HomeMy Public PortalAboutResolution - 06-61- 20061213 - Stevens Canyon Ranch Purc RESOLUTION NO. 06- 61
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
Meeting thereof, b the following
District on December 13, 2006 at a Special and Regularg y g
vote:
AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, K. Nitz, C. Riffle, P. Siemens
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
ecretary e s i d e nk�"'
Board of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
District k
RESOLUTION NO. 06- 61
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING
ACCEPTANCE OF PURCHASE AGREEMENT, AUTHORIZING GENERAL
MANAGER OR OFFICER TO EXECUTE CERTIFICATE OF
ACCEPTANCE OF GRANT TO DISTRICT, AUTHORIZING OFFICER OR
GENERAL MANAGER TO EXECUTE IRROVOCABLE OFFER TO
DEDICATE TITLE IN FEE AND AUTHORIZING GENERAL MANAGER
TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR
APPROPRIATE TO CLOSING OF THE TRANSACTION (SARATOGA GAP
OPEN SPACE PRESERVE—LANDS OF PENINSULA OPEN SPACE
TRUST)
The Board of Directors of the Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of the Midpeninsula Regional Open Space District does hereby
accept the offer contained in that certain Purchase Agreement between Peninsula Open Space Trust, a
California non-profit, public benefit corporation and Midpeninsula Regional Open Space District, a
California public agency, a copy of which is attached hereto and by reference made a part hereof, and
authorizes the President or appropriate officers to execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors, or other appropriate officer, is authorized to
execute the Irrevocable Offer to Dedicate Title in Fee memorializing the terms and conditions of the
Grant Agreement with the California Coastal Conservancy, which is providing matching grant funds for
the District's purchase of the Stevens Canyon Ranch property.
Section Three. The General Manager of the District or the President of the Board of Directors or other
appropriate officer is authorized to execute a Certificate of Acceptance on behalf of the District.
Section Four. The General Manager of the District or the General Manager's designee shall cause to be
given appropriate notice of acceptance to the seller and to extend escrow if necessary. The General
Manager and General Counsel are further authorized to approve any technical revisions to the attached
Agreement and other transactional documents which do not involve any material change to any term of
the Agreement or other transactional documents, which are necessary or appropriate to the closing or
implementation of this transaction.
Section Five. The General Manager of the District is authorized to expend up to $30,000 to cover the cost
of title insurance, escrow fees, site clean up and other miscellaneous costs related to this transaction.
Section Six. It is intended, reasonably expected, and hereby authorized that the District's General Fund
will be reimbursed in the amount of$5,000,000 from the proceeds of the next long-term District note
issue. This Section of this Resolution is adopted by the Board of Directors of the 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 oil a long-term basis, or
otherwise set aside to pay the costs of this open space land acquisition project that 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.
�
PURCHASE AGREEMENT
This Agreement(hereinafter called °Agreexun0b made and entered into by and
between PENINSULA (}PEN SPACE TRUST, uCo|iforniu non-profit, public benefit corporation,
(hereinafter called "P{}ST"), and the M|DPEN1NSDL/\ REGIONAL OPEN SPACE DISTRICT, mpublic �
district formed pursuant VoArticle 3of Chapter] o[Division 5of the California Public Resources Code, �
(hereinafter called "Diskict").
| IJLAJLS
� VVBE!lE/\S, POST was organized uaanon-proOt, charitable corporation &osolicit, receive �
� and hold gifts, legacies, devises and conveyances of real and personal property for public park, �
� conservation and open space purposes, all in a mariner complementary to activities of District; and
WHEREAS, the property and assets of POST are irrevocably dedicated to said purposes �
� and no part of the property and assets of POST shall ever incur to the benefit of any individual; and �
�
� WHEREAS, POST is the owner of certain real property which has open space and �
recreational value located within an unincorporated area of the County of Santa Clara, and being more
particularly described within the body of this Agreement; and
VVR[NBA8, District was formed by voter initiative Vm solicit and receive conveyances uf
real property by purchase, exchange, gift, or bargain purchase for preservation, public park, recreation, �
�
scenic and open space purposes; and
WHEREAS, District desires to purchase said property for open space preservation and as �
part mf tile ecological, recreational, aesthetic, agricultural and natural rc*ouruemofthc midpeninsu|uarea;
and �
�
WHEREAS, POST Out o[desire to promote public welfare, and share the natural and �
scenic beauty and enJoyment of their property with the citizens of tile midpeninsula area, hereby agrees to
�
mu|| and convey the entirety ufsaid property to District, and District wishes k` 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 umfollows:
�
� l. Purchase and Sale. POST agrees W ocU to District and District agrees to purchase from
� POST, P0ST's real property located within an unincorporated area of the County of Santa Clara, State of
� California, containing approximately Two hundred thirty eight and 6ftucn hundredths (2]8.|5)acres, more
or less, and commonly referred to as Santa Clara County &saeyao/y Parcel Numbers 503-04-001, 503-05-
� U|h, 5O3-V5-03qund503-U6-O24. Said real property ia further described in the Legal Description attached
�
to Preliminary Reportnuonher54|70A|9honnNodhAnueriuunTi/|xCompanyd*edOutober24, 2O06. &
copy of said Preliminary Report is attached hereto as Exhibit "A", and incorporated herein by this
reference. Said property ia\obe conveyed together with any easements, rights of way, or rights o[use
which may be appurtenant or attributable tuthe 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" ur the "Property." �
�
� Purchase Agreement Puee2
� ~
2. Purchase Price. The total purchase price("Purchase Price") for the Property shall be Five
Million and Nn/|OO Dollars($5,U00,000.00), which shall be paid in cash a*the "C|oning" uo defined in
Section hereof.
� 3. Escrow. Promptly upon execution oy this Agreement, in accordance with Section 10
herein, an escrow shall be opened at North American Title Company, 497 N. Santa Cruz Avenue, Loy
Gatos, C/\ 95O]0 (408) 3g4-4(0O (Escrow number 54|709lg)or other title company acceptable toDistrict
and POST(hereinafter"Escrow Holder")through which the purchase and sale of the Property shall be
consummated. & fui|y 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 10 apply to said escrow: �
A. Thcdmc provided for in the escrow for the u|oyc thereof shall be on or before
� December , �24 2U06 The term "Omming" ms used herein shall bedcemcdiobe the d�ewhen Escrow
�
� Holder causes the Grant Deed and Grant Deed ofRi 'an <�unmcrvu1ion �amcn�cn8umd�6n�dbc|ovr (o
� '~. ' �
bc recorded in tile Office o[the County Recorder oy Santa Clara County. �
�
B. POST and District shall, during the escrow period, execute any and all documents
� and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale
pursuant tn the terms o[this Agreement.
�
�
� C. POST shall deposit, orcause tubc deposited, into the escrow onor before the �
Closing:
� (h &n executed and recordable Grant Deed mf Riparian Conservation
� Easement between POST, as Grantor, and Santa Clara Valley Water District, as Grantee, covering the
� riparian corridors o[the SuNeut Property mo described and shown in Exhibit'^@"
�
� (ii) &n executed and recordable Grant Deed, covering the Property uo
� described in said Exhibit"A".
� D. District shall deposit into the escrow, *mor before the Closing:
�
� ( ) The required Certificate of Acceptance for the Grant Deed, duly executed
by District and tobo dated aaof the Closing;
� (ii) District's check payable tn Escrow Holder in the amount of
� Four Million Nine Hundred Ninety nincThoumund and 74m/|U0 Dollars ($4,999,OU0.O0), which iathe
� balance of the Purchase Price of Five Million and No/l0U Dollars asspecified in Beution2. The balance
� of$|,00Uim paid into escrow in accordance with Section |0of this Agreement.
�
E. District shall pay the escrow fees, thcCLTA Standard Policy ofTitle Insurance, if
required hy District, and all recording costs and fees. All other costs or expenses not otherwise provided
� for in this Agreement shall be apportioned or allocated hctnp*n District and POST in the manner
�
customary in Santa Clara County. All current property taxes on the Property shall bc pro-rated through
escrow between District and POST as of tile Closing based upon the latest available tax information using
the customary escrow procedures.
Purchase Agreement Page
F. District shall cause North American Title Company, or other title company
acceptable to District and p(jS[, to be prepared and committed to deliver to District, aCLT/\ Standard
Policy of Title Insurance, dated ayof the Closing, insuring District in the amount of$6,hOO,OV0.O0 for the
Property showing title 0othe Property vested in fee simple in District, Subject only to: (i)current real
property taxes; (ii) exccp{ion numbers 6, 7, 8, 4` \O, 11, 12, 13, 15 and 16us listed in Preliminary Report
No. 54)7Og|4 dated October 24, 2OO6; (iii)the District shall take title subject tm the Riparian Conservation
Easement Deed and Agreement between POST and Santa Clara Valley Water District attached hereto as
Exhibit^"B"and (iv) such additional title exceptions am may be approved in writing by District prior/othe
Closing umdetermined 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 [;rau1 Deed of Riparian Conservation Easement between POST and Santa Clara Valley
Water District t* be recorded first, and the Grant Deed covering the Subject Property and attendant
Certificate of Acceptance to be recorded second in the Office of the County Recorder of Santa Clara
County. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy
of title insurance required herein, and /o POST Escrow Holder's check for the full purchase price of the
Subject Property(less POST's portion of the expenses described in Section 3.E.), and to District or POST, �
am the case may be, all other documents or instruments which are to be delivered to tbnnn. In the event the
excomv/terminates as provided herein, Escrow Holder shall return all municm, documents mr other things of �
value deposited inthe escrow\o tile party depositing the same. �
�
4 ln �buovuntdhiu
. �
Agreement is terminated and escrow is canceled for any reason,all parties shall be excused from any �
further obligations hereunder, except ua otherwise provided herein. Upon any such termination ofescrow, �
� all parties hereto shall be Join�|�undm�v�ru||� |iah|��o �sornwHu|d�rf�rpoynm�ntufi�a�it|cundcacvovv
� � |
ouncc||u1ionchux��m(sub\�c�io rights ofsubrogation against any party whose fault may have caused such �
� termination of escrow), and each pu �cxpr�mm|� reserves remedies which it �
� � �
� against any other party by reason ofawrongful termination or failure to close escrow. �
5. . For the purpose u[consummating the sale and �
purchase of the Property in accordance herewith, POST makes the following representations and
� warranties to District, which shall survive close o[escrow, each of which is material and is being relied
upon byDistrict.
A. Authoritv. POST has the full right, power and authority toenter into this
Agreement and to perform tile transactions contemplated hereunder.
B. Valid and Bindiniz Agreements. This Agreement and all other documents
delivered by POST to District now ore1 the Closing have been or will be duly authorized and executed and �
�
delivered by POST and are legal, valid and binding obligations of POST sufficient to convey to District the �
� Subject Property described therein, and are enforceable in accordance with their respective terms and do
� not violate any provisions of any agreement to which POST is a party or by which POST may be bound or
any articles, hy|avva or corporate resolutions ofPOST. �
6. . POST and District �
understand and agree that POST may be entitled to receive certain relocation benefits and the fair market �
� value o[the Property described io Exhibit "A'', uaprovided
� Assistance and Real Property Acquisition Act o[)970 (Public Law 91 O46), tile Uniform Relocation Act
� Amendments nf|487 (Public Law |U8-|7, Title |Vof the Surface Transportation and Uniform Relocation
� Assistance Act of)987 (|0| Statutes, 246'256)(420.S.C. '46O| o/se4.), and the California Relocation
Assistance Act, Government Code Section 72h0r/uog, POST hereby waives any and all existing and/or
Purchase Agreement Page
future claims or rights POST may have to any relocation assistance, benefits, procedures, or policies as
provided in said laws or regulations adopted there under and to any other compensation, except as �
provided in this Agreement. POST has been advised uu \n the extent and availability ofsuch benefits, �
� procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights and notice �
periods except um set forth in this Agreement, including the fair market value of said Property. �
�
� 7. This eob is made without representation or warranty by POST,
except mm expressly set forth in this Agreement. District represents, warrants, acknowledges and agrees
� that i/ has had hx|| and mnp|e opportunity prior tothe execution nf this Agreement\o investigate the �
�
� Property including, but not limited to, the physical condition thereof, the presence, absence or condition of
� improvements thereon; and that District shall purchase the Property . �
o. Hazardous Waste. �
� |
!
A. {���I����. The m�anmunysubmbmc�
� . , , , �
� material or other thing regulated by or pursuant ooany federal, state or local environmental law by reason �
of its potential for harm to human health urthe environment because of its flammability, toxicity,
�
�
reactivity, corrosiveness or carcinogenicity. The term "Hazardous Waste" also includes without limitation,
� polychlorinated bipheny|u` benzene, asbestos, petn/|eunn, petroleum by-products, gas, gas liquids and lead. �
� Tile term "Environmental Law" as used hc,ciu includes, without limitation, the Comprehensive �
� Environmental Response, Compensation and Liability Act of|g00 (42U.B.0 Section g6O| etxuqjand
� the Resource Conservation and Recovery Aot(42 U.S.C. Section 6001 otxa7.)
�
�
B. Representations and Warranties. For the purpose m[consummating the sale and
� purchase of the Property, POST makes the following representations and warranties to District, which shall
�
� survive close of escrow, each ofwhich is material and is being relied upon by District:
� (i) TnP()ST`mknowleducd�� ',—~ does not contain and has not
� ~
previously contained underground uu»rugc1ank4undnnUuzu,d*uxVVam� has
� .
� been or is being used, manufactured, handled, generated, stored, treated, discharged, present, buried or
� disposed of on, under or about the Property, or transported to or from the Property, nor has POST
� undertaken, permitted, authorized or suffered any of the foregoing;
� (ii) POST has not received any notice and P{}SThum no actual knowledge
� that any private person or governmental authority or administrative agency or any employee or agent
� thereof has determined, alleged or commenced or threatened to commence any litigation, or other
� proceedings, to determine that there is presence, rc|cuac, threat o[release, p|uccmncnton, under orabout �
� the Property, or the use, manufacture, handling, generation, storage, treatment, discharge, burial or
�
disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous �
� Waste, nor has POST received any communication from any such person or governmental agency or
authority concerning any such matters. �
� !
� C. Indemnity. POST shall indemnify, defend and hold harmless District from and
� against and all claims, liabilities, kzaacm and costs incurred mr suffered bvDistrict, including
without limitation, attorney, engineeringand other professional mr expert fees, 10 the extent arising frmn �
any breach of the warranties or representations contained herein. yU8T`m obligation vo indemnify, defend |
and hold hann|oyy pursuant k/this Section 8 shall not apply where, bused nn its own inspections, testing, !
� evaluations and knowledge of the Property, District knew or had reason to know of the existence w[any |
Hazardous Waste or underground storage tanks on, Linder, or about tile Property prior to the Closing.
�
�
�
` . . . ^ . . . . .
Purchase Agreement Page
9. Miscellaneous Provisions.
A. In addition to its duNs under the License and
Management Agreement concerning the Property entered into by District and POST on February 9, 2005, �
frorn the date POST delivers an executed copy of this Purchase Agreement to District and until the �
Closing, District and District's agents, lender, contractors, engineers, consultants, employees, �
subcontractors and other representatives("District Parties")may, upon the giving of reasonable advance
written notice to POST, enter upon the Property for the purpose of inspecting, testing and evaluating the
same; provided, however, that District may not perform any work on the Property without POST's prior
written consent, which shall not be unreasonably withheld or delayed and further provided that District
shall give POST at least 24 hours' prior notice of each proposed entry by District. District shall indemnify,
protect, defend and hold POST free and harmless from and against any and all claims, actions,causes of
action, suits, proceedings, costs, expenses (including, without limitation, reasonable attorneys' fees and
uoo1s), liabilities, damages, and liens caused by the activities of District Parties while upon tile Property |
prior to the Closing; provided, however, the foregoing indemnity shall not cover ur include any claims, |
damages or liens resulting from District's discovery ofany Hazardous VVostc or other pre-existing adverse �
� conditions pursuant to its inspections, testing orevaluation. District's inspections mhm|| be at District's sole
� expense. C>iatrictaha|| n:puirun� danuu��{o \hcPr�pc�ytho� mu� bccuumodbyDiatrictpuUi�awhil� on �
� �
� the Property performing its inspections. �
�
� B. Choice ofLaw. The internal laws ofthe State m[California, regardless ofany
choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties o[the parties.
� C. Amendment and Waiver. The parties hereto may bv mutual written uRrecment
� amend this Agreement in any respect. Any party hereto may: (i) waive any inaccuracies inrepresentations
and warranties made by the other party contained in this Agreement or in any documents delivered
pursuant hereto; (ii) waive compliance by the other party with any ofthe covenants contained inthis |
�
� Agreement or the performance of any obligations of the other party; or(iii) 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 take any actions and execute any documents necessary or
� appropriate to closing escrow and c*nup|cdng this conveyance. Any agreement on the part o[any party for
� any such amendment, extension o,waiver must beinwriting.
� .
� D. Rights Cumulative. Each and all of the various rights, powers and remedies ofthe
� parties shall be considered to be curnulative with and in addition to any other rights, powers and remedies
� which the parties may have at law or in equity in the event o[the breach mf any of the terms ofthiy
� Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the i
� exclusive election thereof nor the waiver of any other right, power or rernedy available to such party. �
� E. Notices. Whenever any party hereto desires oria required \* give any notice,
� demand, or request with respect to this Agreement(or any Exhibit hereto), each such communication shall
be in writina and shall be deemed to have been validly served, given or delivered at the time stated below
if deposited in the United S\u8ee nnai|, 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 tacainni|o transmission by telex,tc|ecopy, telegraph or cable or other similar electronic
� medium, addressed na indicated uafollows:
�
�
�
�
�
Purchase Agreement Page 6
POST: Peninsula Open Space Trust
3000 Sand Hill Road
Bldg. ##1, Suite 155
Menlo Park, CA 94025
Attn: Audrey Rust, President
TEL: (650) 854-7696
FAX: (650) 854-7703
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
TEL: (650)691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or cabled
notice shall promptly be sent by mail (in the manner provided above)to the addressee. Service of any such
communication made only by mail shall be deemed complete on the date of actual delivery as indicated by
the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the
date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in
writing served upon the other as aforesaid, designate a different mailing address or a different person to
which such notices or demands are thereafter to be addressed or delivered. Nothing contained in this
Agreement shall excuse either party from giving oral notice to the other when prompt notification is
appropriate, but any oral notice given shall not satisfy the requirement of written notice as provided in this
Section.
F. 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 legally binding upon both of 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.
G. Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be deemed as an original, and when executed, separately or together, shall constitute a single
original instrument, effective in the same manner as if the parties had executed one and the same
instrument.
i
H. Waiver. No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a
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.
1. Entire Agreement. This Agreement is intended by the parties to be the final
expression of their agreement; it embodies the entire agreement and understanding between the parties
hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it
supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings
relating to the same subject matter.
J. Time of Essence. Time is of the essence of each provision of this Agreement in
which time is an element.
Purchase Agreement Page 7
K. Survival of Covenants. All covenants of District or POST which are expressly
intended hereunder to be performed in whole or in part after the Closing, and all representations and
warranties by either party to the other, shall survive the Closing according to their terms and conditions
and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs,
successors and permitted assigns.
L. Assianment. Except as expressly permitted herein, neither party to this
Agreement shall assign its rights or obligations under this Agreement to any third party without the prior
written approval of the other party.
M. Further Documents and Acts and Compliance with Applicable Laws. 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 transaction described and
contemplated Linder this Agreement.
N. Binding on Successors and Assigns. This Agreement and all of its terms,
conditions and covenants are intended to be fully effective and binding, to the extent permitted by law, on
the successors and permitted assigns of the parties hereto.
O. Captions. Captions are provided herein for convenience only and they form no
part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement,
nor as evidence of the intention of the parties hereto.
P. Pronoun References. In this Agreement, if it be appropriate, the use of the
singular shall include the plural, and the plural shall include the singular, and the use of any gender shall
include all other genders as appropriate.
Q. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or
the performance or breach thereof, the parties agree first to participate in non-binding mediation in order to
resolve their dispute. If the parties are unable to resolve their dispute through mediation, or if there is any
remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy
or claim shall be settled by arbitration. The parties shall jointly select one arbitrator who shall be a retired
or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with
the rules set forth in California Code of Civil Procedure Sections 1280 et, seq. including the right to
discovery. 1-icarings shall be held in Santa Clara or San Mateo County, California. If the parties are
unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation
Services, Inc. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in
all cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE
SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS
THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF
THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
Purchase Agreement Page 8
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.
POST INITIAL i� DISTRICT INITIAL
R. Termination of License and Management Agreement. Promptly upon Closing, the
License and Management Agreement for the Property entered into between POST and the District on
February 9, 2005 ("the License") shall be terminated and shall be of no further force and effect, and both
parties agree that neither shall have any further obligations or rights under the License.
10. Acceptance. Provided that this Agreement is executed by POST and delivered to District
on or before November 30, 2006, District shall have until midnight December 13, 2006 to accept and
execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by
POST to sell and convey the Property to District for the consideration and under the terms and conditions
herein set forth. Said offer shall remain irrevocable during this period without the necessity of execution
and acceptance of this Purchase Agreement by District. As consideration for said irrevocable offer,
District has paid into escrow and Seller acknowledges receipt of the sum of One Thousand Dollars and
No/l 00($1,000.00), which shall be applied to the Purchase Price as set forth in Section 2 hereof.
Provided that this Agreement is accepted by District, this transaction shall close as soon as
possible in accordance with the terms and conditions set forth herein,
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[Signature Page follows on Page 91
Purchase Agreement Page 9
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their
duly authorized officers to be effective as of the date of final execution by District in accordance with the
terms hereof.
DISTRICT: POST:
MIDPENINSULA REGIONAL OPEN PENINSULA OPEN SPACE TRUST,
SPACE DISTRICT a California non-profit, public benefit
corporation
APPROVED AND ACCEPTED:
Ow 1�� C r'�'
Pr ident, Bo of Directors Audrey C. Rus6lresident
/ 2 //3Xa
Date Date
ATTEST:
District Clem
Date:
6
ACCEPTED FOR RECOMMENDATION
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
Susan M. ectman, General Counsel
RECO F APPROVAL:
L. Craig Britton,General Manager
Signature Page to Purchase Agreement for POST(Stevens Canyon Ranch]
EXHIBIT A
V
ORTH DIRECT ALL INQUIRIES TO:
MERICAN Escrow Officer: Susan K. Trovato
TITLE Telephone No.: (408) 399-4100
■COMPANY Our No.: 56007-54170919-SKT
Escrow No.: 56007-54170919-SKT
MID-Peninsula Open Space District
Attn: Mike Williams
330 Distel Circle
Los Altos CA 94022-1404
Property Address:
p Y
16891 Stevens Canyon Road
Saratoga, CA
Update No. 2
Preliminary Report
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Company, Inc.
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
HEREINAFTER SET FORTH, INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY
DEFECT, LIEN, OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT
EXCLUDED FROM COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AND
STIPULATIONS OF SAID POLICY FORMS.
THE PRINTED EXCEPTIONS AND EXCLUSION FROM THE COVERAGE OF SAID POLICY OR POLICIES ARE
SET FORTH ON THE ATTACHED COVER, 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 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 THERETO) IS ISSUED SOLELY FOR THE
PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS
ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A
POLICY OF TITLE INSURANCE,A BINDER OR COMMITMENT SHOULD BE REQUESTED.
Dated as of October 24, 2006 Pam Thompson -twlmtw
at 07:30 am Title Officer
497 N. Santa Cruz Avenue, Los Gatos, CA 95030
Phone: (408) 399-4100 Fax: (408)354-3212
The form of policy of title insurance contemplated by this report is:
1990-CLTA Owner's Standard Coverage
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:
Peninsula Open Space Trust, a California non-profit, public benefit Corporation
I
Page 2
Order No.: 56007-54170919-SKT
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Santa Clara,
Unincorporated Area, and is described as follows:
PARCEL ONE:
COMMENCING AT AN IRON BAR AT THE CORNER OF LOTS A OF THE PARADISE SUBDIVISION IN
THE CENTER OF STEVENS CREEK ROAD AND ON THE LINE BETWEEN SECTIONS 4 AND 5,
TOWNSHIP 8 SOUTH, RANGE 2 WEST, M.D.M., FROM WHICH A BLACK OAK 10 INCHES IN
DIAMETER BEARS NORTH 84 DEG. 0'WEST 22.77 FEET DISTANT; THENCE ALONG THE CENTER
OF STEVENS CREEK ROAD ON THE SOUTHERLY LINES OF LOTS A OF THE PARADISE
SUBDIVISION, SOUTH 43 DEG. 04' EAST 54.78 FEET TO AN IRON BAR; THENCE SOUTH 0 DEG. 30'
EAST 120.12 FEET TO AN IRON BAR; THENCE SOUTH 28 DEG. 19' EAST 59.40 FEET TO AN IRON
BAR ON THE LINE BETWEEN LOTS A AND B OF THE PARADISE SUBDIVISION; THENCE SOUTH
61 DEG.41'WEST 20 FEET TO A 3/4 INCH PIPE; THENCE NORTH 54 DEG. 14'WEST 61.80 FEET
TO A 4"X 4" POST ON THE SECTION LINE BETWEEN SECTION 4 AND 5, TOWNSHIP 8 SOUTH,
RANGE 2 WEST; THENCE NORTH 0 DEG. 16' EAST ON SECTION LINE BETWEEN SECTION 4 AND
j 5, 185.80 FEET TO THE POINT OF BEGINNING, BEING A PORTION OF THE NORTHWEST 1/4 OF
SECTION 4, TOWNSHIP 8 SOUTH, RANGE 2 WEST.
APN: 503-06-024
i
PARCEL TWO:
i
THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 5, TOWNSHIP 8 SOUTH, RANGE 2
WEST, M.D.B. & M., AND ALL OF LOTS 1 AND 2 OF SECTION 5, TOWNSHIP 8 SOUTH, RANGE 2
WEST, M.D.B. & M.
EXCEPTING THEREFROM ALL THAT PORTION LYING NORTHERLY OF THE SOUTHERLY LINE OF
THE BORDI SUBDIVISION"A MAP OF WHICH WAS FILED FOR RECORD IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON AUGUST 20, 1924 IN
BOOK S OF MAPS, PAGE 28.
APN: 503-05-039
PARCEL THREE:
ALL OF LOTS 25 AND 26,AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "MAP OF BORDI
SUBDIVISION", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF
THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON AUGUST 20, 1924 IN BOOK S OF
MAPS, AT PAGE 28.
EXCEPTING THEREFROM ALL THAT PORTION OF LOT 25 AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT AN IRON BAR IN THE CENTER LINE OF STEVENS CREEK ROAD AT THE
SOUTHERLY COMMON CORNER FOR LOTS 24 AND 25,AS SAID ROAD AND LOT
S ARE SHOWN
ON THE MAP ABOVE REFERRED TO; THENCE ALONG THE SAID CENTER LINE OF STEVENS
CREEK ROAD NORTH 44 DEG. 15'WEST 50.00 FEET TO AN IRON BAR AND NORTH 71 DEG. 32,
WEST 31.50 FEET TO AN IRON BAR; THENCE LEAVING SAID CENTER LINE AND RUNNING
NORTH 18 DEG. 28' EAST 90 FEET, MORE OR LESS, TO A 3/4 INCH IRON PIPE AT THE BASE OF A
60 INCH HICKORY OAK ON THE NORTHERLY LINE OF SAID LOT 25; THENCE EAST ALONG THE
SAID NORTHERLY LINE OF LOT 25, FOR A DISTANCE OF 127.23, MORE OR LESS,TO THE
NORTHERLY COMMON CORNER FOR SAID LOTS 24 AND 25; RUNNING THENCE SOUTH 34 DEG.
45'WEST ALONG THE DIVIDING LINE BETWEEN SAID LOTS 24 AND 25 FOR A DISTANCE OF
159.63 FEET TO THE POINT OF BEGINNING.
Page 3
Order No.: 56007-54170919-SKT
r r • I
APN: 503-05-016
PARCEL FOUR:
ALL OF LOTS 3 AND 4 AND THE SOUTH 1/2 OF THE NORTHWEST 1/4 OF SECTION 5, TOWNSHIP
8 SOUTH, RANGE 2 WEST, M.D.B. & M.
EXCEPTING THEREFROM ALL THAT CERTAIN TRACT OF LAND DESCRIBED IN THE DEED FROM
SELIGMAN WEILHEIMER TO JOHN WIDNEY, DATED JANUARY 5, 1893, RECORDED JANUARY 7,
1893 IN BOOK 156 OF DEEDS, PAGE 12, SANTA CLARA COUNTY RECORDS,AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A STAKE MARKED W. W. 7 STANDING IN THE 1/4 SECTION LINE RUNNING EAST
AND WEST THROUGH THE CENTER OF SECTION 5, TOWNSHIP 8 SOUTH, RANGE 2 WEST AND
BEING DISTANT EAST 19.59 CHAINS FROM THE 1/4 SECTION CORNER BETWEEN SECTIONS 5
AND 6. TOWNSHIP 8 SOUTH, RANGE 2 WEST AND FROM WHICH STAKE A MADRONE 4 INCHES
IN DIAMETER MARKED B. T. W. W. 1 BEARS SOUTH 780 WEST 31 LINKS AND A MADRONE 6
INCHES IN DIAMETER MARKED B.T.W.W. 1 BEARS NORTH 51 1/20 EAST 15 LINKS AND RUNNING
THENCE NORTH 435.60 FEET TO A STAKE MARKED W.W. 2 FROM WHICH AN IRON OAK 14
INCHES IN DIAMETER MARKED B.T.W.W. 2 BEARS NORTH 11 1/40 EAST 61 1/2 LINKS AND BLACK
OAK 4 INCHES IN DIAMETER MARKED B.T.W.W. 2 BEARS NORTH 63 1/40 EAST 60 LINKS;THENCE
EAST 1000 FEET TO A STAKE MARKED W.W. 3 FROM WHICH A BLACK OAK 6 INCHES IN
DIAMETER MARKED B.T.W.W. 3 BEARS NORTH 75 1/40 EAST 13 1/2 LINKS AND A BLACK OAK 5
INCHES IN DIAMETER MARKED B.T.W.W. 3 BEARS SOUTH 30 WEST 12 LINKS;THENCE SOUTH
435.60 FEET TO A STAKE MARKED W.W. 4 STANDING IN THE 1/4 SECTION LINE RUNNING EAST
AND WEST THROUGH THE CENTER OF SECTION 5 TOWNSHIP 8 SOUTH, RANGE 2 WEST AND
THENCE ALONG SAID 1/4 SECTION LINE, WEST 1000 FEET TO THE POINT OF BEGINNING, AND
BEING A PART OF THE SOUTH 1/2 OF THE NORTHWEST 1/4 OF SECTION 5, TOWNSHIP 8
SOUTH, RANGE 2 WEST. COURSES TRUE.VARIATION 16 1/20 EAST.
APN: 503-04-001
Page 4
Order No.: 56007-54170919-SKT
At the date hereof exceptions tm coverage inaddition to the printed exceptions and exclusions
contained in said policy form vvom|d be as follows:
1. General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments,for the fiscal year 2OOG '2O07. �
�
Total Amount: $54.54
First Installment: $27.27C}pan
Second Installment: $27.27[>pan �
. Lend: $306.00 �
Code Area: 60-002
Parcel Number: 503'00-024
Said matter affects: Parcel One
2. General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments,for the fiscal year 2OOG'2OO7.
Total Amount: $385.30 |
�
First Installment: $142.05Open
Second Installment: $142.85Opan
Land: $2.244.000.00
Improvements: $382.394.00
Code Area: 85-004
Parcel Number: 503-05-039
/ Said matter affects: Parcel Two
3. General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments,for the fiscal year 2OU8-2007.
Total Amount: $59.28
First Installment: $29.64Open
Second Installment: s29.64C}pmn
Land: $15,300.00
Code Area: 85-004
| Parcel Number: 503-05-016
�
Said matter affects: Parcel Three
4. General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments,for the fiscal year 2O0G-2O07.
Total Amount: $399.00
First Installment: $199.95C)pen
Second Installment: s199.95Open
Land: $4.080,000.00
Code Area: 85-004 |
Parcel Number: 503-04-001
Said matter affects: Parcel Four
5. The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions of Chapter 3.5
(commencing with Section 75)of the Revenue and Taxation Code of the State of California.
�
� Page 5 /
� Order No.: 58007-54170819-SNT
�
6. Rights of the public, county and/or city in that portion lying within the street asdnow exists:
Stevens Canyon Road, Redwood Gulch Road and any other public roadway traversing
said land
7. Any easement for water course over that portion of said land lying within the banks of Stevens
Creek and bo any other creek traversing said land.
8. An easement affecting the portion of said land and for the purpose stated hereln, and incidental
purposes.
In Favor of: The Standard Beotho Company ofCalifornia
No representation is made aobo the present ownership of said easement.
� Purpose: Electric, transmission line and ingress and egress �
�
Recorded: June27. 1006
Book: 3OBofDeeds
Page: 171
Affects: The exact location and extent of said easement ianot
disclosed ofrecord
Said matter affects: Parcel Four
A. An easement affecting the portion of said land and for the purpose stated herein, and incidental �
purposes.
In Favor of: Pacific Goa and Electric Company
Nm representation is made asho the present ownership of said easement.
Purpose: Transmission and distribution of electricity and right of
vvmy |
Recorded: August 22. iQ23 '
Book: 45 '
Page: 144
Affects: Portion eo described therein �
Said matter affects: Parcel Four
10. Terrna, Covenmnha, Conditions and Provisions contained in an instrument
Entitled: Agreements �
Executed By: 8att|sbe Bonji, First Party and Paul C. VVho|ey, Second
Party
Recorded: K8my1O. 1Q28 �
Book: 399
Page: 375
Reference io made ho said document for full particulars.
And Recorded: July 17. 1928
� Book: 414
� Page: 173
�
Page 6
Order No.: 66007-54170919-SK3'
Wherein first party agrees to install awater pipeline from the well located onhis property(not
disclosed)to the property of the second party (Lots 23 and 24 of Bordi Subdivision)and to
perpetually furnish water to said second party, as per terms of said agreement. Reference to the
Record im hereby made for further particulars.
11. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
� |n Favor of: Pacific Gas and Electric Company, acorporation �
No representation io made aobo the present ownership of said easement.
' Purpose: Electrical transmission purposes by single line Vfpoles
and wires across premises
� Recorded: K4ay12. 1S31
Book: 504
Page: 468
Affects: Portion ea described therein
Said matter affects: Parcel Four
| 12. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
|n Favor of: Pacific Gas and Electric Company, aCalifornia
corporation
No representation ia made ambo the present ownership of said easement.
Purpose: Two independent poles and incidents thereto �
Recorded: October 24. 1SW1 �
Book: 5339
Page: 114
Affects: Portion as described therein
Said matter affects: Parcel Four
13. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
|n Favor of: County of Santa Clara, State ofCalifornia
No representation ismade aobo the present ownership of said easement.
Purpose: Public street and road purposes
Recorded: November 2. 1972
Book: 0096
Page: 443
Affects: Portion os described therein
�
� page 7
Order No.: 5600754170819-SKT
14. A Lien for Unsecured Property Taxes filed by the Tax Collector of the County shown,for the
amount shown and other amounts due.
Amount: $3,022.60
County: Santa Clara
Certificate No.: 05-601009-3
Taxpayer: Peninsula Open Space Trust
Recorded: November 7, 2005
Instrument No.: 18663640
15. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
In Favor of: David M. Miljarak, an unmarried man and Rebecca A.
Miljarak, an unmarried woman, as joint tenants
No representation is made as to the present ownership of said easement.
Purpose: Roadway access
Recorded: November 4, 2004
Instrument No.: 18073297
Affects: Portion of Parcel Two as described therein
16. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
In Favor of: Patrick H. Van Munn, as Trustee of the 1999 Patrick H.
Van Munn Revocable Trust, dated July 20, 1999
No representation is made as to the present ownership of said easement.
Purpose: Roadway access
Recorded: November 1, 2004
Instrument No.: 18073298
Affects: Portion of Parcel Two as described therein
17. This Company will require the following to insure a loan by or a conveyance from, the entity
named below.
Corporation Name: Peninsula Open Space Trust
A. A copy of the Corporation By-Laws or Articles
B. An original or certified copy of the Resolution authorizing the subject transaction. The
Resolution should clearly cover the following points:
a. Authority to convey, purchase and execute Deed of Trust;
b. Designate who is to execute said documents;
C. Corporate seal affixed or authority to execute documents; i
d. Certification by Secretary or clerk as to correctness and majority vote; i
e. State if a quorum was present;
f. Cover all matters required in the By-Laws of the church or non-profit entity.
I
Page 8
Order No.: 56007-54170919-SKT
INFORMATIONAL NOTES:
A. There are no conveyances affecting said land recorded within twenty-four(24) months of the date
of this report.
B. This charge for a policy of title insurance, if issued through this title order,will be based on the
short term rate. �
� C. PunauardbnS�oUon124131of�nainouranuecodefundadepou�edineannownnuotbeheN�r
� . �
� the following time periods before they can bedisbursed:
�
� 1. Cash or wired funds--available for immediate dispersal after deposit in bank or
confirmation cf receipt inaccount. Bear|n mind that Cash will be accepted from
customers only under special circumstances as individually approved by management.
2. Cashier checks, certified checks, tellers checks--next day available funds.
3. All other checks must be held in accordance with regulation CC adopted by the Federal
Reserve Board of Governors before they must bmdisbursed.
4. Drafts must be collected before they may bmdisbursed.
North American Title Company will not be responsible for accruals of interest or other charges �
resulting from compliance with the disbursement restrictions imposed by state law.
For Your Information, Our Wire Instructions Are:
Wire To: Credit the Account of:
CommhoaBonh North American Title Company
333VV. Santa Clara Street Bank Account No.: 1803518108
San lose, CA 05113 Escrow No. 58007-54170019-GKT
Routing No.: 121137522 Bnynoh/Counh/ No.: 560-07
Attn: Susan K. Tnnvato
� AC0 FUNDS'Automatic Clearing House
North American Title Company will not accept funds in the form of ACH transfers.
D. North American Title Company, Inc's charges for recording the transaction documents include
charges for services performed by North American Title Company, Inc., in addition to an estimate
of payments bubo made to governmental agencies.
�
/
|
Page Q
Order No.: 56007-54170919-SKT
GOOD FUNDS LAW
CALIFORNIA ASSEMBLY BILL 512 ("AB512") IS EFFECTIVE ON JANUARY 1, 1990. UNDER AB512, NORTH
AMERICAN TITLE COMPANY, INC. ("NORTH AMERICAN TITLE COMPANY, INC.") MAY ONLY MAKE FUNDS
AVAILABLE FOR MONETARY DISPERSAL IN ACCORDANCE WITH THE FOLLOWING RULES:
* SAME DAY AVAILABILITY - DISBURSEMENT ON THE DATE OF DEPOSIT IS ALLOWED ONLY WHEN FUNDS
ARE DEPOSITED TO NORTH AMERICAN TITLE COMPANY ("NORTH AMERICAN TITLE COMPANY, INC.") IN
CASH OR BY ELECTRONIC TRANSFER (WIRE). BEAR IN MIND THAT CASH WILL BE ACCEPTED FROM
CUSTOMERS ONLY UNDER SPECIAL CIRCUMSTANCES AS INDIVIDUALLY APPROVED BY MANAGEMENT.
* NEXT DAY AVAILABILITY - IF FUNDS ARE DEPOSITED TO NORTH AMERICAN TITLE COMPANY, INC. BY
CASHIER'S CHECKS, CERTIFIED CHECKS, OR TELLER'S CHECKS, DISBURSEMENT MAY BE ON THE NEXT
BUSINESS DAY FOLLOWING DEPOSIT. A "TELLER'S CHECK" IS ONE DRAWN BY AN INSURED FINANCIAL
INSTITUTION AGAINST ANOTHER INSURED FINANCIAL INSTITUTION (E.G., A SAVINGS AND LOAN FUNDING
WITH A CHECK AGAINST A FDIC INSURED BANK).
* 2-5 DAY AVAILABILITY (REGULATION CC). IF THE DEPOSIT IS MADE BY CHECKS OTHER THAN THOSE
DESCRIBED IN PARAGRAPHS 1 AND 2 ABOVE, DISBURSEMENT MAY OCCUR ON THE DAY WHEN FUNDS
MUST BE MADE AVAILABLE TO DEPOSITORS UNDER FEDERAL RESERVE REGULATION CC. THIS REQUIRES
A"HOLD"ON SOME CHECKS OF 2-5 DAYS OR LONGER IN SOME INSTANCES. PERSONAL CHECKS, DRAFTS,
PRIVATE CORPORATION AND COMPANY CHECKS, AND FUNDING CHECKS FROM MORTGAGE COMPANIES
THAT ARE NOT TELLER'S CHECKS ARE AMONG THOSE CHECKS SUBJECT TO SUCH HOLDS. (FOR
FURTHER DETAILS,CONSULT CHAPTER 598,STATUTES OF 1989.)
NOTE: THE ABOVE GUIDELINES ARE IN CONFORMITY WITH THOSE ISSUED BY THE DEPARTMENT OF
INSURANCE FOR ALL CALIFORNIA TITLE INSURANCE AND CALIFORNIA TITLE COMPANIES.
PRELIMINARY CHANGE OF OWNERSHIP REPORT
NOTE: ON OR AFTER JULY 1, 1985, THE COUNTY RECORDER'S OFFICE WILL CHARGE, IN ADDITION TO THE
REGULAR CHARGES, AN EXTRA $20.00 RECORDING FEE, UNLESS A DOCUMENT EVIDENCING A CHANGE OF
OWNERSHIP IS ACCOMPANIED BY A PRELIMINARY CHANGE OF OWNERSHIP REPORT. IN LIEU OF SAID
REPORT, SIGNED BY THE TRANSFEREE, THE RECORDER WILL ACCEPT AN AFFIDAVIT THAT THE TRANSFEREE
IS NOT A RESIDENT OF CALIFORNIA. TITLE BILLINGS WILL BE ADJUSTED TO REFLECT SUCH ADDITIONAL FEES
WHEN APPLICABLE.
IRS FORM 1099
BEFORE THE TRANSACTION CONTEMPLATED BY THIS REPORT CAN BE CLOSED, THE SELLER/BORROWER
MUST FURNISH A TAXPAYER IDENTIFICATION NUMBER TO US SO THAT WE CAN FILE AN IRS FORM 1099,OR ITS
EQUIVALENT, WITH THE INTERNAL REVENUE SERVICE. THIS PROCEDURE IS REQUIRED BY SECTION 6045 OF
THE INTERNAL REVENUE SERVICE.
NOTICE OF A WITHHOLDING REQUIREMENT
State Withholding & Reporting for closings after January 1,2003: Under California Law (Rev&Tax Code 18662) a
buyer may be required to withhold and deliver to the Franchise Tax Board (FTB) an amount equal to 3.33%of the
sales price in the case of disposition of California real property interest("Real Property")by either: 1)a seller who
is an individual or when the disbursement instructions authorize the proceeds to be sent to a financial intermediary
of seller,or 2)a corporate seller that has no permanent place of business in California. Buyer may be subject to a
penalty (equal to the greater of 10% of the amount required to be withheld or $500) for failing to withhold and
transmit the funds to FTB in the time required by law. Buyer is not required to withhold any amount and will not be
subject to penalty for failure to withhold if: a)the sale price of the Real Property does not exceed $100,000; b)the
seller executes a written certificate under penalty of perjury certifying that the seller is a corporation with a
permanent place of business in California; or c)the seller,who is an individual,executes a written certificate under
penalty,of perjury certifying one of the following: (i) the Real Property was the seller's principal residence (as
defined in IRC 121); (ii)the Real property was last used as seller's principal residence without regard to time period;(iii)the
Real Property is or will be exchanged for property of like kind(as defined in IRC 1031)and that the seller intends to
acquire property similar or related in service or use so as to be eligible for nonrecognition of gain for California
income tax purposes under IRC 1031; (iv) the Real Property has been compulsorily or involuntarily converted (as
defined in IRC 1033)and the seller intends to acquire property similar or related in service or use as to be eligible
for nonrecognition of gain for California income tax purposes under IRC 1033; or (v) the Real Property sale will
result in loss of California income tax purposes. Seller is subject to penalties for knowingly filing a fraudulent
certificate for the purpose of avoiding the Withholding laws. FTB may grant reduced withholding and waivers from
withholding on a case-by-case basis for corporations or other entities.
For additional information regarding California withholding, contact the Franchise Tax Board at (toll free) 888-792-
4900),or by e-mail at urws@ftb.ca.gov or visit their website at www.ftb.ca.gov.
i
Page 10
Order No.: 56007-54170919-SKT
__ l
OFFICE Of COUNTY ASSESS00.-SANTA CLABA COUNTY CALIFORNIA
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EXHIBIT B
WHEN RECORDED MAIL TO:
Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, CA 95118-3614
Attn: Chief Executive Officer
Project: Stream and Watershed Land Preservation for Stream Maintenance Program
Grantor: Peninsula Open Space Trust
File No. 1029-172
GRANT DEED OF RIPARIAN CONSERVATION EASEMENT
WHEREAS, PENINSULA OPEN SPACE TRUST, a California non-profit, public
benefit Corporation, hereinafter called "Grantor", is the owner of certain real property (the
"Property") located within an unincorporated area of the County of Santa Clara, State of
California, a portion of which is commonly identified as Assessor Parcel Number 503-04-001
and a portion of which is commonly identified as Assessor Parcel Number 503-05-039; and
WHEREAS, SANTA CLARA VALLEY WATER DISTRICT is a public entity,
hereinafter called "Grantee", with a mission to provide a healthy, safe, and enhanced quality of
living in Santa Clara County through watershed stewardship and comprehensive management of
water resources in a practical, cost-effective, and environmentally sensitive manner; and
WHEREAS, Grantor and Grantee have entered into an agreement, File No. 1029-172
whereby Grantee contributed funding toward the purchase price of the Property in exchange for a
commitment by Grantor to specifically preserve and protect the natural watershed and riparian
habitat while allowing opportunities for ecologically sensitive public enjoyment of the Property;
and
WHEREAS, in furtherance thereof, Grantor desires to deed to Grantee, a"Riparian
Conservation Easement" to preserve and protect the natural creeks and riparian corridors of the
Property subject to the restrictions contained herein, over portions of the Property, as more
particularly described in"Exhibit A", and as generally depicted on the plat marked "Exhibit A-I"
(herein, the "Easement Property"), both attached hereto and incorporated herein by this reference;
and
WHEREAS, Grantor desires to reserve certain rights to continue using existing
improvements for residential, agricultural and low intensity recreational use and to construct a
limited number of new trails to allow ecologically sensitive public enjoyment of the property on
and within the Easement Property, at such time and in such locations as Grantor may, in its sole
discretion, determine to be appropriate;
NOW THEREFORE, in consideration of the recitals, covenants, terms, conditions, and
restrictions contained herein, and pursuant to the laws of the State of California, including
without limitation, the provisions of Section 815 through Section 816 of the California Civil
Code, Grantor hereby grants to Grantee a Riparian Conservation Easement over the Easement
Property, subject to the terms and conditions hereof.
1. Purpose. The purpose of this Riparian Conservation Easement is to preserve and protect the
creeks and riparian corridor, including the natural watershed and riparian habitat in
perpetuity, while allowing ecologically sensitive public enjoyment of the Easement Property,
and further, to prevent any use of the Easement Property that would be likely to significantly
impair or interfere with such conditions and values, and therefore the intention of the parties
hereto is to restrict the use of the Easement Property to activities involving open space, low
intensity recreation, natural watershed and riparian corridor habitat preservation and
environmental protection consistent with this Riparian Conservation Easement.
2. Easement Property. The Easement Property consists of Riparian Buffer Areas A, A-1, B, C
and D as such areas are more particularly described in Exhibit A, and as such are generally
shown on Exhibit A-1, both attached hereto and incorporated herein and being:
(a) Riparian Buffer Area A is generally defined as a 150-foot wide area adjacent to each
side of the centerline of the creek lying within Parcel A.
(b) Riparian Buffer Area A-1 is generally defined as a 350-foot wide area adjacent to
each side of Riparian Buffer Area A lying within Parcel A-1.
(c) Riparian Buffer Area B is generally defined as a 50-foot wide area adjacent to each
side of the centerline of the creek lying within Parcel B.
(d) Riparian Buffer Area C is generally defined as a 50-foot wide area adjacent to each
side of the centerline of the creek lying within Parcel C.
(e) Riparian Buffer Area D is generally defined as a 50-foot wide area adjacent to each
side of the centerline of the creek lying within Parcel D.
3. Rights of Grantee. To accomplish the purposes of this Riparian Conservation Easement,
Grantor conveys to Grantee the right:
(a) To preserve and protect the creeks and riparian corridor including the natural
watershed and riparian habitat of the Easement Property.
(b) To enter the Easement Property at reasonable times, in order to monitor Grantor's
compliance with the terms of this Riparian Conservation Easement and to enforce the
terms hereof, and provided that any such entry shall occur only after seven (7)
calendar days following prior written notice to Grantor or its successors in interest of
the Easement Property.
Page 2
(c) To enter the Easement Property at any time without notice upon reasonable cause, in
order to determine if a violation of the terms of this Easement has occurred, is
occurring, or is likely to occur in the immediate future, and to prevent any activity on,
or other use of the Easement Property, that is inconsistent with the purposes of this
Riparian Conservation Easement, and to require the reasonable restoration of such
areas or features of the Easement Property that have been damaged by such
inconsistent activity or use.
(d) To prevent, pursuant to the provisions of Section 9 hereof("Disputes and Remedies"),
any activities on or uses of the Easement Property which are prohibited or otherwise
inconsistent with the purposes of this Riparian Conservation Easement, and to require
the reasonable restoration of such areas or features of the Easement Property that have
been damaged by such inconsistent activity or use.
(e) To conduct technical studies, environmental enhancement and mitigation, scientific
studies and vegetation propagule (i.e., seeds or cuttings) collection within the
Easement Property. Grantee shall not impair or interfere with the Easement
Property's recreational, scenic, residential, utility or other values. Grantee, its
employees and agents, shall not interfere with the operations of Grantor or Grantor's
successors and assigns. Damage to the Easement Property resulting from Grantee's
use shall be repaired promptly at the Grantee's sole expense. Grantee and its agents
shall save and hold harmless Grantor from and against any liability for damage to
persons or property occasioned by Grantee's use of the Easement Property. Without
limitation, the provisions of this Section shall benefit and bind the successors and
assigns of Grantor and the Grantee. Grantee shall obtain a written permit from
Grantor prior to beginning any work on the Easement Property related to this right.
4. Prohibited Uses. Any activity on or use of the Easement Property that is inconsistent with the
purposes of this Riparian Conservation Easement is prohibited. Without limiting the
generality of the foregoing, the following activities and uses are expressly prohibited:
(a) Commercial or Industrial Use. Any commercial or industrial development, use of, or
activity on the Easement Property, is expressly prohibited except(i) to the extent
agricultural activities and production are permitted under Section 6(e) and (ii)
residential tenancies, both only to the extent that such use or activity is consistent
with historical usage and does not require development of new structures or
improvements.
(b) Structures and Improvements. No new structures or improvements will be permitted
in Riparian Buffer Areas A, A-1, B, C and D, except for those described in Sections
5(d) and (f), including (1) a limited number of trails and trail crossings aligned in such
a manner as to minimize impacts within riparian areas and constructed in compliance
with all federal, state and local ordinances and regulations, and (2) utilities that may
be required to serve new public access facilities or maintain agricultural activities and
production.
Page 3
t
(c) Excavation, Soil Erosion or Degradation. Any use or activity that causes, or is likely
to cause, soil degradation or erosion, or be a source or contributor to pollution of any
surface or subsurface waters is prohibited. Construction and maintenance of
improvements provided for in Section 5 will be conducted in accordance with
generally accepted Best Management Practices (BMP), and any Memorandum of
Understanding(s) or similar agreement(s) that may exist between such public agency
and any regulatory agency or agencies, and in accordance with all applicable federal,
state and local laws.
(d) Herbicides and Pesticides. Fertilizers, pesticides, herbicides, and fungicides and
similar agricultural products are prohibited except those used in conjunction with the
control of invasive species and only if application is performed in accordance with all
federal, state and locally applicable laws, including but not limited to, Grantee's BMP
and Stream Maintenance Program (SMP) guidelines and restrictions in effect as of the
date of conveyance of the Riparian Conservation Easement. These restrictions
include use only of herbicides and surfactants registered for aquatic application within
the banks of channels; use only between July 1"and October 15"'; avoidance of non-
target species; application in conformance with label and product recommendations
and restrictions and with all applicable State and County advisories; use of the lowest
recommended rate of application; avoidance of application if significant rainfall is
predicted in the preceding 72-hour period; and application made by or under the direct
supervisions of State—certified applicators under the direction of a licensed Pest
Control Advisor.
(e) Tree Cutting and Vegetation Removal. The cutting down or other removal of live
trees is prohibited except (i) when required for safety or fire protection, or(ii) are of
non-native or invasive vegetation, and (iii) the parameters of such actions are included
in a management plan for the Easement Property. Dead trees and woody debris may
not be removed from the Easement Property except when required for public safety or
fire protection. If removal of such trees or other vegetation is required by local or
state fire protection agencies, plans will be prepared in consultation with state and
local regulatory agencies and all work will be performed in accordance with all
applicable federal, state and local laws.
(f) Dumping. The dumping or other disposal of wastes, refuse, or debris on the
Easement Property is prohibited.
(g) Mineral Rights. The exploration for, or development and extraction of, minerals and
hydrocarbons by any mining method on the Easement Property is prohibited.
(h) Storage Yards. Storage yards of any kind, including the storage of vehicles,
equipment, and building materials or disassembly of vehicles and equipment on the
Easement Property is prohibited, except as described in Section 6(e).
(i) Scenic and Natural Character. Activities, such as clearing, stripping of native
Page 4
vegetation, grading, or storage of materials that degrade the scenic and natural
character of the Easement Property are prohibited, except as necessary to construct
limited number of trails and utilities described in Sections 5(d) and 5(f).
(j) Archeological Resources. The excavation, removal, destruction, or sale of any
archeological artifacts or remains found on the Easement Property, except as part of
an archeological investigation approved in writing by Grantor, is prohibited. All
excavation plans otherwise permitted hereunder shall be reviewed by an archeologist
prior to the start of, and during the excavation.
5. Grantor's Permitted Improvements. The Grantor may plan, develop, and maintain
improvements on or adjacent to the Easement Property for any purpose not prohibited by
Section 4 hereof only to the extent that such improvements are consistent with the purpose
and intent of this Riparian Conservation Easement, the improvements have been included in
a management plan, and the Grantee, United States Army Corp of Engineers (USACOE), the
California Department of Fish and Game (CDFG), the California Regional Water Quality
Board (RWQCB) and United States Environmental Protection Agency (EPA) have been
given the opportunity to review and comment on any such Plan(s), and Grantor has consulted
with all other regulatory agencies having jurisdiction and has complied with all applicable
State, Federal and local regulatory ordinances, including the timely obtaining of all required
approvals and permits. The removal, maintenance, repair, replacement and utilization of
improvements on the Easement Property is permitted so long as the repair or replacement of a
structure or improvement will not result in increased foot print or square footage and, to the
extent reasonably feasible, shall be located in the same location as the structure or
improvement being repaired or replaced. The following improvements, though not an
exhaustive recital of consistent improvements, are consistent with such purpose and intent
and are therefore not precluded by it:
(a) An existing single family residence, garage, small parking area, barn, swimming pool,
auxiliary structures and improvements, fencing, and utilities in Riparian Buffer Area
A-1.
(b) All existing un-paved roads and trails within the Easement Property, maintained to
minimize sedimentation or for erosion control purposes in their existing condition as
of the date hereof.
(c) An existing orchard, lying outside the Easement Property and adjacent to Riparian
Buffer Area A-1, that may be maintained in the future for the purpose of preserving
an important cultural and agricultural resource.
(d) An existing picnic area, deck bridge, water well, water tank with shed roof, spring
box and spring-fed water system in Riparian Buffer Area A and including all portions
of the water system serving the residence and adjacent orchard, and providing water
off the Property as more specifically set forth in that certain deed recorded in Book
377 at Page 375 of the Official Records of Santa Clara County.
Page 5
I'
(e) A limited number of new un-surfaced trails, and not more than five perennial stream
crossings in Riparian Buffer Areas A, A-1, B, C and D, that may be developed in the
future to allow ecologically sensitive public enjoyment of the Property. Such trails
are to be constructed in a manner that avoids unnecessary concentration of use,
significant alteration of the land, and significant impact on the natural resources.
(f) A public parking area, lying outside the Easement Property adjacent to Riparian
Buffer Areas A-1 or D, may be developed to enhance public access and enjoyment of
the Property. Such parking area is to be constructed in a manner that minimizes the
impact on the natural resource values of the Easement Property.
(g) Existing utilities within the Easement Property serving the existing residential and
agricultural activities, and installation of such new utilities as are required to serve
new public access facilities on the Property. Any such new utilities shall be installed
underground and shall be located within ten-foot wide corridors.
6. Grantor's Permitted Activities and Uses. The Grantor may use the Easement Property for
any purpose not prohibited by Section 4 hereof only to the extent that such use or activity is
consistent with the purpose and intent of this Riparian Conservation Easement, the activities
and uses have been included in a management plan, and the Grantee, USACOE, CDFG,
RWQCB and EPA have been given the opportunity to review and comment on any such plan,
and Grantor has consulted with all other regulatory agencies having jurisdiction and has
complied with all applicable State, Federal and local regulatory ordinances, including the
timely obtaining of all required approvals and permits. The following uses and practices,
though not an exhaustive recital of consistent uses, are deemed to be consistent with such
purpose and intent and are not precluded by it:
(a) To take reasonable measures necessary and appropriate for fire safety and erosion
control and to remove trees.
(b) To remove exotic (non-native), invasive vegetation and to restore the area with native
vegetation in accordance with a management plan.
(c) To maintain, at an un-surfaced, year-round standard, existing roads as identified on
Exhibit B for vehicle access for patrol and maintenance of the Easement Property.
(d) To maintain the well and spring fed water systems, as identified on Exhibit B
including but not limited to maintenance, repair and replacement of the water lines,
wells, pumps and tanks, to the extent necessary for the proper operation of the
existing Water System.
(e) To continue agricultural practices consistent with historical usage within and around
the farm buildings in Riparian Buffer Area A-1 of the Easement Property, such as the
storage of farm equipment, supplies and materials, and production of agricultural
crops.
Page 6
(f) Use of the Picnic area may be continued under a permit system until such time as a
management plan for public access improvements is completed in accordance with
Section 5 and establishes a different protocol. Until such a plan is implemented,
Grantor agrees to install and maintain adequate barriers and/or signs to limit access to
the banks of the creek adjacent to the Picnic area.
(g) Residential use of the residence located in Riparian Buffer Area A-1 of the Easement
Property.
7. Successors. The covenants, terms, conditions, and restrictions of this Riparian Conservation
Easement shall be binding upon, and inure to the benefit of the parties hereto and their
respective heirs, grantees, successors, and assigns, and shall continue as a servitude running
with the Easement Property. Grantor may convey the Property, or any part thereof or interest
therein, to a public agency of its choosing subject to this Riparian Conservation Easement
and, further, Grantor hereby agrees that any such conveyance will require that such public
agency, if it develops a management plan for the Easement Property, that Grantee shall have
been given the opportunity to review and comment on any such plan and that any such
conveyance shall also require the successor public agency to consult with the USACOE,
CDFG, RWQCB and EPA, and all other regulatory agencies having jurisdiction and to
comply with all applicable State, Federal and local regulatory ordinances, including the
timely obtaining of all required approvals and permits. Any such successor may plan, design,
develop and maintain low intensity, public access facilities described in Section 5 and
developed in such a manner as to minimize the impact on the property's natural resource
values. Improvements will be developed in accordance with generally accepted BMP, and
any Memorandum of Understanding(s) or similar agreement(s) that may exist between such
public agency and any regulatory agency or agencies, and in accordance with all applicable
federal, state and local laws. Upon completion of a management plan, Grantor or its
successor shall post a sign acknowledging Grantee's contribution towards the purchase and
protection of the Easement property.
8. Reserved Rights. Grantor reserves the right to build and maintain low intensity, public
access facilities as described in Sections 5 and 6. The plans for any proposed public access
facilities to be developed pursuant to this paragraph must first be submitted to Grantee,
USACOE, CDFG, RWQCB and EPA for review and comment. Within thirty (30) days of
submission of such a proposal, Grantee may provide written comments thereon. Grantor may
thereafter proceed with such development unchanged, may modify the proposal, or may
withdraw the proposal, all in its sole discretion. Grantor shall make reasonable attempts to
address any issues that Grantee has provided comments.on in a collaborative approach to
further the purposes of this Riparian Conservation Easement. To the extent that Grantor, or
any successor in interest to it, engages in a public process for providing greater public access
or additional facilities development, Grantee shall be provided with reasonable opportunities
to participate in such a process.
9. Disputes and Remedies. If Grantee determines that Grantor, Grantor's successors, or any
occupant of the Easement Property, is conducting or allowing a use, activity, or condition on
the Easement Property which is prohibited by the terms of this Riparian Conservation
Page 7
Easement, or that such a violation hereof is threatened, Grantee shall give written notice to
Grantor, or successor, of such violation, or threat thereof, and request corrective action
sufficient to cure or prevent such violation, and where such violation involves injury to the
Easement Property, restoration of the portion of the Property injured thereby.
(a) Consultations Regarding Interpretation and Enforcement of Easement. Following the
giving of any written notice as required above, the parties shall first consult with each
other in a good faith attempt to resolve the issue without resorting to legal action.
(b) Injunctive Relief. If Grantor fails to cure a noticed violation, or to prevent a noticed
violation from occurring, within thirty (30) days after receipt of such notice thereof
from Grantee, or under circumstances where the violation cannot reasonably be cured
within a thirty (30) day period, or fails to begin curing such violation within such
thirty (30) day period, or thereafter fails to diligently continue to cure such violation
until finally cured, Grantee may bring an action, at law or in equity in a court of
competent jurisdiction, which seeks to enforce the terms of this Riparian
Conservation Easement, and to enjoin such violation, or threat thereof, by temporary
and permanent injunction, and further, to seek restoration of the Easement Property to
the condition that existed prior to such injury.
(c) Damages. Grantee shall be entitled to recover damages for violation of the terms of
this Easement or injury to this Easement or the interests protected by this Easement,
as provided by Government Code Section 815.7.
(d) Forbearance. Enforcement of this Riparian Conservation Easement shall be at the
discretion of the Grantee, and any forbearance by Grantee in the exercise of its rights
hereunder shall not be construed as a waiver by Grantee of such right, or of any
subsequent breach of Grantee's rights under this Easement. No delay or omission by
Grantee in the exercise of any right or remedy hereunder shall impair such right or
remedy or be construed as a waiver.
(e) Acts Beyond the Grantor's Control. Nothing contained in this Riparian Conservation
Easement shall be construed to entitle Grantee to bring any action against Grantor for
any injury to or change in the Easement Property resulting from causes not involving
any affirmative acts by Grantor, or from causes beyond Grantor's control, including
without limitation, trespassers, fire, flood, storm, earth movement, or from any
prudent action taken by Grantor under emergency conditions to prevent, abate, or
mitigate significant injury to the Property resulting from such causes.
(f) Attorneys' Fees. If either party hereto incurs any expense, including reasonable
attorneys' fees, in connection with any action or proceeding instituted by reason of a
violation, breach, 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 all reasonable costs, expenses and attorneys' fees in an amount determined by a
court of competent jurisdiction.
Page 8
10. Costs and Responsibilities. Grantor shall have the sole responsibility for the ownership,
liability, operation, upkeep, and maintenance of the Easement Property.
11. Access. This Riparian Conservation Easement conveys no rights of public access to any
portion of the Easement Property. Nothing in this Easement shall be construed to preclude
Grantor's right to grant access to and across the Easement Property to the general public or
third parties, provided however, that such access shall only be in a manner consistent with
this Riparian Conservation Easement.
12. Notices. Any notice, demand, request, consent, approval, or communication that either party
is required to give to the other, shall be in writing, and either served personally, served by
facsimile with the original promptly sent by first class mail, or served by deposit with the
United States Postal Service (LISPS) in first class mail, postage prepaid, and addressed as
follows:
To Grantor: Peninsula Open Space Trust
3000 Sand Hill Road, Suite 4-135
Palo Alto, CA 95025
Attn: President
(650) 854-7696 (telephone)
(650) 854-7703 (facsimile)
To Grantee: Santa Clara Valley Water District
5750 Almaden Expressway
San Jose, CA 95118-3614
Attn: Chief Executive Officer
(408) 265-2600 (telephone)
(408) 266-0271 (facsimile)
or to such other person or address as a party may, from time to time, designate by written
notice to the other. If service solely by first class mail is elected, service shall be deemed
to occur on the third business day following proper deposit with the LISPS as set forth
above; if facsimile service is elected, it shall be deemed to have occurred upon
transmission by facsimile; if by personal service, upon delivery to the recipient or their
authorized agent.
13. Recordation. This instrument shall be recorded by Grantee in the Official Records of the
County of Santa Clara, State of California. Grantee may re-record this Easement whenever
re-recording is required to preserve Grantee's rights in this Easement.
14. General Provisions.
(a) Controlling Law. The laws of the State of California shall govern the
interpretation of this Riparian Conservation Easement.
(b) Liberal Construction. If any provision in this instrument is found to be
Page 9
ambiguous, an interpretation consistent with the purpose of this Riparian
Conservation Easement that would render the provision valid shall be favored
over any interpretation that would render it invalid. This instrument shall be
construed in accordance with its fair meaning, and it shall not be construed against
either party on the basis that such party prepared this instrument.
(c) Severability. If any provision of this Riparian Conservation Easement, or the
application thereof to any person or circumstance, is found to be invalid, the
remainder of the provisions hereof, or the application of such provision to persons
or circumstances other than those as to which it was found to be invalid, as the
case may be, shall not be affected thereby, so long as the purposes of this Riparian
Conservation Easement can still be carried out.
(d) No Third-Party Rights. This instrument is made and entered into for the sole
benefit and protection of Grantor and Grantee and their respective heirs, grantees,
successors, and assigns. No person or entity other than the parties hereto and their
respective heirs, grantees, successors, and assigns shall have any right of action
under this Riparian Conservation Easement or any right to enforce the terms and
provisions hereof.
(e) No Forfeiture. Nothing contained herein is intended to result in a forfeiture or
reversion of Grantor's fee title in any respect. Grantors specifically reserves the
p p Y
right to convey fee title to the Easement Property, always subject however to the
provisions hereof.
Captions. The captions in this instrument have been inserted solely(fl L p Y for
convenience of reference and are not a part of this instrument and shall have no
effect upon construction or interpretation.
(g) Counterparts. The parties may execute this instrument in two or more
counterparts with each counterpart deemed an original instrument. In the event
however of any disparity between the counterparts produced, the recorded
document shall be controlling.
(h) Consent Not to be Unreasonably Withheld. In the event Grantor, as required by
the terms hereof, seeks consent of Grantee, Grantee agrees to not unreasonably
withhold consent, regardless of whether the Section invoked hereunder so
provides.
0) Subordination. If Grantor encumbers the Easement Property, or any portion
thereof, prior to conveyance of this Easement to Grantee, Grantor shall deliver an
executed consent by which the lien or mortgagor holder agrees to subordinate its
rights in the Easement Property, or any portions thereof, so as to prevent any
modification or extinguishment of the Riparian Conservation Easement by the
exercise of any rights by such mortgage or lien holder. Grantor shall also obtain
any consent, release, or re-conveyance of a deed of trust or other document
Page 10
f
required by the mortgage or lien holder so that the Riparian Conservation
Easement is conveyed to Grantee free and clear of any such liens, mortgages or
other encumbrances.
IN WITNESS WHEREOF, Grantor and Grantee execute this Riparian Conservation Easement:
For GRANTOR, Peninsula Open Space Trust:
By: Date:
Audrey C. Rust, President
For GRANTEE, Santa Clara Malley Water District:
By: Date:
Stanley M. Williams, Chief Executive Officer
Approved as to form and procedure by:
Debra L. Cauble
District Counsel
Attest as to the authority:
District Clerk
Page 11
State of California
County of
4n before me, , personally appeared
Audrey Rust, personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on the instrument, the
person or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Page 12