CC Resolution No. 14-140 Authorizing the City Manager to execute and record a Deed restriction on McClellan Ranch Preserve Property RESOLUTION NO. 14-140
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE AND RECORD A DEED
RESTRICTION ON MCCLELLAN RANCH PRESERVE PROPERTY
WHEREAS, on July 1, 2011, the California Department of Parks and Recreation
(DPR) Office of Grants and Local Services conditionally approved Grant RU-43-001A
Roberti-Z'berg-Haris-Urban Needs Basis grant (Grant) for the City of Cupertino, and
WHEREAS, the recordation of a Deed Restriction on the Property is a condition
of the Grant. The duration of the Deed Restriction shall remain in full force and effect
and shall bind the City for the period described in the Deed Restriction, from July 1,
2011, through June 30, 2031, and
WHEREAS, the restriction grants a right of entry and a limitation of use to an
environmental classroom facility.
NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of
Cupertino hereby authorizes the City Manager to execute and record the Deed
Restriction.
PASSED AND ADOPTED at a special. meeting of the City Council of the City of
Cupertino this 1st day of April, 2014, by the following vote:
Vote Members of the City Council
AYES: Wong, Sinks, Chang, Mahoney, Santoro
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
Grace Schmidt, City Clerk q-9 Gilbert Wong, Mayor, City of Cupertino
1 RECORDING REQUESTED BY:
California Department of Parks and Recreation
2 Office of Grants and Local Services
3 WHEN RECORDED MAIL TO:
Office of Grants and Local Services
4 PO Box 942896
Sacramento,CA 94296-0001
5 Attn: Natalie Bee
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7
g DEED RESTRICTION
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10 I. WHEREAS,the City of Cupertino, a:municipal corporation(hereinafter referred to as
1 l "Owner(s)"is/are recorded owner(s)of the real property described in Exhibit A,attached and
12 incorporated herein by reference(hereinafter referred ro as the"Property"); and
13 II. WHEREAS,the California Department of Parks and Recreation(hereinafter referred to
14 as"DPR")is a public agency created and existing under the authority of section 5001 of the California
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Public Resources Code(hereinafter referred to as the"'PRC")..And
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Ill. WHEREAS, Owner(s) (or Applicants) applied to DPR for grant funds available pursuant
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to the 2002 Resources Bond Act,Roberti-Z'berg-Harri s -Urban Needs Basis Program for A
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development project in the City of Cupertino to construct an enviromnental center and outdoor exhibit
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20 space on the Property; and
21 W. WHEREAS, on July 1,2011 ,DPR's Office of Grants and Local Services conditionally
22 approved Grant RU-43-001A, (hereinafter referred to as"Grant") for A development project in the City
23 of Cupertino to construct an environmental center and outdoor exhibit space on the Property, subject to,
24 among other conditions,recordation of this Deed Restriction on the Property; and
25 V. WHEREAS,but for the imposition of the Deed Restriction condition of the Grant, the
26 Grant would not be consistent with the public purposes of the 2002 Resources Bond Act, Roberti-
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Z`berg-Harri"s -Urban Needs Basis and the funds that are the subject of the Grant could therefore not
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2 have been granted; and
3 VI. WHEREAS,Owner(s)has/ve elected to comply with the Deed Restriction of the Grant,
4 so as to enable Owner(s),to receive the Grant funds and perform the work described in the Grant;
5 NOW,THEREFORE, in consideration of the issuance.of the Grant funds by DPR, the
6 undersigned Owner(s) for himself/herself/themselves and for his/her/their heirs,assigns,and successors-
7 in-interest,hereby irrevocably covenant(s) with DPR that the condition of the grant(set forth at
8 paragraph(s) 1 through 5 and in Exhibit B hereto) shall at all times on and after the date on which this
9 Deed Restriction is recorded constitute for all purposes covenants,conditions and restrictions on the use
10 and enjoyment of the Property that are hereby attached to the deed to the Property as fully effective
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components thereof.,
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1. DURATION. (a)This Deed Restriction shall remain in full force and effect and shall
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bind Owner(s) and all his/her/their assigns or successors-in-interest for the period running from July 1,
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2011 through June 30,2031.
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2. TAXES AND ASSESMEN,TS. It is:intended that this Deed Restriction is irrevocable
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17 and shall constitute an enforceable restriction within the meaning of a) Article XTII, section 8,of the
18 California Constitution; and b) section 402.1 of the California Revenue and Taxation Code or successor
19 statue. Furthermore, this Deed Restriction shall be deemed to constitute a servitude upon and burden to
20 the Property within the meaning of section 3712(d) oil the California Revenue and Taxation Code,or
21 successor statue,which survives a sale of tax-deeded property.
22 3. RIGHT OF ENTRY. DPR or its agent or employees may enter onto the Property at time
23 reasonably acceptable to Owner(s) to ascertain whether the use restrictions set forth above are being
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observed.
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4. REMEDIES. Any act, conveyance,contract,or authorization by Owner(s) whether
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written or oral which uses or would cause to be used or would permit use of the Property contrary to the
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terns of this Deed Restriction will be deemed a.violation and a breach hereof. DPR may pursue any and
2
all available legal and/or equitable remedies to enforce the terms and conditions of this Deed Restriction.
1
2 In the event of a breach,any forbearance on the part of DPR to enforce the terms and provisions hereof
3 shall not be deemed a waiver of enforcement rights regarding any subsequent breach.
4 5. SEVERABILITY. If any provision of these restrictions is held to be invalid,or for any
5 reason becomes unenforceable,no other provision shall be affected or impaired.
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7 Dated: , 20
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9 Business Name(if property is owned by a business):
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Signed: Signed:
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13 PRINT/TYPE NAME&CAPACITY OF ABOVE PRINT/TYPE NAME&CAPACITY OF ABOVE
(GRANTEE'S AUTHORIZED REPRESENTATIVE) (ADDITIONAL SIGNATURE,AS REQUIRED)
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**NOTARY ACKNOWLEDGEMENT ON THE NEXT PAGE-**
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I State of California
2 County of
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On before me, _ , a Notary Public,
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personally appeared _ ,who proved to me on the basis of
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satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and
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acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that
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by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the
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9 person(s)acted,executed the instrument.
10 I certify under PENALTY OF PERJURY under the laws of the State of California that the
11 foregoing paragraph is true and correct.
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WITNESS my hand and official seal.
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Signature (Seal)
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ALL THAT CERTAIN REAL PROPERTY BEING A PORTION OF SECTION 22,T.7.S.,R.2 W.,M.D.B.&M.
AND INCLUDING THEREIN PROTIONS OF LOTS 96, 85,86,87,88, 89,90,9.1,92,95,96,AND 99,AND A
'PORTION OF VALLECITO ROAD AS SAID LOTS AND ROAD ARE SHOWN ON THE MAP OF MONTA
VISTA PARK,WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF SANTA
CLARA COUNTY ON APRIL 11, 1917 IN BOOK"P"OF MAPS,PAGE 19,DESCRIBED AS FOLLOWS:
BEGINNING AT A ONE INCH IRON_PIPE AT THE INTERSECTION THEREOF THE CENTERLINE OF
MCCLELLAN ROAD AND THE WESTERLY BOUNDARY LINE OF THE COLONY TRACT,THE MAP OF
WHICH IS ON FILE IN THE OFFICE OF THE RECORDER OF THE SAID COUNTY IN BOOK"P"OF MAPS,
PAGE 21;THENCE ALONG SAID CENTERLINE OF MCCLELLAN ROAD S.64°31' 12"W..103.80 FEET TO
A3/4"I.P..;THENCE S.78°57'47"W. 196.60 FEET TO A3/4"IRON PIPE;THENCE S.61'49'47"W.296.20
FEETTO A3/4"I.P. SANTA CLARA COUNTY STATION 17+7694;THENCE S.80° 27'54"W. 145.54 FEET
TO A3/4"I.P.;THENCE N.54'03'06"W. 1.13.46 FEET TO THE INTERSECTION OF THE CENTERLINE OF
MCCLELLAN ROAD WITH THE SOUTHWESTERLY LINE OF THAT CERTAIN 15.25 ACRE TRACT OF
LAND DESCRIBED IN THE DEED FROM CLIFFORD J. SIMMS,ET UX,TO HIROSUKE INOUYE,ET UX,
RECORDED JULY 22, 1955 IN BOOK 3232 OF OFFICIAL RECORDS,PAGE 86,SANTA CLARA COUTY
RECORDS;THENCE LEAVING SAID CENTERLINE AND RUNNING THE SOUTHWESTERLY LINE OF
SAID 15.25 ACRE TRACT N.250 07'W.41.33 FEET TO THE NORTHEASTERLY LINE OF MCCLELLAN
ROAD;THENCE ALONG SAID NORTHEASTERLY LINE S.54°03'06"E.44.85 FEET TO THE
SOUTHEASTERLY TERMINUS OF THE AGREED BOUNDARY LINE,AS DESCRIBED IN THE
AGREEMENT EXECUTED BY AND BETWEEN CLIFFORD J.SIMMS,.ET UX AND HIROSUKE INOUYE,
RECORDED OCTOBER 7, 1957 IN BOOK 3907 OF OFFICIAL RECORDS,PAGE 35,RECORDS OF SAID
COUNTY,SAID AGREED BOUNDARY LINE ALSO SHOWN ON THE MAP OF RECORD OF SURVEY ON
FILE IN BOOK 67 OF MAPS,PAGE 36;THENCE LEAVING THE NORTHEASTERLY LINE OF
MCCLELLAN ROAD ALONG SAID AGREED LINE BEING THE CENTERLINE OF STEVENS CREEK,AS
THE SAME EXISTED AT THE DATE OF AGREEMENT THE FOLLOWING COURSES AND DISTANCES:N.
120 03' 33"W.75.91 FEET;THENCE N.54°02'36"W. 82.13 FEET THENCE N. 19°24' 36"W.330.00 FEET;
THENCE N. 60 23' 24"E. 124.55 FEET;THENCE N.53°06' 59"E.219.56 FEET;THENCE N.30° 17' 17"E.
159.80 FEET;THENCE N. 51°34'47"E. 154.46 FEET;THENCE N. 88°09' 50"E. 177.37 FEET;THENCE S.
610 46' 55"E. 153,27 FEET;THENCE S.45°24'00"E. 114.77 FEET;THENCE S. 16°02'E. 100.58 FEET;
THENCE S.680 40' 00"E. 121.93 FEET TO THE INTERSECTION THEREOF WITH THE WESTERLY LINE
OF THE COLONY TRACT HEREIN ABOVE REFERRED TO;THENCE LEAVING SAID CENTERLINE OF
STEVENS CREEK AND AGREED BOUNDARY LINE AND RUNNING ALONG THE WESTERLY LINE OF
SAID COLONY TRACT AND THE EASTERLY LINE OF MONTA VISTA PARK S.470 15' 00"W.47.64 FEET
TO THE SOUTHERLY CORNER OF LOT 99 SAID MONTA VISTA PARK MARKED BY A FENCE POST;
THENCE LEAVING SAID MONTA VISTA PARK AND CONTINUING ALONG THE WESTERLY LINE OF
SAID COLONY TRACT S. 80 06'48"E.438.93 FEET TO THE POINT OF BEGINNING AND CONTAINING
APPROXIMATELY 15.37 ACRES.
EXCEPTING THEREFROM THAT PORTION THEREOF CONVEYED TO SANTA CLARA COUNTY FLOOD
CONTROL AND WATER DISTRICT,A PUBLIC CORPORATION BY GRANT DEED RECORDED
OCTOBER 5, 1972 IN BOOK 0054,PAGE 9,OFFICIAL RECORDS,DESCRIBED THEREIN AS FOLLOWS:
"BEING A PORTION OF THE LANDS OF THE CITY OF CUPERTINO AS DESCRIBED IN THE DEED
'RECORDED IN BOOK 3232 OF OFFICIAL RECORDS AT PAGE 86 ET SEQ.,SANTA CLARA COUNTY
RECORDS,TO WIT:
ALL OF SAID LANDS LYING WITHIN A STRIP OF LAND 120 FEET IN WIDTH,THE CENTER LINE OF
SAID STRIP BEING THE NOW EXISTING CENTER LINE OF STEVENS CREEK AS SAID STRIP IS SHOWN
ON 'EXHIBIT A2'ATTACHED HERETO AND MADE A PART HEREOF."
State of California— Natural Resources Agency B DEPARTMENT OF PARKS AND RECREATION XHIBI
GRANT CONTRACT
2002 Resources Bond Act
Roberti-Tberg-Harris - Urban Needs Basis
GRANTEE City of Cupertino
THE PROJECT PERFORMANCE PERIOD IS FROM July 01, 2011 through June 30, 2015
CONTRACT PERFORMANCE PERIOD IS FROM July 01, 2011 throuah June 30 2031
The Grantee agrees to the terms and conditions of this Contract, and the State of
California, acting through its Director of Parks and Recreation pursuant to the Roberti-
Z'berg-Harris - Urban Needs Basis in the California Clean Water, Clean Air, Safe
Neighborhood Parks, and Coastal Protection Act of 2002, agrees to fund the total Project
Grant Amount indicated.
THESE FUNDS ARE FOR THE ACQUISITION AND DEVELOPMENT OF '
NEIGHBORHOOD, COMMUNITY, AND REGIONAL PARKS AND RECREATION
LANDS AND FACILITIES.
City of Cupertino The General and Special Provisions attached are made a
Urantee part of and Incorporated Into the Contract.
STATE ALIFOR
gsi. a ture of ' razed Re-pre'entative) DEPA N OF P . K ND RECrATION
[.JfreeteF DAv� I�nIrMP, By:
� �(
C ry M ANG ft Y'
Date: I f 2S, 1 Date: JAW I
CERTIFICATION OF FUNDING
CONTRACT NO AMENDMENT NO CALMS VENDOR N¢ PROJECT NO
CO231195 400000417500 /
AMOUNT ENCUMBERED BY THIS FUND
DOCUMENT Clean Water, Cln Air, Csti Prote Fd, CA
$251,000
PRIOR AMOUNT ENCUMBERED BY THIS ITEM _ CHAPTER STATUTE FISCAL YEAR
CONTRACT 3790-103-6029(1) 33111 11 201'1/12
0
TOTAL AMOUNT ENCUMBERED TO DATE INDEX 013J.EXPEND PCA PROJECT/WORK
$251,000 1091 '702 !!rr,,qq�� // \� PHASE
_ � W V` u,
T:B.A.NO I hereby certify upon my own personal knowledge-that budgeted funds are available for this encumbrance.
B.R.NO SIGNATU E OF ACCOUNTING OFFICER DATE
GRANT CONTRACT
This AGREEMENT is hereby made and agreed upon by the State of California, acting
through the California Department of Parks and Recreation (hereinafter referred to as
"STATE") and City of Cupertino (hereinafter referred to as "GRANTEE") pursuant to the
Roberti-Z'bera-Harris - Urban Needs Basis in the California Clean Water, Clean Air, Safe
Neighborhood Parks, and Coastal Protection Act of 2002.
RECITALS
1. On or about 6/7/2006 the STATE and GRANTEE entered into Grant Contract
#CO214003 (hereinafter referred to as "PREVIOUS CONTRACT")for an amount not to exceed
251 000. This grant was funded in accordance with the California Clean Water, Clean Air;
Safe Neighborhood Parks, and Coastal Protection Act of 2002, also known as Proposition 40.
2. The completion date set forth in the PREVIOUS CONTRACT was 6/30/2012. The GRANTEE
did:not complete the grant project(s)or spend its entire allocation prior to the contract liquidation
date and, therefore, is not discharged from its obligations under the PREVIOUS CONTRACT.
3. Pursuant to the PREVIOUS CONTRACT, STATE disbursed grant funds to GRANTEE in the
total amount of 2511 000, leaving a balance in,the amount of 251,000 for use by GRANTEE.
15. On or about June 30, 2011, Chapter 33 of the Statutes of 2011 (hereinafter"Budget Bill of
2011/12") was enacted. Item 3790-401 stated that all grant.funds previously appropriated
from Proposition 40 that have not been expended by grant recipients prior to June 30, 2011
shall revert to the funds from which the appropriations were made. This provisions
effectively terminated STATE's authority to pay out further grant funds under the PREVIOUS
CONTRACT.
Pursuant to section 3790-103-6029 of the Budget Bill of 2011/12, the Legislature appropriated
an amount.equivalent to the balance remaining on June 30,.2011 in the 2002 California Clean
Water, Clean Air, Safe-Neighborhood Parks, and Coastal Protection Bond Fund. The
Legislature.made these funds,available for grants previously appropriated from Proposition 40
funds which are deemed to have the highest priority statewide consistent with Section 5096.633
of the Public Resources Code. These funds are available for encumbrance on or before June
30, 2013. Per Government Code section 16304, the liquidation period of these funds is
extended to on or before June 30, 2015:
5. Pursuant to the Budget Bill of 2011/12, item number 3790-103-6029 and 3790-401, STATE
and GRANTEE agree to enter into this Agreement(hereinafter referred to as"CONTRACT").
which establishes terms and conditions that allow the expenditure,of the newly appropriated
grant funds established by Senate Bill 87 to complete the project(s)set forth in the CONTRACT.
STATE and GRANTEE agree to cancel the PREVIOUS CONTRACT and agree to be bound by
the terms and conditions of this CONTRACT:
1
TERMS AND CONDITIONS
The STATE, pursuant to the Roberti-Z'berg-H 3rris - Urban Needs Basis in the California Clean
Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002, and through
authority granted by section 3790-103-6029 of the Budget Bill of 2011/12, hereby grants to
GRANTEE a sum (hereinafter referred to as "GRANT MONIES") not to exceed 251,000
subject to the terms and conditions of this CONTRACT, the GUIDES, any legislation
applicable to the ACT, and the APPLICATIOIi4.
In consideration thereof GRANTEE agrees to abide by the terms and conditions of this
CONTRACT as well as the provisions of the.ACT. GRANTEE acknowledges that the
GRANT MONIES are not a gift or a donation,.
In addition to the terms and conditions of this CONTRACT, the parties agree that the terms
and conditions contained in the documents set forth below are hereby incorporated into and
made part of this CONTRACT.
w..The PROCEDURAL GUIDE;
x. The submitted APPLICATION(S).
I. GENERAL PROVISIONS
A. Definitions
As used in this CONTRACT, the following words shall have the following meanings:
133. The term "ACQUISITION" means to obtain fee title of real property or a
permanent easement which provides the recipient permanent rights to use the property
for the purposes of the project. Lease;or rentals do not constitute ACQUISITION.
134. The term "ACT"means the statutory basis for these grant programs.
135. The term "APPLICATION" means the individual project application packets)for
a grant(s) pursuant to the enabling legislation and/or grant program process guide
requirements.
136. The term "COMPETITIVE GRANT PROGRAM" means the Urban Park Act of
2001, the Murray Hayden Urban Youtf'i Services Program, the State Urban Parks
and Healthy Communities Act, the Roberti-Z'berg-Harris Nonurban Needs Basis,
Roberti-Z'berg-Harris Urban Needs Basis or California Youth Soccer and Recreation
Development program.
137. The term "CONTRACT PERFORMANCE PERIOD" means the period of time
described in Section 1 of this CONTRACT. The"CONTRACT PERFORMANCE
PERIOD" means the period of time during which the GRANTEE must use the property
acquired or developed with the grant for purposes consistent with the grant.
2
138. The term "DEVELOPMENT" means capital improvements to real property by
means of construction of permanent or fixed features of the property.
139. The term "GRANT PERFORMANCE PERIOD means the period:of time
described in.the Section I of this contract during which eligible costs can be charged to
the grant and which begins on the date of appropriation and ends on the fund
liquidation date.
140. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE/Cost
Estimate Form(s)found in the APPLICATION(s).
141. The term "PROCEDURAL GUIDE" means the document identified as the
"Procedural Guide for the 2002 Resources Bond Act[subprogram name]..The GUIDE
provides the procedures and policies controlling the administration of the grant.
142. The term "PROJECT TERMINATION" refers to the non-completion of a
GRANT SCOPE.
143. The term "REASONABLE HOURS OF OPERATION" means that the facility
is available to the public during days and times consistent with the type.of property,
the amount of the STATE GRANT MONIES invested in the project, the time of year.,
and the operating hours of similar facilities in nearby communities.
144. The term "STATE" refers to the State of California acting by and through the
California Department of Parks and Recreation.
B. Project Execution
78. Subject to the availability of GRANT MONIES in the ACT', the STATE hereby grants to
the GRANTEE a sum of money not to exceed the amount stated in Section I of this
CONTRACT, in consideration of, and on condition that, the sum be expended in
carrying out the purposes set forth in the GRANT SCOPE(S), and under the terms and
conditions set forth in this CONTRACT.
The GRANTEE shall assume the obligation to furnish any additional funds that may be
necessary to complete the GRANT SCOPE(S)..
79.All changes and alterations to the GRANT SCOPE must be approved in writing by the
STATE. GRANTEE'S failure to comply with this provision*may be construed as a
breach of the terms of the CONTRACT and result in the enforcement of the Project
Termination provision section E. found in this CONTRACT.
If the contract was funded under a COMPETITIVE GRANT PROGRAM, the
GRANTEE agrees that any other project changes or alterations which deviate from
the project selection criteria responses provided by the GRANTEE in the original
competitive APPLICATION must be submitted in writing to the STATE for prior
approval. This requirement is necessary to maintain the integrity of the competitive
grant process.
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80.The GRANTEE shall complete the GRANT SCOPE in accordance with the time of the
GRANT PERFORMANCE PERIOD set forth on page one of this CONTRACT, and
under the terms and conditions of this CONTRACT.
81.The GRANTEE shall comply with the California Environmental Quality Act(Public
Resources Code, Section 21000, et. seq., Title 14, California Code of Regulations,
Section 15000 et. seq.).
82.The GRANTEE shall at all times compljr with all applicable current laws and regulations
affecting ACQUISITION and DEVELOPMENT projects, including, but not limited to,
legal requirements for construction contracts, building codes, health and safety codes,
and laws and codes pertaining to individuals with disabilities, including but not limited to
the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et.seq.) and the
California Unruh Act(California Civil Code§51 et seq.)
83. If the GRANT SCOPE includes ACQUISITION of real property, the GRANTEE
agrees to comply at all times with all applicable State and local laws or ordinances
affecting relocation and real property ACQUISITION.
84. GRANTEE agrees that lands acquired with GRANT MONIES shall not be acquired
through the use of eminent domain.
C. Project Costs
23. GRANTEE agrees to abide by the GUIDES.
24. GRANTEE acknowledges that the STATE may make reasonable changes to its
procedures as set forth in the GUIDES. If the STATE makes any changes to its
procedures and guidelines, STATE agrees to notify GRANTEE within a reasonable
time.
D. Project Administration
67. If GRANT MONIES are advanced for ACQUISITION projects, the GRANT MONIES
shall be placed in an escrow account by GRANTEE. If GRANT MONIES are advanced
and not expended, GRANTEE shall return the unused portion of the advanced funds to
the STATE within 60 days after the closot of escrow.
68.1f GRANT MONIES are advanced for DEVELOPMENT projects, the advanced funds
shall be placed in an interest bearing account by GRANTEE until expended. Advanced
funds must be spent within six months from thedate of receipt, unless the STATE
provides GRANTEE with a written waiver of this requirement. Interest earned on the
advanced funds shall be used on the project as approved by the STATE. If GRANT
MONIES are advanced and not expended,the unused portion of the grant and any
interest earned shall be returned to the)TATE within 60 days after project completion
or the end of the GRANT PERFORMANCE PERIOD whichever is earlier.
69.The GRANTEE shall submit written project status reports within 30 calendar days after
the STATE has made such a request. In any event,'the GRANTEE shall provide the
STATE a report showing.total final project expenditures within 60 days of project
completion or the end of the GRANT PERFORMANCE PERIOD, whichever is earlier.
The GRANT PERFORMANCE PERIOD is identified on page:one of this CONTRACT.
70.The STATE shall have the right to inspect all property or facilities acquired and/or
developed pursuant to this CONTRACT and the GRANTEE shall make such.property
or facilities available for inspection upon 24 hours notice from the STATE.
71.The GRANTEE and the STATE agree that if the GRANT SCOPE includes
DEVELOPMENT, final payment may not be made until the work described in the
GRANT SCOPE is complete.
72.Any grant funds that have not been expended by the GRANTEE shall revert to the
STATE.
E. Deed Restriction
12. In order to ensure that property improved or acquired with GRANT MONIES are
used for purposes consistent with the grant, if the property acquired or
developed with GRANT MONIES is owned by the GRANTEE, the GRANTEE must
record a deed restriction on the title to property prior to receiving payments for
any purpose other than acquisition. The Deed Restriction shall include the
following elements:
ss. DURATION. (a)This Deed Restriction shall remain in full force and effect and
shall bind Owner(s) and all his/her/their assigns or successors-in-interest during
the CONTRACT PERFORMANCE PERIOD.
tt. TAXES AND ASSESMENTS. The Deed Restriction shall.be irrevocable and
shall constitute an enforceable restriction within the meaning of a)Article XIII,
section 8, of the California Constitution; and b) section.402.1 of the California
Revenue and Taxation Code or successor statue. Furthermore, the Deed
Restriction shall be deemed to constitute a servitude upon and burden to the
Property within the meaning of section 3712(4)of the California Revenue and
Taxation Code, or successor statue, which survives a sale of tax-deeded
property.
uu. RIGHT OF ENTRY. STATE or its agent or employees may enter onto the
Property at times reasonably acceptable to Owner(s) to ascertain whether the
use restrictions set forth above are being observed.
vv. REMEDIES. Any act, conveyance, contract, or authorization by Owner(s)
whether written or oral which uses or would cause to be used or would permit
use of the Property contrary to the terms of the Deed Restriction will.be deemed
a violation and a breach hereof. STATE may pursue any and all available legal
and/or equitable remedies to enforce the terms and conditions of the Deed
Restriction. In the event of a breach, any forbearance on the part of STATE to
enforce the terms and provisions hereof shall not be deemed a waiver of
enforcement rights regarding any subsequent breach.
F. Project Termination
45. In thei event of non-completion of a GRANT SCOPE, the GRANTEE shall return all
GRANT MONIES to the STATE.
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46.This CONTRACT may be rescinded, modified or amended only by mutual written
CONTRACT between the GRANTEE rand the STATE, unless the provisions of this
CONTRACT provide that mutual CONTRACT is not required for a rescission,
modification or CONTRACT.
47. Failure by the GRANTEE to comply with the terms of this CONTRACT, as well as any
other grant contracts or other CONTRACTs that GRANTEE has entered into with
STATE, may be cause for suspension of all obligations of the STATE under this
CONTRACT unless-the STATE determines that such failure was due to no fault of the
GRANTEE. In such case, STATE may reimburse GRANTEE for eligible costs properly
incurred in performance of this CONTRACT despite non-performance of the
GRANTEE. To qualify for such.reimbursement, GRANTEE agrees to mitigate its losses
to the best of its ability.
48. The GRANTEE agrees that in the event of a breach of this CONTRACT, the STATE
may seek, in addition to all remedies provided by law, specific performance of the
CONTRACT in accordance with the purpose of the CONTRACT to preserve, protect
and increase the quantity and quality of parks, public recreation facilities, opportunities
and/or historic resources available to the people of the State of California.
G. Budget Contingency Clause
For purposes of this program, if funding for any,fiscal year is reduced or deleted by the budget
act, executive order, the legislature, or by any other provision-of statute, the STATE shall have
the option to either cancel this contract with no liability occurring to the STATE, or offer a
CONTRACT to GRANTEE to reflect a reduced grant amount. This paragraph shall not require
the mutual CONTRACT as addressed in Paragraph E, subsection 2,of this CONTRACT.
H. Indemnity
56.The GRANTEE shall waive all claims aril recourse against the STATE including the
right to contribution for loss or damage to persons or property arising from, growing out
of or in any way connected with or incidiant to this CONTRACT except valid legal claims
arising from the concurrent or sole negligence of the STATE, its officers, agents, and
employees.
57.To the fullest extent of the law, the GRANTEE shall indemnify, hold harmless and
defend the STATE, its officers, agents and employees against any and all claims,
demands, damages, costs, expenses or,liability costs arising out of the ACQUISITION,
DEVELOPMENT, construction, operation or maintenance of the property described as
the project which claims, demands or causes of action arise under California
Government Code Section 895.2 or otho;rwise except for liability arising out of the
concurrent or sole negligence of the STATE, its officers, agents, or employees..
58.The GRANTEE agrees that in the event the STATE is named as codefendant under
the provisions of California Government Code Section 895 et. seq., the GRANTEE
E►
shall notify the STATE of such fact and shall represent the STATE in the legal action -1
unless the STATE undertakes to represent itself as codefendant in such legal action in
which event the STATE shall bear its own litigation costs, expenses, and attorney's
fees.
59.The GRANTEE and the STATE agree that in the event of judgment entered against the
STATE and the GRANTEE.because of the concurrent negligence of the STATE and
the GRANTEE,their officers, agents, or employees, an apportionment of liability to pay
such judgment shall be made by a court of competent jurisdiction.
60.The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers,
agents and employees against any and all claims, demands, costs, expenses or liability
costs arising out.of legal actions pursuant to items to which the GRANTEE has
certified. The GRANTEE acknowledges that it is solely responsible for compliance with
items to which it has certified.
I. Financial Records
23.The GRANTEE shall maintain satisfactory financial accounts, documents and records
for the project and make them available to the STATE for auditing at reasonable times.
The GRANTEE also agrees to retain such financial accounts, documents and records
for five years following project termination or final payment, whichever is later.
24.The GRANTEE shall keep such records as the STATE shall prescribe, including
records which fully disclose(a)the disposition of the proceeds of GRANT MONIES, (b)
the total cost of the project, (c)the amount and nature of project funds provided by
other sources,.and (d)any other records that will facilitate an effective audit of use of
the GRANT MONIES.
3. The GRANTEE agrees that the STATE shall have the right to inspect and make copies
of any books, records or reports pertaining to this CONTRACT or matters related
thereto during regular office hours. The GRANTEE shall maintain.and make available
for inspection by the STATE accurate records of all of its costs, disbursements and
receipts with respect to its activities under this CONTRACT. Such accounts,
documents, and records shall be retained by the GRANTEE for 5 years following final
payment of GRANT MONIES.
4. The GRANTEE shall use a generally accepted accounting system.
J. Use of Facilities
89.The GRANTEE agrees to operate and maintain any property acquired or developed
with the GRANT MONIES for the duration of the CONTRACT PERFORMANCE
PERIOD.
90.The GRANTEE agrees that during the CONTRACT PERFORMANCE PERIOD, any
income earned by the GRANTEE from a STATE approved non-recreational use of
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the project shall be used for recreational purposes at the project, or, if approved by
the STATE, for recreational purposes within the GRANTEE'S jurisdiction.
91. If the APPLICATION does not specify the days and hours of operation, the facility
will have REASONABLE OPERATING HOURS. The GRANTEE shall request the
STATE'S approval before making any changes to the hours of operation.
92. If the APPLICATION specifies the hours of operation, the facility.shall have operating
hours consistent with the times proposed,in the APPLICATION and be open to
members of the public in accordance with the project selection criteria in the
APPLICATION, unless otherwise.granted permission by the STATE and except as
noted under the special provisions of this CONTRACT or under provisions of the
enabling legislation and/or grant program.
93.The GRANTEE agrees that for the duration of the CONTRACT PERFORMANCE
PERIOD, anyproperty acquired or developed with GRANT MONIES under this
CONTRACT shall be used only for the purposes of the grant and consistent with the
GRANT SCOPE referenced in the APPLICATION unless prior written approval is
given by the STATE.
94.The GRANTEE agrees to use any property acquired or developed with GRANT
MO'N'IES under this CONTRACT only for the purposes of the grant and no other use,
sale, or other disposition shall be permitted except as authorized by a specific act of
the legislature in which event the property shall be replaced by the GRANTEE with
property of equivalent value and usefulness as determined by STATE.
95.The property acquired or developed with GRANT MONIES may transferred to
another eligible entity only if the successor entity assumes the obligations imposed
under this CONTRACT and with written approval of the STATE.
96.Any real property acquired or developed with GRANT MONIES (including any
portion of it or any interest in it) may not be used as security for any debt or
mitigation., without the written approval of the STATE provided that such approval
shall not be unreasonably withheld as long as the purposes for which the GRANT
MONIES were awarded are maintained. Any such permission that is granted does
not make the STATE a guarantor or a surety for any debt or mitigation, nor does it
waive the STATE'S.rights to enforce performance under this CONTRACT.
8. All real property, or rights thereto, acquired with GRANT MONIES shall be subject to
an appropriate form of restrictive title, rights, or covenants required and approved by
the STATE. If the project property is taken by use of eminent domain, GRANTEE
shall reimburse the STATE an amount,at least equal to the amount of GRANT
MONIES received from the STATE or the pro rated full market value of the real
property, including improvements, at the time of sale, whichever is higher.
9. If eminent domain proceedings are initiated against GRANTEE, GRANTEE shall
notify STATE within 10 days of receiving the complaint.
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K. Nondiscrimination
23.The GRANTEE shall not discriminate against any person on the basis of sex, race,
creed, color, national origin,,age, religion, ancestry, sexual orientation, disability,
medical condition, or marital status in the use of property or a specific facility
included in the GRANT SCOPE(S).
24.The GRANTEE shall not discriminate against any person on the basis of residence,
and.shall not apply differences in admission or other fees on the basis of residence.
Fees shall be reasonable and not unduly prevent use by economically
disadvantaged members of the public.
L. Severability
If any provision of this CONTRACT or the application thereof is held invalid, that invalidity
shall not affect other provisions or applications of the CONTRACT which can be given effect
without the invalid provision or application, and to this end the provisions of this contract are i
severable.
U. Liability
STATE assumes no responsibility for assuring the safety of construction, site improvements i
or programs related to the GRANT SCOPE. The STATE'S rights under this CONTRACT to '
review,,inspect and approve the GRANT SCOPE and any final plans of implementation
shall not give rise to any warranty or representation that the GRANT SCOPE and any plans
or improvements are free from hazards or defects.
N. Assignability
Without the written consent of the STATE, the GRANTEE'S interest in and responsibilities
under this CONTRACT shall not be assignable by the GRANTEE either in whole or in part.
O. Section Headings
The headings and captions of the various sections of this CONTRACT have been inserted
only for the purpose of convenience and are not a part of this CONTRACT and shall not be
deemed in any manner to modify, explain, or restrict any of the provisions of this
CONTRACT.
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P. Waiver
Any failure by a party to enforce its rights under this CONTRACT, in the event of a breach,
shall not be construed as a waiver of said rights; and the waiver of any breach under this
CONTRACT shall not be construed as a waiver of any subsequent breach.
City of Cupertino
Gr I�n
By. '- 3�" ( 4 , � C�- k , - Z-9
Si ure of Authorized Representali ve (Position Authorized in the Resolution)
Title: stet- DAv W Kra R,° C ry M A Q ca
Date: < < 2� , 1 t
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