HomeMy Public PortalAboutResolution - 11-05- 20110309 - Powell POST Easement Cover Sheet For Scanning By ECS
Originating Department General Manager
Laserfiche Template Board Of Directors
Template Fields
Document Date: 3/9/2011
Document Type: Resolution
Preserve Name:
Keywords(No More Than
4): Powell POST Easement
Project Name:
Project Number:
Vendor Or Other Party:
Name (First):
Name(Last):
Address:
APN Number:
Document No. 11-05
Additional Field:
Additional Field:
Additional Field:
Additional Field:
RESOLUTION NO. 11-05
RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA
REGIONAL OPEN SPACE DISTRICT AUTHORIZING APPROVAL OF THE
FUNDING AGREEMENT WITH THE COUNTY OF SANTA CLARA AND
EXECUTION OF THE CONSERVATION EASEMENT, AND AUTHORIZING THE
GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS
NECESSARY OR APPROPRIATE TO THE CLOSING OF THE TRANSACTION
(MONTE BELLO OPEN SPACE PRESERVE —LANDS OF POWELL AND
PENINSULA OPEN SPACE TRUST)
The Board of Directors of 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 Funding and Acquisition Agreement
("Agreement")between the County of Santa Clara("County") and the Midpeninsula Regional
Open Space District, a copy of which is attached hereto and by reference made a part hereof, and
authorizes the General Manager or President of the Board of Directors or other appropriate
officer 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 Conservation Easement conveying certain real property rights held by the District
to the County of Santa Clara as provided in said Agreement. A copy of the Conservation
Easement is attached hereto and by reference made a part hereof.
Section Three. The General Manager or the General Manager's designee shall cause to be given
appropriate notice of acceptance to the County. The General Manager is further authorized to
execute any and all other documents in escrow necessary or appropriate to the closing of the
transaction.
Section Four. The General Manager and General Counsel are further authorized to approve any
technical revisions to the attached Agreement, Conservation Easement, and other documents in
escrow which do not involve any material change to any term of the Agreement or Conservation
Easement, which are necessary or appropriate to the closing or implementation of this
transaction.
i
RESOLUTION NO. 11-05
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on March 9, 2011 at a Regular Meeting thereof, by the following vote:
AYES: RIFFLE,HARRIS,KISHIMOTO,HANKO,CYR,SIEMENS AND
HASSETT
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
ATTEST: APPROVED:
Secretary PresZent
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 Clerk
I
FUNDING AND ACQUISITION AGREEMENT
Upper and Lower Stevens Creek Parks-Stevens Creek Trail/Powell Property
This is an Agreement ("Agreement") between the County of Santa Clara ("COUNTY"), a
political subdivision of the State of California, and the Midpeninsula Regional Open Space
District ("DISTRICT"), a special district, for the COUNTY's acquisition of a conservation
easement in connection with the DISTRICT's acquisition of real property near COUNTY's
Upper and Lower Stevens Creek County Parks and DISTRICT's Monte Bello Open Space
Preserve.
RECITALS
A. DISTRICT purchased certain real property from Harmon Powell for parks and open
space purposes, which property is described and shown in Exhibit Al to Attachment A of
this Agreement ("Powell Property"). DISTRICT purchased the Powell Property for
$1,000,000.
B. DISTRICT also desires to purchase certain real property from the Peninsula Open
Space Trust ("POST") for parks and open space purposes following POST's purchase of the
property from the Harmon Powell Charitable Remainder Unitrust, which property is
described and shown in Exhibit A2 to Attachment A of this Agreement ("POST Property").
DISTRICT will purchase the POST Property for $1,500,000 on or about March 31, 2011,
The real property described in Exhibits Al and A2 are collectively referred to in this
Agreement as the "Open Space Property".
C. COUNTY wishes to facilitate DISTRICT's acquisition of the POST Property and ensure
that the entire Open Space Property will be available to enhance COUNTY park resources,
and secure the COUNTY benefits described within Section 1 hereunder.
D. In recognition of the consideration provided for in this Agreement, DISTRICT will
convey an interest in the Open Space Property to COUNTY as further described in this
Agreement.
1. PURPOSE of this AGREEMENT
COUNTY will facilitate DISTRICT's acquisition of the POST Property in order to
enhance COUNTY's park, recreation, scenic and open space lands near DISTRICT's Monte
Bello Open Space Preserve in the vicinity of COUNTY's Upper and Lower Stevens Creek
Parks, and to secure over the entire Open Space Property the conservation easement
described in Section 2 hereunder to facilitate future development of a continuous trail
linking Monte Bello Open Space Preserve, Upper Stevens Creek Park, and Lower Stevens
Creek Park once all necessary land entitlements are obtained. DISTRICT will perform all
environmental review, if any is required, under the California Environmental Quality Act, for
DISTRICT's acquisition of the POST Property and conveyance of the conservation easement
to COUNTY.
2. ACQUISITION TERMS and ESCROW INSTRUCTIONS
A. ACQUISITION TERMS. COUNTY will pay an amount not to exceed $1,250,000
(One million, two hundred fifty thousand dollars) to DISTRICT ("Purchase Funds"), and, in
Page 1 of 12
=?LICATE oraGn,AIL
MAR 0 1 MIN,
consideration of such, DISTRICT will acquire fee simple title in the POST Property, subject
only to reasonably acceptable encumbrances on title ("DISTRICT's Acquisition"). The
amount of COUNTY's Purchase Funds will be 50% of DISTRICT's purchase price for both the
Powell Property and the POST Property, not to exceed $1,250,000. DISTRICT will convey
to COUNTY, and COUNTY will accept, a conservation easement over the Open Space
Property in the form set out in Attachment A ("Easement"), which is incorporated herein by
reference. COUNTY will pay the Purchase Funds as provided in Subsection 2.B hereunder,
Escrow Instructions.
B. ESCROW INSTRUCTIONS. This subsection constitutes the joint escrow
instructions of COUNTY and DISTRICT, and three duplicate originals of the Agreement will
be delivered to the escrow agent upon DISTRICT's opening of escrow for DISTRICT'S
Acquisition. COUNTY and DISTRICT will provide additional escrow instructions as is
necessary and consistent with this Agreement. Upon DISTRICT's deposit of a fully executed
Easement into escrow for recording, COUNTY will have thirty (30) days to deposit the
Purchase Funds into escrow, along with a fully executed Certificate of Acceptance. Upon
COUNTY's deposit of the Purchase Funds into escrow, and DISTRICT's acquisition of the
POST Property as set forth in Subsection 2.A hereinabove, the escrow agent is hereby
authorized to record the Easement over the Open Space Property and COUNTY's Certificate
of Acceptance in the Santa Clara County land records (County Recorder) immediately
following recordation of the respective grant deeds conveying the Open Space Property to
DISTRICT, and to disburse the Purchase Funds in accordance with DISTRICT's separate
escrow instructions for the transaction. The escrow agent will provide conformed copies of
the recorded Easement to COUNTY as indicated on the Easement document.
C. TERMINATION. In the event DISTRICT's Acquisition is not completed within
one year of the effective date of this Agreement, this Agreement will automatically
terminate unless, 60 days prior to the expiration of this Agreement, DISTRICT provides
COUNTY with a written request for extension of the Agreement for up to six months.
COUNTY, in its sole and absolute discretion, may provide written consent to the requested
extension of the Agreement.
4. COUNTWE DELEGATION OF AUTHORITY.
The Board of Supervisors of Santa Clara County delegates to the Director of Parks and
Recreation ("Director"), or the Director's designee, the power and authority to (i) grant and
withhold consents pursuant to this Agreement, (ii) sign on behalf of COUNTY all documents
contemplated by this Agreement, and (iii) to make decisions, give approvals, as necessary
and provided for herein, subject to approval as to form and legality by the County Counsel.
The Delegation of Authority shall expire two years from the effective date of this
Agreement.
S. MISCELLANEOUS.
A. ATTACHMENTS. The following attachment is incorporated into the terms of
this Agreement by reference:
Attachment A: Easement over entire Open Space Property (containing Exhibits
Al and A2: Powell and POST Property Descriptions and Plats).
B. TIME. Time is of the essence for this Agreement.
Page 2 of 12
C. ENTIRE AGREEMENT. This Agreement is the entire agreement between the
parties respecting the matters set forth within, and supersedes all prior negotiations or
agreements between the parties, if any.
D. EFFECTIVE DATE OF AGREEMENT. This Agreement takes effect on the latest
date shown below:
COUNTY OF SANTA CLARA MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
By: By:
Dave Cortese, President Larry Ha sett, President
Board of Supervisors Board of Directors
Date: MAR 0 1 2011 Date: March 9. 2011
Attest* Attest:
B Won, By: �P - �- �;c�c-Q•'
Y
Maria Marinos, Clerk Michelle Radcliffe,
Board of Supervisors District Clerk
Approved as t form and legality: Approved as to form and legality:
By; By:
Katherine Harasz, Susan M. Schectman,
Deputy County Counsel General Counsel
Page 3of12
ATTACHMENT A: Easement
Page 4 of 12
NOTE TO CLERK OF THE BOARD:
i
This memo is a placeholder in two of three existing original Funding Agreements
scheduled for the County of Santa Clara Board of Supervisors meeting on March 1,2011.
The Attachment A to the"Funding and Acquisition Agreement"is a Grant of Easement,
which is a recordable Real Property conveyance document. For this reason, only one
original document will be published in one of the three identical original funding
agreements. The other two agreements contain a copy of this note.
i
I
i
i
I�
Recording requested by and
when recorded return original
document to:
Clerk of the Board of Supervisors
70 West Hedding Street, loth Floor
San Jose, CA 95110
Return one conformed
copy to:
County of Santa Clara
Parks and Recreation Department
298 Garden Hill Drive
Los Gatos, CA 95032
Attn: Real Estate
No Documentary Transfer Tax due:
Revenue &Taxation Code §11922
Exempt From Recording Fees:
Government Code §§6103, 27353
Park: Upper and Lower
Stevens Creek
GRANT OF EASEMENT Project: (MROSD) Powell
Property
APN: 351-26-002
351-26-003
351-26-004
RECITALS
A. The Midpeninsula Regional Open Space District ("DISTRICT" or "GRANTOR") and the
County of Santa Clara ("COUNTY") entered into an agreement ("Agreement") dated
2011, in which COUNTY agreed to facilitate DISTRICT's purchase of certain
real property located at 17281 and 17287 Stevens Canyon Road near DISTRICT's
Monte Bello Open Space Preserve, in the vicinity of COUNTY's Upper and Lower
Stevens Creek Parks as described and shown in Exhibits Al and A2 ("Open Space
Property"). DISTRICT and COUNTY intend to cooperate on the future planning,
development, and construction of a continuous trail linking Monte Bello Open Space
Preserve, Upper Stevens Creek Park, and Lower Stevens Creek Park (Stevens Canyon
Trail) when all necessary land entitlements have been acquired to accommodate this
trail.
B. DISTRICT and COUNTY wish to assure that the Open Space Property will be
maintained as part of the public park, open space, recreational, ecological and
aesthetic resources of Santa Clara County.
Page 5 of 12
C. COUNTY requires that County Park acquisition funds be spent in accordance with the
provisions of the Park Charter, for a public park purpose.
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, DISTRICT
grants to COUNTY a conservation easement ("Easement") on the Open Space Property for
the purposes stated below:
1. PURPOSE
The purpose of this Easement is to restrict the use of the Open Space Property to
public park and open space purposes, in compliance with COUNTY's Charter. The public
park and open space purposes are defined to be retention of the property in its natural,
scenic, open space and wooded condition (Open Space Values), conservation of natural
habitat and wildlife (Conservation Values), and passive public recreational use (Recreation
Values). GRANTOR must prevent any use of the Open Space Property that will significantly
impair or interfere with its Open Space Values, its Conservation Values, or its Recreation
Values. The Recreation Values include, by way of example, hiking, nature study,
enjoyment of views, wildlife oriented education or research. Retention for Open Space and
Conservation Values includes compatible agricultural or natural resource management
activities, including by way of example, grazing and prescribed burning. Collectively, the
public park and open space purposes will be referred to as "Purposes."
2. RESTRICTIONS ON USE BY DISTRICT
DISTRICT covenants and agrees for itself and its successors and assigns that
DISTRICT will strictly adhere to the following, except where contrary rights are specifically
retained as described in Section 3 below:
a. Natural Resources. No native plant, tree or wildlife species on the Open Space
Property shall be disturbed now or in the future, except to abate disease, eliminate
an imminent hazard to the health, safety, or welfare of the general public, or as
approved by DISTRICT as part of a plan to implement the Purposes of this
Easement as defined in Section 1 above, without the prior written consent of
COUNTY or its successor or assignee.
b. COUNTY Review. DISTRICT will give COUNTY the opportunity to review and
comment on any DISTRICT plan for improvements to the Open Space Property
including, but not limited to, those improvements and restoration plans described
in Section 3 below. At a minimum, DISTRICT shall submit to COUNTY a site plan
showing the location of proposed improvements or restoration before DISTRICT's
final approval or the distribution of any documents for comment as may be
required by the California Environmental Quality Act (CEQA), whichever is sooner.
Within sixty (60) days from DISTRICT's submission of plans to COUNTY, COUNTY
shall provide written comments to DISTRICT. DISTRICT shall make the final
decision as to any plans or improvements for the Open Space Property consistent
with the restrictions and obligations of this Easement.
c. Master Plan. If DISTRICT prepares a Master Plan for any area that includes all or a
portion of the Open Space Property, DISTRICT shall consult with COUNTY during
the development of the Master Plan. If a committee or task force is formed to
assist with preparation of the Master Plan, DISTRICT shall offer to include a
Page 6 of 12
COUNTY representative in such a committee or task force.
3. DISTRICT's PERMITTED USE AND RIGHTS
a. DISTRICT Use. DISTRICT will use the Open Space Property for the Purposes of
this Easement, and manage the Open Space Property in accordance with
DISTRICT'S policies that are consistent with and implement these Purposes.
b. Planning, Development & Operation. DISTRICT may plan, design and construct
improvements to facilitate the public's use of the Open Space Property consistent
with the Purposes of this Easement, including but not limited to, multi-use trails,
public parking areas, public restrooms, wildlife observation and environmental
educational facilities, picnic areas, backpack camps, employee residences,
maintenance facilities, and related utility infrastructure.
c. Natural Resource Activities. DISTRICT may conduct natural resource restoration
and resource management activities, including, but not limited to, removal of non-
native or diseased vegetation, afforestation, or reforestation with native plants.
d. Restoration. DISTRICT may restore cultural, historical and agricultural or natural
resource management activities including but not limited to grazing and prescribed
burning, deemed consistent with protecting the Purposes of this Easement.
e. Enforcement. DISTRICT may enforce any law, statute, ordinance, regulation, code
or rule of any lawful governmental authority, including but not limited to
DISTRICT's Regulations for Use of DISTRICT Lands, as are now in effect and as
such may hereinafter be amended from time to time.
f. DISTRICT Planning & CEOA. DISTRICT shall plan, use, and manage the Open
Space Property in accordance with the California Environmental Quality Act,
including environmental review and processes for incorporating public input, public
workshops, and public hearings.
g. DISTRICT OBLIGATION. For consideration paid to secure this Easement,
DISTRICT and COUNTY will enter into a Trail Construction and Maintenance
Agreement to build and maintain the Stevens Canyon Trails within five years after
the COUNTY and DISTRICT have secured the necessary land entitlements for trail
construction. It is agreed that the DISTRICT will maintain such trail segments
located on DISTRICT land, including the land subject to this easement, and the
COUNTY will maintain such trail segments located on COUNTY land.
4. CONDEMNATION
If another public or quasi-public entity seeks to acquire the Open Space Property for
another public use, Section 1240.680 of the Code of Civil Procedure and Section 5542.5 of
the Public Resources Code shall apply and be asserted by both COUN
TY and DISTRICT.
S. ENFORCEMENT
DISTRICT grants to COUNTY the right, but not the obligation, to enter upon the Open
Space Property to monitor and enforce the Purposes, or any term, condition, restriction, or
Page 7 of 12
covenant of this Easement, or to prevent or prohibit the violation of any term, condition,
restriction, or covenant of this Easement.
6. COSTS AND RESPONSIBILITIES
DISTRICT retains all responsibility and cost for the ownership, operation, upkeep, and
maintenance of the Open Space Property. DISTRICT shall keep the Open Space Property
free of any liens or encumbrances arising out of any work performed for, materials
furnished to, or obligations incurred by DISTRICT. DISTRICT, its successors, and assigns
shall be responsible for, indemnify, and save harmless COUNTY, its officers, agents, and
employees from all liabilities, claims, demands, damages, or costs (collectively "Costs")
arising from the injury or death of any person or physical damage to any property, any act,
omission or condition occurring on the Open Space Property, except for costs directly
attributable to the active or gross negligence of COUNTY its officers, agents or employees.
DISTRICT's duty to indemnify and save harmless includes the duty to defend as set forth in
Civil Code Section 2778.
7. GENERAL PROVISIONS
a. Rights Cumulative. Each and all of the parties' various rights, powers and
remedies provided in this Agreement shall be considered 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 Easement.
The exercise or partial exercise of any right, power, or remedy shall neither
constitute the exclusive election thereof nor the waiver of any other right, power,
or remedy available to such party.
b. Notice. Whenever either party wishes or is required to give any notice, demand,
or request concerning this Agreement, each such communication shall be in writing
and deemed to have been validly served, given, or delivered:
• if deposited in the United States mail, with proper postage prepaid; or
• if delivered by private messenger, courier or other delivery service; or
• if addressed or delivered as follows:
COUNTY: DISTRICT:
Parks and Recreation Department Midpeninsula Regional Open Space District
298 Garden Hill Drive 330 Distel Circle
Los Gatos CA 95032 Los Altos CA 94022
Attn: Director Attn: General Manager
TEL: (408) 355-2200 TEL: (650) 691-1200
FAX: (408) 355-2290 FAX: (650) 691-0485
Service of any communication made only by mail shall be deemed complete on the
fifth (5th) calendar day after the date of mailing. Either party may designate a
different mailing address or a different person to whom such notices or demands are
thereafter to be addressed or delivered by notice in writing served upon the other as
stated above. 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.
Page 8 of 12
c. Severability. If any provision of this Easement or the its application to any person
or circumstance is found invalid, the remaining provisions of this Easement or their
application to persons or circumstances (other than those for which it is found
invalid) shall not be affected so long as the Purposes of this Easement can still be
carried out.
d. Costs of Enforcement. The prevailing party any proceeding between the parties to
enforce or to interpret the terms of this Easement shall be entitled to recover their
costs and reasonable fees of attorneys, accountants, consultants, and expert
witnesses, including costs and fees incurred because of any appeals. The
prevailing party also shall be entitled to recover all costs and fees that may be
incurred in enforcing any judgment or award. This provision shall not be merged
into any judgment, but shall survive any judgment.
e. Captions. The captions in this Easement have been inserted solely for convenience
of reference and are not a part of this Easement and shall have no effect upon
construction and interpretation.
S. ENFORCEABLE COVENANT AND RESTRICTION
This Easement and every term, condition, restriction and covenant in it is intended for
the benefit of COUNTY, its successors or assigns and constitutes an enforceable restriction.
DISTRICT and COUNTY expressly intended that this covenant is to run in perpetuity with
the land as an equitable servitude and shall bind every successive owner of the Open Space
Property or of any interest in it, and shall be enforceable by COUNTY, its successors and
assigns.
9. BENEFIT
This Easement is made for the sole benefit and protection of DISTRICT and COUNTY.
Nothing in this Easement shall be deemed to require the approval or consent of any third
party, owner, or occupant of any other parcel of real property located in or out of the
Page 9 of 12
DISTRICT's boundaries other than COUNTY or to create any right in any third party for
enforcement of the terms of this Easement.
This Easement has been executed on the date shown below.
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
By:
Larry Hassett, President
Board of Directors
Date:
ACKNOWLEDGMENT
State of California
County of Santa Clara
On before me,
(insert name and title of the officer) personally appeared
..............
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Page 10 of 12
EXHIBIT Al: Property Description
[Insert Legal Description and Plat prior to escrow.] Include acreage, and APNs.
Page 11of12
EXHIBIT"A"
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of Santa Clara, State of California, described as follows:
PARCEL ONE:
PARCEL A, AS SHOWN ON THAT CERTAIN MAP ENTITLED -PARCEL MAP," FILED FOR RECORD IN THE OFFICE OF
THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON JULY 20, 1970, IN BOOK 270 OF
MAPS PAGE 40.
II
PARCEL TWO:
AN EASEMENT FOR INGRESS AND EGRESS AND THE INSTALLATION AND MAINTENANCE OF PUBLIC UTILITIES
AND FOR THE INSTALLATION AND MAINTENANCE OF A WATER PIPE LINE OVER ALL THAT PORTION THEREOF,
AS LIES WITHIN A STRIP OF LAND 60.00 FEET IN WIDTH, THE CENTERLINE OF WHICH IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF STEVENS CANYON
ROAD, AS SHOWN ON THE RECORDS OF SURVEY MAP,ABOVE REFERRED TO;THENCE ALONG THE CENTERLINE
OF SAID STEVENS CANYON ROAD, N. 59 DEGREES 58'20"W. 134.44 FEET AND N. 83 DEGREES 39,Go"W. 50.56
FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF
BEGINNING AND LEAVING THE CENTERLINE OF SAID STEVENS CANYON ROAD, N. 53 DEGREES 35'30-W.
240.87 FEET TO A POINT,THENCE N. 33 DEGREES 48'50"W. 362.04 FEET TO A POINT;THENCE N. 77 DEGREES
32'50"W. 122.63 FEET TO A POINT; THENCE N. 44 DEGREES 40'30"W. 194.27 FEET TO A POINT; THENCE N.24
DEGREES 14'20"W. 317.80 FEET TO A POINT; THENCE S. 64 DEGREES 36'40" E. 266.04 FEET TO A POINT;
THENCE S. 84 DEGREES 33'40'E. 488.09 FEET TO A POINT;THENCE N. 33 DEGREES 15'20"W. 255.64 FEET TO
A POINT;THENCE N. 46 DEGREES 00'30"W. 202.42 FEET TO A POINT; THENCE N. 32 DEGREES 06'50"W.
255.66 FEET-TO A POINT;THENCE N. 19 DEGREES 90'00"W. 225.54 FEET TO A POINT;THENCE N. 36 DEGREES
58'30" W. 273.89 FEET TO A POINT; THENCE N. 63 DEGREES 51'50"W. 255.00 FEET TO A POINT;THENCE N.
38 DEGREES 55'00"W. 155.40 FEET TO A POINT,THENCE N. 24 DEGREES 52 00"W. 433.44 FEET TO A POINT
ON THE NORTHWESTERLY LINE OF SAID PARCEL B AND THE TERMINUS OF THE LINE DESCRIBED HEREIN.
PARCEL THREE:
AN EASEMENT FOR INGRESS AND EGRESS AND THE INSTALLATION AND MAINTENANCE OF UNDERGROUND
WATER STORAGE TANKS, IN, OVER, UNDER, UPON AND ACROSS A STRIP OF LAND, 20.00 FEET IN WIDTH,THE
SOUTHEASTERLY LINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF THE ABOVE DESCRIBED PARCEL OF LAND;THENCE ALONG
THE BOUNDARY LINE OF THE ABOVE DESCRIBED PARCEL OF LAND, S. DEGREES 4440"W. 300.00 FEET AND
THE TERMINUS OF THE LINE DESCRIBED THEREIN.
APN: 351-26-002-00
Powell '
pper
Trait Vens
roe
s of vend Croe'
poer
1 I
'SEe ens Creek p '
Co inty,Parkc �
♦ i '►-
t� , r ♦ , _ san66m
ram..•` ,,.�t ,+ j' ` , ii l � ,rn F`
i sr Table Mountain P -� ♦ n . `*�`
i Fay - y't Rr*Road
eleaf
�onal'�f�i �.. •�,
Powell Properties: Prospective
1iblr,Mountain \� APN 351-26-002 35.63 Acres
Trail APN 351-26-004 32.67 Acres
APN 351-26-003 23.14 Acres
i
I t f c
---- Unpaved Trail — — Master Plan Routes �, Stevens
'
--- Unpaved Road 200 ft Contours �! ; i � I `•�!• i .•, County Park 'k
Service Road 40 ft Contours
---- Historic Roadbed Parcels
----- Public Road Powell Properties ' I '" --.4----- —
i � +
1 - Water Body J Midpeninsula Regional Open Space District �� S CREEK
Stream Operated by SCCPRDyEN n i +
1 ! o +
1 itle: Comments:
SANTA CLARA ARC Powell Funding Partnership
COUNTY PARKS
Date: Created By: Scale:
This map generated by the County of Santa Clara Department of Parks February 1, 2 011 J F a I kows k i 0 0.125 0.25 0 5
and Recreation. The GIs files were compiled from various sources. Miles deemed reliable,the Department assumes no liability.
EXHIBIT A2: PROPERTY DESCRIPTION
[Insert Legal Description and Plat prior to escrow.] Include acreage, and APNs.
Page 12 of 12
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of SANTA CLARA, State of CALIFORNIA,
described as follows:
PARCEL ONE:
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP ENTITLED,
"RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX, IN N.E. 1/4 SEC. 31, T. 7
S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA ON MAY 16, 1969, IN BOOK 253 OF MAPS,AT PAGE 34, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF
STEVENS CANYON ROAD, AS SHOWN ON THE MAP ABOVE REFERRED TO; THENCE ALONG THE
EASTERLY LINE OF SAID PARCEL B, N. 00 5727" E. 765.22 FEET TO AN ANGLE POINT ON THE
GENERAL NORTHEASTERLY BOUNDARY LINE OF SAID PARCEL B; THENCE ALONG A
NORTHEASTERLY LINE OF SAID PARCEL B, N. 790 02' 30" W. 239.69 FEET TO A 3/4 INCH IRON
PIPE; THENCE LEAVING SAID NORTHEASTERLY BOUNDARY LINE, N.840 33'40"W. 488.09 FEET
TO A POINT; THENCE N.640 36' 40"W. 266.04 FEET TO A POINT; THENCE NORTHWESTERLY IN
A DIRECT LINE TO A POINT ON THE WESTERLY LINE OF SAID PARCEL B, DISTANT THEREON,
N.00 38' 50"E. 609.03 FEET FROM THE INTERSECTION THEREOF, WITH THE CENTERLINE OF
SAID STEVENS CANYON ROAD; THENCE ALONG SAID WESTERLY LINE OF SAID PARCEL B, S. 01
38' 50"W. 609.03 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL B, ON THE
CENTERLINE OF SAID STEVENS CANYON ROAD; THENCE ALONG THE CENTERLINE OF SAID
STEVENS CANYON ROAD,THE FOLLOWING COURSES AND DISTANCES: S. 63* 41' 50"E. 82.12
FEET, S. 410 43' 40" E. 117.99 FEET, S. 26- 56' 50" E. 116.69 FEET, S. 120 24, 30-E. 105.16
FEET, S. 440 47- 50" E. 58.31 FEET, S. 820 24- 20"E., 140.08 FEET, S.44- 11' 50"E. 158.63 FEET,
S. 610 15' 10"E. 104.91 FEET S.800 24' 10"E. 189.14 FEET, S.620 42'40"E. 47.56 FEET, S. 410
04' 20" E. 112.21 FEET, S.710 47' 30"E. 253.27 FEET, S.83- 39-00"E. 202.36 FEET AND S.590 58,
20"E. 134.44 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM FROM PARCEL ONE,ALL OIL, GAS,ASPHALTUM, AND OTHER
HYDROCARBONS, AND OTHER MINERALS, WHETHER SIMILAR TO THOSE HEREIN SPECIFIED
OR NOT, WITHIN OR UNDERLYING, OR THAT MAY BE PRODUCED FROM, SAID LAND,
TOGETHER WITH ANY AND ALL EASEMENTS, RIGHTS OF WAY AND SERVITUDES IN, UNDER
AND UPON SAID LAND NECESSARY OR CONVENIENT(A)TO EXPLORE,TEST, OR SURVEY SAID
LAND BY GEOPHYSICAL OR OTHER METHODS, WHETHER SIMILAR TO THOSE SPECIFIED OR
NOT AND WHETHER NOW KNOWN OR NOT, INCLUDING THE DRILLING OF SHALLOW HOLES
THEREON, FOR THE PURPOSE OF DETERMINING SUBSURFACE GEOLOGICAL CONDITIONS
UNDERLYING SAID LAND, (B)TO DRILL FOR, MINE FOR, PRODUCE, EXTRACT AND TAKE ANY
OF SAID MINERALS FROM SAID LAND AND FROM ADJACENT PROPERTIES, (C)TO TREAT AND
STORE ANY OF SAID MINERALS ON SAID LAND, WHETHER PRODUCED FROM SAID LAND OR
FROM ADJACENT PROPERTIES, (D) TO CONSTRUCT, RECONSTRUCT, USE, MAINTAIN, ERECT,
REPAIR, REPLACE, RENEW, CHANGE THE SIZE AND LOCATION OF, INCREASE THE NUMBER OF
AND REMOVE IN, UNDER, ON AND FROM SAID LAND ALL PIPE LINES, POWER LINES,
TELEPHONE AND TELEGRAPH LINES, ROADS,TANKS, MACHINERY, DERRICKS, PLANTS,
BUILDING AND OTHER STRUCTURES AND EQUIPMENT WHICH PARTIES MAY DESIRE IN
CARRYING ON ANY OF SAID OPERATIONS ON SAID LAND OR ON ADJACENT PROPERTIES, (E)
TO CONDUCT ANY AND ALL OTHER OPERATIONS WHICH PARTIES MAY DEEM NECESSARY IN
THE EXERCISE OF THE RIGHTS HEREIN RESERVED, (F)TO TAKE AND USE ON SAID LAND AND
ON ADJACENT PROPERTIES WATER APPURTENANT THERETO OR DEVELOPED BY PARTIES ON
SAID LAND, NECESSARY FOR SUCH OPERATIONS; TOGETHER WITH THE RIGHT OF INGRESS
AND EGRESS TO AND FROM SAID LAND FOR ANY AND ALL OF SAID PURPOSES.
PARCEL TWO:
--Pag"-
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP ENTITLEb,
"RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX, IN N.E. 1/4 SEC. 31,T. 7
S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA ON MAY 16, 1969, IN BOOK 253 OF MAPS, AT PAGE 34,AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF
STEVENS CANYON ROAD, AS SHOWN ON THE RECORD OF SURVEY MAP, ABOVE REFERRED TO;
THENCE ALONG THE EASTERLY LINE OF SAID PARCEL B, N. 00 57' 27" E. 765.22 FEET TO AN
ANGLE POINT IN THE GENERAL NORTHEASTERLY BOUNDARY LINE OF SAID PARCEL B; THENCE
ALONG A NORTHEASTERLY LINE OF SAID PARCEL B, N. 79- 02' 30"W. 239.69 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF
BEGINNING AND LEAVING LAST SAID GENERAL NORTHEASTERLY BOUNDARY LINE, N. 84- 33-
40" W. 488.09 FEET TO A POINT; THENCE N. 64" 36'40"W. 266.04 FEET TO A POINT; THENCE
NORTHWESTERLY IN A DIRECT LINE TO A POINT ON THE WESTERLY LINE OF SAID PARCEL B,
DISTANT THEREON, N. 08 38' 50" E., 609.03 FEET FROM THE INTERSECTION THEREOF WITH
THE CENTERLINE OF SAID STEVENS CANYON ROAD; THENCE ALONG THE WESTERLY LINE OF
SAID PARCEL B, N. 00 38' 50" E. 950.39 FEET TO THE NORTHWESTERLY CORNER THEREOF;
THENCE ALONG THE NORTHWESTERLY AND NORTHEASTERLY LINES OF SAID PARCEL B, THE
FIVE FOLLOWING COURSES AND DISTANCES: N. 730 05' 20" E. 363.25 FEET, S. 400 58- 50" E.
706.01 FEET, S. 330 23' 10" E. 1014.22 FEET, S. 560 44'40"W. 300.00 FEET AND S. 330 15' 20"
E. 205.65 FEET TO THE TRUE POINT OF BEGINNING.
APN: 351-26-003 and 351-26-004
-Page-;L...
�
v r.' ~� •� , � °�f r
pper
s f - t ' e0rt Powell
o�`w�"e_ll
L'
�_rL1am�k•�'~"�L'
j
nTratt venS roe
C ven}Ciee; II',
She ens Crgek ir+
Co nty:Par4c
` f , 8antiorn
t^^\Table Mountain !.! t_� ♦ - _-
_ Fire Road
♦ t
—
Bona fi
IL
- f ' r Powell Properties: Prospective
�` APN 351-26-002 35.63 Acres �t' 1 I ter'
Table Mountain .Trail APN 351-26-004 32.67 Acres
-• -- f� f. � `� -
' APN 351-26-003 23.14 Acres t
� i 'wit w..1_.__.___�_--_• I i �
a ,• �' t i 7.
ro p 1
, h fi
---ri--------- Ic,------' —re
s b,+ab
----- Unpaved Trail — — Master Plan Routes .< I
Stevens C ee •
--- Unpaved Road 200 ft Contours v i , County Park
Service Road 40 ft Contours ;{ {t I ,•'�' if/ �'`y,•''� i �'�.
---- Historic Roadbed Parcels
Public Road Powell Properties -
- Water Body _j Midpeninsula Regional Open Space District Ns caEEKat�P
Stream Operated by SCCPRD
Title: Comments:
SANTA CLARA ARC Powell Funding Partnership
�.�.., COUNTY PARKS
�,•,� Date: Created By: Scale:
This map generated by the County of Santa Clara Department of Parks February 1 2011 JFalkowski o o.tz5 o.zs o.5
and Recreation ,The GIS files were compiled from various sources. Miles
While deemed reliable,the Department assumes no liability.
PURCHASE AGREEMENT
POST (PO WELL TRUST) PROPERTY
This Purchase Agreement (hereinafter called "Agreement") is made and entered into by
and between PENINSULA OPEN SPACE TRUST, a California non-profit, public benefit
corporation, (hereinafter called "POST"), and the MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a public district formed pursuant to Article 3 of Chapter 3 of Division 5 of
the California Public Resources Code, (hereinafter called "District").
RECITALS
WHEREAS, POST was organized as a non-profit, charitable corporation to solicit,
receive and hold gifts, legacies, devises and conveyances of real and personal property for public
park, conservation and open space purposes, all in a manner complementary to activities of
District; and
WHEREAS, the property 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 has contractual rights to purchase and intends to purchase 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
WHEREAS, District was formed by voter initiative to solicit and receive conveyances of
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 from POST for open space
preservation and as part of the ecological, recreational, aesthetic, and natural resources of the
midpeninsula area; and
WHEREAS, POST, out of desire to promote public welfare and share the natural and
scenic beauty and enjoyment of their acquired property with the citizens of the midpeninsula
area,hereby agrees to sell and convey the entirety of said property to District, and District wishes
to purchase said property upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants herein contained, the parties hereto agree as follows:
I. Purchase and Sale. POST agrees to sell to District and District agrees to purchase
from POST, certain real property located within an unincorporated area of the County of Santa
Clara, State of California, containing approximately 54.12 acres, more or less, and commonly
referred to as Santa Clara County Assessor's Parcel Numbers 351-26-003 and 351-26-004. Said
real property is further described in the Legal Description attached to Preliminary Report number
56007-1012276 from North American Title Company dated January 27, 2011. A copy of said
Preliminary Report is attached hereto as Exhibit A, and incorporated herein by this reference.
Said property is to be conveyed together with any easements, rights of way, or rights of use
which may be appurtenant or attributable to the aforesaid lands and any and all improvements
attached or affixed thereto. All of said real property and appurtenances shall hereinafter be
called the "Subject Property" or the "Property."
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall
be One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00), which shall be
paid in cash at the "Closing" as defined in Section 3 hereof.
3. Escrow. Promptly upon full execution of this Agreement, in accordance with
Section 11 herein, an escrow shall be opened at North American Title Company, 497 N. Santa
Cruz Avenue, Los Gatos, CA 95030, Tel: (408) 399-4100, or other title company acceptable to
District and POST (hereinafter "Escrow Holder") through which the purchase and sale of the
Property shall be consummated. A fully executed copy of this Agreement shall be deposited
with Escrow Holder to serve as escrow instructions to Escrow Holder provided that the parties
shall execute such additional supplementary or customary escrow instructions to the extent not
inconsistent with this Agreement. 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 March 31, 2011, provided however, that the parties may, by written agreement, extend the
time for Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow
Holder causes the Grant Deed (as defined below) to be recorded in the Office of the County
Recorder of Santa 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 to the terms of this Agreement.
C. POST shall deposit into the escrow, on or before the Closing:
(i) A duly executed and recordable Grant Deed, covering the Property
as described in said Exhibit A; and
(ii) A duly executed Assignment of Lease with attached Tenant
Estoppel Certificate, in the form attached to this Agreement as Exhibit B, assigning to District
POST's interest as lessor in the Month-to-Month Rental Agreement between POST and Eben
Haber("Antenna Rental Agreement"). The Tenant Estoppel Certificate shall be duly executed
by Eben Haber.
2
(iii) A duly executed Assignment of Escrow Impound Account in the
form attached to this Agreement as Exhibit C, assigning to District POST's interest in the
Impound Account in the amount of Forty-Five Thousand Dollars ($45,000.00) as set out in
Section 6 (c) of the Purchase and Sale Agreement between Assignor and Kern-it Harmon Powell
and Viet Su Thi La, Trustees of the Harmon Powell Charitable Remainder Unitrust dated March
25, 2010, said Purchase and Sale Agreement dated August 6, 2010 and amended by Amendment
No. I dated February 15, 2011.
D. District shall deposit into the escrow, on or before the Closing:
(i) The required Certificate of Acceptance for the Grant Deed, duly
executed by District and to be dated as of the Closing; and
(ii) District's check payable to Escrow Holder in the amount of
One Million Four Hundred Ninety-Nine Thousand and No/100 Dollars($1,499,000.00). The
balance of$1,000.00 is paid into escrow in accordance with Section 12 of this Agreement.
(iii) District's check payable to Escrow Holder in the amount of Two
Thousand Eight Hundred Fifty and No/I 00 Dollars ($2,850.00) to reimburse POST for its costs
of conducting a Phase I environmental site assessment of the Property and providing the site
assessment to the District.
E. District shall pay the escrow fees, all costs associated with the CLTA
Standard Policy of Title Insurance, if required by District, or such other title policy and
endorsements (if any) requested by District, and all recording costs and fees. All other costs or
expenses not otherwise provided for in this Agreement shall be apportioned or allocated between
District and POST in the manner customary in Santa Clara County. All current property taxes on
the Property shall be pro-rated through escrow between District and POST as of the Closing
based upon the latest available tax information using the customary escrow procedures.
F. POST shall cause North American Title Company, or other title company
acceptable to District and POST, to be prepared and committed to deliver to District, a one
hundred ten percent(I 10%) binder for a CLTA Standard Policy of Title Insurance, dated as of
the Closing, insuring District in the amount of$1,500,000.00 for the Property showing title to the
Property vested in fee simple in District, subject only to: (i) current real property taxes; (ii)
exception numbers 6 through 24 as listed in Preliminary Report Number 56007-1012276 dated
January 27, 2011; and (iii) such additional title exceptions as may be approved in writing by
District prior to the Closing as determined by District in its sole and absolute discretion.
G. Escrow Holder shall, when all required funds and instruments have been
deposited into the escrow by the appropriate parties and when all other conditions to Closing
have been fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded
in the Office of the County Recorder of Santa Clara County. Upon the Closing, Escrow Holder
shall cause to be delivered to District the I 10%binder for the policy of title insurance required
herein, and to POST sufficient funds in the amount of Escrow Holder's check for the full
Purchase Price of the Subject Property (less POST's portion, if any, of the expenses described in
Section 3.E.), and to District or POST, as the case may be, all other documents or instruments
3
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.
4. Termination of License and Management Agreement. Promptly upon Closing,
the License and Management Agreement for the Property, entered into between POST and
District on March 9, 2011 (the "License"), shall be terminated and shall be of no further force
and effect, and both parties agree that neither shall have any further obligation or rights under the
License.
5. Rights and Liabilities of the Parties in the Event of Termination. In the event this
Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from
any further obligations hereunder, except as otherwise provided herein. Upon any such
termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for
payment of its title and escrow cancellation charges (subject to rights of subrogation against any
party whose fault may have caused such termination of escrow), and each party expressly
reserves any other rights and remedies which it may have against any other party by reason of a
wrongful termination or failure to close escrow.
6. POST's Representations and Warranties. For the purpose of consummating the
sale and purchase of the Property in accordance herewith, POST makes the following
representations and warranties to District, which shall survive close of escrow, each of which is
material and is being relied upon by District:
A. Authori1y. POST has the full right,power and authority to enter into this
Agreement and to perform the transactions contemplated hereunder.
B. Valid and Binding Agreements. This Agreement and all other documents
delivered by POST to District now or at the Closing have been or will be duly authorized and
executed and delivered by POST and are legal, valid and binding obligations of POST sufficient
to convey to District the Subject Property described therein, and are enforceable in accordance
with their respective terms and, to POST's current actual knowledge, do not violate any
provisions of any agreement to which POST is a party or by which POST may be bound or any
articles, bylaws or corporate resolutions of POST.
7. Waiver of Relocation Benefits and Statutory Compensation. POST and District
understand and agree that POST may be entitled to receive certain relocation benefits and the fair
market value of the Property described in Exhibit A, as provided for by the Federal Uniform
Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the
Uniform Relocation Act Amendments of 1987 (Public Law 100-17), Title IV of the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42
U.S.C. '4601 et seq.), and the California Relocation Assistance Act, Government Code Section
7260 et seq. POST hereby waives any and all existing and/or future claims or rights POST may
have to any relocation assistance, benefits, procedures, or policies as provided in said laws or
regulations adopted thereunder and to any other compensation, except as provided in this
Agreement. POST has been advised as to the extent and availability of such benefits,
procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights
4
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.
8. As-Is Purchase and Sale. This sale is made without representation or warranty by
POST,except as expressly set forth in this Agreement. District represents,warrants,acknowledges
and agrees that it has had full and ample opportunity prior to the execution of this Agreement to
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 AS-IS
WITH ALL FAULTS.
9. Hazardous Waste.
A. Definitions. The term "Hazardous Waste," as used herein, means any
substance, material or other thing regulated by or pursuant to any federal, state or local
environmental law by reason of its potential for harm to human health or the environment
because of its flammability, toxicity, reactivity, corrosiveness or carcinogenicity. The term
"Hazardous Waste" also includes without limitation, polychlorinated biphenyls, benzene,
asbestos, petroleum, petroleum by-products, gas, gas liquids and lead.
The term "Environmental Law" as used herein includes, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 el seq.) and the Resource Conservation and Recovery Act(42 U.S.C. Section 6901
et seq.)
B. Representations and Warranties. For the purpose of consummating the
sale and purchase of the Property, POST makes the following representations and warranties to
District, which shall survive close of escrow, each of which is material and is being relied upon
by District:
(i) To POST's actual current knowledge, the Property does not
contain and has not previously contained any Hazardous Waste or underground storage tanks,
and no Hazardous Waste 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) To POST's actual current knowledge, POST has not received any
notice and POST has 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 a
presence, release, threat of release, placement on, under or about 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, losses, damages, and costs incurred or suffered by District,
5
including without limitation, attorney, engineering and other professional or expert fees, to the
extent arising from any breach of the warranties or representations contained herein. POST's
obligation to indemnify, defend and hold harmless pursuant to this Section 9 shall not apply
where, based on its own inspections, testing, evaluations and knowledge of the Property, District
knew or had reason to know of the existence of any Hazardous Waste or underground storage
tanks on, under, or about the Property prior to the Closing.
10. District's Indemnity. District hereby agrees to indemnify POST against, and to
hold POST harmless from, all losses, damages, costs and expenses whatsoever including without
limitation reasonable legal fees and disbursements, incurred by POST relating to the Property
except those claims arising out of the sole negligence or willful misconduct of POST. Nothing in
this Section 10 shall limit any obligation of POST in this Agreement nor limit any obligation of
POST to indemnify the District as set out in this Agreement.
11. Miscellaneous Provisions.
A. Access for Investigations. From the date POST delivers an executed copy
of this Purchase Agreement to District and until the Closing, District and District's agents,
lender, contractors, engineers, consultants, employees, subcontractors and other representatives
("District Parties") may, upon the giving of reasonable advance written notice to POST, enter
upon the Property for the purpose of inspecting, testing and evaluating the same; provided,
however, that District may not perform any work on the Property without POST's prior written
consent, which shall not be unreasonably withheld or delayed and further provided that District
shall give POST at least 24 hours' prior notice of each proposed entry by District. District shall
indemnify, protect, defend and hold POST free and harmless from and against any and all
claims, actions, causes of action, suits, proceedings, costs, expenses(including, without
limitation, reasonable attorneys' fees and costs), liabilities, damages, and liens caused by the
activities of District Parties while upon the Property prior to the Closing; provided, however, the
foregoing indemnity shall not cover or include any claims, damages or liens resulting from
District's discovery of any Hazardous Waste or other pre-existing adverse conditions pursuant to
its inspections, testing or evaluation. District's inspections shall be at District's sole cost and
expense. District shall repair any damage to the Property that may be caused by District Parties
while on the Property performing its inspections.
B. Choice of Law. The internal laws of the State of California, regardless of
any choice of law principles, shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
C. Amendment and Waiver. The parties hereto may by mutual written
agreement amend this Agreement in any respect. Any party hereto may: (i) waive any
inaccuracies in representations 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 of the covenants contained in this 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 District's
General Manager is authorized to take any actions and execute any documents necessary or
appropriate to closing escrow and completing this conveyance. Any agreement on the part of
any party for any such amendment, extension or waiver must be in writing.
6
D. Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in addition to any other
rights, powers and remedies which the parties may have at law or in equity in the event of the
breach of any of the terms of this Agreement. The exercise or partial exercise of any right,
power or remedy shall neither constitute the exclusive election thereof nor the waiver of any
other right, power or remedy available to such party.
E. Notices. Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Agreement(or any Exhibit hereto), each such
communication shall be in writing and shall be deemed to have been validly served, given or
delivered at the time stated below if deposited in the United States mail, registered or certified
and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or
other private messenger, courier or other delivery service or sent by facsimile transmission by
telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as
follows:
POST: Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
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: Stephen E. Abbors, 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 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
7
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.
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.
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. Assignment. Except as expressly permitted herein, neither party to this
Agreement shall assign its rights or obligations under this Agreement to any third party without
the prior written approval of the other party.
M. Further Documents and Acts 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 under this Agreement.
N. Binding on Successors and Assigns. This Agreement and all of its terms,
conditions and covenants are intended to be fully effective and binding,to the extent permitted
by law, on the successors and permitted assigns of the parties hereto.
O. Captions. Captions are provided herein for convenience only and they
form no part of this Agreement and are not to serve as a basis for interpretation or construction of
this Agreement, nor as evidence of the intention of the parties hereto.
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.
8
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 el. seq. including the right to
discovery. Hearings shall be held in Santa Clara or San Mateo County, California. If the parties
are unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration
and Mediation Services, Inc. in accordance with the rules thereof. If arbitration is required to
resolve a dispute, it shall in all cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE
ANY DIS PUTE ARIS ING 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
PO S S ES S TO HAVE THE DIS PUTE]LITIGATED IN A CO URT 0 R JURY TRIAL BY
INITIALING IN THE SPACE BELOW,YOU ARE GIVING UP YOUR JUD IC IAL RIGHTS
TO APPEAL UN LES S THO S E RIGHTS ARE S PEC IFICALLY INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PRO VIS 10 N, 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.
POST INITIAL DISTRICT INITIAL
12. Acceptance. Provided that this Agreement is executed by POST and delivered to
District on or before 7:00 p.m. on March 9, 2011, District shall have until midnight, March 9,
2011 ("Option Deadline")to accept and execute this Agreement, and during said period this
instrument shall constitute an option and 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 POST acknowledges deposit into escrow of the sum of One
Thousand Dollars and No/I 00 ($1,000.00), which, (i) if said irrevocable option is exercised by
District, shall be applied upon the close of escrow to the Purchase Price as set forth in Section 2
hereof, or (ii) if District does not exercise said option, shall be disbursed directly to POST upon
expiration of the Option Deadline.
9
Provided that this Agreement is accepted by District, this transaction shall close as soon
as practicable in accordance with the terms and conditions set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers, to be effective as of the date of final execution by District in
accordance with the terms hereof.
MIDPENINS ULA REGIONAL OPEN PENINSULA OPEN SPACE TRUST,
S PACE DLS TRICT a California non-profit, public benefit
corporation
APPROVED AND ACCEPTED:
Larry Ha tt, President, Board of Directors Walter T. Moore, Executive Vice President
Date Date
ATTEST:
Michelle Radcliffe, District Clerk
ACCEPTED FOR RECOMMENDATION:
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
r
tep E. Abbors, General Manager
10
EXHIBIT� A
Legal Description
i
i
i
11
AMENDED UPDATE #3
VjNORTH 497 N. Santa Cruz Avenue
AMERICAN Los Gatos, CA 95030
r"TITLE (408)399-4100
COMPANY (408)354-3212
,Like Clockwork 0 1
Meghan Kirby-McFarland
Pennisula Open Space Trust
222 High Street
Palo Alto, CA 94301
DIRECT ALL INQUIRIES TO:
Escrow Officer: Susan Trovato
Phone: (408)399-4100
Fax No.: (408)354-3212
E-Mail: strovato@nat.com
E-Mail Loan Documents to: nocal.losgatos@natdocs.com
Property: 351-26-003 &351-26-004
CUPERTINO, CA 95014
Buyer: Pennisula Open Space Trust
Owner: K. HARMON POWELL, TRUSTEE
PRELIMINARY REPORT
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Insurance Company
Hereby reports that it is prepared to issue,or cause to be issued,as of the date hereof,a Policy or Policies of Tide Insurance describing the
land and the estate or interest therein hereinafter set forth,insuring against Im 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 and limitations on covered risks of said Policy or Policies are set forth in Exhibit A
attached.The Policy to be issued may contain an Arbitration Clause. When the amount if insurance Is less than that set forth in the
Arbitration Clause,all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of
the Parties. Limitations on covered risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a
deductible amount and a maximum dollar limit of liability for certain coverages are also set forth In Exhibit A. 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 tide
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 January 27, 2011 at 7:30 A.M. Janet Williams,Title Officer
Page 1
Order No.: 56007-1012276-10
.
The form of Policy of title insurance contemplated by this report is: �
�
199000A
ALTA LOAN 2006
1992 AL]7\Owner's Policy(1O-17-S2)with Regional Exceptions �
A specific request should be made if another form or additional coverage isdesired.
Tide to said estate or interest atthe date hereof is vested in:
K. HARMON POVVELL TRUSTEE OF THE HARMON POVVELLCHARIT48LE REMAINDER UNITRUS[
DATED MARCH 2S, 3O1O
The estate or interest in the land hereinafter described or referred to covered by this Report is:
Afee.
The Land referred hm herein |s described asfollows:
(See attached Legal Description)
At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said
policy form would beasfollows:
1. General and special taxes and assessments for the fiscal year 2011-2012, a lien not yet due or
payable. /
2. General and special taxes and assessments for the fiscal year 2O1O-2O11.
First Installment: $2,512.27, PAID
Penalty: $0.00
Second Installment: ¢2512.27, O9EN
Penalty: $0.00
Tax Rate Area: 05002
A. P. No.: 351'26-003
Affects PARCEL ONE.
3. General and special taxes and assessments for the fiscal year 2O1O-2011.
First Installment: $5,979.10, PAID
Penalty: $0.00
Second Installment: $5,979.10, OPEN
Penalty: $0I0
� Tax Rate Area: 05002
�
A. P. No.: 351-26-004
Affects PARCEL TWO.
4. The lien ofsupplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with
Ses±ion75oftheCaUforniaRe«�nu�andT��a�onCcde
� .
� Page
Order No.: 56007-1012276-10
5. The lien of special tax for the following community facilities district, which tax is collected with
the county taxes.
District: COUNTY LIBRARY
6. The lien of bonds and assessment liens, if applicable, collected with the general and special
taxes.
7. ANY ADVERSE CLAIM BASED UPON THE ASSERTION THAT:
A. SOME PORTION OF SAID LAND IS TIDE OR SUBMERGED LAND, OR HAS BEEN CREATED BY
ARTIFICIAL MEANS OR HAS ACCRETED TO SUCH PORTION SO CREATED, OR
B. SOME PORTION OF SAID LAND HAS BEEN BROUGHT WITHIN THE BOUNDARIES THEREOF BY
AN AVULSIVE MOVEMENT OF THE STEVENS CREEK OR HAS BEEN FORMED BY ACCRETION TO
ANY SUCH PORTION.
8. Rights of the public in and to that portion of the land lying within STEVENS CANYON ROAD.
9. An easement for POLE LINE and incidental purposes, recorded DECEMBER 30, 1946 as
INSTRUMENT NO. 438896 IN BOOK 1435, PAGE 17 of Official Records.
In Favor of: PACIFIC GAS AND ELECTRIC COMPANY,A CALIFORNIA
CORPORATION
Affects: A PORTION OF PARCEL ONE
10. An easement for POLE LINE and incidental purposes, recorded DECEMBER 30, 1946 as
INSTRUMENT NO. 438897 IN BOOK 1435, PAGE 18 of Official Records.
In Favor of: PACIFIC GAS AND ELECTRIC COMPANY,A CALIFORNIA
CORPORATION
Affects: A PORTION OF PARCEL ONE
11. An easement for POLE LINE AND AERIAL WIRES, INGRESS, EGRESS and incidental purposes,
recorded MARCH 9, 1949 as INSTRUMENT NO. 562898 IN BOOK 1755, PAGE 491 of Official
Records.
In Favor of: PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A
CORPORATION
Affects: A PORTION OF PARCEL ONE
12. An easement for TRANSMISSION LINES AND INGRESS, EGRESS and incidental purposes,
recorded JULY 14, 1949 as INSTRUMENT NO. 583495 IN BOOK 1817, PAGE 460 of Official
Records.
In Favor of: THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A
CORPORATION
Affects: A PORTION OF PARCEL ONE
13. An easement for RIGHT OF WAY TO EXPLORE,TEST OR SURVEY SAID LAND BY GEOPHYSICAL
OR OTHER METHODS INCLUDING DRILLING SHALLOW HOLES,TO DRILL FOR, MINE FOR,
PRODUCE AND STORE, EXTRACT MINERALS TO CONSTRUCT, USE, MAINTAIN, REPLACE AND
RELOCATE PIPELINE, POWER LINE, AND TELEPHONE AND TELEGRAPH LINE, ROADS,TANKS
AND OTHER STRUCTURES; TO USE WATER,TO CONDUCT ANY OPERATIONS DEEMED
NECESSARY AND INGRESS, EGRESS and incidental purposes in the document recorded APRIL 15,
1954 as INSTRUMENT NO. 966709 IN BOOK 2854, PAGE 43 of Official Records.
The location of the easement cannot be determined from record information.
Page 3
Order No.: 56007-1012276-10
14. An easement for INGRESS AND EGRESS, PUBLIC UTILITIES AND STREET PURPOSES and
incidental purposes naozmded APRIL29, 1969aa INSTRUMENT NO. 3609066 IN BOOK8516, �
� PAGE 4mf Official Records. �
In Favor of: COUNTY OFSANlA[LARAOR ITS SUCCESSORS AGENCIES
AND ASSIGNS |
|
Affects: A PORTION OF PARCEL ONE !
15. An easement for POLE LINE and incidental purposes, recorded NOVEMBER7, 1969as
INSTRUMENT NO. 3715425 IN BOOK 8732, PAGE 570 of Official Records.
In Favor of: PACIFIC GAS AND ELECTRIC COMPANY AND THE PACIFIC
TELEPHONE AND TELEGRAPH COMPANY, ACALIFORNIA
CORPORATION
Affects: A PORTION OF THE LAND DESCRIBED THEREIN |
/
16. An easement for FLOOD CONTROL AND/OR STORM WATER DRAINAGE PURPOSES and incidental
purposes, necuu]edAPRlL 16, 197Oas INSTRUMENT NO. 3793004lN BOOK8891, PAGE 4G6mf
Official Records. �
In Favor of: SANTACLARA COUNTY FLOOD CONTROL AND WATER
� DISTRICT, STATE OF CALIFORNIA, ITS SUCCESSORS AND
ASSIGNS
| Affects: A PORTION OF PARCEL ONE
�
17 The terms and provisions contained in the document entitled AGREEMENT BY OWNER OR HIS
� SUCCESSORS IN INTEREST TO CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS, executed by
and between COUNTY OF SANTA CLARA, GEORGE MORENCY and PATRICIA MORENCY, HIS
WIFE, recorded]UNE 11, 1970, in hook No. 8950, PAGE 33 as Instrument No. 3021354ofOfficial
| Records. �
!
18. An easement for POLE LINE and incidental purposes, recorded]ULY 13, 1978as INSTRUMENT
� NO. 3838045 IN BOOK 8984 PAGE 26 of Official Records.
In PAOBCGAS AND EUE0�lC0O�4RANYAND THE PA���C
� .
TELEPHONE AND TELEGRAPH COMPANY, ACALIFORNIA
CORPORATION
| Affects: A PORTION OF THE LAND DESCRIBED THEREIN
Terms and provisions contained in the above document.
'
19. An easement for POLE LINE and incidental purposes, necordedJULY 13, 1970as INSTRUMENT
NO. 3@3BO46IN BOOK Q984, PAGE 20of Official Records.
| In Favor of: PACIFIC GAS AND ELECTRIC COMPANY AND THE PACIFIC
/ TELEPHONE AND TELEGRAPH COMPANY,ACALIFORNIA
CORPORATION |
|
Affects: APORT3ONOF THE LAND DESCRIBED THEREIN
JO. An easement for INGRESS AND EGRESS, PUBLIC UTILITIES, STORM AND SANITARY SEWERS,
WATER PIPELINES and incidental purposes recon1ed]U[Y 15, 1970as INSTRUMENT NO.
3838964lN BOOK 8Q87, PAGE 734of Official Records.
In Favor of: THE COUNTY OFSANlACLARA
� Affects: A PORTION OF THE LAND DESCRIBED THEREIN
�
� Page
Order No.: 56007-1012276-10 �
�
21. NOTICE OF VIOLATION OF GRADING ORDINANCE:
INSTRUMENT NO.: S174O2G
BOOK: B768
PAGE: 6S3
� 22. An easement for APUBLIC ROADWAY AND APUBLIC ROADWAY BRIDGE and incidental
purposes, recorded REBRUARY I 2008 as INSTRUMENT NO. 19737638 of Official Records. �
In Favor of: COUNTY OFSANTACU\RA, STATE OFCALIFORNIA
Affects: SOUTHERLY PORTIONS OF PARCEL ONE
23. An easement for PUBLIC UTILITIES and incidental purposes, recorded JANUARY 7, 2010 as
INSTRUMENT NO. 2OS68916of Official Records.
In Favor of: PACIFIC GAS AND ELECTRIC COMPANY, ACALIFORNIA
CORPORATION
Affects: A PORTION OF PARCEL ONE
Terms and provisions contained in the above document.
24. Any rights, interests, or claims of parties in possession of the land not shown by the public |
records. /
�
Page
Order No.: 56007-1012276-10
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of SANTA CLARA, State of CALIFORNIA,
described as follows:
PARCEL ONE:
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP ENTITLED,
RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX, IN N.E. 1/4 SEC. 31,T. 7
S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA ON MAY 16, 1969, IN BOOK 253 OF MAPS, AT PAGE 34, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF
STEVENS CANYON ROAD, AS SHOWN ON THE MAP ABOVE REFERRED TO; THENCE ALONG THE
EASTERLY LINE OF SAID PARCEL B, N. 00 57' 27" E. 765.22 FEET TO AN ANGLE POINT ON THE
GENERAL NORTHEASTERLY BOUNDARY LINE OF SAID PARCEL B; THENCE ALONG A
NORTHEASTERLY LINE OF SAID PARCEL B, N. 790 02' 30" W. 239.69 FEET TO A 3/4 INCH IRON
PIPE; THENCE LEAVING SAID NORTHEASTERLY BOUNDARY LINE, N.840 33' 40"W. 488.09 FEET
TO A POINT; THENCE N.641 36' 40"W. 266.04 FEET TO A POINT; THENCE NORTHWESTERLY IN
A DIRECT LINE TO A POINT ON THE WESTERLY LINE OF SAID PARCEL B, DISTANT THEREON,
N.00 38' 50"E. 609.03 FEET FROM THE INTERSECTION THEREOF, WITH THE CENTERLINE OF
SAID STEVENS CANYON ROAD; THENCE ALONG SAID WESTERLY LINE OF SAID PARCEL B, S. 00
38' 50"W. 609.03 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL B, ON THE
CENTERLINE OF SAID STEVENS CANYON ROAD; THENCE ALONG THE CENTERLINE OF SAID
STEVENS CANYON ROAD, THE FOLLOWING COURSES AND DISTANCES: S. 630 41' 50"E. 82.12
FEET, S. 410 43' 40" E. 117.99 FEET, S. 260 56' 50" E. 116.69 FEET, S. 120 24' 30"E. 105.16
FEET, S. 440 47' 50" E. 58.31 FEET, S. 820 24' 20"E., 140.08 FEET, S.44° 11' 50"E. 158.63 FEET,
S. 610 15' 10"E. 104.91 FEET S.800 24' 10"E. 189.14 FEET, S.62° 42'40"E. 47.56 FEET, S. 410
04' 20" E. 112.21 FEET, S.710 47' 30"E. 253.27 FEET, S.83°39' 00"E. 202.36 FEET AND S.59° 58'
20"E. 134.44 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM FROM PARCEL ONE, ALL OIL, GAS, ASPHALTUM, AND OTHER
HYDROCARBONS, AND OTHER MINERALS, WHETHER SIMILAR TO THOSE HEREIN SPECIFIED
OR NOT WITHIN OR UNDERLYING OR THAT MAY BE PRODUCED FROM SAID LAND
TOGETHER WITH ANY AND ALL EASEMENTS, RIGHTS OF WAY AND SERVITUDES IN, UNDER
AND UPON SAID LAND NECESSARY OR CONVENIENT(A)TO EXPLORE, TEST, OR SURVEY SAID
LAND BY GEOPHYSICAL OR OTHER METHODS, WHETHER SIMILAR TO THOSE SPECIFIED OR
NOT AND WHETHER NOW KNOWN OR NOT, INCLUDING THE DRILLING OF SHALLOW HOLES
THEREON, FOR THE PURPOSE OF DETERMINING SUBSURFACE GEOLOGICAL CONDITIONS
UNDERLYING SAID LAND, (B)TO DRILL FOR, MINE FOR, PRODUCE, EXTRACT AND TAKE ANY
OF SAID MINERALS FROM SAID LAND AND FROM ADJACENT PROPERTIES, (C)TO TREAT AND
STORE ANY OF SAID MINERALS ON SAID LAND, WHETHER PRODUCED FROM SAID LAND OR
FROM ADJACENT PROPERTIES, (D)TO CONSTRUCT, RECONSTRUCT, USE, MAINTAIN, ERECT,
REPAIR, REPLACE, RENEW, CHANGE THE SIZE AND LOCATION OF, INCREASE THE NUMBER OF
AND REMOVE IN, UNDER, ON AND FROM SAID LAND ALL PIPE LINES, POWER LINES,
TELEPHONE AND TELEGRAPH LINES, ROADS,TANKS, MACHINERY, DERRICKS, PLANTS,
BUILDING AND OTHER STRUCTURES AND EQUIPMENT WHICH PARTIES MAY DESIRE IN
CARRYING ON ANY OF SAID OPERATIONS ON SAID LAND OR ON ADJACENT PROPERTIES, (E)
TO CONDUCT ANY AND ALL OTHER OPERATIONS WHICH PARTIES MAY DEEM NECESSARY IN
THE EXERCISE OF THE RIGHTS HEREIN RESERVED, (F)TO TAKE AND USE ON SAID LAND AND
ON ADJACENT PROPERTIES WATER APPURTENANT THERETO OR DEVELOPED BY PARTIES ON
SAID LAND, NECESSARY FOR SUCH OPERATIONS; TOGETHER WITH THE RIGHT OF INGRESS
AND EGRESS TO AND FROM SAID LAND FOR ANY AND ALL OF SAID PURPOSES.
PARCEL TWO:
Page 6
Order No.: 56007-1012276-10
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP ENTITLED,
"RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX, IN N.E. 1/4 SEC. 31, T. 7
S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY CALIFORNIA", WHICH MAP WAS FILED
FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA ON MAY 16, 1969, IN BOOK 253 OF MAPS, AT PAGE 34, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF
STEVENS CANYON ROAD, AS SHOWN ON THE RECORD OF SURVEY MAP,ABOVE REFERRED TO;
THENCE ALONG THE EASTERLY LINE OF SAID PARCEL B, N. 0° 57' 27" E. 765.22 FEET TO AN
ANGLE POINT IN THE GENERAL NORTHEASTERLY BOUNDARY LINE OF SAID PARCEL B;THENCE
ALONG A NORTHEASTERLY LINE OF SAID PARCEL B, N. 79° 02' 30" W. 239.69 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF
BEGINNING AND LEAVING LAST SAID GENERAL NORTHEASTERLY BOUNDARY LINE, N. 84°33'
40" W. 488.09 FEET TO A POINT; THENCE N. 641 36'40"W. 266.04 FEET TO A POINT; THENCE
NORTHWESTERLY IN A DIRECT LINE TO A POINT ON THE WESTERLY LINE OF SAID PARCEL B,
DISTANT THEREON, N. 08 38' 50" E., 609.03 FEET FROM THE INTERSECTION THEREOF WITH
THE CENTERLINE OF SAID STEVENS CANYON ROAD; THENCE ALONG THE WESTERLY LINE OF
SAID PARCEL B, N. 0° 38' 50" E. 950.39 FEET TO THE NORTHWESTERLY CORNER THEREOF;
THENCE ALONG THE NORTHWESTERLY AND NORTHEASTERLY LINES OF SAID PARCEL B,THE
FIVE FOLLOWING COURSES AND DISTANCES: N. 730 05' 20" E. 363.25 FEET, S. 400 58' S0" E.
706.01 FEET, S. 33° 23' 10" E. 1014.22 FEET, S. 56°44' 40"W. 300.00 FEET AND S. 33° 15' 20"
E. 205.65 FEET TO THE TRUE POINT OF BEGINNING.
APN: 351-26-003 and 351-26-004
i
Page 7
Order No.: 56007-1012276-10
�— OFFICE OF COUNTY ASSESSOR SANTA CLARA COUNTY. CALIFORNIA
TMP TS R2 W •OOIN P.G�
• 3 22
16 �
2932 - I"=200r
.- ... :INC SPECKTIOM
30 I
ii11e� .ie s�. J
FARM .
33.513313 At ST
LT
m /
IV l` / fi/ ✓< w
/0
31.69 AlNET 22.43
/�.A AC.9R. 1
i r 21.60 AC.NET
R / PARCEL • %•, y��J�'e19
�JI — MPV 270—M-40
Of �
G r`iyAgf 13 IS
V LANRENCE E.STO l-♦---17 t
co vo m,w b rm t IWdrs-
o E`n-ie1 w RM rrA200t 2005-J27.
r
N
N
V
C1
r
0
EXHIBIT B-1
Assignment of Lease
12
EXHIBIT B-1
ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is made and entered into by and between Peninsula
Open Space Trust ("POST"), a California non-profit public benefit corporation ("Assignor")and
Midpeninsula Regional Open Space District("District"), a California special district
("Assignee").
RECITALS
A. Assignor and Assignee have entered into a Purchase Agreement ("Agreement") dated
March 9, 2011 in which Assignee has agreed to acquire from Assignor real property formerly
known as the Powell Trust property, located in an unincorporated area of the County of Santa
Clara, State of California("Property"), Assessor's Parcel Numbers 351-26-003 and 351-26-004,
and more particularly described in Exhibit A of the Agreement.
B. Assignor is the current owner and landlord ("Landlord") under a month-to-month rental
agreement, effective as of March 1, 2005, between Harmon Powell and Eben Haber ("Tenant")
allowing Tenant to install and maintain an antenna on the Property ("Lease"), said Lease
attached hereto and incorporated herein as Exhibit A.
C. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all right, title, and
interest in the Lease, and Assignee has agreed to assume all Assignor's obligations under the
Lease.
For good and valuable consideration received, Assignor and Assignee agree as follows:
SECTION 1. ASSIGNMENT
Assignor assigns all right, title, interest, and obligations in the Lease to Assignee effective upon
the date of Close of Escrow for the purchase of the Property from Assignor by Assignee, which
shall be the effective date of this Assignment.
SECTION 2. TENANT ESTOPPEL CERTIFICATE
Assignor has obtained from Tenant a duly executed Tenant Estoppel Certificate dated
, 2011. An original of the Tenant Estoppel Certificate is attached hereto
and incorporated herein as Exhibit B.
SECTION 3. NOTICE TO TENANT
Following the execution of the Agreement, Assignor shall give notice to the tenant under the
Lease that Assignee has entered into the Agreement to purchase the Property and has been
assigned, and has acquired, all of Assignor's interest in the Lease.
SECTION 4. ASSUMPTIONS
Assignee assumes all Landlord's obligations, duties, responsibilities, and liabilities under the
Lease.
SECTION 5. ASSIGNOR'S COVENANTS
Assignor covenants to the best of its knowledge that the Lease is in full force and effect.
Assignor further covenants to the best of its knowledge that there are no defaults under the
Lease.
SECTION 6. INDEMNITY
A. Assignor shall indemnify and defend Assignee against and hold Assignee harmless from
all claims, demands, liabilities, losses, damages, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements (collectively "Claims") caused by any
failure by Assignor to perform any of its obligations under the Lease (as landlord) prior to the
date of this Assignment or any breach of the Lease occurring prior to the date of this
Assignment.
B. Except as set forth in the preceding paragraph, Assignee shall indemnify and defend
Assignor against and hold Assignor harmless from any Claims caused by Assignee's failure to
perform any of its obligations under the Lease (as Landlord) on or after the date of this
Assignment (i.e., do not arise out of conduct, acts or failures to act, circumstances or events
taking place prior to the date of this Assignment) and during the period of Assignee's ownership
of the real property subject to the Lease.
SECTION 7. SUCCESSORS
This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs,
executors, administrators, successors in interest, and assigns.
SECTION 8. SEVERABILITY
If any term or provision of this Assignment shall be held invalid or unenforceable, the remainder
of this Assignment shall not be affected.
SECTION 9. WAIVERS
No waiver or breach of any covenant or provision shall be deemed a waiver of any other
covenant or provision, and no waiver shall be valid unless in writing and executed by the
waiving party.
SECTION 10. CONSTRUCTION
Headings are solely for the parties' convenience, and are not a part of this Assignment, and shall
not be used to interpret this Assignment. The singular form shall include plural and vice versa.
This Assignment shall not be construed as if it had been prepared by one of the parties, but rather
as if both parties have prepared it. Unless otherwise indicated, all references to sections are to
this Assignment.
SECTION 11. COUNTERPARTS
2
This Assignment may be executed in one or more counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one and the same instrument.
This Assignment may not be amended or altered except by a written instrument executed by
Assignor and Assignee.
SECTION 12. FURTHER ASSURANCES
Whenever requested to do so by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, Assignments, confirmations, satisfactions, releases, powers of
attorney, instruments of further assurance, approvals, consents, and any further instruments or
documents that are necessary, expedient, or proper to complete any conveyances, transfers, or
assignments contemplated by this Assignment. In addition, each party shall do any other acts
and execute, acknowledge, and deliver any requested documents in order to carry out the intent
and purpose of this Assignment.
SECTION 13. THIRD-PARTY RIGHTS
Nothing in this Assignment, express or implied, is intended to confer upon any person, other than
the parties and their respective successors and assigns, any rights or remedies.
SECTION 14. GOVERNING LAW
This Assignment shall be governed and construed in accordance with California law.
POST and DISTRICT, by their execution below, indicate their consent to the terms of this
Assignment.
PENINSULA OPEN SPACE TRUST, MIDPENINSULA REGIONAL OPEN
a California non-profit public benefit SPACE DISTRICT
corporation
APPROVED AND ACCEPTED:
By: By:
Walter T. Moore, Executive Vice Stephen E. Abhors, General Manager
President
Date:
Date:
ATTEST:
By:
Michelle Radcliffe, District Clerk
APPROVED AS TO FORM:
By:
Susan M. Schectman, General Counsel
3
EXHIBIT B-2
Tenant Estoppel Certificate
13
EXHIBIT B-2 TO ASSIGNMENT OF LEASE
TENANT ESTOPPEL CERTIFICATE
Tenant Name and Address:
The undersigned is a tenant("Tenant")of the Peninsula Open Space Trust("posr,)property
with an address of 17287 Stevens Canyon Road,Cupertino,California, the description of which is
attached hereto as Exhibit A(hereafter referred to as"the Premises"). Under the terms of a month-to-
month rental agreement between Harmon Powell and Eben Haber with an effective date of March 7,2005
("Lease"), POST as current owner and landlord("Landlord")of the Premises leases a site on the Premises
to Tenant for the purposes of installing and maintaining a small repeater antenna providing internet
service to Tenant's residence located off of the Premises. The Lease will be assigned to the Midpeninsula
Regional Open Space District("District"). The undersigned certifies to the District, for its benefit and
reliance, as follows:
1. A complete,true and correct copy of the Lease(inclusive of all addenda,exhibits and
riders thereto and all amendments and modifications thereof to date), is attached hereto as Exhibit B.
2. The Lease as attached hereto has not been modified,amended or supplemented. There
are no understandings, oral or written, amending, supplementing or changing the terms of the Lease
except as so attached hereto,
3. The Lease is in full force and effect, having been duly executed and delivered by Tenant.
4. Tenant has accepted possession of the Premises.
5. All Rent payable by Tenant as of the date hereof has been paid.
6. To the best of Tenant's actual knowledge, without any duty to investigate, Landlord is
not in default under any of the terms, conditions or covenants of the Lease.
7. No notice has been given by Tenant of any default under the Lease which has not been
cured by Landlord, and to the best of Tenant's actual knowledge, without any duty to investigate,there
are no circumstances that, with the passage of time or giving of notice,or both, would constitute a default
by Landlord.
8. The address for notices to Tenant is as follows:
9. To the best of Tenant's actual knowledge, without any duty to investigate, Tenant has no
charge, lien, or claim of offset under the Lease or against rent or other charges due under the Lease.
10. Tenant has no right or option to purchase the Premises or any part or all of the building of
which they are a part,or to renew or extend the Lease,or to expand the Premises.
IL Tenant has not received notice of any assignment,hypothecation, mortgage or pledge of
Landlord's interest in the Lease or the rents or other amounts payable under the Lease.
12. The amount of any security or other deposit returnable to Tenant pursuant to the Lease is
set forth in the Lease.
13. Tenant has not assigned or entered into any subleases or licenses,whether oral or written,
of the Premises.
14. On Landlord's notice to Tenant of the closing of the District's acquisition of the
Premises, and on the condition that the District has, for the benefit of Tenant,assumed in writing the
obligations of the Landlord under the Lease,Tenant shall attom to and recognize the District as the
Landlord under the Lease and shall be bound by and perform all of the obligations imposed by the Lease
on Tenant,and the District shall succeed to all of the rights of the Landlord under the Lease. Tenant
acknowledges and agrees that the District shall not be liable for any act or omission of any person or party
who may have been a Landlord under the Lease before the District's acquisition of the Premises,and the
District shall not be subject to any defenses or offsets or claims Tenant may have against POST or any
prior Landlord.
15. Tenant makes the foregoing statements to the District with the understanding that the
District may take certain actions based on the District's material reliance on this Estoppel Certificate,
including but not limited to the District's purchase of the Premises.
Dated: 12011
Signed:
Print Name:
EXHIBIT C
Assignment of Escrow Impound Account
i
i
i
14
EXtUBrF C
ASSIGNMENT OF ESCROW IMPOUND ACCOUNT
This Assignment of Escrow Impound Account ("Assignment") is made and entered into by and
between Peninsula Open Space Trust, a California non-profit public benefit corporation
("Assignor"or "POST") and M idpeninsula Regional Open Space District, a California special
district ("Assignee" or"District").
RECITALS
A. Assignor and Assignee have entered into a Purchase Agreement ("Agreement") dated
March 9, 2011 in which Assignee has agreed to acquire certain real property located
within an unincorporated area of the County of Santa Clara, State of California, containing
approximately 54.12 acres, more or less, and commonly referred to as Santa Clara County
Assessor's Parcel Numbers 351-26-003 and 351-26-004 and more particularly described
in Exhibit A of the Agreement.
B. Assignor has previously entered into a Purchase and Sale Agreement ("Purchase
Agreement") between Assignor and Kermit Harmon Powell and Viet Su Thi La, Trustees
of the Harmon Powell Charitable Remainder Unitrust dated March 25, 2010, said
Purchase Agreement dated August 6, 2010 and amended by Amendment No. I dated
February 15, 2011.
C. Section 6 (c) of the Purchase Agreement, as amended, instructs Escrow Holder to
withhold the amount of Forty-Five Thousand Dollars ($45,000.00) from the Purchase
Price at Close of Escrow to reimburse Assignor, or Assignor's Successor, for the cost of
cleanup of a dumpsite located on said real property. Said sum is referred to as the
"Impound Account." Additionally, Section 6 (d) of the Purchase Agreement, as amended,
provides that Assignor, or Assignor's Successor, may invoice the Impound Account to
pay for any costs incurred by Assignor or Assignor's Successor to remove and dispose of
any of personal property and debris remaining on said real property following Close of
Escrow on Assignor's purchase of said real property.
D. Assignor desires to assign all its right, title, and interest in said escrow Impound Account
to Assignee.
E. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all right, title, and
interest in the Impound Account, and Assignee has agreed to assume all Assignor's rights
and obligations under the Impound Account.
For good and valuable consideration received, Assignor and Assignee agree as follows:
SECTION 1. ASSIGNMENT
Assignor assigns all right, title, and interest in and to the Impound Account including without
limitation Assignor's rights to all funds held in escrow pursuant to the Purchase Agreement to
Assignee effective upon the date of close of escrow for the purchase of the Property from
Assignor by Assignee, which shall be the effective date of this Assignment.
SECTION 2. SUCCESSORS
This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs,
executors, administrators, successors in interest, and assigns.
SECTION 3. SEVERABILITY
If any term or provision of this Assignment shall be held invalid or unenforceable, the remainder
of this Assignment shall not be affected.
SECTION 4. WAIVERS
No waiver or breach of any covenant or provision shall be deemed a waiver of any other covenant
or provision, and no waiver shall be valid unless in writing and executed by the waiving party.
SECTION 5. CONSTRUCTION
Headings are solely for the parties' convenience, and are not a part of this Assignment, and shall
not be used to interpret this Assignment. The singular form shall include plural and vice versa.
This Assignment shall not be construed as if it had been prepared by one of the parties, but
rather as if both parties have prepared it. Unless otherwise indicated, all references to sections
are to this Assignment.
SECTION 6. COUNTERPARTS
This Assignment may be executed in one or more counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and the same instrument.
This Assignment may not be amended or altered except by a written instrument executed by
Assignor and Assignee.
SECTION 7. FURTHER ASSURANCES
Whenever requested to do so by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, Assignments, confirmations, satisfactions, releases,powers of
attorney, instruments of further assurance, approvals, consents, and any further instruments or
documents that are necessary, expedient, or proper to complete any conveyances, transfers, or
assignments contemplated by this Assignment (including, without limitation, those documents
required by the Escrow Holder to ensure that Assignor no longer has any rights under the Escrow
2
Agreement). In addition, each party shall do any other acts and execute, acknowledge, and deliver
any requested documents in order to carry out the intent and purpose of this Assignment.
SECTION 8. THIRD-PARTY RIGHTS
Nothing in this Assignment, express or implied, is intended to confer any rights or remedies upon
any person, other than the Assignor and Assignee.
SECTION 9. GOVERNING LAW
This Assignment shall be governed and construed in accordance with California law.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
ASSIGNOR:
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit
corporation
By: Walter T. Moore
Its: Executive Vice President
Date:
ASSIGNEE:
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
By:
Stephen E. Abbors
Its: General Manager
Date:
CONSENT TO ASSIGNMENT OF ESCROW
IMPOUND ACCOUNT:
ESCROW HOLDER,North American Title
Company
By:
Its:
Date:
4
LICENSE AND MANAGEMENT AGREEMENT
POST (PO TRUST) PROPERTY
THIS LICENSE AND MANAGEMENT AGREEMENT ("License"), dated for
reference purposes only as of March 9, 2011, is by and between PENINSULA OPEN SPACE
TRUST, a California non-profit public benefit corporation ("POST"), and M IDPENINSULA
REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Section 3 of
Chapter 3 of Division 5 of the California Public Resources Code("District").
RECITALS
A. POST intends to purchase a certain parcel of real property from the Harmon Powell
Charitable Remainder Unitrust ("Property"), located adjacent to the District's Monte Bello Open
Space Preserve within the unincorporated area of the County of Santa Clara, State of California,
and more particularly described in Exhibit "A", attached hereto and incorporated herein by this
reference.
B. The Property is adjacent to District land. POST desires that District manage the
Property for the benefit of POST upon POST's purchase of the Property. In return for such
services, District will receive the benefit of the ability to use the Property for purposes
consistent with its mission.
C. POST is willing to license the Property to District, and District desires to license the
Property from POST, upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged, POST and District (collectively, the "Parties") hereby agree as
follows:
I. License. For and in consideration of the mutual covenants and agreements by the Parties
contained in this License, POST does hereby license to District, and District does hereby license
from POST, all of the Property upon POST's purchase of the Property.
2. License Term.
2.1 Initial License Term. POST shall license the Property to District for a term of
three(3) months commencing on the Effective Date hereof and ending three(3) months from the
Effective Date(the "License Term"). As used herein, the term"Effective Date"shall be the close
of escrow of POST's purchase of the Property. POST may terminate this License upon thirty
(30)days' prior written notice to District.
2.2 Extension of License Term. District may, at least 30 days prior to the expiration
date of the License Term, give POST written notice of its desire to extend the License Tenn. In
that event, District and POST agree to meet and negotiate in good faith in an effort to reach
mutual agreement upon the terms and conditions of such a License Term extension, including the
length of the extended License Term. The District's General M anager shall have the authority to
execute such a License extension for a term not to exceed three(3) additional months.
3. Consideration. POST and District agree that the District's performance of its covenants
and agreements contained herein (including, without limitation,those regarding indemnification,
maintenance, insurance and operation of the Property as protected open space) is fair and
reasonable consideration for POST's License of the Property to District.
4. POST's Representations, Warranties and Covenants. POST represents, warrants and
covenants as follows: ,
4.1. Organization. POST is duly organized and validly existing under the laws of the
State of California.
4.2. Requisite Action. All requisite corporate action has been taken by POST in
connection with POST's execution of this License, and has been taken or will be taken in
connection with the agreements, instruments or other documents to be executed by POST
pursuant to this License in order to lawfully consummate the transactions contemplated here.
4.3. Title. To POST's knowledge, POST owns fee simple title to the Property.
5. Use. During the term of this License and any extension thereof, District agrees to use the
Property for the purpose of open space preservation as part of the ecological, recreational and
scenic resources of the Monte Bello Open Space Preserve, and for any other related legal use that
is consistent with the purposes for which District was formed. Without limiting the generality of
the foregoing, District shall specifically have the right to manage the Property in conformity with
the Preliminary Use and Management Plan adopted by the District on March 9, 2011 in
connection with the District Board of Director's approval of the purchase of the Property y from
ro
POST. Notwithstanding anything herein to the contrary, District shall not, without POST's
prior written consent (which consent may not be unreasonably withheld by POST), make or
permit to be made any physical alterations or changes to the Property other than as may be
reasonably necessary for the purpose of preventing unauthorized access to the Property or to
comply with the terms of this License.
6. Management. During the term of this License and any extension thereof, District agrees
to manage the Property for the purpose of open space preservation as p ecological,art of the ec lo cal,
recreational and scenic resources of the Monte Bello Open Space Preserve. District shall be
solely responsible for management of the Property during the License Term. District may install
gates and appropriate signage and fencing as District determines is necessary and appropriate,
and may undertake such other steps as District deems necessary or appropriate for the proper
and safe management of the Property.
7. Patrol. District will patrol and manage the Property in a manner consistent with adjacent
2
District holdings to ensure that the Property is kept in a safe and sanitary condition and that
deleterious or incompatible uses of the Property are discouraged. Should any trespass or other
unauthorized use or activity occur upon the Property, District may exercise its authority to
correct these matters including, where necessary, enforcing District regulations and ordinances on
the Property. The Property shall be deemed to be property under the control and management
of District for purposes of Public Resource Code Section 5558, and shall be deemed to be
"District Lands" as defined in District Ordinance No. 04-1.
8. Real Property Taxes and Assessments. POST hereby promises to pay, prior to
delinquency, all Impositions. For the purpose of this Lease, "Impositions"means all taxes,
assessments, rates, charges, license fees, municipal liens, levies, excises or imposts, whether
general or special,or ordinary or extraordinary, of every name, nature and kind whatsoever, if
any, lawfully imposed by any governmental authority or entity (other than District),that may be
levied, assessed, charged or imposed or may be or become a lien or charge upon the Property or
any part thereof. Impositions also include, but are not limited to,the payment of installments on
any bonds or periodic charges imposed or required by any governmental authority or entity
(other than District). POST acknowledges that it may be entitled to certain exemptions from real
property taxes that otherwise would be imposed on the Property. POST will use its best efforts
and file all necessary documents and applications to obtain such tax exemption. If POST's
application for real property tax exemption is disapproved, and during the term of the Lease
POST pays real property taxes assessed against the Property, District shall reimburse POST for
such payment.
9. Legal Responsibility and Indemnification. During the License Term, District shall assume
full legal responsibility for the management, control and operation of the Property, the conditions
thereof and for all activities conducted by District thereon. Except as otherwise agreed herein,
District shall indemnify and hold POST harmless from, and defend POST and its officers,
directors, employees and agents against, any and all claims or liabilities for injury or damage to
any persons or property whatsoever occurring during the life of this License in, on, or about the
Property arising out of any condition of the Property or of any neglect, fault or omission by the
District with respect to District responsibilities as set out in this License. POST likewise agrees
to indemnify, defend and hold harmless District and its agents, officers, officials, and employees
against any and all claims or liabilities for injury or damage to persons or property arising out of
or resulting from the negligent acts or fault of POST, or its agents, employees, officers, or
servants, in connection with the Property. In the event of concurrent negligence, each party will
bear responsibility for its acts in proportion to its fault under the doctrine of comparative
negligence.
10. Insurance. During the License Term, the District shall maintain in full force and effect a
comprehensive general liability insurance policy applicable to the Property and the District's
activities under this License with limits of liability of at least Two Million Dollars ($2,000,000)
aggregate combined single limit for bodily injury and property damage liability, and One Million
Dollars ($1,000,000)combined single limit per occurrence. The District may satisfy the
obligations set out in this Section by participation in a government self-insurance risk pool
authorized under state law, including but not limited to the California Joint Powers Insurance
3
Authority ("UPIA").
11. Compliance with Laws. District shall comply with any and all federal, state, and local
laws, statutes, codes, ordinances, regulations, rules, orders, permits, licenses, approvals and
requirements applicable to the use and occupancy of the Property by District and District shall
not commit and shall not knowingly permit others to commit waste upon the Property.
12. Surrender of Property. Except as otherwise provided in this License, and subject to acts
of God, upon the expiration or earlier termination of the License Term, to the maximum extent
the same is reasonably within the control of District, District shall surrender the Property in
substantially the same condition as it was in upon the Effective Date, except for any changes to
such condition made or caused to be made by POST or any of POST's agents, lenders,
contractors, engineers, consultants, employees, subcontractors, licensees, invitees and
representatives.
13. Maintenance and Utilities. During the License Term, District shall not use the Property
for any purpose except as expressly provided in this License. District shall be solely responsible
for the cost of providing any utilities or other services necessary for District's use and occupancy
of the Property and District shall promptly pay and/or discharge any liens that may be recorded
against the Property or District's License interest therein resulting from any work performed or
materials ordered by or on behalf of District. During the License Term, District shall maintain and
repair the Property in such manner as reasonably necessary to preserve its existing character;
provided, however, that District shall not be obligated to make any material capital
improvements to the Property.
14. Assignment. District may not assign this License to any other party without the prior
written consent of POST, which consent shall not be unreasonably withheld or delayed with
respect to an assignment to a party that expressly assumes in writing all of District's obligations
and liabilities hereunder;provided, however, that under no circumstances will POST withhold its
consent to an assignment to another governmental entity or to a non-profit organization whose
principal purpose is environmental conservation and/or habitat preservation so long as such
entity or organization expressly assumes in writing all of District's obligations and liabilities
hereunder. In the event of an assignment, District shall remain liable for the payment of all fees
and the performance of all of District's obligations under this License, except if and to the extent
such obligations are released in writing by POST.
15. Miscellaneous Provisions.
15.1 Invalidity. If any term or provision of this License or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable,the remainder of this
License, or the application of such term or provision to persons whose circumstances other
than those as to which it is held invalid or unenforceable, shall not he affected.
15.2 Successors and Assigns. Subject to the limitations set forth above, the terms,
conditions and covenants of this License shall be binding upon and shall inure to the benefit
4
of each of the Parties, their heirs, personal representatives, successors or assigns, and shall
run with the land.
15.3 Writing. No waivers, amendments, alterations or modifications of this License, or
any agreements in connection with this License, shall be valid unless in writing and duly
executed by both POST and District or their respective successors-in-interest.
15.4 Construction. The captions appearing in this License are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or intent of such
paragraphs of this License or in any way affect this License. Any gender used shall be
deemed to refer to any other gender more grammatically applicable to the party to whom
such use of gender relates. The use of singular shall be deemed to include the plural and,
conversely,the plural shall be deemed to include the singular.
15.5 Notices. Any notice, demand, or request required hereunder shall be given in
writing at the addresses set forth below by any of the following means: (a)personal service;
(b) telephonic facsimile transmission; (c) nationally recognized overnight commercial mail
service;or(d) registered or certified, first class U.S. mail, return receipt requested.
If intended for District, addressed as follows:
M idpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Real Property Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If intended for POST, addressed as follows:
Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
Attn: Walter T. Moore, Executive Vice President
TEL: (650) 854-7696
FAX: (650) 854-7703
Such addresses may be changed by notice to the other party given in the same manner as
above provided. Any notice, demand or request sent pursuant to either clause(a)or(b),
above, shall be deemed received upon such personal service or upon dispatch by electronic
means (provided, however, that a dispatch by facsimile transmission that occurs on any day
other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until
9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent
pursuant to clause(c), above, shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause(d), above,
5
shall be deemed received forty-eight (48) hours following deposit in the U.S. mail.
15.6 Authority to Sign. The parties executing this License on behalf of POST and
District represent that they have authority and power to sign this License on behalf of POST
and District, respectively.
15.7 Conflict of Laws. This License shall be governed by and construed pursuant to
the laws of the State of California.
15.8 Attorneys' Fees. If either party should bring suit or seek arbitration under this
License, because of the breach of any provision of this License, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailingparty therein shall be paid by
the other party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action or arbitration and shall be
enforceable whether or not the action is prosecuted to judgment.
159 Waiver. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition herein contained nor shall any custom or
practice that may arise between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect,the right of POST or District to insist upon the
performance by District or POST in accordance with said terms.
15.10 Time. Time is of the essence with respect to the performance of every provision
of this License in which time of performance is a factor.
15.11 Prior Agreements. This License contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this License, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
15.12 Applicable Law; Severability As used herein the term "all Applicable Laws"
shall mean and refer to all state, federal and local ordinances, statutes and laws. Any
provision of this License that shall prove to be invalid, void or illegal in no way affects,
impairs or invalidates any other provisions hereof, and all other provisions shall remain in full
force and effect.
/I
//
//
II
//
6
i
POST AND DISTRICT, by their execution below, indicate their consent to the terms of
this License and Management Agreement.
For POS T: PENINS ULA OPEN S PACE TRUS T,
a California non-profit public benefit corporation
By:
Walter T. Moore, Executive Vice President
Date: /"C,-m
For DISTRICT: MWPENINSULA REGIONAL OPEN SPACE DISTRICT,
a Public District formed pursuant to Section 3 of Chapter 3 of
Division 5 of the California Public Resources Code
APPROVED AS TO FORM:
By: k i-,-
Susan M. Schectman, General Counsel
APPROVED AND ACCEPTED:
By:
Ste en E. Abbors, General Manager
Date:
ATTEST:
By: Michelle Radcliffe, District Clerk
Date:
7
EXH11317 A
LEGAL DES CREPTION
Real property in the unincorporated area of the County of SANTA CLARA, State of
CALIFORNIA, described as follows:
PARCEL ONE:
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP
ENTITLED, "RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX,
IN N.E. -/4SEC. 31, T. 7 S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY
CALIFORNIA", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MAY
16, 1969, IN BOOK 253 OF MAPS, AT PAGE 34, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE
CENTERLINE OF STEVENS CANYON ROAD, AS SHOWN ON THE MAP ABOVE
REFERRED TO; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL B,N. 0' 57'
27" E. 765.22 FEET TO AN ANGLE POINT ON THE GENERAL NORTHEASTERLY
BOUNDARY LINE OF SAID PARCEL B;THENCE ALONG A NORTHEASTERLY LINE
OF SAID PARCEL B,N. 79- 02' 30" W. 239.69 FEET TO A % INCH IRON PIPE; THENCE
LEAVING SAID NORTHEASTERLY BOUNDARY LINE,N.840 33' 40"W. 488.09 FEET
TO A POINT; THENCE N.64' 36' 40"W. 266.04 FEET TO A POINT;THENCE
NORTHWESTERLY IN A DIRECT LINE TO A POINT ON THE WESTERLY LINE OF
SAID PARCEL B, DISTANT THEREON,N.0- 38' 50"E. 609.03 FEET FROM THE
INTERSECTION THEREOF, WITH THE CENTERLINE OF SAID STEVENS CANYON
ROAD; THENCE ALONG SAID WESTERLY LINE OF SAID PARCEL B, S. 0' 38' 50"W.
609.03 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL B, ON THE
CENTERLINE OF SAID STEVENS CANYON ROAD;THENCE ALONG THE
CENTERLINE OF SAID STEVENS CANYON ROAD, THE FOLLOWING COURSES AND
DISTANCES: S. 630 41' 50"E. 82.12 FEET, S. 41' 43' 40" E. 117.99 FEET, S. 26' 56' 50" E.
116.69 FEET, S. 120 24' 30"E. 105.16 FEET, S. 440 47' 50" E. 58.31 FEET, S. 82- 24' 20"E.,
140.08 FEET, S.440 I I' 50"E. 158.63 FEET, S. 61- 15' 1 0"E. 104.91 FEET S.80- 24' 1 O"E.
189.14 FEET, S.620 42' 40"E. 47.56 FEET, S. 410 04' 20" E. 112.21 FEET, S.71- 47' 30"E.
253.27 FEET, S.83- 39' 00"E. 202.36 FEET AND S.590 58' 20"E. 134.44 FEET TO THE
POINT OF BEGINNING.
EXCEPTING THEREFROM FROM PARCEL ONE, ALL OIL, GAS, ASPHALTUM, AND
OTHER HYDROCARBONS, AND OTHER MINERALS, WHETHER SIMILAR TO THOSE
HEREIN SPECIFIED OR NOT, WITHIN OR UNDERLYING, OR THAT MAY BE
PRODUCED FROM, SAID LAND, TOGETHER WITH ANY AND ALL EASEMENTS,
RIGHTS OF WAY AND SERVITUDES IN, UNDER AND UPON SAID LAND
NECESSARY OR CONVENIENT (A) TO EXPLORE, TEST, OR SURVEY SAID LAND BY
8
GEOPHYSICAL OR OTHER METHODS, WHETHER SIMILAR TO THOSE SPECIFIED
OR
NOT AND WHETHER NOW KNOWN OR NOT, INCLUDING THE DRILLING OF
SHALLOW HOLES THEREON, FOR THE PURPOSE OF DETERMINING SUBSURFACE
GEOLOGICAL CONDITIONS UNDERLYING SAID LAND, (B) TO DRILL FOR, M INE
FOR, PRODUCE, EXTRACT AND TAKE ANY OF SAID MINERALS FROM SAID LAND
AND FROM ADJACENT PROPERTIES, (C) TO TREAT AND STORE ANY OF SAID
MINERALS ON SAID LAND, WHETHER PRODUCED FROM SAID LAND OR FROM
ADJACENT PROPERTIES, (D)TO CONSTRUCT, RECONSTRUCT, USE, MAINTAIN,
ERECT, REPAIR, REPLACE, RENEW, CHANGE THE SIZE AND LOCATION OF,
INCREASE THE NUM BER OF AND REMOVE IN, UNDER, ON AND FROM SAID
LAND ALL PIPE LINES, POWER LINES, TELEPHONE AND TELEGRAPH LINES,
ROADS, TANKS, MACHINERY, DERRICKS, PLANTS, BUILDING AND OTHER
STRUCTURES AND EQUIPMENT WHICH PARTIES MAY DESIRE IN CARRYING ON
ANY OF SAID OPERATIONS ON SAID LAND OR ON ADJACENT PROPERTIES, (E) TO
CONDUCT ANY AND ALL OTHER OPERATIONS WHICH PARTIES MAY DEEM
NECESSARY IN
THE EXERCISE OF THE RIGHTS HEREIN RESERVED, (F)TO TAKE AND USE ON
SAID LAND AND ON ADJACENT PROPERTIES WATER APPURTENANT THERETO
OR DEVELOPED BY PARTIES ON SAID LAND,NECESSARY FOR SUCH OPERATIONS;
TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS TO AND FROM SAID
LAND FOR ANY AND ALL OF SAID PURPOSES.
PARCEL TWO:
A PORTION OF PARCEL B, AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP
ENTITLED, "RECORD OF SURVEY OF THE LANDS OF K. HARLAN POWELL, ET UX,
IN N.E. '/4 SEC. 31, T. 7 S., R. 2 W., M. D. B. &M. IN THE SANTA CLARA COUNTY
CALIFORNIA", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MAY
16, 1969, IN BOOK 253 OF MAPS, AT PAGE 34, AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE
CENTERLINE OF STEVENS CANYON ROAD, AS SHOWN ON THE RECORD OF
SURVEY MAP, ABOVE REFERRED TO; THENCE ALONG THE EASTERLY LINE OF
SAID PARCEL B,N. 0° 57' 27" E. 765.22 FEET TO AN ANGLE POINT IN THE GENERAL
NORTHEASTERLY BOUNDARY LINE OF SAID PARCEL B;THENCE ALONG A
NORTHEASTERLY LINE OF SAID PARCEL B,N. 79° 02' 30" W. 239.69 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE
POINT OF BEGINNING AND LEAVING LAST SAID GENERAL NORTHEASTERLY
BOUNDARY LINE,N. 84° 33' 40" W. 488.09 FEET TO A POINT; THENCE N. 64' 36' 40"
W. 266.04 FEET TO A POINT; THENCE NORTHWESTERLY IN A DIRECT LINE TO A
POINT ON THE WESTERLY LINE OF SAID PARCEL B, DISTANT THEREON, N. 08 38'
9
1
50" E., 609.03 FEET FROM THE INTERSECTION THEREOF WITH THE CENTERLINE
OF SAID STEVENS CANYON ROAD; THENCE ALONG THE WESTERLY LINE OF
SAID PARCEL B,N. 0- 38' 50" E. 950.39 FEET TO THE NORTHWESTERLY CORNER
THEREOF; THENCE ALONG THE NORTHWESTERLY AND NORTHEASTERLY LINES
OF SAID PARCEL B, THE FIVE FOLLOWING COURSES AND DISTANCES:N. 73' 05'
20" E. 363.25 FEET, S. 40- 58' 50" E. 706.01 FEET, S. 33- 23' 10" E. 1014.22 FEET, S. 56- 44'
40" W. 300.00 FEET AND S. 330 15' 20" E. 205.65 FEET TO THE TRUE POINT OF
BEGINNING.
APN: 351-26-003 and 351-26-004
10