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HomeMy Public PortalAboutResolution - 89-17- 19890328 - Lands of Fletscher -SierrRESOLUTION NO. R9-17 RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT, AUTHORIZING OFFICER TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT TO DISTRICT, AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION (SIERRA AZUL OPEN SPACE PRESERVE, LANDS OF FLETSCHER) The Board of Directors of the Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of the Midpenin- sula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement between Robert A. Fletscher and the Midpeninsula Regional Open Space District, a copy of which is attached hereto and by reference made a part hereof, and authorizes the President or appropriate officers to execute the Agreement on behalf of the District. Section Two. The President of the Board of Directors or other appropriate officer is authorized to execute a Certifi- cate of Acceptance on behalf of the District. Section Three. The General Manager of the District shall cause to be given appropriate notice of acceptance to the seller. The General Manager further is authorized to execute any and all other documents in escrow necessary or appropriate to the closing of the transaction. Section Four. The General Manager of the District is authorized to expend up to $1,000 to cover the cost of title insurance, escrow fees, and other miscellaneous costs related to this transaction. Section Five. It is intended and hereby authorized that the District's General Fund will be reimbursed in the amount of $273,900 from the proceeds of the next long term District note issue. * * * * * * * * * * * RESOLUTION NO. 89-17 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on March 28 ,1989 at a regular meeting thereof, by the following vote: AYES: Katherine Duffy, Edward Shelley, Ernestine Henshaw, Robert McKibbin, Nonette Hanko, Gerry Andeen, and Richard Bishop. NOES: None. ABSTAIN: None. ABSENT: None. ATTEST: Secretary, Board of Directors APPROVED: Presideift, 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 date. 6,1444. Dis rict Clerk rvkait -.PURCHASE 'AGREEMENT This Agreement is made and entered into by and between ROBERT A. FLETSCHER, an unmarried man, hereinafter called "Seller" and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 . of Chapter 3 of- Division 5 of the California Public Resources Code, hereinafter called "District." WITNESSETH WHEREAS, Seller is the owner of certain real property totalling approx- imately 208 acres which has open space and recreational value, all located within an unincorporated area of the County of Santa Clara, and being more particularly described within the body of this Agreement; and WHEREAS, Seller entered into that certain "Exclusive Authorization and Right to Sell" agreement with Joe Beatty Real Estate on November 6, 1988, thereby offering approximately 167 acres of said real property for sale to the general public; and WHEREAS, District was formed by voter initiative to solicit and receive conveyances of real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic and open space purposes; and WHEREAS, District desires to purchase said 167 acre portion of said real property for open space preservation and as part of the ecological and aesthetic resources of the midpeninsula area; and WHEREAS, District desires to acquire and receive a right of first refusal to purchase the remaining approximately 40 acres of said real property together with an open space and conservation easement over the portion of the remaining 40 acres lying southerly of the south fork of Herbert Creek; and WHEREAS, Seller wishes to sell and convey approximately 167 acres of said real property to District, together with a right of first refusal to purchase the remaining approximately 40 acres of said real property and an open space and conservation easement over the portion of the remaining 40 acres of said real property lying southerly of the south fork of Herbert Creek, and District wishes to purchase said property and property rights upon the terms and conditions set forth herein. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED as follows: 1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property and interests therein, located within an unincorporated area of the County of Santa Clara, State of California, as follows: Purchase Agreement - Fletscher Page'2 (a) Fee title to all that certain real property, containing approximately 89.40 acres (90.15 acres less approximately .75 acres to be conveyed by Seller to Roger Bartels under a boundary line adjustment to be accomplished and paid for by Seller prior to Close of Escrow for District purchase of Seller's real property as described herein), and commonly referred to as Santa Clara County Assessor's Parcel Number 562-22-031 and being further described as Parcel "Two" in the legal description appended to Preliminary Title Report Number AL -152850, dated January 12,, 1989 from Continental Land Title Company. Said Preliminary Title Report being attached hereto as Exhibit "A" and incorporated herein by this reference. Said Parcel "Two" tobe 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. (b) Fee title to all that certain real property, containing approximately 77.74 acres and commonly referred to as all of Santa Clara County Assessor's Parcel Numbers 562-22-024 and 562-22-025 and being described as Parcel "One" and Parcel "Three" in said Preliminary Title Report (Exhibit "A"). Said Parcels "One" and "Three" 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. (c) Seller shall retain all that certain real property, containing approximately 40 acres and commonly referred to as Santa Clara County Assessor's Parcel Number 562-22-023 and being further described as Parcel "Four" in said Preliminary Title Report (Exhibit "A"), also reserving unto Seller any and all necessary rights for ingress, egress, maintenance and public utilities over a 20 -foot strip of land measured at right angles 10 feet on either side of the centerline of the existing roadway, or any necessary relocation thereof due to washout or land slides, as necessary to serve said Parcel "Four" over said Parcels "One", "Two." and "Three" as being conveyed to District hereinunder, it being understood by the parties hereto that said Parcel "Four" is a separate parcel according to the Santa Clara County Assessor's Office, and retention of such parcel by Seller as a part of this Agreement is a separate, legal parcel pursuant to provisions of Government Code Sections 66424 and 66428 (the Subdivision Map Act). Said retained property shall be subject to the following rights to be conveyed to District as a part of this purchase transaction: (i) A Right of First Refusal in the form of Exhibit "B" as attached hereto and incorporated herein by this reference, over all of said 40 acre Parcel "Four"; and (ii) An Open Space and Conservation Easement in the form of Exhibit "C", as attached hereto and incorporated herein by this reference, over approximately 20 acres of said Parcel "Four" lying southerly of the south fork of Herbert Creek. Purchase Agreement - Fletscher Page 3 All of said real property, appurtenances and property rights being acquired by District under this Agreement, hereinafter called the "Subject Property" or the "Property." 2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be Two Hundred Seventy -Three Thousand Nine Hundred and No/100 Dollars ($273,900.00), which shall be paid in cash at the Closing (as defined in Section 3 hereof). 3. Escrow. Promptly upon execution of this Agreement, in accord- ance with Section 16 herein, an escrow shall be opened at Continental Land Title Company, 4991 Cherry Avenue, Suite A, San Jose, CA 95118, phone number (408) 448-2500, or other title company acceptable to District and Seller (hereinafter "Escrow Holder") through which the purchase and sale of the Property shall be consummated. A fully executed copy of this Agreement shall be deposited with Escrow Holder to serve as escrow instructions to Escrow Holder; provided that the parties shall execute such additional supplementary or customary escrow instructions as Escrow Holder may reasonably require. This Agreement may be amended or supplemented by explicit additional escrow instructions signed by the parties, but the printed portion of such escrow instructions shall not supersede any inconsistent provisions contained herein. Escrow Holder is hereby appointed and instructed to deliver, pursuant to the terms of this Agreement, the documents and monies to be deposited into the escrow as herein -provided, with the following terms and conditions to apply to said escrow: (a) The time provided for in the escrow for the close thereof shall be on or before April 28, 1989, 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 and other recordable documents (as defined herein) to be recorded in the Office of the County Recorder of Santa Clara County. (b) Seller and District shall, during the escrow period, execute any and all documents and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale pursuant to the terms of this Agreement. (c) Seller shall deposit into the escrow on or before the Closing: (i) An executed and recordable Grant Deed. (ii) An executed and recordable Right of First Refusal in the form of said Exhibit "B". (iii) An executed and recordable Open Space and Conservation Easement in the form of said Exhibit "C". Purchase Agreement - Fletscher Page 4 Closing: (d) District shall deposit into the escrow, on or before the (i) The required Certificates of Acceptance duly executed by District and to be dated as of the Closing, for the Grant Deed, Right of First Refusal and Open Space and Conservation Easement. (ii) District's check payable to Escrow Holder in the amount of Two Hundred Seventy -Three Thousand Nine Hundred and No/100 Dollars ($273,900.00). (e) Seller shall pay for the escrow fees, the CLTA Standard Policy of Title Insurance, if required by District, and all recording costs and fees. All other costs or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between District and Seller in the manner customary in Santa Clara County. All current property taxes on the Property shall be handled in accordance with Section 4986 of the Revenue and Taxation Code of the State of California. (f) Seller shall cause Continental Land Title Company, or other title company acceptable to District and Seller, to be prepared and committed to deliver to District a CLTA standard coverage Policy of Title Insurance, dated as of the Closing, insuring District in the amount of $273,900.00 for the Property showing title to the Property vested in fee simple. in. District, subject only to: (i) current real property taxes; (ii) exceptions numbered 1 through 4, 8, 10, 11 and 12 as listed in said Preliminary Title Report (Exhibit "A"); and (iii) such additional title exceptions as may be acceptable to District. In the event District disapproves of any additional title exceptions and Seller is unable to remove any District disapproved exceptions before the time set forth for the Closing, District shall have the right either: (i) to terminate the escrow provided for herein (after giving written notice to Seller of such disapproved exceptions and affording Seller at least twenty (20) days to remove such exceptions) and then Escrow Holder and Seller shall, upon District's direction, return to the parties depositing the same, all monies and documents theretofore delivered to Escrow Holder or; (ii) to close the escrow and consummate the purchase of the Property. (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 original of the policy of the title insurance if required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section 3(e)), and to District or .Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder, shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. Purchase Agreement - Fletscher Page 5 4. Rights and Liabilities of'the Parties in the Event of Termination. In the event this Agreement is terminated and escrow is cancelled for any reason, all parties shall be excused from any further obligations hereunder, except as otherwise provided herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for payment of its title and escrow cancellation charges (subject to rights of subrogation against any party whose fault may have caused such termination of escrow), and each party expressly reserves any other rights and remedies which it may have against any other party by reason of a wrongful termination or failure to close escrow. 5. Leases or Occupancy of Premises. Seller warrants that there exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation . of any Grant Deed(s). 6. Relocation. It is understood and agreed by and between the parties hereto, that the payment stipulated in Section 2 hereinabove, includes, but is not limited to, the full and total relocation obligation District may have as a result of this transaction and includes payment for any and all claims Seller (or those claiming through Seller) may have for relocation assistance benefits and/or payments including, but not limited to: relocation advisory assistance, rental differential payments, purchase differential payments, interest differential payments, reasonable moving expenses, self -move expenses, loss of tangible personal property, search expenses, in -lieu payment of business and/or farm relocation assistance; all pursuant to California Government Code Title 1, Division 7, Chapter 17 (Section 7260 et seq.). 7. Premises in Good Order and Repair. Since the Property is improved and includes many structures (which Seller will be removing under the terms of this Agreement), trails, roads and appurtenant water systems and the like, Seller agrees to leave the entire premises in good order and repair and disclose all defects to District upon transfer of title. 8. Removal of Personal Property and Debris. It is understood and agreed that located on the Property being acquired by District are many items of real and personal property of Seller including: mobile home and appurtenances, water system, building materials, vehicles and equipment and miscellaneous items and debris, which are not being acquired by District. It is agreed that Seller shall remove any and all of these items from the Property on or before six (6) months following the Closing, and leave the property in a neat and clean condition. It is further 1 Purchase Agreement - Fletscher Page 6 agreed that from the amount payable'under Section 2 of this Agreement, Escrow Holder is authorized to withhold the sum of Twenty -Five Thousand and No/100 Dollars ($25,000.00) to cover District's cost of removing said iter.s in the event Seller fails to perform or to leave the premises in a clean and respectable condition. Escrow Holder shall release said $25,000.00 to Seller at any time Seller completes the clean-up and removal to District's satisfaction, which satisfaction shall be expressed in writing. If Seller does not complete such clean-up and removal, District shall give Seller written notice of any deficiency (to be corrected within ten [10] days). If Seller does not complete the removals and clean-up within the said ten (10) days, District shall have the same completed and deduct such expenses from the $25,000.00 so withheld. The remaining balance, ifany, shall be released by Escrow Holder to Seller upon written notice from District. 9. Grace Period and Holdover Tenancy. In the event Seller does not, or is not able to, vacate the Subject Property on or before six (6) months following Closing, District agrees to rent the property, and all improvements thereon, to Seller at the rate of Six Hundred and No/100 Dollars ($600.00) per month for up to an additional six (6) months utilizing the District's standard form of Residential Rental Agreement. Any holdover by Seller beyond the end of said additional six (6) month period shall continue on a month -to -month basis, provided, however, that District shall be free to request that Seller vacate the premises at any time after said additional six (6) month period, or to increase the rent as District may see fit. 10. Release of Lis Pendens. The parties hereto acknowledge that Seller has instituted a lawsuit (Santa Clara County Superior Court, Case No. 568417) by filing a notice of Lis Pendens on August 5, 1985 against certain real property owned by Richard Sciarrino and commonly known as Santa Clara County Assessor's Parcels Numbers 562-06-013 and 562-06-018, further described as Lot 4 and the Northwest % of Section 17, T. 9 S., R. 1 W., M.D.B.& M., and further, the parties agree that Seller excepts and reserves all rights with respect to said legal action, but Seller hereby agrees to pursue any such legal relief personally against Richard Sciarrino, and at District's written request to release the Lis Pendens against said real property in the event District enters into a contract with Richard Sciarrino to acquire said real property. 11. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller represents and warrants to District that as of the date this Agreement is fully executed and as of the date of Closing: 11.01 Authority. Seller has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. Purchase Agreement - Fletscher Page 7 11.02 Valid and Binding Agreements. This Agreement and all other documents delivered by Seller to District now or at the Closing have been or will be duly authorized and executed and delivered by Seller and are legal, valid and binding obligations of Seller sufficient to convey to District the Subject Property described therein, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws or corporate resolutions of Seller. 11.03 Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and Seller shall forever indemnify and defend District from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. 12. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or allow any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. It is agreed by the parties that in the event of a breach of this provision by Seller the amount of damage sustained by District would be impracticable or extremely difficult to ascertain, and in such event Seller shall pay to District as liquidated damages the sum of $5,000.00 per incident, which amount shall be withheld from escrow by District. 13. Hazardous Substances. "Hazardous substance" as used herein means and includes polychlorinated biphenyls (PCBs), benzene, asbestos or any other substance the placement, storage or removal of which is prohibited or regulated by federal, state or local law. (a) Seller warrants and represents that: (i) During Seller's ownership of the Property Seller has not placed or stored or allowed to be placed or stored any hazardous sub- stance on the Property. (ii) Seller has no knowledge of the presence on the Property of any hazardous substance, whenever or however placed or stored. Purchase Agreement - Fletscher Page 8 (b) Within 10 days after'the approval of this Agreement by District's Board of Directors in accordance with Section 16 herein, but prior to Closing, Seller shall remove or cause to be removed all contain- erized hazardous substances from the Property and conduct a cleanup of all other hazardous substances in a manner provided by law. Should Seller fail to do so, District may withhold $5,000.00 from escrow with which to complete such removal and/or cleanup, after which the balance of the withheld amount, if any, shall be paid by District to Seller. (c) If hazardous substances are subsequently found to exist on the Property, District may exercise its right to bring an action if necessary to recover cleanup costs from Seller or any other person or persons who are ultimately determined to have responsibility for the hazardous substances on the Property. However, under no circumstances shall Seller be held liable for costs other than those incurred in the cleanup of the hazardous substances resulting from Seller's ownership and operation of the Property. 14. Waiver of Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive 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, and. California Government Code Section 7267, and following. Seller hereby waives any and all existing and/or future rights Seller may have to the fair market value of said Property, appraisals, etc., as provided for by said Federal Law and any corresponding California Government Code Sections. 15. Miscellaneous Provisions. 15.01 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. 15.02 Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action or proceeding instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action or proceeding goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall be entitled to recover from the other party reasonable expenses and attorneys' fees. Purchase Agreement - Fletscher Page 9 15.03 Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may: (i) extend the time for the performance -of any of the obligations of the other party; (ii) waive any inaccuracies in representations and warranties made by the other party contained in this Agreement or in any documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the covenants contained in this Agreement or the perfor- mance of any obligations of the other party; or (iv) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. 15.04 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. 15.05 Notices. All notices, consents, waivers or demands of any kind which either party to this Agreement may be required or may desire to serve on the other party in connection with this Agreement shall be in writing and may be delivered by personal service or sent by telegraph or cable or sent by registered or certified mail, return receipt requested, with postage thereon fully prepaid. All such communications shall be addressed as follows: Seller: Robert A. Fletscher c/o Joe Beatty Real Estate 7172 Anjou Creek Circle San Jose, CA 95120 (408) 268-4062 District: Midpeninsula Regional Open Space District Old Mill Office Center Building C, Suite 135 201 San Antonio Circle Mountain View, CA 94040 Attn: Herbert Grench, General Manager (415) 949-5500 Copy To: Stanley R. Norton, Esq. 407 Sherman Avenue Palo Alto, CA 94306 (415) 324-1366 r ♦ .r. �� 1 r 1 ♦ Purchase Agreement - Fletscher Page 10 If sent by telegraph or cable, a conformed copy of such telegraphic 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 shown by the addressees'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. 15.06 Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions. 15.07 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. 15.08 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. 15.09 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, conversa- tions, negotiations, agreements or understandings relating to the same subject matter. 15.10 Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. Purchase Agreement - Fletscher Page 11 15.11 Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all representations and warranties by either party tothe other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. 15.12 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. 15.13 Further Documents and Acts. Each of the parties hereto agrees to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to consummate and carry into effect the transactions described and contemplated under this Agreement. 15.14 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. 15.15 Like Kind Exchange. District understands that Seller intends to effect a delayed "Starker" exchange, pursuant to Section 1031 of the Internal Revenue Code, of the Property for other property to be designated by Seller. District agrees to cooperate with Seller to effect such delayed "Starker" exchange by performing all acts necessary therefor, excluding, without limitation, taking title to the exchange property; provided, however, that District shall not be obligated to incur any additional expense or liability ion connection with the performance of its obligations under this Section 15.15. 15.16 Broker's Commission. District shall not be responsible for any real estate commission or other related costs or fees in this transaction. Seller agrees to and does hereby indemnify and hold District harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of Seller in connection with this transaction. 15.17 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. 15.18 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. Purchase Agreement - Fletscher Page 12 16. Acceptance. Provided that this Agreement is signed by Seller and returned to District on or before March 10, 1989 District shall have until midnight April 12, 1989 to accept and execute this Agreement and during said period this instrument shall constitute an irrevocable offer by Seller to sell and convey the Property to District for the consideration and under the terms and conditions herein set forth. As consideration for the tender of said offer, District has paid and Seller acknowledges receipt of the sum of Ten Dollars ($10.00). 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. Purchase Agreement - Fletscher Page 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be exezuted by their duly authorized officers to be effective as of the date of final execution by District in accordance with the terms hereof. MIDPENINSULA REGIONAL OPEN SPACE SELLER DISTRICT APPROVED AS TO FORM: Stanley Norm , District Counsel ACf- FOR RECOMMENDATION: L. Craig Britton, S Land Acquisition Manager APPROVED AND ACCEPTED: oard of Directors ATTEST: tutt Disr rict -Clerk Date: f1Cc cit 23, IV 9 CONTINENTAL LAND TITLE COMPANY A SUBSIDIARY OF LAWYERS TITLE INSURANCE CORPORATION 4991 CHERRY AVENUE, STE A. SAN JOSE, CA 95118 (408) 448-2500 o GARY BECK o 7172 ANJOU CREEK CIR. o SA`! JOSE, CA 95120 ATTN: GARY BECK ESCROW OFFICER TITLE OFFICER BUYERS NAME PROPERTY ADDRESS DATED AS OF JANUARY 12, 1989 AT 7:30 A.M. PHYLLIS QUIST RR9 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT 562-22-024, 562-22-031, 562-22-025, 562-22-023 YOUR NO. OUR NO. AL152850 IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, CONTINENTAL LAND TITLE COMPANY HEREBY REPORTS THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED AS OF THE DATE HEREOF, A POLICY OR POLICIES OF TITLE INSURANCE DESCRIBING THE LAND AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SET FORTH, INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION IN SCHEDULE B OR NOT EXCLUDED FROM COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AND STIPULATIONS OF SAID POLICY FORMS. THE PRINTED EXCEPTIONS AND EXCLUSIONS FROM THE COVERAGE OF SAID POLICY OR POLICIES ARE SET FORTH IN THE ATTACHED LIST. COPIES OF THE POLICY FORMS SHOULD BE READ. THEY ARE AVAILABLE FROM THE OFFICE WHICH ISSUED THIS r REPORT. THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FA.CILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF A POLICY OF TITLE INSURANCE, A BINDER OR COMMIT- MENT SHOULD BE REQUESTED. THE FORM OF POLICY OF TITLE INSURANCE CONTEMPLATED BY THIS REPORT IS: 1. CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY 2. AMERICAN LAND TITLE ASSOCIATION OWNERS POLICY 3. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY 4. AMERICAN LAND TITLE ASSOCIATION. LOAN POLICY TITLE OFFICER, RICAmloiN SCHEDULE A PAGE 2 ORDER NO. AL152850 THE ESTATE OR INTEREST. IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO -COVERED BY THIS REPORT IS: A FEE AS TO PARCELS ONE, TWO, THREE AND FOUR; AN EASEMENT AS TO PAR- CELS FIVE AND SIX. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: DONALD FLETSCHER, TRUSTEE AS TO PARCEL ONE; JERRY L. SHRUM, TRUSTEE AS TO PARCEL TWO; ROBERT A. FLETSCHER, AS TRUSTEE OF THE ELKE VLIESTRA TRUST, AS TO PARCELS THREE AND FOUR THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA, UNINCORPORATED AREA AND IS DESCRIBED AS FOLLOWS: SEE EXHIBIT "A" ATTACHED HERETO EXHIBIT Page 2.. Af. EXHIBIT "A" PAGE 3 ORDER NO. AL152850 PARCEL ONE: SOUTHWEST 1/4 OF THE NORTHWEST 1/4; SOUTHEAST 1/4 OF THE NORTHWEST 1/4; ALL IN SECTION 16, TOWNSHIP 9 SOUTH RANGE 1 EAST, M.D.B. & M. EXCEPTING THEREFROM ALL THE LAND THAT LIES NORTHEASTERLY OF THE CENTER LINE OF THE NORTH FORK OF HERBERT CREEK IN THE SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 16. PARCEL TWO: NORTHEAST 1/4 OF THE NORTHWEST 1/4; NORTHWEST 1/4 OF THE NORTHEAST 1/4; SOUTHWEST 1/4 OF THE NORTHEAST 1/4; NORTHWEST 1/4 OF THE SOUTHEAST 1/4; ALL IN SECTION 16, TOWNSHIP 9 SOUTH, RANGE 1 EAST, M.D.B. & M. EXCEPTING THEREFROM ALL THE LAND THAT LIES SOUTHERLY OF THE CEN- TERLINE OF HERBERT CREEK IN THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 16. ALSO EXCEPTING THEREFROM THE NORTHEAST 1/4 OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4; OF SAID SECTION 16. PARCEL THREE: SOUTHEAST 1/4 OF THE NORTHWEST 1/4 IN SECTION 16, TOWNSHIP 9 SOUTH, RANGE 1 EAST, M.D.B. & M. EXCEPTING THEREFROM ALL THE LAND THAT LIES SOUTHWESTERLY OF THE CEN- TERLINE OF THE NORTH FORK OF HERBERT CREEK IN THE SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF THE SAID SECTION 16. PARCEL FOUR: NORTHWEST 1/4 OF THE SOUTHWEST 1/4 IN SECTION 16, TOWNSHIP 9 SOUTH, RANGE 1 EAST, M.D.B. & M. WE NOTE BUT DO NOT INSURE THE FOLLOWING PARCELS: PARCEL FIVE: A RIGHT OF WAY FOR INGRESS AND EGRESS OF PEDESTRIANS AND VEHICLES APPURTENANT TO PARCEL 1, HEREINABOVE DESCRIBED, OVER A STRIP *OF LAND 16 FEET IN WIDTH, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: EXHIBIT Page m� , EXHIBIT "A" (CONTINUED) PAGE 4 ORDER NO. AL152850 BEGINNING AT A POINT WHICH BEARS N. 4° 16' E. 247.4 FEET FROM THE POINT OF INTERSECTION OF THE LINE DIVIDING SECTIONS 15 AND 16 IN TOWNSHIP 9 SOUTH, RANGE 1 EAST, WITH THE 1/4 SECTION LINE RUNNING EAST AND WEST THROUGH SAID SECTIONS 15 AND 16; RUNNING THENCE FROM SAID POINT OF BEGINNING, N. 72° 26' E. 19.32 FEET; N. 50° 02' E. 96.3 FEET; N. 75° 50' E. 75.65 FEET; N. 20° 07' E. 44.34 FEET; N. 43° 42' E. 138.65 FEET; N. 86° 06' E. 47.45 FEET; N. 61° 10' E. 52.62 FEET; N. 42° 52' E. 76.65 FEET; "N. 32° 51' E. 72.45 FEET; N. 33° 28' E. 47.74 FEET; N. 69° 06' E. 65.3 FEET TO A POINT KNOWN AS STATION 86 OF THE ALAMITOS ROAD, AND THE TERMINUS THEREOF., AND BEING SITUATE WITHIN THE WEST 1/2 OR THE NORTHWEST 1/4 OF SECTION 15, TOWNSHIP 9 SOUTH, RANGE 1 EAST, M.D.B. & M. PARCEL SIX: AN EASEMENT FOR INGRESS AND EGRESS OF PEDESTRIANS AND VEHICLES AND ALL UTILITIES 40 FEET WIDE, OVER, ACROSS, AND UNDER PARCEL OF LAND LYING SECTION 16, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN, THE CENTER LINE OF WHICH IS THE CENTER LINE OF THE EXISTING DIRT ROAD LYING NORTHERLY OF AND ADJACENT TO HERBERT CREEK. ARB #562-22-003.07 ARB #562-22-003.08, ARB #562-22-003.04 ARB #562-22-003.01 SCHEDULE B PAGE 5 ORDER NO. AL152850 AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEP- TIONS AND EXCLUSIONS IN THE POLICY FORM DESIGNATED ON THE FACE PAGE OF THIS REPORT WOULD BE AS FOLLOWS: A. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 1988 - 1989. 1ST INSTALLMENT: 2ND INSTALLMENT: LAND: IMPROVEMENTS: H/0 EXEMPTION: CODE AREA: ASSESSMENT NO.: AFFECTS PARCEL ONE $102.69, NOT YET MARKED PAID $102.69, OPEN $9,130.00 NONE SHOWN NONE SHOWN 72-007 562-22-024 B. A SALE TO THE STATE OF CALIFORNIA FOR GENERAL AND SPECIAL TAXES AND SUBSEQUENT DELINQUENCIES FOR THE FISCAL YEAR: ASSESSMENT NO.: TAXING AUTHORITY: AMOUNT TO PAY: AMOUNT TO PAY: AFFECTS PARCEL ONE 1982-83, 1984-85, 1985-86, 1987-88 562-22-024 COUNTY OF SANTA CLARA $2,385.29 PRIOR TO JANUARY 31, 1989 $2,409.31 PRIOR TO FEBRUARY 28, 1989 • C. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 1988 - 1989. 1ST INSTALLMENT: 2ND INSTALLMENT: LAND: IMPROVEMENTS: H/O EXEMPTION: CODE AREA: ASSESSMENT NO.: AFFECTS PARCEL TWO $534.51, NOT YET MARKED PAID $534.51, OPEN $87,941.00 NONE SHOWN NONE SHOWN 72-007 562-22-031 D. A SALE TO THE STATE OF CALIFORNIA FOR GENERAL AND SPECIAL TAXES AND SUBSEQUENT DELINQUENCIES FOR THE FISCAL YEAR: ASSESSMENT NO.: TAXING AUTHORITY: AMOUNT TO PAY: AMOUNT TO PAY: 1984-85, 1985-86, 1986-87, 1987-88 562-22-031 COUNTY OF SANTA CLARA $4,558.97 PRIOR TO JANUARY 31, 1989 $4,607.47 PRIOR TO FEBRUARY 28, 1989 AFFECTS PARCEL TWO SCHEDULE B CONTINUED E. PAGE 6 ORDER NO. AL152850 PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 1988 - 1989. 1ST INSTALLMENT: 2ND INSTALLMENT: LAND: IMPROVEMENTS: H/0 EXEMPTION: CODE AREA: ASSESSMENT NO. • AFFECTS PARCEL THREE $106.37, NOT YET MARKED PAID $106.37, OPEN $10,718.00 NONE SHOWN NONE SHOWN 72-007 562-22-025 F. A SALE TO THE STATE OF CALIFORNIA FOR SUBSEQUENT DELINQUENCIES FOR THE FISCAL YEAR: ASSESSMENT NO.: TAXING AUTHORITY: AMOUNT TO PAY: AMOUNT TO PAY: AFFECTS PARCEL THREE GENERAL AND SPECIAL TAXES 1981-82, 1982-83, 1984-85, 1985-86, 1987-88 562-22-025 COUNTY OF SANTA CLARA $719.82 PRIOR TO JANUARY 31, 1989 $727.13 PRIOR TO FEBRUARY 28, 1989 AND G. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 1988 - 1989. 1ST INSTALLMENT: 2ND INSTALLMENT: LAND: IMPROVEMENTS: H/0 EXEMPTION: CODE AREA: ASSESSMENT NO. • AFFECTS PARCEL FOUR $82.49, NOT YET MARKED PAID $82.49, OPEN $9,550.00 NONE SHOWN NONE SHOWN 72-007 562-22-023 H. A SALE TO THE STATE OF CALIFORNIA FOR GENERAL AND SPECIAL TAXES AND SUBSEQUENT DELINQUENCIES FOR THE FISCAL YEAR: ASSESSMENT NO.: TAXING AUTHORITY: AMOUNT TO PAY: AMOUNT TO PAY: AFFECTS PARCEL FOUR 1982-83, 1984-85, 1985-86, 1987-88 562-22-023 COUNTY OF SANTA CLARA $1,323.00 PRIOR TO JANUARY 31, 1989 $1,335.75 PRIOR TO FEBRUARY 28, 1989 I. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PRO- VISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA. Page SCHEDULE B CONTINUED ANY ADVERSE CLAIM BASED UPON 'THE ASSERTION THAT: PAGE 7 ORDER NO. AL152850 (A) "SOME PORTION OF SAID LAND HAS BEEN CREATED BY ARTIFICIAL MEANS, OR HAS ACCRETED TO SUCH PORTION SO CREATED." (B) "SOME PORTION OF SAID LAND HAS BEEN BROUGHT WITHIN THE BOUN- DARIES THEREOF BY AN AVULSIVE MOVEMENT OF HERBERT CREEK, OR HAS BEEN FORMED BY ACCRETION TO ANY SUCH PORTION." 2. "SUCH RIGHTS AND EASEMENTS FOR NAVIGATION AND FISHERY WHICH MAY EXIST OVER THAT PORTION OF SAID LAND LYING BENEATH THE WATERS OF HERBERT CREEK." AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: HAROLD A. HERBERT PURPOSE: INGRESS AND EGRESS RECORDED: APRIL 30, 1954, BOOK 2864, OFFICIAL RECORDS. PAGE 337 SERIES NO.: 970417 AFFECTS: A PORTION OF THE LAND DESCRIBED HEREIN AND OTHER L AND REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT PURPOSE: RIGHT OF WAY FOR INGRESS AND EGRESS RECORDED: MAY 23, 1979, BOOK E515, OFFICIAL RECORDS. PAGE 276 SERIES NO.: 6382758 AFFECTS: A PORTION OF THE LAND DESCRIBED HEREIN AND OTHER LAND REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE AMOUNT SHOWN BELOW, AND ANY OTHER OBLIGATIONS SECURED THEREBY: AMOUNT: $24,000.00 DATED: AUGUST 15, 1988 TRUSTOR: TRUSTEE: BENEFICIARY: RECORDED: SERIES NO.: LOAN ;l0.: TYPELOAN: ADDRESS: AFFECTS PARCEL FOUR ROBERT A. FLETSCHER, AS TRUSTEE OF THE ELKE VLIESTRA TRUST PEELLE FINANCIAL CORPORATION, A CALIFORNIA COR- PORATION MURISON'S FLOOR COVERING, INC. AUGUST 18, 1988, BOOK K645, OFFICIAL RECORDS PAGE 1339 9800880 NONE SHOWN NONE SHOWN 1261 LINCOLN AVENUE, SAN JOSE, CALIFORNIA 5125 EXHIBIT SCHEDULE B PAGE 8 CONTINUED ORDER NO. AL152850 TO AVOID DELAYS AT THE TIME OF CLOSING, PLEASE SUBMIT THE ORIGINAL NOTE, DEED OF TRUST AND THE (PROPERLY EXECUTED) REQUEST FOR RECON- VEYANCE, TO THIS" OFFICE, AT LEAST ONE WEEK PRIOR TO THE CLOSE OF ESCROW. 6. BY INFORMATION PROVIDED TO THIS COMPANY THERE IS AN OUTSTANDING PRO- MISSORY NOTE DATED AUGUST 21, 1986 IN THE AMOUNT OF $61,000.00 OWED TO DOUGLAS Z. SHEN. AFFECTS PARCELS ONE AND FOUR. 7. BY INFORMATION PROVIDED TO THIS COMPANY, THERE IS AN OUTSTANDING PRO- MISSORY NOTE DATED AUGUST 22, 1986 IN THE AMOUNT OF $66,000.00 OWED TO DOUGLAS Z. SHEN. AFFECTS PARCELS TWO AND THREE. 8. "THE PROPERTY DOES NOT APPEAR TO HAVE ANY ACCESS TO ANY PUBLIC HIGH- WAY OR STREET OR ROAD." 9. ANY VIOLATION OF THE SUBDIVISION MAP ACT. 10. MATTERS WHICH. MAY BE DISCLOSED BY AN INSPECTION OR BY A SURVEY OF SAID LAND THAT IS SATISFACTORY TO THIS COMPANY, OR BY INQUIRY OF THE PARTIES IN POSSESSION THEREOF. 11. ANY EASEMENTS NOT DISCLOSED BY THOSE PUBLIC RECORDS WHICH IMPART CONSTRUCTIVE NOTICE AND WHICH ARE NOT VISIBLE AND APPARENT FROM AN INSPECTION OF THE SURFACE OF SAID LAND. 12. WATER RIGHTS, CLAIMS OR TITLE TO WATER. 13. ANY INVALIDITY OR DEFECT IN THE TITLE OF THE VESTEES IN THE EVENT THAT THE TRUST REFERRED TO IN THE VESTING PORTION OF SCHEDULE A IS INVALID OR FAILS TO GRANT SUFFICIENT POWERS TO THE TRUSTEE(S) OR IN THE EVENT THERE IS A LACK OF COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE TRUST INSTRUMENT. 14. WE WILL REQUIRE A STATEMENT OF INFORMATION FROM THE PARTIES NAMED BELOW IN ORDER TO COMPLETE THIS REPORT, BASED ON THE EFFECT OF DOCU- MENTS, PROCEEDINGS, LIENS, DECREES, OR OTHER MATTERS WHICH DO NOT SPECIFICALLY DESCRIBE SAID LAND, BUT WHICH, IF ANY DO EXIST, MAY AFFECT THE TITLE OR IMPOSE LIENS OR ENCUMBRANCES THEREON. PARTIES: DONALD FLETSCHER, TRUSTEE, JERRY L. SHRUM, TRUSTEE, ROBERT A. FLETSCHER AS TRUSTEE OF THE ELKE VLIESTRA TRUST SCHEDULE B CONTINUED PAGE 9 ORDER NO. AL152850 NOTE NO. 1: THE ONLY CONVEYANCES AFFECTING SAID LAND, WHICH WERE RECORDED WITHIN TWO (2) YEARS OF THE DATE OF THIS REPORT, ARE AS FOLLOWS: GRANTOR: JERRY L. SHRUM, TRUSTEE GRANTEE: ROBERT A. FLETSCHER, AS TRUSTEE OF THE ELKE VLIESTRA TRUST RECORDED: APRIL 4, 1988, BOOK K491, OFFICIAL RECORDS PAGE 638 SERIES NO.: 9647961 NOTE NO. 2: THE ONLY CONVEYANCES AFFECTING SAID LAND, WHICH WERE RECORDED WITHIN TWO (2) YEARS OF THE DATE OF THIS REPORT, ARE AS FOLLOWS: GRANTOR: DONALD J. FLETSCHER, TRUSTEE GRANTEE: ROBERT A. FLETSCHER, AS TRUSTEE OF THE ELKE VLIESTRA TRUST RECORDED: APRIL 4, 1988, BOOK K491, OFFICIAL RECORDS PAGE 640 SERIES NO.: 9647962 NOTE NO. 3: THE CHARGE FOR A POLICY OF TITLE INSURANCE, WHEN ISSUED. THROUGH THIS TITLE ORDER, WILL BE BASED ON THE BASIC (NOT SHORT-TERM) TITLE INSURANCE RATE. NOTE `30. 4: GRANT DEEDS DESCRIBING SAID LAND WILL BE SUBJECT TO A $10.00 FEE F?R.SURVEY MONUMENT PRESERVATION FUND AT TIME OF RECORDING. NOTE NO. 5: ON OR AFTER JULY 1, 1985, THE COUNTY RECORDER'S OFFICE WILL CHARGE, IN ADDITION TO THE REGULAR RECORDING CHARGES, AN EXTRA $20.00 RECORDING FEE, UNLESS A DOCUMENT EVIDENCING A CHANGE OF OWNERSHIP IS ACCOM- PANIED BY A "PRELIMINARY CHANGE OF OWNERSHIP REPORT." IN LIEU OF SAID REPORT, SIGNED BY THE TRANSFEREE, THE RECORDER WILL NOT CHARGE AN EXTRA FEE IF THE DOCUMENT IS ACCOMPANIED BY AN AFFIDAVIT SIGNED BY THE TRANSFEREE THAT THE TRANSFEREE IS IN FACT NOT A RESIDENT. OF CALIFORNIA. OUR TITLE BILLING WILL BE ADJUSTED TO INCLUDE SUCH ADDITIONAL FEES WHEN APPLICABLE. NOTE NO. 6: PURSUANT TO THE TAX REFORM ACT OF 1986, AN ESCROW AGENT MUST REPORT TO THE INTERNAL REVENUE SERVICE THE GROSS SALES PROCEEDS (SALE PRI- CE) FOR EACH REAL ESTATE TRANSFER HANDLED. FAILURE TO PROVIDE A CORRECT TAX I.D. NUMBER (SOCIAL SECURITY NUMBER) WILL DELAY CLOSING, AND MAY REQUIRE 20% (OF SALES PRICE). FEDERAL INCOME TAX WITHHOLDING. NOTE NO. 7: IF TITLE IS TO BE INSURED IN THE TRUSTEE(S) OF A TRUST, (OR IF THEIR ACT IS TO BE INSURED), THIS COMPANY WILL REQUIRE A COPY OF THE TRUST INSTRUMENT CREATING SUCH TRUST, AND ALL AMENDMENTS THERETO, TOGETHER WITH A WRITTEN VERIFICATION BY ALL PRESENT TRUSTEES THAT THE COPY IS A TRUE AND CORRECT COPY OF THE TRUST, AS IT MAY HAVE BEEN AMENDED, THAT IT IS IN FULL FORCE AND EFFECT AND THAT IT HAS NOT BEEN REVOKED OR TERMINATED. D.T. 1/25/89 RR/SZ EXHIBIT J of as 0/rll;! 0P f;QUH itV A3St.S5o p'• $AIIrA CLA M COIIl/1Y, CAtIW UTA tAa '3 4! i! AC. 1014 7 ..ti . � ,' �a� 'W Mai �. Tara o� us �o ' � � / M/A t. •k\‘.. , iswia �� p FN /4, 1 .off' /7 / 11/ M/O '',.�Wd Op N/NS%/r _ SpACF N sp,0,4° RFC 36 ,z / a sr °/sr • - A tl '/`. �%'. J (1-.f......, jr J wx hfvvvly /!/'• ` O4 % 1&\ �L i-• . TWP. 9S. , R.I E. 1 1 •. ..�:lVII 04 5, 2 '2-2.1 mum.. ro iII I.f:,If' UUA%'f Jf TII •►•: 1i1 a 1. CALIFORNIA LANC TLE ASSOCIATION STANDARD CC RAGE POLICY -. 1988 EXCLUSIONS FROM COVERAGE its' folic-.+Ir-g ratters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' lees or exp rr;.ees which arise by reason of: (c) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) .restricting. regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land (iii) a separation in ownership or a change in the dimensions or area of the !and or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, en or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, ien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records ct Date of Policy. 2. 4,hts of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not exc' ding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser fcr value without knowledge 3. De'ects, liens, encumbrances, adverse claims or other matters: (c) whether or not recorded in the public records at Dote of Policy, but created, suffered, assumed or agreed to by the insured claimant; Co) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (a) attaching or created subsequent to Date of Policy; or 'e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. Urenforceabirrty of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or `oiture of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the lord is situated. 'r c.=3dity or unenforceabitity of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by T'e insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. EXCEPTIONS FROM COVERAGE - SCHEDULE B, PART! This oc c -r Gees not insure cgainst loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: PortI 1 axes or assessments which ore not shown as existing liens by the eccsos cf cry tcixing authority that levies taxes or assessments on :eci p e.rtj a by the public records. ?oceec:rgs by a public agency which may result in taxes or csses r-=nts. or notices of such proceedings, whether or not shown by the rec.cr s of such•agency or by the public records. 2. Any `oats. rights. interests or claims which are not shown by the ou ic. re:Gras but which could be ascertained by an inspection of the ;crc or wr sch may be csserted by persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. - 4. Discrepancies, conflicts in boundary lines, shortage in area, en- croachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. 2. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10-21-87) AND AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10-21-87) EXCLUSIONS FROM COVERAGE The fo,c:wrng :natters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage costs, at- torneys: fees of expenses which arise by reason of: 1. (c) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land;'(ii) the character, dimen- sions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. ii ghts of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. :e`ects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant r;�� "�` (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claim I1 te • or interest insured by this policy. 3. AMERICAN LAND TITLE'SOCIATION RESIDENTIAL TITLE IN ANCE POLICY (6-1-87) EXCLUSIONS r. odctr on to the Exceptions in Schedule 8, you are not insured against loss, costs, attorneys' fees. and expenses resulting from: 1. Go ernmentai police power. and the existence or violation of any law or government regulation. This includes building and zoning c'-cnonces and clso laws and regulations concerning: • land use • improvements on the land • land divxion • environmental protection Ins exclusion does not apply to violations or the enforcement of these matters which appear in the public records at Policy Date. ?r.s exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. 2. Tre -tht to tcke the land by condemning it, unless: • a notice of exercising the right appears in the public records • on the Policy Date • the taking happened prior to the Policy Date and is binding on you if you bought the land without knowing of the taking ;'asks • that are created, allowed, or agreed to by you • that ore known to you, but not to us, on the Policy Date - unless they appeared in the public records • that result in no loss to you • that first affect your title after the Policy Date - this does not limit the labor and material lien coverage in item 8 of Covered Title Risks 4 I wee to pay value for your title. a rock of a right • to any lend outside the area specifically described and referred to in Item 3 of Schedule A or • in streets. alleys. or waterways that touch your land Th s exclusion does not limit the access coverage in Item 5 of Covered Title Risks. 4. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10-21-87) AND AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10-21-87) EXCLUSIONS FROM COVERAGE --e totc--..,/ro mi.: tens are expressly excluded from the coverage of this policy and the Company will not pay loss or damage costs, attorneys' lees cc erne; ses which arise by reason of: !c; Any low, ordnance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating. prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or 'ccation of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions cr area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation cf these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcementthereof or o notice cf a defect, lien cr encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. -,a) Any governmentci police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice cf o defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records of Date of Policy. 2. =g� is of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not e' wing from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser .r ...clue without knowledga 3. '''`rots. liens, encumbrances, adverse claims or other matters: crested, suffered, assumed or agreed to by the insured claimant; ,b, not known to the Company, not recorded in the public records at Date of Policy. but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the dote the insured claimant became an insured under this policy; resulting in no loss or damage to the insured claimant; o) crtaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material or to the extent insurance is afforded herein as to assessments f;,r street improvements under construction or completed at Date of Policy); or ".e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. " ..:-erforceobility of the lien of the insured mortgage because of the inability or fcilure of the insured at Date of Policy, or the inability or fc ire of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the land s sty ited. 5. =r.r 5drty or unenforceability of the lien of the insured mortgage, or claim thereof. which arises out of the transaction evidenced by ire insured mortgage and is based upon usury or any consumer credit protection or truth in lending taw. 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the son of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subse- q er:t to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advances Ra EXHIBIT_ 4 'age .• WHEN RECORDED MAIL TO: Midpeninsula Regional Open Space District Old Mill Office Center Building C, Suite 135 201 San Antonio Circle Mountain View, CA 94040 ATTN: L. Craig Britton GRANT OF RIGHT OF FIRST REFUSAL RECITALS A. ROBERT A. FLETSCHER (hereinafter referred to as "Grantor") is the fee owner of certain real property (hereinafter called "Parcel One") situated in the County of Santa Clara, State of California, more particularly described in Exhibit "I" attached hereto and incor- porated herein by this reference. B. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a public district (referred to herein as "District") , is the fee owner of certain real property (hereinafter called "Parcel Two"), located adjacent to Parcel One, more particularly described in Exhibit "II" attached hereto and incorporated herein by this reference. C. It is the desire of Grantor to grant to District a right of first refusal as moreparticularly described herein. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, Grantor hereby agrees as follows: Grantor herebygrants to District a right of first refusal to purchase Parcel One. Before there can be consummation of any sale or transfer of all or any portion of Parcel One, Grantor shall first offer said property or part thereof to District in the following manner: 1. Upon receipt by Grantor of a bona fide offer by a third party to purchase said -property (which bona fides shall be subject to verification by District), Grantor shall deliver to District at its principal place of business, by mail orother appropriate means, a notice in writing, accompanied by a copy of such offer, which shall set forth the price, terms and conditions of such offer, and a statement of Grantor's intention to accept such offer. If the notice states that all cash will be received by Grantor, then the District shall have the prior right to purchase the property for cash in an equal amount to such offer. If the notice states that consideration other than cash is to be received, the District shall have the right to purchase said property for an aggregate purchase price equal to the fair market value of the property. In such EXHIBIT P Cig d Grant of Right of First Refusal - Fletscher Page 2 case, the notice shall state Grantor's estimate of such fair market value, which estimate shall be conclusively binding upon Grantor. However, District may dispute such fair market value, in which case the parties shall thereafter attempt in good faith to reach agreement. If no agreement is reached within ten (10) days, the parties shall attempt to agree upon the appointment of an independent appraiser or, failing that within an additional 10 day period, they shall each appoint an appraiser and the two appraisers shall, within an additional 10 days, select an independent appraiser to determine such fair market value. The determination of said independent appraiser shall be binding on both parties and the cost of the appraisal shall be borne equally between the parties. Within twenty-one (21) days after District receives Grantor's written notice and the determination of the price is completed (by appraisal if necessary), District shall have the prior right to elect to purchase said property at a price equal to the all cash offer of such third party or such fair market value, as applicable; provided, however, that the purchase must be consummated by the District as soon as possible, but in no event later than six (6) months after its election to exercise its right of first refusal (unless any further delays are caused by default or breach on the part of Grantor). Such right may be exercised by delivery in writing by mail or other appropriate means to Grantor of a notice of exercise of right to purchase. In the event that District so elects to purchase the property and the third party offer is not all cash, the District shall be required to pay cash at the closing thereof in an amount equalling or exceeding (at its option) the amount of cash proposed to be received at close from the proposed third party purchaser. The remainder of such purchase price shall be paid by delivery of a secured promissory note issued by the District, secured by the property, having a term not exceeding five (5) years or the term of the financing of the bonafide offer, whichever is greater in time (at District's option) and bearing interest at a rate equal to the then current rate of interest being given on similar tax-free notes, with accrued interest being paid quarterly and the entire principal amount at maturity. In the event of any dispute as to the appropriate interest rate, the parties agree to submit the matter to arbitration pursuant to the rules of the American Arbitration Association, with the arbitration to be conducted in Palo Alto, California. 2. .If District notifies Grantor that it does not wish to exercise the right of first refusal or if the right is not exercised within the twenty-one (21) day period, Grantor shall be free to sell Grantor's property to such purchaser, but only at the price and upon the terms and conditions stated in the aforementioned notice, providing that said offer results in a valid transfer or sale of said property within six (6) months of the District's failure to exercise its right.of first refusal. Any transfer or sale after the end of the six (6) month period or any material change in the terms of the sale from those set forth in said notice shall require that a new notice be delivered and shall give rise to the purchase rights of District andprocedures set forth in this Grant of Right of First Refusal. A waiver by District of one such opportunity EXHIBIT Page 2, of Grant of Right of First Refusal -- Fletscher Page 3 to purchase shall not be deemed a waiver of any future right to purchase, it being the intent and agreement of the parties that the right of first refusal hereby granted shall run with Parcel One in perpetuity. 3. In the event District exercises the right of first refusal as provided hereinabove, Grantor agrees to deliver the property free and vacant of all persons and personal property at the close of escrow, and Grantor, on behalf of himself, his heirs, successors and assigns, hereby specifically waives. and releases District from any and all claims, by whatever name known, including, but not limited to claims for relocation benefits and/or payments pursuant to "California Government Code Section 7260 and following; and Grantor agrees to hold District harmless and reimburse District for any and all liability, losses and expenses occasioned by reason of any and all of such claims. MISCELLANEOUS IT IS FURTHER AGREED, that all of the grants, covenants, conditions and restrictions contained above shall be binding upon Grantor, his successors and assigns, lessees and any and all other persons acquiring all or any portion of or interest in Parcel One that is subject to the provisions of this Grant of Right of First Refusal, whether by operation of law or in any other manner whatsoever. All of the grants, covenants, t conditions and restrictions contained in this instrument are for the benefit of: (i) District, its successors and assigns; and (ii) Parcel Two. All of the provisions hereof shall be covenants running with the land pursuant to applicable law, including, but not limited to, Section 1468 of the Civil Code of the State of California. It is expressly agreed that each grant, covenant, condition or restriction contained herein to do or to refrain from doing any act on Parcel One: a. Is a burden upon Parcel One and each portion thereof and interest therein that is subject to the provisions of this instrument, and b. Shall be binding upon each successive owner during its ownership of Parcel One or portion thereof or interest therein, derived in any manner. Nothing herein shall be deemed to create a right of action in any person or entity other than District, its successors and assigns. Robert A. Fle Date: EX - B T EXHIBIT I PAGE 1 of 1 To Grant of Right of First Refusal . LEGAL 'DESCRIPTION All That Certain Real Property located in the County of Santa Clara, State of California, being more particularly described as follows: Northwest % of the Southwest % in Section 16, Township 9 South, Range 1 East, M.D.B.& M. EXHIBIT Pane ®�� •.. EXHIBIT II PAGE 1 of 1 To Grant of Right of First Refusal LEGAL DESCRIPTION All That Certain Real Property located in the County of Santa Clara, State of California being more particularly described as follows: Parcel One: Southwest X of the Northwest 3/; Southeast % of the Northwest v4; all in Section 16, Township 9 South, Range 1 East, M.D.B.& M. Excepting therefrom all the land that lies Northeasterly of the centerline of the North fork of Herbert Creek in the Southeast % of the Northwest % of said Section 16. Parcel Two: Northeast 3' of the Northwest %; Northwest % of the Northeast X; Southwest 3 of the Northeast %; Northwest % of the Southeast %; all in Section 16, Township 9 South, Range 1 East., M.D.B.& M. Excepting therefrom all the land that lies Southerly of the centerline of Herbert Creek in the Northwest X of the Southeast Y of said Section 16. Also excepting therefrom the Northwest % of the Northeast 34 of the Northwest % of the Southeast X; of said Section 16. Parcel Three: Southeast X of the Northwest % in Section 16, Township 9 South, Range 1 East, M.D.B.& A. Excepting therefrom all the land that lies Southwesterly of the centerline of the North fork of Herbert Creek in the Southeast % of the Northwest 3 of the said Section 16. EXHIBIT P;Sc APN: 562-22-023 (portion) Recorded at the request of: Midpeninsula Regional Open Space District Old Mill Office Center Building C, Suite 135 201 San Antonio Circle Mountain View, CA 94040 Attn: L. Craig Britton GRANT OF OPEN SPACE AND CONSERVATION EASEMENT Recitations 1. The undersigned, ROBERT A. FLETSCHER, an unmarried man, herein- after called "Grantor" is owner of the fee simple estate in and to that certain real property hereinafter called the "Subject Property," situated in the County of Santa Clara, State of California, more particularly described in Exhibit "I" attached hereto and incorporated herein by this reference. 2. It is the desire of Grantor to grant to Midpeninsula Regional Open Space District, a public district, hereinafter called "District," an open space easement upon, over, across and under said Subject Property pursuant to Chapter 6.6 (commencing with Section 51070) of Part 1, Division 1, Title 5 of the Government Code. 3. Grantor and District recognize the scenic, aesthetic and special character of the region in which their respective properties are located, and have the common purpose of conserving the natural values of their respective properties by the conveyance of an open space easement on, over, and across the Subject Property which shall conserve and protect the animal, fish, bird, and plant population and prevent the use or development of the Subject Property for any purpose or in any manner which would conflict with the maintenance of the Subject Property in its natural, scenic, open and wooded condition. NOW THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, Grantor hereby grants to District an open space easement, upon, over and across the Subject Property in perpetuity on the following terms and conditions: 0(11 1 B Grant of Open Space and Conservation Easement - Fletscher Page 2 1. Reservation of Use by Grantor Grantor reserves the right to use the Subject Property in any manner consistent with the stated purposes, terms, conditions, restrictions and covenants of this easement and with existing zoning and other laws, rules and regulations of the State of California and the County of Santa Clara, or the agency having jurisdiction, as such laws, rules and regulations may hereafter from time to time be amended. Grantor further specifically reserves the right to do the following, such right in no way to be considered as a limitation of the general reservation of right described in the preceding paragraph: a. Build fences and gates of a rustic nature and erect signs as necessary to maintain security of the property; b. Construct and maintain private trails for hiking and horseback riding within the easement area, including both internal trails and connecting trails with adjacent District land, such later trails to be planned under mutual agreement with District regarding location and design; c. Construct and maintain a private "picnic area" together with road access thereto in conjunction with the residential use by Grantor on the adjacent real property of Grantor. d. Remove diseased and/or dead plants and trees and remove such undergrowth as may required for fire prevention, or public health and safety; e. Plant native species of plants indigenous to the area. 2. Limitations on Use by Grantor Grantor covenants and agrees for himself and his heirs, successors and assigns, except where contrary to the above described rights specifically retained, that Grantor shall not do any of the following: a. Erect, construct, place, or maintain or authorize the erection, construction, placement or maintenance.f any improvement, building or structure or any other thing whatsoever on the Subject Property other than such improvements, buildings, structures, or other things existing on the Subject Property at the time of the granting of this easement. b. Use or authorize the use of the Subject Property for any purpose except as open space. EXHIBIT I:- Pa92 ' ofammo • y • • Grant of Open Space and Conservation Easement - Fletscher Page 3 c. Use or authorize others to use the Subject Property or any portion thereof as a parking lot, storage area or dump site or otherwise deposit or authorize to be deposited on said Subject Property or any portion thereof temporarily or otherwise anything whatsoever which is not •indigenous or natural to said Subject Property. d. Cover or cause the Subject Property to be covered in whole or in part with any asphalt, stone, or concrete or other material which does not constitute natural cover for the land, or otherwise disturb the natural cover for the land. e. Fish, trap, hunt, capture, kill or destroy or authorize the fishing, trapping, hunting, capturing or destruction of fish or aquatic life on the Subject Property except for health or safety purposes. f. Hunt or trap or authorize the hunting or trapping of animal life on the Subject Property. Pursuant thereto, Grantor, his heirs, successors or assigns, shall not trap, kill, capture or destroy or authorize the trapping, killing, capturing or destruction of animal life on the Subject Property except under prior written permission of the County of Santa Clara for health and safety purposes only. g. Divide or subdivide the Subject Property or otherwise convey (other than under threat of condemnation) a portion of such property less than the whole to one or more parties or convey the Subject Property to two or more parties each of whom acquire title to less than the whole of the Subject Property. As used herein "party" means and includes any person, corporation, partnership, or other legal entity capable of holding title to real property. h. Cut, uproot or remove or authorize the cutting, uprooting or removal of timber or trees or other natural growth found or located on the Subject Property except as may be required for fire prevention, elimination of diseased growth, or construction and maintenance of foot trails or construction of the private picnic area (as provided in Paragraph 1 hereinabove), or maintenance of the existing roadway. i. Excavate or grade or authorize any excavation or grading to be done or place or authorize to be placed any said, soil, rock, gravel or material whatsoever on the Subject Property except for construction and maintenance of foot trails and maintenance of the existing roadway. EXHIB] Page w fd • r Y J Grant of Open Space and Conservation Easement- Fletscher Page 4 j. Operate or authorize'the operation on the Subject Property of any motor bike, trail bike, go cart, or other motor driven or motor powered vehicles except those motor vehicles reasonably necessary for the use of Grantor for the accomplishment of the purposes for which the Subject Property is used pursuant to the terms and conditions, restrictions and covenants set forth herein for the Subject Property or use by others who have a legal right to pass on the existing roadway. k. Place any advertising of any kind or nature on the Subject Property except for identification and directional purposes consistent with the use of the Subject Property as provided herein. 1. Plant vegetation on the Subject Property except for approved soil management,•erosion control, reforestation and landscape screening; all vegetation so planted shall be native California vegetation indigenous to the area. m. Excavate or change the topography of the Subject Property except as allowed and approved in accordance with the terms and conditions hereof. n. Use or allow the use of firearms or dangerous weapons on the Subject Property except for personal protection and safety. o. Use or authorize the use of fireworks or pyrotechnics on the Subject Property. p. Play or perform or allow the playing or performance of loud and disturbing amplified music. Build, light or maintain, or authorize others to build, light or maintain any open or outdoor fire, except in the private picnic area as provided hereinabove. r. Mine, extract, sever or remove, or permit or cause to be mined, extracted, severed or removed any natural resource found or located on, above, or under the Subject Property in a manner that would jeopardize or alter the natural scenic character of the property, or to otherwise engage in any activity on the Subject Property which will or may destroy the natural and scenic characteristics of the Subject Property. Pase Grant of Open Space and Conservation Easement - Fletscher Page 5 3. Right of District The District shall have the right to periodic inspection of the Subject Property with prior notification of Grantor who shall receive in a timely mannera copy, if any, of the report of such inspection by District. 4. Limitations on Use by District The District shall not utilize the Subject Property in any manner whatsoever, except as provided in Paragraph 3 and 6 of this Easement. 5. No Authorization for Public Trespass The granting of this Easement and its acceptance by District does not authorize and is not to be construed as authorizing the public or any member thereof to trespass upon or use all of any portion of the Subject Property or as granting to the public or any member thereof any tangible rights in or to the Subject Property or the right to go upon or sue or utilize the Subject Property in any manner whatsoever. It is understood that the purpose of this Easement is solely to restrict the use to which the Subject Property may be put so that the Subject Property will be kept.in its natural condition, subject to continued use by the Grantor for his purposes and uses. 6. Enforcement Grantor grants to District, the right, but not the obligation, to enter upon the Subject Property for the purpose of removing any building, structure, improvement or other thing whatsoever constructed, erected, placed, stored, deposited or maintained on the Subject Property contrary to the stated purposes of thisEasement or to any term, condition, restriction or covenant.of this Easement or to prevent or prohibit any activity which is contrary to the stated purposes, terms, conditions, restrictions or covenants of this Easement which will or may destroy the natural and scenic characteristics of the Subject Property, subject however to thirty (30) days written notice to Grantor by District before commencement of any action on the part of District under this paragraph. The stated purpose, terms, conditions, restrictions and covenants set forth herein and each and all of them may be specifically enforced or enjoined by proceedings in the Superior Court of the State of California. EXHIBIT Co' . Page Grant of Open Space and Conservation Easement - Fletscher Page 6 7. Mutual Indemnity Each party shall indemnify and hold harmless the other from any and all claims arising out of activities conducted by or under the auspices of the indemnifying party. 8. Enforceable Restriction This Easement and each_andevery term, condition, restriction and covenant contained herein constitutes an enforceable restriction pursuant to the provisions of Section 8 of Article XIII of the California Constitution and Chapter 6.6 (commencing with Section 51070) of Part 1, Division 1, Title 5 of the Government Code and shall bind Grantor and his heirs, successors and assigns and each and all of them and is intended to run with the land. MIDPENINSULA REGIONAL OPEN SPACE GRANTOR DISTRICT ACCEPTED AND APPROVED: President, Board of Directors ATTEST: District Clerk Date: -Robert Date: P c'1' ss ' LEGAL DESCRIPTION EXHIBIT I PAGE 1 of 1 To Grant of Open Space and Conservation Easement A11 That Certain Real Property located in the County of Santa Clara, State of California being more particularly described as follows: Northwest % of the Southwest X in Section 16, Township 9 South, Range 1 East, M.D.B.& M. Excepting therefrom all of the land that lies North of the centerline of the South fork of Herbert Creek. iB BIT 40. Page4P14..