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HomeMy Public PortalAboutResolution - 03-23- 20030709 - Presentation Center Purch i RESOLUTION NO. 03-23 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING OFFICER TO EXECUTE AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY, AUTHORIZING OFFICER TO EXECUTE PURCHASE AGREEMENT, AUTHORIZING OFFICER TO EXECUTE EASEMENT DEEDS, AUTHORIZING OFFICER TO EXECUTE CERTIFICATES OF F GRANTS TO DISTRICT ACCEPTANCE O , AUTHORIZING OFFICER TO EXECUTE RECIPROCAL EASEMENT AND USE AGREEMENT, AUTHORIZING OFFICER TO EXECUTE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THESE TRANSACTIONS (BEAR CREEK REDWOODS OPEN SPACE j PRESERVE—LANDS OF THE PRESENTATION CENTER) I The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: does d f Directors of Midpeninsula Regional Open Space District ne. The Boar o Section O p g P P � hereby accept the offer contained in that certain Agreement to Exchange Interests in Real Property and that certain Purchase Agreement between Presentation Center, Los Gatos, a California Corporation and Midpeninsula Regional Open Space District, copies of which are attached hereto and by reference made a part hereof, and authorizes the President or appropriate officers to execute these Agreements on behalf of the District, and further authorizes the President or other appropriate officer to execute the Reciprocal Easement and Use Agreement, a copy of which is attached hereto and by reference made a part hereof. Section Two. The President of the Board of Directors, or other appropriate officer, is authorized to execute Certificates of Acceptance for the Grant and Easement Deeds on behalf of the District. Section Three. The President of the Board of Directors or other appropriate officer is authorized to execute the Center Parking Lot Easement granting the real property interests being conveyed therein by the District. Section Four. The President of the Board of Directors or other appropriate officer is authorized to execute the Declaration of Covenants, Conditions and Restrictions memorializing the terms and conditions of the Grant Agreement with the California Coastal Conservancy which are providing matching grant funds for the District's purchase of the Presentation Center property. Section Five. 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 Agreements and other transactional documents which do not involve any material change to any term of the Agreements or other transactional documents, which are necessary or appropriate to the closing or implementation of this transaction. Section Six. The General Manager of the District is authorized to expend up to $30,000 to cover the cost of title insurance, escrow fees, survey costs, demolition and clean up costs and other miscellaneous costs related to this transaction. Section Seven. The Board of Directors finds and determines that, pursuant to Section 5540.5 of the Public Resources Code of the Sate of California, this exchange of rights and obligations is of equal value and is necessary for park and open space purposes. Section Eight. It is intended, reasonably expected, and hereby authorized that the District's general fund will be reimbursed in the amount of$3,365,000 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. 03-23 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on July 9, 2003, at a Regular Meeting thereof, by the following vote: I AYES: N. Hanko, M. Davey, J. Cyx, L. Ha zett, P. Siemenz, K. N.ctz, D. Lithe NOES: None i ABSTAIN: None ABSENT: None ATTEST: APPROVED: Secre y VPrirsident B d of Dir tors Board of Directors I,the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct co of a resolution duly adopted b the Board of Directors of PY Y P Y the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. DiZ51 lerk i AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY This AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY (hereinafter, "Agreement") is made by and between the Midpeninsula Regional Open Space District, a California special district(hereinafter "District") and the PRESENTATION CENTER, LOS GATOS, a California Corporation(hereinafter "Presentation Center"). RECITALS WHEREAS, District owns certain real property located in the unincorporated area of the County of Santa Clara, commonly known as Assessor's Parcel Numbers 544-28-004, 544-29- 006, 544-30-002, 544-30-003, 544-33-003, 544-33-014, 544-31-002, 544-31-003, 544-31-004, 544-50-001, 544-50-004 and 544-56-004 and commonly known as the Bear Creek Open Space Preserve (herein, "District Land"); and WHEREAS, Presentation Center owns certain real property located adjacent to District Land in the unincorporated area of the County of Santa Clara and the County of Santa Cruz, commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005, 544-31-006, 544-50-003, 544-50-005 and 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03 (herein, "Presentation Center Land"); and WHEREAS, Presentation Center desires to obtain from District a non-exclusive parking lot easement over a portion of District Land in conjunction with the Presentation Center's Improved Property located on a portion of Santa Clara County Assessor's Parcel Numbers 544- 31-005 and 544-31-006; and WHEREAS, District desires to obtain from Presentation Center a non-exclusive access easement to a proposed District permit parking lot located upon District land and non-exclusive patrol and maintenance, and public trail easements across a portion of Santa Clara County Assessor's Parcel Numbers 544-31-005 and 544-31-006 to access,patrol, maintain, repair, and manage the adjacent District Land; and WHEREAS, Presentation Center and District have agreed to enter into a cooperative "Reciprocal Easement and Use Agreement" for the use of the Presentation Center's parking lot easement, the District's access easement, and for the potential development of future alternative access to a separate District parking lot located on a portion of District Land, Santa Clara County Assessor's Parcel Numbers 544-31-002, as more particularly described in this Agreement; and WHEREAS, District desires to purchase from Presentation Center certain real property j consisting of the undeveloped portion of the Presentation Center Land commonly known as I Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005, 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03. transfer certain 1 Presentation enter an District desire to exchange and real WHEREAS, e C d e g ro e rights as set forth in this P p rtY g Agreement; and 1 WHEREAS, District has determined that said exchange of interests in real property is of equal or greater value and that the long term preservation of open space at Bear Creek Redwoods Open Space Preserve would be greatly enhanced and secured by such exchange; and WHEREAS, said exchange has been determined to be in accordance with the District's enabling legislation set out at Section 5500 et seq. of the Public Resources Code of the State of California. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which all acknowledged, it is mutually agreed and understood as follows: 1. EXCHANGE OF EASEMENT AGREEMENTS. A. Center Parking Lot Easement. District hereby grants to Presentation Center a non-exclusive easement for parking lot purposes over a portion of District Land commonly known as a portion of Santa Clara Assessor's Parcel Numbers 544-31-002 in the form set forth in Exhibit A, attached hereto and incorporated by this reference. B. Patrol and Maintenance and Public Trail Corridor Easements. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress for patrol, emergency access, maintenance and repair of adjoining and surrounding District Lands from Bear Creek Road through the Presentation Center Land (the"Patrol and Maintenance Easement"). In addition, Presentation Center hereby grants to District a non-exclusive easement for public pedestrian trail use and for patrol and maintenance purposes (the "Public Trail Corridor Easement"). The District Patrol and Maintenance and Public Trail Corridor Easements shall be in the form set forth in Exhibit B attached hereto and incorporated herein by this reference. C. District Parking Access Easement. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress through the Presentation Center Land to District Land, in the form set out in Exhibit C attached hereto and incorporated herein by this reference. 2. COOPERATIVE PARKING AGREEMENT. Presentation Center and District agree to enter into a"Reciprocal Easement and Use Agreement"("REA")ain the form of Exhibit D attached hereto and incorporated by this reference. The REA provides for, among other things, use of the Center Parking Lot Easement by District for District special events scheduled with Presentation Center approval and the use of the District's Permit Parking Lot by Presentation Center for special events with District approval. 3. PURCHASE AGREEMENT. In further consideration for the District granting to Presentation Center the Center Parking Lot Easement, Presentation Center hereby grants to District the exclusive right to purchase the undeveloped portion of the Presentation Center property containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005 and 544-50-006, and Santa Cruz County Assessor's Parcel Numbers 2 1 091-051-02 and 091-051-03. The Purchase Agreement shall be in the form as set forth in Exhibit E attached hereto and incorporated by this reference. 4. ESCROW. A. No escrow will be opened for the consummation of the exchange of easements conveyed herein; however, Closing shall occur on or before August 8, 2003,unless extended by the parties. The term "Closing"means the date any Easement Agreement is recorded in the Office of the County Recorder of Santa Clara County. The E'asements to be conveyed under this Agreement may be recorded serially, i.e., closings do not have to be concurrent to be valid, provided that at the Final Closing, all of the Easements to be conveyed under this Agreement have been recorded. Presentation Center shall be responsible for the proper recordation of the Center Parking Lot Easement and for any fees, costs or title insurance, if any. District shall be responsible for the proper recordation of the Patrol and Maintenance and Public Trail Corridor Easements and the District Parking Access Easement. B. District shall deliver to Presentation Center a fully executed and recordable copy of the Center Parking Lot Easement("Exhibit A") within ten (10) days of approval of this Agreement by District's Board of Directors. C. Presentation Center shall deliver to District a fully executed and recordable copy of the Patrol and Maintenance and Public Trail Corridor Easements (Exhibit "B")within 10 days of approval of this Agreement by District's Board of Directors. D. Presentation Center shall deliver to District a fully executed and recordable copy of the District Parking Access Easement(Exhibit"C") within 10 days of approval of this Agreement by District's Board of Directors. E. Presentation Center shall deliver to District executed copies of the Purchase Agreement(Exhibit"E") concurrent with the date of Presentation Center's execution of this Agreement. 5. CONDITION PRECEDENT. As a condition precedent of the District's obligation to grant the easements, and complete the transactions contemplated by this agreement, prior to August 8, 2003 the District must obtain prior written approval from the California Coastal Conservancy and the State of California Wildlife Conservation Board to grant the Center Parking Lot Easement to Presentation Center. Absent such approval, this Agreement shall be terminated and of no force and effect. 6. BOUNDARY ISSUE. A. Presentation Center and District acknowledge that there currently exists a disagreement between the parties concerning whether there are discrepancies in the legal descriptions of the Presentation Center Land and/or the District Land at or near where the northerly boundary of the Presentation Center Land meets the southerly boundary of the District land, the area over which the existing driveway from Bear Creek Road lies and a portion of the Center Parking Lot Easement, and whether there are discrepancies in the parties' respective 3 surveys �' tt of the above-described lands. This disagreement is hereafter referred to as the Boundary Issue". B. Presentation Center and District agree that, within one year of the approval of this Agreement by the District's Board of Directors, the parties will commence negotiations in good faith to resolve the Boundary Issue. C. If within one (1) year from the commencement of such negotiations, the parties reach a mutually acceptable resolution of the, Boundary Issue the parties agree to promptly take all reasonable and necessary steps to amend the legal descriptions of the Easements as necessary, to reflect the agreed upon resolution of the Boundary Issue and to re- record the Easements with amended legal descriptions. The parties further agree to take such other steps as necessary to prepare and record mutually agreeable surveyed boundary lines, and a record of survey if required. D. If,within one(1)year from the commencement of the negotiations, the parties are not able to reach a mutually acceptable resolution of the Boundary Issue, the parties agree that the Boundary Issue shall be decided solely and exclusively by binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge(without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. E. Notwithstanding anything to the contrary in any of the transactional documents referred to in this agreement, including but not limited to the Easements and the Purchase Agreement, each party will bear its own costs of resolving the Boundary Issue pursuant to this Section, including but not limited to attorney's fees, and costs of survey. The parties shall share equally the cost of the arbitrator's fee. The prevailing party shall not recover attorney's fees or other costs. F. The parties agree that, nothing in this Section 6 shall be considered to affect, and the parties expressly reserve, all factual legal and equitable contention with respect to the Dispute. G. Notwithstanding anything to the contrary in any of the transactional documents referred to in this Agreement, including the Easements and Purchase Agreement, it is the parties' agreement and intent that neither the granting nor acceptance of any Easement described in this Agreement by either party shall be considered in any arbitration or legal 4 J proceeding to be an admission or agreement by either party as to the nature or status of any party's rights in or title to either the underlying District Land or the underlying Presentation Center Land, as such rights or title existed prior to the recordation date of any Easement Deed described herein. It is each party's desire to grant the Easements described in this Agreement without prejudice to the granting party's ability in any such proceeding to assert any rights that party had or may have prior to said recordation date. 7. REPRESENTATIONS AND WARRANTIES. For the purpose of consummating this exchange of interests in real property in accordance herewith, Presentation Center and District, collectively referred to as the "parties", make the following representations and warranties, each of which is material, are being relied upon by the parties, and shall survive the recording of the easements being exchanged and conveyed herein. A. Authori1y. The Parties have 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 the Parties have been or will be duly authorized and executed and delivered by the Parties are legal, valid and binding obligations of the parties to complete this exchange and conveyance of real property. C. Good Title. Except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908 and the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters described in Section 6 herein, the parties have and at each and every Closing under this Agreement shall have good, marketable and indefeasible fee simple title to the real property interests being conveyed hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and the Parties shall forever indemnify and defend the other party from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. 8. PAYMENT OF FEES. All processing, legal, engineering, surveying, recording, and other fees incurred by either party pursuant to this Agreement, if any, shall be paid by Presentation Center for the Center Parking Lot Easement, and by District relating to the District Patrol and Maintenance, and Public Trail Corridor and District Parking Access Easements (collectively"Easements"). 9. TIMING. Within ten (10) days of approval of this Agreement by District's Board of Directors, the parties hereto shall exchange fully executed and acknowledged Easement Deeds in conformity with this Agreement conveying the easement interests to the respective parties as set forth in Section 1 and to take all other steps and execute all other documents necessary to complete this transaction. Within thirty (30) days after delivery of the respective deeds, both parties agree to record such deeds to provide for constructive notice 5 T thereof, at their own expense. The District shall execute the required Certificates of Acceptance of the Easement Deeds conveyed to it by Presentation Center. The Presentation Center shall deliver fully executed copies of the Purchase Agreement (Exhibit "E") concurrent with the date of Presentation Center's execution of this Agreement. 10. AS-IS"CONVEYANCE. Both parties are acquiring the respective real property interests on an "As-Is"basis, without warranties, express or implied, regarding the physical condition of the property, except as specifically set forth in the Purchase Agreement, this Agreement, and the Easements. Both parties shall rely on their own inspections of the respective property interests. 11. INDEMNITY AND RELEASE OF LIABILITY, A. With regard to the Center Parking Lot Easement, Presentation Center shall fully release, indemnify, hold harmless and defend District, as set out in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit A. B. With regard to the Patrol and Maintenance and Public Trail Corridor Easements, District shall fully release, indemnify, hold harmless and defend Presentation Center, as set out in Section 7 of the District Patrol and Maintenance and Public Trail Corridor Easements, attached hereto as Exhibit B. C. With regard to the District Parking Access Easement, District shall indemnify Presentation Center as set out in Section 6 thereof, attached hereto as Exhibit C. 12. INSURANCE. Presentation Center and District, at each party's sole cost and expense, shall maintain in full force and effect comprehensive general liability insurance covering bodily and personal injury and property damage arising out of their respective activities in or on their respective Easements granted hereunder. The terms and conditions of required insurance shall be as set out in the Center Parking Lot Easement and the District Parking Access Easement and the Patrol and Maintenance and Public Trail Corridor Easements. 13. MISCELLANEOUS PROVISIONS D. 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. E. Amendment. The parties hereto may by mutual written agreement amend this Agreement in any respect. F. 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. 6 I G. 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: Presentation Center: Presentation Center 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Sister Patricia Marie Mulpeters TEL: (408) 354-2346 FAX: (408) 354-5226 With Copy to: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 TEL: (415) 356-4600 FAX: (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 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. H. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties 7 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. I. 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. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. J. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term,provision or condition or as a waiver of any other term, provision or condition of this Agreement. K. 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. L. Time of the Essence. Time is of the essence of each provision of this Agreement in which time is an element. M. Survival of Covenants. All covenants of District or Presentation Center which are expressly intended hereunder to be performed in whole or in part after the Closing, including but not limited to the covenants set out in Section 6 herein, 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. N. Terms Run with the Land. The terms, covenants and conditions set out in this agreement shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the parties hereto pursuant to California Civil Code Section 1468. O. 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. P. Further Documents and Acts. Each of the parties hereto agrees to execute and deliver such farther 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. Q. 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. 8 R. Pronouns and Gender. 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. S. Authority. Presentation Center and District both represent and warrant that each has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. T. Inconsistencies. In the event of any inconsistencies between the provisions of this Agreement and the terms of the various agreements set forth in Exhibits A through E, inclusive, the terms of the latter shall prevail. U. Recordation. District may, at its sole expense, record a Memorandum of this Agreement in the County of Santa Clara and the County of Santa Cruz. IN WITNESS WHEREOF, the parties have executed this agreement below on the day and year shown therewith. 1H JII PRESENTATION CENTER, Los Gatos, a California Corporation ("Presentation Center"): APPROVED AND ACCEPTED � 1 BY: Date: d By: Date: ATTEST: By: Presentation Center Clerk MIDPENINSULA REGIONAL OPEN SPACE DISTRICT ("District"): RECOMMENDED FOR ACCEPTANCE: Byer'l�,M'-�C!/��✓(� _ Date: 7 — Michael C. Williams Real Property Representative APPROVED AS TO FORM: By: Z�el�t W L y �t� Date: — Susan M. Schectman, General Counsel RECO ENDED OR APPROVAL: Date: L. Craig o eneral Mana er APPROVED AND ACCEPTED: By: waft Date: Presi ent, Board of Directors ATTEST: 1 Date: Q� Sally T ' oldt, Dis lerk 10 EXHIBIT A RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: PrCenter,Presentation Los Gatos 19480 Bear Creek Road Los Gatos, California 95033-9519 Attn: Patricia Marie Mulpeters, PBVM SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY No Transfer Tax Due EASEMENT AGREEMENT CENTER PARKING LOT EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among M DPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District" or "Grantor") and PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a "Party" and together as"Parties". RECITALS A, Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto being a part of Santa Clara County Assessor's Parcel No. 544-31-002 (the"District Parcel"). B. Grantee is the owner of certain real property situated in the County of Santa Clara, including the property immediately adjacent to the District Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the"Center Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July 9, 2003 wherein the Parties have agreed to grant to each other certain reciprocal rights, benefits and uses concerning portions of the District Parcel and portions of the Center Parcel, including, without limitation, an agreement to provide Center with a non- exclusive easement for parking on the District Parcel and for the construction of certain improvements incidental to such use, on the terms and conditions set forth below. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1 EXHIBIT A 1. Grant of Parking Easement(District to Center). A. Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement set forth in this Section I as appurtent to the Center Parcel for the benefit of Grantee and the tenants, subtenants, permittees, contractors, customers, visitors, invitees, and licensees of the Center Parcel, in, on, over, under and across the Center Parking Lot Easement (defined in Section I(A)(i) herein), A legal description and plat map of the Center Parking Lot Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. References in this Agreement to the term "Easement" shall mean the easement granted pursuant to this Section 1. (i) Parking. An easement for right of way over, across and through the Center Parking Lot Easement (defined in Section 2) in the area generally shown on the drawings attached as Exhibit D hereto (the Site Plan"), as accessory for the passage of pedestrians and motor vehicles of any kind for any use consistent with this Agreement including, without limitation, the right to park at least 56 standard sized vehicles in the configurations shown on Exhibit D Said Center Parking Lot Easement shall be used for the business uses and purposes associated with the Grantee's retreat and conference center and as permitted by Grantee's approved Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25- 02P-02A, Dated February 6, 2003, as may be amended from time to time, (hereafter"CUP") and as set forth in the Site Plan attached as Exhibit D hereto and incorporated by this reference, and other incidental uses which are related to Grantee's permitted business and operations. (ii) Incidental uses and rights granted under the Center Parking Lot Easement: a. Access. The right of access reasonably necessary for pedestrians and motor vehicles and for Grantee to grade, improve, construct, install, use, maintain, repair and inspect of the Parking Area Improvements (defined in Section 2) for which the easement is granted as described above in Section I(a)(i), in the area shown on the drawings attached hereto as Exhibit D. b. Refuse Disposal and Collection. The installation and maintenance in the Center Parking Lot Easement in the location designated by Grantee of refuse dumpsters or other suitable containers for the collection and retention of refuse and vehicular ingress to and egress from the Center Parking Lot Easement for the purpose of unloading the dumpsters and removing the trash from the Center Parking Lot Easement, in the area shown on the drawings attached hereto as Exhibit D. C. Drainage. The installation and repair and maintenance of storm drainage improvements over a portion of the Center Parking Lot Easement pursuant to a drainage plan to be submitted after recordation of this Agreement. Grantee shall obtain Grantor's prior written approval of said drainage plan before construction and installation of the drainage improvements. Grantor shall not unreasonably withhold, delay, or condition its consent to the drainage plan. The storm drainage shall be appurtenant to and for the express benefit of the Center Parcel. The storm drainage is granted for the purpose of removing, draining and detaining storm, surface and subsurface water from the District Parcel over, upon, across and through the Center Parking Lot Easement as described in Exhibit C. 2 EXHIBIT A d. Utilities. The construction, installation and maintenance of utilities ("Utility Easement") which will be located along that portion of the Center Parking Lot Easement as more particularly described and depicted in Exhibit D. The Utility Easement includes the right to ingress and egress over the Utility Easement area as reasonably necessary or appropriate and is granted for the purpose of using, maintaining, installing, inspecting, relocating, repairing and replacing underground water lines serving the landscaped area within the Center Parking Lot Easement and underground electric lines serving the light standards in the Center Parking Lot Easement as described and shown in Exhibit D. B. Definition of Center Parking Lot Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the Center Parking Lot Easement as described in Exhibit C may lie upon the Center Parcel. Therefore, the term "Easement" or "Center Parking Lot Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the District Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. C. Term. The tern of the Easement shall be perpetual, provided that Center Parcel continues to be used as a retreat and conference center as more fully set forth in the CUP. Grantor shall have the right to terminate this Easement upon the cessation of use of the Center Parcel for said purposes by giving Grantee 60 days written notice of its intent to do so. Notwithstanding the above, this Agreement shall remain in full force and effect if Grantee transfers ownership or control of the Center Parcel or Center to another not for profit entity engaged in substantially the same retreat and conference Center use or enterprise as Center, along the lines substantially set forth in the CUP. D. Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the Center Parking Lot Easement subject to the terms and conditions set forth in this Agreement; provided that (a) such use shall not unreasonably interfere with the Easement or its intended purposes; (b) no structures or physical improvements shall be constructed on the portions of the Center Parking Lot Easement which would unreasonably interfere with the use of the Easement; and(c) such use would not cause a violation of the CUP. E. Incidental Easement Rights. The Easement includes all incidental and pertinent rights of maintenance, inspection, installation, connection, repair and replacement reasonably necessary and appropriate to the uses of the Easement. Grantee shall obtain Grantor's prior written consent, which may not be unreasonably withheld, conditioned or delayed prior to entering the District Parcel contiguous to the Easement granted in this Agreement as provided herein for purposes of maintenance, inspection, installation, connection, repair and replacement for any uses of such Easement pursuant to this Agreement, including use 3 EXHIBIT A of portions of the District Parcel for staging and construction activities during the construction of the Parking Area Improvements. F. Construction, Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Parking Area Improvements and the Center Parking Lot Easement, provided that if any damage is caused solely by any negligence or willful misconduct of Grantor, Grantor shall be responsible for promptly repairing such damage. Except for minor and routine maintenance projects, Grantee shall obtain prior written approval from Grantor for any alteration, reconstruction or replacement of the Parking Area Improvements, or Center Parking Lot Easement which approval shall not be unreasonably conditioned, withheld or delayed. 2. Approval of Drawings and Location. Grantor hereby acknowledges that it has generally approved the drawings showing the construction of the initial Improvements, including, without limitation, refuse disposal and signage, all as more fully set forth in the Site Plan attached hereto as Exhibit D. Grantor has specifically approved the Site Plan. The improvements specified in Section IA and Exhibit D of this Agreement to be constructed within the Easement shall be referred to herein as the "Parking Area Improvements". Any subsequent changes to the approved Site Plan drawings shall be subject to Grantor's prior written approval, which approval Grantor shall not unreasonably condition, withhold or delay. Prior to the commencement of construction, Grantee shall provide for Grantor's review, and obtain Grantor's prior written approval of, construction and grading plans for the Parking Area Improvements which shall include landscaping plans, utility layout, lighting plans and specifications and drainage plans. Grantor's approval shall not be unreasonably withheld, conditioned or delayed. 3. Permits and Approvals. At its sole cost and expense, Grantee shall secure all necessary approvals and permits prior to commencement of the initial construction of the Parking Area Improvements. If necessary, Grantor shall cooperate with Grantee to obtain such approvals and permits to the extent permitted by law. 4. Survey. The cost of making and recording any survey to determine the location of the Center Parking Lot Easement shall be borne solely by Grantee. 5. Representation and Warranties: Indemnification of Grantee. Grantor represents and warrants to Grantee that to the best of Grantor's knowledge Grantor has good and marketable title to the District Parcel, and there are no matters affecting title to the District Parcel which adversely affect the Easements or the rights granted under this Agreement, except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908, the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters set out in Section 6 of the Agreement to Exchange Interest in Real Property entered into by Grantor and Grantee on July 9, 2003. The Parties recognize that Grantor's obligation and authority to enter into and record this Easement requires prior written approval of the State of California Coastal Conservancy and Wildlife Conservation Board. 4 EXHIBIT A 6. Re uirements of Law. Grantee shall comply with all resent an q p y p d future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof, including the Laws of Grantor. it 7. Mechanics Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Center Parking Lot Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 8. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Center Parking Lot Easement Area or any Parking Area Improvements and portions thereof, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than ($5,000,000,00) per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. 9. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easement. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and"As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as now or hereafter amended , the Hazardous.42 U.S.C. Section 9601, et se ( q ) 4 i 1 t Transportation Act as or hereafter amended 9 U.S.C. Sections 180 e se . Materials Trans o a p ( q ), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance rule or regulation. However, Gr antor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination 5 EXHIBIT A on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantee. 10. Indemnitv. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party or the Center Parking Lot Easement by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement; or(b) arising out of or in any way with any use, possession, occupation, operation, maintenance, management or condition of the Center Parking Lot Easement . 11. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Center Parking Lot Easement by Grantee, or directly or indirectly from any state or condition of the Center Parking Lot Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor. 12. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulp eters Telephone: (408) 354-2346 Facsimile: (408) 354-5226 6 EXHIBIT A With a copy to: Luce, Forward, Hamilton& Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356-4600 Facsimile: (415) 356-3898 13. Subordination. Except as set forth in Section 5 hereof, the Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the District Parcel recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. 14. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 15. Miscellaneous A. Dispute Resolutions. The Parties, on behalf of themselves and their -respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration i shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. B. Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof C. Exhibits. Each of the Exhibits references in this Agreement is attached I'� hereto and incorporated herein. EXHIBIT A D. Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. E. Time. Time is of the essence of this Agreement. F. Writtgn Cgnseat Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. G. Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. H. Attornj-,y's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. 1. Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. J. Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. K. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. L. Authority. Each individual executing this Agreement on behalf of Grantor represents and warrants to Grantee that he or she is duly authorized to so execute and deliver this Agreement and that all entity, actions and consents required for execution of this Agreement have been given, granted or obtained. M. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. 8 EXHIBIT A IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: NMPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: GRANTEE: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: 9 EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: S Mid peninsula Regional Open ace District p g P p 330 Distel Circle Los Altos, California 94022-1404 Attn: Michael C. Williams SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103, 27383. CODE SECTION 11922 BY EASEMENT AGREEMENT PATROL AND MAINTENANCE AND PUBLIC TRAIL CORRIDOR EASEMENTS This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and 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 ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto and incorporated herein by this reference, being a part of Assessor's Parcel No. 544-31-005 and 544- 31-006 (the"Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, which is immediately adjacent to the Center Parcel and is commonly known as the Bear Creek Redwoods Open Space Preserve, as it currently exists or may be expanded in the future, as more particularly described in Exhibit B attached hereto and incorporated herein by this reference (the "District Preserve"). C. Grantee desires to obtain a non-exclusive easement to enter and pass through the Center Parcel for District purposes including patrol, maintenance, repair and emergency access and public trail access, as more particularly described in this Agreement. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1 �, EXHIBIT B 1. Grant of Patrol and Maintenance Easement(Center to District). (a) Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement as set forth in this Section 1 as appurtenant to the District Preserve as it currently exists or may be expanded in the future for ingress and egress for patrol, emergency access, maintenance and repair of the adjoining and surrounding District Preserve and the maintenance and repair of the public pedestrial trail easement described in Section 2(a) below along the existing driveway from Bear Creek Road and continuing along the existing service road to the Center treatment facility continuing to Collins Creek. A legal description and plat map of the Patrol and Maintenance Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. (b) Definition of District Patrol and Maintenance Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Patrol and Maintenance Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Patrol and Maintenance Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Patrol and Maintenance Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (d) Repair and Maintenance. Grantor shall be solely responsible for repairing and maintaining the paved portions of the Easement as it currently exists, as set forth in Exhibit C. The Grantor and Grantee shall share equally the cost and responsibility for repairing and maintaining the unpaved portions of the Easement as described and shown in Exhibit C. Any improvements to the Easement desired solely by the Grantor or Grantee shall be borne by the party requiring such improvements. Notwithstanding the above, in the event of damage to any area of the Easement caused solely by the act of one party or its agents, the damaging party shall have sole responsibility for repair of such damage, normal use, wear and tear excepted. Grantee shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Patrol and Maintenance Easement, except in the event of an emergency. (e) Surve . The cost of making any survey to determine the location of the Patrol and Maintenance Easement shall be borne by Grantee. (f) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other purpose. When using the Easement, District vehicles and/or employees or agents shall possess identification reasonably adequate to identify them as District employees or agents. Routine patrols shall be made no more than is reasonably required but in 2 EXHIBIT B no event more than six month. In all instances, District shall take sixty 60( ) times per every reasonable precaution against interfering with or disrupting the activities and business operations on the Center Parcel. i (g) Non-Exclusive Use. The Patrol and Maintenance Easement shall be non-exclusive, and Grantor may make use of the area within the Patrol and Maintenance Easement including, without limitation, the right to construct, alter, maintain, repair, and improve all or a portion of the Easement as long as such use does not unreasonably interfere with the Patrol and Maintenance Easement or its intended purposes. 2. Grant of Public Trail Corridor Easement (a) Easement Scope and Description. Grantor hereby grants to Grantee a non-exclusive public trail corridor easement as appurtenant to the District Preserve, as it currently exists or may be expanded in the future, approximately thirty (30) feet in width, for public pedestrian trail use and use by the District for patrol emergency access, repair, and maintenance purposes. The public pedestrian trail shall be no more than ten (10) feet in width located within the thirty (30) foot trail corridor The Public Trail Corridor Easement shall be located on the slope below the Center treatment facility and above Collins Creek and connect to the lower portion of the existing service road, which is also part of the Patrol and Maintenance Easement described in Section 1(a) above. A legal description of the Public Trail Corridor Easement shall be in the form set forth in Exhibit D attached hereto and incorporated herein by this reference. The Patrol and Maintenance Easement and the Public Trail Corridor Easement are collectively referred to as "the Easements." i (b) Term. The term of the Public Trail Corridor Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (c) Trail Alignment and Construction. The Public Trail Corridor Easement Area ("Trail") shall be constructed by District, in consultation with Center as to location and dimensions within the area covered by the legal description attached as Exhibit D. Grantee shall obtain Grantor's prior written consent to the plans and specifications for the Trail, not to be unreasonably withheld, conditioned or delayed, prior to the commencement of any construction or work. The Trail shall be constructed and maintained by District, at its sole expense. Trail construction activities will be conducted so as to minimize interference with Center activities. Upon the completion of the Trail construction, District shall prepare a survey of the actual alignment of the constructed Trail and shall amend the legal description (Exhibit D) of the Public Trail Corridor Easement based on such survey and record an amendment to this Easement reflecting the accurate legal description of the Public Trail Corridor Easement. (d) Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Public Trail Corridor Easement. District shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Public Trail Corridor Easement, except in the event of an emergency. i 3 EXHIBIT B i (e) Survey. The cost of making any survey to determine the location of the Public Trail Corridor Easement shall be borne by Grantee. (f) Non-Exclusive Use. The Public Trail Corridor Easement shall be non- exclusive and Grantor may make use of the area within the Public Trail Corridor Easement provided that such use does not unreasonably interfere with the Public Trail Corridor Easement or its intended tP u oses. P 3. Representation an Warranties. Gr antor represents and warrants to Grantee that Grantor has good and marketable title to the Center Parcel, and there are no matters affecting title to the Center Parcel which adversely affect the Easement or the rights granted under this Agreement. Grantor further represents and warrants to Grantee that there are no persons (other than Grantor) holding an interest in any of the Center Parcel so as to affect this Agreement. 4. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easement granted herein, or uses thereof. 5. Mechanic's Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Public Trail Corridor Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 6. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Easement with limits which shall not be less than Five Million Dollars ($5,000,000.00) per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor a endorsement evidencing such insurance coverage. The requirements of this Section may be satisfied by delivery to Grantor evidence reasonably satisfactory to Grantor of equivalent insurance coverage provided by membership in a governmental agency self-insured program. 7. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easements or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easements including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easements and with knowledge of the matters set out in Section 6 of the 4 EXHIBIT B Exchange Agreement. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 8. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any Grantor by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise from the negligence or willful misconduct of the Grantor): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Easements; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the Easements. 9. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Easements by Grantee, or directly or indirectly from any state or condition of the Easements, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Patrol and Maintenance Easement Agreement. 10. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 5 EXHIBIT B Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354-5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 If to Grantee: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 11. Subordination. The Easements shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the 6 EXHIBIT B arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1469. 0) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. 7 EXHIBIT B (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: GRANTEE: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: EXHIBIT C RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: MidPeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attn: SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103 27383. CODE SECTION 11922 BY EASEMENT AGREEMENT DISTRICT PARKING ACCESS EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and 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 ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto, being a part of Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the"Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-02 (the "District Parcel"). C. � Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July 9, 2003 wherein the Parties have agreed to convey to each other certain reciprocal rights, and that allow for the possible development, benefits and uses concerning the construction, use and operation of a permit parking lot ("Permit Parking Lot") to the north of the parking lot which Center has a non-exclusive easement under an Easement Agreement(Center Parking Lot Easement)dated July 9, 2003. 1 EXHIBIT C D. Grantee desires to have the ability to provide public vehicular access to an area reserved for the Permit Parking Lot across portions of the Center Parcel, if this Permit Parking Lot is determined to be necessary and approved in the future by Grantee NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Grant of Easement. (a) Access Easement. Grantor hereby grants to Grantee a non- exclusive easement for the right of access over, across and through portions of the Center Parcel for vehicular traffic from Bear Creek Road to the District Parcel and the area reserved for a potential Permit to Parking Lot for up to 15 standard sized vehicles located at the northeast corner of the Center Parking Lot Easement, as more fully set forth in the plat and legal description attached hereto as Exhibit C which is incorporated herein by this reference. References in this Agreement to the term "Easement" shall mean the access easement granted pursuant to this Section 1. (b) Definition of District Parking, Access Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Parking Access Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Parking Access Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Easement shall be perpetual unless terminated pursuant to Section 1(g)herein. 1 (d) Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the portions of the District Parking Access Easement subject to the terms and conditions set forth in this Agreement; provided that such use shall not unreasonably interfere with the Easement or its intended purposes. (e) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other, and shall specifically not be used for alternative pedestrian ingress and egress from Bear Creek Road to and from the potential Permit Parking Lot. Furthermore, the Easement shall only be used by District, its officials, employees, agents rconsultantsllectiv 1 District Licensees or those District contractors, a e s o (collectively,e o g ( Y, ) Y Licensees carrying a validly issued permit, issued b District for parking at the potential Permit � g Y Y P g Parking-. Lot. i 2 i EXHIBIT C (f) Repair and Maintenance. Center shall be solely responsible for the maintenance and repair of the District Parking Access Easement; provided, however, that if any damage is caused to the District Parking Access Easement due solely to the negligence or willful misconduct of District or any of District's Licensees, then District shall be required at its option to either promptly repair such damage to Center's reasonable satisfaction or to reimburse Center for the reasonable cost of repairing such damage. (g) Termination. The term of the above-described District Parking Access Easement shall commence; (i) upon issuance of all requisite governmental approvals, if any, to construct or improve the Permit Parking Lot; (ii) compliance by District with the provisions of Article 5 below (Insurance); (iii) upon delivery to the Grantor of the REA signed by all requisite Parties; and (iv) delivery of written notice to the Grantor from the Grantee that Grantee use of the District Parking Access Easement has commenced ("Conditions"); provided, however, that if such Conditions have not been satisfied on or before the earlier of the tenth anniversary of the recordation of this Agreement or December 31, 2013, the grant of easements contemplated under this Agreement shall cease and be of no further force or effect. Grantor shall have the right to terminate this Easement upon Grantee's negotiation, construction, and commencement of use of an alternate route for ingress and egress on District's Parcel, all as more fully set forth in Section 5 of the REA. Grantee shall provide Grantor with a quit claim deed, as necessary, suitable for recordation in Santa Clara County, verifying that this Easement has been so terminated. 2. Approval of Drawings and Location. (a) Access Easement Area Improvements. The improvements which are currently constructed within the District Parking Access Easement shall be referred to herein as the "Access Easement Area Improvements". Any subsequent material changes to the Access Easement Area Improvements may be made at Grantor's sole discretion but shall not unreasonably interfere with the Easement. (b) District Planning and Use of Permit Parking Lot. As part of the District's Master Planning process for the Bear Creek Redwoods Open Space Preserve, District shall consult with the Grantor on any proposed site plan for Permit Parking Lot. Prior to approval by District's Board of Directors and submittal of any such plans to the County of Santa Clara, District shall submit a Site Plan showing the location and dimensionkof the proposed District Permit Parking Lot to Grantor for comment. It is further understood that the District will consult with Grantor if a Permit Parking Lot is included in the Master Plan so as to minimize any impacts to or use conflicts with Grantor's adjacent property and use of the Center Parking Lot Easement. 3. Permits and A 42provals. Grantee, at its sole cost and expense, shall secure all necessary approvals and permits prior to commencement of the initial construction of any potential Permit Parking Lot Improvements. Grantor shall reasonably cooperate with Grantee to obtain such approvals and permits, if necessary. 3 EXHIBIT C 4. RNuirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof. 5. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the District Parking Access Easement, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than Five Million ($5,000,000) per occurrence. Grantor shall be named as additional insureds on such policy. Prior to the commencement of this Easement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. The requirements of this Section may be satisfied by delivery to Grantor of evidence of equivalent issuance coverage provided by membership in a government agency self-insurance program. 6. As-Is Conve, ay nce. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 7. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed 4 I'� m EXHIBIT C upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations,. claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willfu l misconduct of the Indemnified Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the District Parking Access Easement; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the District Parking Access Easement. 8. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the District Parking Access Easement by Grantee, or directly or indirectly from any state or condition of the District Parking Access Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Easement Agreement. 9. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: MidPeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan, Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 5 EXHIBIT C 10. No Dedication. Nothing herein contained shall be deemed to be a gift or be construed as a dedication of any portion of the District Parking Access Easement, or portion thereof, to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement shall be strictly limited to and for the purposes herein expressed. 11. Subordination. The Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any fights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No PartnershiR. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. 6 EXHIBIT C (b) Caption . The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. 0) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. I i . li i EXHIBIT C IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: GRANTEE: MIDPENINSU LA REGIONAL OPEN SPACE DISTRICT T By: Name: Its: Date: EXHIBIT D RECIPROCAL EASEMENT AND USE AGREEMENT This Reciprocal Easement and Use Agreement ("REA") dated as of July 9, 2003, is by and between PRESENTATION CENTER, LOS GATOS, a California corporation ("Center") and 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 ("District"). District and Center are sometimes referred to in this REA singularly as a "Party" and together as "Parties". RECITALS A. Center is the owner of certain real property situated in the County of Santa Clara, State of California and more particularly described in Exhibit A attached hereto being a part of Assessor's Parcel numbers 544-31-005 and 006 (the "Center Parcel"). B. District is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-002 (the "District Parcel"). C. Center and District have entered into that certain Easement Agreement dated July 9, 2003 ("Center Parking Lot Easement") in which District granted to Center a non-exclusive easement for ingress, egress and certain accessory uses more specifically described in the Center Parking Lot Easement, attached hereto and included by this reference as Exhibit C. D. District may construct a separate permit parking lot northeast of the Center Parking Lot Easement (hereafter "Permit Parking Lot") Pursuant to a separate Easement Agreement dated July 9, 2003, ("District Parking Access Easement"), Center has granted a vehicular access easement to District in order that District personnel and invitees may gain access to the potential Permit Parking Lot from Bear Creek Road, along a portion of the Center roadway and through a portion of the Center Parking Lot Easement. The District Parking Access Easement is attached hereto as Exhibit D and included by this reference. E. Center and District may, from time to time, wish to use portions of each other's parking areas, all in accordance with the terms of this Agreement. The Parties also wish to agree to terms for any construction, repair and maintenance of certain improvements and for certain cost sharing responsibilities. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Center Parking,Lot Easement, From District to Center. (a) Grant of Center Parking Lot Easement. The terms and conditions of the Center Parking Lot Easement are set forth in Exhibit C and are incorporated herein by this reference. 1 i I EXHIBIT D (b) Construction. At the sole cost and expense of Center, Center shall construct the initial improvements which are more fully specified in Exhibit D to the Center Parking Lot Easement Agreement. (c) Maintenance and Repair Obligations. Center shall be solely responsible, at its sole cost and expense, for the maintenance and repair of the Center Parking Lot Easement as more fully set forth in Section I E of the Center Parking Lot Easement attached hereto as Exhibit"C." f d Indemnification. Center shall indemnify, defend and hold O Y� harmless, District as more fully set forth in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit C. 2. District Permit Parking Lot. Pursuant to this REA, District may determine, in its sole discretion through its comprehensive use and management planning process and any other applicable law, including but not limited to the California Environmental Quality Act (CEQA), to develop and construct a Permit Parking Lot for approximately 15 standard sized vehicles on District land northeast of the Center Parking Lot Easement. (a) Grant of District Parking Access Easement, From Center to District. Center has granted to District an access easement for vehicular traffic from Bear Creek Road, over portions of the Center Parcel to the District Permit Parking Lot, all as more fully set in the District Parking Access Easement, the terms and conditions of which are set forth in Exhibit D and incorporated by this reference. (b) Consultation. District agrees to consult with Center on any proposed development or modification of the Permit Parking Lot to be located northeast of the Center Parking Lot Easement. The intent of such consultation is to minimize potential impacts on the Center and its activities that may result from public use of the Permit Parking Lot District shall avoid any development design, plan or proposal which overburdens the District Parking Access Easement identified in Section 2(a) and Exhibit D of this REA. (c) Maintenance and Repair Obligations. District shall be responsible, at District's sole cost and expense, for the maintenance and repair of the Permit Parking Lot and the fence and all other improvements located thereon (collectively, the "Permit Parking Lot Improvements"); provided, however, that if any damage is caused to such Permit Parking Lot Improvements due to any negligence or willful misconduct of Center or Center's Licensees, then Center shall'be required to reimburse District for the reasonable cost of repairing such damage. For the purposes of this Agreement, Center's Licensees means Center's agents, employees, licensees, guests, and other invitees. (d) Compliance with Law. District shall comply with all applicable federal, state and local law, statutes, rules, regulations, ordinances and other legal requirements relating to District's construction activities within the Permit Parking Lot including without limitation to the California Environmental Quality Act(CEQA). 2 I J EXHIBIT D (e) Indemnification. District shall indemnify, defend and hold harmless, Center as set out in Section 6 of the District Parking Access Easement, attached hereto as Exhibit E. (f) No Liability. Center shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Center resulting from or arising out of any act or omission by District, or the use or occupancy of the Permit Parking Lot by District, or directly or indirectly from any state or condition of the Permit Parking Lot, except a state or condition caused solely by the negligence or willful misconduct of Center. 3. District Use of the Center Parking Lot Easement. (a) Access to Permit Parking Lot. District and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for pedestrian and vehicular access to a Permit Parking Lot as set out in the District Parking Access Easement. Neither District nor its Licensees shall use any portion of the Center Parking Lot Easement in any manner which is inconsistent with the Center Parking Lot Easement. (b) Parking. From time to time in accordance with the provisions of this Agreement, District may use portions of the Center Parking Lot Easement for special events, or at other times when District business requires,pursuant to the following conditions: (i) District gives Center at least 10 days' written notice of its request to use the Center Parking Lot Easement and obtains Center's consent which shall not be unreasonably withheld, conditioned or delayed; and (ii) District is in compliance with the indemnity provisions of Section 3(c) below; and (iii) District's use of the Center Parking Lot Easement would not cause a violation of the Center's Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25-02P-02A, dated February 6, 2003, as may be amended from time to time hereafter("CUP"). (c) Indemnity. In the event District uses all or a portion of the Center Parking Lot Easement pursuant to this Section 3, District will protect, indemnify, defend, and hold Center and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages,penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Center Indemnity Party): (a) any accident, injury or 3 1 EXHIBIT D death of persons(including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement during District use of the Center Parking Lot Easement under this Section 3; or (b) arising out of or in any way connected with District's use, possession, occupation, operation, maintenance or management of the Center Parking Lot Easement under this Section 3. 4. Center Use of a Permit Parking Lot. (a) Access to Permit Parking Lot. In the event, District decides to construct a Permit Parking Lot as described in this Agreement. Center and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for vehicular access to the Permit Parking Lot. (b) Parking. From time to time in accordance with the provisions of this Agreement, Center may use portions of the Permit Parking Lot for special events or business purposes pursuant to the following conditions: (i) Center determines, in good faith, that the Center Parking Lot Easement would be inadequate for the event in question; (ii) Center gives District at least 10 days' written notice of its request to use the Permit Parking Lot and obtains District's consent which shall not be unreasonably withheld, conditioned or delayed; and (iii) Center is in compliance with the indemnity provisions of Section 4(c) below. Notwithstanding any provision in this REA to the contrary, District may withhold its consent under this Section 4(b) if it determines, in its sole discretion, that the Permit Parking Lot will be fully utilized or needed for District activities and/or District Licensees. (c) Indemnification. In the event Center uses all or a portion of the Permit Parking Lot pursuant to this Section 4, Center will protect, indemnify, defend, and hold District and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the District Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Permit Parking Lot during Center's use of the Permit Parking Lot under this Section 4; or(b) arising out of or in any way connected with Center's use, possession, occupation, operation, maintenance or management of the Permit Parking Lot under this Section 4. 4 i EXHIBIT D 5. Construction of Alternate Access Road from Bear Creek Road to District Preserve (a) Covenants to Cooperate. District, at its sole cost and expense, and at its sole discretion, may explore the feasibility of constructing a separate or a shared alternate access road(hereafter"Alternate Access Road") for the benefit of District from Bear Creek Road to the District Permit Parking Lot or any other District public facility that may be developed in the future. The Parties acknowledge that such an Alternate Access Road might commence at the Center's entrance to the Center Parcel from Bear Creek Road or may commence elsewhere on Bear Creek Road. Construction of an Alternate Access Road may necessitate, to some degree, a widening and or reconfiguration of the portion of the existing Center driveway as shown on Exhibit_ and its entrance closest to Bear Creek Road, as well as some reconfiguration of Bear Creek Road itself, all subject to applicable ordinances, rules, regulations; and including, but not limited to, the California Environmental Quality Act (CEQA). District and Center agree to cooperate with each other in good faith, in connection with satisfying all reasonable requirements with respect to the study of the feasibility of such an arrangement. The Parties understand that such plans are preliminary and not binding. In the event District proposes to construct an Alternate Access Road to be located, in whole or in part, upon the Center Parcel, such proposal will be subject to a comprehensive, separate Memorandum of Understanding to be negotiated, drafted and executed by the Parties taking into account, without limitation, all applicable laws and the following criteria: (i) Aesthetics. The scenic qualities along Bear Creek Road and entrances to the Presentation Center shall be protected from adverse impact to the maximum extent possible; (ii) Signage. The Parties recognize that it is of paramount importance that appropriate signage be installed to avoid any confusion as to the location and identity of Presentation Center; (iii) Safety. All plans and specifications shall take into account any increased traffic flow on the portions of Bear Creek Road surrounding the entrance to Presentation Center and/or the proposed District facility; (iv) Public Trails. District would take full responsibility for evaluating the feasibility of establishing appropriate traffic control measures and other appropriate improvements along Bear Creek Road for the purpose of providing a public trail across Bear Creek Road, thereby connecting public trails on both sides of Bear Creek Road. (v) Conditions of Approval. District acknowledges receipt of the Center's Architectural and Site Approval Conditions of Approval for (File No. 8351-44-25- 02P-02A), dated February 6, 2003, relevant portions of which are attached hereto as Exhibit E ("Conditional Use Permit"), which include certain street and drainage improvements in and around the District Parking Access Easement. Center is contemplating entering into a Deferred Improvement Agreement as specified in the Conditions of Approval. If necessary, District and Center agree to cooperate, in the event the Deferred Improvements Agreement conflicts with 5 EXHIBIT D District's own Improvement Plans for the Alternate Access Road (defined below), to develop a mutually acceptable agreement for construction of the an Alternate Access Road for District which will also permit Center to complete its required Deferred Improvements at Center's sole cost or to otherwise incorporate the Deferred Improvements in District's Improvement Plans at Center's sole cost. Nothing in this Section 5 shall interfere with Center's completion of or other compliance with the Conditions of Approval, at its own cost and election. (b) Preparation of Plans. In the event District proposes to construct an Alternate Access Road to be located in whole or in part upon the Center Parcel, and after Center and District execute the Memorandum of Understanding contemplated in this REA, District shall cause the preparation of plans and specifications for the improvements being constructed and installed by District ("District Improvement Plans") for review and approval by the County of Santa Clara. The District Improvement Plans, and any and all modifications thereto, shall conform to the Memorandum of Understanding and to applicable County standards and regu g regulations. Prior to submitting to the County the District Improvement Plans, or any modification thereto, District shall deliver the District Improvement Plans to Center for approval of such portion of the District Improvement Plans as are located on the Center Parcel, which approval shall not be unreasonably withheld, conditioned or delayed. If Center does not deliver to District written notice of approval or disapproval of the District Improvement Plans within 20 days after Center's receipt of such plans, the District Improvement Plans shall be deemed approved, but only if District has first given Center telephone notice on or before the 15t' day that it intends to deem such Plans approved. Absent such telephone notice, the Plans shall not be deemed approved upon Center's failure to timely respond. Such Plans may be resubmitted for Center approval. If Center does not deliver to District written notice of approval or disapproval of any modification of the District Improvement Plans within 10 days after Center's receipt of such modification, the modification shall be deemed approved. (c) Permits and Bonds. If District determines to construct the Alternate Access Road, District shall use reasonable efforts to process and obtain all permits and approvals of the County and any other governmental authorities required to construct and install the Alternate Access Road in accordance with the District Improvement Plans. District shall provide payment and performance bonds to guarantee such construction and the payment of all construction costs arising thereunder, to the extent required by the County and other governmental authorities (d) In accordance with the proposed Memorandum of Understanding, Center shall grant District a temporary construction license, as necessary and subject to a mutually agreeable License Agreement ("License"), to construct and install the District Improvements if any portion of the Alternate Access Road is located upon the Center Parcel. Any such license or construction activity shall be preconditioned on, in addition to the other requirements of this Article 5, minimizing any disturbance or inconvenience to Center's ongoing retreat and business operations. (e) Insurance. Prior to the entry onto the License area for the Center Parcel for purposes of constructing and installing the Improvements, District shall obtain and maintain throughout the construction period until completion, comprehensive general liability 6 EXHIBIT D and property damage insurance, written on an occurrence basis, insuring against personal injury, death or property damage in the amount of at least $5,000,000 per occurrence. District shall be the named insured and Center shall be an additional insured under such policy. Evidence of such insurance shall be delivered to Center prior to commencement of any work either on the License area or elsewhere on the Center Parcel. District shall also satisfy all insurance requirements applicable under the terms of governmental permits or approvals applicable to the construction and installation of the Improvements. The requirements of this Section may be satisfied by delivery to Center of evidence of equivalent insurance coverage provided by mentbership in a government agency self insurance program. (f) Cost of Construction. District shall construct and install the Alternate Access Road at District's sole cost and expense. Center shall not be responsible for any costs incurred by District in connection with construction of the Alternate Access Road including, without limitation, costs occasioned by a County requirement that Bear Creek Road be widened to accommodate District's improvements. However, Center may request District to incorporate Center's Deferred Improvement Plans, into District's Improvement Plans, pursuant to Section 5(a)(v). In that event, Center and District will negotiate in good faith to develop a mutually acceptable cost sharing agreement for such improvements Notwithstanding the above, Center will pay District for any increased costs District incurs for construction of the Alternate Access Road which were incurred solely as a result of the incorporation of Center's Deferred Improvement Plans. (g) Construction Indemnities. Unless otherwise mutually agreed, District agrees to indemnify and hold harmless Center from any claims, costs, losses, expenses and liabilities (including reasonable attorney's fees) incurred in connection with all claims, arising from or a result of any mechanic's liens, stop notices or other claims regarding materials supplied or work performed, or the death, or accident, or injury, caused to any natural person, or to the property of any person, as shall occur by reason of the installation of the Alternate Access Road except for claims caused by the negligence or willful misconduct of the Center and its permittees. The form of indemnity shall be mutually acceptable to the Parties. (h) Term. The term of the obligation of the Parties under this Article 5 of the REA shall commence upon the mutual execution of this REA and the subsequent delivery of the REA to the respective Parties. This Article 5 shall terminate upon the later of 10 years from the mutual execution date of this REA or December 31, 2013. 6. Existing Easements. The provisions of this Agreement are subject to any and all existing easements or rights of way affecting the Center and District's Parcels. In the event of any conflict between this Reciprocal Easement and Use Agreement and the terms of the Center Parking Lot Easement or District Parking Access Easement (collectively, "Easements") the terms of said Easements shall prevail. 7. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United I� EXHIBIT D States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to District: Midpeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: L. Craig Britton, General Manager Telephone: (650)-691-1200 Facsimile: (650)-691-0485 If to Center: Presentation Center, Los Gatos 19480 Bear Creek Road, Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward,Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 8. No Partnership. Nothing contained in this Agreement shall be construed as making Center and District joint venturers or partners. 9. Miscellaneous. (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement 8 EXHIBIT D (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing, unless otherwise stated in this Agreement. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any arbitration action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (j) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (k) No Assignment. Except as otherwise set forth in the various Easement Agreements, this REA may not be assigned, in whole or in part, to any third party or affiliate of either Center or District without the prior written consent of the other Party. Any purported assignment made without requisite authority shall be deemed null and void. This REA may not,under any circumstances, be recorded. 9 EXHIBIT D (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this REA as of the date first written above. CENTER: PRESENTATION CENTER, LOS GATOS By: Name: Its: i Date: DISTRICT: I MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: ATTEST: By: District Clerk Date: 10 I Exhibit E PURCHASE AGREEMENT This Agreement is made and entered into by and between PRESENTATION CENTER, LOS GATOS, a California Corporation hereinafter called "Seller" 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, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara and the County Santa Cruz 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, Seller wishes 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. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of Santa Clara and the County of Santa Cruz, State of California, containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 005 and 006 consisting of approximately 148.96 acres, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03 consisting of approximately 48.99 acres. Said property is further described in the Legal Descriptions attached to Preliminary Reports as: A. Exhibit A Old Republic Title Company Preliminary Report number 526475 dated February 21,2003 describes Santa Clara County Assessor's Parcel Numbers 544- 50-003, 005 and 006 (the "Santa Clara County Property").. Purchase Agreement Exhibit E Page 2 B. Exhibit B Old Republic Title Company Preliminary Report number 226342 dated February 12, 2003 describes Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03(the "Santa Cruz County Property"). Copies of said Preliminary Reports are attached hereto as Exhibit "A" and "B", and are 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". 2. Purchase Price. The total purchase price ("Purchase Price") for the Property and other rights granted herein shall be Three Million Three Hundred Sixty-Five Thousand and No/100 Dollars ($3,365,000.00). A Ten Thousand and No/100 Dollars ($10,000.00) Deposit Fee is paid into escrow in accordance with Section 14 of this Agreement ("Deposit Fee"). The Deposit Fee shall be applied to the Purchase Price at Closing. 3. LIQUIDATED DAMAGES. IF DISTRICT FAILS TO COMPLETE THIS PURCHASE BY REASON OF ANY DEFAULT OF DISTRICT, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO DISTRICT. BY INITIALING THIS SECTION 3, DISTRICT AND SELLER AGREE THAT IN EVENT OF SUCH DEFAULT BY DISTRICT 1 IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (2) AN AMOUNT EQUAL TO THE DEPOSIT FEE MADE BY DISTRICT AS SET OUT IN SECTION O 2 OF THIS AGREEMENT IS A FAIR AND REASONABLE ESTIMATE OF SUCH DAMAGES AND SHALL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELLER; (3) THE PAYMENT OF LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER AT LAW OR IN EQUITY, AND SELLER WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE; (4) ESCROW HOLDER SHALL PAY THE DEPOSIT FEE TO SELLER AS LIQUIDATED DAMAGES; AND (5) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OR THE CALIFORNIA CIVIL CODE. NOTWITHSTANDING THE ABOVE, IN THE EVENT THIS AGREEMENT IS TERMINATED BY REASON OF ANY DEFAULT BY SELLER, OR BY REASON OTHER THAN THE DEFAULT OF THE DISTRICT, THE DEPOSIT FEE SHALL BE RETURNED IN FULL TO THE DISTRICT. ALL INTEREST ACCRUING FROM THE DEPOSIT FEE SHALL BE CREDITED TO THE DISTRICT'S ACCOUNT. SELLER INITIAL DISTRICT INITIAL i o Exhibit E Purchase Agreement Page 3 4. Escrow. Promptly upon execution of this Agreement, an escrow shall be opened at Old Republic Title Company, 1900 The Alameda, San Jose, CA 95126 (408) 557-6400 (Escrow number 526475) or other title company acceptable to District and Seller (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 July 31, 2003, 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 Deeds (as defined below) to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. B. Seller 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. Seller shall deposit into the escrow on or before the Closing: (i) An executed and recordable Grant Deed, covering the Santa Clara County Property as described in said Exhibit "A". (ii) An executed and recordable Grant Deed, covering the Santa Cruz County Property as described in said Exhibit "B". D. District shall deposit into the escrow, on or before the Closing: (i) The required Certificates of Acceptance for the Grant Deeds duly executed by District and to be dated as of the Closing; (ii) District's check payable to Escrow Holder for the Purchase Price in the amount of Three Million Three Hundred Fifty Five Thousand and No/100s ($3,355,000.00) which is the balance of the Purchase Price of Three Million Three Hundred Sixty Five Thousand I Exhibit E Purchase Agreement Page 4 and No/100 Dollars ($3,365,000.00) as specified in Section 2. The $10,000.00 Deposit Fee set out in Section 14 of this Agreement shall be applied to the Purchase Price. E. Seller and District shall share (50150) 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 Seller in the manner customary in Santa Clara and Santa Cruz Counties. All current property taxes on the Property shall be pro-rated through escrow between District and Seller as of the Closing based upon the latest available tax information using the customary escrow procedures. F. As a condition to close of escrow, Seller shall cause Old Republic Title Company, or other title company acceptable to District and Seller, 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$3,365,000 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exceptions 7, 8, 9, 10, 12, 13,14 and 17 as listed in Preliminary Report No. 526475 (Exhibit "A", Santa Clara County Property) and title exceptions 2, 3, 4, 5 and 6 as listed in Preliminary Report No. 226342 (Exhibit -B", Santa Cruz County Property) (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 Deeds and attendant Certificates of Acceptance to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section 5.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 6. 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. In the event escrow is terminated due to District's default, Seller's remedies shall be as set out in Section 3 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). District Exhibit E Purchase Agreement Page 5 expressly reserves any rights and remedies which it may have against Seller or any other party by reason of a wrongful termination, default or failure to close escrow. 7. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller 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. Seller has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of Seller have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which Seller is a party or to which Seller is bound. B. Hazardous Materials. To the best of Seller's knowledge, there are no underground storage tanks located on, in or under the Property. There are no Hazardous Materials in, on, under, from or affecting the Property which violate federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, refinement, handling, productions or disposal of Hazardous Materials. There is no violation of any federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, handling, production or disposal of Hazardous Materials in, on, under, from, or affecting the Property, and there have been no actions commenced, or, to the best of Seller's knowledge, threatened by any party for noncompliance therewith. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended(49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act(42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. C. No Actions. Seller represents and warrants to District that it is not presently a party to any 'actions, suits, condemnations or proceedings pending or, to the best knowledge of Seller, threatened against or affecting the Property or its use. D. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of Exhibit E Purchase Agreement Page 6 any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof. E. Leases or Occupancy of Premises. Seller warrants that, as of the Closing, there will exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees rees to hold District free and harmless and to J reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). F. Knowledge of Seller. Wherever Sellers knowledge is referenced in this Agreement, such references shall be deemed to be limited solely to the actual knowledge, without imputation and, unless otherwise specifically provided for to the contrary, without independent investigation, inspection or inquiry of Seller. 8. District's Representations and Warranties. District represents and warrants the following to Seller: District has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of District have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of District enforceable against District in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which District is a party or to which District is bound. 9. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or allow any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District p � understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A" and Exhibit `°B" 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. Seller hereby waives any and all existing and/or future claims or rights Seller may have to any relocation assistance, benefits, procedures, or policies as provided in said Exhibit E Purchase Agreement Page 7 laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. Seller 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, as provided for by said Federal Law and any similar California Law. 11. "AS-IS" Purchase and Sale. A. Acceptance of Property Condition. Closing of escrow for the transaction contemplated herein shall constitute District's representation that it has examined and inspected the Property and knows and is satisfied with the physical condition, quality, and state of repair of the Property in all respects and has determined that the same is acceptable to District "as is", and with all faults" condition, and further accepts and agrees to bear all risks regarding all physical conditions and/or defects, latent, patent, or otherwise of the Property except as to the representations and the warranties of Seller contained in this Agreement. District agrees and acknowledges that, except as set forth In this Agreement, no other representations, statements or warranties, express or implied, including any warranties of habitability, merchantability, suitability and fitness for intended purpose have at any time been made by Sellers or their agents, as to the physical condition, quality, value, desirability, or state of repair of the Property. B. Specific Disclosures. District is aware that there is currently a 10 foot by 60 foot green house trailer, a red Datsun pick up truck, a orange International delivery truck and some abandoned personal property located on Santa Clara Assessor's Parcel Number 544-50-003, commonly referred to as the "Christmas Tree Lot". Furthermore, there is an accumulation of trash and other abandoned personal property on Santa Cruz County Assessor's Parcel Number 091-051-02. Seller will not remove any of this property or correct any of these conditions prior to the Closing, or ever, and District agrees to take the Property subject to such conditions. 12. Disclosure of Property Related Documents. A. Document Review. Prior to Seller's execution this Agreement, Seller represents and warrants that Seller has furnished to District or made available for review by District (with the right to photocopy the same) all documents in Seller's possession or control, or reasonably obtainable from Seller's consultants, attorneys or agents, excepting any documents which are privileged or confidential under the attorney client privileges, or subject to the attorney work-product privileges, concerning the Property, including: (i) Reports, studies, audits, investigations, inspections, appraisals, tests, and other inquiry materials concerning any physical condition of the Property, or any improvement, structure, facility, road, utility, or water facilities thereupon, including, but not limited to, the environmental or geotechnical condition of the Property and such improvements; Exhibit E Purchase Agreement Page 8 (ii) Environmental impact reports, CEQA documents, zoning, land use or development applications or documents relating to the Property; (iii) Government licenses, permits, entitlements or certificates applicable to ownership, use, operation or occupancy of the Property; shallcollectivelyref rr the Pr er Related Documents". n The foregoing be referred to as "Property is Upon g g P Y P District's execution of this Agreement, District has reviewed an and all such documents and g Y completed any investigation or inspection of the Property required by it to satisfy itself regarding an concerns District may have related to these Property Related Documents or to the physical Y Y PrtY PY condition of the Property including without limitation environmental, geologic, flood or safety conditions. B. Notice of Acceptance. District's delivery of executed copies of this � rY P Agreement to Seller shall constitute District's written approval of the "as-is" condition of the Subject Property. C. Title. District acknowledges receipt of the documents enumerated in the Preliminary Report No. 526475 (Exhibit "A") as exceptions to coverage identified as Numbers, 12, 13 and 14, and Preliminary Report No. 226342 (Exhibit "B") as exception to coverage identified as number 6 and the rights and obligations associated therewith. 13. Miscellaneous Provisions. A. Access for Investigations. Pursuant to a separate Permission for Access for Inspection of Property dated March 26, 2003 ("Access Agreement"), District and District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") have been and may continue to enter upon the Property for the purpose of inspecting, testing and evaluating the same. A fully executed copy of the Access Agreement is attached hereto as Exhibit "C" and incorporated herein by this reference. Notwithstanding provisions to the contrary, the termination of the Access Agreement shall be contemporaneous with the Close of Escrow under this Agreement. 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. Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such Exhibit E Purchase Agreement Page 9 action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall be entitled to recover from the other party reasonable expenses and attorneys' fees. D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the time for the performance of an of the obligations of the other ii waive an inaccuracies i P Y g PAY Y 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 an condition that is precedent to the performance b such art Y P P Y 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 Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. 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. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission, addressed as indicated as follows: Seller: Presentation Center Attn: Sister Patricia Marie Mulpeters 19480 Bear Creek Road Los Gatos, CA 95033-9519 Exhibit E Purchase Agreement Page 10 Telephone: (408) 354-2346 FAX (408) 354-5226 Copy: John C. Callan Jr. Es PY .q Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 Telephone: (415) 356-4600 FAX (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager Telephone: (650) 691-1200 FAX: (650) 691-0485 If sent by facsimile copy, a confirmed copy of such facsimile notice shall promptly be sent by mail (in the manner provided above) to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other 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. G. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. 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. H. 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. Exhibit E Purchase Agreement Page 11 I. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. 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. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. L. Survival of Covenants. All covenants of District or Seller 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. M. 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; provided, however, that District may assign all of its rights and obligations hereunder to Peninsula Open Space Trust (POST) without further approval of Seller. N. 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. O. 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. P. Broker's Commission. There are no real estate brokers or finders involved in this Agreement. Seller and District shall each indemnify and hold the other harmless from any loss, claim, liability, judgment or expense of whatsoever kind and nature, including attorneys' fees, arising out of, or in connection with, any claim for a brokerage commission or finder's fee by any person claiming through Seller or District, respectively. x x Y f 1 t Exhibit E Purchase Agreement Page 12 Q. 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. R. 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. S. 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 within thirty (30) days of the aggrieved party's written notice to the other, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding 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 of discovery. Hearings shall be held in Santa Clara 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. SELLER INITIAL DISTRICT INITIAL i Exhibit E Purchase Agreement Page 13 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before noon on July 8, 2003, District shall have until midnight July 23, 2003 to accept and execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by Seller 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. As consideration for said irrevocable offer, District has paid into escrow a Deposit Fee and Seller acknowledges receipt of the sum of Ten Thousand Dollars and No/100 ($10,000.00), which shall be applied to the Purchase Price as set forth in Section 2 hereof, and shall constitute liquidated damages pursuant to Section 3 of this Agreement in the event District fails to complete this purchase by reason of a default by the District. 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. Exhibit E Purchase Agreement Page 14 DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN PRESENTATION CENTER SPACE DISTRICT ACCEPTED FOR RECOMMENDATION Date: Michael C. Williams, Real Property Representative APPROVED AS TO FORM: Susan M. Schectman, District Counsel ED FOR APPRO VAL: VAL:O I L. Craig Britton General Manager g APPROVED AND ACCEPTED: President, Board of Directors ATTEST: District Clerk Date: i i : EXHIBIT , A OLD REPUBLIC TITLE COMPANY 1900 THE ALAMEDA • SAN DOSE,CA • 95126 • (408)557-8400 • Fax:(408)249.2314 PRELIMINARY REPORT AMENDED-2/Update Issued for the sole use of: Our Order No. 526475-NM MIDPENINSULA REGIONAL OPEN SPACE 330 Distel Circle Reference Los Altos, California 94022 When Replying Please Contact: Attention: Tom Fischer Nicole Monsees Buyer: Midpeninsula Regional Property Address: 19480 Bear Creek Road, Los Gatos, CA [Unincorporated area of Santa Clara County] In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 of 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 Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) 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 requested. Dated as of February 21st ,2003 ,at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to,See Attached Page 1 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE as to Parcels One, Two, Three, Four, Five and Six and EASEMENTS as to Parcels Seven and Eight. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, Los Gatos, a California corporation Page-2 of 12 Pages ------------ OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The land referred to in this Report is situated in the County of Santa Clara , in the unincorporated area, State of California,and is described as follows: PARCEL ONE: A part of Section 6, Township 9 South, Range 1 West, M.D.M. Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 89' 50 ' West, 1021.1 feet to an iron pipe in the center line of the Bear Creek Road; thence along the said center line North 50' 30' East, 283.8 feet; thence North 66' 15' East, 283.8 feet; thence North 12' 00' West, 194,7 feet; thence North 85' 45' East, 132.66 feet; thence North 67' 00' East, 135.3 feet; thence North 13' 00' East, 181.5 feet; thence North 68' 30' East, 158.4 feet; thence South 66' 30' East, 166.3 feet; thence North 89' 09' East, 90.8 feet; thence North 39' 32 ' East, 140.7 feet; thence North 27' 36' East, 108.1 feet; thence North 2' 51 ' East, 201.2 feet; thence North 60' 07' East, 241.3 feet; thence North 4' 49' East, 216.3 feet; thence North 22' 45' East, 110.35 feet; thence North 55' 24' East, 180.75 feet; thence North 23' 04' East, 103.15 feet; thence North 7' 00' West, 93.85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore tree one foot in diameter bears South 28' 41' West, 36. 8 feet and a nail in a Madrone tree bears North 22' 18' West, 59.85 feet; thence along the center line of said lane, South 70' 12' East, 123.1 feet; thence South 55' 33' East, 72.92 feet; thence South 42' 20' East, 91.45 feet and South 32' 13' East, 127.75 feet to an iron pipe; thence running North 56' 30' East, 109.7 feet to an iron pipe; thence North 52' 04' East, 475.12 feet to a 2 inch iron pipe in the bottom of a ravine; thence down the bottom of said ravine the following courses and distances: South 67' 47' East, 140.55 feet; South 59' 31 ' East, 84.4 feet; South 47' 57' East, 70.8 feet; South 49' 39' East, 71.2 feet; South 61' 25' East, 123.8 feet; South 42° 24' East, 32.5 feet; South 56' 16' East, 73.9 feet; South 63' 15' East, 82.5 feet; South 43' 46' East, 85.1 feet; South 48' 50' East, 80.7 feet; South 37' 16' East, 115. 6 feet; South 26' 21' East, 54.4 feet to a point in the center line of a creek known as Collins Creek; thence up the center line of Collins Creek the following courses and distances: South 45' 16' West, 63. 6 feet; South 32' 48' West, 56.6 feet; South 42' 48' West, 72.1 feet; South 13' 15' West, 54.0 feet; South 44' 55' West, 75.1 feet; South 72' 12' West, 40.3 feet; South 50' 32' West, 47.1 feet; South 61' 57' West, 65.7 feet; South 40' 07' West, 34.2 feet; South 33' 17' West, 72.6 feet; thence South 44' 41' West, 94.3 feet; South 11' 09' West, 49.6 feet; South 61 40 ' West, 72.2 feet; South 33' 46' West, 70.4 feet; South 68' 26' West, 43.7 feet; South 38' 23' West, 139.8 feet; South 53' 37' West, 94.7 feet; South 81' 47' West, 52.6 feet; South 37' 20' West, 51.0 feet; South 54' 14' West, 104.5 feet; South 80' 53' West, 200.00 feet; North 78' 15' West, 134.2 feet; South 73' 27' West, 38.5 feet; South 81' 10' West, 29.4 feet; South 47' 54' West, 52.4 feet; South 63' 37' West, 109.4 feet; South 30' 55' West, 59.5 feet; South 48' 23' West, 219.2 feet; South 57' 29' West, 68.15 feet; South 41' 40' West, 76.2 feet; South 61' 05' West, 48.0 feet; and South 62' 06' West, 51.0 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pipe, a redwood tree 8 inches in diameter bears North 71' 45' East, 36.0 feet and a tan oak tree 16 inches in Page 3 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update diameter bears North 41' East, 47.5 feet; thence along the line between said Sections 6 and 7, North 88' 40' West, 408.0 feet to the place of beginning. PARCEL TWO: Beginning at an iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M. ; and running thence along the 1/4 Section line through the center of Section 7, South 0' 35' West, 96.9 feet to a one inch iron pipe in the bottom of a ravine known as Collins Creek; and thence continuing South 0' 35' West, 563.1 feet to a one inch pipe from a width of a one foot tan oak bears South 45' 00' East, 3.2 feet and a 6 inch tan oak bears North 30' 00' East, 11.3 feet; thence parallel with the line between Sections 6 and 7, North 89' 50' West, 730.3 feet to a one inch pipe in the bottom of said Collins Creek and continuing North 89' 50' West, 364.8 feet to an iron pipe in the center line of the Bear Creek Road, from which 5 nails in a redwood stump 7 feet in diameter bears North 46' 37' East, 18.36 feet and a maple tree 6 inches in diameter bears South 49' 54' East, 26.33 feet; thence along the center line of the Bears Creek Road, North 0' 37 ' East, 130.9 feet; thence North 31' 34' East, 98.9 feet; thence North 2' 58' East, 126.6 feet; thence North 38' 42' East, 133.0 feet; thence North 54' 33' West, 141.0 feet; thence North 21' 57' East, 143.4 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West from which an old blaze on a redwood stump 4 feet in diameter bears North 5' West, 37 feet. and 10 inch maple tree bears South 25' 04' East, 30. 8 feet; thence along the line between Sections 6 and 7, South 89' 50' East, 1021.1 feet to the place of beginning and being a part of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.W. PARCEL THREE: All that certain real property situate partly within the County of Santa Clara and partly within the County of Santa Cruz, State of California, described as follows: The North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West and the Northeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. EXCEPTING THEREFROM, however, that certain tract conveyed by Lucy Jane Russell and John, Russell, her husband to Mary A. Laddick by Deed dated December 10, 1886 and recorded in the Office of the Recorder of Santa Clara County on January 11, 1887 in Book 87 of Deeds, Page 821, and more particularly described as follows: Commencing at the intersection of the East line of Mellotts Road with the North line of the North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M.; and running thence Southeasterly and Southerly along the East line of said Melotts Road at a place called the "Grecian Band"; thence Northerly and Northeasterly along the West side of the County Road, about 44 rods to.the intersection thereof with the said North line of Section 7 aforesaid; and thence West along the said North line of said Section 7 about 42 rods to the place of beginning. Containing approximately 6 acres and being a part of said North 1/2 Page 4 of 12 Pages I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M. EXCEPTING THEREFROM also, so much thereof, as is described as Parcel Number Two hereinabove. PARCEL FOUR: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California described as follows: Commencing at a point which is the Northeast corner of the Southwest quarter of Section 7, Township 9, South Range 1 West and running thence Southerly and along the Easterly line of said quarter Section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly courses and following the meandering of the center line of said Summit Road to a stake marked "S C12211; thence Westerly in a straight line 145 feet to a stake set in the center of said Zayante Road; thence Westerly and along the center of Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9 South, Range 1 West (said North line being the dividing line between lands of John and Sarah V. Hetherington and the land of W. D. Von Lone) to the place of beginning. Excepting however therefrom the portion thereof known as the Apple Orchard. I PARCEL FIVE: All that certain real property situate partly within the County of Santa Crux and partly within the County of Santa Clara, State of California, described as follows: i Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South, Range 1 West, Mount Diablo Base of Meridian. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL SIX: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: The Northwest 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West and the Southeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. Excepting from Parcels 1, 2, 3, 4, 5, and 6, above, any portion of said Parcels I Page 5 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update lying within Santa Cruz County, California. PARCEL SEVEN: An Easement for the installation, construction, maintenance and repair of a water pipeline, being a strip of land 20 feet in width, situate in the County of Santa Clara, State of California, lying entirely within those certain parcels of land designated as Parcel Two and Parcel Eleven, conveyed by The California Province of the Society of Jesus, a corporation, to Hong Kong Metro Realty Inc., a corporation, by Deed dated September 12, 1989, recorded September 13, 1989 in Book L091 at Page 104, Official Records of Santa Clara County, being 10 feet on each side of the following described center line: Beginning at a point on the general Westerly boundary of the existing State Highway 17, known as Section C, Route 5, District IV, Santa Clara County; said point being opposite to Engineer's Centerline Station 163+00, as shown on that certain State of California Department of Public Works Division of Highways "Right-of-Way Record Map, R-52.1511; said point also being the Northerly terminus of the line described as "North 24' 25' East, 580.00 feet" in that certain Deed to the State of California, recorded November 22, 1937 in Book 843, at Page 569, Official Records of Santa Clara County; thence along said Westerly boundary, South 24' 25' 00" West, a distance of 510.22 feet to the true point of beginning; thence leaving said Westerly boundary along a now existing waterline, the following courses: North 67' 01 ' 11" West, a distance of 5. 63 feet; thence South 81' 36' 30" West, a distance of 54. 97 feet; thence South 43' 29' 39" West, a distance of 337.23 feet; thence South 33' 30' 37" West, a distance of 139. 66 feet to a point designated as "Point A"; thence North 65' 26' 45" West, a distance of 231.38 feet; thence South 63' 23' 26" West, a distance of 80.57 feet; thence North 71' 51' 46" West, a distance of 269.78 feet; thence North 53' 43' 23" West, a distance of 123. 96 feet; thence North 66' 16' 40" West, a distance of 104.25 feet; thence North 48' 21' 18" West, a distance of 156.44 feet to a point of curvature; thence Westerly along a 150.00 foot radius tangent curve to the left through a central angle of 57' 27' 47", a distance of 150.44 feet to a point of tangency; thence South 74' 10' 55" West a distance of 63.54 feet to a point of curvature; thence Westerly along a 100 foot radius tangent curve to the right through a central angle of 48' 17' 19", a distance of 84.28 feet to a point of tangency; thence North 57' 31' 46" West, a distance of 117.58 feet; thence North 87' 31' 20" West, a distance of 173.81 feet; thence South 79' 56' 02" West, a distance of 52.37 feet to a point designated as "Point B"; thence South 35' 56' 51" East, a distance of 59.05 feet; thence South 48' 33' 24" East, a distance of 135. 94 feet to a point of curvature; thence Southerly along a 65.00 foot radius tangent curve, through a central- angle of 81' 20' 40", a distance of 92.28 feet to a point of tangency; thence South 32' 47' 16" West, a distance of 228.03 feet; thence South 51' 35' 12" West, a distance of 119.00 feet; thence South 04' 34' 59" East, a distance of 115. 60 feet; thence South 19' 48' 54" .West, a distance of 66.38 feet; thence South 54' 53' 13" West, a distance of 167.04 feet; thence North 83' 23' 10" West, a distance of 86.82 feet; thence South 47' 45' 21" West, a distance of 23.30 feet; thence South 09' 36' 07" West, a distance of 59.06 feet; thence South 43* 22 ' 11" West, a Page_§-of 12 Pages I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update distance of 364.83 feet; thence South 26' 15' 11" West, a distance of 37.53 feet; thence South 00' 58' 33" West, a distance of 45.34 feet; thence South 32' 55' 13" West, a distance of 129.01 feet; thence South 64' 10' 01" West, a distance of 102.04 feet to a point of curvature; thence Southwesterly along a 400.00 foot radius tangent curve to the left, through a central angle of 27' 31' 5011, a distance of 192.20 feet to a point of tangency; thence South 39' 38' 11" West, a distance of 81.44 feet; thence North 78' 41' 22" West, a distance of 24.21 feet; thence North 17' 11' 38" West, a distance of 241. 08 feet; thence North 13' 25' 33" East, a distance of 129. 65 feet; thence North 85, 02, 23" West, a distance of 122. 68 feet; thence South 85' 38' 23" West, a distance of 202.60 feet; thence South 00' 00' 24" East, a distance of 41.26 feet; thence South 16' 14' 40" West, a distance of 175.28 feet; thence South 36' 22' 14" West, a distance of 20.23 feet; thence South 84' 29' 12" West, a distance of 240.05 feet to a point of curvature; thence Westerly along a 500.00 foot radius tangent curve to the right, through a central angle of 22' 18 ' 12", a distance of 194. 63 feet to a point of tangency; thence North 73' 12' 36" West, a distance of 172.10 feet; thence North 49' 27' 19" West, a distance of 140.24 feet; thence South 38' 54' 48" West, a distance of 61.71 feet; thence South 23' 23' 22" West, a distance of 105.56 feet; thence South 08' 59' 08" East, a distance of 107.30 feet; thence South 14' 49' 01" West, a distance of 46.08 feet; thence South 33' 11 ' 18" West, a distance of 247. 99 feet; thence South 77' 55' 31" West, a distance of 66.93 feet; thence North 67' 34' 43" West, a distance of 50.52 feet; thence South 80' 21' 44" West, a distance of 37.39 feet, more or less, to a point on the boundary line common to the lands, now or formerly of the Presentation Center, Los Gatos, and Hong Kong Metro Realty; said point bears North 42' 30' West, a distance of 29.14 feet from the Southerly terminus of the line described as "North 42 1/2' West, 2. 90 chains" in the Description of said Parcel Eleven in said Deed recorded in Book L091 at Page 104, Official Records of Santa Clara County; said point also bears South 62' 46' 49" East, a distance of 367.38 feet from a redwood tree stump 6 feet in diameter and 10 feet high, as said stump is described in said Deed; said point also being the terminus of this strip Easement. PARCEL EIGHT: An Easement for the installation, construction, maintenance and repair of a water pipeline and water tank, lying entirely within Parcel Two in the Deed recorded September 13, 1989 Recorder's Document No. 10251767. Beginning at the hereinabove described "Point A"; thence along the hereinabove centerline North 33' 30' 37" East, a distance of 8.55 feet; thence at right angles to said center line, North 56' 29' 23" West, a distance of 10.00 feet to an angle point in the Northerly line of the hereinabove described strip Easement; said angle point being the true point of beginning; thence along said Northerly line, North 33' 30' 37" East, a distance of 11.21 feet; thence leaving said Northerly line, North 20' 10' 40" West, a distance of 73.49 feet; thence North 47' 16' 04" West, a distance of 48.63 feet; North 30'.. 34' 40" West, a distance of 98.81 feet; thence North 67' 26' 26" West, a distance of 175.70 feet; thence North 08' 08' 27" East, a distance of 38.28 feet to a point on a non-tangent curve to the left, the center of which bears North 00' 51' 40" West, Page 7 of 12 Pages r s . OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update a distance of 46.87 feet; thence along said curve, through a central angle of 335' 19' 1111, a distance of 274.31 feet; thence South 08' 08' 27" West, a distance of 54.96 feet; thence South 67' 26' 26" East, a distance of 184.54 feet; thence South 30' 34' 40" East, a distance of 95.08 feet; thence South 47' 16' 04" East, a distance of 46.74 feet; thence South 20' 10' 40" East, a distance of 64.45 feet to the Northerly line of the hereinabove described strip Easement; thence along said Northerly line, South 65* 26' 45" East, a distance of 14.08 feet to the true point of beginning. 544-31-005 - 80 007 544-31-006 - 80 007 544-50-003 - 80 007 544-50-005 - 75 000 544-50-006 - 75 000 CR/Cl/dot A544-31-001, -003, -005 and -006 upd/ja2/24/03 upd/ja3/3/03 Page_ 8 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. 2. Taxes for the fiscal year 2002-03. Bill No. : 544-31-005, Code Area: 80007 First Installment: $54.04, has been paid Second Installment: $54.04, a lien, due and payable The above installments include a property tax exemption of NONE. 3. Taxes for the fiscal year 2002-03. Bill No. : 544-31-006, Code Area: 80007 First Installment: $4, 957.22, has been paid Second Installment: $4, 957.22, a lien, due and payable The above installments include a property tax exemption of NONE. 4. Taxes for the fiscal year 2002-03. Bill No. : 544-50-003, Code Area: 80007 First Installment: $163. 61, has been paid Second Installment: $163.61, a lien, due and payable The above installments include a property tax exemption of NONE. 5. Taxes for the fiscal year 2CO2-03. Bill No. : 544-50-005, Code Area: 75000 Firsts Installment: $158. 93, has been paid Second Installment: $158.93, a lien, due and payable The above installments include a property tax exemption of NONE. 6. Taxes for the fiscal year 2002-03. Bill No. : 544-50-006, Code Area: 75000 First Installment: $20.48, has been paid Second Installment: $20. 48, a lien, due and payable The above installments include a property tax exemption of NONE. 7. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq. , of the Revenue and Taxation Code of the State of California. 8. Any easement for water course over that portion of said land lying within the banks of Collins Creek and any changes in the boundary lines of said land that have occurred or may hereafter occur from natural causes. 9. water rights, claims or title to water, whether or not shown by the Public Records. 10. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Summit Road, Bear Creek Road also known as Dougherty Road, Upper East Zayante Road and Mellott's Road (or any of said roads or highways) . Page 9 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 11. Easements or Rights of Access, if any, "over the present road leading through the said tract of land—to the land of J. C. Moody", as set forth in the Deed from Charles B. Rogers et ux, to Montezuma Mountain Ranch School, recorded January 24, 1912 in Book 383 of Deeds, Page 35, Santa Clara County Records. Affects Parcel One. 12. Agreement for Executed by : Montezuma Mountain Ranch School and Between : Harry L. Tevis On the terms, covenants and conditions contained therein, Dated : May 7th, 1926 Recorded : May 21st, 1926 in Book 240 of Official Records, Page 488 For appropriation of water from Collins Creek and discharges of sewage and waste water into Collins Creek. Supplemental Agreement recorded June 9, 1926 in Book 251, Page 89, Official Records. 13. Williamson Act - Land Conservation Contract as follows: City/County Santa Clara Landowner : Sisters of the Presentation, Los Gatos Recorded February 23rd, 1976 in Book B879 of Official Records, Page 743 Contract/File No. Resolution Altering Boundaries of the Agricultural Preserve in the County of Santa Clara, recorded February 26, 1976 in Book B885, Page 605 and re-recorded March 22, 1976 in Book B927, Page 474, Official Records. 14. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following instrument: Granted to : General Telephone Company of California For Poles, cables, crossarms, wires, anchors, guys, braces, underground conduits, manholes and appurtenances for the transmission of electric energy for communication and other purposes Recorded July 2nd, 1986 in Book J752 of Official Records, Page 575 Affects A strip of land 12 feet in width, in the Southeast 1/4 of the Nrothwest 1/4 of Section 7, Township 9 South, Range 1 West, within the Southerly 54 feet of the land lying Northerly of Summit Road and Westerly of Bear Creek Road. 15. Any unrecorded and subsisting leases. Page 1 Q of 12 Pages OLD REPUBLIC BLIC TITLE LE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 16. The requirement that this company be provided with a suitable Owner's Affidavit from the Seller (form ORT 174) or a copy of the Real Estate Transfer Disclosure Statement "TDS" (California Civil Code Section 1102, et seq. ) . The Company reserves the right to make additional exceptions and/or requirements upon review of the Owner's Affidavit and/or the "TDS". 17. "The insuring clauses of the policy notwithstanding, the company does not insure against loss relulting from any shortage in area, discreapancy in boundary lines or other matters which would be disclosed by survey made by licensed land surveyor". 18. The requirement that a certified copy of a resolution of the board of directors be furnished to this Company authorizing or ratifying the proposed conveyance, and that there be annexed to the conveyance a certificate of compliance and approval meeting the requisites of Section 9632 Corporations Code, and that its articles of incorporation and its by-laws be furnished to this i Company for review prior to the recordation of such conveyance. Informational Notes 1. The last recorded instrument(s) conveying record title to the premises is/are: A deed executed by Sisters of the Presentation, a California corporation to Presentation Center, Los Gatos, a California corporation, recorded August 4th, 1992 in Book M312 of Official Records, Page 2035. The last conveyance affecting said land recorded within the last two years, prior to the date of this Report are: NONE. 2. County recorder will charge an additional $ 10.00 "Monument User Fee" to record a Grant Deed using the legal description in this report. 3. The mailing address of the vestee as shown in the records is: 19480 Bear Creek Rd, Los Gatos, CA 95033. 4. The applicable rate (s) for the policy(s) being offered by this report or commitment appears to be section(s) 3. 1. 5. Short Term Rate ("STR") does not apply. Page 11 of 12 Pages s i 1 OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 6. In addition to existing requirements pertaining to sellers who are non-residents of California, as a result of recent changes to Section 18662 of the Revenue and Taxation Code, in transactions closing after January 1, 2003 the buyer may then be responsible to withhold 3 1/3% of the sales price (as defined therein) from any seller, if this property is not the seller's principal residence. The statute, as modified, also provides for certain exemptions to the buyer's responsibility to withhold, which may apply. Page 12 of 12 Pages BODK PACE A . . • e 544 50 A sl MWERWSUL l REC. - 31 U1 T• OPEN SPACE CM5T. 0 ... Twr-is at w Two 1 s-a1 V • yFl A� ` IV It •• i - � N91.K� 60K ��' • \ i^ /1•lo , SUMMIT i °'Y O S A 11 T A ° ' ° I I •,4 f L CO. IM, ESTAN-ISNED IY ORD.ND.N.S-j.(a II-19-71 _ a Y!O K 1. 500, LA NCE E. STONE— ASSESSOM Ceil*-.0 la cww"A Man W4 cs.aw WAV 4 a-Code.ss.121. EN.w..Ir Tw 2m-am 0 F F I C E O F C 0 V N T Y A S S E S S O R 5 A M i A C L A R A C 0 u N T Y, C A L I F 0 R N I A 800K PAW g 544 31 _... _._ .r..... t YMFaslw T qvs.* ;•- H3• '� Oct 1 • wpP wMv. Otte ]TKt .:;C-. T 77 xt w••1 i MIZK , - M:y[• °tOlt case• `, � d' Inrt A wa ° ' • a •on� KLW , fa. wl as 1 011of K'>L cs e 'tiwwa �! h . r •ns ' N O V I T I A T E O F L O S G A T O S wa �4.t• �•Mt I O � 1t.s.n l ` I 1 .t<• s IIlTTL) t�L Y. w• . V� ` , ttTr. .tic., °,�•.M F/r -� M.f. out• ' �+L 'LMn � +* 2�59 AC OR • s •�O+a..s fir• { f 9 y •NOVITIATE OF ta° ` LOS GATdS OMNFNS Mf0l1fST °ina- � /911-tl76 ��e aLsu *fc .Osaa said a•ttc tt•/ant. I�a� ) •a•a.. n»tq � - I ... 1°• • Ito I I 39.24 AC 6R O t 1.h I.twit Ft atrntrrs••4•tr aIi I Eff thw Fr IM T•r)999-200D - -AWEVCE E. SIDW - /SS!SSOlt 4 EXHIBIT" , * * OLD REPUBLIC TITLE COMPANY IIII* ** 20 E.ALISAL STREET • SALINAS,CA • 93901 • (831)757-8051 Fax:(831)373-4863 PRELIMINARY REPORT UPDATE I Issued for the sole use of: Our Order No. 226342-T MidPeninsula Regional Open Space District Reference 526476 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Old Republic Title Company 1900 The Alameda Buyer: MidPeninsula Regional Open San Jose, CA 95126 Space District Attn: NICOLE MONSEES {408} 557-5400 Property Address: in response to the above referenced application for a policy of title insurance, OLD REPUBLIC TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Polio 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 of 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 Exclusions from the coverage of said Policy or Policies may be set forth in P P g Y Y Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) 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 requested. Dated as of February 12th 2003 , at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to, See Attached Page 1 of 5 Pages x � t OLD REPUBLIC TITLE COMPANY ORDER NO. 63 - 2 42 T 2 UPDATE I The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, LOS GATOS, a California Corporation Page 2 of_Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The land referred to in this Report is situated in the County of Santa Cruz , in the unincorporated area, State of California,and is described as follows: PARCEL I: The North half of the Northwest quarter of Section 7, in Township 9 South Range 1 West, and the Northeast quarter of the Northeast quarter of Section 12, in Township 9 South, Range 2 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road, Summit Road and Skyline Boulevard. PARCEL II: Commencing at a point which is the Northeast corner of the Southwest Quarter of Section 7, Township 9 South, Range 1 West and running thence Southerly and along the Easterly line of said quarter section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly course and following the meandering of the center line of said Summit Road to a stake marked "S C 122"; thence Westerly in a straight line 145 feet to a stake set in the center of Zayante Road; thence Westerly and along the center of said Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a Madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a Madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9, South Range I West, (said North line being the dividing line between lands of John and Sarah V. Hetherington and the lands of W.D. Van Lone) to the place of beginning. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Summit Road. PARCEL III: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township' 9 South Range 1 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road and Summit Road. Assessor's Parcel Number: 091-051-02 and 091-051-03 Page-3 of 5 Pages r OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: I 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. Code No. : 65-021 Assessor's Parcel No. : 091-051-02 and 091-051-03 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq., of the Revenue and Taxation Code of the State of California. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Upper East Zayante Road. 5. Any easement for water course over that portion of said land lying within the banks of Zayante Creek. 6. Recitals shown or noted upon a map as follows: Map Entitled Record of Survey , Lands of Parola and Pirone Filed On October 26th, 1961 in Volume 48 of Maps, at Page 29 Which Says "NOTE: The centerline of Summit Road as travelled, shown and delineated on this map is in conflict with the centerline of record and declared a Public Highway in 1889" 7. NOTE: Office of the Secretary of State Corporate Filing 1500 - llth, 3rd Floor Sacramento, CA 95814 (916) 657-5448 Reports that Presentation Center, Los Gatos, a California Corporation, was incorporated on February 9, 1959 and is presently in good standing. 8. The requirement that a certified copy of a resolution of the board of or ratifying the proposed furnished to this company authorizing hectors beP p dY g P Y conveyance or encumbrance of said land. Page 4 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I I -------------------- Informational Notes -------------------- 1. NOTE: According to the public records, there have been no deeds conveying the property described in this report recorded within a period of two years prior to the date hereof except as follows: NONE 2. The applicable rate(s) for the policy(s) being offered by this report or commitment appears to be section(s) 2.1. Short Term Rate ("STR") does not apply. 3. Taxes and assessments, general and special, for the fiscal year 2002 - 2003 as follows: i Assessor's Parcel No. 091-051-02 Code No. 65-021 1st Installment $0.00 2nd Installment : $0.00 Land $785.00 Imp. Value $0.00 P.P. Value $0.00 Exemption : $755.00 4. Taxes and assessments, general and special, for the fiscal year 2002-2003 as follows: Assessor's Parcel No. : 091-051-03 Code No. : 65-021 1st Installment : $ 96. 91 Marked Paid 2nd Installment : $ 96.91 Marked Paid Land : $ 9,700.00 Imp. Value : $ 0.00 P.P. Value : $ 0.00 Exemption : $ 0.00 JT/js 9/20/01 end Examined By: Julie Timsak GA/UPT/2-24-03 Page 5 of 5 Pages • POR. SEC. 7, T 9 S., R'. l W.,_8 SEC. /2, T 9 5, R.2_W, MD 88 M. Tax Area Code 91:05 FOR TAX PURPOSES ONLY Compi?ments of OLD RPPLJBUC 12 T �"�"'� Title Compurry m z 1 ti 1 . .-4ANTA i 4�.r4 0 3 3 N � K 1 1 . 1 1 1 ^� jO6 UPPER CAST ZAYANTE NIX SOY.! " , '4 � O rh b Nots A'ss*Arors Pordsl�b�C00 B Ass-essor's Mop No. W-05 +� Lot/lei cbers Shown in Circles. County of.Sonto Cruz,Calif W .;r July 1953 PERMISSION FOR ACCESS FOR INSPECTION OF PROPERTY For the purpose of conducting an inspection to determine the condition of the Property under negotiation (defined below), the Midpeninsula Regional Open Space District and the District's employees and/or consultants (hereafter collectively referred to as "District") may, upon giving reasonable advance written' notice to Presentation Center, Los Gatos, a California corporation ("Presentation"), enter upon the Property owned by Presentation commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005 and 006, 5444-50-003, 005 and 006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 003 (hereafter "the Property"); provided that District shall give at least 2 days prior written notice of each proposed entry by District. The access is granted as of the date last set forth below ("Effective Date") and shall terminate 60 days from the Effective Date. This Permission for Access is for the purpose of inspecting, testing and evaluating the Property; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed. District shall indemnify, protect, defend and hold Seller 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 while upon the Property pursuant to this Permission for Access, provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from discovery of any hazardous substances or other preexisting adverse conditions on the Property. Prior to District's initial entry onto the Property, District shall provide Presentation with proof of liability insurance for District and its agents in commercially reasonable policy limits and a certificate of insurance naming Presentation as an additional insured. Proof of Membership in a government self-insurance pool shall satisfy this requirement. 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 while on the Property performing its inspections. Read and Approved Midpensinsula Regional Open Presentation Center, Los Gatos, Space District a California corporation By: Its: Its: Dated: Dated PURCHASE AGREEMENT This Agreement is made and entered into by and between PRESENTATION CENTER, LOS GATOS, a California Corporation hereinafter called "Seller" 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, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara and the County Santa Cruz 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, Seller wishes 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. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of Santa Clara and the County of Santa Cruz, State of California, containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 005 and 006 consisting of approximately 148.96 acres, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03 consisting of approximately 48.99 acres. Said property is further described in the Legal Descriptions attached to Preliminary Reports as: A. Exhibit A Old Republic Title Company Preliminary Report number 526475 dated February 21,2003 describes Santa Clara County Assessor's Parcel Numbers 544- 50-003, 005 and 006 (the "Santa Clara County Property"). f . . I Purchase Agreement Page 2 B. Exhibit B Old Republic Title Company Preliminary Report number 226342 dated February 12, 2003 describes Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03(the "Santa Cruz County Property"). Copies of said Preliminary Reports are attached hereto as Exhibit "A" and "B", and are 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" Purchase Pric . The total purchase rice Purchase Price for the Property 2. e P P ( ) P Y and other rights granted herein shall be Three Million Three Hundred Sixty-Five Thousand and No/100 Dollars ($3,365,000.00). A Ten Thousand and No/100 Dollars ($10,000.00) Deposit Fee is paid into escrow in accordance with Section 14 of this Agreement ("Deposit Fee"). The Deposit Fee shall be applied to the Purchase Price at Closing. 3. LIQUIDATED DAMAGES. IF DISTRICT FAILS TO COMPLETE THIS PURCHASE BY REASON OF ANY DEFAULT OF DISTRICT, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO DISTRICT. BY INITIALING THIS SECTION 3, DISTRICT AND SELLER AGREE THAT IN EVENT OF SUCH DEFAULT BY DISTRICT, (1) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (2) AN AMOUNT EQUAL TO THE DEPOSIT FEE MADE BY DISTRICT AS SET OUT IN SECTION 2 OF THIS AGREEMENT IS A FAIR AND REASONABLE ESTIMATE OF SUCH DAMAGES AND SHALL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELLER; (3) THE PAYMENT OF LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER AT LAW OR IN EQUITY, AND SELLER WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE; (4) ESCROW HOLDER SHALL PAY THE DEPOSIT FEE TO SELLER AS LIQUIDATED DAMAGES; AND (5) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OR THE CALIFORNIA CIVIL CODE. NOTWITHSTANDING THE ABOVE, IN THE EVENT THIS AGREEMENT IS TERMINATED BY REASON OF ANY DEFAULT BY SELLER, OR BY REASON OTHER THAN THE DEFAULT OF THE DISTRICT, THE DEPOSIT FEE SHALL BE RETURNED IN FULL TO THE DISTRICT. ALL INTEREST ACCRUING FROM THE DEPOSIT FEE SHALL BE CREDITED TO THE DISTRICT'S ACCOUNT. SELLER INITIAL DISTRICT INITIAL Purchase Agreement Page 3 4. Escrow. Promptly upon execution of this Agreement, an escrow shall be opened at Old Republic Title Company, 1900 The Alameda, San Jose, CA 95126 (408) 557- 6400 (Escrow number 526475) or other title company acceptable to District and Seller (herein- after "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 July 31, 2003, 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 Deeds (as defined below) to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. B. Seller 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. Seller shall deposit into the escrow on or before the Closing: W An executed and recordable Grant Deed, covering the Santa Clara County Property as described in said Exhibit "A". (ii) An executed and recordable Grant Deed, covering the Santa Cruz County Property as described in said Exhibit "B". D. District shall deposit into the escrow, on or before the Closing: (i) The required Certificates of Acceptance for the Grant Deeds duly executed by District and to be dated as of the Closing; (ii) District's check payable to Escrow Holder for the Purchase Price in the amount of Three Million Three Hundred Fifty Five Thousand and No/100s Purchase Agreement Page 4 ($3,355,000.00) which is the balance of the Purchase Price of Three Million Three Hundred Sixty Five Thousand and No/100 Dollars ($3,365,000.00) as specified in Section 2. The $10,000.00 Deposit Fee set out in Section 14 of this Agreement shall be applied to the Purchase Price. E. Seller and District shall share (50/50) 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 Seller in the manner customary in Santa Clara and Santa Cruz Counties. All current property taxes on the Property shall be pro-rated through escrow between District and Seller as of the Closing based upon the latest available tax information using the customary escrow procedures. F. As a condition to close of escrow, Seller shall cause Old Republic Title Company, or other title company acceptable to District and Seller, 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$3,365,000 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exceptions 7, 8, 9, 10, 12, 13,14 and 17 as listed in Preliminary Report No. 526475 (Exhibit "A", Santa Clara County Property) and title exceptions 2, 3, 4, 5 and 6 as listed in Preliminary Report No. 226342 (Exhibit "B", Santa Cruz County Property) (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 Deeds and attendant Certificates of Acceptance to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section S.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 6. 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. In the event escrow is terminated due to District's default, Seller's remedies shall be as set out in Section 3 herein. Upon any such termination of escrow, all parties hereto shall be jointly and Purchase Agreement Page 5 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). District expressly reserves any rights and remedies which it may have against Seller or any other party by reason of a wrongful termination, default or failure to close escrow. 7. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller 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. Authori!y. Seller has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of Seller have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which Seller is a party or to which Seller is bound. B. Hazardous Materials. To the best of Seller's knowledge, there are no underground storage tanks located on, in or under the Property. There are no Hazardous Materials in, on, under, from or affecting the Property which violate federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, refinement, handling, productions or disposal of Hazardous Materials. There is no violation of any federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, handling, production or disposal of Hazardous Materials in, on, under, from, or affecting the Property, and there have been no actions commenced, or, to the best of Seller's knowledge, threatened by any party for noncompliance therewith. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. C. No Actions. Seller represents and warrants to District that it is not presently a party to any actions, suits, condemnations or proceedings pending or, to the best knowledge of Seller, threatened against or affecting the Property or its use. _J Ip Purchase Agreement Page 6 D. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof. E. Leases or Occupancy of Premises. Seller warrants that, as of the Closing, there will exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). F. Knowledge of Seller. Wherever Seller's "knowledge" is referenced in this Agreement, such references shall be deemed to be limited solely to the actual knowledge, without imputation and, unless otherwise specifically provided for to the contrary, without independent investigation, inspection or inquiry of Seller. 8. District's Representations and Warranties. District represents and warrants the following to Seller: District has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of District have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of District enforceable against District in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which District is a party or to which District is bound. 9. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or allow any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A" and Exhibit "B" as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Purchase Agreement Page 7 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. Seller hereby waives any and all existing and/or future claims or rights Seller 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. Seller 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, as provided for by said Federal Law and any similar California Law. 11. "AS-IS" Purchase and Sale. A. Acceptance of Property Condition. Closing of escrow for the transaction contemplated herein shall constitute District's representation that it has examined and inspected the Property and knows and is satisfied with the physical condition, quality, and state of repair of the Property in all respects and has determined that the same is acceptable to District "as is", and "with all faults" condition, and further accepts and agrees to bear all risks regarding all physical conditions and/or defects, latent, patent, or otherwise of the Property except as to the representations and the warranties of Seller contained in this Agreement. District agrees and acknowledges that, except as set forth in this Agreement, no other representations, statements or warranties, express or implied, including any warranties of habitability, merchantability, suitability and fitness for intended purpose have at any time been made by Sellers or their agents, as to the physical condition, quality, value, desirability, or state of repair of the Property. B. Specific Disclosures. District is aware that there is currently a 10 foot by 60 foot green house trailer, a red Datsun pick up truck, a orange International delivery truck and some abandoned personal property located on Santa Clara Assessor's Parcel Number 544- 50-003, commonly referred to as the "Christmas Tree Lot". Furthermore, there is an accumulation of trash and other abandoned personal property on Santa Cruz County Assessor's Parcel Number 091-051-02. Seller will not remove any of this property or correct any of these conditions prior to the Closing, or ever, and District agrees to take the Property subject to such conditions. 12. Disclosure of Property Related Documents. A. Document Review. Prior to Seller's execution this Agreement, Seller represents and warrants that Seller has furnished to District or made available for review by District (with the right to.photocopy the same) all documents in Seller's possession or control, Purchase Agreement Page 8 or reasonably obtainable from Seller's consultants, attorneys or agents, excepting any documents which are privileged or confidential under the attorney client privileges, or subject to the attorney work-product privileges, concerning the Property, including: (i) Reports, studies, audits, investigations, inspections, appraisals, tests, and other inquiry materials concerning any physical condition of the Property, or any improvement, structure, facility, road, utility, or water facilities thereupon, including, but not limited to, the environmental or geotechnical condition of the Property and such improvements; (ii) Environmental impact reports, CEQA documents, zoning, land use or development applications or documents relating to the Property; (iii) Government licenses, permits, entitlements or certificates applicable to ownership, use, operation or occupancy of the Property; The foregoing shall be collectively referred to as the "Property Related Documents". Upon District's execution of this Agreement, District has reviewed any and all such documents and completed any investigation or inspection of the Property required by it to satisfy itself regarding any concerns District may have related to these Property Related Documents or to the physical condition of the Property including without limitation environmental, geologic, flood or safety conditions. B. Notice of Acceptance. District's delivery of executed copies of this Agreement to Seller shall constitute District's written approval of the "as-is" condition of the Subject Property. C. Title. District acknowledges receipt of the documents enumerated in the Preliminary Report No. 526475 (Exhibit "A") as exceptions to coverage identified as Numbers, 12, 13 and 14, and Preliminary Report No. 226342 (Exhibit "B") as exception to coverage identified as number 6 and the rights and obligations associated therewith. 13. Miscellaneous Provisions. A. Access for Investigations. Pursuant to a separate Permission for Access for Inspection of Property dated March 26, 2003 ("Access Agreement"), District and District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") have been and may continue to enter upon the Property for the purpose of inspecting, testing and evaluating the same. A fully executed copy of the Access Agreement is attached hereto as Exhibit "C" and incorporated herein by this Purchase Agreement Page 9 reference. Notwithstanding provisions to the contrary, the termination of the Access Agreement shall be contemporaneous with the Close of Escrow under this Agreement. 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. Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall be entitled to recover from the other party reasonable expenses and attorneys' fees. D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the time for the performance of any of the obligations of the other party; (ii) waive any inaccuracies in representations and warranties made by the other party contained in this Agreement or in any documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the covenants contained in this Agreement or the performance of any obligations of the other party; or (iv) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. The General Manager is authorized to agree to an extension of the time for the performance of any obligations on the part of District or Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. 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 10 F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission, addressed as indicated as follows: Seller: Presentation Center Attn: Sister Patricia Marie Mulpeters 19480 Bear Creek Road Los Gatos, CA 95033-9519 Telephone: (408) 354-2346 FAX (408) 354-5226 Copy: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 Telephone: (415) 356-4600 FAX (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager Telephone: (650) 691-1200 FAX: (650) 691-0485 If sent by facsimile copy, a confirmed copy of such facsimile notice shall promptly be sent by mail (in the manner provided above) to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other 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. Purchase Agreement Page 11 G. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or imenforceability 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. H. 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. 1. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. 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. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. L. Survival of Covenants. All covenants of District or Seller 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. ' M. 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; provided, however, that District may assign all of its rights and obligations hereunder to Peninsula Open Space Trust (POST) without further approval of Seller. N. 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 Purchase Agreement Page 12 necessary or appropriate to consummate and carry into effect the transactions described and contemplated under this Agreement. O. 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. P. Broker's Commission. There are no real estate brokers or finders involved in this Agreement. Seller and District shall each indemnify and hold the other harmless from any loss, claim, liability,judgment or expense of whatsoever kind and nature, including attorneys' fees, arising out of, or in connection with, any claim for a brokerage commission or finder's fee by any person claiming through Seller or District, respectively. Q. 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. R. 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. S. 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 within thirty (30) days of the aggrieved party's written notice to the other, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding 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 of discovery. Hearings shall be held in Santa Clara 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 Purchase Agreement Page 13 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. SELLER INITIAL s > DISTRICT INITIAL UJ 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before noon on July 8, 2003, District shall have until midnight July 23, 2003 to accept and execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by Seller 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. As consideration for said irrevocable offer, District has paid into escrow a Deposit Fee and Seller acknowledges receipt of the sum of Ten Thousand Dollars and No/100 ($10,000.00), which shall be applied to the Purchase Price as set forth in Section 2 hereof, and shall constitute liquidated damages pursuant to Section 3 of this Agreement in the event District fails to complete this purchase by reason of a default by the District. 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. I// Purchase Agreement Page 14 DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN PRESENTATION CENTER SPACE DISTRICT ACCEPTED FOR RECOMMENDATION C �c Date: Michael C. Williams, Real Property Representative APPROVED(AS TO FORM: Susan M. Schectman, District Counsel REC6MMENbKD FOR APPROVAL: L. Craig , General Manage APPROVED AND ACCEPTED: P sident, Board of irectors ATTEST: Sall lfoldt, Distr Jerk Date: �� EXHIBIT �* *OLD REPUBLIC TITLE COMPANY 1900 THE AtAMEDA SAN JOSE,CA 95128 (408)557-8400 Fax:(408)249-2314 (III* PRELIMINARY REPORT AMENDED-2/Update Issued for the sole use of: Our Order No. 526475-NM MIDPENINSULA REGIONAL OPEN SPACE Reference 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Fischer Nicole Monsees Buyer: Midpeninsula Regional Property Address: 19480 Bear Creek Road, Los Gatos, CA (Unincorporated area of Santa Clara County] In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 of 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 Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition not list all liens defects and encumbrances affecting title to the land. of title and may g This report (and any supplements or amendments hereto) 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 requested. Dated as of February 21st 2003 at 7:30 A.M. , OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to,See Attached Page 1 of 12 Pages i I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. i The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE as to Parcels One, Two, Three, Four, Five and Six and EASEMENTS as to Parcels Seven and Eight. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, Los Gatos, a California corporation Page 2 of 12 Pages I OLD REPUBLIC TITLE COMPANY ORDER WO. 526475-NM AMENDED-2/Update The land referred to in this Report is situated in the County of Santa Clara , in the unincorporated area, State of California,and is described as follows: PARCEL ONE: A part of Section 6, Township 9 South, Range 1 West, M.D.M. Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 89* 50' West, 1021.1 feet to an iron pipe in the center line of the Bear Creek Road; thence along the said center line North 50' 30' East, 283.8 feet; thence North 66' 15' East, 283.8 feet; thence North 12' 00' West, 194.7 feet; thence North 85" 45' East, 132.66 feet; thence North 67' 00' East, 135.3 feet; thence North 13* 00' East, 181.5 feet; thence North 68' 30' East, 158.4 feet; thence South 66' 30' East, 166.3 feet; thence North 89' 09' East, 90.8 feet; thence North 39* 32' East, 140.7 feet; thence North 27' 36' East, 108.1 feet; thence North 2' 51 ' East, 201.2 feet; thence North 60' 07' East, 241.3 feet; thence North 4' 49' East, 216.3 feet; thence North 22' 45' East, 110.35 feet; thence North 55' 24 ' East, 180.75 feet; thence North 23+ 04' East, 103.15 feet; thence North V 00' West, 93.85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore tree one foot in diameter bears South 28' 41' West, 36.8 feet and a nail in a Madrone tree bears North 22' 18' West, 59. 85 feet; thence along the center line of said lane, South 70' 12' East, 123.1 feet; thence South 55" 33' East, 72. 92 feet; thence South 42' 20' East, 91.45 feet and South 32' 13' East, 127.75 feet to an iron pipe; thence running North 56' 30' East, 109.7 feet to an iron pipe; thence North 52' 04 ' East, 475.12 feet to a 2 inch iron pipe in the bottom of a ravine; thence down the bottom of said ravine the following courses and distances: South 67' 47' East, 140.55 feet; South 59' 31' East, 84.4 feet; South 47' 57' East, 70.8 feet; South 49' 39' East, 71.2 feet; South 61* 25' East, 123.8 feet; South 42' 24' East, 32.5 feet; South 56' 16' East, 73. 9 feet; South 63* 15' East, 82.5 feet; South 43' 46' East, 85.1 feet; South 48' 50' East, 80.7 feet; South 37' 16' East, 115.6 feet; South 26' 21' East, 54.4 feet to a point in the center line of a creek known as Collins Creek; thence up the center line of Collins Creek the following courses and distances: South 45' 16' West, 63. 6 feet; South 32' 48' West, 56.6 feet; South 42' 48' West, 72.1 feet; South 13' 15' West, 54.0 feet; South 44' 55' West, 75.1 feet; South 72' 12' West, 40.3 feet; South 50' 32' West, 47.1 feet; South 61' 57' West, 65.7 feet; South 40' 07' West, 34.2 feet; South 33' 17' West, 72.6 feet; thence South 44' 41' West, 94.3 feet; South 11' 09' West, 49. 6 feet; South 61' 40' West, 72.2 feet; South 33' 46' West, 70.4 feet; South 68' 26' West, 43.7 feet; South 38' 23' West, 139.8 feet; South 53* 37' West, 94.7 feet; South 81' 47' West, 52.6 feet; South 37' 20' West, 51.0 feet; South 54` 14' West, 104.5 feet; South 80' 53' West, 200.00 feet; North 78" 15' West, 134.2 feet; South 73* 27' West, 38.5 feet; South 81' 10' West, 29.4 feet; South 47' 54' West, 52.4 feet; South 63' 37 ' West, 109.4 feet; South 30' 55' West, 59.5 feet; South 48' 23' West, 219.2 feet; South 57' 29' West, 68.15 feet; South 41' 40' West, 76.2 feet; South 61' 05' West, 48.0 feet; and South 62' 06' West, 51.0 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pipe, a redwood tree 8 inches in diameter bears North 71' 45' East, 36.0 feet and a tan oak tree 16 inches in 12 Page Pages 3 �f � g OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update diameter bears North 41* East, 47.5 feet; thence along the line between said Sections 6 and 7, North 88' 40' West, 408.0 feet to the place of beginning. PARCEL TWO: Beginning at an iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M.; and running thence along the 1/4 Section line through the center of Section 7, South 0* 35' West, 96. 9 feet to a one inch iron pipe in the bottom of a ravine known as Collins Creek; and thence continuing South 0' 35' West, 563.1 feet to a one inch pipe from a width of a one foot tan oak bears South 45' 00' East, 3.2 feet and a 6 inch tan oak bears North 30° 00' East, 11.3 feet; thence parallel with the line between Sections 6 and 7, North 89' 50' West, 730.3 feet to a one inch pipe in the bottom of said Collins Creek and continuing North 89* 50' West, 364.8 feet to an iron pipe in the center line of the Bear Creek Road, from which 5 nails in a redwood stump 7 feet in diameter bears North 46' 37' East, 18.36 feet and a maple tree 6 inches in diameter bears South 49' 54' East, 26.33 feet; thence along the center line of the Bears Creek Road, North 0' 37' East, 130. 9 feet; thence North 31* 34' East, 98.9 feet; thence North 2' 58' East, 126.6 feet; thence North 38* 42' East, 133.0 feet; thence North 54* 33' West, 141.0 feet; thence North 21' 57' East, 143.4 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West from which an old blaze on a redwood stump 4 feet in diameter bears North 5" West, 37 feet and 10 inch maple tree bears South 25' 04 ' East, 30.8 feet; thence along the line between Sections 6 and 7, South 89' 50' East, 1021.1 feet to the place of beginning and being a part of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.W. PARCEL THREE: All that certain real property situate partly within the County of Santa Clara and partly within the County of Santa Cruz, State of California, described as follows: The North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West and the Northeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. EXCEPTING THEREFROM, however, that certain tract conveyed by Lucy Jane Russell and John' Russell, her husband to Mary A. Laddick by Deed dated December 10, 1886 and recorded in the Office of the Recorder of Santa Clara County on January 11, 1887 in Book 87 of Deeds, Page 821, and more particularly described as follows: Commencing at the intersection of the East line of Mellotts Road with the North line of the North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M. ; and running thence Southeasterly and Southerly along the East line of said Melotts Road at a place called the "Grecian Band"; thence Northerly and Northeasterly along the West side of the County Road, about 44 rods to the intersection thereof with the said North line of Section 7 aforesaid; and thence West along the said North line of said Section 7 about 42 rods to the place of beginning. Containing approximately 6 acres and being a part of said North 1/2 Page 4 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M. EXCEPTING THEREFROM also, so much thereof, as is described as Parcel Number Two hereinabove. PARCEL FOUR: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California described as follows: Commencing at a point which is the Northeast corner of the Southwest quarter of Section 7, Township 9, South Range 1 West and running thence Southerly and along the Easterly line of said quarter Section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly courses and following the meandering of the center line of said Summit Road to a stake marked "S C12211; thence Westerly in a straight line 145 feet to a stake set in the center of said Zayante Road; thence Westerly and along the center of Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9 South, Range 1 West (said North line being the dividing line between lands of John and Sarah V. Hetherington and the land of W. D. Von Lone) to the place of beginning. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL FIVE: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South, Range 1 West, Mount Diablo Base of Meridian. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL SIX: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: The Northwest 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West and the Southeast 1/4 of the Northeast 1/4 of Section 12, .Township 9 South, Range 2 West, Mount Diablo Meridian. Excepting from Parcels 1, 2, 3, 4, 5, and 6, above, any portion of said Parcels Page 5 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update lying within Santa Cruz County, California. PARCEL SEVEN: An Easement for the installation, construction, maintenance and repair of a water pipeline, being a strip of land 20 feet in width, situate in the County of Santa Clara, State of California, lying entirely within those certain parcels of land designated as Parcel Two and Parcel Eleven, conveyed by The California Province of the Society of Jesus, a corporation, to Hong Kong Metro Realty Inc., a corporation, by Deed dated September 12, 1989, recorded September 13, 1989 in Book L091 at Page 104, Official Records of Santa Clara County, being 10 feet on each side of the following described center line: Beginning at a point on the general Westerly boundary of the existing State Highway 17, known as Section C, Route 5, District IV, Santa Clara County; said point being opposite to Engineer's Centerline Station 163+00, as shown on that certain State of California Department of Public Works Division of Highways "Right-of-Way Record Map, R-52.15"; said point also being the Northerly terminus of the line described as "North 24* 251 East, 580.00 feet" in that certain Deed to the State of California, recorded November 22, 1937 in Book 843, at Page 569, Official Records of Santa Clara County; thence along said Westerly boundary, South 24* 25' 00" West, a distance of 510.22 feet to the true point of beginning; thence leaving said Westerly boundary along a now existing waterline, the following courses: North 67* 011 11" West, a distance of 5.63 feet; thence South 81' 36' 30" West, a distance of 54. 97 feet; thence South 43* 291 39" West, a distance of 337.23 feet; thence South 33* 301 37" West, a distance of 139. 66 feet to a point designated as "Point A"; thence North 65' 261 4511 West, a distance of 231.38 feet; thence South 63' 231 26" West, a distance of 80.57 feet; thence North 71* 511 4611 West, a distance of 269.78 feet; thence North 53* 431 23" West, a distance of 123.96 feet; thence North 66* 161 40" West, a distance of 104.25 feet; thence North 48' 211 18" West, a distance of 156.44 feet to a point of curvature; thence Westerly along a 150.00 foot radius tangent curve to the left through a central angle of 57* 271 47", a distance of 150.44 feet to a point of tangency; thence South 74* 101 55" West a distance of 63.54 feet to a point of curvature; thence Westerly along a 100 foot radius tangent curve to the right through a central angle of 48* 171 19", a distance of 84.28 feet to a point of tangency; thence North 57* 311 46" West, a distance of 117.58 feet; thence North 87* 311 20" West, a distance of 173.81 feet; thence South 79' 561 02" West, a distance of 52.37 feet to a point designated as "Point B"; thence South 35* 561 51" East, a distance of 59.05 feet; thence South 48* 33' 24" East, a distance of 135.94 feet to a point of curvature; thence Southerly along a 65.00 foot radius tangent curve, through a central angle of 81* 201 40", a distance of 92.28 feet to a point of tangency; thence South 32* 47' 16" West, a distance of 228.03 feet; thence South 51* 351 12" West, a distance of 119.00 feet; thence South 04' 341 59" East, a distance of 115.60 feet; thence South 19* 481 54" West, a distance of 66.38 feet; thence South 54* 531 13" West, a distance of 167.04 feet; thence North 83' 231 10" West, a distance of 86.82 feet; thence South 47' 451 2111 West, a distance of 23.30 feet; thence South 09* 361 07" West, a distance of 59.06 -feet; thence South 43* 221 1111 West, a Page---&-of 12 Pages e OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update distance of 364.83 feet; thence South 26' 15' 11" West, a distance of 37.53 feet; thence South 00' 58' 33" West, a distance of 45.34 feet; thence South 32' 55' 13" West, a distance of 129.01 feet; thence South 64' 10' 01" West, a distance of 102.04 feet to a point of curvature; thence Southwesterly along a 400.00 foot radius tangent curve to the left, through a central angle of 27' 31' 50", a distance of 192.20 feet to a point of tangency; thence South 39' 38' 111' West, a distance of 81.44 feet; thence North 78' 41' 22" West, a distance of 24.21 feet; thence North 17' Ill 38" West, a distance of 241.08 feet; thence North 13' 25' 33" East, a distance of 129.65 feet; thence North 85' 02' 23" West, a distance of 122. 68 feet; thence South 85' 38' 23" West, a distance of 202.60 feet; thence South 00' 00' 24" East, a distance of 41.26 feet; thence South 16' 14' 40" West, a distance of 175.28 feet; thence South 36' 22' 141" West, a distance of 20.23 feet; thence South 84' 29' 12" West, a distance of 240.05 feet to a point of curvature; thence Westerly along a 500.00 foot radius tangent curve to the right, through a central angle of 22' 18' 1211, a distance of 194.63 feet to a point of tangency; thence North 73' 12' 36" West, a distance of 172.10 feet; thence North 49' 27' 19" West, a distance of 140.24 feet; thence South 38' 54' 48" West, a distance of 61.71 feet; thence South 23' 23' 221' West, a distance of 105.56 feet; thence South 08' 59' 08" East, a distance of 107.30 feet; thence South 14' 49' 01" West, a distance of 46.08 feet; thence South 33' 11' 18" West, a distance of 247.99 feet; thence South 77' 55' 31" West, a distance of 66.93 feet; thence North 67' 34 ' 43" West, a distance of 50.52 feet; thence South 80' 21' 44" West, a distance of 37.39 feet, more or less, to a point on the boundary line common to the lands, now or formerly of the Presentation Center Los Gatos, and Hon Kong Metro Realty; said point bears g g Y North 42' 30' West, a distance of 29.14 feet from the Southerly terminus of the line described as "North 42 1/2' West, 2.90 chains" in the Description of said Parcel Eleven in said Deed recorded in Book L091 at Page 104, Official Records of Santa Clara County; said point also bears South 62' 46' 49" East, a distance of 367.38 feet from a redwood tree stump 6 feet in diameter and 10 feet high, as said stump is described in said Deed; said point also being the terminus of this strip Easement. PARCEL EIGHT: I An Easement for the installation, construction, maintenance and repair of a water pipeline and water tank, lying entirely within Parcel Two in the Deed recorded September 13, 1989 Recorder's Document No. 10251767. Beginning at the hereinabove described "Point A"; thence along the hereinabove centerline North 33' 30' 37" East, a distance of 8.55 feet; thence at right angles to said center line, North 56' 29' 23" West, a distance of 10.00 feet to an angle point in the Northerly line of the hereinabove described strip a Y g P Easement; said angle point being the true point of beginning; thence along said Northerly line North 33' 30' 37" East, a distance of 11.21 feet; thence leaving said Northerly line, North 20' 10' 40" West, a distance of 73.49 feet; thence � �� h 4 40 West, .,a North 4?' 16 04 West a distance of 48. 63 feet; North 30' 3 , .. distance of 98.81 feet; thence North 67' 26' 26" West, a distance of 175.70 feet; thence North 08' 08' 27" East, a distance of 38.28 feet to a point on a non-tangent curve to the left, the center of which bears North 00' 51' 40" West, Page 7 of 12 Pages ' OLD REPUBLIC uxuu^E COMPANY | 0UNDE0MO. 526475-0M 2MENDED-2/Ogdate a distance of 46'87 feet; thence along said curve, through a central angle of 335^ 191 Il", a distance of 274.31 feet/ thence South OD~ 08' 27" West, a distance of 54' 96 feet; thence South 67' 26' 26" East, a distance of 184,54 feet/ �beooe South 3O' 3A' 4O" East, a distance of 95^08 feet; thence South 47' � 161 04, East, a distance of 46.74 feet; thence South 20' lU' 40" East, a � distance of 64.45 feet to the Northerly line of the bereivabove described strip � Easement; thence along said Northerly line, South 65` 26' 45" East, a distance � of 14,08 feet to the true point of beginning. 644-3I-005 - 80 007 � 544-31-006 - OO 007 544-50-003 - 80 007 544-50-005 - 75 000 � 544-50-006 - 75 OOO � CB/Cl/dot A544-31-001, -003, -005 and -006 upd/ja2/24/03 � upd/ja3/3/03 � � � � � � � � � � � � � f i OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. 2. Taxes for the fiscal year 2002-03. Bill No. : 544-31-005, Code Area: 80007 First Installment: $54.04, has been paid Second Installment: $54.04, a lien, due and payable The above installments include a property tax exemption of NONE. 3. Taxes for the fiscal year 2002-03. Bill No. : 544-31-006, Code Area: 80007 First Installment: $4, 957.22, has been paid Second Installment: $4, 957.22, a lien, due and payable The above installments include a property tax exemption of NONE. 4. Taxes for the fiscal year 2002-03. Bill No. : 544-50-003, Code Area: 80007 First Installment: $163.61, has been paid Second Installment: $163.61, a lien, due and payable The above installments include a property tax exemption of NONE. 5. Taxes for the fiscal year 2002-03. Bill No. : 544-50-005, Code Area: 75000 First Installment: $158. 93, has been paid Second Installment: $158.93, a lien, due and payable The above installments include a property tax exemption of NONE. 6. Taxes for the fiscal year 2002-03. Bill No. : 544-50-006, Code Area: 75000 First Installment: $20.48, has been paid Second Installment: $20.48, a lien, due and payable The above installments include a property tax exemption of NONE. 7. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq. , of the Revenue and Taxation Code of the State of California. 8. Any easement for water course over that portion of said land lying within the banks of Collins Creek and any changes in the boundary lines of said land that have occurred or may hereafter occur from natural causes. 9. Water rights, claims or title to water, whether or not shown by the Public Records. 10. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Summit Road, Bear Creek Road also known as Dougherty i Road, Upper East Zayante Road and Mellott's Road (or any of said roads or highways) Page 9 of 12 Pages �I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 11. Easements or Rights of Access, if any, "over the present road leading through the said tract of land. . .to the land of J. C. Moody", as set forth in the Deed from Charles B. Rogers et ux, to Montezuma Mountain Ranch School, recorded January 24, 1912 in Book 383 of Deeds, Page 35, Santa Clara County Records. Affects Parcel One. 12. Agreement for Executed by : Montezuma Mountain Ranch School and Between : Harry L. Tevis On the terms, covenants and conditions contained therein, Dated : May 7th, 1926 Recorded : May 21st, 1926 in Book 240 of Official Records, Page 488 For appropriation of water from Collins Creek and discharges of sewage and waste water into Collins Creek. Supplemental Agreement recorded June 9, 1926 in Book 251, Page 89, Official Records. 13. Williamson Act - Land Conservation Contract as follows: City/County Santa Clara Landowner Sisters of the Presentation, Los Gatos Recorded February 23rd, 1976 in Book B879 of Official Records, Page 743 Contract/File No. Resolution Altering Boundaries of the Agricultural Preserve in the County of Santa Clara, recorded February 26, 1976 in Book B885, Page 605 and re-recorded March 22, 1976 in Book B927, Page 474, Official Records. 14. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following instrument: Granted to General Telephone Company of California For Poles, cables, crossarms, wires, anchors, guys, braces, underground conduits, manholes and appurtenances for the transmission of electric energy for communication and other purposes Recorded July 2nd, 1986 in Book J752 of Official Records, Page 575 Affects A strip of land 12 feet in width, in the Southeast 1/4 of the Nrothwest 1/4 of Section 7, Township 9 South, Range 1 West, within the Southerly 54 feet of the land lying Northerly of Summit Road and Westerly of Bear Creek Road. 15. Any unrecorded and subsisting leases. Page 10 of 12 Pages � ~ . . . . . . . ` OLD REPUBLIC TrME COMPANY 16. The requirement that this company be provided with a suitable Owner's Affidavit from the Seller (form ORT 174) or a copy of the Real Estate Transfer Disclosure Statement "TDS" (California Civil Code Section 1102, et seq.) . The Company reserves the right to make additional exceptions and/or requirements upon review of the Owner's Affidavit and/or the "TDS". 17. "The insuring clauses of the policy notwithstanding, the company does not insure against loss relulting from any shortage in area, discreapancy in boundary lines or other matters which would be disclosed by survey made by licensed land 18. The requirement that a certified copy of a resolution of the board of directors be furnished to this Company authorizing or ratifying the proposed conveyance, and that there be annexed to the conveyance a certificate of compliance and approval meeting the requisites of Section 9632 Corporations Code, and that its articles of incorporation and its by-laws be furnished to this Company for review prior to the recordation of such conveyance. I^'fo^m~^^o^^a^ Notes � I. The last recorded instrument(s) conveying record title to the premises is/are: � � A deed executed by Sisters of the Presentation, a California corporation to � Presentation Center, Los Gatos, a California corporation, recorded August 4tb, 1992 in Book M312 of Official Records, Page 2035' � The last conveyance affecting said land recorded within the last two years, prior � � to the date of this Report are: NONE. � 2. County recorder will charge additional $ 10.00 "Monument User Fee" to record a Grant Deed using the legal description in this � 3. The mailing address of the vestee as shownin thed i 19480 Bear Creek Rd, Los Gatos, C& 95033. ` 4. The applicable rate (s) for the policy(s) being offered by this � commitment appears to be section( 3. 1. � 5. Short Term Rate ("STR") does not apply. Page 11 of 12 Pages ' | 8| OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 6. In addition to existing requirements pertaining to sellers who are non-residents of California, as a result of recent changes to Section 18662 of the Revenue and Taxation Code, in transactions closing after January 1, 2003 the buyer may then be responsible to withhold 3 1/3% of the sales price (as defined therein) from any seller, if this property is not the seller's principal residence. The statute, as modified, also provides for certain exemptions to the buyer's responsibility to withhold, which may apply. Page 12 of 12 Pages O F F I C C O F C O U N T Y A S S E S S O R S A N I A C L A R A C O U N T Y C A L I F 0 R N I A Lr ee 544 1 50 sl '• MOPENINSLIA REa - 3t N OPEN SPACE DIST. O r TWO 1 S RI W IM10 7 1-RI W ..._. r. T. L 6 rr ` 'J a -A R I X'rLltb vw•luu' �< � I y r- tr � 4 i� < ♦ti.. L :• 101s f i t : ♦`� JJ£ 40 wc�ti ♦ _ 9r 7 ,r �e'w.AC 40 K 1F 1 wT +I 05 fs ? SUxM+T t a - - S A J z 4 f } CO. EORY. ESTAKISHED MY ORD.N0.N.S-3.W 11-0-71 CS� •ate 1SO K i •' i LA NCE E.STONE-ASSCSSON Odab nq to cmu"m Mws evI. Os+glea-4r R A-Cow Sc 12X - E/TKVM RA Y�ef Y.101-3001 O F F I C E O F C O V N T Y A S S E S S O R S A N T A C L A R A C O U N T Y, C A L I F O R N I A _ socK g 544 31 i s3 r 0 h� Tw9 wa71 I Two•Siw r S V ,r/N�ife • 7 rcr� •ct� s`b a 7 r: 7]fe g b r 1 K.W 10 r..u... I .I Xl M (F 111f AC Dart I tQ IGK' u!c• ,� � O� a •ac.� Ft arts i aatu t .. � _. � tie• H k oito ''ta.•. ('n a s note i rO /StKA i tnb. 1uc • x Y. � • (1! r4 7 b v It nx' �• . ma N O V a T I ATE OF t LOS G A T 0 5 w/ "re �J • Y �.fag1•� 7' ` Q �J Y s •b O{ 11 MK. \ • YJ • •QOirx � S � t. ~ 3 e•., j NOVITIATE OF 4 •`• a LOS GATOS y �+ OWNERS REOVEST f[ waca fC aJlta pl• ante -•/.n:c «_ } 1 1 1 { W24 AC GR 1 � n ♦ •/NfO• q D 19 � CwNed^conbeiaice tilt ea.k7•111a _ 1.L 1.cedeFa mnsri w�..w yIF J Eeleth•Fee M1 7Jar199D-2000 -AMENCE£. S�GW- ASS.SSCR d ` EXHIS11 * *OLD REPUBLIC TITLE COMPANY 20 E.ALISAL STREET • SALINAS,CA • 93901 • (831)757-8051 Fax:(831)373-4863 PRELIMINARY REPORT UPDATE I Issued for the sole use of: Our Order No. 226342-T MidPeninsula Regional Open Space District Reference 526476 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Old Republic Title Company 1900 The Alameda Buyer: MidPeninsula Regional Open San Jose, CA 95126 Space District Attn: NICOLE MONSEES (408) 557-8400 Property Address: In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 of 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 Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition of title and may not list all liens, defects, and encumbrances affecting title to the land. I This report (and any supplements or amendments hereto) 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 requested. Dated as of February 12th ,2003 , at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to See Attached Page 1 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, LOS GATOS, a California Corporation Page 2 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The land referred to in this Report is situated in the County of Santa Cruz , in the unincorporated area, State of California,and is described as follows: PARCEL I: The North half of the Northwest quarter of Section 7, in Township 9 South Range 1 West, and the Northeast quarter of the Northeast quarter of Section 12, in Township 9 South, Range 2 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road, Summit Road and Skyline Boulevard. PARCEL II: Commencing at a point which is the Northeast corner of the Southwest Quarter of Section 7, Township 9 South, Range 1 West and running thence Southerly and along the Easterly line of said quarter section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly course and following the meandering of the center line of said Summit Road to a stake marked "S C 122"; thence Westerly in a straight line 145 feet to a stake set in the center of Zayante Road; thence Westerly and along the center of said Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a Madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a Madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9, South Range 1 West, (said North line being the dividing line between lands of John and Sarah V. Hetherington and the lands of W.D. Van Lone) to the place of beginning. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Summit Road. PARCEL III: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South Range 1 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road and Summit Road. Assessor's Parcel Number: 091-051-02 and 091-051-03 Page____2_of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. Code No. 65-021 Assessor's Parcel No. 091-051-02 and 091-051-03 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq. , of the Revenue and Taxation Code of the State of California. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Upper East Zayante Road. 5. Any easement for water course over that portion of said land lying within the banks of Zayante Creek. 6. Recitals shown or noted upon a map as follows: Map Entitled Record of Survey , Lands of Parola and Pirone Filed On October 26th, 1967 in Volume 48 of Maps, at Page 29 Which Says "NOTE: The centerline of Summit Road as travelled, shown and delineated on this map is in conflict with the centerline of record and declared a Public Highway in 1889" 7. NOTE: Office of the Secretary of State Corporate Filing 1500 - llth, 3rd Floor Sacramento, CA 95814 (916) 657-5448 Reports that Presentation Center, Los Gatos, a California Corporation, was incorporated on February 9, 1959 and is presently in good standing. 8. The requirement that a certified copy of a resolution of the board of directors be furnished to this company authorizing or ratifying the proposed conveyance or encumbrance of said land. Page 4 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I -------------------- Informational Notes -------------------- 1. NOTE: According to the public records, there have been no deeds conveying the property described in this report recorded within a period of two years prior to the date hereof except as follows: NONE 2. The applicable rate (s) for the policy(s) being offered by this report or commitment appears to be section (s) 2.1. Short Term Rate ("STR") does not apply. 3. Taxes and assessments, general and special, for the fiscal year 2002 - 2003 as follows: Assessor's Parcel No. 091-051-02 Code No. 65-021 1st Installment $0.00 2nd Installment $0.00 Land $785.00 Imp. Value $0.00 P.P. Value $0.00 Exemption $755.00 4. Taxes and assessments, general and special, for the fiscal year 2002-2003 as follows: Assessor's Parcel No. 091-051-03 Code No. 65-021 1st Installment $ 96. 91 Marked Paid 2nd Installment $ 96. 91 Marked Paid Land $ 9,700.00 Imp. Value $ 0.00 P.P. Value $ 0. 00 Exemption $ 0. 00 JT/js 9/20/01 end Examined By: Julie Timsak GA/UPT/2-24-03 Page 5 of 5 Pages POR. SEC. 7, T 9 S., R l W. 8 SEC. 12, 7-9 S,R 2•W., M. D. 6 8 M. Tax Area Code 91 -05 65=G�0� FOR TAX PURPOSES ONLY Complimenis of whie ih.0.,e 6kk I a. OLD REPUBUC d; •+e...M...... Tide Company of m e 2 a �• 400' of --SANTA e 4yT4 — C,p C G O e •O 'xi'9""� s, '4•.' 1 co 2'r R� , - I 1 Mi K I 1 I � I -'.r �- • UPPER EAST ZAYANTE RD. 502.1� F � ba rh h Note -Assessors Pordel Aoek 8 Assessor's Mop No. 91-05 •,; h" Lot Numbers Shown in'Eircles County of Santo Cruz, Calif. UW :t July 1953 E x hl l- 1TI PERMISSION FOR ACCESS FOR INSPECTION OF PROPERTY For the purpose of conducting an inspection to determine the condition of the Property under negotiation (defined below), the Midpeninsula Regional Open Space District and the District's employees and/or consultants (hereafter collectively referred to as "District") may, upon giving reasonable advance written notice to Presentation Center, Los Gatos, a California corporation ("Presentation"), enter upon the Property owned by Presentation commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005 and 006, 544-50-003, 005 and 006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 003 (hereafter "the Property"); provided that District shall give at least 2 days prior written notice of each proposed entry by District. The access is granted as of the date last set forth below ("Effective Date") and shall terminate 60 days from the Effective Date. This Permission for Access is for the purpose of inspecting, testing and evaluating the Property; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed. District shall indemnify, protect, defend and hold Seller 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 while upon the Property pursuant to this Permission for Access, provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from discovery of any hazardous substances or other preexisting adverse conditions on the Property. Prior to District's initial entry onto the Property, District shall provide Presentation with proof of liability insurance for District and its agents in commercially reasonable policy limits and a certificate of insurance naming Presentation as an additional insured. Proof of Membership in a government self-insurance pool shall satisfy this requirement. 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 while on the Property performing its inspections. Read and Approved Midpensinsula Regional Open Presentation Center, Los Gatos, Space District a California corporation C Bv: - - Its: G c: Its: Dated: - - ( - ` Dated: i PERMISSION FOR ACCESS FOR INSPECTION OF PROPERTY For the purpose of conducting an inspection to determine the condition of the Property under negotiation (defined below), the Midpeninsula Regional Open Space District and the District's employees and/or consultants (hereafter collectively referred to as "District") may, upon giving reasonable advance written' notice to Presentation Center, Los Gatos, a California corporation ("Presentation"), enter upon the Property owned by Presentation commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005 and 006, 544-50-003, 005 and 006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 003 (hereafter "the Property); provided that District shall give at least 2 days prior written notice of each proposed entry by District. The access is granted as of the date last set forth below ("Effective Date„) and shall terminate 60 days from the Effective Date. This Permission for Access is for the purpose of inspecting, testing and evaluating the Property; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed. District shall indemnify, protect, defend and hold Seller 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 while upon the Property pursuant to this Permission for Access, provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from discovery of any hazardous substances or other preexisting adverse conditions on the Property. Prior to District's initial entry onto the Property, District shall provide Presentation with proof of liability insurance for District and its agents in commercially reasonable policy limits and a certificate of insurance naming Presentation as an additional insured. Proof of Membership in a government self-insurance pool shall satisfy this requirement. 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 while on the Property performing its inspections. Read and Approved Midpensinsula Regional Open Presentation Center, Los Gatos, Spade District a California corporation By. _ By. _ w Its: : . ti ,,, ,ti Its: Dated: _ ° Dated: i y � f • w .. � RECIPROCAL EASEMENT AND USE AGREEMENT This Reciprocal Easement and Use Agreement ("REA") dated as of July 9, 2003, is by and between PRESENTATION CENTER, LOS GATOS, a California corporation ("Center") and 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 ("District"). District and Center are sometimes referred to in this REA singularly as a "Party" and together as "Parties". RECITALS A. Center is the owner of certain real property situated in the County of Santa Clara, State of California and more particularly described in Exhibit A attached hereto being a part of Assessor's Parcel numbers 544-31-005 and 006 (the "Center Parcel"). B. District is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-002 (the "District Parcel"). C. Center and District have entered into that certain Easement Agreement dated July 9, 2003 ("Center Parking Lot Easement") in which District granted to Center a non-exclusive easement for ingress, egress and certain accessory uses more specifically described in the Center Parking Lot Easement, attached hereto and included by this reference as Exhibit C. D. District may construct a separate permit parking lot northeast ast of the Center Parking Lot Easement (hereafter "Permit Parking Lot") Pursuant to a separate Easement Agreement dated July 9, 2003, ("District Parking Access Easement"), Center has granted a vehicular access easement to District in order that District personnel and invitees may gain access to the potential Permit Parking Lot from Bear Creek Road, along a portion of the Center roadway and through a portion of the Center Parking Lot Easement. The District Parking Access Easement is attached hereto as Exhibit D and included by this reference. E. Center and District may, from time to time, wish to use portions of each other's parking areas, all in accordance with the terms of this Agreement. The Parties also wish to agree to terms for any construction, repair and maintenance of certain improvements and for certain cost sharing responsibilities. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Center Parking Lot Easement, From District to Center. (a) Grant of Center Parking Lot Easement. The terms and conditions of the Center Parking Lot Easement are set forth in Exhibit C and are incorporated herein by this reference. 1 (b) Construction. At the sole cost and expense of Center, Center shall construct the initial improvements which are more fully specified in Exhibit D to the Center Parking Lot Easement Agreement. (c) Maintenance and Repair Obligations. Center shall be solely responsible, at its sole cost and expense, for the maintenance and repair of the Center Parking Lot Easement as more fully set forth in Section IE of the Center Parking Lot Easement attached hereto as Exhibit C. (d) Indemnification. Center shall indemnify, defend and hold harmless, District as more fully set forth in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit C. 2. District Permit Parking Lot. Pursuant to this REA, District may determine, in its sole discretion through its comprehensive use and management planning process and any other applicable law, including but not limited to the California Environmental Quality Act (CEQA), to develop and construct a Permit Parking Lot for approximately 15 standard sized vehicles on District land northeast of the Center Parking Lot Easement. (a) Grant of District Parking Access Easement, From Center to District. Center has granted to District an access easement for vehicular traffic from Bear Creek Road, over portions of the Center Parcel to the District Permit Parking Lot, all as more fully set in the District Parking Access Easement, the terms and conditions of which are set forth in Exhibit D and incorporated by this reference. (b) Consultation. District agrees to consult with Center on any proposed development or modification of the Permit Parking Lot to be located northeast of the Center Parking Lot Easement. The intent of such consultation is to minimize potential impacts on the Center and its activities that may result from public use of the Permit Parking Lot District shall avoid any development design, plan or proposal which overburdens the District Parking Access Easement identified in Section 2(a) and Exhibit D of this REA. (c) Maintenance and Repair Obligations. District shall be responsible, at District's sole cost and expense, for the maintenance and repair of the Permit Parking Lot and the fence and all other improvements located thereon (collectively, the "Permit Parking Lot Improvements"); provided, however, that if any damage is caused to such Permit Parking Lot Improvements due to any negligence or willful misconduct of Center or Center's Licensees, then Center shall be required to reimburse District for the reasonable cost of repairing such damage. For the purposes of this Agreement, Center's Licensees means Center's agents, employees, licensees, guests, and other invitees. (d) Compliance with Law. District shall comply with all applicable federal, state and local law, statutes, rules, regulations, ordinances and other legal requirements relating to District's construction activities within the Permit Parking Lot including without limitation to the California Environmental Quality Act(CEQA). 2 (e) Indemnification. District shall indemnify, defend and hold harmless, Center as set out in Section 6 of the District Parking Access Easement, attached hereto as Exhibit E. (f) No Liability. Center shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Center resulting from or arising out of any act or omission by District, or the use or occupancy of the Permit Parking Lot by District, or directly or indirectly from any state or condition of the Permit Parking Lot, except a state or condition caused solely by the negligence or willful misconduct of Center. 3. District Use of the Center Parking Lot Easement. a) Access to Permit Parking Lot. District and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for pedestrian and vehicular access to a Permit Parking Lot as set out in the District Parking Access Easement. Neither District nor its Licensees shall use any portion of the Center Parking Lot Easement in any manner which is inconsistent with the Center Parking Lot Easement. (b) Parking. From time to time in accordance with the provisions of this Agreement, District may use portions of the Center Parking Lot Easement for special events, or at other times when District business requires, pursuant to the following conditions: (i) District gives Center at least 10 days' written notice of its request to use the Center Parking Lot Easement and obtains Center's consent which shall not be unreasonably withheld, conditioned or delayed; and (ii) District is in compliance with the indemnity provisions of Section 3(c)below; and (iii) District's use of the Center Parking Lot Easement would not cause a violation of the Center's Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25-02P-02A, dated February 6, 2003, as may be amended from time to time hereafter("CUP"). (c) Indemnity. In the event District uses all or a portion of the Center Parking Lot Easement pursuant to this Section 3, District will protect, indemnify, defend, and hold Center and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages,penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Center Indemnity Party): (a) any accident, injury or 3 j death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement during District use of the Center Parking Lot Easement under this Section 3; or (b) arising out of or in any way connected with District's use, possession, occupation, operation, maintenance or management of the Center Parking Lot Easement under this Section 3. 4. Center Use of a Permit Parking Lat. (a) Access to Permit Parking Lot. In the event, District decides to construct a Permit Parking Lot as described in this Agreement. Center and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for vehicular access to the Permit Parking Lot. (b) Parking. From time to time in accordance with the provisions of this Agreement, Center may use portions of the Permit Parking Lot for special events or business purposes pursuant to the following conditions: (i) Center determines, in good faith, that the Center Parking Lot Easement would be inadequate for the event in question; (ii) Center gives District at least 10 days' written notice of its request to use the Permit Parking Lot and obtains District's consent which shall not be unreasonably withheld, conditioned or delayed; and (iii) Center is in compliance with the indemnity provisions of Section 4(c)below. Notwithstanding any provision in this REA to the contrary, District may withhold its consent under this Section 4(b) if it determines, in its sole discretion, that the Permit Parking Lot will be fully utilized or needed for District activities and/or District Licensees. (c) Indemnification. In the event Center uses all or a portion of the Permit Parking Lot pursuant to this Section 4, Center will protect, indemnify, defend, and hold District and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the District Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Permit Parking Lot during Center's use of the Permit Parking Lot under this Section 4; or(b) arising out of or in any way connected with Center's use, possession, occupation, operation, maintenance or management of the Permit Parking Lot under this Section 4. 4 i 5. Construction of Alternate Access Road from Bear Creek Road to District Preserve (a) Covenants to Cooperate. District, at its sole cost and expense, and at its sole discretion, may explore the feasibility of constructing a separate or a shared alternate access road (hereafter"Alternate Access Road") for the benefit of District from Bear Creek Road to the District Permit Parking Lot or any other District public facility that may be developed in the future. The Parties acknowledge that such an Alternate Access Road might commence at the Center's entrance to the Center Parcel from Bear Creek Road or may commence elsewhere on Bear Creek Road. Construction of an Alternate Access Road may necessitate, to some degree, a widening and or reconfiguration of the portion of the existing Center driveway as shown on Exhibit C and its entrance closest to Bear Creek Road, as well as some reconfiguration of Bear Creek Road itself, all subject to applicable ordinances, rules, regulations, and including, but not limited to, the California Environmental Quality Act (CEQA). District and Center agree to cooperate with each other in good faith, in connection with satisfying all reasonable requirements with respect to the study of the feasibility of such an arrangement. The Parties understand that such plans are preliminary and not binding. In the event District proposes to construct an Alternate Access Road to be located, in whole or in part, upon the Center Parcel, such proposal will be subject to a comprehensive, separate Memorandum of Understanding to be negotiated, drafted and executed by the Parties taking into account, without limitation, all applicable laws and the following criteria: (i) Aesthetics. The scenic qualities along Bear Creek Road and entrances to the Presentation Center shall be protected from adverse impact to the maximum extent possible; (ii) Signaee. The Parties recognize that it is of paramount importance that appropriate signage be installed to avoid any confusion as to the location and identity of Presentation Center; (iii) Safety. All plans and specifications shall take into account any increased traffic flow on the portions of Bear Creek Road surrounding the entrance to Presentation Center and/or the proposed District facility; (iv) Public Trails. District would take full responsibility for evaluating the feasibility of establishing appropriate traffic control measures and other appropriate improvements along Bear Creek Road for the purpose of providing a public trail across Bear Creek Road, thereby connecting public trails on both sides of Bear Creek Road. (v) Conditions of Approval. District acknowledges receipt of the Center's Architectural and Site Approval Conditions of Approval for (File No. 8351-44-25- 02P-02A), dated February 6, 2003, relevant portions of which are attached hereto as Exhibit E ("Conditional Use Permit"), which include certain street and drainage improvements in and around the District Parking Access Easement. Center is contemplating entering into a Deferred Improvement Agreement as specified in the Conditions of Approval. If necessary, District and Center agree to cooperate, in the event the Deferred Improvements Agreement conflicts with 5 District's own Improvement Plans for the Alternate Access Road (defined below), to develop a mutually acceptable agreement for construction of the an Alternate Access Road for District which will also permit Center to complete its required Deferred Improvements at Center's sole cost or to otherwise incorporate the Deferred Improvements in District's Improvement Plans at Center's sole cost. Nothing in this Section 5 shall interfere with Center's completion of or other compliance with the Conditions of Approval, at its own cost and election. (b) Preparation of Plans. In the event District proposes to construct an Alternate Access Road to be located in whole or in part upon the Center Parcel, and after Center and District execute the Memorandum of Understanding contemplated in this REA, District shall cause the preparation of plans and specifications for the improvements being constructed and installed by District ("District Improvement Plans") for review and approval by the County of Santa Clara. The District Improvement Plans, and any and all modifications thereto, shall conform to the Memorandum of Understanding and to applicable County standards and regulations. Prior to submitting to the County the District Improvement Plans, or any modification thereto, District shall deliver the District Improvement Plans to Center for approval of such portion of the District Improvement Plans as are located on the Center Parcel, which approval shall not be unreasonably withheld, conditioned or delayed. If Center does not deliver to District written notice of approval or disapproval of the District Improvement Plans within 20 days after Center's receipt of such plans, the District Improvement Plans shall be deemed approved, but only if District has first given Center telephone notice on or before the 15'h day that it intends to deem such Plans approved. Absent such telephone notice, the Plans shall not be deemed approved upon Center's failure to timely respond. Such Plans may be resubmitted for Center approval. If Center does not deliver to District written notice of approval or disapproval of any modification of the District Improvement Plans within 10 days after Center's receipt of such modification,the modification shall be deemed approved. (c) Permits and Bonds. If District determines to construct the Alternate Access Road, District shall use reasonable efforts to process and obtain all permits and approvals of the County and any other governmental authorities required to construct and install the Alternate Access Road in accordance with the District Improvement Plans. District shall provide payment and performance bonds to guarantee such construction and the payment of all construction costs arising thereunder, to the extent required by the County and other governmental authorities (d) In accordance with the proposed Memorandum of Understanding, Center shall grant District a temporary construction license, as necessary and subject to a mutually agreeable License Agreement ("License"), to construct and install the District Improvements if any portion of the Alternate Access Road is located upon the Center Parcel. Any such license or construction activity shall be preconditioned on, in addition to the other requirements of this Article 5, minimizing any disturbance or inconvenience to Center's ongoing retreat and business operations. (e) Insurance. Prior to the entry onto the License area for the Center Parcel for purposes of constructing and installing the Improvements, District shall obtain and maintain throughout the construction period until completion, comprehensive general liability 6 and property damage insurance, written on an occurrence basis, insuring against personal injury, death or property damage in the amount of at least $5,000,000 per occurrence. District shall be the named insured and Center shall be an additional insured under such policy. Evidence of such insurance shall be delivered to Center prior to commencement of any work either on the License area or elsewhere on the Center Parcel. District shall also satisfy all insurance requirements applicable under the terms of governmental permits or approvals applicable to the construction and installation of the Improvements. The requirements of this Section may be satisfied by delivery to Center of evidence of equivalent insurance coverage provided by membership in a government agency self insurance program. (f) Cost of Construction. District shall construct and install the Alternate Access Road at District's sole cost and expense. Center shall not be responsible for any costs incurred by District in connection with construction of the Alternate Access Road including,without limitation, costs occasioned by a County requirement that Bear Creek Road be widened to accommodate District's improvements. However, Center may request District to incorporate Center's Deferred Improvement Plans, into District's Improvement Plans, pursuant to Section 5(a)(v). In that event, Center and District will negotiate in good faith to develop a mutually acceptable cost sharing agreement for such improvements Notwithstanding the above, Center will pay District for any increased costs District incurs for construction of the Alternate Access Road which were incurred solely as a result of the incorporation of Center's Deferred Improvement Plans. (g) Construction Indemnities. Unless otherwise mutually agreed, District agrees to indemnify and hold harmless Center from any claims, costs, losses, expenses and liabilities (including reasonable attorney's fees) incurred in connection with all claims, arising from or a result of any mechanic's liens, stop notices or other claims regarding materials supplied or work performed, or the death, or accident, or injury, caused to any natural person, or to the property of any person, as shall occur by reason of the installation of the Alternate Access Road except for claims caused by the negligence or willful misconduct of the Center and its permittees. The form of indemnity shall be mutually acceptable to the Parties. (h) Term. The term of the obligation of the Parties under this Article 5 of the REA shall commence upon the mutual execution of this REA and the subsequent delivery of the REA to the respective Parties. This Article 5 shall terminate upon the later of 10 years from the mutual execution date of this REA or December 31, 2013. 6. Existing Easements. The provisions of this Agreement are subject to any and all existing easements or rights of way affecting the Center and District's Parcels. In the event of any conflict between this Reciprocal Easement and Use Agreement and the terms of the Center Parking Lot Easement or District Parking Access Easement (collectively, "Easements") the terms of said Easements shall prevail. 7. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United 7 States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to District: Midpeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: L. Craig Britton, General Manager Telephone: (650)-691-1200 Facsimile: 650 -691-0485 If to Center: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 8. No Partnership. Nothing contained in this Agreement shall be construed as making Center and District joint venturers or partners. 9. Miscellaneous. (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement 8 (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing, unless otherwise stated in this Agreement. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any arbitration action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (j) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (k) No Assignment. Except as otherwise set forth in the various Easement Agreements, this REA may not be assigned, in whole or in part, to any third party or affiliate of either Center or District without the prior written consent of the other Party. Any purported assignment made without requisite authority shall be deemed null and void. This REA may not, under any circumstances,be recorded. 9 (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this REA as of the date first written above. CENTER: PRESENTATION CENTER, LOS GATOS Name: l'Aj•EL2,44 ti7AR/E M L;4-P r--ZZ s:2 Its: t.r.,e�u Date:`CI{', DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: OOF Name: Nonette Hanks Its: President , Board of Directors Date: ,3 ATTEST: B Di Jerk Date: Ad II 10 CENTER PARCEL : A part of Section 6, Township 9 South, Range 1 West, m,D.Y.- Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of section 7, Township 9 South, Range I West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 890 501 West, 1021 .1 feet to an iron pipe in the center line of the Bear Creek Road; thence along the said center line North 50* 30' East, 283 . 8 feet; thence North 660 151 East, 283,. 8 feet; thence North 121 00 1 West, 194 .7 feet; thence North 850 45' East, 132 .66 feet; thence North 670 001 East, 135 .3 feet; thence North 130 001 East, 181.5 feet; thence North 681 30' East, 158 .4 feet; thence South 660 301 East, 166 .3 feet; thence North 89* 09' East, 90 . 8 feet; thence North 390 321 East, 140 .7 feet; thence North 27* 36' East, 108 .1 feet; thence North 20 EII East, 201 .2 feet; thence North 601 071 East, 241 .3 feet; thence North A 0 491 East, 216 .3 feet; thence North 22* 45' East, 110 .35 feet; thence North 550 241 East, 160 .75 feet; thence North 231 041 East, 103 .15 feet; thence North 70 001 West, 93 .85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore tree one foot in diameter bears South 280 41 , 36 . 8 feet and a nail in a Madrcne tree bears 'T 59.,9S feet , thence along the center line of saa-'A lane. Sout'n ,c-rth 221 181 West, 700 121 East, 123 .1 feet; thence South 550 33 , East, 72 . 92 feet; thence South 42, 2101 East, 91 -45 feet and South 320 131 East, 127.75 feet to an iron pipe; t-ence r1annIng N::rth 560 30 , East, I09 .7 feet to an iron_ r)ipe; thence North 52' 041 East, 475.12 feet to a 2 inch iron pipe in the bottom of a ravine; thence down the bottom of said ravine the following courses and distances: South 570 471 East, 140 .55 feet; South 590 31 ' East, 84 .4 Feet; South 470 571 East, 70.8 feet; South 490 351 'East, "11.2 feet; South 610 25' East, 123 . 8 feet; South 420 241 East, 32.5 feet; South 560 16 , East, 73 .9 feet; South 631 151 East, 82.5 feet; South 431 46' East, 85 .1 feet; South 480 501 East, 80.11 feet; South 370 161 East, 115 .6 feet; South 260 211 East, 54 .4 feet to a point in the center line of a creek known as Collins Creek; thence up the center line of Collins Creek the following courses and distances: South 450 161 Wes', 93 .6 feet; Scutln 320 431 West, 516.6 feet; South 420 48 ' West, 72.1 feet; South 13 151 West, 554.0 feet; South 441 55 ' West, 75 . 1 feet; South 720 121 West, 40.3 feet; SD--th �50� 321 Wiest, 47.1 feet; South �7_* 571 West, 65.71 feet; South 400 071 ' West, 34.2 feet; South 331 171 West, 72 .6 feet; thence South 440 41 ' West, 94.3 feet; Stuth 110 091 West, 49.6 feet; South 510 401 West, 72 .2 feet; South 331 461 West, 7: .4 feet; South 680 26' West, 43 .7 feet; South 330 231 vest, 139. 8 fleet; South 53c 371 West, 94.7 feet; South 810 471 'Kest, 52 .6 -feet; South 370 20 ' West, 51.0 , eet; South 540 14 ° West, 104 .5 feet; South Boo 531 78,�� Wes' , 200 .00 feet; north 15 ., West, 134.2 feet; South 730 27' West, 38 .5 feet; South 811 1-01 West, 29 .4 Feet; South 47* 5541 West, 52 . 4 feet; South 630 37 , West, 109 .4 feet; South 300 =31 West, 59.5 feet; South 480 231 West, 219 . 2 -feet ; South 57" 29 ' West-, 68 .1 feet; South. 41* 40 ' 47est, 76 .2 feet; South 610 051 West, 48. 0 feet; and Scuth 620 0011 West, 551­0 feet to an iron pipe in the line between Sections 6 and 7, owns hip 9 South, Range I Wes, and from said iron pipe, a redwood tree a inches in diameter bears North 710 451 East, 36.0 feet and a tan oak 'tree 16 inches in diameter bears North 470 -East, 47.5 feet; thence along the line between said Sections 6 and 7, North 880 401 West, 408 .0 feet to the place of beginning. DISTRICT PARCEL : BEING THAT PARCEL DESCRIBED Z,i CERTIFICATE OF COMPLIANCE RECORDED APRT_L 3, 1985 IN BOOK J310, PAGE 662 OF OFFICIAL RECORDS DESCRIBED AS FOLLOWS: THAT PORTION OF THE TRACT OF LAND FORMERLY BELONGING TO G£O. H. BASSETT AND WIFE, LOCATED IN SECTION 6, TOWNSHIP 9 SOUTH, RAuGE 1 WEST, M.D.M., ACQUIRED BY DEED DATED- JUKE-18, 1902, MADE BY WM."B—RRNKIN, ET AL TO-CEO H. -BASSETT, ET AL, WHICH DEED IS RECORDED IN VOL. 252 OF DEEDS, PAGE 490, RECORDS OF SANTA CLA A. COUNTY, CALIFORNIA WHICH PORTION OF SAID LANDS WHEREIN CONVEYED IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: TO WIT: BEGINNING AT A POINT IN THE CENTER LINE OF DOUGHERTY ROAD WHERE THE SAME IS INTERSECTED BY THE PROLONGATION EASTERLY OF THE SOUTHERLY LINE OF LOT 6, AS THE SAME IS DESIGNATED XNM DELINEATED ON THE 14AP OF THE SUBDIVISION OF THE RENOWDEN TRACT, %RICH MAP IS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA IN BOOK "C" OF MAPS, PAGE 51, SAID PORTION OF COMMENCEMENT BEING DESIGNATED AS ENGINEER'S STATION K.R.3 AS SET BY A.T. HERRMANN OF HERRMANN BROS. , SURVEYORS ANM C.E. 'S, SAN JOSE, CALIFORNIA AND SHOWN ON A MAP OF SURVEY OF THE PROPERTY OF SAID DR. GEC H. BASSETT AND WIFE, IN SECTION 6, TOWNSHIP 9 SOUTH, RA.NGE 1 WEST, M.D.M., SURVEYED BY SAID A.T. IwRRMANN ON AUGUST 4, 5 XID 6, 1903, FROM WTHICH STATION K.R.3. A MADRONE TREE 10" IN DIAMETER BEARS S. 870 30' W. 47 LINKS An A TAN OAK TREE 8" IN DIAMETER BEARS N. 530 35' W. 0.667 CHAINS; THENCE ALONG THE SAID DOUGHERTY ROAD FROM STATION K.R.3. THE FOLLOWING COURSES ANID DISTANCES, AS SO SURVEYED BY SAID A.T. HERR.MANN, AND DESCRI-BED ON SAID MAP OF SUCH SURVEY, NA.'4GLY: DOUGHERTY ROAD FROM K.R.3 NORTHWARD- COLTRSE DISTANCE I:Y Cir.AINS TO STATION NUMBERED N. 30-1/2° W. 1.00 1 N. 9° W. 1.5.0 2 N. 16-1/20 E. 1.00 3 N. 44-1/2° E. 0.75 4 N. 860 45' E. 1.30 5 N. 39° E. 2.36 6 N. 400 W. 2.50 7 N. 00 45' W. 1.50 8 N. 140 15' E. 3.25 9 N. 660 15, E. 1.50 10 N. 880 45' E. 2.22. 11 N. 790 45' E. 2.17 12 S. 610 0' E. 2.45 13 S. 75-1/4' E. 0.62 14 N. 420 15' E. 5.90 15 N. 58° 45' E. 1.30 15 N. 370 30' E. 2.40 i? N. 560 E. 2.6a 39 N. 760 30, E. 1.75 e0 S. 72° 15' E. 1.25 21 S. 45° 45' E. 2,20 22 S. 32° 30' E. 12.80 23 S. 41° 45' E. i.43 24 S. 63° 15' E. . 1.65 23 N. 65° 45' E. 0.355 26 WHERE A 1-1/4" IRON PIPE IS SET, FROM WHICii PIPE A VAL. OAK TREE 25" IN DIAMETER MARKED B, SEARS S. 70-3/4" E. 1.12 CHS. AND A LIVE OAK TREE 6" IN DIAMETER BEARS N. 83-1/4' W. 0.46 CHS; THENCE SOUTH 0' 23' E. 14.23 CHS. TO A STATION NUMBER 1/4S WHERE A 4" X 4" STAKE AND IRON PIPE IS SET, AND FORM WHICH A BLACK OAK 24 INCHES IN DIAMETER BEARS S. 120 E. 0.54 CHS. AND A MADRONE TREE 10" IN DIAMETER, BEARS S. 67-1/2' E. 0.29 CHS.; THENCE SOUTH 0° 06' E. 14.64 CHS. TO A POINT LI THE CENTER LINE OF COLLINS CREEK DESIGNATED EN'GINEER'S STATION F.R. ; FROM WHICiI POINT A REDWOOD TREE 5" IN DIAMETER BEARS S. 130 40' E. 0.25 CHS. AND A MAPLE TREE 9" IN DIAMETER IN A BUNCH OF 6 LARGE AND 12 SMALL MAPLE TREES BEARS N. 15° 05, S. 0.79 CHS. AND A FALLS IN THE CREEK ON A LEDGE RUNNING NORTH AND SOUTH XM TWO TO THREE FEET HIGH, 10 LINKS N.E. OF SAID POINT; RUNNING THENCE ALONG SAID CENTER LINE OF COLLINS CREEK, WITH mrs FOLLOWING COURSES AND DISTANCES, =13SLY. COLLINS CREEK FROM F.R. TO M.B. : COURSE .DISTANCE IN CHAIRS TO STATION NUMBERSD S. 50-1/2' W. 1.20 1 S. 37-1/2' W. 1.04 2 S. 4S' W. ' 0.90 3 S. 29-3/4' S. 0.66 4 S. 68-3/4' W. 1.10 5 S. 70-1/4' W. 1.42 6 S. 51-1/2' W. 0.78 7 0.90 a & ME WHICH ENGINEER'S STATION M.B. BEARS N. 74' W. 0.20 aiS. FROM A REDWOOD TRE3 10" IN DIAMETER MARKED B.T.M.B.; THENCE LEAVING SAID COLLINS CREEK AND RUNNING ALONG I A BOUNDARY CANYON FROM SAID STATION M.B. TO STATION BB, WITH THE FOLLOW'M COURSES AND DISTANCES NAMELY: BOUNDARY CANYON FROM M.B. TO 3.B. COURSE DISTANCE 'IN CHAINS TO STATZCN` NUMSERED N. 28-1/2' W. 1.33 A N. 40-1/2' W. 2.40 H N. 54' W. 2.00 4 N. 58-3/4' W. 1.46 I} N. 49' W. 1.67 E N. 66-1/4' W. 1.25 F N. 56-3/4' W. 1.66 G N. 50-1/4, W. 1.55 H N. 70' W. 1.81 53 WHICH SAID STATION BB I$ MARKED BY A 3" X 3" PICKET IN THE CENTER OF A GULCH A= MAPLE TREE 10 INCHES Iv DIAMETER IN A BUNCH OF 3 MAPLE TREES BEARS S. 4-1/20 W. 0.36 CHS. AND A BUCKEYE TREE t INCHES IN DIAMETER IN A BUNCH OF 6 BUCKSYE TR8E5 BEARS S, 82-1/20 W. 0.25' CHS. 'BOTH OF WHICH TREES ARE MARKED B.T.B.B.; THENCE S. 540 W. 9 CHS. TO A POINT IN BISSELL LANE AND A PIPE MARKED B,B. FROM WHICH A 4" X-4".WITNESS POST MARKED B.T.8:B,. BEARS N. S4 0 50, R. 0-.27- CHS.- AND A MADRON3 TREE SIMILARLY MXIKED 45 INCHES IN DIAMETER SEARS S. 80 W. 2.015 CHS. AND A POPLAR TREE 16 INCHES IN DIAMETER SIMILARLY MAP.KED BEARS N. 25-1j20 W. 0,623 CHS.; r4 NeiE C: ALONG THE CENTER LINE OF SAID BISSELL LANE, WITH THE FOLLOWING COURSES AND DISTANCES, VAMELY: BISSELL LANE, CENTER LINE FROM B.S. TO L.D. COURSE DISTANCE IN CHAINS TO STATION tlut!BERED N. 9-1/20 W. 0.61 I N. 23-3/40 W. 0.62 K N. 38-1/20 W. 1.00 L N. 42-1/20 W. 2.90 M K. S4-1/20 W: 0.72 N N. 67-1/20 W. 0.65 N. 84-3/4* W. 1.34 PIPE LD WHICH PIPE MARKED L.D. BEARS S. 67-1/40 S. 0.63 CHS. FROM A POPLAR TREE 11" IN DIAMETER AND A R=WCOD TREE 6" IN DIAMTEit OUT OF A STUMP o' FEET IN DI7V'ZeTER AND 10 FEET HIG3, BEARS S, 850 S' W. 0.77 CHS,p THENCE LEAVING; SAID BISSEL L LANE AND RUNNING ALONG THE ROAD THE FOLLOWIN G COURSES ANL' DISTANCES, NAMELY: FROM ,LD", COURSE DISTANCE IN CHAZI3S TO STATION NUMBERED 1.75 1 N. 240 E. 1.60 a 1.93 3 N. 380 30' E. 3,50 4 N. 100 W. 2.80 S N. 370 30' W. 0,75 6 u TO THE PLACE OF BEGINNING, ASSESSOR'S PARCEL NO. 544-31-002 i i i This document has not ben+Omparcd F%ith the original. RECORDING REQUESTED BY S A'*'TA C LARA C 0 LN, I�Y CLERK.- -CORDER AND WHEN RECORDED RETURNED TO: Presentation Center, Los Gatos 17240898 19480 Bear Creek Road 08104/03 o Los Gatos, California 95033-9519 HIM$ II'I 111111 Attn: Patricia Marie Mulpeters, PBVM SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY No Transfer Tax Due EASEMENT AGREEMENT CENTER PARKING LOT EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among 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 ("District" or "Grantor") and PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a "Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto being a part of Santa Clara County Assessor's Parcel No. 544-31-002 (the "District Parcel"). B. Grantee is the owner of certain real property situated in the County of Santa Clara, including the property immediately adjacent to the District Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the "Center Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July 9, 2003 wherein the Parties have agreed to grant to each other certain reciprocal rights, benefits and uses concerning portions of the District Parcel and portions of the Center Parcel, including, without limitation, an agreement to provide Center with a non- exclusive easement for parking on the District Parcel and for the construction of certain improvements incidental to such use, on the terms and conditions set forth below. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1 1. Grant of Parking Easement(District to Center). A. Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement set forth in this Section 1 as appurtenant to the Center Parcel for the benefit of Grantee and the tenants, subtenants, permittees, contractors, customers, visitors, invitees, and licensees of the Center Parcel, in, on, over, under and across the Center Parking Lot Easement (defined in Section 1(A)(i) herein). A legal description and plat map of the Center Parking Lot Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. References in this Agreement to the term "Easement" shall mean the easement granted pursuant to this Section 1. (i) Parkin . An easement for right of way over, across and through the Center Parking Lot Easement(defined in Section 2) in the area generally shown on the drawings attached as Exhibit D hereto (the"Site Plan"), as accessory for the passage of pedestrians and motor vehicles of any kind for any use consistent with this Agreement including, without limitation, the right to park at least 56 standard sized vehicles in the configurations shown on Center Parking L Easement hall be used for the businessnd u oses Exhibit D Said Ce er ar of s uses and purposes associated with the Grantee's retreat and conference center and as permitted by Grantee's approved Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25- 02P-02A, Dated February 6, 2003, as may be amended from time to time, (hereafter"CUP") and as set forth in the Site Plan attached as Exhibit D hereto and incorporated by this reference, and other incidental uses which are related to Grantee's permitted business and operations. (ii) Incidental uses and rights granted under the Center Parking Lot Easement: a. Access. The right of access reasonably necessary for pedestrians and motor vehicles and for Grantee to grade, improve, construct, install, use, maintain, repair and inspect of the Parking Area Improvements (defined in Section 2) for which the easement is granted as described above in Section 1(a)(i), in the area shown on the drawings attached hereto as Exhibit D. b. Refuse Disposal and Collection. The installation and maintenance in the Center Parking Lot Easement in the location designated by Grantee of refuse dumpsters or other suitable containers for the collection and retention of refuse and vehicular ingress to and egress from the Center Parking Lot Easement for the purpose of unloading the dumpsters and removing the trash from the Center Parking Lot Easement, in the area shown on the drawings attached hereto as Exhibit D. C. Drainage. The installation and repair and maintenance of storm drainage improvements over a portion of the Center Parking Lot Easement pursuant to a drainage plan to be submitted after recordation of this Agreement. Grantee shall obtain Grantor's prior written approval of said drainage plan before construction and installation of the drainage improvements. Grantor shall not unreasonably withhold, delay, or condition its consent to the drainage plan. The storm drainage shall be appurtenant to and for the express benefit of the Center Parcel. The storm drainage is granted for the purpose-of removing, draining and detaining storm, surface and subsurface water from the District Parcel over, upon, across and through the Center Parking Lot Easement as described in Exhibit C. 2 d. Utilities. The construction, installation and maintenance of utilities ("Utility Easement") which will be located along that portion of the Center Parking Lot Easement as more particularly described and depicted in Exhibit D. The Utility Easement includes the right to ingress and egress over the Utility Easement area as reasonably necessary or appropriate and is granted for the purpose of using, maintaining, installing, inspecting, relocating, repairing and replacing underground water lines serving the landscaped area within the Center Parking Lot Easement and underground electric lines serving the light standards in the Center Parking Lot Easement as described and shown in Exhibit D. B. Definition of Center Parking Lot Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the Center Parking Lot Easement as described in Exhibit C may lie upon the Center Parcel. Therefore, the term "Easement" or "Center Parking Lot Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the District Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. C. Tenn. The term of the Easement shall be perpetual, provided that Center Parcel continues to be used as a retreat and conference center as more fully set forth in the CUP. Grantor shall have the right to terminate this Easement upon the cessation of use of the Center Parcel for said purposes by giving Grantee 60 days written notice of its intent to do so. Notwithstanding the above, this Agreement shall remain in full force and effect if Grantee transfers ownership or control of the Center Parcel or Center to another not for profit entity engaged in substantially the same retreat and conference Center use or enterprise as Center, along the lines substantially set forth in the CUP. D. Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the Center Parking Lot Easement subject to the terms and conditions set forth in this Agreement; provided that (a) such use shall not unreasonably interfere with the Easement or its intended purposes; (b) no structures or physical improvements shall be constructed on the portions of the Center Parking Lot Easement which would unreasonably interfere with the use of the Easement; and(c) such use would not cause a violation of the CUP. E. Incidental Easement Rights. The Easement includes all incidental and pertinent rights of maintenance, inspection, installation, connection, repair and replacement reasonably necessary and appropriate to the uses of the Easement. Grantee shall obtain Grantor's prior written consent, which may not be unreasonably withheld, conditioned or delayed prior to entering the District Parcel contiguous to the Easement granted in this Agreement as provided herein for purposes of maintenance, inspection, installation, connection, repair and replacement for any uses of such Easement pursuant to this Agreement, including use 3 of portions of the District Parcel for staging and construction activities during the construction of the Parking Area Improvements. F. Construction, Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Parking Area Improvements and the Center Parking Lot Easement, provided that if any damage is caused solely by any negligence or willful misconduct of Grantor, Grantor shall be responsible for promptly repairing such damage. Except for minor and routine maintenance projects, Grantee shall obtain prior written approval from Grantor for any alteration, reconstruction or replacement of the Parking Area Improvements, or Center Parking Lot Easement which approval shall not be unreasonably conditioned, withheld or delayed. 2. Approval of Drawings and Location. Grantor hereby acknowledges that it has generally approved the drawings showing the construction of the initial Improvements, including, without limitation, refuse disposal and signage, all as more fully set forth in the Site Plan attached hereto as Exhibit D. Grantor has specifically approved the Site Plan. The improvements specified in Section IA and Exhibit D of this Agreement to be constructed within the Easement shall be referred to herein as the "Parking Area Improvements". Any subsequent changes to the approved Site Plan drawings shall be subject to Grantor's prior written approval, which approval Grantor shall not unreasonably condition, withhold or delay. Prior to the commencement of construction, Grantee shall provide for Grantor's review, and obtain Grantor's prior written approval of, construction and grading plans for the Parking Area Improvements which shall include landscaping plans, utility layout, lighting plans and specifications and drainage plans. Grantor's approval shall not be unreasonably withheld, conditioned or delayed. 3. Permits and Approvals. At its sole cost and expense, Grantee shall secure all necessary approvals and permits prior to commencement of the initial construction of the Parking Area Improvements. If necessary, Grantor shall cooperate with Grantee to obtain such approvals and permits to the extent permitted by law. 4. Survey. The cost of making and recording any survey to determine the location of the Center Parking Lot Easement shall be borne solely by Grantee. 5. Representation and Warranties: Indemnification of Grantee. Grantor represents and wan-ants to Grantee that to the best of Grantor's knowledge Grantor has good and marketable title to the District Parcel, and there are no matters affecting title to the District Parcel which adversely affect the Easements or the rights granted under this Agreement, except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908, the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters set out in Section 6 of the Agreement to Exchange Interest in Real Property entered into by Grantor and Grantee on July 9, 2003. The Parties recognize that Grantor's obligation and authority to enter into and record this Easement requires prior written approval of the State of California Coastal Conservancy and Wildlife Conservation Board. 4 6. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof, including the Laws of Grantor. 7. Mechanic's Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Center Parking Lot Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 8. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Center Parking Lot Easement Area or any Parking Area Improvements and portions thereof, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than ($5,000,000,00)per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. 9. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easement. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is"physical condition and "As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, el seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination 5 on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantee. 10. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party or the Center Parking Lot Easement by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement; or (b) arising out of or in any way with any use, possession, occupation, operation, maintenance, management or condition of the Center Parking Lot Easement . 11. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Center Parking Lot Easement by Grantee, or directly or indirectly from any state or condition of the Center Parking Lot Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor. 12. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354-2346 Facsimile: (408) 354-5226 6 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan, Jr., Esq. Telephone: (415) 356-4600 Facsimile: (415) 356-3898 13. Subordination. Except as set forth in Section 5 hereof, the Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the District Parcel recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. 14. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 15. Miscellaneous A. Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. B. Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. C. Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. 7 D. Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. E. Time. Time is of the essence of this Agreement. F. Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. G. Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. H. Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. I. Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. J. Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. K. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. L. Authority. Each individual executing this Agreement on behalf of Grantor represents and warrants to Grantee that he or she is duly authorized to so execute and deliver this Agreement and that all entity, actions and consents required for execution of this Agreement have been given, granted or obtained. M. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. 8 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: N o n e t t e H a n k o SALLY A.THIELFOLDT Commission s 1341230 z Notary Public-California Its: President , Board of Directors Santa Clara County My Cap scn.DO=Jan 25,2M Date: go 0 Va"*3 GRANTEE: PRESENTATION CENTER, LOS GATOS Name: PAT',-e i ei4 MAi?iij Its: Date: w 9 i DISTRICT PARCEL : BEING THAT PARCEL DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED APR_TL 3, 1983 I*+ BOOR Z310, PAGE 662 OF OFFICIAL RECOPZS DESCRIBED AS FOLLOWS: i"HAT PORTION OF THE TRACT OF I v`D FORJ�RLY BELONGING TO GEO. H- BAsSETT AND WIFE, LOCATED IN SECTION 6, TOWNSHIP 9 SOUTH, RANGE 1 W-EST, M.D.M., ACQUIRED BY DEED,DATED' JUNE-T8, 19112, MADE BY WM. ET AL TO-CEO H. -BASSSTT, ET Ali, WHICH DEED IS RECORDED IN VOL. 252 OF DEEDS, PAGE 490, RECORDS OF SANTA CLARA COUNTY, CALIFORNIA WHICH PORTION OF SAID LANDS WHEREIN CONVEYED IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: TO WIT: BEGINNING AT A POINT IN THE CEAYTER LINE OF DOUGFs?RTY ROAD WHERE THE SAME IS INTERSECTED BY THE PROLONGATION EASTERLY OF THE SOUTk�-:RLY LINE OF LOT 6, AS THE SAME IS DESIGNATED XM DELINEATED ON THE MAP OF THE SU`BDIVTSIO:i OF THE MOWDE—V TRACT, WHICH MA-D IS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA IN BOOK "Cu OF MAPS, PAGE 51, SAID PORTION OF COM1,WCEM_117 BEING DESIGNATED AS £N'GINSER'S STATION K.R.3 AS SET BY A.T. Ez-R.LMANN OF H RRMAN"N BROS. , SLrcVEYORS ;,,\ro C.E. IS, SAN TOSS, CALIFORNIA AND SHOOT: ON A MAP OF SURVEY OF THE PROPERTY OF SAID DR. GEC F. BASSETT A-No WIFE, IN SECTION 6, TOWNSHIP 9 Sv=i, RrNG= 1 WEST, M.D.M., SURVEYED BY SAID A.T. F.ER:RLAN:WS ON AUGUST 4, 5 A_'IID 6, 1903, FROM W.TiI CH STAT--CN K.R.3. A MADRCNE TREE 10" iN DIAMETER BARS S. 870 30' W. 47 LINTXS AND A TAN OAX TREE 8" IN DIAMETE?? BEARS N. 539 35' W. 0.667 CHAINS; THENCE ALONG 'r:i-z SAID DOUGHERTY ROAD FROM STATION K.R.3. THE FOLLOWING COURSES AND DISTANCES, AS SO SU:RVFYED BY SAID A.T. h�:RR?MA:IN AND D SCRIBZD CIO' SAID MAP OF SUCH SUR4'EY, rXAELY: DOUG.'42RTY ROAD FROM K.R.3 NORTc'WARt . COL'RS3 DISTk�:CE In clHAINS TO STATION NUMBE?= 2I. 30-1/2" W. 1.00 N. 90 W. 1.5.0 2 N. 16-1/20 E. 1.00 3 N. 44-1/22 E. 0.75 4 N. 860 45' E. 1.30 IT. 390 E. 2.36 6 N. 404 W. 2.50 7 N. 00 45' W. 1.50 8 N. 140 1S' E. 3.25 9 N. 660 15, E. 1.50 10 N. 890 45' E. 2.22• 11 N. 790 45' E. 2.17 12 S. 610 0' E. 2.45 13 S. 75-1/4, E. 0.62 14 N. 424 15' E. 5.9J 15 N. 530 45' E. i.3;; 16 S. 990 16' E. N. 370 30' E. 2.40 N. 590 E. 2.63 19 N. 766 30' E. '} 1.75 20 S. 721 15' E. 1.25 21 S. 451, 45, E. 2.20 22 S. 32' 30' E. ` 2.80 23 S. 414 45' S. �1.45 24 S. 639 15' E. ' 1.65 25 N. 650 45' E. '0.355 26 WHERE A 1-1/4" IRON PIPE IS SET, FROM WHICH PIPE A VAL, OAX TREE 25" Ill DIAMETER MARSED B, BEARS S. 70-3/4' S. 1.12 CHS. AM A LIVE OAK TREE 6" IN DIAMETER BEARS N. 83-1/4' W. 0.45 CHS; THENCE SOUTH 0' 23' E. 14.13 CHS. TO A STATION NUMBER 1/4S WHERE A 4" X 4" STAKE AND IRON PIPE IS SET, AND FORM WHICH A BLACK OAK 24 INCHES IN DIAMETER BEARS S. 12' E. 0.54 CHS. AND A MADRONE TREE 10" IN DIAMETER, BEARS S. 67-1/2' E. 0.29 CHS.; THENCE SOUTH 0' 06' S. 14.64 CHS. TO A POINT LT THE CENTER LINE OF COLLINS CREEK DESIGNATED ?GIN rR'S STATION E.R. ; FROM WHICi POINT A REDWOOD TRES 5" IN DIAMETER BEARS S. 134 40' E. 0.25 CHS. AND A MAPLE TREE 9" IN DIAMETER IN A BUNCH OF 6 LA.RGE AUND 12 SMALL MAPLS TREES'BEARS N. 15' 05' S. 0.79 I . AND A FALLS IN THE CREEK ON A LEDGE RUNNING NOR IH AND SOUTH A,,VD T'AO TO THREE FEET HIGH, 10 LINKS N.I. OF SAID POINT; RUNNING THENCE ALONG SAID CENTER LINE OF COLLINS CREEK, WITH THE FOLLOWING COURSES AND DISTANCES, NAMLY: COLLINS CREEK FROM F.R. TO M.B. : COURSE -DISTANCE IN CHAINS TO STATION NVMBE.RM S. 50-1/2' W. 1.20 1 S. 37-1/20 w. 1.04 2 S. 45° W. • 0.90 3 S. 29-3/40 $. 0.66 4 S. 68-3/4' W. 1.10 5 S. 70-1/4' W. 1.42 6 S. 51-1/20 W. 0.78 7 S. 61° W. 0.90 8 & ME WHICH MIGINEER'S STATION M.B. BEARS N. 74' W, 0.20 CqS. FROM A REDWOOD TREE 10- IN DIAM"PER MARXEO B.T-M-B. ; THENCE LEA;ING SAID COLLINS CREEK AND RUNNING ALONG A BOUNDARY CANYON FROM SAID STATION M.B. O STATIC:± BE, WITH THE FOLLOWING COURSES AND DISTANCES NAMZLY: BOU:iDAFRY CANYON FROM M.B. TO 3.3. COU?.sE DISTANCE :11 C:Lkz s TO STATION At. 28-1/2' W. 1.33 A N. 40-1/2' W. 2.40 B N. 54° W. 2.00 C N. 58-3/4' W. 1.46 D N. 49' W. 1.67 z N. 66-1/4° W. 1.7.5 F N. 36-3/4' W. 1.66 G N. 50-1/4' W. 1.55 H N. 70' W. ?.81 Big WHICii SAID STATION B3 IS MARkED BY A 3" X 3" PICKET IN THE CENTER OF A GTJLCd A= MAPLE TREE 10 INCHES IN DIAMETER IN A BUNCH OF 3 MAPLE TREES BEARS S. 4-1/20 W 0.36 CHS. AND A SUCXM TREE 114C'HES IN DIAMETER IN A BUNCH OF 6 BUC=yE TRIES BEARS S. 82-1/29 W. 0.25"CHS. .B02"-i OF WHICH TREES ARE MARKED B.T.B.B.; THENCg S. 541 W. 9 CBS. TO A POINT IN BISSELL LANE AND A PIPE MARKED B.B. FROM WHICH A 4:1 X-4"•Vl MaS5 POST MARKED B.T.B,B.. BEARS N. 54° 50' X: 0.-?fi CHS.• AND A MADRONv_ TREE. SIMILARLY MARKED 45 INCHES IN DIAAMvTER SEAZS S. 8' W. 2.01.5 CXS. AND A POPLAR TRES 16 INCHES IN DIAMETER SIMILARLY MARKED BEARS N. 25-1/24 W. 0.623 CHS., r4ENC3 ALONG THE CENTER LINE OF SAID BISSELL LANs, WITH THE FOLLOWING COURSES AND DISTANCES, VAMELY: BZSSELL LANE, CENTER LIN'c: FROM B.B. TO L.D. COURSE DI'STANCc IN CHAINS TO STATION NUMBERED N. 9-1/20 W. 0.61 I N. 23-3/4, W. 0.62 K N. 38-1/2° W. 1.00 L N. 42-1/20 W. 2.90 M N. S4-1/24 W. 0.72 N N. 67-1/21 W. 0.65 N. 84.3/40 W. 1.34 PIPS LD WHICH PIFE AXED L.D. BEARS S. 67-1/4° S. 0.63 CHS, FROM A POPLAR TRES 11 IN DIAMETER AND A R=WCOD TRES 6" IN OLA OUT OF A STUMP 6 FU I:J DIAMETER AN--D 10 FEET HIGH, BEARS S. 85° 3' W � . E 0.?? Cam. , THENCE LEAtl1NG SAID H2Ss$LL L:IDIE A.*tD RU 4-47NO ALONG TH ROAD, THE FOLLOWING COURSES jLm DIS'TAnCES a K NAI�LY: FROM LD . COURSE DISTANCE IN CHAINS TO STATION NUMBERED N, .5 ri. 1.75 1 N. 240 S. 1,60 Y. 2 5' E. 1.95 3 N. 381 30' Z, 3.50 4 11. 100 W. 2.80 N. 370 30' W. 0.73 6 TO THE PLACE OF BEGINNING. ASSESSOR'S PARCEL NO. 544-31-002 CENTER PARCEL : A part of Section 6, Township 9 South, Range I West, M.D.M. Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 890 So ' West, 1021 .1 feet to an iron pipe in the center line of the Bear Creek Road; thence along the said center line North 500 301 East, 283 . 8 feet; thence North 660 157 East, 283,. 9 feet; thence North 121 001 West, 194 .7 feet; thence North 850 45 ' East, 132 .66 feet; thence North 671 001 East, 135 .3 feet; thence North 130 001 East, 181.5 feet, thence North 68* 3 0 1 East, 158 .4 feel; thence South 6060 301 East, 166 .3 feet; thence North 89' 091 East, 90 . 8 feet; thence North 3911 32 ' East, 140.7 feet, thence North 271 361 East, 108 .1 feet; thence North 20 511 East, 201.2 hence North 60* 071 East, 241 .3 feet; thence North 40 491 East, 216 .3 feet; thence North 22* 45' East, 110 .35 feet; the-rice North 550 241 East, 160.75 feet; thence North 23* 041 East, 103 .15 feet; thence North 70 001 West, 93 .85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore -tree one foot in diameter bears South 281 411 West, 36 . 8 feel and a nail in a Madrone tree bears :'Forth 220 ' S ' West, 59.85 feel;.1. -hence aloncz the center 11ne of said lane. Sout- 7011 121 East, 123.1 feet; thence South 550 331 East, 72. 92 feet; thence South 420 201 East, 91.45 feet and South 320 131 East, 127.75 feet to an iron pipe; thence running North SE, 30 , East, 109 .7 feet to an iron pipe; thence North 52° 041 East, 475.12 feet to a 2 inch iron pipe in the bottom ofa ravine; thence down the bottom of said ravine the following courses and distances: South 67* 471 East, 140 .53 feet; South 590 31 ' East, 84 .4 Feet ; South a 470 571 East, 70.8 feat; South 491 39' East, 71.2 feet; South 610 25 ' East, 123 . 9 feet; South 4" 241 East, 32.5 feet; South 56* 16 , East, 73.9 feet; South 631 1511 East, 82.5 feet; South 431 46 ' East, 85.1 feet; South 480 50 ' East, SO.? feet; South 37* 161 East, 115 .6 feet; South 2EO 211 East, 54 .4 feet to a point in the center line of a creek known as Collins Creek; thence up the center line of Collins Creek the following courses and distances: South 450 16 ' West, 63.6 feet; Scut 120 43, 'Kest, 56.6 fee"; South 420 481 West, 72 .1 feet; South 13, 151 West, 54 . 0 eel; South 440 55 ' West, 75 .1 feet; South 720 121 West, 40 .3 -feet; South 50:1 321 West, 47.1 feet; South 610 =77 West, 65.7 feet; South 40° C"It West, 34.2 feet; South 330 171 West, 72 .6 feet; thence South 411 41 ' West, 94.3 feet; Scut' 11,1 091 West, 49.6 feet; South 610 431 West, 72 .2 feet; Scuth 330 45 ' West: 7: .4 feet; South 680 261 West, 43 .7 feet; South 330 231 West, 139. 6 -feet; South 530 37 , West, 94.7 feet; South 310 471 West, 52 .6 feet7 South 370 2n ' West, 51.0 , eel; South 540 14 ' West, 104 .5 feet; South 800 531 West, 200 -00 feet; North 7E' 15 ' West, 134.2 feet; South 730 271 West, 38 . 5 -Feel; South 610 1C ' West, 29 .4 -feet; South 471 54 ' West, 52 . 4 feet; Sc%;th 63O 371 West, 109.4 feet; South 30' 55 ' West, 59.5 'feet; South 480 23 , West, 219 , 2 feet; South 570 29 , West, 68 -15: ..eel; South 410 401 West, 76 .2 feet; South 610 051 West, 48 .0 feet; and Scut: 620 061 West, 5:1.0 feet to an iron vice in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pipe, a redwood tree 8 inches in diameter bears North 710 45I East, 36. 0 -feet and a tan oak tree 16 inches in diameter bears North 410 East, 47.5 -feet; thence along the line between said Sections 6 and 7, North 880 401 West, 408.0 feet to the place of beginning. Gary Ifland & Assoc., Inc. JOB G03021 —MROSD/Presentation Center 1100 Water Street, Suite C CALCULATED BY GRI Santa Cruz, CA 95062 SHEET 1 OF 2 (831)426-7941 FAX (831)426-6266 DATE 6124103 REVISED 7/28/03 EXHIBIT C NON EXCLUSIVE PARKING LOT EASEMENT SITUATE IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA. BEING A NON-EXCLUSIVE EASEMENT OVER A PORTION OF THE LANDS OF THE MIDPENSINSULA REGIONAL OPEN SPACE DISTRICT, AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED APRIL 3, 1985 IN BOOK J310, PAGE 662 OF OFFICIAL RECORDS, SANTA CLARA COUNTY, BEING A STRIP OF LAND, 102 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A STATION HAVING COORDINATES OF N 1 889 924.225 E 6 121 911.735 FROM WHICH A NAIL AND AERIAL CROSS IN THE CENTER OF A PAVED ROAD NEAR THE POINT OF INTERSECTION WITH A PAVED ROAD LYING SOUTHERLY OF THE SOUTHERLY BOUNDARY OF SAID LANDS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, AND HAVING COORDINATES OF N 1,889,756.810, E 6,122,090.05, BEARS SOUTH 46°48'21" EAST 244.59 FEET DISTANT; THENCE SOUTH 41°49'15" EAST 102.00 FEET TO A STATION; THENCE SOUTH 26024'15" EAST 110 FEET, MORE OR LESS, TO SAID SOUTHERLY BOUNDARY . THE SIDELINES OF SAID EASEMENT ARE LENGTHENED OR SHORTENED AT ANGLE POINTS AND AS NEEDED TO TERMINIATE ON SAID SOUTHERLY BOUNDARY. ATTACHED HERETO IS A PLAT LABELED EXHIBIT C (sheet 2) AND BY THIS REFERNCE MADE A PART HEREOF. THE BEARINGS AND COORDINATES SHOWN HEREON ARE BASED ON THE BEARING BETWEEN CONTROL STATIONS, HPGN D-MT. CHARLIE AND HPGN D 04 AJ, BEING SOUTH 000 40,31 EAST, A GRID DISTANCE OF 57168.88 FEET, PER NGS DATA, CA STATE PLANE COORDINATES, ZONE III, 1992 ADJUSTMENT, NAD 83. Compiled from a field survey data by Gary/Hand&Associates, Inc. in March 2003, Jab#G03029. GARY IFLAN & Assoc. J06 NO, -- G03021 SHEET N0. 2 OF 2 SURVEYING I MAPPING r" CALCULATED BY GRI DAB 7/11/03 r 10o Water St, Swte C, Santa Cruz,CA re!Bt 1.a26.Asa r FMC a31.42&sesc SCALE: 1"=10' EXHIBIT C - PARKING LOT EASEMENT (sheet 2) LANDS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Point of Beginning N 1889924.225 E 6121911 .735 %' - Parking Lot Eaoment To Bear Creek Road �pAt- 0� rl,, I Aerial Cross in Driveway LANDS OF THE N 1889756.81 PRESENTATION CENTER E 6122090.05 EXHIBIT D ot f, 3 ,•. .4,,. 1 .. cl+ar► ��.. rr �ry��� 7^L'"•��e� •Y .... .(", fit; 1 � • y . • .� RTY LINE SITE LEGEND ` ® (E)3%4'WcT STANDPIPE A ED BY PRESSURIZED �. E) (E)6'DRY STANDPIPE --•� (I-)FIRE ACCESS ROUTE --� (N)FIRE ACCESS ROUTE 3'-4 DIAM. W 5 — PEDESTRAN FIRE ACCESS • ( ) N BLDG. `too .......-� ACCESSIBLE PATH OF TPA i CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT _`tiC t .s�:��,i>L`=3`�Y�����.52�'�!s��'rii�_��".S:`4:•_4'4_���s>.�'_K",.�.S.n"".r.��^.{' $i..F_4]�;itc�z-'�'� `��r .. �. l State of California County of _.i Q i-I /r— ft SS. On21 _� before me, .} ✓ r / ` ` ' e Aa to Namy and Tale of Officer(e.g.,`Jane Doe.Notary Publb') personally appeared c -7 F Ale e // a A, /t_ t% Name(s)of Signer(s) -Zpersonally known to me ) r proved to me on the basis of satisfactory evidence to be the person(`s,) whose name(sa Ogre ' subscribed to the within instrument and SALLY A.THIELFOLDT acknowledged to me that shenheq executed F- Commission*1341230 Z the same in erAeir authorized i .� Notary Public-Calftmia capacity(IK, and that by lti�klek ), Santa Clara County signatureXon the instrument the person(sr, or My Comm.E)pn3s Jan 25,2006 the entity upon behalf of which the person(Pr) acted, executed the instrument. WI TN S my., and and official seal. signature of Notero P 4 OPTIONAL Though the information below is not required by'aw:it may prove valuable to persons relying on the document and could prevent t3 ,fraudulent removal and reattachment of this form to another document. Description of Attached Document ,n Title or Type of Document: Document Date: Number of Pages: t5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer z Signer's Name: e OR 5 ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner—'� Limited ❑General f ❑ Attorney-in-Fact Trustee ❑ Guardian or Conservator f ❑ Other: -- ------ — f, Signer Is Representing: �"Vtr�v�'.�F„�_C- ' '�i�SeV`��'��,'4.�C'�%Cr�'<.��•--jai•_--`w�vY.C.�_"`v�rit?'�J..Nkr�ttil-_.1�`f..�'4`Z�v4.'��a/�f:` e 1999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 01313.2402•www.naOwAWmiaty.org Prod NO.5907 Reorder Call Tall-Fro 1 400.878&8827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT K. State of California I ss. County of &,v I �I. r -'1 On g L H before me, r; .f?�s ti. Al 7 Ase y dtjf,�Lt� IJ Date Name and Title of Officer(a g ne Ooe,Notary Public) ✓1, � r. I personally appeared ;1.. I / <) itr i:-Ills Name(s)of Signer(s) y personally known to me proved to me on the basis of satisfactory evidence ?" to be the person{" whose nameX is e i subscribed to the within instrument and acknowledged to me that 1,,e shehey executed the same in fi Oir authorized capacity(ie:}, and that by his(ierlheir t1SA ZAp signature(, } on the instrument the pers&n X), or Camn* ant IVM5 the entity upon behalf of which the person(k) p acted, executed the instrument. WCamm B0MSeP19,2X4 WITNESS m_ y hand and official seal.pow l ' Place Notary S -- of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document Y and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 4 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual — NORM Top of thump here ❑ Corporate Officer—Title(s): ❑ Partner—E Limited General ti ❑ Attorney in Fact ti:� C Trustee ❑ Guardian or Conservator ❑ Other: c Signer Is Representing: _ I. S: O 1"G HarlotW NOWy A$wdmdon•SM De gob Aw,PO,ON 2402•ChMrAw t,CA 91313 4M•www.nedare obq.org Prod.No.5907 Reorder:Call Toll-Free 14100-870M27 !C2�17QRNT D COPY: -Mis document has riot hc.:n compred"ith the original. RECORDING REQUESTED BY SANTA CLARA COUNTY CLERK-RECORDER AND WHEN RECORDED RETURNED TO: Doc#: 17240987 8/04/2003 11 24 AM MidPeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attn: Michael C. Williams SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103, 27383. CODE SECTION 11922 EASEMENT AGREEMENT DISTRICT PARKING ACCESS EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and 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 ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as"Parties RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto, being a part of Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the"Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-02 (the"District Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July 9, 2003 wherein the Parties have agreed to convey to each other certain reciprocal rights, and that allow for the possible development, benefits and uses concerning the construction, use and operation of a permit parking lot ("Permit Parking Lot") to the north of the parking lot which Center has a non-exclusive easement under an Easement Agreement (Center Parking Lot Easement)dated July 9, 2003. l D. Grantee desires to have the ability to provide public vehicular access to an area reserved for the Permit Parking Lot across portions of the Center Parcel, if this Permit Parking Lot is determined to be necessary and approved in the future by Grantee NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Grant of Easement. (a) Access Easement. Grantor hereby grants to Grantee a non- exclusive easement for the right of access over, across and through portions of the Center Parcel for vehicular traffic from Bear Creek Road to the District Parcel and the area reserved for a potential Permit to Parking Lot for up to 15 standard sized vehicles located at the northeast comer of the Center Parking Lot Easement, as more fully set forth in the plat and legal description attached hereto as Exhibit C which is incorporated herein by this reference. References in this Agreement to the term "Easement" shall mean the access easement granted pursuant to this Section 1. (b) Definition of District Parking Access Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Parking Access Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Parking Access Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Easement shall be perpetual unless terminated pursuant to Section I(g)herein. (d) Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the portions of the District Parking Access Easement subject to the terms and conditions set forth in this Agreement; provided that such use shall not unreasonably interfere with the Easement or its intended purposes. (e) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other, and shall specifically not be used for alternative pedestrian ingress and egress from Bear Creek Road to and from the potential Permit Parking Lot. Furthermore, the Easement shall only be used by District, its officials, employees, contractors, agents or consultants (collectively, "District Licensees") or by those District Licensees carrying a validly issued permit, issued by District for parking at the potential Permit Parking-. Lot. (f) Repair and Maintenance. Center shall be solely responsible for the maintenance and repair of the District Parking Access Easement; provided, however, that if any damage is caused to the District Parking Access Easement due solely to the negligence or willful misconduct of District or any of District's Licensees, then District shall be required at its option to either promptly repair such damage to Center's reasonable satisfaction or to reimburse Center for the reasonable cost of repairing such damage. (g) Termination. The term of the above-described District Parking Access Easement shall commence; (i) upon issuance of all requisite governmental approvals, if any, to construct or improve the Permit Parking Lot; (ii) compliance by District with the provisions of Article 5 below (Insurance); (iii) upon delivery to the Grantor of the REA signed by all requisite Parties; and (iv) delivery of written notice to the Grantor from the Grantee that Grantee use of the District Parking Access Easement has commenced ("Conditions"); provided, however, that if such Conditions have not been satisfied on or before the earlier of the tenth anniversary of the recordation of this Agreement or December 31, 2013, the grant of easements contemplated under this Agreement shall cease and be of no further force or effect. Grantor shall have the right to terminate this Easement upon Grantee's negotiation, construction, and commencement of use of an alternate route for ingress and egress on District's Parcel, all as more fully set forth in Section 5 of the REA. Grantee shall provide Grantor with a quit claim deed, as necessary, suitable for recordation in Santa Clara County, verifying that this Easement has been so terminated. 2. Approval of Drawings and Location. (a) Access Easement Area Improvements. The improvements which are currently constructed within the District Parking Access Easement shall be referred to herein as the "Access Easement Area Improvements". Any subsequent material changes to the Access Easement Area Improvements may be made at Grantor's sole discretion but shall not unreasonably interfere with the Easement. (b) District Planning and Use of Permit Parking Lot. As part of the District's Master Planning process for the Bear Creek Redwoods Open Space Preserve,District shall consult with the Grantor on any proposed site plan for Permit Parking Lot. Prior to approval by District's Board of Directors and submittal of any such plans to the County of Santa Clara, District shall submit a Site Plan showing the location and dimensions of the proposed District Permit Parking Lot to Grantor for comment. It is further understood that the District will consult with Grantor if a Permit Parking Lot is included in the Master Plan so as to minimize any impacts to or use conflicts with Grantor's adjacent property and use of the Center Parking Lot Easement. 3. Permits and Approvals. Grantee, at its sole cost and expense, shall secure all necessary approvals and permits prior to commencement of the initial construction of any potential Permit Parking Lot Improvements. Grantor shall reasonably cooperate with Grantee to obtain such approvals and permits, if necessary. 4. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof. 5. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the District Parking Access Easement, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than Five Million ($5,000,000) per occurrence. Grantor shall be named as additional insureds on such policy. Prior to the commencement of this Easement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. The requirements of this Section may be satisfied by delivery to Grantor of evidence of equivalent issuance coverage provided by membership in a government agency self-insurance program. 6. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is"physical condition and "As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 7. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence F- or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages,penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnified Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the District Parking Access Easement; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the District Parking Access Easement. 8. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the District Parking Access Easement by Grantee, or directly or indirectly from any state or condition of the District Parking Access Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure, of Grantor to carry out any of its repair or maintenance obligations as set out in this Easement Agreement. 9. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: MidPeninsula Regional Open Space District 300 Distel Circle Los Altos,California 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 i 10. No Dedication. Nothing herein contained shall be deemed to be a gift or be construed as a dedication of any portion of the District Parking Access Easement, or portion thereof, to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement shall be strictly limited to and for the purposes herein expressed. 11. Subordination. The Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous i (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any whether a articular matter must be arbitrated or an claim that a Part was dispute as to P Y Y p A fraudulently induced into entering into this Agreement or any part ofthis Agreement), ), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. captions of a inserted only as a Ca tions. The this Agreement ar �) P P �' Y matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. I (h) Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for i breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable j attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Sect ion 1468. (j) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable the remainder of this Agreement or the application of such S�' ( PP provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. I IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. I GRANTOR: PRESENTATION CENTER, LOS GATOS Name: P I Z-j e,IA A--iAt?I Its: �. c..z.c.�+��_l��-z . .'..��.✓ I Date: t aC c GRANTEE: i MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Nonette Hanko Its: President , Board of Directors Date: 96� L�Iilbii L CENTER PARCEL : A part of Section 6, Township 9 South, Range 1 Wes:, to,.D.1q. Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range I West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 890 50 ' West, 1021 .1 feet to an iron pipe in the center line of the Bear Creek Road; thence wrong the said center line North 50* 30' East, 283 . 8 feet; thence North 660 151 East, 283,. 8 feet; thence North 12* 0 0 ' West, 194 .7 feet; thence North 850 451 East, 132 .66 feet; thence North 670 00, East, 135 .3 feet; thence North 130 OVEast, 181.5 feel-; -thence North 68* 3 0' East, 158 .4 feet; thence South 660 301 East, 166 .3 feet; thence North 89* 09' East, 90 . 8 feet; thence North 3.90 321 East, 140 .7 feet; thence North 271 36' East, 108 . 1 feet; thence North 20 511 East, 201 .2 feet; thence North 60' 071 East, 241 .3 fees.; thence North 40 491 East, 216 .3 feet; "thence North 22* 45' East, 110.35 feet; thence North 550 24 ' East, 160-75 feet; thence North 231 04' East, 103 .15 feet; thence North 70 001 West, 93 .85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and V1411iam Rankin and from said last named point, a sycamore tree one foot in diameter bears South 280 411 West, 36. 8 feet and a nail in a Madrone tree bears ,crth 220 181 West, 59. 85 feet; thence along the canter line C-f said lane, Sou�h 700 121 East, 123 .1 feet; thence South 550 331 East, 72. 92 feet; thence Sout". 42' 701 East, .91.45 feet and Scum320 131 East, 127 .75 feet to an iron pipel! thence runn-ng Ncrth SEO 3c ,' East, IC9 .7 feet to an iron ripe; thence North 521 041 East, 475.12 feet to a 2 inch iron pipe in the bottom of a ravine; thence down the bottom of said ravine the following courses and distances: South 670 47 , East, 14'J.55 feet; South 590 31 ? East, 84.4 feet; South 470 571 East, 70. 6 feet; South 49* 39' East, 71 .2 feet; South 610 25, East, 123 . 5 feel; South 41' J. 241 East, 32.5 feet; South _`::60 161 East., 73 .9 feet; South 631 151 East, 82. 5 feet; South 430 46' East, 85 . 1 feet; South 4E* 501 East, 80.7 -feet; South 37" IGI East, 115 .6 feet; South 260 21' East, 54 .4 feet to a point in the center 11ne Of a Creek known as Collins Creek thence up the center line of Collins Creek the following courses and distances: South 450 16 ' Wes' , 63 .c' feet; Sc-uth 320 43' West, _95-6 fe-et; South 420 481 West, 72.1 feet; Scuth 130 151 West, 54 .0 Zeet; South 44* 551 West-, 75 . 1 fee ; South 720 121 West, 40. 3 -feet; Sz�uth 501 321 West, 47.1 feet; South El_o west-, E5.11 feet; South 402 0"' West, 34. 2 feet; South 330 17' West, 72 .9 fee,; thence South 441 1-11 West, 94.3 feet! 09! West, 49.6 feet; South 670, 40 West, 72.2 fee t; S ul'_h 3132 451 W a s t 7 feet; South 680 261 klesti 43 .7 fact; Sc; t h 330 2 3 1 a s t, 139 . 8 Ic e a!,- ; South 53c 3-71 West, 94.1 feet; SOU'�.n Ell 471 Wes', 52 .6 feet; South 371 201 West, 91 . 0 feet; South 540 14 West, 104 .5 feet; South 800 531 West, 200 .00 feet; North 'E� 151 West, 134 .2 feet; South 73o 271 West, 38 , 5 feet; South 811 101 Viest, 29 .4 feet; South 47* 54 ' West, 52 . 4 feet; Sc-uth 630 37, West, 109.4 feet; South 30' :551 West, 59.5 feet; South 430 231 West, 215 . 2 feet; South 571 291 West, 68 -15 feet; South 41* 40' West, 76.2 ;feet; South 610 051 West, 46.0 feet; and South 620 06' West, 51-0 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pine, a redwood tree 8 inches in diameter bears North 710 451 East, 36.0 -feel and a tan Oak tree 16 inches in diameter bears Y,:="_h� 410 E-ast, 47 .5 feet; thence along the line between said Sections 6 and 7, North 880 401 West, 408.0 feet to the place of beginning. DISTRICT PARCEL : BEING THAT PARCEL DESCRIBED IN C'RTIFICATS OF COMPLIANCE RECORDED APRIL 3, 1991Z IN BOOK J310, PAGE 662 OF OFFICIAL RECORDS DESCRIBED AS FOLLOWS: ' THAT PORTION OF THE TRACT OF LAND FORMERLY BELONGING TO GEO. ii. BASSETT A2v'li WIFE, LOCATED IN SECTION 6, TOWNSHIP 9 SOUTH, RANGE 1 WEST, M.D.M., ACQUIRED BY DEED,DATED iUNE-19, 1902, MADE BY WM. -B'—.WTKIN; ET AL TO-GEO H. -BXSSETT, ET XL, WHICH DEED IS RECORDED I:t VOL. 252 OF DEEDS, PAGE 490, RECORDS OF SANTA CLARA COUNTY, CALIFORNIA WEIC11 PORTION OF SAID LAANDS WHEREIN CONVEYED IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: TO WIT: BEGINNING AT A POINT IN T:;E CENTER LINE OF DOUGHZRTY ROAD WHERE THE SAME IS INTERSECTED BY THE PROLONGATION EASTERLY OF THE SOUTHERLY LINE OF LOT 6, AS THE SAME IS DESIGNATED XNM DELINEATED ON M MAP OF THE SUBDIVISION OF THE RENOWDv TRACT, %7HICH MA.n IS RECORDED IN TH OFFICE OF THF. COUNTY RECORDER OF THE COUPtTY OF SANTA CLARA, STAT:, OF CALIFORNIA IN BOOK "C° OF MAPS, PAGE 51, SAID PORTION 0? COMMENCEMs.'NT BEING DESIGNATED AS E:+7CINSER'S STATION X.R.3 AS SET BY A.T. EER L\%NN OF HEMMANN BROS. , su VEYORS X\M C.E. 'S, SAN TOSE, CALIFORNIA A:iD SHom, ON A MAP OF SURVEY OF 7iE PROPERTY OF SAID DR. G C H. BASSETT AND WIFE, IN SECTION 6, TOWNSHIP 9 SOU.i, RANGE 1 WEST, M.D.M., Si3RVEYED BY SAID A.T. I:=RQMAPN ON AUGUST 4, 5 XIM 6, 1903, FROM WYIC:i STATICN :{.R.3. A MAD TRS 10" IN DIAMETER SEARS S. 87' 30' W. 47 LI.NKS AND A TAN OA?t TREE 8" IN DIAMETER C SAID DOUGHERTY ROAD FROM ALONG THE W. 0.6 ? CHAINS; T:�:-:.:TCE AL 4P B Y. 5 3 3� 6 STATION K.R.3. THE FOLLOWING COURSES AND DISTANCES, AS SO SURVEYED BY SAID A.T. HER IL AND DESCR:88r� O%. , SAID MAP Or SCCH SL"RVcY, l+cA,%C-LY: DOUGHEI2TY ROAD FRG'M IC.R.3 NORTaWARD. COURSE LIS TAXCE IN C:lAINS TO STATION N*am3EF=- N. 30-1/20 W. 1.00 N. 9° W. 1.5.0 2 N. 16-1/20 E. 1.00 3 N. 44-1/2° E. 0.75 4 N. 860 45' B. 1.30 S N. 39' S. 2,36 N. 400 W. 2.50 7 N. 00 45' W. 1.50 S N. 140 15' E. 3.25 9 IS, E. 1.50 10 45, E. 2.22• 11 N. 799 45' E. 2.17 12 S. 610 0' E. 2.45 13 S. 75-1/4' E. 0.62 N. 42° 15' E. 5.9; 15 N. 534 45' E. 1.30 is S. 839 16' E. N. 370 30' E. 2.40 13 N. 560 E. 2.60 19 N. 760 30' E. 1.7 20 S. 72° 15' E. 1.25 21 S. 4511 45' E. 2.20 22 S. 32' 30' E. 2.80 23 S. 41' 45' E. t 1.45 24 S. 636 15' E. 1.65 25 N. 65° 45, E. 0.355 26 WHERE A 1-1/4" IRON PIPE IS SST, FROM WHICH PIPE A VAL. OAlt TREE 2S" IN DIAMETER MARKED B, BEARS S. 70-3/4' 3. 1.12 CHS. AND A LIVE OAK TREE 6" IN DIAMETER BEARS N. 83-1/4' W. 0.4.5 CHS; THENCE SOUTH 0' 23' E. 14.13 CHS. TO A STATION NUMBER 1/4S WHERE A 4' X 4" STAKE AND IRON PIRA IS SET, AND FORM WHICH A BLACK OAK 24 INCHES IN DIAMETER BEARS S. 12' E. 0.54 CHS. AND A MADRON$ TREE 10" IN' DIAMETER BEARS S. 67-1/2' E. 0.29 CHS. ; THENCE SOUTH 0' 06' E. 14.64 CHS. TO A POINT IN THE CENTER LINE OF COLLINS CREEK DESIGNATED ENG_IN3ER'S STATION F.R. ; FROM WHICH POINT' A REDWOOD TREE 5" IN DIAMETER BEARS S. 13' 40' E. 0.25 CHS. AND A MAPLE TREE 9" IN DIAMETER IN A BUNCH OF 6 LARGE AND 12 SMALL MAPLE TREES BEARS N. 15' OS S. 0.79 CHS. AND A FALLS IN THE CREEK ON A LEDGE RUNNING NORTH AND SOUTH XM TWO TO THREE FEET HIGH, 10 LINKS N.B. OF SAID POINT; RUNNING THENCE ALONG SAID CENTER LINE OF COLLINS CREEK, WITH THE FOLLOWING COURSES AND DISTANCES, Nr•Mn%.,: COLLINS CREEK FROM F.R. TO M.B. : COURSE DISTANCE IN CHAINS TO STATION NUMBERED S. 50-1/2' W. 1.20 1 S. 37-1/20 W. 1.04 2 S. 45' W. ' 0.90 3 S. 29-3/4' E. 0.66 4 S. 68-3/4' W.' 1.10 S S. 70-1/44 W. 1.42 6 S. 51-1/2' W. 0.78 7 S. 61' W. 0.90 8 S MB WHICH ENGINEER'S STATION ;t.B. BEARS N. 74' W. 0.20 CHS. FROM A REDWOOD TREE 10" IN DIAMETER MARKED B.T.M.B.; =CE LEXIING SAID COLLINS CREEK AND RUNNING ALONG A BOUNDARY CANYON FROM SAID STATION M.B. TO STATION BB, WITH THE FOLLOWING COURSES AND DISTANCES NAMELY: BOUNDARY CANYON FROM M.,B TO B.S. COURSE DISTANCE IN C.H.N1215 To STATTLION NUNIGE�3.2D N. 29-1/2' W. 1.33 A N. 40-1/2' W. 2.40 B N. 54, W. - N. 58-3/4' W. 1.45 D N. 49' W. 1.67 g N. 66-1/40 W. 1.25 F N. 36-3/4' W. 1.66 G N. 50-1/4' W. 1.55 K N. 70' W. 1.$1 BB I i .t WHICH SAID STATION B8 IS MARibm BY A 3- X 3- PICKET IN THE CENTER OF A GULCH AND MAPLE TREE 10 INCHES IN DIAMETER IN A BUNCH OF 3 MAPLE TREES BEARS S. 4-1/20 W. 0.36 CES. AND A BUC = TREE � INCHES IN DIAMETER IN A SU14CX OF 6 BU03YE rASES BEARS S. 82-1/2° W. 0.25' CHS. ''BOTH OF WHICH TREES ARE MARI= S.T.S.B.; THENCE S. 540 W. 9 CBS. TO A POINT IN BISSELL LANE AND A PIPE MARKED S.B. FROM WHICH =t A 4 X-411.4FI'FNESS POST MA RED B.T.8.B•. BEARS N. 540 50' 2: 0--2'7- C HS. AND A MA'DRON3 TREE SIMILARLY MA.RXED 45 INCHES IN DIAMETER SEARS S. 80 W. 2.015 CKS. AND A POPLAR TREE 16 INCHES IN DIAMETER SIMILARLY MA-R= BEARS N. 25-1/20 W. 0.623 THENC CBS % Z ALONG THE CENTER LINE OF SAID BISSELL LANE, WITH TH'w' FOLLOWING; COURSES A= DISTANCE S 1Jr1MELY: BISSELL LRrtE CENTER LI NE FROM B.S. TO L.D. COURSE DISTANCE IN CHAINS TO STATION NUMBERED N. 9-1/20 W. 0.61 I N. 23-3/41 W. 0.62 K N. 38-1/20 W. 1.00 L N. 42-1/26 W. 2.90 M N. 54-1/24 w: 0.72 N N. 67-1/20 W. 0.65 N. 84-3/41 W, 1.34 PIPE LD WHICH PIPS MARXSD L.D. BEARS S. 67-1/40 S. 0.63 CES. FROM A POPLAR TR83 11" M' DIAu'KSTBR AND A RZI)WCOD TREE 6" IN DIAMETER OUT CF A STLWM 6 FEAR' Ill' DIA=ER AND 10 F88T $IGH, SEARS S. S5° 5' W. 0.77 CHS.; THENCE LZAVING SAID BISSELL LANE AND RUh:+1IlvTi ALONG THE ROAD, THE FOLLOWING COURSES A..�M DISTANCES, NAMELY: FROM "LL'". COURSE DISTANCE IV cy-AINS TO STATION NLfi3ERr'T) 1.75 � 1 N. 340 E. 1.60 N. s° E. 1.53 2 3 N. 3811 30' E. 3.50 4 N. 10• W. 2.90 5 :?. 370 30' W. 0.75 6 & XR3 i TO THE PLACE OF BEGINNING. ASSESSOR'S PARCEL NO. S44-31-002 I i I Gary Ifland & Assoc., Inc. JOB G03021 —MROSD/Presentation Center 1100 Water Street, Suite C CALCULATED BY GRI Santa Cruz, CA 95062 SHEET 1 OF 2 (831)426-7941 FAX (831)426-6266 DATE §24/03 REVISED 7/2e103 EXHIBIT C NON EXCLUSIVE ACCESS EASEMENT SITUATE IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA. BEING A NON-EXCLUSIVE EASEMENT FOR INGRESS & EGRESS AND UTILITY PURPOSES OVER AN EXISTING ROAD, 20 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A STATION ON THE SOUTHERLY BOUNDARY OF THE LANDS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, BEING THE SAME AS THAT PARCEL DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED APRIL 3, 19851N BOOK J310, PAGE 662 OF OFFICIAL RECORDS, SANTA CLARA COUNTY, AT THE SOUTHERLY TERMINUS OF THE CENTERLINE AS DESCRIBED IN A PARKING LOT EASEMENT OVER SAID LANDS, THENCE ALONG THE PRODUCED CENTERLINE OF SAID PARKING LOT EASEMENT, SOUTH 26-24'15" EAST TO STATION P1, HAVING COORDINATES OF N 1,889,741.179, E 6,122,032.890, FROM WHICH A NAIL AND AERIAL CROSS IN THE CENTER OF A PAVED ROAD NEAR THE POINT OF INTERSECTION WITH A PAVED ROAD LYING SOUTHERLY OF SAID SOUTHERLY BOUNDARY, HAVING COORDINATES OF N 1,889,756.810, E 6,122,090.05, BEARS SOUTH 74g4220"WEST 59.26 FEET DISTANT, THENCE SOUTH 66q 11,55n WEST 57.06 TO A POINT OF CURVATURE; THENCE ON A CURVE TO THE RIGHT, HAVING A RADIUS OF 25.00 FEET, THRU A CENTRAL ANGLE OF 96g07 50 , A DISTANCE OF 41.94 FEET TO THE CENTER OF AN EXISTING PAVED ROAD; THENCE ALONG THE CENTER OF SAID ROAD THE FOLLOWING COURSES, NORTH 17 4015 WEST 31.00 FEET; ' " WEST 67.00 FEET; NORTH 41*48'15" WEST 166.00 FEET; NORTH 48g30'15"WEST NORTH 35 2215 , , 54.00 FEET; N 62055'15"WEST 70.00 FEET TO A STATION FROM WHICH A NAIL AND AERIAL CROSS BEAR SOUTH 83*15'22"WEST 39.83 FEET DISTANT; THENCE N 77015,15"WEST TO THE EASTERLY SIDE OF BEAR CREEK ROAD. THE SIDELINES OF SAID EASEMENT ARE LENGTHENED OR SHORTENED AT ANGLE POINTS AND AS NEEDED TO TERMINATE ON SAID SOUTHERLY BOUNDARY AND EASTERLY SIDE OF BEAR CREEK ROAD. ATTACHED HERETO IS A PLAT LABELED EXHIBIT C (sheet 2)AND BY THIS REFERNCE MADE A PART HEREOF. THE BEARINGS AND COORDINATES SHOWN HEREON ARE BASED ON THE BEARING BETWEEN CONTROL STATIONS, HPGN D-MT. CHARLIE AND HPGN D 04 AJ, BEING SOUTH 00*40'31" EAST, A GRID DISTANCE OF 57168.88 FEET, PER NGS DATA, CA STATE PLANE COORDINATES, ZONE 111, 1992 ADJUSTMENT, NAD 83. Compiled from a field survey data by Gary Ifland&Associates, Inc. in March 2003, Job #G03021. GARY IFLAN Lj & ASSOC. JOB N0. G03021 SHEET NO. 2 OF 2 SURVEYING I MAPPING Gl'S CALCULATED BY GRI _ DATE 7/26/03 t ioo water st, Sume C. Santa Cnrz,Ca ter 831.a26Jr941 Fax as i.a26.62W SCALE: EXHIBIT C - ACCESS EASEMENT (sheet 2) u i >).� u s �o sus Aerial Cross in Driveway y LANDS OF THE MIDPENINSULA REGIONAL + N 1890004.31 OPEN SPACE DISTRICT E 6121645.60 Bears S 83'15'22" W :!p� 39.83' r� u^ m Ili ti �s 5�oo i °° -� F� o �\ Existing Paved pr, � Road — 17'+/— a s Point of Beginning rn 1 N N LANDS OF THE w Lne PRESENTATION CENTER � m P�oPet�y 7,a-42'20"E,. 59.26' D=96'07'50" L=41.94' Station Aerial Crass P1 in Driveway N 1889741.18 N 1889756.81 E 6122032.89 E 6122090.05 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 11. State of California ss. � County of J1 In c11 C ` r r r On Z 9,&2 before me, / f 1 / Asia �,L Name d Tnle of Officer(e.g.. Jane Doe.Notary Publii) I personally appeared "^ r 1 C / ��Ca h L _ Name(3)of S,9rer(si personally known to me l proved to me on the basis of satisfactory evidence SALLY A-THIELFOLDT to be the person(* whose nameW PS, afe Commission#1341230 subscribed to the within instrumenand Notary Public-California > acknowledged to me that he�FgAhey executed Santa Clara County the same in higie�theif- authorized My Comm. Expims Jan 25,20M capacityCmg), and that by hie eW0their- signature(*on the instrument the person(iW, or the entity upon behalf of which the person(V acted, executed the instrument. i, y l WITNESS my hand and official seal. I signature or Not ubf I, / I S, �7 OPTIONAL ' Though the information below is not required by law,it may prove va,uable to persons relying on the document and could prevent ` fraudulent removal and reattachment of this form to another document. rl Description of Attached Document Title or Type of Document Document Date:__- _Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer j Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): E Partner—i_i Limited ❑General ❑ Attorney-in-Fact ❑ Trustee I ❑ Guardian or Conservator i ❑ Other: Signer Is Representing: C 7999 National Notary Association•9350 Oe Soto Ave..P.O.Box 2402•Chetswodh,CA 91313.2402•www.nadonalnotary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 rr t� CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. ' i County of r � 1 On -��: y l� .�G , before me, Z, /a Date ,�� Name and Tlue of Officer(e.g.,"Jane Doe,Notary Public") k< personally appeared 1 �2 f(r,f / `IA."t f_ / I L L a%,e_5 Name(s)of Stgner(s) L personally known to me f 'proved to me on the basis of satisfactory < evidence to be the person* whose name(} fs subscribed to the within instrument and acknowledged to me that sheMelr-executed the same in authorized capacity("tes), and that by hisCe lAheir LISA ZADEK signature((on the instrument the person(s), or Commission#1277545 Z the entity upon behalf of which the person(t) Notary Fabric_CalNarmio f acted, executed the instrument. Santa Clara County AhyCcmrn.Elgxes Sep 19,2tD4 WITNESS my hand and official seal. Place Notary Seal Above c_�� �Ka e of Notary Public C{ OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: NumLar of Pages: Signer(s) Other Than Named Above: I Capacity(ies) Claimed by Signer I' Signer's Name: - ------- - ----- - ' ❑ Individual Top cf thumb here l ❑ Corporate Officer—Title(s): ❑ Partner—Ci Limited ❑ General I ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing ,'���—::_. ,ti`Z�aC�4.,`�4;�`�.��"?>+'�".�`z-�„�`T�Z"-^C��?+^<;Lr�;��'�Z�z>� ' �';�` '.'�-<,�_z;�c.Y?x''�`Z�''< •Y`:`��eTv"%:?'��" <5,x 0 1999 National Notary Association•9350 De Soto Ave P 0.Box 2402•Chatsworth.CA 91313-2402•www.nationalnotary.org Prod.No.5907 Reorder Call Toll Free 1.800-876-6827 AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY This AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY(hereinafter, "Agreement") is made by and between the Midpeninsula Regional Open Space District, a California special district(hereinafter "District") and the PRESENTATION CENTER, LOS GATOS, a California Corporation(hereinafter "Presentation Center"). RECITALS WHEREAS, District owns certain real property located in the unincorporated area of the County of Santa Clara, commonly known as Assessor's Parcel Numbers 544-28-004, 544-29- 006, 544-30-002, 544-30-003, 544-33-003, 544-33-014, 544-31-002, 544-31-003, 544-31-004, 544-50-001, 544-50-004 and 544-56-004 and commonly known as the Bear Creek Open Space Preserve (herein, "District Land"); and WHEREAS, Presentation Center owns certain real property located adjacent to District Land in the unincorporated area of the County of Santa Clara and the County of Santa Cruz, commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005, 544-31-006, 544-50-003, 544-50-005 and 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03 (herein, "Presentation Center Land"); and WHEREAS, Presentation Center desires to obtain from District a non-exclusive parking lot easement over a portion of District Land in conjunction with the Presentation Center's Improved Property located on a portion of Santa Clara County Assessor's Parcel Numbers 544- 31-005 and 544-31-006; and WHEREAS, District desires to obtain from Presentation Center a non-exclusive access easement to a proposed District permit parking lot located upon District land and non-exclusive patrol and maintenance, and public trail easements across a portion of Santa Clara County Assessor's Parcel Numbers 544-31-005 and 544-31-006 to access, patrol, maintain,repair, and manage the adjacent District Land; and WHEREAS, Presentation Center and District have agreed to enter into a cooperative "Reciprocal Easement and Use Agreement" for the use of the Presentation Center's parking lot easement, the District's access easement, and for the potential development of future alternative access to a separate District parking lot located on a portion of District Land, Santa Clara County Assessor's Parcel Numbers 544-31-002, as more particularly described in this Agreement; and WHEREAS, District desires to purchase from Presentation Center certain real property consisting of the undeveloped portion of the Presentation Center Land commonly known as Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005, 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03. WHEREAS, Presentation Center and District desire to exchange and transfer certain real property rights as set forth in this Agreement; and 1 WHEREAS, District has determined that said exchange of interests in real property is of equal or greater value and that the long term preservation of open space at Bear Creek Redwoods Open Space Preserve would be greatly enhanced and secured by such exchange; and WHEREAS, said exchange has been determined to be in accordance with the District's enabling legislation set out at Section 5500 et seq. of the Public Resources Code of the State of California. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which all acknowledged, it is mutually agreed and understood as follows: 1. EXCHANGE OF EASEMENT AGREEMENTS. A. Center Parkin Lot Easement. District hereby grants to Presentation Center a non-exclusive easement for parking lot purposes over a portion of District Land commonly known as a portion of Santa Clara Assessor's Parcel Numbers 544-31-002 in the form set forth in Exhibit A, attached hereto and incorporated by this reference. B. Patrol and Maintenance, and Public Trail Corridor Easements. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress for patrol, emergency access, maintenance and repair of adjoining and surrounding District Lands from Bear Creek Road through the Presentation Center Land(the"Patrol and Maintenance Easement"). In addition, Presentation Center hereby grants to District a non-exclusive easement for public pedestrian trail use and for patrol and maintenance purposes (the "Public Trail Corridor Easement"). The District Patrol and Maintenance and Public Trail Corridor Easements shall be in the form set forth in Exhibit B attached hereto and incorporated herein by this reference. C. District Parking Access Easement. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress through the Presentation Center Land to District Land, in the form set out in Exhibit C attached hereto and incorporated herein by this reference. 2. COOPERATIVE PARKING AGREEMENT. Presentation Center and District agree to enter into a"Reciprocal Easement and Use Agreement" ("REA")in the form of Exhibit D attached hereto and incorporated by this reference. The REA provides for, among other things, use of the Center Parking Lot Easement by District for District special events scheduled with Presentation Center approval and the use of the District's Permit Parking Lot by Presentation Center for special events with District approval. 3. PURCHASE AGREEMENT. In further consideration for the District granting to Presentation Center the Center Parking Lot Easement, Presentation Center hereby grants to District the exclusive right to purchase the undeveloped portion of the Presentation Center property containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005 and 544-50-006, and Santa Cruz County Assessor's Parcel Numbers 2 I 091-051-02 and 091-051-03. The Purchase Agreement shall be in the form as set forth in Exhibit E attached hereto and incorporated by this reference. 4. ESCROW. A. No escrow will be opened for the consummation of the exchange of easements conveyed herein; however, Closing shall occur on or before August 8, 2003,unless extended by the parties. The term "Closing"means the date any Easement Agreement is recorded in the Office of the County Recorder of Santa Clara County. The Easements to be conveyed under this Agreement may be recorded serially, i.e., closings do not have to be concurrent to be valid,provided that at the Final Closing, all of the Easements to be conveyed under this Agreement have been recorded. Presentation Center shall be responsible for the proper recordation of the Center Parking Lot Easement and for any fees, costs or title insurance, if any. District shall be responsible for the proper recordation of the Patrol and Maintenance and Public Trail Corridor Easements and the District Parking Access Easement. B. District shall deliver to Presentation Center a fully executed and recordable copy of the Center Parking Lot Easement("Exhibit A") within ten (10)days of approval of this Agreement b District's Board of Directors. Pp gr Y C. Presentation Center shall deliver to District a fully executed and recordable copy of the Patrol and Maintenance and Public Trail Corridor Easements (Exhibit "B") within 10 days of approval of this Agreement by District's Board of Directors. D. Presentation Center shall deliver to District a fully executed and recordable copy of the District Parking Access Easement (Exhibit"C") within 10 days of approval of this Agreement by District's Board of Directors. E. Presentation Center shall deliver to District executed copies of the Purchase Agreement(Exhibit"E") concurrent with the date of Presentation Center's execution of this Agreement. 5. CONDITION PRECEDENT. As a condition precedent of the District's obligation to grant the easements, and complete the transactions contemplated by this agreement, prior to August 8, 2003 the District must obtain prior written approval from the California Coastal Conservancy and the State of California Wildlife Conservation Board to grant the Center Parking Lot Easement to Presentation Center. Absent such approval, this Agreement shall be terminated and of no force and effect. 6. BOUNDARY ISSUE. A. Presentation Center and District acknowledge that there currently exists a disagreement between the parties concerning whether there are discrepancies in the legal descriptions of the Presentation Center Land and/or the District Land at or near where the northerly boundary of the Presentation Center Land meets the southerly boundary of the District land, the area over which the existing driveway from Bear Creek Road lies and a portion of the Center Parking Lot Easement, and whether there are discrepancies in the parties' respective 3 surveys of the above-described lands. This disagreement is hereafter referred to as "the Boundary Issue". B. Presentation Center and District agree that, within one year of the approval of this Agreement by the District's Board of Directors, the parties will commence negotiations in good faith to resolve the Boundary Issue. C. If within one(1)year from the commencement of such negotiations, the parties reach a mutually acceptable resolution of the, Boundary Issue the parties agree to promptly take all reasonable and necessary steps to amend the legal descriptions of the Easements as necessary,to reflect the agreed upon resolution of the Boundary Issue and to re- record the Easements with amended legal descriptions. The parties further agree to take such other steps as necessary to prepare and record mutually agreeable surveyed boundary lines, and a record of survey if required. D. If, within one (1) year from the commencement of the negotiations, the parties are not able to reach a mutually acceptable resolution of the Boundary Issue, the parties agree that the Boundary Issue shall be decided solely and exclusively by binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted b JAMS-Endis ute or its successor, in accordance with its applicable arbitration P Y P P i e h single arbitrator will procedures then in effect. Unless the Parties otherwise e the s n e arb rules and roc s �' g P be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly,voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and 'u waiver provision shall survive P J g jury termination or expiration of this Agreement. E. Notwithstanding anything to the contrary in any of the transactional documents referred to in this agreement, including but not limited to the Easements and the Purchase Agreement, each party will bear its own costs of resolving the Boundary Issue pursuant to this Section, including but not limited to attorney's fees, and costs of survey. The parties shall share equally the cost of the arbitrator's fee. The prevailing party shall not recover attorney's fees or other costs. F. The parties agree that, nothing in this Section 6 shall be considered to affect, and the parties expressly reserve, all factual legal and equitable contention with respect to the Dispute. G. Notwithstanding anything to the contrary in any of the transactional documents referred to in this Agreement, including the Easements and Purchase Agreement, it is the parties' agreement and intent that neither the granting nor acceptance of any Easement described in this Agreement by either party shall be considered in any arbitration or legal 4 proceeding to be an admission or agreement by either party as to the nature or status of any party's rights in or title to either the underlying District Land or the underlying Presentation Center Land, as such rights or title existed prior to the recordation date of any Easement Deed described herein. It is each party's desire to grant the Easements described in this Agreement without prejudice to the granting party's ability in any such proceeding to assert any rights that party had or may have prior to said recordation date. 7. REPRESENTATIONS AND WARRANTIES. For the purpose of consummating this exchange of interests in real property in accordance herewith, Presentation Center and District, collectively referred to as the"parties", make the following representations and warranties, each of which is material, are being relied upon by the parties, and shall survive the recording of the easements being exchanged and conveyed herein. A. Authori . The Parties have 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 the Parties have been or will be duly authorized and executed and delivered by the Parties are legal, valid and binding obligations of the parties to complete this exchange and conveyance of real property. C. Good Title. Except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908 and the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters described in Section 6 herein, the parties have and at each and every Closing under this Agreement shall have good, marketable and indefeasible fee simple title to the real property interests being conveyed hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and the Parties shall forever indemnify and defend the other party from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. 8. PAYMENT OF FEES. All processing, legal, engineering, surveying, recording, and other fees incurred by either party pursuant to this Agreement, if any, shall be paid by Presentation Center for the Center Parking Lot Easement, and by District relating to the District Patrol and Maintenance, and Public Trail Corridor and District Parking Access Easements (collectively"Easements"). 9. TIMING. Within ten (10) days of approval of this Agreement by District's Board of Directors, the parties hereto shall exchange fully executed and acknowledged Easement Deeds in conformity with this Agreement conveying the easement interests to the respective parties as set forth in Section 1 and to take all other steps and execute all other documents necessary to complete this transaction. Within thirty (30) days after delivery of the respective deeds, both parties agree to record such deeds to provide for constructive notice 5 thereof, at their own expense. The District shall execute the required Certificates of Acceptance of the Easement Deeds conveyed to it by Presentation Center. The Presentation Center shall deliver fully executed copies of the Purchase Agreement (Exhibit "E") concurrent with the date of Presentation Center's execution of this Agreement. 10. AS-IS"CONVEYANCE. Both parties are acquiring the respective real property interests on an"As-Is"basis, without warranties, express or implied, regarding the physical condition of the property, except as specifically set forth in the Purchase Agreement, this Agreement, and the Easements. Both parties shall rely on their own inspections of the respective property interests. 11. INDEMNITY AND RELEASE OF LIABILITY A. With regard to the Center Parking Lot Easement, Presentation Center shall full release indemnify, hold harmless and defend District as set out in Section 9 of the i f f f Y fY Center Parking Lot Easement, attached hereto as Exhibit A. B. With regard to the Patrol and Maintenance and Public Trail Corridor Easements, District shall fully release, indemnify, hold harmless and defend Presentation Center, as set out in Section 7 of the District Patrol and Maintenance and Public Trail Corridor Easements, attached hereto as Exhibit B. C. With regard to the District Parking Access Easement, District shall indemnify Presentation Center as set out in Section 6 thereof, attached hereto as Exhibit C. 12. INSURANCE. Presentation Center and District, at each party's sole cost and expense, shall maintain in full force and effect comprehensive general liability insurance covering bodily and personal injury and property damage arising out of their respective activities in or on their respective Easements granted hereunder. The terms and conditions of required insurance shall be as set out in the Center Parking Lot Easement and the District Parking Access Easement and the Patrol and Maintenance and Public Trail Corridor Easements. 13. MISCELLANEOUS PROVISIONS. i D. 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. E. Amendment. The parties hereto may by mutual written agreement amend this Agreement in any respect. F. 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. 6 i G. 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: Presentation Center: Presentation Center 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Sister Patricia Marie Mulpeters TEL: (408) 354-2346 FAX: (408) 354-5226 With Copy to: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 TEL: (415) 356-4600 FAX: (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager TEL: (650) 691-1200 FAX: (650) 691-0485 confirmed c of such telegraphic, facsimile or If sent by telegraph, facsimile copy or cable, a conf e copy 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. H. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction,the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties 7 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. I. 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. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. J. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term,provision or condition or as a waiver of any other term,provision or condition of this Agreement. K. Entire A eement. This Agreement is intended b the parties to be the €'r �' Y 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. g g g J i L. Time of the Essence. Time is of the essence of each provision of this Agreementm' which time is an element. M. Survival of Covenants. All covenants of District or Presentation Center which are expressly intended hereunder to be performed in whole or in part after the Closing, including but not limited to the covenants set out in Section 6 herein, 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. N. Terms Run with the Land. The terms, covenants and conditions set out in this agreement shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the parties hereto pursuant to California Civil Code Section 1468. O. 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. P. 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. Q. 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. 8 _Ii R. Pronouns and Gender. 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. S. Authority. Presentation Center and District both represent and warrant that each has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. T. Inconsistencies. In the event of any inconsistencies between the provisions of this Agreement and the terms of the various agreements set forth in Exhibits A through E, inclusive, the terms of the latter shall prevail. U. Recordation. District may, at its sole expense,record a Memorandum of this Agreement in the County of Santa Clara and the County of Santa Cruz. IN WITNESS WHEREOF, the parties have executed this agreement below on the day and year shown therewith. lII IIl lII IIl 9 i PRESENTATION CENTER, Los Gatos, a California Corporation ("Presentation Center"): APPROVED AND ACCEPTED Bye Date: o20b By: Date: ATTEST: By: Presentation Center Clerk MIDPENINSULA REGIONAL OPEN SPACE DISTRICT ("District"): I RECOMMENDED FOR ACCEPTANCE: C �1 � B Date: 3 Michael C. Williams Real Property Representative APPROVED AS TO FORM: By. SZ(�-Gt�,�V �V Date: Susan M. Schectman, General Counsel REC ENDED F R.APPROVAL: By: Date: �/d L. Craig Bn neral Manager APPROVED AND ACCEPTED: By: 00 Date: QTamom 3 Presid nt, Board of Directors I ATTEST: p Date: Sally T oldt, Dist lerk I I �I 10 _ _1 EXHIBIT A RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, California 95033-9519 Ann: Patricia Marie Mulpeters, PBVM i SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY i No Transfer Tax Due i EASEMENT AGREEMENT CENTER PARKING LOT EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among NIIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District" or "Grantor") and PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a "Party" and together as"Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto being a part of Santa Clara County Assessor's Parcel No. 544-31-002 (the"District Parcel"). B. Grantee is the owner of certain real property situated in the County of Santa Clara, including the property immediately adjacent to the District Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the"Center Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA') dated July 9, 2003 wherein the Parties have agreed to grant to each other certain reciprocal rights, benefits and uses concerning portions of the District Parcel and portions of the Center Parcel, including, without limitation, an agreement to provide Center with a non- exclusive easement for parking on the District Parcel and for the construction of certain improvements incidental to such use, on the terms and conditions set forth below. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1 EXHIBIT A 1. Grant of Parking Easement(District to Center). A. Easement Scope and Descri tp ion. Grantor hereby grants to Grantee the non-exclusive easement set forth in this Section 1 as appurtent to the Center Parcel for the benefit of Grantee and the tenants, subtenants, permittees, contractors, customers, visitors, invitees, and licensees of the Center Parcel, in, on, over, under and across the Center Parking Lot Easement (defined in Section 1(A)(i) herein). A legal description and plat map of the Center Parking Lot Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. References in this Agreement to the term"Easement" shall mean the easement granted pursuant to this Section 1. (i) Parkin . An easement for right of way over, across and through the Center Parking Lot Easement(defined in Section 2) in the area generally shown on the drawings attached as Exhibit D hereto (the"Site Plan"), as accessory for the passage of pedestrians and motor vehicles of any kind for any use consistent with this Agreement including, without limitation, the right to park at least 56 standard sized vehicles in the configurations shown on Exhibit D Said Center Parking Lot Easement shall be used for the business uses and purposes associated with the Grantee's retreat and conference center and as permitted by Grantee's approved Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25- 02P-02A, Dated February 6, 2003, as may be amended from time to time, (hereafter CUP ) and as set forth in the Site Plan attached as Exhibit D hereto and incorporated by this reference, and other incidental uses which are related to Grantee's permitted business and operations. (ii) Incidental uses and rights granted under the Center Parking Lot Easement: a. A.,ccgss. The right of access reasonably necessary for pedestrians and motor vehicles and for Grantee to grade, improve, construct, install, use, maintain, repair and inspect of the Parking Area Improvements(defined in Section 2) for which the easement is granted as described above in Section I(a)(i), in the area shown on the drawings attached hereto as Exhibit D. b. Refuse Disposal and Collection. The installation and maintenance in the Center Parking Lot Easement in the location designated by Grantee of refuse dumpsters or other suitable containers for the collection and retention of refuse and vehicular ingress to and egress from the Center Parking Lot Easement for the purpose of unloading the dumpsters and removing the trash from the Center Parking Lot Easement, in the area shown on the drawings attached hereto as Exhibit D. C. Drainage. The installation and repair and maintenance of storm drainage improvements over a portion of the Center Parking Lot Easement pursuant to a drainage plan to be submitted after recordation of this Agreement. Grantee shall obtain Grantor's prior written approval of said drainage plan before construction and installation of the drainage improvements. Grantor shall not unreasonably withhold, delay, or condition its consent to the drainage plan. The storm drainage shall be appurtenant to and for the express benefit of the Center Parcel. The storm drainage is granted for the purpose of removing, draining and detaining storm, surface and subsurface water from the District Parcel over, upon, across and through the Center Parking Lot Easement as described in Exhibit C. i 2 EXHIBIT A d. Utilities. The construction, installation and maintenance of utilities ("Utility Easement") which will be located along that portion of the Center Parking Lot Easement as more particularly described and depicted in Exhibit D. The Utility Easement includes the right to ingress and egress over the Utility Easement area as reasonably necessary or appropriate and is granted for the purpose of using, maintaining, installing, inspecting, relocating, repairing and replacing underground water lines serving the landscaped area within the Center Parking Lot Easement and underground electric lines serving the light standards in the Center Parking Lot Easement as described and shown in Exhibit D. B. Definition of Center Parking Lot Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the Center Parking Lot Easement as described in Exhibit C may lie upon the Center Parcel. Therefore, the term "Easement" or "Center Parking Lot Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the District Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. C. Term. The term of the Easement shall be perpetual, provided that Center Parcel continues to be used as a retreat and conference center as more fully set forth in the CUP. Grantor shall have the p right to terminate this Easement upon the cessation of use of the Center g Parcel for said purposes b giving Grantee 60 days written notice of its intent to do so. p � Y g g Y Notwithstanding the above, this Agreement shall remain in full force and effect if Grantee transfers ownership or control of the Center Parcel or Center to another not for profit entity engaged in substantially the same retreat and conference Center use or enterprise as Center, alongthe lines substantial) set forth in the CUP. Y D. Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the Center Parking Lot Easement subject to the terms and conditions set forth in this Agreement; provided that (a) such use shall not unreasonably interfere with the Easement or its intended purposes; (b) no structures or physical improvements shall be constructed on the portions of the Center Parking Lot Easement which would unreasonably interfere with the use of the Easement; and(c) such use would not cause a violation of the CUP. E. Incidental Easement Rights. The Easement includes all incidental and pertinent rights of maintenance, inspection, installation, connection, repair and replacement reasonably necessary and appropriate to the uses of the Easement. Grantee shall obtain Grantor's prior written consent, which may not be unreasonably withheld, conditioned or delayed prior to entering the District Parcel contiguous to the Easement granted in this Agreement as provided herein for purposes of maintenance, inspection, installation, connection, repair and replacement for any uses of such Easement pursuant to this Agreement, including use 3 EXHIBIT A of portions of the District Parcel for staging and construction activities during the construction of the Parking Area Improvements. F. Construction, Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Parking Area Improvements and the Center Parking Lot Easement, provided that if any damage is caused solely by any negligence or willful misconduct of Grantor, Grantor shall be responsible for promptly repairing such damage. Except for minor and routine maintenance projects, Grantee shall obtain prior written approval from Grantor for any alteration, reconstruction or replacement of the Parking Area Improvements, or Center Parking Lot Easement which approval shall not be unreasonably conditioned, withheld or delayed. 2. Approval of Drawings and Location. Grantor hereby acknowledges that it has generally approved the drawings showing the construction of the initial Improvements, including, without limitation, refuse disposal and signage, all as more fully set forth in the Site Plan attached hereto as Exhibit D. Grantor has specifically approved the Site Plan. The improvements specified in Section 1 A and Exhibit D of this Agreement to be constructed within the Easement shall be referred to herein as the "Parking Area Improvements". Any subsequent changes to the approved Site Plan drawings shall be subject to Grantor's prior written approval, which approval Grantor shall not unreasonably condition, withhold or delay. Prior to the commencement of construction, Grantee shall provide for Grantor's review, and obtain Grantor's prior written approval of, construction and grading plans for the Parking Area Improvements which shall include landscaping plans, utility layout, lighting plans and specifications and drainage plans. Grantor's approval shall not be unreasonably withheld, conditioned or delayed. 3. Permits and Approvals. At its sole cost and expense, Grantee shall secure all j necessary approvals and permits prior to commencement of the initial construction of the Parking Area Improvements. If necessary, Grantor shall cooperate with Grantee to obtain such approvals and permits to the extent permitted by law. j 4. Survey. The cost of making and recording any survey to determine the location of the Center Parking Lot Easement shall be borne solely by Grantee. i 5. Representation and Warranties: Indemnification of Grantee. Grantor represents and warrants to Grantee that to the best of Grantor's knowledge Grantor has good and marketable title to the District Parcel, and there are no matters affecting title to the District Parcel which adversely affect the Easements or the rights granted under this Agreement, except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908, the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters set out in Section 6 of the Agreement to Exchange Interest in Real Property entered into by Grantor and Grantee on July 9, 2003. The Parties recognize that Grantor's obligation and authority to enter into and record this Easement requires prior written approval of I the State of California Coastal Conservancy and Wildlife Conservation Board. 4 EXHIB IT A 6. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof, including the Laws of Grantor. 7. Mechanic's Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Center Parking Lot Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 8. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Center Parking Lot Easement Area or any Parking Area Improvements and portions thereof, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than ($5,000,000,00) per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. 9. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easement. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is"state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination 5 t EXHIBIT A on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantee. 10. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party or the Center Parking Lot Easement by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnity Parry): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement; or(b) arising out of or in any way with any use, possession, occupation, operation, maintenance, management or condition of the Center Parking Lot Easement . i 11. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Center Parking Lot Easement by Grantee, or directly or indirectly from any state or condition of the Center Parking Lot Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor. 12. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354-2346 Facsimile: (408) 354-5226 6 i EXHIBIT A With a copy to: Luce, Forward, Hamilton& Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356-4600 Facsimile: (415) 356-3898 i 13. Subordination. Except as set forth in Section 5 hereof, the Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the District Parcel recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. 14. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 15. Miscellaneous A. Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. B. Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. C. Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. EXHIBIT A D. Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. E. Time. Time is of the essence of this Agreement. F. Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. G. Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. h H. A F In he event that either P shall institute an action or ttorn s Fees. the �Y Y proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Parry in the prosecution or defense of any such action or proceeding. I. Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. J. Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby,- and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. K. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. L. Authority. Each individual executing this Agreement on behalf of Grantor represents and warrants to Grantee that he or she is duly authorized to so execute and deliver this Agreement and that all entity, actions and consents required for execution of this Agreement have been given, granted or obtained. M. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. i 8 EXHIBIT A IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: GRANTEE: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: 9 l I EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attn: Michael C. Williams SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103,27383. CODE SECTION 11922 BY I EASEMENT AGREEMENT PATROL AND MAINTENANCE AND PUBLIC TRAIL CORRIDOR EASEMENTS This Easement Agreement ("Agreement") is made as of July.9, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and 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 ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto and incorporated herein by this reference, being a part of Assessor's Parcel No. 544-31-005 and 544- 31-006(the"Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, which is immediately adjacent to the Center Parcel and is commonly known as the Bear Creek Redwoods Open Space Preserve, as it currently exists or may be expanded in the future, as more particularly described in Exhibit B attached hereto and incorporated herein by this reference (the "District Preserve"). C. Grantee desires to obtain a non-exclusive easement to enter and pass through the Center Parcel for District purposes including patrol, maintenance, repair and emergency access and public trail access, as more particularly described in this Agreement. i NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1 III EXHIBIT B 1. Grant of Patrol and Maintenance Easement(Center to District (a) Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement as set forth in this Section 1 as appurtenant to the District Preserve as it currently exists or may be expanded in the future for ingress and egress for patrol, emergency access, maintenance and repair of the adjoining and surrounding District Preserve and the maintenance and repair of the public pedestrial trail easement described in Section 2(a) below along the existing driveway from Bear Creek Road and continuing along the existing service road to the Center treatment facility continuing to Collins Creek. A legal description and plat map of the Patrol and Maintenance Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. (b) Definition of District Patrol and Maintenance Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Patrol and Maintenance Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Patrol and Maintenance Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Patrol and Maintenance Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (d) Repair and Maintenance. Grantor shall be solely responsible for repairing and maintaining the paved portions of the Easement as it currently exists, as set forth in Exhibit C. The Grantor and Grantee shall share equally the cost and responsibility for repairing and maintaining the unpaved portions of the Easement as described and shown in Exhibit C. Any improvements to the Easement desired solely by the Grantor or Grantee shall be borne by the party requiring such improvements. Notwithstanding the above, in the event of damage to any area of the Easement caused solely by the act of one party or its agents, the damaging party shall have sole responsibility for repair of such damage, normal use, wear and tear excepted. Grantee shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Patrol and Maintenance Easement, except in the event of an emergency. (e) Survey. The cost of making any survey to determine the location of the Patrol and Maintenance Easement shall be borne by Grantee. (f) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other purpose. When using the Easement, District vehicles and/or employees or agents shall possess identification reasonably adequate to identify them as District employees or agents. Routine patrols shall be made no more than is reasonably required but in 2 I EXHIBIT B no event more than sixty (60) times per month. In all instances, District shall take every reasonable precaution against interfering with or disrupting the activities and business operations on the Center Parcel. (g) Non-Exclusive Use. The Patrol and Maintenance Easement shall be non-exclusive, and Grantor may make use of the area within the Patrol and Maintenance Easement including, without limitation, the right to construct, alter, maintain, repair, and improve all or a portion of the Easement as long as such use does not unreasonably interfere with the Patrol and Maintenance Easement or its intended purposes. 2. Grant of Public Trail Corridor Easement (a) Easement Scope and Description. Grantor hereby grants to Grantee a non-exclusive public trail corridor easement as appurtenant to the District Preserve, as it currently exists or may be expanded in the future, approximately thirty (30) feet in width, for public pedestrian trail use and use by the District for patrol emergency access, repair, and maintenance purposes. The public pedestrian trail shall be no more than ten (10) feet in width located within the thirty (30) foot trail corridor The Public Trail Corridor Easement shall be located on the slope below the Center treatment facility and above Collins Creek and connect to the lower portion of the existing service road, which is also part of the Patrol and Maintenance Easement described in Section l(a) above. A legal description of the Public Trail Corridor Easement shall be in the form set forth in Exhibit D attached hereto and incorporated herein by this reference. The Patrol and Maintenance Easement and the Public Trail Corridor Easement are collectively referred to as "the Easements." (b) Term. The term of the Public Trail Corridor Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (c) Trail Alignment and Construction. The Public Trail Corridor Easement Area ("Trail") shall be constructed by District, in consultation with Center as to location and dimensions within the area covered by the legal description attached as Exhibit D. Grantee shall obtain Grantor's prior written consent to the plans and specifications for the Trail, not to be unreasonably withheld, conditioned or delayed, prior to the commencement of any construction or work. The Trail shall be constructed and maintained by District, at its sole expense. Trail construction activities will be conducted so as to minimize interference with Center activities. Upon the completion of the Trail construction, District shall prepare a survey of the actual alignment of the constructed Trail and shall amend the legal description (Exhibit D) of the Public Trail Corridor Easement based on such survey and record an amendment to this Easement reflecting the accurate legal description of the Public Trail Corridor Easement. (d) Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Public Trail Corridor Easement. District shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Public Trail Corridor Easement, except in the event of an emergency. 3 I EXHIBIT B (e) Survey. The cost of making any survey to determine the location of the Public Trail Corridor Easement shall be borne by Grantee. (f) Non-Exclusive Use. The Public Trail Corridor Easement shall be non- exclusive and Grantor may make use of the area within the Public Trail Corridor Easement provided that such use does not unreasonably interfere with the Public Trail Corridor Easement or its intended purposes. 3. Representation and Warranties. Grantor represents and warrants to Grantee that Grantor has good and marketable title to the Center Parcel, and there are no matters affecting title to the Center Parcel which adversely affect the Easement or the rights granted under this Agreement. Grantor further represents and warrants to Grantee that there are no persons (other than Grantor) holding an interest in any of the Center Parcel so as to affect this Agreement. Requirements of Law. Grantee shall comply with all resent and future laws rules 4. Re p Y p � a q orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easement granted herein, or uses thereof. 5. Mechanics Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Public Trail Corridor Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 6. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Easement with limits which shall not be less than Five Million Dollars ($5,000,000.00) per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor a endorsement evidencing such insurance coverage. The requirements of this Section may be satisfied by delivery to Grantor evidence reasonably satisfactory to Grantor of equivalent insurance coverage provided by membership in a governmental agency self-insured program. 7. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easements or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easements including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easements and with knowledge of the matters set out in Section 6 of the 4 EXHIBIT B j Exchange Agreement. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 8. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any Grantor by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise from the negligence or willful misconduct of the Grantor): a an accident injury or death of persons (including workers or losses of or ( ) Y J rY p ( g ) damage to property occurring on or about the Easements; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the Easements. 9. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Easements by Grantee, or directly or indirectly from any state or condition of the Easements, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Patrol and Maintenance Easement Agreement. 10. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: i If to Grantor: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 5 I EXHIBIT B Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354-5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan, Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 If to Grantee: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650)691-1200 Facsimile: (650) 691-0485 11. Subordination. The Easements shall be superior to any and all deeds of trusts, r licenses covenants or encumbrances affecting the Grantor mortgages, liens, ground leases, co g property recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous i (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the 6 1 a EXHIBIT B arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in n assigns. h Parties hereto or their successors and writing executed b the g y i (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1469. 0) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. 11 EXHIBIT B (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: GRANTEE: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: EXHIBIT C RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: MidPeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attu: I SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103, 27383. CODE SECTION 11922 BY I EASEMENT AGREEMENT DISTRICT PARKING ACCESS EASEMENT This Easement Agreement ("Agreement") is made as of July 9, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and 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 ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto, being a part of Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the "Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-02 (the "District Parcel"). C. • Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July 9, 2003 wherein the Parties have agreed to convey to each other certain reciprocal rights, and that allow for the possible development, benefits and uses concerning the construction, use and operation of a permit parking lot ("Permit Parking Lot") to the north of the parking lot which Center has a non-exclusive easement under an Easement Agreement(Center Parking Lot Easement)dated July 9, 2003. 1 � EXH IBIT C I D. Grantee desires to have the ability to provide public vehicular access to an area reserved for the Permit Parking Lot across portions of the Center Parcel, if this Permit Parking Lot is determined to be necessary and approved in the future by Grantee NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Grant of Easement. (a) Access Easement. Grantor hereby grants to Grantee a non- exclusive easement for the right of access over, across and through portions of the Center Parcel for vehicular traffic from Bear Creek Road to the District Parcel and the area reserved for a potential Permit to Parking Lot for up to 15 standard sized vehicles located at the northeast corner of the Center Parking Lot Easement, as more fully set forth in the plat and legal description attached hereto as Exhibit C which is incorporated herein by this reference. References in this Agreement to the term `Basement" shall mean the access easement granted pursuant to this Section 1. (b) Definition of District Parking Access Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 9, 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Parking Access Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Parking Access Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Easement shall be perpetual unless terminated pursuant to Section 1(g)herein. (d) Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the portions of the District Parking Access Easement subject to the terms and conditions set forth in this Agreement; provided that such use shall not unreasonably interfere with the Easement or its intended purposes. (e) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other, and shall specifically not be used for alternative pedestrian ingress and egress from Bear Creek Road to and from the potential Permit Parking Lot. Furthermore, the Easement shall only be used by District, its officials, employees, contractors, agents or consultants (collectively, "District Licensees") or by those District Licensees carrying a validly issued permit, issued by District for parking at the potential Permit Parking.Lot. 2 EXHIBIT C (f) Repair and Maintenance. Center shall be solely responsible for the maintenance and repair of the District Parking Access Easement; provided, however, that if any damage is caused to the District Parking Access Easement due solely to the negligence or willful misconduct of District or any of District's Licensees, then District shall be required at its option to either promptly repair such damage to Center's reasonable satisfaction or to reimburse Center for the reasonable cost of repairing such damage. (g) Termination. The term of the above-described District Parking Access Easement shall commence; (i) upon issuance of all requisite governmental approvals, if any, to construct or improve the Permit Parking Lot; (ii) compliance by District with the provisions of Article 5 below (Insurance); (iii) upon delivery to the Grantor of the REA signed by all requisite Parties; and (iv) delivery of written notice to the Grantor from the Grantee that Grantee use of the District Parking Access Easement has commenced ("Conditions"); provided, however, that if such Conditions have not been satisfied on or before the earlier of the tenth anniversary of the recordation of this Agreement or December 31, 2013, the grant of easements contemplated under this Agreement shall cease and be of no further force or effect. Grantor shall have the right to terminate this Easement upon Grantee's negotiation, construction, and commencement of use of an alternate route for ingress and egress on District's Parcel, all as more fully set forth in Section 5 of the REA. Grantee shall provide Grantor with a quit claim deed, as necessary, suitable for recordation in Santa Clara County, verifying that this Easement has been so terminated. 2. Approval of Drawings and Location. (a) Access Easement Area Improvements. The improvements which are currently constructed within the District Parking Access Easement shall be referred to herein as the "Access Easement Area Improvements". Any subsequent material changes to the Access Easement Area Improvements may be made at Grantor's sole discretion but shall not unreasonably interfere with the Easement. (b) District Planning and Use of Permit Parking Lot. As part of the District's Master Planning process for the Bear Creek Redwoods Open Space Preserve, District shall consult with the Grantor on any proposed site plan for Permit Parking Lot. Prior to approval by District's Board of Directors and submittal of any such plans to the County of Santa Clara, District shall submit a Site Plan showing the location and dimensionkof the proposed District Permit Parking Lot to Grantor for comment. It is further understood that the District will consult with Grantor if a Permit Parking Lot is included in the Master Plan so as to minimize any impacts to or use conflicts with Grantor's adjacent property and use of the Center Parking Lot Easement. 3. Permits and Approvals. Grantee, at its sole cost and expense, shall secure all necessary approvals and permits prior to commencement of the initial construction of any potential Permit Parking Lot Improvements. Grantor shall reasonably cooperate with Grantee to obtain such approvals and permits, if necessary. 3 EXHIBIT C 4. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof. 5. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the District Parking Access Easement, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than Five Million ($5,000,000) per occurrence. Grantor shall be named as additional insureds on such policy. Prior to the commencement of this Easement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. The requirements of this Section may be satisfied by delivery to Grantor of evidence of equivalent issuance coverage provided by membership in a government agency self-insurance program. 6. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S..C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 7. In emni1y. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed 4 EXHIBIT C upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnified P a an accident injury or death of persons �Y)� ( ) Y J rY k(including workers)orlosses of or damage to property occurring on or about the District Parking Access Easement; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the District Parking Access Easement. 8. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the District Parking Access Easement by Grantee, or directly or indirectly from any state or condition of the District Parking Access Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Easement Agreement. 9. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: MidPeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan, Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 5 EXHIBIT C 10. No Dedication. Nothing herein contained shall be deemed to be a gift or be construed as a dedication of any portion of the District Parking Access Easement, or portion thereof, to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement shall be strictly limited to and for the purposes herein expressed. 11. Subordination. The Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. 6 EXHIBIT C (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibit . Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorrigy's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. Sgy—erability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. 7 EXHIBIT C IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GR ANTOR: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: GRANTEE: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT i By: I Name: I Its: j Date: i i I i I I i I EXHIBIT D RECIPROCAL EASEMENT AND USE AGREEMENT This Reciprocal Easement and Use Agreement ("REA") dated as of July 9, 2003, is by and between PRESENTATION CENTER, LOS GATOS, a California corporation ("Center") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT a Public District formed pursuant to Article 3 Chapter of C er 3 of Division 5 of the California p p Public Resources Code ("District"). District and Center are sometimes referred to in this REA singularly as a "Party" and together as "Parties". i RECITALS I A. Center is the owner of certain real property situated in the County of Santa Clara, State of California and more particularly described in Exhibit A attached hereto being a part of Assessor's Parcel numbers 544-31-005 and 006 (the "Center Parcel"). I B. District is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-002 (the "District Parcel"). C. Center and District have entered into that certain Easement Agreement dated July 9, 2003 ("Center Parking Lot Easement") in which District granted to Center a non-exclusive easement for ingress, egress and certain accessory uses more specifically described in the Center Parking Lot Easement, attached hereto and included by this reference as Exhibit C. D. District may construct a separate permit parking lot northeast of the Center Parking Lot Easement (hereafter "Permit Parking Lot") Pursuant to a separate Easement Agreement dated July 9, 2003, ("District Parking Access Easement"), Center has granted a vehicular access easement to District in order that District personnel and invitees may gain access to the potential Permit Parking Lot from Bear Creek Road, along a portion of the Center roadway and through a portion of the Center Parking Lot Easement. The District Parking Access Easement is attached hereto as Exhibit D and included by this reference. E. Center and District may, from time to time, wish to use portions of each other's parking areas, all in accordance with the terms of this Agreement. The Parties also wish to agree to terms for any construction, repair and maintenance of certain improvements and for certain cost sharing responsibilities. i NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Center Parking Lot Easement, From District to Center. (a) Grant of Center Parking Lot Easement. The terms and conditions i of the Center Parking Lot Easement are set forth in Exhibit C and are incorporated herein by this reference. I I EXHIBIT D (b) Construction. At the sole cost and expense of Center, Center shall construct the initial improvements which are more fully specified in Exhibit D to the Center Parking Lot Easement Agreement. (c) Maintenance and Repair Obligations. Center shall be solely responsible, at its sole cost and expense, for the maintenance and repair of the Center Parking Lot Easement as more fully set forth in Section 1 E of the Center Parking Lot Easement attached hereto as Exhibit"C." (d) Indemnification. Center shall indemnify, defend and hold harmless, District as more fully set forth in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit C. 2. District Permit Parkin Lot. Pursuant to this REA District may s g � Y determine, in its sole discretion through its comprehensive use and management planning process and any other applicable law, including but not limited to the California Environmental Quality Act (CEQA), to develop and construct a Permit Parking Lot for approximately 15 standard sized vehicles on District land northeast of the Center Parking Lot Easement. (a) Grant of District Parking Access Easement, From Center to District. Center has granted to District an access easement for vehicular traffic from Bear Creek Road, over portions of the Center Parcel to the District Permit Parking Lot, all as more fully set in the District Parking Access Easement, the terms and conditions of which are set forth in Exhibit D and incorporated by this reference. (b) Consultation. District agrees to consult with Center on any proposed development or modification of the Permit Parking Lot to be located northeast of the Center Parking Lot Easement. The intent of such consultation is to minimize potential impacts on the Center and its activities that may result from public use of the Permit Parking Lot District shall avoid any development design, plan or proposal which overburdens the District Parking Access Easement identified in Section 2(a) and Exhibit D of this REA. (c) Maintenance and Repair Obligations. District shall be responsible, at District's sole cost and expense, for the maintenance and repair of the Permit Parkin Lot and p P g the fence and all other improvements located thereon (collectively, the "Permit Parking Lot Improvements"); provided, however, that if any damage is caused to such Permit Parking Lot Improvements due to any negligence or willful misconduct of Center or Center's Licensees, then Center shall be required to reimburse District for the reasonable cost of repairing such damage. For the purposes of this Agreement, Center's Licensees means Center's agents, employees, licensees, guests, and other invitees. (d) Compliance with Law. District shall comply with all applicable federal, state and local law, statutes, rules, regulations, ordinances and other legal requirements relating to District's construction activities within the Permit Parking Lot including without limitation to the Ca lifornia Environmental Quality Act ualit . (CE A Q ) 2 EXHIBIT D (e) Indemnification. District shall indemnify, defend and hold harmless, Center as set out in Section 6 of the District Parking Access Easement, attached hereto as Exhibit E. (f) No Liability. Center shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Center resulting from or arising out of any act or omission by District, or the use or occupancy of the Permit Parking Lot by District, or directly or indirectly from any state or condition of the Permit Parking Lot, except a state or condition caused solely by the negligence or willful misconduct of Center. 3. District Use of the Center Parking Lot Easement. (a) Access to Permit Parking Lot. District and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for pedestrian and vehicular access to a Permit Parking Lot as set out in the District Parking Access Easement. Neither District nor its Licensees shall use any portion of the Center Parking Lot Easement in any manner which is inconsistent with the Center Parking Lot Easement. (b) Parking. From time to time in accordance with the provisions of this Agreement, District may use portions of the Center Parking Lot Easement for special events, or at other times when District business requires, pursuant to the following conditions: (i) District gives Center at least 10 days' written notice of its request to use the Center Parking Lot Easement and obtains Center's consent which shall not be unreasonably withheld, conditioned or delayed; and (ii) District is in compliance with the indemnity provisions of Section 3(c)below; and (iii) District's use of the Center Parking Lot Easement would not cause a violation of the Center's Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25-02P-02A, dated February 6, 2003, as may be amended from time to time hereafter("CUP"). (c) Indemnity. In the event District uses all or a portion of the Center Parking Lot Easement pursuant to this Section 3, District will protect, indemnify, defend, and hold Center and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Center Indemnity Party): (a) any accident, injury or 3 I EXHIBIT D death of persons(including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement during District use of the Center Parking Lot Easement under this Section 3; or (b) arising out of or in any way connected with District's use, possession, occupation, operation, maintenance or management of the Center Parking Lot Easement under this Section 3. 4. Center Use of a Permit Parking Lot. (a) Access to Permit Parking Lot. In the event, District decides to construct a Pen-nit Parking Lot as described in this Agreement. Center and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for vehicular access to the Permit Parking Lot. (b) Parking. From time to time in accordance with the provisions of this Agreement, Center may use portions of the Permit Parking Lot for special events or business purposes pursuant to the following conditions: (i) Center determines, in good faith, that the Center Parking Lot Easement would be inadequate for the event in question; (ii) Center gives District at least 10 days' written notice of its request to use the Permit Parking Lot and obtains District's consent which shall not be unreasonably withheld, conditioned or delayed; and (iii) Center is in compliance with the indemnity provisions of Section 4(c)below. Notwithstanding any provision in this REA to the contrary, District may withhold its consent under this Section 4(b) if it determines, in its sole discretion, that the Permit Parking Lot will be fully utilized or needed for District activities and/or District Licensees. (c) Indemnification. In the event Center uses all or a portion of the Permit Parking Lot pursuant to this Section 4, Center will protect, indemnify, defend, and hold District and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence'of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the District Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Permit Parking Lot during Center's use of the Permit Parking Lot under this Section 4; or(b) arising out of or in any way connected with Center's use, possession, occupation, operation, maintenance or management of the Permit Parking Lot under this Section 4. 4 EXHIBIT D 5. Construction of Alternate Access Road from Bear Creek Road to District Preserve (a) Covenants to Cooperate. District, at its sole cost and expense, and at its sole discretion, may explore the feasibility of constructing a separate or a shared alternate access road(hereafter"Alternate Access Road") for the benefit of District from Bear Creek Road to the District Permit Parking Lot or any other District public facility that may be developed in the future. The Parties acknowledge that such an Alternate Access Road might commence at the Center's entrance to the Center Parcel from Bear Creek Road or may commence elsewhere on Bear Creek Road. Construction of an Alternate Access Road may necessitate, to some degree, a widening and or reconfiguration of the portion of the existing Center driveway as shown on Exhibit_ and its entrance closest to Bear Creek Road, as well as some reconfiguration of Bear Creek Road itself, all subject to applicable ordinances, rules, regulations} and including, but not limited to, the California Environmental Quality Act (CEQA). District and Center agree to cooperate with each other in good faith, in connection with satisfying all reasonable requirements with respect to the study of the feasibility of such an arrangement. The Parties understand that such plans are preliminary and not binding. In the event District proposes to construct an Alternate Access Road to be located, in whole or in part, upon the Center Parcel, such proposal will be subject to a comprehensive, separate Memorandum of Understanding to be negotiated, drafted and executed by the Parties taking into account, without limitation, all applicable laws and the following criteria: (i) Aesthetics. The scenic qualities along Bear Creek Road and entrances to the Presentation Center shall be protected from adverse impact to the maximum extent possible; (ii) Sign} e_. The Parties recognize that it is of paramount importance that appropriate signage be installed to avoid any confusion as to the location and identity of Presentation Center; (iii) Safety. All plans and specifications shall take into account any increased traffic flow on the portions of Bear Creek Road surrounding the entrance to Presentation Center and/or the proposed District facility; (iv) Public Trails. District would take full responsibility for evaluating the feasibility of establishing appropriate traffic control measures and other appropriate improvements along Bear Creek Road for the purpose of providing a public trail across Bear Creek Road, thereby connecting public trails on both sides of Bear Creek Road. (v) Conditions of Approval. District acknowledges receipt of the Center's Architectural and Site Approval Conditions of Approval for (File No. 8351-44-25- 02P-02A), dated February 6, 2003, relevant portions of which are attached hereto as Exhibit E ("Conditional Use Permit"), which include certain street and drainage improvements in and around the District Parking Access Easement. Center is contemplating entering into a Deferred Improvement Agreement as specified in the Conditions of Approval. If necessary, District and Center agree to cooperate, in the event the Deferred Improvements Agreement conflicts with 5 EXHIBIT D District's own Improvement Plans for the Alternate Access Road (defined below), to develop a mutually acceptable agreement for construction of the an Alternate Access Road for District which will also permit Center to complete its required Deferred Improvements at Center's sole cost or to otherwise incorporate the Deferred Improvements in District's Improvement Plans at Center's sole cost. Nothing in this Section 5 shall interfere with Center's completion of or other compliance with the Conditions of Approval, at its own cost and election. (b) Preparation of Plans. In the event District proposes to construct an Alternate Access Road to be located in whole or in part upon the Center Parcel, and after Center and District execute the Memorandum of Understanding contemplated in this REA, District shall cause the preparation of plans and specifications for the improvements being constructed and installed by District ("District Improvement Plans") for review and approval by the County of Santa Clara. The District Improvement Plans, and any and all modifications thereto, shall conform to the Memorandum of Understanding and to applicable County standards and regulations. Prior to submitting to the County the District Improvement Plans, or any modification thereto, District shall deliver the District Improvement Plans to Center for approval of such portion of the District Improvement Plans as are located on the Center Parcel, which approval shall not be unreasonably withheld, conditioned or delayed. If Center does not deliver to District written notice of approval or disapproval of the District Improvement Plans within 20 days after Center's receipt of such plans, the District Improvement Plans shall be deemed approved, but only if District has first given Center telephone notice on or before the 151" day that it intends to deem such Plans approved. Absent such telephone notice, the Plans shall not be deemed approved upon Center's failure to timely respond. Such Plans may be resubmitted for Center approval. If Center does not deliver to District written notice of approval or disapproval of any modification of the District Improvement Plans within 10 days after Center's receipt of such modification, the modification shall be deemed approved. (c) Permits and Bonds. If District determines to construct the Alternate Access Road, District shall use reasonable efforts to process and obtain all permits and approvals of the County and any other governmental authorities required to construct and install the Alternate Access Road in accordance with the District Improvement Plans. District shall provide payment and performance bonds to guarantee such construction and the payment of all construction costs arising thereunder, to the extent required by the County and other governmental authorities (d) In accordance with the proposed Memorandum of Understanding, Center shall grant District a temporary construction license, as necessary and subject to a mutually agreeable License Agreement ("License"), to construct and install the District Improvements if any portion of the Alternate Access Road is located upon the Center Parcel. Any such license or construction activity shall be preconditioned on, in addition to the other requirements of this Article 5, minimizing any disturbance or inconvenience to Center's ongoing retreat and business operations. (e) Insurance. Prior to the entry onto the License area for the Center Parcel for purposes of constructing and installing the Improvements, District shall obtain and maintain throughout the construction period until completion, comprehensive general liability 6 EXHIBIT D and property damage insurance, written on an occurrence basis, insuring against personal injury, death or property damage in the amount of at least $5,000,000 per occurrence. District shall be the named insured and Center shall be an additional insured under such policy. Evidence of such insurance shall be delivered to Center prior to commencement of any work either on the License area or elsewhere on the Center Parcel. District shall also satisfy all insurance requirements applicable under the terms of governmental permits or approvals applicable to the construction and installation of the Improvements. The requirements of this Section may be satisfied by delivery to Center of evidence of equivalent insurance coverage provided by membership in a government agency self insurance program. (f) Cost of Construction. District shall construct and install the Center hall not e responsible for Alternate Access Road at District's sole cost and expense. Ce er s o b es o e P P any costs incurred by District in connection with construction of the Alternate Access Road including, without limitation, costs occasioned by a County requirement that Bear Creek Road be widened to accommodate District's improvements. However, Center may request District to incorporate Center's Deferred Improvement Plans, into District's Improvement Plans, pursuant to Section 5(a)(v). In that event, Center and District will negotiate in good faith to develop a mutually acceptable cost sharing agreement for such improvements Notwithstanding the above, Center will pay District for any increased costs District incurs for construction of the Alternate Access Road which were incurred solely as a result of the incorporation of Center's Deferred Improvement Plans. (g) Construction Indemnities. Unless otherwise mutually agreed, District agrees to indemnify and hold harmless Center from any claims, costs, losses, expenses and liabilities (including reasonable attorney's fees) incurred in connection with all claims, arising from or a result of any mechanic's liens, stop notices or other claims regarding materials supplied or work performed, or the death, or accident, or injury, caused to any natural person, or to the property of any person, as shall occur by reason of the installation of the Alternate Access Road except for claims caused by the negligence or willful misconduct of the Center and its permittees. The form of indemnity shall be mutually acceptable to the Parties. (h) Term. The term of the obligation of the Parties under this Article 5 of the REA shall commence upon the mutual execution of this REA and the subsequent delivery of the REA to the respective Parties. This Article 5 shall terminate upon the later of 10 years from the mutual execution date of this REA or December 31, 2013. 6. Existing Easements. The provisions of this Agreement are subject to any and all existing easements or rights of way affecting the Center and District's Parcels. In the event of any conflict between this Reciprocal Easement and Use Agreement and the terms of the Center Parking Lot Easement or District Parking Access Easement (collectively, "Easements") the terms of said Easements shall prevail. 7. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been given if (a) served personally, or (b) mailed, when deposited with the United properly i 7 i i EXHIBIT D States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to District: Midpeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: L. Craig Britton, General Manager Telephone: (650)-691-1200 Facsimile: (650)-691-0485 If to Center: Presentation Center, Los Gatos 19480 Bear Creek Road, Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 8. No Partnership. Nothing contained in this Agreement shall be construed as making Center and District joint venturers or partners. 9. Miscellaneous. (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement 8 EXHIBIT D (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and the shall not affect the interpretation hereof. 8�' Y TP (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing, unless otherwise stated in this Agreement. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any arbitration action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. 0) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (k) No Assignment. Except as otherwise set forth in the various Easement Agreements, this REA may not be assigned, in whole or in part, to any third party or affiliate of either Center or District without the prior written consent of the other Party. Any purported assignment made without requisite authority shall be deemed null and void. This REA may not, under any circumstances, be recorded. 9 EXHIBIT D (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this REA as of the date first written above. CENTER: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: ATTEST: By: District Clerk Date: 10 Exhibit E PURCHASE AGREEMENT This Agreement is made and entered into by and between PRESENTATION CENTER, LOS GATOS, a California Corporation hereinafter called "Seller" 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, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara and the County Santa Cruz 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, Seller wishes 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. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of Santa Clara and the County of Santa Cruz, State of California, containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 005 and 006 consisting of approximately 148.96 acres, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03 consisting of approximately 48.99 acres. Said property is further described in the Legal Descriptions attached to Preliminary Reports as: A. Exhibit A Old Republic Title Company Preliminary Report number 526475 dated February 21,2003 describes Santa Clara County Assessor's Parcel Numbers 544- 50-003, 005 and 006 (the "Santa Clara County Property"). Exhibit E Purchase Agreement Page 2 B. Exhibit B Old Republic Title Company Preliminary Report number 226342 dated February 12, 2003 describes Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03(the "Santa Cruz County Property"). Copies of said Preliminary Reports are attached hereto as Exhibit "A" and "B", and are 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". 2. Purchase Price. The total purchase price ("Purchase Price") for the Property and other rights granted herein shall be Three Million Three Hundred Sixty-Five Thousand and No/100 Dollars ($3,365,000.00). A Ten Thousand and No/100 Dollars ($10,000.00) Deposit Fee is paid into escrow in accordance with Section 14 of this Agreement ("Deposit Fee"). The Deposit Fee shall be applied to the Purchase Price at Closing. 3. LIQUIDATED DAMAGES. IF DISTRICT FAILS TO COMPLETE THIS PURCHASE BY REASON OF ANY DEFAULT OF DISTRICT, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO DISTRICT. BY INITIALING THIS SECTION 3, DISTRICT AND SELLER AGREE THAT IN EVENT OF SUCH DEFAULT BY DISTRICT, (1) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (2) AN AMOUNT EQUAL TO THE DEPOSIT FEE MADE BY DISTRICT AS SET OUT IN SECTION 2 OF THIS AGREEMENT IS A FAIR AND REASONABLE ESTIMATE OF SUCH DAMAGES AND SHALL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELLER; (3) THE PAYMENT OF LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER AT LAW OR IN EQUITY, AND SELLER WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE; (4) ESCROW HOLDER SHALL PAY THE DEPOSIT FEE TO SELLER AS LIQUIDATED DAMAGES; AND (5) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OR THE CALIFORNIA CIVIL CODE. NOTWITHSTANDING THE ABOVE, IN THE EVENT THIS AGREEMENT IS TERMINATED BY REASON OF ANY DEFAULT BY SELLER, OR BY REASON OTHER THAN THE DEFAULT OF THE DISTRICT, THE DEPOSIT FEE SHALL BE RETURNED IN FULL TO THE DISTRICT. ALL INTEREST ACCRUING FROM THE DEPOSIT FEE SHALL BE CREDITED TO THE DISTRICT'S ACCOUNT. SELLER INITIAL DISTRICT INITIAL Exhibit E Purchase Agreement Page 3 4. Escrow. Promptly upon execution of this Agreement, an escrow shall be opened at Old Republic Title Company, 1900 The Alameda, San Jose, CA 95126 (408) 557-6400 (Escrow number 526475) or other title company acceptable to District and Seller (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 July 31, 2003, 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 Deeds (as defined below) to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. B. Seller 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. Seller shall deposit into the escrow on or before the Closing: (i) An executed and recordable Grant Deed, covering the Santa Clara County Property as described in said Exhibit "A". (ii) An executed and recordable Grant Deed, covering the Santa Cruz County Property as described in said Exhibit "B". D. District shall deposit into the escrow, on or before the Closing: (i) The required Certificates of Acceptance for the Grant Deeds duly executed by District and to be dated as of the Closing; (ii) District's check payable to Escrow Holder for the Purchase Price in the amount of Three Million Three Hundred Fifty Five Thousand and No/100s ($3,355,000.00) which is the balance of the Purchase Price of Three Million Three Hundred Sixty Five Thousand �I ........... Exhibit E Purchase Agreement Page 4 and No/100 Dollars ($3,365,000.00) as specified in Section 2. The $10,000.00 Deposit Fee set out in Section 14 of this Agreement shall be applied to the Purchase Price. E. Seller and District shall share (50150) 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 � P P g PP between District and Seller in the manner customary in Santa Clara and Santa Cruz Counties. All current property taxes on the Property shall be pro-rated through escrow between District and Seller as of the Closing based upon the latest available tax information using the customary escrow procedures. F. As a condition to close of escrow, Seller shall cause Old Republic Title Company, or other title company acceptable to District and Seller, 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$3,365,000 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exceptions 7, 8, 9, 10, 12, 13,14 and 17 as listed in Preliminary Report No. 526475 (Exhibit "A", Santa Clara County Property) and title exceptions 2, 3, 4, 5 and 6 as listed in Preliminary Report No. 226342 (Exhibit "B", Santa Cruz County Property) (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 Deeds and attendant Certificates of Acceptance to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section S.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 6. , 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. In the event escrow is terminated due to District's default, Seller's remedies shall be as set out in Section 3 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). District Exhibit E Purchase Agreement Page 5 expressly reserves any rights and remedies which it may have against Seller or any other party by reason of a wrongful termination, default or failure to close escrow. 7. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller 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. Seller has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of Seller have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which Seller is a party or to which Seller is bound. B. Hazardous Materials. To the best of Sellers knowledge, there are no underground storage tanks located on, in or under the Property. There are no Hazardous Materials in, on, under, from or affecting the Property which violate federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, r disposal, generation, manufacture, refinement, handling, productions o disposal of Hazardous Materials. There is no violation of any federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, handling, production or disposal of Hazardous Materials in, on, under, from, or affecting the Property, and there have been no actions commenced, or, to the best of Seller's knowledge, threatened by any party for noncompliance therewith. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9641, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended(49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act(42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. C. No Actions. Seller represents and warrants to District that it is not presently a i party to any 'actions, suits, condemnations or proceedings pending or, to the best knowledge of Seller, threatened against or affecting the Property or its use. D. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of Exhibit E Purchase Agreement Page 6 any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof. E. Leases or Occupancy of Premises. Seller warrants that, as of the Closing, there will exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). F. Knowledge of Seller. Wherever Seller's "knowledge" is referenced in this Agreement, such references shall be deemed to be limited solely to the actual knowledge, without imputation and, unless otherwise specifically provided for to the contrary, without independent investigation, inspection or inquiry of Seller. 8. District's Representations and Warranties. District represents and warrants the following to Seller: District has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of District have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of District enforceable against District in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which District is a party or to which District is bound. 9. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or allow any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A" and Exhibit "B" 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. Seller hereby waives any and all existing and/or future claims or rights Seller may have to any relocation assistance, benefits, procedures, or policies as provided in said Exhibit E Purchase Agreement Page 7 laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. Seller has been advised as to the extent and availability of such benefit s, procedures, g Y , p , notice periods, and assistance and freely and knowingly waives such claims rights is and notice P Y gY � g periods except as set forth in this Agreement, including the fair market value of said Property, as provided for by said Federal Law and any similar California Law. 11. "AS-IS" Purchase and Sale. A. Acceptance of Property Condition. Closing of escrow for the transaction contemplated herein shall constitute District's representation that it has examined and inspected the Property and knows and is satisfied with the physical condition, quality, and state of repair of the Property in all respects and has determined that the same is acceptable to District "as is", and "with all faults" condition, and further accepts and agrees to bear all risks regarding all physical conditions and/or defects, latent, patent, or otherwise of the Property except as to the representations and the warranties of Seller contained in this Agreement. District agrees and acknowledges that, except as set forth in this Agreement, no other representations, statements or warranties, express or implied, including any warranties of habitability, merchantability, suitability and fitness for intended purpose have at any time been made by Sellers or their agents, as to the physical condition, quality, value, desirability, or state of repair of the Property. B. Specific Disclosures. District is aware that there is currently a 10 foot by 60 foot green house trailer, a red Datsun pick up truck, a orange International delivery truck and some abandoned personal property located on Santa Clara Assessor's Parcel Number 544-50-003, commonly referred to as the "Christmas Tree Lot". Furthermore, there is an accumulation of trash and other abandoned personal property on Santa Cruz County Assessor's Parcel Number 091-051-02. Seller will not remove any of this property or correct any of these conditions prior to the Closing, or ever, and District agrees to take the Property subject to such conditions. 12. Disclosure of Property Related Documents. A. Document Review. Prior to Seller's execution this Agreement, Seller represents and warrants that Seller has furnished to District or made available for review by District (with the right to photocopy the same) all documents in Seller's possession or control, or reasonably obtainable from Seller's consultants, attorneys or agents, excepting any documents which are privileged or confidential under the attorney client privileges, or subject to the attorney work-product privileges, concerning the Property, including: (i) Reports, studies, audits, investigations, inspections, appraisals, tests, and other inquiry materials concerning any physical condition of the Property, or any improvement, structure, facility, road, utility, or water facilities thereupon, including, but not limited to, the environmental or geotechnical condition of the Property and such improvements; Exhibit E Purchase Agreement Page 8 (ii) Environmental impact reports, CEQA documents, zoning, land use or development applications or documents relating to the Property; (iii) Government licenses, permits, entitlements or certificates applicable to ownership, use, operation or occupancy of the Property; The foregoing shall be collectively referred to as the "Property Related Documents". Upon District's execution of this Agreement, District has reviewed any and all such documents and completed any investigation or inspection of the Property required by it to satisfy itself regarding any concerns District may have related to these Property Related Documents or to the physical condition of the Property including without limitation environmental, geologic, flood or safety conditions. B. Notice of Acceptance. District's delivery of executed copies of this Agreement to Seller shall constitute District's written approval of the "as-is" condition of the Subject Property. C. Title. District acknowledges receipt of the documents enumerated in the Preliminary Report No. 526475 (Exhibit "A") as exceptions to coverage identified as Numbers, 12, 13 and 14, and Preliminary Report No. 226342 (Exhibit "B") as exception to coverage identified as number 6 and the rights and obligations associated therewith. 13. Miscellaneous Provisions. A. Access for Investigations. Pursuant to a separate Permission for Access for Inspection of Property dated March 26, 2003 ("Access Agreement"), District and District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") have been and may continue to enter upon the Property for the purpose of inspecting, testing and evaluating the same. A fully executed copy of the Access Agreement is attached hereto as Exhibit "C" and incorporated herein by this reference. Notwithstanding provisions to the contrary, the termination of the Access Agreement shall be contemporaneous with the Close of Escrow under this Agreement. 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. Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such Exhibit E Purchase Agreement Page 9 action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall be entitled to recover from the other party reasonable expenses and attorneys' fees. D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the time for the performance of any of the obligations of the other party; (ii) waive any inaccuracies in representations and warranties made by the other party contained in this Agreement or in any documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the covenants contained in this Agreement or the performance of any obligations of the other party; or (iv) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. The General Manager is authorized to agree to an extension of the time for the performance of any obligations on the part of District or Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. 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. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission, addressed as indicated as follows: Seller: Presentation Center Attn: Sister Patricia Marie Mulpeters 19480 Bear Creek Road Los Gatos, CA 95033-9519 Exhibit E Purchase Agreement Page 10 Telephone: (408) 354-2346 FAX (408) 354-5226 Copy: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 Telephone: (415) 356-4600 FAX (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager Telephone: (650) 691-1200 FAX: (650) 691-0485 If sent by facsimile copy, a confirmed copy of such facsimile notice shall promptly be sent by mail (in the manner provided above) to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other 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. G. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. 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. H. 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. Exhibit E Purchase Agreement Page 11 I. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. 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. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. L. Survival of Covenants. All covenants of District or Seller 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. M. 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; provided, however, that District may assign all of its rights and obligations hereunder to Peninsula Open Space Trust (POST) without further approval of Seller. N. 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. O. 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. P. Broker's Commission. There are no real estate brokers or finders involved in this Agreement. Seller and District shall each indemnify and hold the other harmless from any loss, claim, liability, judgment or expense of whatsoever kind and nature, including attorneys' fees, arising out of, or in connection with, any claim for a brokerage commission or finder's fee by any person claiming through Seller or District, respectively. Exhibit E Purchase Agreement Page 12 Q. 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. R. Pronoun References. In this Agreement, if it be appropriate, the use of the g 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. S. 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 within thirty (30) days of the aggrieved parry's written notice to the other, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding 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 of discovery. Hearings shall be held in Santa Clara 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. SELLER INITIAL DISTRICT INITIAL Exhibit E Purchase Agreement Page 13 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before noon on July 8, 2003, District shall have until midnight July 23, 2003 to accept and execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by Seller 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. As consideration for said irrevocable offer, District has paid into escrow a Deposit Fee and Seller acknowledges receipt of the sum of Ten Thousand Dollars and No/100 ($10,000.00), which shall be applied to the Purchase Price as set forth in Section 2 hereof, and shall constitute liquidated damages pursuant to Section 3 of this Agreement in the event District fails to complete this purchase by reason of a default by the District. 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. Exhibit E Purchase Agreement Page 14 DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN PRESENTATION CENTER SPACE DISTRICT ACCEPTED FOR RECOMMENDATION Date: Michael C. Williams, Real Property Representative APPROVED AS TO FORM: Susan M. Schectman, District Counsel RECOMMENDED FOR APPROVAL: L. Craig Britton General Manager APPROVED AND ACCEPTED: President, Board of Directors ATTEST: District Clerk Date: EXH191T i #* * **OLD REPUBLIC TITLE COMPANY L * 1900 THE ALAMEDA • SAN JOSE,CA • 95126 • (408)557-9400 • Fax:(408)249-2314 PRELIMINARY REPORT AMENDED-2/Update Issued for the sole use of: Our Order No. 526475-NM MIDPENINSULA REGIONAL OPEN SPACE Reference 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Fischer Nicole Monsees Buyer: Midpeninsula Regional Property Address: 19480 Bear Creek Road, Los Gatos, CA [Unincorporated area of Santa Clara County) In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) 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 requested. Dated as of February 21st ,2003 , at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to,See Attached Page 1 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be g y p Q made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE as to Parcels One, Two, Three, Four, Five and Six and EASEMENTS as to Parcels Seven and Eight. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, Los Gatos, a California corporation Page 2 of 12 Pages r OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The land referred to in this Report is situated in the County of Santa Clara , in the unincorporated area, State of California,and is described as follows: PARCEL ONE: A part of Section 6, Township 9 South, Range 1 West, M.D.M. Beginning at a one inch iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M. ; and running thence along the line between Sections 6 and 7, North 89' 50' West, 1021.1 feet to an iron pipe in the center line of the Bear Creek Road; thence along the said center line North 50' 30' East, 283.8 feet; thence North 66' 15' East, 283.8 feet; thence North 12' 00' West, 194.7 feet; thence North 85' 45' East, 132.66 feet; thence North 67' 00' East, 135.3 feet; thence North 13' 00' East, 181.5 feet; thence North 68' 30' East, 158.4 feet; thence South 66' 30' East, 166.3 feet; thence North 89' 09' East, 90.8 feet; thence North 39' 32' East, 140.7 feet; thence North 27' 36' East, 108.1 feet; thence North 2' 51' East, 201.2 feet; thence North 60' 07' East, 241.3 feet; thence North 4' 49' East, 216.3 feet; thence North 22" 45' East, 110.35 feet; thence North 55' 24' East, 180.75 feet; thence North 23' 04' East, 103.15 feet; thence North 7' 00' West, 93.85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore tree one foot in diameter bears South 28' 41' West, 36.8 feet and a nail in a Madrone tree bears North 22' 18' West, 59. 85 feet; thence along the center line of said lane, South 70' 12' East, 123.1 feet; thence South 55' 33' East, 72.92 feet; thence South 42' 20' East, 91.45 feet and South 32' 13' East, 127.75 feet to an iron pipe; thence running North 56' 30' East, 109.7 feet to an iron pipe; thence North 52' 04' East, 475.12 feet to a 2 inch iron pipe in the bottom of a ravine; thence down the bottom of said ravine the following courses and distances: South 67' 47' East, 140.55 feet; South 59' 31' East, 84.4 feet; South 47' 57' East, 70.8 feet; South 49' 39' East, 71.2 feet; South 61' 25' East, 123.8 feet; South 42' 24' East, 32.5 feet; South 56' 16' East, 73.9 feet; South 63' 15' East, 82,5 feet; South 43' 46' East, 85.1 feet; South 48' 50' East, 80.7 feet; South 37' 16' East, 115. 6 feet; South 26' 21' East, 54.4 feet to a point in the center line of a creek known as Collins Creek; thence up the center line of Collins Creek the following courses and distances: South 45' 16' West, 63. 6 feet; South 32' 48' West, 56.6 feet; South 42' 48' West, 72.1 feet; South 13' 15' West, 54.0 feet; South 44' 55' West, 75.1 feet; South 72' 12' West, 40.3 feet; South 50' 32' West, 47.1 feet; South 61' 57' West, 65.7 feet; South 40' 07' West, 34.2 feet; South 33' 17' West, 72.6 feet; thence South 44' 41' West, 94.3 feet; South 11' 09' West, 49.6 feet; South 61" 40 ' West, 72.2 feet; South 33' 46' West, 70.4 feet; South 68' 26' West, 43.7 feet; South 38' 23' West, 139.8 feet; South 53' 37 ' West, 94.7 feet; South 81' 47' West, 52.6 feet; South 37' 20' West, 51.0 feet; South 54' 14' West, 104.5 feet; South 80' 53' West, 200.00 feet; North 78' h ' W 29.4 7 West, 38.5 feet; South 81' 10 West,15 West, 134.2 feet; South 73' 2 s , , feet; South 47' 54' West, 52.4 feet; South 63' 37 ' West, 109.4 feet; South 30' ' W 219.2 feet; South 57' 29' West 68.15 feet; 4 2 West,55 West, 59.5 e South 8' 3 , feet; South 41' 40' West, 76.2 feet; South 61' 05' West, 48.0 feet; and South 62' 06' West, 51.0 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pipe, a redwood tree 8 inches in diameter bears North 71' 45' East, 36.0 feet and a tan oak tree 16 inches in Page-3 of 12 Pages I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update diameter bears North 41' East, 47.5 feet; thence along the line between said Sections 6 and 7, North 88' 40' West, 408.0 feet to the place of beginning. PARCEL TWO: Beginning at an iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.M.; and running thence along the 1/4 Section line through the center of Section 7, South 0' 35' West, 96.9 feet to a one inch iron pipe in the bottom of a ravine known as Collins Creek; and thence continuing South 0' 35' West, 563. 1 feet to a one inch pipe from a width of a one foot tan oak bears South 45' 00' East, 3.2 feet and a 6 inch tan oak bears North 30' 00' East, 11.3 feet; thence parallel with the line between Sections 6 and 7, North 89' 50' West, 730.3 feet to a one inch pipe in the bottom of said Collins Creek and continuing North 89' 50' West, 364.8 feet to an iron pipe in the center line of the Bear Creek Road, from which 5 nails in a redwood stump 7 feet in diameter bears North 46' 37' East, 18.36 feet and a maple tree 6 inches in diameter bears South 49' 54' East, 26.33 feet; thence along the center line of the Bears Creek Road, North 0' 37' East, 130.9 feet; thence North 31' 34' East, 98. 9 feet; thence North 2' 58' East, 126.6 feet; thence North 38* 42' East, 133.0 feet; thence North 54' 33' West, 141.0 feet; thence North 21' 57' East, 143.4 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West from which an old blaze on a redwood stump 4 feet in diameter bears North 5` West, 37 feet. and 10 inch maple tree bears South 25' 04 ' East, 30.8 feet; thence along the line between Sections 6 and 7, South 89* 50' East, 1021.1 feet to the place of beginning and being a part of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.W. PARCEL THREE: All that certain real property situate partly within the County of Santa Clara and partly within the County of Santa Cruz, State of California, described as follows: The North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West and the Northeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. EXCEPTING THEREFROM, however, that certain tract conveyed by Lucy Jane Russell and John, Russell, her husband to Mary A. Laddick by Deed dated December 10, 1886 and recorded in the Office of the Recorder of Santa Clara County on January 11, 1887 in Book 87 of Deeds, Page 821, and more particularly described as follows: Commencing at the intersection of the East line of Mellotts Road with the North line of the North 1/2 of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M.; and running thence Southeasterly and Southerly along the East line of said Melotts Road at a place called the "Grecian Band"; thence Northerly and Northeasterly along the West side of the County Road, about 44 rods to. the intersection thereof with the said North line of Section 7 aforesaid; and thence West along the said North line of said Section 7 about 42 rods to the place of beginning. Containing approximately 6 acres and being a part of said North 1/2 Page 4 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M. EXCEPTING THEREFROM also, so much thereof, as is described as Parcel Number Two hereinabove. PARCEL FOUR: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California described as follows: Commencing at a point which is the Northeast corner of the Southwest quarter of Section 7, Township 9, South Range I West and running thence Southerly and along the Easterly line of said quarter Section to a stake set in the center of the Summit Road; thence in a Northerly and westerly courses and following the meandering of the center line of said Summit Road to a stake marked "S C122"; thence Westerly in a straight line 145 feet to a stake set in the center of said Zayante Road; thence Westerly and along the center of Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9 South, Range I West (said North line being the dividing line between lands of John and Sarah V. Hetherington and the land of W. D. Von Lone) to the place of beginning. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL FIVE: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South, Range 1 West, Mount Diablo Base of Meridian. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL SIX: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: The Northwest 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West and the Southeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. Excepting from Parcels 1, 2, 3, 4, 5, and 6, above, any portion of said Parcels Page__5 of 12 Pages - --------- OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update lying within Santa Cruz County, California. PARCEL SEVEN: An Easement for the installation, construction, maintenance and repair of a water pipeline, being a strip of land 20 feet in width, situate in the County of Santa Clara, State of California, lying entirely within those certain parcels of land designated as Parcel Two and Parcel Eleven, conveyed by The California Province of the Society of Jesus, a corporation, to Hong Kong Metro Realty Inc., a corporation, by Deed dated September 12, 1989, recorded September 13, 1989 in Book L091 at Page 104, Official Records of Santa Clara County, being 10 feet on each side of the following described center line: Beginning at a point on the general Westerly boundary of the existing State Highway 17, known as Section C, Route 5, District IV, Santa Clara County; said point being opposite to Engineer's Centerline Station 163+00, as shown on that certain State of California Department of Public Works Division of Highways "Right-of-Way Record Map, R-52.15"; said point also being the Northerly terminus of the line described as "North 24' 25' East, 580.00 feet" in that certain Deed to the State of California, recorded November 22, 1937 in Book 8431 at Page 569, Official Records of Santa Clara County; thence along said Westerly boundary, South 24* 25' 00" West, a distance of 510.22 feet to the true point of . beginning; thence leaving said Westerly boundary along a now existing waterline, the following courses: North 67' 011 11" West, a distance of 5. 63 feet; thence South 81* 36' 30" West, a distance of 54. 97 feet; thence South 43' 291 39" West, a distance of 337.23 feet; thence South 33* 30' 37" West, a distance of 139.66 feet to a point designated as "Point A"; thence North 65* 26' 45" West, a distance of 231.38 feet; thence South 63* 231 26" West, a distance of 80.57 feet; thence North 71' 511 46" West, a distance of 269.78 feet; thence North 53* 431 2311 West, a distance of 123. 96 feet; thence North 66' 16' 40" West, a distance of 104.25 feet; thence North 48* 21' 18" West, a distance of 156.44 feet to a point of curvature; thence Westerly along a 150.00 foot radius tangent curve to the left through a central angle of 57' 271 47", a distance of 150.44 feet to a point of tangency; thence South 74* 101 55" West a distance of 63.54 feet to a point of curvature; thence Westerly along a 100 foot radius tangent curve to the right through a central angle of 48' 171 19", a distance of 84.28 feet to a point of tangency; thence North 57' 311 46" West, a distance of 117.58 feet; thence North 87' 31' 20" West, a distance of 173.81 feet; thence South 79* 561 02" West, a distance of 52.37 feet to a point designated as "Point B"; thence South 35' 56' 51" East, a distance of 59.05 feet; thence South 48' 331 24" East, a distance of 135.94 feet to a point of curvature; thence Southerly along a 65.00 foot radius tangent curve, through a central- angle of 81* 20 , 40", a distance of 92.28 feet to a point of tangency; thence South 32' 471 16" West, a distance of 228.03 feet; thence South 51* 351 12" West, a distance of 119.00 feet; thence South 04* 341 59" East, a distance of 115. 60 feet; thence South 19* 481 5411 West, a distance of 66.38. feet; thence South 54* 53' 13" West, a distance of 167.04 feet; thence North 83* 231 1011 West, a distance of 86.82 feet; thence South 47' 451 21" West, a distance of 23.30 feet; thence South 09* 361 07" West, a distance of 59.06 feet; thence South 43' 22' 11" West, a Page---6-of 12 Pages i I OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update distance of 364. 83 feet; thence South 26' 15' 11" West, a distance of 37.53 feet; thence South 00' 58' 33" West, a distance of 45.34 feet; thence South 32' 55' 13" West, a distance of 129.01 feet; thence South 64' 10' 01" West, a distance of 102.04 feet to a point of curvature; thence Southwesterly along a 400.00 foot radius tangent curve to the left, through a central angle of 27' 31' " " f 2 thence South 39' 38 1� distance o 19 .20 feet o point of tangency; t o t 1 50 a d t a po g y, West a distance of 81.44 feet; thence North 78' 41' 22" West, a distance of 24.21 feet; thence North 17' 11' 38" West, a distance of 241.08 feet; thence North 13' 25' 33" East, a distance of 129. 65 feet; thence North 85' 02' 23" West, a distance of 122.68 feet; thence South 85' 38 ' 23" West, a distance of 202.60 feet; thence South 00' 00' 24" East, a distance of 41.26 feet; thence South 16' 14' 40" West, a distance of 175.28 feet; thence South 36' 22' 14" West, a distance of 20.23 feet; thence South 84' 29' 12" West, a distance of 240.05 feet to a point of curvature; thence Westerly along a 500.00 foot radius tangent curve to the right, through a central angle of 22' 18' 12", a distance of 194.63 feet to a point of tangency; thence North 73' 12' 36" West, a distance of 172.10 feet; thence North 49' 27' 19" West, a distance of 140.24 feet; thence South 38' 54' 48" West, a distance of 61.71 feet; thence South 23' 23, 22" West, a distance of 105.56 feet; thence South 08' 59' 08" East, a distance of 107.30 feet; thence South 14' 49' 01" West, a distance of 46.08 feet; thence South 33' 11' 18" West, a distance of 247.99 feet; thence South 77' 55' 31" West, a distance of 66.93 feet; thence North 67' 34' 43" West, a distance of 50.52 feet; thence South 80' 21' 44" West, a distance of 37.39 feet, more or less, to a point on the boundary line common to the lands, now or formerly of the Presentation Center, Los Gatos, and Hong Kong Metro Realty; said point bears North 42' 30' West, a distance of 29.14 feet from the Southerly terminus of the line described as "North 42 1/2' West, 2. 90 chains" in the Description of said Parcel Eleven in said Deed recorded in Book L091 at Page 104, Official Records of Santa Clara County; said point also bears South 62' 46' 49" East, a distance of 367.38 feet from a redwood tree stump 6 feet in diameter and 10 feet high, as said stump is described in said Deed; said point also being the terminus of this strip Easement. i PARCEL EIGHT: An Easement for the installation, construction, maintenance and repair of a water pipeline and water tank, lying entirely within Parcel Two in the Deed recorded September 13, 1989 Recorder's Document No. 10251767. Beginning at the hereinabove described "Point A"; thence along the hereinabove centerline North 33' 30' 37" East, a distance of 8.55 feet; thence at right angles to said center line, North 56' 29' 23" West, a distance of 10.00 feet to an angle point in the Northerly line of the hereinabove described strip Easement; said angle point being the true point of beginning; thence along said Northerly line, North 33' 30' 37" East, a distance of 11.21 feet; thence leaving said Northerly line, North 20' 10' 40" West, a distance of 73.49 feet; thence North 47' 16' 04" West, a distance of 48. 63 feet; North 30'.. 34' 40" West, a distance of 98.81 feet; thence North 67' 26' 26" West, a distance of 175.70 feet; thence North 08' 08' 27" East, a distance of 38.28 feet to a point on a non-tangent curve to the left, the center of which bears North 00' 51' 40" West, Pa8 e 7 S of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update a distance of 46.87 feet; thence along said curve, through a central angle of 335' 19' 11", a distance of 274.31 feet; thence South 08* 08' 27" West, a distance of 54.96 feet; thence South 67' 26' 26" East, a distance of 184.54 feet; thence South 30' 34 ' 40" East, a distance of 95.08 feet; thence South 47' 16' 04" East, a distance of 46.74 feet; thence South 20' 10' .40" East, a distance of 64.45 feet to the Northerly line of the hereinabove described strip Easement; thence along said Northerly line, South 65' 26' 45" East, a distance of 14.08 feet to the true point of beginning. 544-31-005 - 80 007 544-31-006 - 80 007 544-50-003 - 80 007 544-50-005 - 75 000 544-50-006 - 75 000 CR/Cl/dot A544-31-001, -003, -005 and -006 upd/ja2/24/03 upd/ja3/3/03 i i i Paged-of 12 Pages f OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. 2. Taxes for the fiscal year 2002-03. Bill No. : 544-31-005, Code Area: 80007 First Installment: $54.04, has been paid Second Installment: $54.04, a lien, due and payable The above installments include a property tax exemption of NONE. 3. Taxes for the fiscal year 2002-03. Bill No. : 544-31-006, Code Area: 80007 First Installment: $4, 957.22, has been paid Second Installment: $4, 957.22, a lien, due and payable The above installments include a property tax exemption of NONE. 4. Taxes for the fiscal year 2002-03. Bill No. : 544-50-003, Code Area: 80007 First Installment: $163. 61, has been paid Second Installment: $163.61, a lien, due and payable The above installments include a property tax exemption of NONE. 5. Taxes for the fiscal year 2002-03. Bill No. : 544-50-005, Code Area: 75000 First Installment: $158. 93, has been paid Second Installment: $158. 93, a lien, due and payable The above installments include a property tax exemption of NONE, 6. Taxes for the fiscal year 2002-03. Bill No. : 544-50-006, Code Area: 75000 First Installment: $20.48, has been paid Second Installment: $20. 48, a lien, due and payable The above installments include a property tax exemption of NONE, 7, The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq., of the Revenue and Taxation Code of the State of California. 8. Any easement for water course over that portion of said land lying within the banks of Collins Creek and any changes in the boundary lines of said land that have occurred or may hereafter occur from natural causes. 9. Water rights, claims or title to water, whether or not shown by the Public Records. 10. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Summit Road, Bear Creek Road also known as Dougherty Road, Upper East Zayante Road and Mellott's Road (or any of said roads or highways) . Page 9 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 11. Easements or Rights of Access, if any, "over the present road leading through the said tract of land. . .to the land of J. C. Moody", as set forth in the Deed from Charles B. Rogers et ux, to Montezuma Mountain Ranch School, recorded January 24, 1912 in Book 383 of Deeds, Page 35, Santa Clara County Records. Affects Parcel One. 12. Agreement for Executed by : Montezuma Mountain Ranch School and Between : Harry L. Tevis On the terms, covenants and conditions contained therein, Dated : May 7th, 1926 Recorded : May 21st, 1926 in Book 240 of Official Records, Page 488 For appropriation of water from Collins Creek and discharges of sewage and waste water into Collins Creek. Supplemental Agreement recorded June 9, 1926 in Book 251, Page 89, Official Records. 13. Williamson Act - Land Conservation Contract as follows: City/County Santa Clara Landowner Sisters of the Presentation, Los Gatos Recorded February 23rd, 1976 in Book B879 of Official Records, Page 743 Contract/File No. Resolution Altering Boundaries of the Agricultural Preserve in the County of Santa Clara, recorded February 26, 1976 in Book B885, Page 605 and re-recorded March 22, 1976 in Book B927, Page 474, Official Records. 14. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following instrument: Granted to General Telephone Company of California For Poles, cables, crossarms, wires, anchors, guys, braces, underground i conduits, manholes and appurtenances for the transmission of electric energy for communication and other purposes Recorded July 2nd, 1986 in Book J752 of Official Records, Page 575 Affects A strip of land 12 feet in width, in the Southeast 1/4 of the Nrothwest 1/4 of Section 7, Township 9 South, Range 1 West, within the Southerly 54 feet of the land lying Northerly of Summit Road and Westerly of Bear Creek Road. 15. Any unrecorded and subsisting leases. Page lg—of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 16. The requirement that this company be provided with a suitable Owner's Affidavit from the Seller (form ORT 174) or a copy of the Real Estate Transfer Disclosure Statement "TDS" (California Civil Code Section 1102, et seq.) . The Company reserves the right to make additional exceptions and/or requirements upon review of the Owner's Affidavit and/or the "TDS". 17. "The insuring clauses of the policy notwithstanding, the company does not insure against loss relulting from any shortage in area, discreapancy in boundary lines or other matters which would be disclosed by survey made by licensed land surveyor". 18. The requirement that a certified copy of a resolution of the board of directors be furnished to this Company authorizing or ratifying the proposed conveyance, and that there be annexed to the conveyance a certificate of compliance and approval meeting the requisites of Section 9632 Corporations Code, and that its articles of incorporation and its by-laws be furnished to this Company for review prior to the recordation of such conveyance. i -------------------- Informational Notes -------------------- 1. The last recorded instrument(s) conveying record title to the premises is/are: A deed executed by Sisters of the Presentation, a California corporation to Presentation Center, Los Gatos, a California corporation, recorded August 4th, 1992 in Book M312 of Official Records, Page 2035. The last conveyance affecting said land recorded within the last two years, prior to the date of this Report are: NONE. 2. County recorder will charge an additional $ 10.00 "Monument User Fee" to record a Grant Deed using the legal description in this report. 3. The mailing address of the vestee as shown in the records is: 19480 Bear Creek Rd, Los Gatos, CA 95033. 4. The applicable rate(s) for the policy(s) being offered by this report or commitment appears to be section(s) 3. 1. 5. Short Term Rate ("STR") does not apply. Page 11 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/update 6. In addition to existing requirements pertaining to sellers who are non-residents of California, as a result of recent changes to Section 18662 of the Revenue and Taxation Code, in transactions closing after January 1, 2003 the buyer may then be responsible to withhold 3 1/3% of the sales price (as defined therein) from any seller, if this property is not the seller's principal residence. The statute, as modified, also provides for certain exemptions to the buyer's responsibility to withhold, which may apply. Page 12 of 12 -Pages O F F I C C O F C O U N T Y A S S E S S O R S A N I A O L A R A. C O U N T 7, C A LI F O R h 1 A (f - .............. a 544 50 SI IMOVENINSULA REG - O 31 N �• OFEN SPACE 015T. 30 Two 15-N2w TwP]S-RIV 1 It i r� w l (p i :.e w• t t •+ ``�. � N9L K bK �tr� aSUe,l1A;I t l � 0 1 r r � CO. OONY. ESTAY.ISNEO MY ORO.ND.N3-S.TS 11-b-71 O car —M-� E— s e�a 00 K i 1' 500' O o c LA PU C. STONE- ASSESSOR coil*,A b CMIWWW mere nlf co"k,rW 4.A-Cade.$ec 121 _ EM-1 Mdl faar 700{-�001 OFFICE O F C O V N 7 Y A S S E S S O R S A H i A C L A R A C O U N T Y, C A L I f O R N 1 A _ ' 54 tP 4 3]q O -• O ��� F•+ • _ `mad+�/�� � (,1 Tnrxl++ � •rwo nlw � I � +�`` s a • H a• ., KlM W 1 • wna) MMU. :'lr )1K a+K• � 7 VMS t A MI]K f , - Xa r.1 pt0[1 a --wU r i IG>t[' aaa• /+.. � r O T• � � N •wu 1 S ' s KLM1, • Ilaa Mp± •�« Rio/_P� (• + `stet•. `f/.f 4 m+ r NOVITIATE OF LOS GATOS l e $ e i.ts n) 1 Ira. Ore. r• eut• a It w t '� ` HOVITIA7E OF �- nA a LOS G ATOS + OMNFN'S Af0(/£ST , ��r lµ+c• * .Aeta att• u.a. eta i.n. ►� .Ka. tNefA) � 1 u , I - 1 39.24 AC GR � na -nara- b 4 emrk+�cer+e+aa.ti■c.ul a sle EVKUW f.l IWI•K1999-2000 -ARREVQ E. S-DW- ASSrSSOR f war * * OLD REPUBLIC TITLE COMPANY 20 E.ALISAL STREET ' SALINAS,CA ' 93901 ' (831)757-8051 ' Fax:(831)3734863 PRELIMINARY REPORT UPDATE I Issued for the sole use of: Our Order No. 226342-T MidPeninsula Regional Open Space District Reference 526476 330 Distel Circle Los Altos, California 94022 ' • When Replying Please Contact: Attention: Tom Old Republic Title Company 1900 The Alameda Buyer: MidPeninsula Regional Open San Jose, CA 95126 Space District Attn: NICOLE MONSEES i (408) 557-8400 Property Address: In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 of 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 Exclusions from the coverage of said Policy or Policies may be set forth 'in Exhibit A attached. Copies of the Policy forms should be read. They are available from 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 condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) 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 requested. Dated as of February 12th ,2003 , at 7:30 A.M. OLD REPUBLIC TITLE COMPANY I i For Exceptions Shown or Referred to, See Attached Page 1 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, LOS GATOS, a California Corporation Page 2 of_.Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The land referred to in this Report is situated in the County of Santa Cruz , in the unincorporated area, State of California,and is described as follows: PARCEL I: The North half of the Northwest quarter of Section 7, in Township 9 South Range 1 West, and the Northeast quarter of the Northeast quarter of Section 12, in Township 9 South, Range 2 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road, Summit Road and Skyline Boulevard. PARCEL II: Commencing at a point which is the Northeast corner of the Southwest Quarter of Section 7, Township 9 South, Range I West and running thence Southerly and along the Easterly line of said quarter section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly course and following the meandering of the center line of said Summit Road to a stake marked "S C 122"; thence Westerly in a straight line 145 feet to a stake set in the center of Zayante Road; thence Westerly and along the center of said Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a Madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a Madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9, South Range I West, (said North line being the dividing line between lands of John and Sarah V. Hetherington and the lands of W.D. Van Lone) to the place of beginning. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Summit Road. PARCEL III: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township' 9 South Range 1 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road and Summit Road. Assessor's Parcel Number: 091-051-02 and 091-051-03 Page 3 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. Code No. : 65-021 Assessor's Parcel No. : 091-051-02 and 091-051-03 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq., of the Revenue and Taxation Code of the State of California. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Upper East Zayante Road. 5. Any easement for water course over that portion of said land lying within the banks of Zayante Creek. 6. Recitals shown or noted upon a map as follows: Map Entitled Record of Survey , Lands of Parola. and Pirone Filed On October 26th, 1967 in Volume 48 of Maps, at Page 29 Which Says "NOTE: The centerline of Summit Road as travelled, shown and delineated on this map is in conflict with the centerline of record and declared a Public Highway in 1889" 7. NOTE: Office of the Secretary of State Corporate Filing 1500 - 11th, 3rd Floor Sacramento, CA 95814 (916) 657-5448 Reports that Presentation Center, Los Gatos, a California Corporation, was incorporated on February 9, 1959 and is presently in good standing. 8. The requirement that a certified copy of a resolution of the board of directors be furnished to this company authorizing or ratifying the proposed conveyance or encumbrance of said land. Page 4 of 5 Pages I OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I -------------------- Informational Notes -------------------- 1. NOTE: According to the public records, there have been no deeds conveying the property described in this report recorded within a period of two years prior to the date hereof except as follows: NONE 2. The applicable rate (s) for the policy(s) being offered by this report or commitment appears to be section(s) 2.1. Short Term Rate ("STR") does not apply. i 3. Taxes and assessments, general and special, for the fiscal year 2002 - 2003 as follows: Assessor's Parcel No. 091-051-02 Code No. 65-021 1st Installment $0.00 2nd Installment $0.00 Land $785.00 Imp. Value $0.00 P.P. Value $0.00 Exemption $755.00 4. Taxes and assessments, general and special, for the fiscal year 2002-2003 as follows: Assessor's Parcel No. 091-051-03 Code No. 65-021 Ist Installment $ 96. 91 Marked Paid 2nd Installment $ 96. 91 Marked Paid Land $ 9,700.00 Imp. Value $ 0.00 P.P. Value $ 0.00 Exemption $ 0.00 JT/js 9/20/01 end Examined By: Julie Timsak GA/UPT/2-24-03 I Page 5 of 5 Pages ► POR. SEC. 7. T 9 S., R'. / W.,AI SEC. /2, T9S.,-'R.21N, M.D. B.& M Tax Area Code i -; FOR TAX PURPOSES ONLY j ,Wr.�wl.,...�.��-...,-r... ....,.. Combliments of ' r'•'P.R.M.�.y r w,w 4._.w,.wW•M OLD REPUBLIC Title Company m 1 v -: E 1 2f 1 1 1 . ' .--tANTA e O •` :z: �. ?�s ; ti,F gyp• 3 3 N r d 1 I 1 1 o� UPPER EAST ZAYANTE RR' SOB.t+j� � •. '� ' )3 � +M h" Note=Ass*Vor's Poree/ koc/r B Ass-essor's Map No. 91-05 Lot mbers Shawn in sE,ireles. County of-Santo Cruz,Calif Ju/y /953 .y PERMISSION FOR ACCESS FOR INSPECTION OF PROPERTY For the purpose of conducting an inspection to determine the condition of the Property under negotiation (defined below), the Midpeninsula Regional Open Space District and the District's employees and/or consultants (hereafter collectively referred to as "District") may, upon giving reasonable advance written notice to Presentation Center, Los Gatos, a California corporation ("Presentation"), enter upon the Property owned by Presentation commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005 and 006, 544-50-003, 005 and 006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 003 (hereafter "the Property"); provided that District shall give at least 2 days prior written notice of each proposed entry by District. The access is granted as of the date last set forth below ("Effective Date„) and shall terminate 60 days from the Effective Date. This Permission for Access is for the purpose of inspecting, testing and evaluating the Property; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed. District shall indemnify, protect, defend and hold Seller 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 while upon the Property pursuant to this Permission for Access, provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from discovery of any hazardous substances or other preexisting adverse conditions on the Property. Prior to District's initial entry onto the Property, District shall provide Presentation with proof of liability insurance for District and its agents in commercially reasonable policy limits and a certificate of j insurance naming Presentation as an additional insured. Proof of Membership in a government self-insurance pool shall satisfy this requirement. 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 while on the Property performing its inspections. Read and Approved Mid ensinsula Regional Open Presentation Center, Los Gatos, P . Space District a California corporation i By• _ By: Its: - i � Its: r� Dated: '� Dated: