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..