enter into mediation not more than thirty (30) days after issuing the
Meet and Confer Notice. Upon receipt of the Meet and Confer Notice, Grantor
shall take reasonable measures to suspend the activity that is the subject of the
notice until an agreement is reached between Grantees. Any agreement shall be
in writing and signed by all the parties to this Easement.
7.3 Injunctive Relief.
If Grantor fails to cure the violation within thirty (30) days
after receipt of notice thereof from Grantees, or under circumstances where the
violation cannot reasonably be cured within a thirty (30) day period, fail to begin
curing such violation within the thirty (30) day period, or fail to continue
diligently to cure such violation until finally cured, Grantees may bring an action
at law or in equity in a court of competent jurisdiction which seeks to enforce the
terms of this Easement, to enjoin the violation, by temporary or permanent
injunction, and seeks to require the restoration of the Property to the condition
that existed prior to any such injury.
7.4 Forbearance. Enforcement of the terms of this Easement shall be at the discretion
of the Grantees, and any forbearance by Grantees to exercise their rights under
this Easement in the event of any breach of any term of this Easement by Grantor
shall not be deemed or construed to be a waiver by Grantees of such term or of
any subsequent breach of the same or any other term of this Easement or of any of
Grantees' rights under this Easement. No delay or omission by Grantees in the
6
exercise of any right or remedy upon any breach by Grantor shall impair such
right or remedy or be construed as a waiver.
7.5 Acts Beyond the Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantees to bring any action against Grantor for any injury to
or change in the Property resulting from causes not involving any affirmative acts
or omissions by Grantor, or causes beyond Grantor's control, including without
limitation, trespassers, fire, flood, storm, and earth movement, or from any
prudent action taken by Grantor under emergency conditions to prevent, abate, of
mitigate significant injury to the Property resulting from such causes.
7.6 Attorneys' Fees. Except as otherwise provided by law, if any litigation is
commenced between any parties to this easement concerning any provision hereof
or the rights and duties of any person in relation thereto, each party shall bear its
own attorneys' fees and costs.
8. Access. No right of access by the general public or to any third parties to any portion of
the Property is conveyed or granted by this Easement.
9. Costs and Responsibilities. Grantor shall have the sole responsibility for the ownership,
liability, operation, upkeep, and maintenance of the Property. Grantor shall be
responsible for, indemnify, and save harmless Grantees, their officers, agents, and
employees from any and all liabilities, claims, demands, damages, or costs resulting
from, growing out of, or in any way connected with or incident to this Easement, except
for active negligence of Grantees, their officers, agents, or employees. The duty of
Grantor to indemnify and save harmless includes the duty to defend as set forth in Civil
Code Section 2778. Grantor waives any and all rights to any type of express or implied
indemnity or right of contribution from Grantees, their officers, agents or employees,
from any liability resulting from, growing out of, or in any way connected with or
incident to this Easement.
10. Subsequent Conveyance of the Property. Grantor shall incorporate by reference hereto
the terms of this Easement in any deed or other legal instrument by which Grantor divests
itself of any interest in all or a portion of the Property, including, without limitation, a
leasehold interest. Concurrent with the full execution of this Easement, Grantor shall
grant Grantees a right of first refusal to purchase the Property or portion thereof and,
pursuant to such grant, shall give written notice to Grantees of the transfer of any interest
in the Property at least 30 days prior to the date of such proposed transfer. If Grantees do
not elect to exercise the right of first refusal, any proposed transfer of any interest in the
Property must be approved by Grantees and may be subject to reimbursement to County
and /or District for any contributions made toward Property improvements. Such
reimbursements shall be made in a manner to be agreed upon between Grantor and
Grantees prior to such proposed transfer. Grantor shall provide a complete copy of this
Easement to its transferee prior to any such transfer. The failure of Grantor to perform
any act required by this paragraph shall not impair the validity of this Easement or limit
its enforceability in any way.
7
11. Notices. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: City Clerk
13777 Fruitvale Ave.
Saratoga, CA 95070
408.868.1269 (Telephone)
408.867.8559(Fax)
To Grantees:
County County of Santa Clara
Parks Recreation Department
298 Garden Hill Drive
Los Gatos, CA 95032 -7669
(408) 355 -2200 (Telephone)
(408) 355 -2290 (Fax)
MROSD Midpeninsula Regional Open Space District
Administrative Office
330 Distel Circle
Los Altos, CA 94022 -1404
(650) 691 -1200 (Telephone)
(650) 691 -0485 (Fax)
or to such other address as either party from time to time shall designate by written notice to the
other.
12. Recordation. This instrument shall be recorded by Grantees in the Official Records of
the County of Santa Clara, California. Grantees may re- record this Easement whenever
re- recording is required to preserve Grantees' rights in this Easement.
13. General Provisions.
13.1 Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of California.
13.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of Grantees to
affect the purpose of this Easement. If any provision in this instrument is found to
be ambiguous, an interpretation consistent with the purpose of this Easement that
would render the provision valid shall be favored over any interpretation that
would render it invalid. This instrument shall be construed in accordance with its
fair meaning, and it shall not be construed against either party on the basis that
such party prepared this instrument.
8
13.3 Severability. If any provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of
this Easement, or the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, as the case may be, shall not
be affected thereby, so long as the purposes of this Easement can still be carried
out.
13.4 No Third -Party Rights. This instrument is made and entered into for the sole
benefit and protection of Grantor and Grantees and their respective heirs,
grantees, successors, and assigns. No person or entity other than the parties
hereto and their respective heirs, grantees, successors, and assigns shall have any
right of action under this Easement or any right to enforce the terms and
provisions hereof.
13.5 No Forfeiture. Nothing contained herein is intended to result in a forfeiture or
reversion of Grantor's fee title in any respect. Grantor specifically reserves the
right to convey fee title to the Property subject to this Easement.
13.6 Successors. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, grantees, successors, and assigns, and shall continue as a
servitude running in perpetuity with the Property.
13.7 Cooperation. In light of (a) the regional benefits provided by the Property and the
connections between the Saratoga to the Sea trail and other trails that may be
developed by Grantees and (b) this Easement's protection of the natural values of
the Property, the parties shall cooperate as reasonably necessary to facilitate use
of the Property to satisfy mitigation and similar resource protection requirements
that may be imposed in connection with obtaining regulatory approvals of trails
with connections to the Property.
13.8 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no
effect upon construction or interpretation.
13.9 Consent not to be Unreasonably Withheld. In the event Grantor, as required by
the terms hereof, seeks consent of Grantees, Grantees agree in all such
9
circumstances not to unreasonably withhold consent, regardless whether the
paragraph hereunder requiring grantees' consent so provides.
Grantor.
City of Saratoga
By:
Howard A. Miller
Mayor
Date:
Attest:
Ann Sullivan, City Clerk
Date:
Approved as to Form Legality:
Richard Taylor, City Attorney
Date:
Exhibit List:
Exhibit A Property Description
State of California
County of
On 2011 before me, notary public,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged
to me that he /she /they executed the same in his/her /their authorized capacity (ies), and that by
his/her /their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my official seal.
SIGNATURE OF NOTARY
10
Grant Deed of Conservation Easement Exhibit A
Property Description consisting of Exhibits A-1, B -1, A -2, and B -2, attached
F ail
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EXHIBIT "Al
LEGAL DESCRIPTION 1
r
All that certain real property in the unincorporated area of the County of Santa Clara,
j State of California, being a portion of Section 11, Township 8 South, Range 2 West,
*T Mount Diablo Base Meridian, described as follows: t
x
All that certain real property shown as Parcel "A" on that certain Record of Survey filed
for record in Book 394 of Maps, Pages 29 and 30, Santa Clara County Records, Santa
tt-- Clara County, California.
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Excepting therefrom a portion more particularly described as follows:
Commencing at the northwest corner of said Parcel "A thence along the northerly line
of said parcel the following four courses: 1) North 84 °56' 57" East 199.98 feet; 2) North ::::;:.1.4'
75 °01'57" East 113.78 feet; 3) South 00 °06'37" West 54.01 feet; 4) North 75 °12' 38"
East 45.00 feet to the TRUE POINT OF BEGINNING; thence leaving said northerly '''',7
line South 25° 00'00" East 375.00 feet; thence North 90 °00'00" East 150.00 feet; thence
North 25 °00'00" East 80.00 feet; thence North 00 °00'00" East 157.97 feet; thence North``
24 °23'42" West 85.67 feet to said northerly line of said Parcel "A" and also along the r
westerly right of way line of Congress Springs Road as said road is shown on said Record 1 r
of Survey; thence along said northerly line and also along said westerly right of way line
South 85 °31'57" West 33.77 feet to the beginning of a curve concave northeasterly
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having a radius of 220.65 feet; thence northerly and westerly along said curve through a
central angle of 14 °44'20" for an arc length of 56.76 feet to the beginning of a compound
curve concave northeasterly having a radius of 355.00 feet; thence northerly and westerly
along last said curve through a central angle of 14 °32'21" for an arc length of 90.08 feet; .'„,,-,-;f:
thence North 65 °11'22" West 77.84' feet; thence leaving said westerly right of way line a .r
South 24 °57'46" West 15.94 feet; thence South 75 °12'38" West 55.48 feet to the TRUE
POINT OF BEGINNING, containing 1.89 acres more or less.
,4 1
See Exhibit `Bl" attached hereto and made a part hereof.
,m
This description was prepared by me or under my direction in conformance
with the requirements of the Professional Land Surveyors' Act.
s:
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Z Karl Barker, P.L.S. #8342 Date
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CURVE LENGTH RADIUS DELTA TANGEN OVER A PORTION OF
C1 78.92 24 3 40.07' A.P.N. 503 -48 -014
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EXHIBIT "A2"
LEGAL DESCRIPTION
All that certain,real property in the unincorporated area of the County of Santa Clara,
State of California, being a portion of Section 11, Township 8 South, Range 2 West,
Mount Diablo Base Meridian, described as follows:
All of that certain real property shown as Parcel "A" on that certain Record of Survey
filed for record in Book 411 of Maps, Page 51, Santa Clara County Records, Santa Clara
County, California.
See Exhibit `B2" attached hereto and made a part hereof.
This description was prepared by me or under my direction in conformance
1 with the requirements of the Professional Land Surveyors' Act.
Karl Barker, P.L.S. #8342 Date
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CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
This is to certify that the interest in real property conveyed by the foregoing GRANT DEED OF
CONSERVATION EASEMENT, dated from the City of Saratoga to the County
of Santa Clara is accepted by the undersigned officer on behalf of the Board of Supervisors of the County
of Santa Clara as authorized by the resolution adopted and the Grantee consents to the
recording of the Grant Deed by the County's duly authorized officer.
I have executed this certificate of acceptance on
By
Director, Parks and Recreation Department
APPROVED AS TO FORM AND LEGALITY:
Katherine Harasz,
Deputy County Counsel
State of California
County of Santa Clara ss.
On 2011, before me, a Notary Public in and for
said State, personally appeared who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to this instrument, and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the person or the entity upon behalf of which the person acted
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
Notary Public
CERTIFICATE OF ACCEPTANCE
(GOVERNMENT CODE SEC. 27281)
This is to certify that the interest in real property conveyed by the foregoing GRANT DEED OF
CONSERVATION EASEMENT dated from the CITY OF
SARATOGA, a California Municipal Corporation to the MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a public district, is hereby accepted by the undersigned on behalf of the District
pursuant to authority conferred by resolution of the Board of Directors of the Midpeninsula Regional
Open Space District bearing No, adopted on and said
District consents to recordation thereof.
Dated 2411
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
By
President, Board of Directors
ATTEST:
Michelle Radcliffe, District Clerk