HomeMy WebLinkAbout0193.094M,s.rch 17, .1994
HONORABLE CITY COUNCIL
Palo Alto, California
Meab«rs of the Council:
Report iA ki.,
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This report requests council approval of the attached agreement,
through ~bich the PAHe Apartments, Inc. and the City will enter
into an agreement wherein the City 'Would not build above ground
within a ten-foot strip of land on" Parking Lot A, adjacent to the
Barker Hotel low income rgntal project. The. purpose of the
aqreement is to allow the Palo Alto Housing Corporation (PAHC) to
build additional low-income units.
An April 22, 1993 staff report (CMR:249:9J) outlined PARe's
rehabilitation plan for the Barker Botel low-income housing project
at 435-441 Emerson Avenue. The plan propo~es the installation of
nc~-fire rated windows on the northwesterly side of the building.
Section 2003 of the Uniform Building Code {UBC) prohibits openings
in ext.erior walls less than 10 feet from the property line~ Tile
northwesterly side of the building has no windo~9 and ~as
oriqinally constructed on t~e property line. The city of Palo Alto
owns the adjacent property, whiCh is used for q~ound level parking
and is commonly kno~ as Parking Lot A. PAHC has requested that
the city permanently aqree not to build any above-ground structures
within a ten-foot strip of la~d in order to allow additional low
income housin9 to be built during PAHe's remodel of the Barker
Hotel. Staff believes parkinq Lot A w~uld likely be one of the last
lots to be ronverted to a parking structure; nevertheless. it is
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important to note that as long as this aqreement is in effect, any
above-qrou..'ld structure 'Wculd have to be constructed twenty feet
fr~m the subject property line (the required ten-foot setback plus
the te.n feet covered in this aqreeme.nt). Vnder a separate
agreement between the city and PAHC~ t~e city has t~e right to ta~e
over ~~e Barker project should PARe default on its loan with its
lender. In the unlikely event that PARe defaults on its 10an and
tbG City does not step 1n to take ove~ the. Barker proj..ect, the
lender conceivably could corNert the Barker-to a marKet-rate
facility ~ the City would still be forced to beqin construction
twenty feet from the property line~ This vculd mean the loas of 8
parking spacES on each level ot any parking structure built on the
site~ The agreement would not affect the curren~ parking stalls,
~he number of parkinq sp~ces or any underground usaqe~
The remodel of the Barker Hotel w~s approved by the Architectural
Review Board (ARB) on May 20, 1993 with several conditions
includinq the ~anting of a ten-foot strip of land. In ~ddition,
conditions were imposed upon PARe regarding landscaping and tree
planting.
Agreement
The attached agreement would allow PARe to build the additional
low-incoae units without concern for future City construction
within ten feet ot the Hotel. The agreement would make PAlfC
responsible. for the construction of landscape barriers, irriqation,
trimming and maintenance.
BqViropweDta1 .eview
This agreement represents a continuation ot the same use of an
existing city facility; therefore, it carries a Class I existing
facility exemption under Section 15301 of CEQA.
Staff lego .. epdatioft
Staff recommends that Council approve, and authorize the Mayor to
execute, the attached agreement and any other documents necessary
to complete the transaction.
CMR:193:H 2
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lleal"'''I:.fl.lU Y lSQb .. i t te<l,
~tte-.£~
Milll .. W. Fell.an
Real ~r~party M.~a9$r
~ik*"Q Di't.cto<: C.! l'inallce
Attachm"nt: Agreement
(to: l'AlIC
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Recorded without fee4 Cal.
Government Code § 6103.
ALter recordation. mail to;
City of Palo Alto
Real Estate Division
P.O. Box 10250
Palo Alto, CA 94303
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SPACE ABOVE FOR COur.'TY RECORDER'S USB ONLY
A.F". No.:
AGJtEDlJ!:Nf BBIWBBN CITY OF PALO ALTO
AND UBC APAJt'-'lll!!ll'rS, DIe.
R.B(DJWIlfG COJlD:ITIOlIS~ COVDiUTS, AIm RBSTIlIC'I'IOlfS
(BApXJO BOTBL)
THIS AGREEMEN? dated . 1994, is entered
into by and between the City of Palo Alto~ a municipal corporation
of the Sta~e of california (·City·), and PAHe Apartments. Inc., a
non-profit corporation duly organized and existing under the laws
of the State of California C·?AHC").
I!l!CITl\I,S
WHERBAS , PAHC has entered into a'1l agreemeGt with 498
Univer~ity Avenue partners~ a california partnership t "Developer") ,
to purchase land at 4,37-441 Emerson Street, Palo Alto, County of
Santa Clara, Stat~ of California ("Land"). aod building improve
ments thereon which are commonly referred to as the Barker Hotel
{-Hotel") (collectively. --Property·). AFN 120-26-023, the legal
description of which is more fully set forth in ~~ibit ~A-; and
WBEREAS~ after PAHe acquires title to the property, PAHC
will cause the alteration, renovation, and remodeling of the Hotel,
in~luding the installatio~ of window improvements for fire escape
purposes as required by law in the northwesterly exterior building
wall of the Hotel (·Improvements-) in order that low-income
residential housing units may be constructed in the Hotel. and
WHEREAS, the Uniform Building Code ("UBC") is made a part
of Section 16.04.010 of Chapter 16.04 of Title 1~ of the Palo ~to
Municipal Code, and the UBC (1991 edition) dealing with fire
ratings for openings in exterior building walls of Type III
buildings, of which the Hotel is an example~ prohibits openings in
exterior building walls that are located within ten (10) feet from
the property line; and
WHEREAS~ the City owns the real property and itnprovements
thereon cOiTIDlOnly k.nown as Parking Lot A ("Lot"') adjacent to the
Property, the le9al description of which is more fully set forth in
Exhibit 'B-l'; and
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WHERBAS~ under statutes. laws, cedes, rules, regulations,
and ordinances i • Laws • J now in effect. the construction of the
Improvements would preclude the City from exercising its option to
construct parmanent improvements that are locaced within ten (lO}
feet from the property line dividing the Lot and the Landi and
WHB'RBAS. the City's Architectural Review Board (IIARB-)
approved the design of PAHCiS proposal to construct the Lmprove
mentB~ subject to the condition that construction and mainte~ce
of landaca~in9 within an area within two (2) feet of the property
line dividing the Lot and the Land shall be perfo~~d by PAHe at
its Bole coat and expense, which landscaping requir~n~B are more
fully described in Exhibit ·e ll ; and
WHBkEAS. the Council of the City finds that construction
of low·income residential housing units in the Hotel by PARe is for
the benefit of the general public; and
WHEREAS, the Coun~il is agreeable to limiting its right
to const~Jct en Lot A on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the folloving
provisions, the parties agree:
1. a Unless and until this Agreement is terminated as
provided herein, the City, and its successors, assigns, and
transferees, covenant Dot to erect, const~Jct, build, or fabricate
any per.manent structure, or otherwise institute any use that would
req~ire the removal or alteration of the Improvements as presently
contemplated, within ten {~O) feet of the property line dividing
the Lot and the Land, as described in Exhibit YB·2~. or within such
other distance as may be established under the USC and incorporated
into the Palo Alto Municipal Cede, so long as t"~he Property is used
for low-inc~e residential use purposes by PAHe or as otherwise
provided herein.
1.1 ~~e covenant made herein (YNo-build C~~enant·)
shall not constitute and shall not be construed or
deemed to create or vest in PAHe a fee interest, a
l.easehold interest, an easement~ or a license in
real property owned by City_
1.2 In the event that ownership of the Property~ or any
part thereof, is transferred by foreclosure or deed
in lieu of ~oreclosure, the succe8sor-o~ers of the
Property may enforce the Nc-build Covenant {and allY
other provisions of this Agreement), provided that
such successor-owners use the Property for low
income affordable residential use purposes or for
any purposes permitted under then applicable Laws.
1.3 If PARe or an affiliate of PARe should acquire or
reacquire a majority interest in the Property, or
any part thereof, directly or indirectly, from any
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successor or assign of PARe, and the Property is
not used for low-income a.ffordable residential use
purposes, then the No-build Covenant (and any other
provisions oE this Agreement) shall not be enforce
able against the City, and, at the option of the
City, this ;~greem.ent may be terr.unated_ For
purposes hereof, an affiliate of PAHC shell include
(i) a parent corporation or a subsidiary
corporation of PAHC, and (ii) any other entity
which shares conmon management or control 'With
P.P.HC, including having in common more than one
member who serves on the board of directors or
executive management staff of P;LqC and such entity_
2.0 Unless and until this Agreer.tent is no longer in
effect~ City grants to PARe, and its successors, assigns, and
transferees, a non-exclusive license to enter and reenter ~he Lot
to ~rform its ohljgation to construct and maintain landscaping as
prO'"vided herein.
3_0 Unless and until this
provided herein, PARe, at its sole
respect to Section 3.3, PAHC's
tr~sferees, covenants and agrees:
Agreement is terminated as
cos t and expense, or with
successors, assigns, and
3.~ To perform all obli~ations required
by PARC in connection with its
title to the Property; ana
to be performed
acquisition of
3 _ 2 To comply with all obligations arising under any
agreement that is binding on PAHC and the City.
including those with respect to the own~rship and
operation of the property, and every part thereof,
including~ without limitation, to construct,
ins~all~ maintain, remove, remodel, refurbish, and
take any necessary actione conCerning the Improve
ments and such other improvements on the Property
to operate the Hotel fer low-income affordable
residential use purposes; and
3.3 To plant~ replant, in6tall, construct. weed, clear,
water, irrigate by means of a sprinkler system, and
otherwise maintain landscapi:lg of the type and
quantity specified in Conditions 1 and 2 appearing
on page 1 of that letter~ dated June 22, 1993, from
Lorraine weiss, Cit.y of Palo Alto~ to C_ Thomas
Gilman, DES Architects and Engineers, which page is
attached hereto as Bxhibit RCR, in an area of the
Lot lying ~ithin two (2) feet of the property line
dividing the Lot and the Land, provided, however,
the construction of landscaping and the performance
of landscape maintenance by PARe shall not inter
fere with the operation of the Lot by City.
4.0 Other than thDse provided in Sections 3~1 and 3.2,
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the conditions, covenants, terms, and restrictions of this
Agreement shall run with the lands owned by, and the burdens ~~d
benefits thereof shall be binding upon and st'..all inure to the
Buccessors, assigns, and transferees of. the parties to this Agree·
ment.
5.0 PARe shall be in default of this Agreement, and such
default shall constitute a material breach of this Agreement, if
PARe fails to perfor.m or observe any conditio~, covenant, term, or
restriction made by or imposed upon PAne under this Agreement,
including, with~~t limitation. any condition, covenant, ter.m, or
restriction set forth in Sections 3.1, 3.2, and 3.3 hereof.
S.l PARe shall n~t be de~~d in material breach of this
Agreement for any default. provided that:
Cal PARe cures such default within ten (10) days
after PARe receives written notice specifying
the nature of such default, where the default
consists of the failure to pay money; or
(b) PARe cures such default within thirty (30)
days after PARe receives written notice
specifying the nature of such default l where
the default consists of a failure to perform a
non-monetary obligation, or
{c) Where the non -monetary d~faul t cannot be cured
within the specified time period set forth in
paragraph 5.1(b), PARe has made a good faith
attempt to cure the default and continues
efforts to cure such breach within the
specified time period.
5.2 With respect to the defaults described in Sections
S.l(b) and 5.1(c) hereof~ PARe shall bear the
burden of proof that either the default l"taS been
curea or the attempt to cure and related continuing
efforts have been made to cure such default.
6.0 In the event of a zraterial breach by PABC under this
Agreement, the City. a~ its option, may exercise any and all of the
following rights and remedies .made available to the City under this
Agreement~ or by law.
6.1 Terminate thii9 Agreement only upon the occurrence
of the condition described in Section 1.1.
6.2 Perform any obligation of PARe relating to land
scape maintenance~ provided PAHe is in default of
its obligations thereto and fails to cure the
default as provided herein, and charge PARe for the
actual costs incurred by the City to perform such
obligation in behalf of PAHC. In the perf.:>rma.nce
of only such obligation relating to landscape
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maintenance. the City shall be deemed an agenl and
not an independent contractor of PARCo
6.3 .Perform on behalf of PAHC any other work whtch PAHC
is obligated to perform and charge PARC therefor.
which cost. and expense PAHC agrees to irlV'f1ediately
pay to City~ upon demand.
6.4 Sue for damages.
6.5 Exercise any and all liens rights ic the Property~
including any rights conferred upon City under a
judgmen~ for damages.
7 .. '0 This Agreement shall automatically terminate only if
the City aC~Jires PARe's interests in the Property. PAHe agrees to
cooperate wi th the Ci ty aDd execute any document evidencing such
termination.
a.o PAHC. ~~ its successors, aSBignB~ and transferees,
shall indenmify, defend, -:rnd save harmless City, its cOUDci.l
memoers~ officers. employees, agentB. successors, and assigns, from
and against any and all loss, damage, liability~ expense, claim, or
demand (collectively~ ·Damage9"1~ ariSing; in whole or in part,
dir~ctly or indirectly, from any act or omission of PARC, or its
successors; assigns, or transferees, in connection with any default
or breach by PAHC, or its succe8sors, assign8~ or transferees UDder
this Agreement. Notwithstanding the foregcing, no successor,
assign, or ~ransferee of PARe shall be liable for such Damages in
connection with any default or breach occurring before such
successor, assign, or transferee acquired and occupied the Property
or after such Buccessor, assign, or transferee is no longer the
owner of the Property. Not-hing in this Section 8.0 shall be deemed
a waiver of any rights of any Successor~ aSSignee, or transferee of
PAHC which are made available under Section 1466 of the california
Civil Code. or any other applicable La~~.
9.0 All notices which may be or are req'..lired tOo be giveo
u~der this Agreement shall be in writing and, unless otherwise
provided, shall be served by personal service, by deposit in the
United States mail~ registered and return receipt requested, by
private delivery service, or by fa~simile transmission and
confirmed by the deposit in the U. s. mail of a copy of the
transmission. Service by personal delivery to PAHe shall be deemed
completed when the Executive Director of the palo .Alto Housing
Corporation, or a representative thereof, recei~,.res such notice.
Notices shall be dp.livered to the addresses set forth below. or to
any other address which is noticed by a party, in writing.
PARe: Executive Director
Palo ~LO Housing Corporation
540 Cowper Street, Suite G.
Palo Alto, CA 94301-1906
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Copy to:
City:
Cr:
Firat Nationwide Bank
135 Main Street, 8th FlCOt
San Francisco, CA 94105
ATTN! Community Lending Group
Manager, Real propel."ty
City of Palo Alto
250 Hamilton Avenue
Palo ~to, CA 94301
Manager, Real property
Ci ty of Palo Al to
P. O~ Box 10250
Palo ~to, CA 94303
10. C In the event tr.at a part}· shall institute an action
to secure the other party's performance or to remedy the other
party's failure to perform the cortditions, covenants, terms, or
restrictions under this Agreement, that party shall be entitled to
recover fram the other party reasonable fees and expenses,
including reasonable attorneys' fees (in the case of the City,
whether represented by the City Attorney or by private counsel) and
costs, as may be a~rded by a court of compe~ent jurisdiction.
11.0 The headings of this Agreement shall have DO effect
upon the construction and i:lterpretation of this Agreement.
12.0 This Agreement constitutes the entire agreel'nent
between the parties concerning its subject matter l and there are no
other oral or written agreements between the parties that are not
incorporated in this Agreement.
13.0 If a court of competent jurisdiction finds or rules
that any cov~~ant, term. condition l or restriction of this
Agreement is void or unenforceable I the unaffected provisions of
this Agreement shall remain in effect.
14.0 All exhibits referred to in this Agreement and any
addenda I att.achmentB I and appendices 'Which rray from time lo time be
referred to in any duly executed amendment hereto a=e by such
reference incorporated in this Agreement and shall be deemed a part
of this Agre~~Dt~
15.0 This Agreement shall be recorded with the Recorder
of the County of Santa Clara only after P1L~C acquires title to the
Property, and the obligations of t.he parties lL."lder this A3'ree..~e.nt
shall become binding upon them only upon the recordation of this
Agreement.
16.0 City agrees to cooperate with PARC and any lender
holding a first lien (rLenderW} in order that PARe and any Lender
may obtain title insurance reasonably necessary to insure PARers
and any Lender's interests in this Agreement.
IN WITNESS WHEREOF, the parties have eXEcuted this
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Agreement in Palo Alto, County of Sant.a Clara on the date first
above written.
ATTBST: C!TY OF PALO ALTO
Clerk Mayor
APPROVED AS TO FORM: PAHC APARnlENTS. INC.
Sr. ABet. City Attorney
-h .. f .• "--~ ;.i"-~~le: Executive Dire~----
APPROVED:
City Ma.nagar
Director of Finance
Director of Planning
Risk Manager
Real Property Manager
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Cl!RTIPlCA'l'!! 01' ACDIOWLBIlGKEH'l'
(Civil Code § 11891
STATE OF CALlFOR1IIA
COUNTY OF SANTA CLARA
On Jai}Il'1th.. Ilr, 19o:z:! • before mE!~ Cavnn/l....-J. LtJ..li{1ftl... .• a
notary ~~~ic in and for said County, personally appeared.
'7Wcrff,\L ~r'~I/(if't1r:.~ of PAHC Apartments~ Inc ..
pe onally kno .. n 0 me {or proved to me on t.he basis of
satisfactory evidence) to be the person{s) whose name(s) is/are
subscribed to the within instrument, AGREEMENT BETWEEN CITY OF PALO
ALTO AND PAHC APARTMENTS, ZNC. ReGARDING CONDITIONS, COVENJU."l'S, AND
RESTRICTIONS iBARKER HOTEL) , and acknowledged to me that
he/she/they executed the sa.one in his/her/their authorized
capacity (ies). and that by his/her/their signatIJre {8) OIl the
instrument the person(s), or the entity upon behalf of which the
person's} acted, executed the instrument.
WITNESS my hand and official seal.
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!lXB.IBJ:T • At..
LEGAL DESCRIPTION OF TI!B LAND
The Land des~ribed herein as part of the property is real property
in the City of Palo Alto, County ·:Jf Santa Clara~ State of
california, described as Lollows:
Portion of Lots 12 and 13~ Block 13, as shown on the Map of the
Mills Subdivision of Slock 13 in the town of university Park,
reco~ded Februa~y 2S, 1889 in Book D of ¥~ps, page 71, Santa Clara
County Records, described as follows:
Beginning in the Northeasterly line of Emerson Street, distant
ther~on 150 feet Northwesterly from the point of intersection of
the Northeasterly line of Emerson Street, with the Northwesterly
line of University Avenue; thence continuing Northves~erly along
t.be Northeasterly line of Emerson St.ree-:.. 50 feet; thence at right
angles Northeasterly 95 f~et; thence at right angles Southeasterly
so feet; thence at right angles Southwesterly 95 teet. to the
Northeasterly line of Emerson Street, and the point of begi~ing.
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LBGAL DBSCRIPTION OF THE LOT
The Lot described herein i8 real property in t-he City of Palo Alt.o l
County of Santa Clara, State of California, described as follows:
Portion of Lot 14, Block 13. as shown on the Map of the Mills
Subdivision of Block 13 in the town of University park, recorded
Februar.l 28, 1889 in Book D of Maps .. page 71. Santa Clara County
Records J described as tollows:
~uat area measu=ing ninety-five feet long and teD feet wide lying
in the Southeaeterly portion of that real property transferred to
tha City of Palo Alto by Charlotte Linden Marvin, and recorded __ __
in Bock 1792 of Official Records of Santa Clara
County, pages 16 and 17,
[metes and bounds description to be supplied by City of Palo ~to)
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EXHIBIT B-2 ___ ~--------~~"---;.)----------"-"----------,
399 BR'ADf-QRD STREET D1 R
~Ei}WQ~D CIN, CA 940fi!l ~
SCA:i: , NO' PROJECT, PLAT OF
O ... WN BY, J, A. J AGIlEEMENT AIlEA FOR THE
'<ONE "5-'64-645' AIlCHITECTS
FAX 415-JS"'25IS ~ RlYlEVi[D BY : S.O.~. BBNIPIT OF THE BARK.ER. HOTEL
~ OATE ,.A'le" 15,1994 PALO ALTO, CA BNGINE'U.S
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EX.HIBIT I'C~
Jun~ 22, 1993
~Ir. C. lhomoOls Gilman
DES Arc.hitt-cts &. [r.gineers
399 Br!dford Street
Redwood (ity. CA 94063
Dear Hr. Gilman:
'-..Lt.) yo, '_ (.UV.L ·UlV
[;iep:rln",,("--'!'wming and ' _
OmL'1I1 mit~, . viIT/IIment
The Director (If Planni~g and Community £nvircnmcr,t, upon
reCOrt1i'i1en-::iatioll of the Architectural Revlew Board =~ its meeting of
)_~ 1993 has approved the following app1ic.atic-n p.:r the p1,am
submitted for review, a~d subject to the followlrg conditions.
437-43S Emerson Street
Eiirker !~olei
92-/'1.8-36
Revised' pTans per pr~vious .~.J:8 approva1 c{lnditio~s incluGillg north
elev.at'fon wines, ..... resolution and awning design for the S.ad'.E:r Hote.
COIWlTlONS
]. T~e tre.-2. l'~ell s 511 .. 1.1 be-pl antc'j I-iith {j-.'E Acer japo:":ica
"Bloodgo(,d" 15-S-ll1oil .l,ize tr-E€'S, one in each tree-~.-ell,
(double stake t)"ees at minimum helght t9 sup;crt the tree)
three f':2t from the curb faci:1£: park; ng too .acccli1:r,oG'ate ,:iJto
{"/~r(,ang. The 1.H,dsc,)p~ areas shall be f"ulr:J:;;:rj 2-;nrr,es 't,'ith
5~al1 1/2:inch firbark. The planters shall be filled with one
gailon Kurume j!,za1eas, "SI"1C1";" or nWcrd's Fie,hy" or ~H€xe·
~lanted on 16-inch centers alopg curb, 12-inches in fl"cm irs[~e
f2ce of t~e curb_ Soil beneath the tree root balls ~ust te
::c,::-,pact~d to pl-e' .. ent settling. Trees shall b2 plcntcd 2-ir,di€:>
abC'v€ gr«dE:.
2. A sprinkler system shall be installed in "the t~ec \19115 to
water plant m3terial.
3. [yebro .... 's, similar tc tho$e {I~I th,", front windr-J',iS, s,"ali be
placed c~~r the openi~g of the parking lot si~c of the
bLI; ldi 11<:"1·
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ElI1-!IBIT D
PROPERTY DESCRIPTION
OF
AGREEMENT AREA
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FOR THE BENEFIT OF THE BARKER HOTEL
AU that rea! property lying in !he City of Palo Al.o, Coun.y of Santa Clara, Slate of
California, and being a portion of Lot 14 as s..l}own O:rl that parti~ular Map of the Mitis
Subdivision ofBtock 13 in the town of University Park. fe(:orded February 2B. 1889 in the
Santa Clara County Records in Book D of Maps at page 71, and more pa.."'ticularly
~escnCed as follows,
The southeasterly 10 feet of all that real property transferred to the City of Palo Al!o by
Charlotte L Lrlden Marvin, and recorded in Book 1792 of Official Records of Santa C !a.ra
County at pages 16 and 17. Said non-buildahle area is shown on the at'.ached. map, made a
part hereof.
Signed, ___ -="""''''''C;c;::
ReE 33341
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