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HomeMy Public PortalAboutResolution - 02-48- 20021211 - POST Purchase (2) RESOLUTION NO. 02-48 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT, ,AUTHORIZING OFFICER TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT TO DISTRICT, EXECUTE RESERVATION OF CONSERVATION EASEMENT AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION(SIERRA AZUL OPEN SPACE PRESERVE—LANDS OF POST) The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement between Peninsula Open Space Trust and Midpeninsula Regional Open Space District, a copy of which is attached hereto and by reference made a part hereof, and authorizes the President or appropriate officers to execute the Agreement on behalf of the District. Section Two. The President of the Board of Directors, or other appropriate officer, is authorized to execute the Reservation of Conservation Easement on behalf of the District and a Certificate of Acceptance for the Grant Deed on behalf of the District. Section Three. The General Manager of the District shall cause to be given appropriate notice of acceptance to the seller. The General Manager and General Counsel are further authorized to approve any technical revisions to the attached Agreement and other transactional documents which do not involve any material change to any term of the Agreement or other transactional documents, which are necessary or appropriate to the closing or implementation of this transaction. Section Four. The General Manager of the District is authorized to expend up to $20,000.00 to cover the cost of tide insurance, escrow fees, permitted POST ownership costs and other miscellaneous costs related to this transaction. Section Five. It is intended, reasonably expected, and hereby authorized that the District's general fund will be reimbursed in the amount of$1,000,000 from the proceeds of the next long-term District note issue. This Section of this Resolution is adopted by the Board of Directors of Midpeninsula Regional Open Space District solely for purposes of establishing compliance with the requirements of Section 1.103-18 of the Treasury Regulations. The reimbursement of this payment expenditure is consistent with the District's budgetary and financial circumstances. There are no funds or sources of moneys of the District that have been, or are reasonably expected to be, reserved or allocated on a long-term basis, or otherwise set aside to pay the costs of this open space land acquisition project which are to be paid or reimbursed out of proceeds of indebtedness to be issued by the District. The Board of Directors hereby declares the District's official intent to use proceeds of indebtedness to reimburse itself for this open space land acquisition project expenditure. RESOLUTION No. 02-48 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on December 11, 2002, at a Regular Meeting thereof, by the following vote: AYES: D . Little , P . Sienens , ti . Davey , J . Cyr , L . Hassett , K . 1litz ^1 . Hanko NOES: f!o n e ABSTAIN: fJ o n e ABSENT: fl o n e ATTEST: f1 o n e APPROVED: - I f Secret*of President Board Directors Board of Directors I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct copy of a resolution duly adopted by the Board of Directors of the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. Dist r' erk Purchase Agreement Page 1 PURCHASE AGREEMENT This Agreement is made and entered into by and between PENINSULA OPEN SPACE TRUST, a California non-profit, public benefit corporation, hereinafter called "POST", and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a public district formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code, hereinafter called "District." RECITALS WHEREAS, POST was organized as a non-profit, charitable corporation to solicit, receive and hold gifts, legacies, devises and conveyances of real and personal property for public park, conservation and open space purposes, all in a manner complementary to activities of District; and WHEREAS, the property, assets, profits and net income of POST are irrevocably dedicated to said purposes and no part of the profits or net income of POST shall ever incur to the benefit of any individual; and WHEREAS, POST is the owner of certain real property which has open space and recreational value located within an unincorporated area of the County of San Mateo, and being more particularly described within the body of this Agreement; and WHEREAS, District was formed by voter initiative to solicit and receive conveyances of real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic and open space purposes; and WHEREAS, District desires to purchase said property for open space preservation and as part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and WHEREAS, POST out of desire to promote public welfare, and share the natural and scenic beauty and enjoyment of their property with the citizens of the Midpeninsula area, hereby agrees to sell and convey the entirety of said property to District, and District 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. POST agrees to sell to District and District agrees to purchase from POST, POST's real property located within an unincorporated area of the County of Santa Cruz, State of California, containing approximately four hundred ninety-three Purchase Agreement Page 2 (493) acres, more or less, and commonly referred to as Santa Cruz County Assessor's Parcel Numbers 098-141-010 and 011. Said real property is further described in the Legal Description attached to Preliminary Report number 09490218 from Santa Cruz Title Company dated September 3, 2002. A copy of said preliminary report is attached hereto as Exhibit "A", and incorporated herein by this reference. 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. All of said real property and appurtenances shall hereinafter be called the "Subject Property" or the "Property." A. POST shall reserve a conservation easement over the Property for open space preservation, natural resource protection and public access in the form of a Grant Deed Subject to Reservation of Conservation Easement attached hereto as Exhibit "B", and incorporated herein by this reference. B. Dedication . District shall dedicate its interests and or rights in the Subject Property in accordance with Section 5540 of the Public Resources Code of the State of California. 2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be One Million and No/100 Dollars ($1,000,000.00), which shall be paid in cash at the "Closing" as defined in Section 3 hereof. 3. Escrow. Promptly upon execution of this Agreement, in accordance with Section 11 herein, an escrow shall be opened at Santa Cruz Title Company, 201 River Street, Santa Cruz, CA 95060 (831) 426-9090 (Escrow number 09490218) or other title company acceptable to District and POST (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 execute such additional supplementary or customary escrow instructions as Escrow Holder may reasonably require. This Agreement may be amended or supplemented by explicit additional escrow instructions signed by the parties, but the printed portion of such escrow 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, with the following terms and conditions to apply to said escrow: A. The time provided for in the escrow for the close thereof shall be on or before December 31, 2002; 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 below) to be recorded in the Office of the County Recorder of Santa Cruz County. Purchase Agreement Page 3 B. POST and District 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. C. POST shall deposit into the escrow on or before the Closing an executed and recordable Grant Deed Subject to Reservation of Conservation Easement, in the form attached hereto as Exhibit "B". D. District shall deposit into the escrow, on or before the Closing: (i) The required Certificate of Acceptance for the Grant Deed Subject to Reservation of Conservation Easement, duly executed by District and to be dated as of the Closing; (ii) District's check payable to Escrow Holder in the amount of One Million and No/100 Dollars ($1,000,000.00). E. District shall pay the escrow fees, the CLTA Standard Policy of Title Insurance, if required by District, and all recording costs and fees. All other costs or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between District and POST in the manner customary in Santa Clara County. All current property taxes on the Property shall be pro-rated through escrow between District and POST as of the Closing based upon the latest available tax information using the customary escrow procedures. F. POST shall cause Santa Cruz Title Company, or other title company acceptable to District and POST, to be prepared and committed to deliver to District, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of $1,000,000.00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes; (ii) exceptions numbered 3, 4 and 7 as listed in Preliminary Report No. 09490218 dated September 3, 2002; and (iii) such additional title exceptions as may be approved in writing by District prior to the Closing as determined by District in its sole and absolute discretion. G. 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 Subject to Reservation of Conservation Easement and attendant Certificate of Acceptance to be recorded in the Office of the County Recorder of Santa Cruz County. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to POST Escrow Holder's check for the full purchase price of the Subject Property (less POST's portion of the expenses described in Section 3.E.), and to District or POST, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as Purchase Agreement Page 4 provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 4. 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. 5. POST's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, POST makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District. A. Authority. POST has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. B. Valid and Binding Agreements. This Agreement and all other documents delivered by POST to District now or at the Closing have been or will be duly authorized and executed and delivered by POST and are legal, valid and binding obligations of POST sufficient to convey to District the Subject Property described therein, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which POST is a party or by which POST may be bound or any articles, bylaws or corporate resolutions of POST. 6. Waiver of Relocation Benefits and Statutory, Compensation. POST and District understand and agree that POST may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91- 646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246- 256) (42 U.S.C. '4601 et seq.), and the California Relocation Assistance Act, Government Code Section 7260 et seq. POST hereby waives any and all existing and/or future claims or rights POST may have to any relocation assistance, benefits, procedures, or policies as provided in said laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. POST has been advised as to the extent and availability of such benefits, procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights and notice periods except as set forth in this Agreement, including the fair market value of said Property. 7. Miscellaneous Provisions. Purchase Agreement Page 5 A. Access for Investigations. From the date POST delivers an executed copy of this Purchase Agreement to District and until the Closing, District and District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") may, upon the giving of reasonable advance written notice to POST, enter upon the Property for the purpose of inspecting, testing and evaluating the same; provided, however, that District may not perform any work on the Property without POST's prior written consent, which shall not be unreasonably withheld or delayed and further provided that District shall give POST at least 24 hours prior notice of each proposed entry by District. District shall indemnify, protect, defend and hold POST 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 District Parties while upon the Property prior to the Closing; provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from District's discovery of any Hazardous Substance or other pre-existing adverse conditions pursuant to its inspections, testing or evaluation. District's inspections shall be at District's sole expense. District shall repair any damage to the Property that may be caused by the District Parties while on the Property performing its inspections. B. 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. C. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may: (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 General Manager is authorized to agree to an extension of the time for the performance of any obligations on the part of District or POST pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. D. 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. Purchase Agreement Page 6 E. 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 by telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as follows: POST: Peninsula Open Space Trust 3000 Sand Hill Road Bldg. #4, Suite 135 Menlo Park, CA 94025 Attn: Audrey Rust, President TEL: (650) 854-7696 FAX: (650) 854-7703 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager TEL: (650) 691-1200 FAX: (650) 691-0485 If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or cabled 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 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 when prompt notification is appropriate, but any oral notice given shall not satisfy the requirement of written notice as provided in this Section. F. Severabili!y. 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. The parties further agree to replace such void or unenforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions. Purchase Agreement Page 7 G. 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. H. 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 farther or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. I. 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. J. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. K. Survival of Covenants. All covenants of District or POST 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. L. 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. M. 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. N. 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. O. 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. Purchase Agreement Page 8 P. 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. Q. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof, the parties agree first to participate in non- binding mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through mediation, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by arbitration. The parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et. seq. including the right to discovery. Hearings shall be held in Santa Clara or San Mateo County, California. If the parties are unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION. J POST INITIAL �� DISTRICT INITIAL / w 8. Acceptance. Provided that this Agreement is executed by POST and 2efifiered to District on or before December 9, 2002, District shall have until midnight December 18, 2002 to accept and execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by POST to sell and convey the Property to District 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 District. Purchase Agreement Page 9 Provided that this Agreement is accepted by District, this transaction shall close as soon as practicable in accordance with the terms and conditions set forth herein. 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 District in accordance with the terms hereof. DISTRICT: POST: MIDPENINSULA REGIONAL OPEN PENINSULA OPEN SPACE TRUST, SPACE DISTRICT a California non-profit, public benefit Corporation I � ACCEPTED FOR RECOMMENDATION CAudrey C. Rust,' resident Michael C. Williams, Real Property J Date: Z4 Representative APPROVED AS TO FORM: Susan M. Sc man, General Counsel R -CO ED F R AP L. Craig Britton, General Manager APPROVED AND ACCEPTED: President, Board of Directors ATTEST: Distric rk Date: /' G' PRELIMINARY REPORT SANTA CRUZ TITLE COMPANY RI 201 River Street,Santa Cruz,CA 95060(831)426-90901 FAX(831)426-8511 ❑ 223 River Street#C,Santa Cruz,CA 95060(831)466-1974/FAX(831)471-0990 ❑ 830 Bay Avenue,#A,Capitola,CA 95010(831)479-9229/FAX(831)479-3641 ❑ 1955 41st Avenue,#A-5, Capitola, CA 95010(831)476-5000/FAX(831)476-1647 ❑ 4340 Scotts Valley Dr.#A,Scotts Valley,CA 95066(831)438-4200/FAX(831)438-5369 ❑ 9055 Soquel Drive,Aptos,CA 95003(831)688-9566/FAX(831)688.8625 ❑ 1820 Main Street,Watsonville,CA 95076(831)724-8804/FAX(831)724-2633 ❑ 1541 Pacific Avenue,#D,Santa Cruz,CA 95060 (831)426-1711 /FAX(831)427-3217 September 11,2002 IMPORTANT WHEN REPLYING REFER TO Santa Cruz Title Company OUR NO.: 09490218 ALK ATTENTION: Andrea Kisling Escrow Officer YOUR NO.: PROPERTY: Unimproved In response to the above referenced application for a Policy of title insurance, Santa Cruz Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance, describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien, or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules,Conditions and Stipulations of said policy forms. The printed Exceptions and Exclusion from coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available frCm the office which issued this Report. PLEASE READ THE EXCEPTIONS SHOWN OR REFERRED TO BELOW AND THE EXCEPTIONS AND EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS AND EXCLUSIONS ARE MEANT TO PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED UNDER THE TERMS OF THE TITLE INSURANCE POLICY AND SHOULD BE CAREFULLY CONSIDERED. IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN REPRESENTATION AS TO THE CONDITIONS OF TITLE AND MAY NOT LIST ALL LIENS,DEFECTS,AND ENCUMBRANCES AFFECTING TITLE TO THE LAND. This report(and any supplements or amendments thereto)is issued solely for the purpose of facilitating the issuance of a Policy of Title Insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a Policy of Title Insurance,a Binder or Commitment should be jq�� Dated as of September 3,2002 at 7:30 a.m. Harold Wishard,Title Officer The form of Policy of Title Insurance contemplated by this Report is: C.L.T.A Coverage Policy-1990 The estate or interest in the land hereinafter described or referred to covered by this Report is: A FEE AS TO PARCEL ONE AND AN EASEMENT AS TO PARCEL TWO Title to said estate or interest at the date hereof is vested in: Peninsula Open Space Trust,a California Non-Profit Public Benefit Corporation At the date hereof exceptions to overage in addition to the printed exceptions and exclusions contained in said policy form would be as follows: See Exceptions Page One. t-n der Number: 09490218 ALK 1. GENERAL AND SPECIAL COUNTY(AND CITY)TAXES, A LIEN NOT YET DUE OR PAYABLE, FOR THE FISCAL YEAR : 2002-2003 PARCEL NO. 098-141-10 098-141-11 2. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 3.5(COMMENCING WITH SECTION 75)OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA. 3. RIGHTS OF THE PUBLIC IN THAT PORTION OF SAID PROPERTY LYING WITHIN ANY AND ALL COUNTY MAINTAINED ROADS OR HIGHWAYS 4. THE EFFECT OF THAT CERTAIN DECREE ENTERED IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR SANTA CRUZ COUNTY, CASE NUMBER 57081, FILED BY THE CALIFORNIA STATE WATER RESOURCES CONTROL BOARD RECORDED MARCH 14, 1977 IN BOOK 2731, PAGE 581 OFFICIAL RECORDS OF SANTA CRUZ COUNTY CONCERNING RIPARIAN AND OTHER WATER RIGHTS WITHIN THE SOQUEL CREEK STREAM SYSTEM REFERENCE IS HEREBY MADE TO THE RECORD FOR FULL PARTICULARS. 5. A GRANT AND RESERVATION OF EASEMENTS/GRANT AND RESERVATION OF PROFITS EXECUTED BY THE CHY COMPANY AND PELICAN TIMBER COMPANY, BOTH CALIFORNIA GENERAL PARTNERSHIPS RECORDED JUNE 15, 1979 IN BOOK 3070, PAGE 325 OFFICIAL RECORDS OF SANTA CRUZ COUNTY AND RE-RECORDED JULY 5, 1979 IN VOLUME 3078, PAGE 560 WHEREIN SAID PARTIES CONVEY TO EACH OTHER CERTAIN PROFITS AND EASEMENTS APPURTENANT THERETO, A SPECIFICALLY DESCRIBED THEREIN. AFFECTS REFERENCE IS HEREBY MADE TO THE RECORD FOR FULL PARTICULARS 6. THE TERMS, COVENANTS AND PROVISIONS, RELATIVE TO THE MATTERS STATED HEREIN, OF AN AGREEMENT DATED : 1992 EXECUTED BY PELICAN TIMBER COMPANY, A CALIFORNIA GENERAL PARTNERSHIP AND ROGER A. BURCH, A MARRIED MAN RELATIVE TO ALLOCATION AND INDEMNITY CONCERNING EASEMENTS RECORDED DECEMBER 8, 1992 IN VOLUME 5164, PAGE 908 OFFICIAL RECORDS OF SANTA CRUZ COUNTY INSTRUMENT NO. : 93009 Continued Exceptions Page 1 . ,jer Number: 09490218 ALK 7. THE TERMS, COVENANTS AND PROVISIONS, RELATIVE TO THE MATTERS STATED HEREIN, OF AN AGREEMENT DATED AUGUST 9,1 996 EXECUTED BY COUNTY OF SANTA CRUZ, PETE PARKINSON/ PRINCIPAL PLANNER RELATIVE TO UNCONDITIONAL CERTIFICATE OF COMPLIANCE AND FURTHERMORE, THIS CERTIFICATION OF COMPLIANCE SHALL NOT CONSTITUTE A DETERMINATION THAT SAID PARCEL IS BUILDABLE OR IS ENTITLED,TO A BUILDING PERMIT OR OTHER DEVELOPMENT APPROVAL WITHOUT COMPLIANCE WITH THE PROVISIONS OF ALL OTHER SANTA CRUZ COUNTY ORDINANCES AND REGULATIONS RECORDED AUGUST 22, 1996 IN VOLUME 5895, PAGE 909 OFFICIAL RECORDS OF SANTA CRUZ COUNTY NOTES A. NO TRANSFER OR AGREEMENTS TO TRANSFER THE PROPERTY DESCRIBED HEREIN APPEAR OF RECORD WITHIN TWENTY-FOUR MONTHS OF THE DATE OF THIS REPORT. TITLE OF THE VESTEE HEREIN WAS ACQUIRED BY INSTRUMENT GRAN'DEED FROM PELICAN TIMBER COMPANY,A CALIFORNIA GENERAL PARTNERSHIP TO PENINSULA OPEN SPACE TRUST, A CALIFORNIA NON-PROFIT PUBLIC BENEFIT CORPORATION RECORDED DECEMBER 2, 1999 OFFICIAL RECORDS OF SANTA CRUZ COUNTY INSTRUMENT NO. 1999-0075783 B. LAST INSURED DATE DECEMBER 12, 1999 C. THE FOLLOWING IS SHOWN FOR TAX PRORATION PURPOSES ONLY. THE INSTALLMENTS SHOWN HEREUNDER ARE PAID IN FULL UNLESS OTHERWISE SHOWN IN THIS REPORT AS A NUMBERED EXCEPTION. GENERAL AND SPECIAL COUNTY(AND CITY)TAXES, INCLUDING PERSONAL PROPERTY TAX, IF ANY FOR THE FISCAL YEAR 2001-2002 LAND VALUATION $765,000.00 IMPROVEMENT VALUATION $-0- PERSONAL PROPERTY $-0- EXEMPTIONS $-0- CODE AREA NO. 79-032 PARCEL NO. 098-141-10 1 ST INSTALLMENT $4,031.16 2"° INSTALLMENT $4,031.16 Continued Exceptions Page 2 order Number: 09490218 ALK C. CONTINUED THE FOLLOWING IS SHOWN FOR TAX PRORATION PURPOSES ONLY. THE INSTALLMENTS SHOWN HEREUNDER ARE PAID IN FULL UNLESS OTHERWISE SHOWN IN THIS REPORT AS A NUMBERED EXCEPTION. GENERAL AND SPECIAL COUNTY(AND CITY)TAXES, INCLUDING PERSONAL PROPERTY TAX, IF ANY FOR THE FISCAL YEAR 2001-2002 LAND VALUATION $255,000.00 IMPROVEMENT VALUATION $-0- PERSONAL PROPERTY $ -0- EXEMPTIONS $-0- CODE AREA NO. 79-032 PARCEL NO. 098-141-11 1ST INSTALLMENT $1,422.51 2ND INSTALLMENT $1,422.51 D. THE FOLLOWING APPEAR AS APPURTENANCES, OR APPEAR AS AN APPURTENANCE, TO THE HEREIN DESCRIBED LANDS,AND THE PRINCIPALS HERETO MAY REQUEST THAT THE SAME BE INCLUDED, WITHOUT LIABILITY TO THIS COMPANY, AS A PART OF THE DESCRIPTION IN ANY CONVEYANCE OR ENCUMBRANCE OF SAID LANDS: PARCEL THREE: RIGHTS CONTAINED IN THAT CERTAIN "GRANT AND RESERVATION OF EASEMENTS/GRANT AND RESERVATION OF PROFITS", EXECUTED BY THE CHY COMPANY AND PELICAN TIMBER COMPANY, RECORDED JUNE 15, 1979 IN BOOK 3070, PAGE 325, AND RE-RECORDED JULY 5, 1979, IN BOOK 3078, PAGE 560, OFFICIAL RECORDS OF SANTA CRUZ COUNTY E, THE DIVISION OF CORPORATIONS OF THE STATE OF CALIFORNIA HAS PROVIDED THIS COMPANY WITH THE FOLLOWING INFORMATION REGARDING THE CORPORATE STATUS OF : PENINSULA OPEN SPACE TRUST STATUS ACTIVE F. THE POLICY OR POLICIES OF TITLE INSURANCE CAUSED TO BE ISSUED IN THIS TRANSACTION WILL BE ISSUED BY ONE OF OUR AUTHORIZED UNDERWRITERS. G. NOTE: THE ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE (10-17-98) CONTAINS SPECIFIC DEDUCTIBLE AMOUNTS AND SPECIFIC LIABILITY MAXIMUMS FOR COVERED RISK NUMBERS 14, 15, 16 AND 18 OF SAID POLICY THAT HAVE BEEN FILED AND APPROVED BY THE VARIOUS DEPARTMENTS OF INSURANCE WHERE THE FORMS HAVE BEEN FILED. PLEASE CONSULT WITH YOUR ESCROW OR TITLE OFFICER IF YOU HAVE QUESTIONS REGARDING THE POLICY. WKG/sla Continued Exceptions Page 3 der Number: 09490218 ALK EXHIBIT"A" The land referred to herein is described as follows: SITUATE IN THE COUNTY OF SANTA CRUZ, STATE OF CALIFORNIA AND DESCRIBED AS FOLLOWS: PARCEL ONE: BEING PART OF THE LANDS CONVEYED TO PELICAN TIMBER COMPANY BY DEED DATED MAY 17, 1979 AND RECORDED JUNE 15, 1979 IN BOOK 3070 OF OFFICIAL RECORDS AT PAGE 400, SANTA CRUZ COUNTY RECORDS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO WIT: BEGINNING AT THE SOUTHEASTERN CORNER OF PARCEL "A", AS SAID PARCEL IS SHOWN ON THAT MAP ENTITLED "PARCEL MAP OF 200 +/- ACRE PART OF THE C.H.Y. COMPANY" FILED IN VOLUME 33 OF PARCEL MAPS AT PAGE 49, SANTA CRUZ COUNTY RECORDS. THENCE FROM SAID POINT OF BEGINNING, ALONG THE SOUTHERN BOUNDARY OF SAID PARCEL "A", NORTH 74 DEGREES 31'WEST 267.69 FEET TO A 1/2 INCH IRON PIPE TAGGED LS 3666 AT AN ANGLE THEREIN; THENCE NORTH 53 DEGREES 52' 40" WEST 2214.86 FEET TO A 1/2 INCH IRON PIPE TAGGED LS 3666 AT AN ANGLE THEREIN; THENCE NORTH 82 DEGREES 34' 40" WEST 1832.50 FEET TO A 112 INCH IRON PIPE TAGGED LS 3666 AT AN ANGLE THEREIN; THENCE NORTH 81 DEGREES'00' WEST 261.41 FEET TO A 1/2 INCH IRON PIPE TAGGED LS 3666 AT AN ANGLE THEREIN; THENCE NORTH 83 DEGREES 29' WEST 662.95 FEET TO A 1/2 INCH IRON PIPE TAGGED LS 3666 AT AN ANGLE THEREIN; THENCE NORTH 86 DEGREES 01' WEST 491.00 FEET, MORE OR LESS, TO A 1/2 INCH IRON PIPE TAGGED LS 3666 AT THE SOUTHWESTERN CORNER OF SAID PARCEL "A" ON THE EASTERN BOUNDARY OF THE LANDS OF G. L. CRITTENDEN BY DEED RECORDED IN VOLUME 1844 OF OFFICIAL RECORDS AT PAGE 181, SANTA CRUZ COUNTY RECORDS; THENCE SOUTHERLY ALONG SAID EASTERN BOUNDARY OF THE LANDS OF CRITTENDEN, AS SHOWN ON THAT CERTAIN MAP FILED IN VOLUME 62 OF MAPS AT PAGE 66, SANTA CRUZ COUNTY RECORDS, SOUTH 2 DEGREES 14' WEST 2741.8 FEET, MORE OR LESS, TO THE CENTER OF HIGHLAND WAY, A COUNTY ROAD, AS NOW TRAVELLED; THENCE LEAVING SAID EASTERN BOUNDARY OF CRITTENDEN, SOUTHEASTERLY, ALONG THE CENTER OF SAID ROAD, 4285 FEET MORE OR LESS, TO THE NORTHWESTERN CORNER OF THE LANDS CONVEYED TO QUIN H. HILL BY QUITCLAIM DEED RECORDED AUGUST 13, 1991 IN VOLUME 4882 OF OFFICIAL RECORDS AT PAGE 807, SANTA CRUZ COUNTY RECORDS; THENCE SOUTHEASTERLY, CONTINUING ALONG THE CENTERLINE OF SAID ROAD, ALONG THE NORTHERN BOUNDARY OF SAID LANDS OF QUIN SOUTH 67 DEGREES 40' EAST 22.70 FEET TO AN ANGLE THEREIN; THENCE SOUTH 18 DEGREES 58' EAST 143.00 FEET TO AN ANGLE THEREIN; THENCE SOUTH 41 DEGREES 15' EAST 554.97 FEET TO AN ANGLE THEREIN; THENCE SOUTH 32 DEGREES 03' EAST 285.76 FEET TO AN ANGLE THEREIN; THENCE SOUTH 72 DEGREES 07' EAST 108.01 FEET TO AN ANGLE THEREIN; THENCE NORTH 65 DEGREES 51' EAST 153.22 FEET TO AN ANGLE THEREIN;THENCE SOUTH 69 DEGREES 53' EAST 16.87 FEET TO AN ANGLE THEREIN; THENCE SOUTH 43 DEGREES 37' EAST 452.5 FEET TO AN ANGLE THEREIN; THENCE NORTH 89 DEGREES 50' EAST 203.17 FEET TO AN ANGLE THEREIN; THENCE SOUTH 63 DEGREES 47' EAST 86.11 FEET, MORE OR LESS, TO A POINT ON THE EASTERN BOUNDARY OF THE SOQUEL AUGMENTATION RANCHO; THENCE NORTHERLY ALONG THE EASTERN BOUNDARY OF THE SOQUEL AUGMENTATION RANCHO, NORTH 2 DEGREES 28' EAST 4440.9 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. urder Number: 09490218 ALK EXHIBIT"A"-continued PARCEL TWO: A 40 FOOT RIGHT OF WAY FOR INGRESS AND EGRESS OVER PARCEL A, AS SAID PARCEL AND RIGHT OF WAY ARE SHOWN AND DESIGNATED ON THAT CERTAIN PARCEL MAP FILED FOR RECORD AUGUST 23, 1979 IN VOLUME 33 OF PARCEL MAPS, PAGE 49, SANTA CRUZ COUNTY RECORDS. APN: 098-141-10 098-141-11 Exhibit B Midpeninsula Regional Open Space District DULY RECORDED WITHOUT FEE 330 Distel Circle Pursuant to Government Code Sections 6103, 27383 Los Altos, CA 94022 Attn: Michael Williams BY: NO TRANSFER TAX DUE PUBLIC AGENCY ACQUIRING TITLE, CALIFORNIA REVENUE AND TAXATION CODE SECTION 11922 GRANT DEED SUBJECT TO RESERVATION OF CONSERVATION EASEMENT For Valuable Consideration, receipt of which is hereby acknowledged, PENINSULA OPEN SPACE TRUST, a California non-profit public benefit corporation Hereby GRANTS to MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code The following described real property in the County of Santa Cruz, State of California: Being more particularly described in Exhibit "I" as attached hereto and incorporated herein by this reference. RESERVING THEREFROM, a Conservation Easement as set forth in Exhibit "11", attached hereto and incorporated herein by this reference. COUNTY OF PENINSULA OPEN SPACE TRUST On before me, Personally appeared By: G personally known to me-OR.G proved to me on the basis of satisfactory evidence Audrey Rust, President STATE OF CALIFORNIA to be the person(s)whose names) is/in subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capacity(ies), and that by hisiber/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the insurtunent. WITNESS my hand and official seal. EXHIBIT II RESERVATION OF CONSERVATION EASEMENT RECITALS WHEREAS, the Peninsula Open Space Trust("POST") is a private non-profit organization, existing under section 501(c)(3) of the United States Internal Revenue Code and having among its principal charitable purposes the preservation of land for scenic, open space and low intensity recreational purposes; and WHEREAS, the Midpeninsula Regional Open Space District("DISTRICT") is a public agency organized pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resource Code for the purpose of acquiring, holding and managing real property as public open space, for public recreation, natural resource protection, and compatible agriculture; and WHEREAS, POST is the legal owner of the fee interest in real property in the County of Santa Cruz, State of California, known as the"Loma Prieta Ranch Property"consisting of that certain 493 acres, more or less, of open space land hereinafter called the "Conservation Property"as more particularly described in said Exhibit"I", and POST is conveying the Conservation Property to District pursuant to that certain Purchase Agreement dated ; and WHEREAS, DISTRICT and POST recognize the special natural, scenic and cultural qualities of the Conservation Property and have the common purpose of protecting these qualities by a Reservation of Conservation Easement in favor of POST. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, POST hereby reserves this Conservation Easement("Easement") upon, over and across the Conservation Property as described in said Exhibit"I"upon the following terms and conditions: 1. PURPOSE The purpose of the Easement is to reserve in perpetuity the natural scenic and cultural la � r � I? Y , qualities of the Conservation Property while allowing public recreational use where appropriate and consistent with DISTRICT policies for use and management of its open space lands. DISTRICT activities on the Conservation Property are restricted by this Easement to prevent any use that will significantly impair or interfere with the natural, scenic, and cultural values. 2. RESTRICTIONS ON USE BY DISTRICT DISTRICT covenants and agrees for itself and its successors and assigns, except where contrary rights are specifically retained as described in Section 3 below, that DISTRICT shall strictly Page 1 adhere to the following: A. The Conservation Property shall be forever be used for public park, low intensity recreation, open space, and compatible agricultural purposes and shall be dedicated to such purposes by District in accordance with Section 5540 of the Public Resources Code of the State of California. B. POST reserves the right to review and comment on any plan for significant improvements to the Conservation Property such as, but not limited to, those improvements and resource management plans described in Section 3 below. DISTRICT shall submit to POST a site plan showing the location of the proposed improvements or resource management projects prior to DISTRICT'S final approval. Within (30) days from submission of plans to POST, POST shall provide written comments to DISTRICT. Comments shall be advisory only and DISTRICT shall consider, but shall be free to accept, reject or modify POST's comments, as District deems necessary or appropriate. The final decision as to any plans or improvements for the Conservation Property shall be made by the DISTRICT consistent with the terms and conditions of this Conservation Easement and the District's Basic Policies. C. In the event DISTRICT prepares a Master Plan that includes the Conservation Property, DISTRICT shall consult with POST during the development of the Master Plan and, if a committee or task force is formed to assist with preparation of the Master Plan, DISTRICT will offer to include a POST representative in such a committee or task force. 3. PERMITTED USES AND RIGHTS OF DISTRICT A. DISTRICT reserves the right to plan, develop,use and operate the Conservation Property for public open space and recreational purposes in any manner consistent with the District's enabling legislation and Basic Policies, state and local zoning and regulations, and the state purposes, terms, conditions, and covenants of this Conservation Easement. Public open space and recreational uses may include but are not limited to low- intensity recreation facilities, multi-use trails, public parking areas, restrooms, and related infrastructure consistent with the limitations set forth in Section 2 above. B. DISTRICT may plan and conduct natural resource management conducted projects, including but not limited to projects for removal of non-native or diseased vegetation, afforestation or reforestation with native plants, or projects for scientific study, consistent with limitations set forth in Section 2 above. C. DISTRICT may restore cultural, historical and agricultural land uses deemed consistent with protecting the property's natural resources and compatible with the public open space facilities described above, consistent with limitations set forth in Section 2 Page 2 above. D. DISTRICT may enforce any law, statute, ordinance, regulation, code or rule of any lawful governmental authority which DISTRICT possesses the legal authority to enforce, including but not limited to DISTRICT'S Regulations for Use of Midpeninsula Regional Open Space District Lands, as are now in effect and as such may hereinafter be amended from time to time. E. DISTRICT may plan, use and manage the Conservation Property in accordance with all applicable DISTRICT land management policies including, where required, environmental review and if applicable, processes for incorporating public input,public workshops and public hearings prior to Board approval and implementation of Use or Management Plans or Plan Amendments. 4. ENFORCEMENT DISTRICT grants to POST, at POST's sole cost, the right, but not the obligation,to enter upon the Conservation Property upon prior reasonable notice for the purpose of monitoring and enforcing any term, condition, restriction or covenant of this Easement or to prevent or prohibit the material breach of any condition,restriction or covenant of this Easement. 5. COSTS AND RESPONSIBILITIES DISTRICT retains all responsibility and costs related to the ownership, operation,upkeep and maintenance of the Conservation Property. DISTRICT shall keep the Conservation Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by DISTRICT. DISTRICT, its successors and assigns, shall be responsible for, indemnify and save harmless POST, its officers, agents, and employees from any and all liabilities, claims, demands, damages, or costs arising from the injury to or death of any person or physical damage to any property resulting from any act, omission or condition occurring on the Conservation Property, except for the negligence of POST, its officers, agents, or employees. The duty of DISTRICT to indemnify and save harmless includes the duty to defend as set forth in Civil Code Section 2778. 6. CONVEYANCE POST may convey this Easement in whole or in part but only to an entity that is a qualified entity at the time of transfer under Section 170(h)of the Internal Revenue Code, as amended(or any successor provision then applicable), and the applicable regulations promulgated thereunder, and authorized to acquire and hold conservation easements under Section 815.3 of the California Civil Code (or any successor provision then applicable). As a condition of such transfer, POST shall require the transferee to expressly agree in writing to assume POST's obligations hereunder in order that the purpose of this Easement will continue to be carried out. Page 3 If a subsequent transferee of POST other than the state shall cease to exist or to be qualified to q ( ) hold conservation easements under California Civil Code Sections 815.3,then the Easement held by that subsequent transferee shall vest in the State of California upon the State's acceptance or in a qualified entity then designated by POST with due regard to the requirements of this paragraph. 7. RECORDATION This Easement shall be recorded by POST in the Official Records of Santa Cruz County, California. POST may re-record this Easement whenever re-recording is required to preserve POST's rights in this Easement. 8. GENERAL PROVISIONS A. Choice of Law. The internal laws of the State of California,regardless of any choice of law principles, shall govern the validity of this Easement, the construction of its terms and the interpretation of the rights and duties of the parties. B. 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 hage at law or in equity in the event of the breach of any of the terms of this Easement. 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. C. Notice. 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 by telex, telecopy,telegraph or cable or other similar electronic medium and addressed as indicated as follows: POST: Peninsula Open Space Trust 3000 Sand Hill Road Bldg. #4, Suite 135 Menlo Park, CA 94025 Attn: President TEL: (650) 854-7696 FAX: (650) 854-7703 District: Midpeninsula Regional Open Space District 330 Distel Circle Page 4 i Los Altos, CA 94022 Attn: General Manager TEL: (650) 691-1200 FAX: (650) 691-0485 If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or cabled 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 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 when prompt notification is appropriate, but any oral notice given shall not satisfy the requirements provided in this Section. D. '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. I E. Costs of Enforcement. In the event of any litigation or arbitration between the parties to enforce or to interpret the terms of this Easement, the prevailing party shall be entitled to recover court or arbitration costs and reasonable fees of attorneys, accountants, consultants and expert witnesses incurred by such party in connection with the litigation or arbitration, including such costs and fees incurred because of any appeals. The prevailing party also shall be entitled to recover all such costs and fees that may be incurred in enforcing any judgment or award, and this provision shall not be merged into any judgment but shall survive any judgment. F. Termination of Rights and Obligations. Except as expressly provided otherwise in this instrument, a parry's rights and obligations under this Easement shall terminate upon the transfer of this Easement or fee title to the Conservation Property, as the case may be, except that rights, obligations and liability relating to acts or omissions occurring prior to transfer shall survive transfer. G. Captions. The captions in this Easement have been inserted solely for convenience of reference and are not a part of this Easement and shall have no effect upon construction and interpretation. 9. ENFORCEABLE COVENANT AND RESTRICTION This Easement and each and every term, condition, restriction, and covenant contained herein is Page 5 intended for the benefit of POST, its successors or assigns and constitutes an enforceable restriction. This covenant is expressly intended by DISTRICT and POST to run with the land described in said Exhibit"I", to constitute an equitable servitude therein, and shall bind each and every successive owner of said land, or of any interest therein, and shall be enforceable by POST, its successors and assigns. This Easement is made for the sole benefit and protection of DISTRICT and POST. Nothing herein shall be deemed to require the approval or consent of any third party owner or occupant of any other parcel of real property located within or without the boundaries of DISTRICT other than POST or to create any right in any third party for the enforcement of any term of this Easement. POST DISTRICT By: By: Audrey Rust, President President, Board of Directors Date: Date: Aftest: District Clerk Date: Page 6 2')