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Home My Public Portal About20030709 - Agendas Packet - Board of Directors (BOD) - 03-15 Regional Open .r ice MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Meeting 03-15 SPECIAL AND REGULAR MEETING BOARD OF DIRECTORS MIDPENINSULA REGIONAL OPEN SPACE DISTRICT 6:30 p.m. Wednesday,July 9,2003 330 Distel Circle Los Altos, California AGENDA* Please Note: 6:30 p.m. Closed Session Special Meeting Start Time 7:30 p.m. Regular Meeting Start Time 6:30 ROLL CALL SPECIAL MEETING OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT—CLOSED SESSION The Closed Session will begin at 6:30 p.m. At the conclusion of the Closed Session,the Board will adjourn the Special Meeting Closed Session to the Regular Meeting,and,at the conclusion of the Regular Meeting, the Board may reconvene the Special Meeting Closed Session. 1. Public Employee Performance Evaluation—Government Code Section 54957 Title of Employee Being Reviewed: A. General Manager 2. Conference with Legal Counsel—Anticipated Litigatio Significant Exposure to Litigation Pursuant to Government Code Section 54956.9(b)—one potential case 7:30* REGULAR MEETING OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT ORAL COMMUNICATIONS—Public PLEDGE OF ALLEGIANCE ADOPTION OF AGENDA—N.Hanko ADOPTION OF CONSENT CALENDAR—N.Hanko BOARD BUSINESS 7:45* 1 Adoption of a Salaried Employee Policy as Part of the District's Personnel Policies and Procedures; Adopt the Attached Salaried Employee Policies and Procedures—S.Thielfoldt 8:05* 2 Proposed Exchange of Interests in Real Property with Presentation Center and Proposed Addition to Bear Creek Redwoods Open Space Preserve(Santa Clara County APN 544-50-003,544-50-005, 544-50-006,and Santa Cruz County APN 091-05 1-02,091-051-03)and Approval of Associated Agreements- Determine that the Recommended Actions are Categorically Exempt from the 310 Distel Circle 9 Al Altos, CA 94022-1404 - Phone: 650-691-1200 Fax: 650-691-0485 - E-mail: mrosd@openspace.org - Web site: www.openspace.org ftn z I a=r Board of Directors:Pete Siemens,Mary C.Davey,Jed Cyr, Deane Little,Nonette Hanko, Larry Hassett, Kenneth C.Nitz - General Manager:L.Craig Britton Meeting 03-15 Page 2 California Environmental Quality Act As Set Out in this Report;Adopt the Attached Resolution Approving and Authorizing the Attached Agreement to Exchange Interests in Real Property, Approving and Authorizing the Attached Purchase Agreement for the Presentation Center Property, and Approving the Related Documents; Tentatively Adopt the Preliminary Use and Management Plan Recommendations Contained in this Report and Naming the Property as an Addition to the Bear Creek Redwoods Open Space Preserve; Indicate your Intention to Dedicate the 197.95-Acre Presentation Center Property Being Acquired In-Fee as Public Open Space—M.Williams *** 3 Authorization to Amend Annual Service Agreement with HiTech Construction Management and Design,Inc.to Provide Construction Management Services for Capital Improvement Projects in Fiscal Year 2003-2004;Authorize the General Manager to Amend the Annual Service Agreement with HiTech Construction Management and Design,Inc. of San Francisco to Add Construction Management Services for Capital Improvement Projects in Fiscal year 2003-2004 in the Amount of $30,900,for a Total Amount Not to Exceed$93,900—S. Sommer *** 4 Guadalupe River Watershed Natural Resource Damage Assessment and Regional Water Quality Control Board TMDL Process;Authorize the General Manager to Extend the Agreement for Legal Services with the Law Firm of Barg, Coffin,Lewis&Trapp and Authorize Payments Not to Exceed an Additional$25,000—S. Schectman *** 5 Midpeninsula Regional Open Space District v.Wozniak: (Encroachment at Bear Creek Redwoods Open Space Preserve)Authorize the General Manager to Approve Litigation Expenses Pursuant to the Retainer Agreement with the Law Firm of Miller, Starr&Regalia in an Additional Amount Not to Exceed$30,000—S. Schectman 8:20* INFORMATIONAL REPORTS—Brief reports or announcements concerning pertinent activities of District Directors and Staff. *** REvISED CLAIMS 8:40* ADJOURNMENT * Times are estimated and items may appear earlier or later than listed.Agenda is subject to change of order. ** TO ADDRESS THE BOARD: The Chair will invite public comment on agenda items at the time each item is considered by the Board of Directors. You may address the Board concerning other matters during Oral Communications. Each speaker will ordinarily be limited to three minutes. Alternately,you may comment to the Board by a written communication, which the Board appreciates. *** All items on the consent calendar may be approved without discussion by one motion. Board members, the General Manager, and members of the public may request that an item be removed from the Consent Calendar during consideration of the Consent Calendar. IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT,IF YOU NEED ASSISTANCE TO PARTICIPATE IN THIS MEETING,PLEASE CONTACT THE DISTRICT CLERK AT(650)691-1200. NOTIFICATION 48 HOURS PRIOR TO THE MEETING WILL ENABLE THE DISTRICT TO MAKE REASONABLE ARRANGEMENTS TO ENSURE ACCESSIBILITY TO THIS MEETING. Regional Open !'-, ice R-03-66 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Meeting No. 03-15 July 9, 2003 AGENDA ITEM I AGENDA ITEM Adoption of a Salaried Employee Policy as Part of the District's Personnel Policies and Procedures GENERAL MANAGER'S RECOMMENDAT Adopt the attached Salaried Employee Policies and Procedures. DISCUSSION The District has undertaken several key personnel projects as part of the Workplace Enhancement Plan. One of these was to address exempt/non-exempt employee status under the Fair Labor Standards Act by reviewing position classifications to insure they have been correctly categorized, and to clarify personnel rules regarding exempt employees. The position classification review was conducted and the Board adopted changes to two of the classifications at your January 29, 2003 Regular Meeting(see Report R-03-13). The second part of this process was to develop our Salaried Employee Policy,which would be added into the Personnel Policies and Procedure Manual. The purpose of the Salaried Employee Policies and Procedures is to clarify for salaried employees in one integrated policy document what"exempt" or"salaried" status means and what special rules apply to salaried employees. The policy also insures that the District is in compliance with the Fair Labor Standards Act and the regulations of the Department of Labor, which regulate the compensation of salaried employees. The policy was written in draft form and presented first to Management Team for input and clarification. Next, the policy was discussed at the Policy Review Committee, a committee of employees representing each of the District's departments(including field staff)made up of both salaried and hourly employees. The Human Resources Manager answered employee questions and received input from this Committee. This input was then incorporated, where appropriate, into the policy language. Finally, all of the salaried employees were given a draft of the policy for review and a meeting was held to answer questions and gather further input. Again, that valuable input was incorporated into the policy language and a final draft, as presented to the Board herewith, was distributed to all salaried employees. The General Manager recommends adoption of the attached"Salaried Employee Policies and Procedures." Prepared by: Sally Thielfoldt, Administration and Human Resources Manager Contact person: Same as above 330 Distel Circle * Los Altos, CA 94022-1404 * Phone: 650-691-1200 Fax: 650-691-0485 * E-mail: mrosd@openspace.org o Web site: www.openspace.org Board of Directors:Pete Siemens,Mary C. Davey,Jed Cyr, Deane Little, Nonette Hanko, Larry Hassett,Kenneth C. Nitz - General Manager: L.Craig Britton MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Policy No. BP-03-01 Date 07/09/03 Su ercedes n/a Amends n/a SALARIED EMPLOYEE POLICIES AND PROCEDURES SECTION 1—INTRODUCTORY STATEMENT Employees of the District are governed by the Fair Labor Standards Act("FLSA') and regulations issued by the Department of Labor Wage and Hour Division("DOL"). The FLSA was enacted in 1938 to regulate private employment. Congress delegated to the DOL the duty to interpret the FLSA and issue implementing regulations. In 1985,FLSA coverage was extended to public employers. In 1992, recognizing the different nature of public employment, the DOL issued special regulations for public sector employers. SECTION 2—PURPOSE STATEMENT The purpose of this Policy is: • To assure that salaried employee procedures are based upon fairness, reasonableness, uniformity and equity; and • To assure that the District's policies and procedures regarding salaried employees are in compliance with the FLSA and the DOL regulations; and • To set out the benefits and responsibilities of being a salaried employee; and • To clarify the District's policy that employees are compensated based upon principles of public accountability for the expenditure of public funds. SECTION 3—SALARIED EMPLOYEES DEFINED A salaried employee of the District is one who meets the criteria set out by the FLSA and the DOL, is paid on a salaried basis, and is therefore exempt from the FLSA overtime compensation requirements. SECTION 4—PUBLIC EMPLOYERS—ACCOUNTABILITY STATEMENT AND PROVISIONS DOL regulations for public employers provide for high standards of public accountability for the use of public funds. The District's policy of public accountability recognizes that the District has a responsibility under the public trust doctrine to use public funds properly, and to assure the public that their taxes are being utilized efficiently and effectively. By insuring that employees are paid for time actually worked and that accrued leave is used for absence from work as set out in this Policy, the District meets that responsibility. MijjeawsuLA REGIONAL OPEN SPACE DIs..,.CT SALARiiED EMPLOYEE POLICIES AND PROCEDURES 4.1 Core Hours and Work Schedules The General Manager shall establish core work hours in which all employees are expected to be on duty. Core work hours shall be Monday through Friday, 9:00 a.m. to 4:00 p.m. unless the General Manager sets other core hours. This assures a minimum number of hours for communication opportunities among staff, availability to the public during business hours, and promotes efficiency and effectiveness. The Department Manager, after notification and/ or review with the Management Team as appropriate,will determine each salaried employee's work schedule, which shall ordinarily include the core hours, and shall document that schedule in writing. The General Manager must approve any work schedule which does not cover the core hours. Work schedules for full-time salaried employees shall provide for 40 hours of work per week, unless altered by an approved flexible schedule such as 9/80 or an occasional adjustment as provided for in Section 5 of this Policy. The General Manager, Assistant General Manager, Department Manager or Supervisor may direct additional hours to be worked, and may approve a salaried employee's absence from his/her work schedule. The employee may actually work more than 40 hours per week. The Supervisor is responsible for monitoring employees' attendance, including the frequency of absences of two hours or less. Administrative guidelines regarding acceptable versus excessive absences shall be established to assure equity in adhering to the established work schedule. 4.2 Deductions from Paid Leave Time The District shall deduct from a salaried employee's accrued leave(vacation, sick, personal or administrative), for any time the salaried employee is absent for more than two hours from the employee's scheduled work day. In such case, the amount of hours deducted shall include the total hours absent, inclusive of the two hour minimum. If accrued leave has been exhausted, if the employee failed to request leave, if the employee was denied a leave when requested, or if unpaid leave is approved,the employee's pay shall be reduced accordingly. 4.3 Accrual of Paid Leave Time Salaried employees shall accrue Vacation, Sick and Personal Leave time in accordance with the District's Personnel Policies and Procedures Manual and will similarly receive paid Holidays. Salaried employees directed to work a full day on a District observed holiday shall receive a work schedule adjustment to replace the holiday within 30 days of the observed holiday worked. 4.4 Overtime Salaried employees shall not be eligibleP for overtime compensation. 4.5 Administrative Leave Accrual Leave, which i a benefit not provided to 1 shall accrue Administrative s Salaried employees s ap hourly employees. The Board of Directors shall establish the maximum amount of Administrative Leave granted to various classifications of salaried employees. Administrative Leave shall be accrued and used in accordance with the District's Personnel Page 2 of 4 MmPENINSULA REGIONAL OPEN SPACE DISTRICT SALARIED EMPLOYEE POLICIES AND PROCEDURES Policies and Procedures Manual. Each Department Manager shall receive the amount of p g Administrative Leave authorized by the Board. Each year, the General Manager shall determine the specific amount of Administrative Leave allocated to all other salaried employees, within the parameters established by Board policy. To assure fairness in allocation of Administrative Leave, the General Manager will review specific work projects/assignments of each salaried employee with the Department Managers and shall set an amount of Administrative Leave that is appropriate for the number of assignments which are anticipated to require work beyond the typical 40-hour work week. SECTION 5—WORK SCHEDULE ADJUSTMENTS 5.1 Occasional Adjustments to Work Schedules The General Manager, Assistant General Manager, or Department Manager may authorize, in advance, occasional single-event work schedule adjustments for salaried employees. Such adjustments could occur when the affected employee's work duties require him/her to work excessively late evenings, to work excessive numbers of hours in a given week, to work multiple weekend days, directed to work a full day on a District observed holiday, or other extenuating circumstances. The General Manager, in consultation with Department Managers, shall establish guidelines for these occasional adjustments so that such work schedule adjustments are administered as fairly and consistently as possible. 5.2 Flexible Work Schedules Salaried employees shall be eligible for flexible work schedules in accordance with the "Administrative Guidelines for Flexible Work Schedules for Office, Supervisory, and Management Employees," except that no overtime provisions will be applicable. SECTION 6—TIME CARD PROCEDURES Salaried employees shall not designate total hours worked on their time cards, but shall instead write in g the word"Salaried" on the line for"Regular Hours Worked." In the event the employee is absent from his/her scheduled workday for more than two hours, and an Occasional Adjustment to the work schedule under Section 5.1 has not been authorized, the employee shall designate the category of accrued leave the District shall deduct from his/her applicable accrued leave bank for each day in which such absence occurred. The selection of accrued leave hours shall be in accordance with provisions of the Personnel Policies regarding use of accrued leave. In the event the employee has no leave time available, and when time off has been approved, the employee shall indicate"Leave Without Pay". In such case, and in the circumstances set out in Section 4.2 of this Policy, the employee shall have his/her salary reduced by an amount equal to thenumber um ber of hours designated. The hourly pay rate used for any pay reductions made pursuant to this Policy shall be based upon the employee's annual salary and would equal the rate of pay the employee would receive if paid hourly. Page 3 of 4 i MIDPENiNsuLA REGIONAL OPEN SPACE DISTRICT SALARIED EMPLOYEE POLICIES AND PROCEDURES SECTION 7—DISCIPLINARY DEDUCTIONS Pursuant to DOL regulations, in the event a salaried employee were to receive a suspension without pay as the result of a disciplinary action, that suspension shall not be for a time increment of less than one work week, with the exception of discipline imposed for a major safety violation as defined by the DOL. In all other respects, the District's discipline and grievance procedures set out in its Personnel Policies and Procedures Manual shall apply to salaried employees. SECTION 8—JURY DUTY,WITNESS LEAVE,AND MILITARY LEAVE The District shall not deduct from any District salaried employee's salary or accrued leave bank for an absence from their work schedules when required to serve jury duty, to serve as a witness on behalf of the District, or when on temporary military leave for the period required by applicable state or federal law. The District shall be entitled to receive, from the employee, any jury duty fees, witness fees for the attendance of an employee at a legal or administrative proceeding for the District, or temporary military pay, as provided by State law. SECTION 9—TRAINING TIME If pursuant to the District's Personnel Policies and Procedures Manual a salaried employee is � P � authorized to attend a training for which the District has declined to compensate the employee and the employee is absent from his/her scheduled work hours in excess of two hours to attend the training, the employee shall use accrued paid leave or leave without pay for such absence pursuant to this Policy. SECTION 10—VOTING TIME In the event a salaried employee is absent from his/her scheduled work hours in excess of the two hours allotted for voting under the District's Personnel Policies, the employee shall use accrued paid leave or leave without pay for such absence pursuant to this Policy. SECTION 11—CONTROLLING POLICIES In the event there is a conflict between this Policy and any other District rules, regulations, policies, or practices, the specific provisions of this Policy shall prevail. Adopted by the Board of Directors July 9, 2003 Page 4 of 4 Regional Open '" ice R-03-67 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Meeting 03-15 July 9, 2003 AGENDA ITEM 2 AGENDA ITEM Proposed Exchange of Interests in Real Property with Presentation Center and the proposed addition to Bear Creek Redwoods Open Space Preserve(Santa Clara County APN 544-50-003, 544-50-005, 544-50-006 and Santa Cruz County APN 091- - ;091-051-03) and Approval of Associated Agreements GENERAL MANAGER'S RECOMMENDA� S'-�� 1. Determine that the recommended actions are categorically exempt from the California Environmental Quality Act as set out in this report. 2. Adopt the attached resolution approving and authorizing the attached Agreement to Exchange Interests in Real Property, approving and authorizing the attached Purchase Agreement for the Presentation Center Property, and approving the related documents. 3. Tentatively adopt the Preliminary Use and Management Plan recommendations contained in this report and naming the property as an addition to the Bear Creek Redwoods Open Space Preserve. 4. Indicate your intention to dedicate the 197.95-acre Presentation Center Property being acquired in-fee as public open space. DISCUSSION The Presentation Center owns a 265-acre property that is largely surrounded by the Bear Creek Redwoods Open Space Preserve. In 2000,prior to the District acquiring the upper portion of the Preserve from Peninsula Open Space Trust(POST ), the Presentation Center approache d District staff to discuss the possib ility of obtaining easement rights to an existing parking lot located on the Preserve and adjacent to their north boundary. When the District considered the n their r meeting of June 27 200 1 District staff noted i t e acquisition of the POST property at you g , presentation that issues pertaining to the use of the parking lot and boundary line would require further investigation (see Report 01-71). Over the past two years, the Presentation Center representatives and District staff have explored ways in which to resolve issues concerning access and parking. During this time, common goals and program objectives have been identified and discussions have led to the project outlined in this report that will add nearly 200-acres of open space to the Preserve, increase public open space access, and provide the Presentation Center with rights to the parking lot. Due to the property's close proximity to the Preserve and the Presentation Center's interest in working collaboratively with the District, the proposed project contained in this report provides for the expansion of the Preserve and easements that improve access and parking facilities for both the Presentation Center and District. 330 Distel Circle • Los Altos, CA 94022-1404 + Phone:650-691-1200 Fax:6 50-691-0485 - E-mail: mrosd@openspace.org • Web site:www.opeiispace.org OFAEEsr Hoard offlirectors:Pete Siemens,Mary C. Davey,Jed Cyr, Deane Little, Nonette Hanko, Larry Hassett,Kenneth C. Nitz - General Manager:L.Craig Britton R-03-67 Page 2 In anticipation of the parking and boundary line issues being resolved, the Presentation Center has submitted and received tentative approval from Santa Clara County for development of a new welcome center, dining facility and site restoration. The County has conditioned the project upon the applicant's ability to obtain rights for parking in an area owned by the District, but historically used by the Presentation Center. District staff has generally supported this application by giving the County assurances that staff is working with the Presentation Center to develop an exchange agreement that will benefit both parties. The Exchange Agreement and associated agreements being presented to you includes the following key elements. • A non-exclusive easement for patrol and maintenance to be granted to the District across remaining lands owned by the Presentation Center. • A non-exclusive public trail easement to be granted to the District across remaining lands owned by the Presentation Center. • A non-exclusive easement for parking to be granted to the Presentation Center on lands owned by District. • A non-exclusive parking access easement to be granted to the District for access through the Presentation Center to a permit parking lot, if developed on the Preserve in the future. • Acquisition by the District of 197.95-acres of open space owned by the Presentation Center. • An agreement for mutual use of the Presentation Center's parking lot and potential District permit parking lot. DESCRIPTION(see attached maps) The 197.95-acre portion of the Presentation Center property being considered for acquisition by the District, is largely surrounded by Bear Creek Redwoods Open Space Preserve and represents a pocket of private open space that includes dense forest and a scenic mountain top that is highly visible from the Lexington Reservoir Basin, including St. Joseph's Hill, El Sereno, and Sierra Azul Open Space Preserves. The Presentation Center(Center) operates a retreat and conference facility that is located approximately one-half way up Bear Creek Road between State Highway 17 and Summit Road. The portion of the Center property being proposed to be acquired by the District extends steeply upward from the Center along Collins Creek, crossing over Bear Creek and Summit Roads into Santa Cruz County. In addition the project includes proposed access, parking, patrol and public trail easements that are located on or adjacent to the 67-acre property being retained by the Center for their retreat and conference facility. Patrol Maintenance and Public Trail Easements Easements for patrol, maintenance and public trail purposes will be conveyed to the District across the remaining Center property. These easements will greatly enhance manageability and public access to a rather remote onion of the existing Preserve to the east of Collins Creek. p P g The patrol and maintenance easement provides District staff access along the Center's paved driveway entering from Bear Creek Road to the east side of the parking lot, then descending northeasterly to a sewer treatment facility and then in the southerly direction along an R-03-67 Page 3 unsurfaced road to the property boundary at Collins Creek where there is a culverted crossing into the Preserve. The purpose of the easement is to allow ingress and egress for patrol, maintenance and repair, and emergency access to the area of the existing Preserve to the east of Collins Creek and the proposed public trail easement(described below) on the Center's remaining property lying on the west side of Collins Creek. This access will greatly enhance the District's ability to manage the remote ridge that lies between Collins Creek and Aldercroft Creek and extends up towards Summit Road. An attractive trail extends along the top of the ridge climbing up through an abandoned vineyard and will someday connect to trails in the Summit Road area and recently acquired former Hunt property at the upper end of Brush Road. Until now, the only access to this area for patrol, maintenance and emergencies had been from the Preserve entrance adjacent to the former Alma College buildings and up through the Aldercroft Creek corridor where the road is highly susceptible to landslides and is often closed during the winter. The public trail easement provides for the development of a public trail that will connect existing trails in the abandoned vineyards on both sides of Collins Creek. Trail use will be limited to pedestrians. This will be an attractive direct link between the possible permit parking lot near Bear Creek Road and future trails leading to the upper portion of the Preserve near Summit Road. Approximately one-half of the new trail will need to be planned and constructed between the Center's northeasterly property boundary and the lower patrol and maintenance road descending the east-facing slope above the creek. The gentle to moderately steep slope is forested with little understory making trail construction relatively easy. The second half of the trail will follow the patrol and maintenance road and is particularly attractive as it descends through redwood groves to Collins Creek. Center Parking Lot Easement In exchange for the patrol, maintenance and public trail easement,the Center will acquire an easement over the existing parking lot located on District land. In the past, this parking lot has been used by the Center to augment their on-site parking that is located in several areas around the retreat and conference center. The Center plans to consolidate parking in the proposed parking lot easement as part of their plans to construct a new welcoming center and cafeteria. Improvement plans for the parking lot have been approved by the County of Santa Clara as part of Conditional Use Permit with the condition that the Center obtain permanent rights to the parking lot before construction can get underway. The parking lot easement provides the Center a non-exclusive right to use the parking lot for p g PP g activities associated with the retreat and conference center. The Conditional Use Permit specifies that the existing parking lot be regraded and resurfaced using decomposed granite. There will be no expansion of the parking lot and parking spaces will be better defined so as to accommodate 56 vehicles. Native landscaping and minimal lighting must be installed. District staff has reviewed and agreed with the proposed parking lot improvements, and will be consulted in the future if any changes or modifications are planned. The parking lot easement will terminate in the event the use of the Center property changes in the future. R-03-67 Page 4 District Parking Access Easement The District will acquire a parking access easement that will provide the opportunity to invite the public to drive through the Center on the main driveway to reach the Center parking lot and Preserve. The parking access easement is directly related to the possibility of the District developing a permit parking lot on the Preserve to the north of the Center parking lot. The desirability of developing a permit parking lot will be evaluated during the master planning process and, if determined to be feasible, will be developed prior to allowing public vehicular access to this part of the Preserve. This access will be discontinued if and when the District decides to develop a new Preserve entrance from Bear Creek Road. Property to be Acquired By District The 197.95-acre property being considered for acquisition lies to the southeast of the Center's remaining property and includes a significant portion of the ridge top situated between two areas of the existing Bear Creek Redwoods Open Space Preserve. Bear Creek Road, Summit Road and Skyline Boulevard either pass through or border the property, offering an unusual long distance of road frontage, making this property extremely visible to motorists and cyclists. These roads generally divide the property into three watersheds: Webb Creek and Collins Creek that flow to Lexington Reservoir and the third, Zayante Creek, flowing into San Lorenzo River on the west side of the Santa Cruz Mountains. These watersheds are densely forested and provide valuable habitat for a variety of plant and animals. From the intersection of Bear Creek Road and Summit Road where public parking may possibly be developed someday, trails radiate out through the old Christmas tree farm, extending into redwood and Douglas fir forest with connecting trails descending into the heart of the Preserve. Acquisition of the property will ensure protection of valuable scenic, recreational and wildlife habitats. The irregular-shaped property being acquired is bounded by the Preserve and remaining Center property to the north, Skyline Boulevard and Bear Creek Road to the west and southwest, and private property to the south and east. The property can be reached by Bear Creek Road, Summit Road and Skyline Boulevard. The intersection of Bear Creek Road and Summit Road is near the center of the property and from there provides access to both the east and west side of the property. Meilots Road, a private driveway, forms a segment of the northern boundary on the west side of Bear Creek Road. A short section of Zayante Road abuts the southeast corner of the Santa Cruz County parcel. The densely forested property ascends steeply from the Center's retreat and conference facility u and over Summit Road and is nears equally divided into three arts b Bear Creek Road and p Y q Y P Y Summit Road. The easterly one-third portion of the property encompasses the headwaters of Collins Creek, a deep and lushly vegetated creek corridor with large stands of Douglas fir and redwoods. The mature forest is in good condition and has not been logged since the turn of g gg century; a few first growth redwoods are located in a remote area. Near the top of the watershed, a discontinued Christmas tree farm lies along the north side of Summit Road. The southerly one-third of the property encompasses the headwaters of Zayante Creek that flows into the San Lorenzo watershed. This area is steep and densely wooded with scrub oak and chaparral on the upper slopes becoming mixed evergreen forest near the southern boundary. Zayante Creek, also a perennial creek,passes through the southwesterly corner of the property. R-03-67 Page 5 The westerly one-third portion of the property is very accessible with a network of trails that climb to the highest point on the property at an elevation 2,360 feet. Outside of the discontinued tree farm near the intersection of Bear Creek Road and Summit Road, vegetation is comprised largely of mixed evergreen forest with large stands of Douglas fir, madrone and bay laurel. The tree farm area is being overtaken by invasive plants such as bacharis and scotch broom. Like the Collins Creek area, the forest is in good condition. All three areas provide excellent wildlife habitat, particularly due to the abundance of water in Collins and Zayante Creeks and the contrasting vegetative edges found between the forest,tree farm and chapparal plant communities. Based on previous resource inventories conducted on the surrounding Preserve, a wide variety of animal species, including a number of special status species, are expected to be found on the property such as golden eagle, long-eared owl, mountain lion, California tiger salamander and western pond turtle. Improvements to the property include a number of interior roads, fences, water systems, Christmas tree farm area, house trailer and storage shed. An unsurfaced road originating on the north side of the intersection at Bear Creek Road and Summit road climbs northward through the tree farm where it splits with one branch leading up to the highest point on the property at an elevation of 2,360 feet, and the other branch descending down to Mellots Road. A second road enters the tree farm on the southeast corner of the intersection where it parallels Summit Road to the south and then climbs easterly and skirts the tree farm back to the point of entry. From the upper part of the tree farm, several roads extend north and east; one descends down the west slope above Collins Creek and connects to Bear Creek Road opposite Mellots Road, and another connects to the adjacent private parcel and Summit Road to the east. Two water tanks and water pipelines are located in the upper reach of Collins Creek. The water system belongs to the Center and use and maintenance is provided for a utility easement. A water pipeline is also located in the upper reach of Zayante Creek and serves residential development south of the property. The remnants of a 21-acre Christmas tree farm lie on both sides of the intersection of Bear Creek Road at the intersection of Summit Road. The southerly portion of the tree farm includes a vacant house trailer and storage shed. There are no other improvements on the property. Unauthorized entry in the upper portion of the property, mostly in and around the Christmas tree farm on the east side of Bear Creek and Summit Roads have created management problems. The vacant house trailer located in the center of the tree farm has been badly vandalized and appears to be used for illegal camping. Near the northern perimeter of the tree farm area, signs of off-road vehicle use, camping, and dumpsites are apparent. Entrances from Summit Road and the private property lying to the east will need to be vigilantly maintained to eliminate this activity. USE AND MANAGEMENT Planning Considerations The majority of the property being acquired(149 acres), is located within the unincorporated area of Santa Clara County and zoned HS (Hillside), requiring a 20-to 160-acre minimum lot size based upon a slope density formula. The remaining portion of the property(49 acres)is R-03-67 Page 6 within the unincorporated area of Santa Cruz County and zoned Timber Protection (TP) and Special Use-Mountain Residential-General Plan (SU) which encourages keeping large parcels intact to ensure good land use planning, and protection of open space and resource values. The property is subject to a Williamson Act Land Conservation Contract. The entire property may have the potential for as many as seven residential sites. Given the amount of frontage the property has along Bear Creek Road, Summit Road, and Skyline Boulevard, as well as existing interior roads, residential development would be easily feasible. The 49-acre Santa Cruz County area is outside the District's boundary. The District would pursue annexation of this parcel into the District's jurisdiction in the future. The property is rated in the District's Open Space Master Plan as having moderate to high composite open space values and is important in terms of potential recreation, wildlife habitat, watershed, and scenic hillside protection. The District's Regional Open Space Study indicates that there are desirable trail connections in the vicinity of the property, including a regional trail connecting the lower and upper portions of the Preserve. The District's Planning Department Work Program for 2003-2004 includes initiating a master- planning process for Bear Creek Redwoods Open Space Preserve that will begin with detailed studies of the natural and cultural resources. If acquired, this property would be included in the project area. The studies will be used in developing a plan for resource management and public use of the Preserve. Some of the key elements in the master plan will be long-range resource management, habitat restoration and enhancement, trail alignments and staging areas. Public participation will be an integral part of the planning process. The District and Center will be entering into a Reciprocal Easement and Use Agreement that provides for shared use of the Center parking lot and District permit parking area that may possibly be developed in the future. In general, the agreement provides that the District and Center assume responsibility for constructing, repairing and maintaining of their respective parking lots. The District agrees that if, through the master planning process, a permit parking lot is determined to be desirable in the future, the parking lot will be limited to 15 vehicles and located northeast of the Center parking lot. Access to this permit parking lot would be along the existing paved driveway and through the Center parking lot as provided for in the District Parking Access Easement. With advanced notification, the Center and District may use each other's parking lots for special events. The Reciprocal Easement and Use Agreement acknowledges the possibility that the District may want, in the future, to develop an alternate driveway entrance to provide a more direct access to a permit parking lot or other public facility the District may decide to develop on the Preserve north of the Center's parking lot. In doing so, the District and Center agree to work closely together in reconfiguring the driveway entrance in such a way as to preserve the character of the Center's existing entrance and minimize confusion that may result from developing a dual entrance. If the District were to determine the desirability of a reconfigured ri Agreement provides a one-year time frame for the District entrance, the Easement Exchange g p y and Center to complete surveys and mutually agree upon property boundaries. The District would then need to explore alternative designs with the Center and seek approvals from the R-03-67 Page 7 County Roads and Airports Department and other regulating agencies as deemed necessary. The project would most likely include realigning a portion of Bear Creek Road to improve sight lines. The Center has a water utility easement that is comprised of two water tanks and water lines in the upper reach of Collins Creek that will need to be taken into consideration when planning public access in this area. To minimize potential management problems, trails should be routed at an appropriate distance from the water tanks and the area signed to discourage trail users from straying into this area. Water lines are also located above a residential area in the upper reach of Zayante Creek. This area is less likely to have public trails due to its lack of access and connectivity to public lands or roads to the south of the property. Preliminary Use and Management Plan The Preliminary Use and Management Plan will take effect upon close of escrow and remain effective until a Master Plan for this property and surrounding Bear Creek Redwoods Open Space Preserve is completed. The property will be maintained in a natural condition and eventually opened for low intensity recreational use. Future land use decisions, including plans for public access, will be subject to public input and further environmental assessments to ensure land use decisions are consistent with ecological values. i Public Access: Closed to the public until the natural resources and trails can be further evaluated to determine if existing trails can be added to the Preserve's permit program; the trail easement through the Center's property will be closed to the public until the Master Plan is completed and the undeveloped segment of the trail can be constructed. Patrol: Regularly patrol the property including utilizing the patrol and maintenance easement to regularly patrol the lower segment of the trail easement on the west side of Collins Creek and the upper portion of the preserve to the east of Collins Creek. Roads: Maintain existing roads for patrol purposes; share maintenance responsibilities for the unsurfaced portion of the patrol and maintenance easement on the west side of Collins Creek. Fences and Gates: Install gates at proposed patrol roads originating from Mellots Road, Bear Creek Road(opposite Mellots Road),both areas of the Christmas tree farm, and road connecting to private property lying to the east of the tree farm. Cleanup: Remove the house trailer, storage shed, two abandoned vehicles and debris located in the upper tree farm; remove one abandoned vehicle south of Mellots Road; remove debris along west side of Summit Road. Signs: Install preserve boundary and area closed signs where appropriate. Dedication: Indicate your intention to dedicate the 197.95-acre property being acquired as public open space. Name: Name the property as an addition to the Bear Creek Redwoods Open Space Preserve R-03-67 Page 8 Site Safety Inspection: Preliminary inspection is complete and no hazards were found; comprehensive inspection to be complete before the close of escrow. CEQA Compliance Project Description The project consists of the acquisition of the 197.95-acre Presentation Center property as an addition to the Bear Creek Redwoods Open Space Preserve, and the concurrent adoption of a Preliminary Use and Management Plan for the property. In addition the project includes the District acquiring parking access,patrol, maintenance and public trail corridor easements through the Center property in exchange for the Center acquiring a parking lot easement over an existing parking lot located on District land. Ultimately, the property will be included in a Master Plan for the adjacent Bear Creek Redwoods Open Space Preserve. The land will be permanently preserved as open space and will be maintained in a natural condition. Although closed to the public during the planning process, the property will eventually be opened for low intensity recreational use. CEQA Determination The District concludes that this project will not have a significant effect on the environment. It is categorically exempt from CEQA(California Environmental Quality Act)under Sections 15301, 15316, 15317, 15325, 15301, and 15061 of the CEQA Guidelines as follows: Section 15301 exempts the operation, repair,maintenance,permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the agency's determination. Under the terms of the Center Parking Lot Easement, the Presentation Center will continue an existing use of a parking lot with no expansion of use. The County of Santa Clara has approved a Negative Declaration for minor alterations to the parking lot that include regrading and improvement to drainage, fences, landscaping and lighting. Eventually, a public trail will be developed within the trail easement corridor but this project has not yet been approved by the Board and will be further evaluated in the Preserve's master plan process that is currently underway. Section 15316 exempts the acquisition of land in order to create parks if the site is in a natural condition and the management plan proposes to keep the area in a natural condition. The use and management plan specifies that the land will not be developed and will remain in a natural condition. Section 15317 exempts the acceptance of fee interests in order to maintain the open space character of an area. The District will acquire fee interest and maintain the open space character of the area. No new development is proposed as part of this project. Section 15325 exempts transfers of ownership of interests in land in order to preserve open space. This acquisition will transfer fee ownership of the property to the District and ancillary R-03-67 Page 9 easements to ensure it will be preserved as public open space by incorporating it into the Bear Creek Redwoods Open Space Preserve. This acquisition qualifies under four sections of the CEQA Guidelines. The actions proposed in the Preliminary Use and Management Plan are also exempt under Section 15061, as there is no possibility the actions may have a significant effect on the environment. TERMS AND FUNDING The proposed Easement Exchange and Purchase Agreements between the Center and District involve an exchange of easements between the parties and the District's purchase of the 197.95- acre undeveloped portion of the Center's land as an addition to the Bear Creek Redwoods Open Space Preserve. In July 2000, representatives for the Center approached staff about acquiring or obtaining rights to an adjacent parking lot area of approximately.6 acres in size which had been historically used by the Center in conjunction with their retreat and conference center. At the time,the Upper Bear Creek property was owned by Peninsula Open Space Trust(POST) and managed by the District as part of the Preserve. Staff requested that the Center wait until the District had acquired the Upper Bear Creek property from POST before beginning negotiations to formalize the historic use of the parking lot. In July 2001, the District closed escrow on the Upper Bear Creek property. In August 2001, staff was again contacted by the representative of the Center seeking to obtain permanent rights to the parking lot. At this time, the Center had also begun a fund raising campaign to rebuild structures damaged during the 1989 Loma Prieta earthquake including a "green"building plan for these replacement structures. The Center also indicated an interest in selling the undeveloped portions of their property to the District as an addition to the Bear Creek Redwoods Open Space Preserve. The proposed purchase of the 197.95-acre undeveloped portion of the Center property in Santa Clara and Santa Cruz Counties is at a purchase price of$3,365,000 on an all cash basis. This equates to approximately$17,000 per acre. The purchase price is based upon a fair market appraisal with the land valued at $2,900,000 and a timber harvest value of$465,000. The overall fair market value conclusion is well supported by recent sales in this market area and by the District's original purchase of the adjacent Preserve in 1999 and 2001, as well as the recent addition of the former Hunt property to the Preserve. The Santa Clara County portion of the subject property consists of 148.96-acres with the possibility of obtaining a maximum of six residential building sites, and the Santa Cruz County portion of the subject property consists of 48.99-acres consisting of one residential building site. The District shall receive funds totaling $1,682,500 (or 50% of the purchase price)towards the purchase of the Center property as a matching grant from the San Francisco Bay Conservancy Program administered by the California Coastal Conservancy. As part of the grant funding agreement with the Coastal Conservancy, the District is required to record a deed restriction ensuring that the property protects regionally significant open space, habitat and public recreation opportunities. The attached resolution authorizes execution of a Declaration of Covenants, Conditions and Restrictions memorializing the terms and conditions of this grant. R-03-67 Page 10 As part of this transaction, the District will assume responsibility for the clean up and removal of sixty-foot house trailer,two abandoned vehicles and associated personal property and debris at the former Christmas tree farm, a third vehicle located above Mellots Road, and a small road side dump along Summit Road. The clean up and removal of these items are estimated to cost approximately$6,000. The Upper Bear Creek property including the parking lot area is not dedicated as public open space. However, this property is subject to recorded grant restrictions held by the two granting agencies which helped fund the acquisition of the Upper Bear Creek property: the California Coastal Conservancy and the State of California, Wildlife Conservation Board. These recorded restrictions require that the District obtain written approval from the granting agencies for any conveyance of District property rights from the Upper Bear Creek property. The District has received written approval from the Wild Life Conservation Board. The Coastal Conservancy has indicated conceptual approval of the easement exchange, and staff is awaiting formal written approval. The parking lot easement proposed for conveyance to the Center will be a non-exclusive easement providing for 56 parking spaces. The term of this easement is perpetual unless the Center property ceases to be used as a retreat and conference center. In exchange for the parking lot easement, staff negotiated a non-exclusive patrol and maintenance easement, a public trail corridor easement and a permit parking access easement. The patrol and maintenance easement will follow the existing paved road from Bear Creek Road traveling below the Center's treatment facility onto a dirt road which descends to Collins Creek the boundary between the Presentation Center property and the Preserve. The patrol easement is approximately 2/3 of mile in length and will provide access to remote areas of the existing Preserve. The trail easement will run below the patrol easement and above Collins Creek before connecting to the road alignment of the patrol easement near Collins Creek. The trail easement will be limited to pedestrian access and is approximately 1/3 mile in length. The useable areas of these two easements are estimated to cover approximately 1.2-acres. These two easements are important in terms of providing public and District vehicle access to an inaccessible part of the overall Preserve. In addition, the proposed Exchange Agreement provides for a parking access easement for public vehicular access from Bear Creek Road through the Center property to a potential permit parking lot which may be built in the vineyard area north of the Center parking lot easement. providing for the The parties will also enter into a Reciprocal Easement and Use Agreement p Pp g District and Presentation Center to share parking areas for scheduled events. This Reciprocal Agreement provides for a future cooperative agreement between the parties to consider a possible realignment and alternative District access road from Bear Creek Road in the vicinity of the Center's access driveway. This alternative road would access any future District parking lot and staging area in this part of the Preserve. This possibility will be considered as part of the master planning process for the Bear Creek Redwoods Open Space Preserve. During preparation of the survey and legal descriptions for the real property involved in this transaction, surveyors for both the District and the Center determined that there were discrepancies in the pre-existing legal descriptions and some discrepancy as to the actual location of Center and District property lines. The Easement Exchange Agreement provides a R-03-67 Page 11 mutually acceptable method to resolve this discrepancy. The parties' will, within one-year, meet to agree upon applicable legal descriptions and re-record corrected legal descriptions if necessary, or arbitrate the matter if the parties fail to agree. This solution will allow these transactions to be completed now, and will enable the District and the Center to resolve this issue without prejudice to either party's property rights. The Center and the District share compatible goals of protecting the natural environment surrounding the Center's facilities for the public,the Center and its guests. Staff recommends that you approve the Exchange Agreement and associated Easements, the Reciprocal Easements and Use Agreements and the Purchase Agreement to ensure the permanent protection of this natural extension to the Bear Creek Open Space Preserve. BUDGET CONSIDERATION New Land $ 15,000,000 Presentation Center Acquisition proposed on this agenda 3,365,000 Acquisition Budget Remaining $11,635,ON Controller M. Foster was consulted on these proposed acquisitions and has indicated that, considering cash flow and account balances, funds are available for this property purchase. PUBLIC NOTIFICATION Property owners of land located adjacent to or surrounding the subject property have been mailed written notices of this proposed acquisition Prepared by: Del Woods, Senior Acquisition Planner Michael C. Williams, Real Property Representative Contact Person: Michael C. Williams, Real Property Representative PROPOSED EASEMENT � �� EXCHANGE `S -Skye AND ADDITION TO Coun BEAR CREEK REDWOODS r Park OPEN SPACE PRESERVE .111C� t o .1 k t }) r Bead _ Creek a Reawcyodsr 1'-> O P posed Can er Parki C Presentation Center - ��'� 67Acres / ! rop Deed Patr l / Ess d Public �j V Easement r F _ g.; D - 1 l w° Proposed Acquisition: " fy .�.....'�. F Presentation Center Property - r" 198 Acres 7-1 wwr— ummt 5 �-- ) yam_- � t .� �� " __ "� _ �.�-• f �: A: Miles 0 0.25 0.5 PROPOSED EASEMENT EXCHANGE AND ADDITION TO BEAR CREEK REDWOODS OPEN SPACE PRESERVE r p CCe to ' Pa Presentation Center = ' 67 Acres f —� roposed atrol r d Pub c rail aseme t Proposed Acquisition: Presentation Center Property 198 Acres i i Feet 0 500 1,000 2,000 RESOLUTION NO. 03- RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING OFFICER TO EXECUTE AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY, AUTHORIZING OFFICER TO EXECUTE PURCHASE AGREEMENT, AUTHORIZING OFFICER TO EXECUTE EASEMENT DEEDS, AUTHORIZING OFFICER TO EXECUTE CERTIFICATES OF ACCEPTANCE OF GRANTS TO DISTRICT, AUTHORIZING OFFICER TO EXECUTE RECIPROCAL EASEMENT AND USE AGREEMENT, AUTHORIZING OFFICER TO EXECUTE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THESE TRANSACTIONS (BEAR CREEK REDWOODS OPEN SPACE PRESERVE—LANDS OF THE PRESENTATION CENTER) The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Agreement to Exchange Interests in Real Property and that certain Purchase Agreement between Presentation Center, Los Gatos, a California Corporation and Midpeninsula Regional Open Space District, copies of which are attached hereto and by reference made a part hereof, and authorizes the President or appropriate officers to execute these Agreements on behalf of the District, and further authorizes the President or other appropriate officer to execute the Reciprocal Easement and Use Agreement, a copy of which is attached hereto and by reference made a part hereof. Section Two. The President of the Board of Directors, or other appropriate officer, is authorized to execute Certificates of Acceptance for the Grant and Easement Deeds on behalf of the District. Section Three. The President of the Board of Directors or other appropriate officer is authorized to execute the Center Parking Lot Easement granting the real property interests being conveyed therein by the District. Section Four. The President of the Board of Directors or other appropriate officer is authorized to execute the Declaration of Covenants, Conditions and Restrictions memorializing the terms and conditions of the Grant Agreement with the California Coastal Conservancy which are providing matching grant funds for the District's purchase of the Presentation Center property. Section Five. The General Manager of the District shall cause to be given appropriate notice of acceptance to the seller. The General Manager and General Counsel are further authorized to approve any technical revisions to the attached Agreements and other transactional documents which do not involve any material change to any term of the Agreements or other transactional documents, which are necessary or appropriate to the closing or implementation of this transaction. Section Six. The General Manager of the District is authorized to expend up to $30,000 to cover the cost of title insurance, escrow fees, survey costs, demolition and clean up costs and other miscellaneous costs related to this transaction. Section Seven. The Board of Directors finds and determines that,pursuant to Section 5540.5 of the Public Resources Code of the Sate of California, this exchange of rights and obligations is of equal value and is necessary for park and open space purposes. Section Eight. It is intended, reasonably expected, and hereby authorized that the District's general fund will be reimbursed in the amount of$3,365,000 from the proceeds of the next long-term District note issue. This Section of this Resolution is adopted by the Board of Directors of Midpeninsula Regional Open Space District solely for purposes of establishing compliance with the requirements of Section 1.103-18 of the Treasury Regulations. The reimbursement of this payment expenditure is consistent with the District's budgetary and financial circumstances. There are no funds or sources of moneys of the District that have been, or are reasonably expected to be, reserved or allocated on a long-term basis, or otherwise set aside to pay the costs of this open space land acquisition project which are to be paid or reimbursed out of proceeds of indebtedness to be issued by the District. The Board of Directors hereby declares the District's official intent to use proceeds of indebtedness to reimburse itself for this open space land acquisition project expenditure. AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY This AGREEMENT TO EXCHANGE INTERESTS IN REAL PROPERTY(hereinafter, "Agreement") is made by and between the Midpeninsula Regional Open Space District, a California special district(hereinafter "District") and the PRESENTATION CENTER, LOS GATOS, a California Corporation(hereinafter "Presentation Center"). RECITALS WHEREAS, District owns certain real property located in the unincorporated area of the County of Santa Clara, commonly known as Assessor's Parcel Numbers 544-28-004, 544-29- 006, 544-30-002, 544-30-003, 544-33-003, 544-33-014, 544-31-002, 544-31-003, 544-31-004, 544-50-001, 544-50-004 and 544-56-004 and commonly known as the Bear Creek Open Space Preserve(herein, "District Land"); and WHEREAS, Presentation Center owns certain real property located adjacent to District Land in the unincorporated area of the County of Santa Clara and the County of Santa Cruz, commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005, 544-31-006, 544-50-003, 544-50-005 and 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03 (herein, "Presentation Center Land"); and WHEREAS, Presentation Center desires to obtain from District a non-exclusive parking lot easement over a portion of District Land in conjunction with the Presentation Center's Improved Property located on a portion of Santa Clara County Assessor's Parcel Numbers 544- 31-005 and 544-31-006; and WHEREAS District desires to obtain from Presentation Center a non-exclusive access easement to a proposed District permit parking lot located upon District land and non-exclusive patrol and maintenance, and public trail easements across a portion of Santa Clara County Assessor's Parcel Numbers 544-31-005 and 544-31-006 to access, patrol, maintain, repair, and manage the adjacent District Land; and WHEREAS, Presentation Center and District have agreed to enter into a cooperative "Reciprocal Easement and Use Agreement" for the use of the Presentation Center's parking lot P Sr p g easement, the District's access easement, and for the potential development of future alternative access to a separate District parking lot located on a portion of District Land, Santa Clara County Assessor's Parcel Numbers 544-31-002, as more particularly described in this Agreement; and WHEREAS, District desires to purchase from Presentation Center certain real property 1 consistingof the undeveloped portion of the Presentation Center Land common] known as p Y Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005, 544-50-006 and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03. WHEREAS, Presentation Center and District desire to exchange and transfer certain real property rights as set forth in this Agreement; and WHEREAS, District has determined that said exchange of interests in real property is of equal or greater value and that the long term preservation of open space at Bear Creek Redwoods Open Space Preserve would be greatly enhanced and secured by such exchange; and WHEREAS, said exchange has been determined to be in accordance with the District's enabling legislation set out at Section 5500 et seq. of the Public Resources Code of the State of California. NOW THEREFORE, for good and valuable consideration,the receipt and adequacy of P q Y which all acknowledged, it is mutually agreed and understood as follows: 1. EXCHANGE OF EASEMENT AGREEMENTS A. Center Parking;Lot Easement. District hereby grants to Presentation Center a non-exclusive easement for parking lot purposes over a portion of District Land commonly known as a portion of Santa Clara Assessor's Parcel Numbers 544-31-002 in the form set forth in Exhibit A, attached hereto and incorporated by this reference. B. Patrol and Maintenance and Public Trail Corridor Easements. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress for patrol, emergency access, maintenance and repair of adjoining and surrounding District Lands from Bear Creek Road through the Presentation Center Land(the "Patrol and Maintenance Easement"). In addition, Presentation Center hereby grants to District a non-exclusive easement for public pedestrian trail use and for patrol and maintenance purposes (the Public Trail Corridor Easement"). The District Patrol and Maintenance and Public Trail Corridor Easements shall be in the form set forth in Exhibit B attached hereto and incorporated herein by this reference. C. District Parking Access Easement. Presentation Center hereby grants to District a non-exclusive easement for ingress and egress through the Presentation Center Land to District Land, in the form set out in Exhibit C attached hereto and incorporated herein by this reference. 2 2. COOPERATIVE PARKING AGREEMENT. Presentation Center and District agree to enter into a"Reciprocal Easement and Use Agreement"("REA")in the form of Exhibit D attached hereto and incorporated by this reference. The REA provides for, among other things, use of the Center Parking Lot Easement by District for District special events scheduled with Presentation Center approval and the use of the District's Permit Parking Lot by Presentation Center for special events with District approval. 3. PURCHASE AGREEMENT. In further consideration for the District granting to Presentation Center the Center Parking Lot Easement, Presentation Center hereby grants to District the exclusive right to purchase the undeveloped portion of the Presentation Center property containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 544-50-005 and 544-50-006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 091-051-03. The Purchase Agreement shall be in the form as set forth in Exhibit E attached hereto and incorporated by this reference. 4. ESCROW. A. No escrow will be opened for the consummation of the exchange of easements conveyed herein; however, Closing shall occur on or before August 8, 2003,unless extended by the parties. The term "Closing"means the date any Easement Agreement is recorded in the Office of the County Recorder of Santa Clara County. The Easements to be conveyed under this Agreement may be recorded serially, i.e., closings do not have to be concurrent to be valid, provided that at the Final Closing, all of the Easements to be conveyed under this Agreement have been recorded. Presentation Center shall be responsible for the proper recordation of the Center Parking Lot Easement and for any fees, costs or title insurance, if any. District shall be responsible for the proper recordation of the Patrol and Maintenance and Public Trail Corridor Easements and the District Parking Access Easement. B. District shall deliver to Presentation Center a fully executed and recordable copy of the Center Parking Lot Easement("Exhibit A") within ten (10) days of approval of this Agreement by District's Board of Directors. C. Presentation Center shall deliver to District a fully executed and recordable copy of the Patrol and Maintenance and Public Trail Corridor Easements (Exhibit "B") within 10 days of approval of this Agreement by Districts Board of Directors. D. Presentation Center shall deliver to District a fully executed and recordable copy of the District Parking Access Easement(Exhibit"C") within 10 days of approval of this Agreement by District's Board of Directors. 3 E. Presentation Center shall deliver to District executed copies of the Purchase Agreement(Exhibit"E") concurrent with the date of Presentation Center's execution of this Agreement. 5. CONDITION PRECEDENT. As a condition precedent of the District's obligation to grant the easements, and complete the transactions contemplated by this agreement, prior to August 8, 2003 the District must obtain prior written approval from the California Coastal Conservancy and the State of California Wildlife Conservation Board to grant the Center Parking Lot Easement to Presentation Center. Absent such approval, this Agreement shall be terminated and of no force and effect. 6. BOUNDARY ISSUE. A. Presentation Center and District acknowledge that there currently exists a disagreement between the parties concerning whether there are discrepancies in the legal descriptions of the Presentation Center Land and/or the District Land at or near where the northerly boundary of the Presentation Center Land meets the southerly boundary of the District land,the area over which the existing driveway from Bear Creek Road lies and a portion of the Center Parking Lot Easement, and whether there are discrepancies in the parties' respective surveys of the above-described lands. This disagreement is hereafter referred to as "the Boundary Issue". B. Presentation Center and District agree that within one year of the approval of this Agreement by the District's Board of Directors, the parties will commence negotiations in good faith to resolve the Boundary Issue. C. If within one (1) year from the commencement of such negotiations, the parties reach a mutually acceptable resolution of the, Boundary Issue the parties agree to promptly take all reasonable and necessary steps to amend the legal descriptions of the Easements as necessary, to reflect the agreed upon resolution of the Boundary Issue and to re- record � P rY with am 1 descriptions. parties further agree to take such record the Easements ended legal descr ptio s. The g other steps as necessary to prepare and record mutually agreeable surveyed boundary lines, and a record of survey if required. D. If, within one(1)year from the commencement of the negotiations, the parties are not able to reach a mutually acceptable resolution of the Boundary Issue, the parties agree that the Boundary Issue shall be decided solely and exclusively by binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will 4 be chosen from JAMS-Endis ute's panel of retired judges. Ju dgment ent upon on the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. E. Notwithstanding anything to the contrary in any of the transactional documents referred to in this agreement, including but not limited to the Easements and the Purchase Agreement, each party will bear its own costs of resolving the Boundary Issue pursuant to this Section, including but not limited to attorney's fees, and costs of survey. The parties shall share equally the cost of the arbitrator's fee. The prevailing party shall not recover attorney's fees or other costs. F. The parties agree that, nothing in this Section 6 shall be considered to affect, and the parties expressly reserve, all factual legal and equitable contention with respect to the Dispute. G. Notwithstanding anything to the contrary in any of the transactional documents referred to in this Agreement, including the Easements and Purchase Agreement, it is the parties' agreement and intent that neither the granting nor acceptance of any Easement described in this Agreement by either party shall be considered in any arbitration or legal proceeding to be an admission or agreement by either party as to the nature or status of any party's rights in or title to either the underlying District Land or the underlying Presentation Center Land, as such rights or title existed prior to the recordation date of any Easement Deed i each h Easements described in this Agreement described herein. Its s desire to ant the PAY �' l�' without prejudice to the granting party's ability in any such proceeding to assert any rights that party had or may have prior to said recordation date. 7. REPRESENTATIONS AND WARRANTIES. For the purpose of consummating this exchange of interests in real property in accordance herewith, Presentation Center and District, collectively referred to as the"parties", make the following representations and warranties, each of which is material, are being relied upon by the parties, and shall survive the recording of the easements being exchanged and conveyed herein. A. Authori1y. The Parties have the full right,power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. 5 I B. Valid and Binding Agreements. This Agreement and all other documents delivered by the Parties have been or will be duly authorized and executed and delivered by the Parties are legal, valid and binding obligations of the parties to complete this exchange and conveyance of real property. C. Good Title. Except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908 and the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters described in Section 6 herein, the parties have and at each and every Closing under this Agreement shall have good, marketable and indefeasible fee simple title to the real property interests being conveyed hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and the Parties shall forever indemnify and defend the other party from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. 8. PAYMENT OF FEES. All processing, legal, engineering, surveying, recording, and other fees incurred by either party pursuant to this Agreement, if any, shall be paid by Presentation Center for the Center Parking Lot Easement, and by District relating to the District Patrol and Maintenance, and Public Trail Corridor and District Parking Access Easements (collectively"Easements"). 9. TIMING. Within ten (10) days of approval of this Agreement by District's Board of Directors, the parties hereto shall exchange fully executed and acknowledged Easement Deeds in conformity with this Agreement conveying the easement interests to the respective parties as set forth in Section 1 and to take all other steps and execute all other documents necessary to complete this transaction. Within thirty (30) days after delivery of the respective deeds, both parties agree to record such deeds to provide for constructive notice thereof, at their own expense. The District shall execute the required Certificates of Acceptance of the Easement Deeds conveyed to it by Presentation Center. The Presentation Center shall deliver fully executed copies of the Purchase Agreement (Exhibit "E") concurrent with the date of Presentation Center's execution of this Agreement. 10. AS-IS"CONVEYANCE. Both parties are acquiring the respective real property interests on an"As-Is"basis, without warranties, express or implied, regarding the physical condition of the property, except as specifically set forth in the Purchase Agreement,this Agreement, and the Easements. Both parties shall rely on their own inspections of the respective property interests. 6 11. INDEMNITY AND RELEASE OF LIABILITY A. With regard to the Center Parking Lot Easement, Presentation Center shall fully release, indemnify, hold harmless and defend District, as set out in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit A. B. With regard to the Patrol and Maintenance and Public Trail Corridor Easements, District shall fully release, indemnify, hold harmless and defend Presentation Center, as set out in Section 7 of the District Patrol and Maintenance and Public Trail Corridor Easements, attached hereto as Exhibit B. C. With regard to the District Parking Access Easement, District shall indemnify Presentation Center as set out in Section 6 thereof, attached hereto as Exhibit C. 12. INSURANCE. Presentation Center and District, at each party's sole cost and expense, shall maintain in full force and effect comprehensive general liability insurance covering bodily and personal injury and property damage arising out of their respective activities in or on their respective Easements granted hereunder. The terms and conditions of required insurance shall be as set out in the Center Parking Lot Easement and the District Parking Access Easement and the Patrol and Maintenance and Public Trail Corridor Easements. 13. MISCELLANEOUS PROVISIONS. D. Choice of Law. The internal laws of the State of California, regardless of any choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. E. Amendment. The parties hereto may by mutual written agreement amend this Agreement in an respect. 1�' Y P F. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. G. Notice. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such 7 communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission by telex,telecopy, telegraph or cable or other similar electronic medium and addressed as indicated as follows: Presentation Center: Presentation Center 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Sister Patricia Marie Mulpeters TEL: (408) 354-2346 FAX: (408) 354-5226 cc: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 j San Francisco, CA 94105 TEL: (415) 356-4600 FAX: (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager TEL: (650) 691-1200 FAX: (650) 691-0485 If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or cabled notice shall promptly be sent by mail (in the manner provided above)to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third(3rd)business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a different mailing address or a different person to which such notices or demands are thereafter to be addressed or delivered. Nothing contained in this Agreement shall excuse either party from giving oral notice to the other when prompt notification is appropriate, but any oral notice given shall not satisfy the requirements provided in this Section. H. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions which will achieve, to the extent 8 possible, the economic, business and other purposes of the void or unenforceable provisions. I. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed as an original, and when executed, separately or together, shall constitute a single original instrument, effective in the same manner as if the parties had executed one and the same instrument. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. J. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term,provision or condition or as a waiver of any other term,provision or condition of this Agreement. K. Entire Agreement. This Agreement is intended by the parties to be the final expression of their agreement; it embodies the entire agreement and understanding between the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings relating to the same subject matter. L. Time of the Essence. Time is of the essence of each provision of this p � Agreement in which time is an element. M. Survival of Covenants. All covenants of District or Presentation Center which are expressly intended hereunder to be performed in whole or in art after the Closing, P Y p p g including but not limited to the covenants set out in Section 6 herein, and all representations and warranties by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. N. Terms Run with the Land. The terms, covenants and conditions set out in this agreement shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the parties hereto pursuant to California Civil Code Section 1468. O. Assi ng�ment. Except as expressly permitted herein, neither party to this Agreement shall assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party. P. Further Documents and Acts. Each of the parties hereto agrees to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to consummate and carry into effect the transactions described and contemplated 9 under this Agreement . Q. Captions. Captions are provided herein for convenience only and they form no part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement, nor as evidence of the intention of the parties hereto. R. Pronouns and Gender. In this Agreement, if it be appropriate, the use of the singular shall include the plural, and the plural shall include the singular, and the use of any gender shall include all other genders as appropriate. S. Authori . Presentation Center and District both represent and warrant that each has the full right,power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. T. Inconsistencies. In the event of any inconsistencies between the provisions of this Agreement and the terms of the various agreements set forth in Exhibits A through E, inclusive, the terms of the latter shall prevail. U. Recordation. District may, at its sole expense, record a Memorandum of this Agreement in the County of Santa Clara and the County of Santa Cruz. IN WITNESS WHEREOF, the parties have executed this agreement below on the day and year shown therewith. lil 10 PRESENTATION CENTER, Los Gatos, a California Corporation ("Presentation Center"): Approved and Accepted: By: By: Attest: I By: Presentation Center Clerk MIDPENINSULA REGIONAL OPEN SPACE DISTRICT ("District"): i Recommended for Acceptance: By: Date: Michael C. Williams Real Property Representative Approved as to Form: By: Date: Susan M. Schectman General Counsel Recommended for Approval: By: Date: L. Craig Britton General Manager Approved and Accepted: By: Date: President, Board of Directors Attest: By: Date: Sally Thielfoldt, District Clerk 11 EXHIBIT A RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, California 95033-9519 Attn: Patricia Marie Mulpeters, PBVM SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY No Transfer Tax Due EASEMENT AGREEMENT CENTER PARKING LOT EASEMENT This Easement Agreement ("Agreement") is made as of July_, 2003 by and among MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District" or "Grantor") and PRESENTATION CENTER, LOS GATOS, a California corporation "Center" rP ( or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a "Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto being a part of Santa Clara County Assessor's Parcel No. 544-31-002 (the "District Parcel"). B. Grantee is the owner of certain real property situated in the County of Santa Clara, including the property immediately adjacent to the District Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the "Center Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July_, 2003 wherein the Parties have agreed to grant to each other certain reciprocal rights, benefits and uses concerning portions of the District Parcel and portions of the Center Parcel, including, without limitation, an agreement to provide Center with a non- exclusive easement for parking on the District Parcel and for the construction of certain improvements incidental to such use, on the terms and conditions set forth below. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged,the Parties hereby agree as follows: 1 EXHIBIT A 1. Grant of Parking Easement(District to Center). A. Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement set forth in this Section I as appurtent to the Center Parcel for the benefit of Grantee and the tenants, subtenants, permittees, contractors, customers, visitors, invitees, and licensees of the Center Parcel, in, on, over,under and across the Center Parking Lot Easement (defined in Section I(A)(i) herein). A legal description and plat map of the Center Parking Lot Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. References in this Agreement to the term "Easement" shall mean the easement granted pursuant to this Section 1. (i) Parking. An easement for right of way over, across and through the Center Parking Lot Easement(defined in Section 2) in the area generally shown on the drawings attached as Exhibit D hereto (the"Site Plan "), as accessory for the passage of pedestrians and motor vehicles of any kind for any use consistent with this Agreement including, without limitation, the right to park at least 56 standard sized vehicles in the configurations shown on Exhibit D Said Center Parking Lot Easement shall be used for the business uses and purposes associated with the Grantee's retreat and conference center and as permitted by Grantee's approved Conditional Use Permit issued by the County of Santa Clara, File Number 8351-44-25- 02P-02A, Dated February 6, 2003, as may be amended from time to time, (hereafter"CUP") and as set forth in the Site Plan attached as Exhibit D hereto and incorporated by this reference, and other incidental uses which are related to Grantee's permitted business and operations. (ii) Incidental uses and rights granted under the Center Parking Lot Easement: a. Access. The right of access reasonably necessary for pedestrians and motor vehicles and for Grantee to grade, improve, construct, install, use, maintain, repair and inspect of the Parking Area Improvements (defined in Section 2) for which the easement is granted as described above in Section I(a)(i), in the area shown on the drawings attached hereto as Exhibit D. b. Refuse Disposal and Collection. The installation and maintenance in the Center Parking Lot Easement in the location designated by Grantee of refuse dumpsters or other suitable containers for the collection and retention of refuse and vehicular ingress to and egress from the Center Parking Lot Easement for the purpose of unloading the dumpsters and removing the trash from the Center Parking Lot Easement, in the area shown on the drawings attached hereto as Exhibit D. C. Drainage. The installation and repair and maintenance of storm drainage improvements over a portion of the Center Parking Lot Easement pursuant to a drainage plan to be submitted after recordation of this Agreement. Grantee shall obtain Grantor's prior written approval of said drainage plan before construction and installation of the drainage improvements. Grantor shall not unreasonably withhold, delay, or condition its consent to the drainage plan. The storm drainage shall be appurtenant to and for the express benefit of the Center Parcel. The storm drainage is granted for the purpose of removing, draining and detaining storm, surface and subsurface water from the District Parcel over, upon, across and through the Center Parking Lot Easement as described in Exhibit C. 2 EXHIBIT A d. Utilities. The construction, installation and maintenance of utilities ("Utility Easement") which will be located along that portion of the Center Parking Lot Easement as more particularly described and depicted in Exhibit D. The Utility Easement includes the right to ingress and egress over the Utility Easement area as reasonably necessary or appropriate and is granted for the purpose of using, maintaining, installing, inspecting, relocating, repairing and replacing underground water lines serving the landscaped area within the Center Parking Lot Easement and underground electric lines serving the light standards in the Center Parking Lot Easement as described and shown in Exhibit D. B. Definition of Center Parking Lot Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July , 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the Center Parking Lot Easement as described in Exhibit C may lie upon the Center Parcel. Therefore, the term "Easement" or "Center Parking Lot Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the District Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. C. Term. The term of the Easement shall be perpetual, provided that Center Parcel continues to be used as a retreat and conference center as more fully set forth in the CUP. Grantor shall have the right to terminate this Easement upon the cessation of use of the Center Parcel for said purposes by giving Grantee 60 days written notice of its intent to do so. Notwithstanding the above, this Agreement shall remain in full force and effect if Grantee transfers ownership or control of the Center Parcel or Center to another not for profit entity engaged in substantially the same retreat and conference Center use or enterprise as Center, along the lines substantially set forth in the CUP. D. Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the Center Parking Lot Easement subject to the terms and conditions set forth in this Agreement; provided that (a) such use shall not unreasonably interfere with the Easement or its intended purposes, and (b) no structures or physical improvements shall be constructed on the portions of the Center Parking Lot Easement which would unreasonably interfere with the use of the Easement. E. Incidental Easement Rights. The Easement includes all incidental and pertinent rights of maintenance, inspection, installation, connection, repair and replacement reasonably necessary and appropriate to the uses of the Easement. Grantee shall obtain Grantor's prior written consent, which may not be unreasonably withheld, conditioned or delayed prior to entering the District Parcel contiguous to the Easement granted in this Agreement as provided herein for purposes of maintenance, inspection, installation, connection, repair and replacement for any uses of such Easement pursuant to this Agreement, including use 3 EXHIBIT A of portions of the District Parcel for staging and construction activities during the construction of the Parking Area Improvements. F. Construction, Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Parking Area Improvements and the Center Parking Lot Easement, provided that if any damage is caused solely by any negligence or willful misconduct of Grantor, Grantor shall be responsible for promptly repairing such damage. Except for minor and routine maintenance projects, Grantee shall obtain prior written approval from Grantor for any alteration, reconstruction or replacement of the Parking Area Improvements, or Center Parking Lot Easement which approval shall not unreasonably conditioned, withheld or delayed. 2. Approval of Drawings and Location. Grantor hereby acknowledges that it has generally approved the drawings showing the construction of the initial Improvements, including, without limitation, refuse disposal and signage, all as more fully set forth in the Site Plan attached hereto as Exhibit D. Grantor has specifically approved the Site Plan. The improvements specified in Section IA and Exhibit D of this Agreement to be constructed within the Easement shall be referred to herein as the "Parking Area Improvements". Any subsequent changes to the approved Site Plan drawings shall be subject to Grantor's prior written approval, which approval Grantor shall not unreasonably condition, withhold or delay. Prior to the commencement of construction, Grantee shall provide for Grantor's review, and obtain Grantor's prior written approval of, construction and grading plans for the Parking Area Improvements which shall include landscaping plans, utility layout, lighting plans and specifications and drainage plans. Grantor's approval shall not be unreasonably withheld, conditioned or delayed. 3. Permits and Approvals. At its sole cost and expense, Grantee shall secure all necessary approvals and permits prior to commencement of the initial construction of the Parking Area Improvements. If necessary, Grantor shall cooperate with Grantee to obtain such approvals and permits to the extent permitted by law. 4. Survey. The cost of making and recording any survey to determine the location of the Center Parking Lot Easement shall be borne solely by Grantee. 5. Representation and Warranties: Indemnification of Grantee. Grantor represents and warrants to Grantee that to the best of Grantor's knowledge Grantor has good and marketable title to the District Parcel, and there are no matters affecting title to the District Parcel which adversely affect the Easements or the rights granted under this Agreement, except as set forth in the Irrevocable Offer to Dedicate Title in Fee, Recorded February 28, 2000 Document No. 15163908, the Memorandum of Unrecorded Grant Agreement with the State of California, Wildlife Conservation Board recorded November 6, 2001, Document No. 1548170, and except for the matters set out in Section 6 of the Agreement to Exchange Interest in Real Property entered into b Gr antor and Grantee on Jul 2003. The Parties recognize that Grantor's Y July_, !1 obligation and authority to enter into and record this Easement requires prior written approval of the State of California Coastal Conservancy and Wildlife Conservation Board. 4 EXHIBIT A 6. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof, including the Laws of Grantor. , 7. ,Mechanic's Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Center Parking Lot Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 8. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Center Parking Lot Easement Area or any Parking Area Improvements and portions thereof, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than ($5.000.000.00)per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. 9. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easement. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is"physical condition and"As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July 2003. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination 5 EXHIBIT A on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely Y b Grantee. 10. Indemnit . ran indemnify, defend an hold 0 v Grantee will protect, and y, , d o d Grantor and their P officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party or the Center Parking Lot Easement by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement; or (b) arising out of or in any way with any use, possession, occupation, operation, maintenance, management or condition of the Center Parking Lot Easement . 11. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Center Parking Lot Easement by Grantee, or directly or indirectly from any state or condition of the Center Parking Lot Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor. 12. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354-2346 6 EXHIBIT A Facsimile: (408) 354-5226 with a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356-4600 Facsimile: (415) 356-3898 13. Subordination. Except as set forth in Section 5 hereof, the Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the District Parcel recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. 14. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 15. Miscellaneous A. Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited.to, any dispute as to whether a articular matter must be arbitrated or an claim that a Part was fraudulent) induced Y P Y Y i Agreement r an the dispute r claim hall be into entering into this A e e t o art of this Agreement), d o c m s g �' Y p b�' ), p decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or g federal court and in lieu of trial b judge or b u and shall instead be conducted b YJ g YJ jury, Y JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and r then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen procedures g g from JAMS-Endispute's panel of retired Judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. B. Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. C. Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. 7 EXHIBIT A D. Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. E. Time. Time is of the essence of this Agreement. F. Written Consent Required. Whenever a Parry is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. G. Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. H. Attorney, . In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's l fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. I. Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. J. Severabilit . If an provision of this Agreement shall to an extent be v YP g Y invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable P P ) shall not be affected thereby, and each provision of this Agreement, unless specifically Y P �' P Y conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the p fullest extent permitted by law. K. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. L. Authority. Each individual executing this Agreement on behalf of Grantor represents and warrants to Grantee that he or she is duly authorized to so execute and deliver this Agreement and that all entity, actions and consents required for execution of this Agreement have been given, granted or obtained. M. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. N 8 EXHIBIT A IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: GRANTEE: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: 9 EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attn: Michael C. Williams SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103, 27383. CODE SECTION 11922 BY EASEMENT AGREEMENT PATROL AND MAINTENANCE AND PUBLIC TRAIL CORRIDOR EASEMENTS This Easement Agreement ("Agreement") is made as of July_, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto and incorporated herein by this reference, being a part of Assessor's Parcel No. 544-31-005 and 544- 31-006 (the "Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, which is immediately adjacent to the Center Parcel and is commonly known as the Bear Creek Redwoods Open Space Preserve as it current) exists or may be expanded in the future as more p p Y Y P particularly described in Exhibit B attached hereto and incorporated herein by this reference (the "District Preserve"). C. Grantee desires to obtain a non-exclusive easement to enter and pass through the Center Parcel for District purposes including patrol, maintenance, repair and emergency access and public trail access, as more particularly described in this Agreement. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Grant of Patrol and Maintenance Easement (Center to District). 1 EXHIBIT B (a) Easement Scope and Description. Grantor hereby grants to Grantee the non-exclusive easement as set forth in this Section 1 as appurtenant to the District Preserve as it currently exists or may be expanded in the future for ingress and egress for patrol, emergency access, maintenance and repair of the adjoining and surrounding District Preserve and the maintenance and repair of the public pedestrial trail easement described in Section 2(a) below along the existing driveway from Bear Creek Road and continuing along the existing service road to the Center treatment facility continuing to Collins Creek. A legal description and plat map of the Patrol and Maintenance Easement is more particularly described in Exhibit "C" as attached hereto and incorporated by this reference. (b) Definition of District Patrol and Maintenance Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July , 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Patrol and Maintenance Easement as described in Exhibit C may lie upon the District Parcel. Therefore, the term "Easement" or "District Patrol and Maintenance Easement" as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Patrol and Maintenance Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (d) Repair and Maintenance. Grantor shall be solely responsible for repairing and maintaining the paved portions of the Easement as it currently exists, as set forth in Exhibit C. The Grantor and Grantee shall share equally the cost and responsibility for repairing and maintaining the unpaved portions of the Easement as described and shown in Exhibit C. Any improvements to the Easement desired solely by the Grantor or Grantee shall be borne by the party requiring such improvements. Notwithstanding the above, in the event of damage to any area of the Easement caused solely by the act of one party or its agents, the damaging party shall have sole responsibility for repair of such damage, normal use, wear and tear excepted. Grantee shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Patrol and Maintenance Easement, except in the event of an emergency. (e) Survey. The cost of making any survey to determine the location of the Patrol and Maintenance Easement shall be borne by Grantee. (f) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other purpose. When using the Easement, District vehicles and/or g or employees a ents shall possess identification reasonably adequate to identify them as District employees or agents. Routine patrols shall be made no more than is reasonably required but in no event more than sixty (60) times per month. In all instances, District shall take every 2 EXHIBIT B reasonable precaution against interfering with or disrupting the activities and business operations on the Center Parcel. (g) Non-Exclusive Use. The Patrol and Maintenance Easement shall be non-exclusive, and Grantor may make use of the area within the Patrol and Maintenance Easement including, without limitation, the right to construct, alter, maintain, repair, and improve all or a portion of the Easement as long as such use does not unreasonably interfere with the Patrol and Maintenance Easement or its intended purposes. 2. Grant of Public Trail Corridor Easement (a) Easement Scope and Description. Grantor hereby grants to Grantee a non-exclusive public trail corridor easement as appurtenant to the District Preserve, as it currently exists or may be expanded in the future, approximately thirty (30) feet in width, for public pedestrian trail use and use by the District for patrol emergency access, repair, and maintenance purposes. The public pedestrian trail shall be no more than ten (10) feet in width located within the thirty (30) foot trail corridor The Public Trail Corridor Easement shall be located on the slope below the Center treatment facility and above Collins Creek and connect to the lower portion of the existing service road, which is also part of the Patrol and Maintenance Easement described in Section 1(a) above. A legal description of the Public Trail Corridor Easement shall be in the form set forth in Exhibit D attached hereto and incorporated herein by this reference. The Patrol and Maintenance Easement and the Public Trail Corridor Easement are collectively referred to as"the Easements." (b) Term. The term of the Public Trail Corridor Easement shall be perpetual as long as the District Preserve is used for public open space and park purposes in accordance with Public Resources Code 5500 et seq. (c) Trail Alignment and Construction. The Public Trail Corridor Easement Area ("Trail') shall be constructed by District, in consultation with Center as to location and dimensions within the area covered by the legal description attached as Exhibit D. Grantee shall obtain Grantor's prior written consent to the plans and specifications for the Trail, not to be unreasonably withheld, conditioned or delayed, prior to the commencement of any construction or work. The Trail shall be constructed and maintained by District, at its sole expense. Trail construction activities will be conducted so as to minimize interference with Center activities. Upon the completion of the Trail construction, District shall prepare a survey of the actual alignment of the constructed Trail and shall amend the legal description (Exhibit D) of the Public Trail Corridor Easement based on such survey and record an amendment to this Easement reflecting the accurate legal description of the Public Trail Corridor Easement. (d) Repair and Maintenance. Grantee shall be solely responsible for repairing and maintaining the Public Trail Corridor Easement. District shall give no less than five (5) days written notice to Center of its intent to perform repairs or maintenance along any portion of the Public Trail Corridor Easement, except in the event of an emergency. (e) SurveY. The cost of making any survey to determine the location of the Public Trail Corridor Easement shall be borne by Grantee. 3 EXHIBIT B (f) Non-Exclusive Use. The Public Trail Corridor Easement shall be non- exclusive and Grantor may make use of the area within the Public Trail Corridor Easement provided that such use does not unreasonably interfere with the Public Trail Corridor Easement or its intended purposes. 3. Representation and Warranties. Grantor represents and warrants to Grantee that Grantor has good and marketable title to the Center Parcel, and there are no matters affecting title to the Center Parcel which adversely affect the Easement or the rights granted under this Agreement. Grantor further represents and warrants to Grantee that there are no persons (other than Grantor) holding an interest in any of the Center Parcel so as to affect this Agreement. 4. Requirements of Law. Grantee shall comply with all resent and future laws rules q pY p , orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easement granted herein, or uses thereof. 5. Mechanic's Liens. Grantee shall give Grantor notice and provide Grantor the opportunity to post Notices of Non-Responsibility prior to the commencement of any construction work on the Public Trail Corridor Easement pursuant to this Agreement. Grantee shall hold harmless, indemnify and defend Grantor from and against any mechanic's or other liens arising from such work, including any liabilities, costs, losses, damages, expenses, causes of action, claims or judgments (including court costs and reasonable attorneys' fees) on account of such mechanic's or other liens. 6. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the Easement with limits which shall not be less than Five Million Dollars ($5,000,000.00) per occurrence. Grantor shall be named as an additional insured on such policy. Prior to the commencement of any work contemplated under this Agreement, Grantee shall promptly furnish to Grantor a endorsement evidencing such insurance coverage. The requirements of this Section may be satisfied by delivery to Grantor evidence reasonably satisfactory to Grantor of equivalent insurance coverage provided by membership in a governmental agency self-insured program. 7. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easements or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easements including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easements and with knowledge of the matters set out in Section 6 of the Exchange Agreement. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability 4 �I I EXHIBIT B Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on in or under the Easement includingall costs of remediation and clean u except when u p, p such contamination was caused solely by Grantor. 8. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any Grantor by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise from the negligence or willful misconduct of the Grantor): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Easements; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the Easements. 9. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the Easements by Grantee, or directly or indirectly from any state or condition of the Easements, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Patrol and Maintenance Easement Agreement. 10. Notice. All notices, demands, consents, requests, approvals, disapprovals, designationsor other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354-5226 5 EXHIBIT B With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan, Jr., Esq. Telephone: (415) 356-4600 Facsimile: (415) 356.3898 If to Grantee: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 11. Subordination. The Easements shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property recorded after the recordation of this Agreement, and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnership. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration 6 EXHIBIT B provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney s Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. vera il't . I anprovision of this reement shall to an extent be Se b i fA �) y Y g Y invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. 7 EXHIBIT B (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: GRANTEE: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: 8 EXHIBIT C RECORDING REQUESTED BY AND WHEN RECORDED RETURNED TO: MidPeninsula Regional Open Space District 330 Distel Circle Los Altos, California 94022-1404 Attn: SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY NO TRANSFER TAX DUE DULY RECORDED WITHOUT FEE PUBLIC AGENCY ACQUIRING TITLE, Pursuant to Government Code CALIFORNIA REVENUE AND TAXATION Sections 6103,27383. CODE SECTION 11922 BY EASEMENT AGREEMENT DISTRICT PARKING ACCESS EASEMENT This Easement Agreement ("Agreement") is made as of July_, 2003 by and among PRESENTATION CENTER, LOS GATOS, a California corporation ("Center" or "Grantor") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District" or "Grantee"). District and Center are sometimes referred to in this Agreement singularly as a"Party" and together as "Parties". RECITALS A. Grantor is the owner of certain real property situated in the County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto, being a part of Assessor's Parcel Nos. 544-31-005 and 544-31-006 (the "Center Parcel"). B. Grantee is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-02 (the"District Parcel"). C. Grantor and Grantee have entered into that certain Reciprocal Easement and Use Agreement ("REA") dated July—, 2003 wherein the Parties have agreed to convey to each other he possible development, benefits and uses certain reciprocal rights, and that allow fort , p P P concerning the construction, use and operation of a permit parking lot ("Permit Parking Lot") to the north of the parking lot which Center has a non-exclusive easement under an Easement Agreement (Center Parking Lot Easement) dated July_, 2003. 1 EXHIBIT C D. Grantee desires to have the ability to provide public vehicular access to an area reserved for the Permit Parking Lot across portions of the Center Parcel, if this Permit Parking Lot is determined to be necessary and approved in the future by Grantee NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Grant of Easement. {a) Access Easement. Grantor hereby grants to Grantee a non- exclusive easement for the right of access over, across and through portions of the Center Parcel for vehicular traffic from Bear Creek Road to the District Parcel and the area reserved for a potential Permit to Parking Lot for up to 15 standard sized vehicles located at the northeast corner of the Center Parking Lot Easement, as more fully set forth in the plat and legal description attached hereto as Exhibit C which is incorporated herein by this reference. References in this Agreement to the term "Easement" shall mean the access easement granted pursuant to this Section 1. (b) Definition of District Parking Access Easement. The parties acknowledge that there is currently a disagreement concerning the surveyed boundaries of the Center Parcel and the District Parcel more fully described in Section 6 of the Agreement to Exchange Interests in Real Property entered into between Grantor and Grantee on July , 2003 ("Exchange Agreement"). The parties acknowledge that resolution of this matter may determine that a portion of the District Parkin Access Easement as described in Exhibit C may P g Y lie upon the District Parcel. Therefore, the term "Easement" or "District Parking Access Easement as used in this Agreement shall be limited to mean only that portion or portions of the Easement as described in Exhibit C which lie upon the Center Parcel as it is described herein and, thereafter as it is described upon resolution of the above described disagreement pursuant to Section 6 of the Exchange Agreement. (c) Term. The term of the Easement shall be perpetual unless terminated pursuant to Section 1(g) herein. (d) Non-exclusive use. The Easement shall be non-exclusive, and Grantor may make use of the portions of the District Parking Access Easement subject to the terms and conditions set forth in this Agreement; provided that such use shall not unreasonably interfere with the Easement or its intended purposes. (e) Limitations on Use. This Easement shall be used only for the purposes set forth herein and for no other, and shall specifically not be used for alternative pedestrian ingress and egress from Bear Creek Road to and from the potential Permit Parking Lot. Furthermore, the Easement shall only be used by District, its officials, employees, contractors, agents or consultants (collectively, "District Licensees")_or by those District Licensees carrying a validly issued permit, issued by District for parking at the potential Permit Parking.-Lot. 2 EXHIBIT C (f) Repair and Maintenance. Center shall be solely responsible for the maintenance and repair of the District Parking Access Easement; provided, however, that if any damage is caused to the District Parking Access Easement due solely to the negligence or willful misconduct of District or any of District's Licensees, then District shall be required at its option to either promptly repair such damage to Center's reasonable satisfaction or to reimburse Center for the reasonable cost of repairing such damage. (g) Termination. The term of the above-described District Parking Access Easement shall commence; (i) upon issuance of all requisite governmental approvals, if any, to construct or improve the Permit Parking Lot; (ii) compliance by District with the provisions of Article 5 below (Insurance); (iii) upon delivery to the Grantor of the REA signed by all requisite Parties; and (iv) delivery of written notice to the Grantor from the Grantee that Grantee use of the District Parking Access Easement has commenced ("Conditions"); provided, however, that if such Conditions have not been satisfied on or before the earlier of the tenth anniversary of the recordation of this Agreement or December 31, 2013, the grant of easements contemplated under this Agreement shall cease and be of no further force or effect. Grantor shall have the right to terminate this Easement upon Grantee's negotiation, construction, and commencement of use of an alternate route for ingress and egress on District's Parcel, all as more fully set forth in Section 5 of the REA. Grantee shall provide Grantor with a quit claim deed, as necessary, suitable for recordation in Santa Clara County, verifying that this Easement has been so terminated. 2. Approval of Drawings and Location. (a) Access Easement Area Improvements. The improvements which are currently constructed within the District Parking Access Easement shall be referred to herein as the "Access Easement Area Improvements". Any subsequent material changes to the Access Easement Area Improvements may be made at Grantor's sole discretion but shall not unreasonably interfere with the Easement. (b) District Planning and Use of Permit Parking Lot. As part of the District's Master Planning process for the Bear Creek Redwoods Open Space Preserve, District shall consult with the Grantor on any proposed site plan for Permit Parking Lot. Prior to approval by Districts Board of Directors and submittal of any such plans to the County of Santa Plan win the location and dimensions of the proposed Clara District shall submit a Site P showing e g = p P District Permit Parking Lot to Grantor for comment. It is further understood that the District will consult with Grantor if a Permit Parking Lot is included in the Master Plan so as to minimize any impacts to or use conflicts with Grantor's adjacent property and use of the Center Parking Lot Easement. 3. Permits and Approvals. Grantee, at its sole cost and expense, shall secure all necessary approvals and permits prior to commencement of the initial construction of any potential Permit Parking Lot Improvements. Grantor shall reasonably cooperate with Grantee to obtain such approvals and permits, if necessary. 3 EXHIBIT C 4. Requirements of Law. Grantee shall comply with all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, and executive orders (collectively, "Laws") of all governmental authorities now existing or hereafter created affecting the Easements granted herein, or uses thereof. 5. Insurance. Grantee shall maintain, or cause to be maintained, throughout the term hereof a policy of commercial general liability insurance against claims for bodily injury, personal injury, death and/or property damage occurring upon, in or about the District Parking Access Easement, and Grantee's indemnity obligations under this Agreement, with limits which shall not be less than Five Million ($5,000,000) per occurrence. Grantor shall be named as additional insureds on such policy. Prior to the commencement of this Easement, Grantee shall promptly furnish to Grantor an endorsement in a form reasonably satisfactory to Grantor evidencing such insurance coverage. The endorsement shall provide that the policy may not be canceled without thirty (30) days prior notice to Grantor, that such policy is primary and that no insurance held by Grantor shall be called upon to cover a loss under said policy. The requirements of this Section may be satisfied by delivery to Grantor of evidence of equivalent issuance coverage provided by membership in a government agency self-insurance program. 6. As-Is Conveyance. Grantee agrees and acknowledges that Grantor makes no representations or warranties as to the condition of the area contained in the Easement or its suitability for Grantee's purposes. Neither Grantor nor anyone acting for or on behalf of Grantor has made any representation, statement, warranty or promise to Grantee concerning the physical aspects or condition of the Easement including, without limitation, conditions of the soil, land use restrictions, existence or non-existence of "Hazardous Materials" or suitability for the purpose for which Grantee plans on using the Easements. Grantee specifically acknowledges that it is entering into this Agreement with respect to the "As-Is" physical condition and "As-Is" state of repair of the Easement and with knowledge of the matters set out in Section 6 of the Agreement to Exchange Interests in Real Property. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. However, Grantor shall be solely and completely responsible for responding to and complying with any administrative notice, order, request or demand, or third party claim or demand, relating to potential or actual Hazardous Materials contamination on, in, or under the Easement, including all costs of remediation and clean up, except when such contamination was caused solely by Grantor. 7. Indemnity. Grantee will protect, indemnify, defend, and hold Grantor and their officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed 4 EXHIBIT C upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages,penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Indemnified Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the District Parking Access Easement; or (b) arising out of or in any way connected with any use, possession, occupation, operation, maintenance, management or condition of the District Parking Access Easement. 8. No Liability. Grantor shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Grantor resulting from or arising out of any act or omission by Grantee, or the use or occupancy of the District Parking Access Easement by Grantee, or directly or indirectly from any state or condition of the District Parking Access Easement, except a state or condition caused solely by the negligence or willful misconduct of Grantor, or caused by the failure of Grantor to carry out any of its repair or maintenance obligations as set out in this Easement Agreement. 9. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to Grantor: MidPeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: General Manager Telephone: (650) 691-1200 Facsimile: (650) 691-0485 If to Grantee: Presentation Center, Los Gatos 19480 Bear Creek Road Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 With a copy to: Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 5 EXHIBIT C 10. No Dedication. Nothing herein contained shall be deemed to be a gift or be construed as a dedication of any portion of the District Parking Access Easement, or portion thereof, to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement shall be strictly limited to and for the purposes herein expressed. 11. Subordination. The Easement shall be superior to any and all deeds of trusts, mortgages, liens, ground leases, licenses, covenants or encumbrances affecting the Grantor property and this Agreement shall survive the foreclosure or termination of any such instrument or interest. If Grantor encumbers the Center Parcel or any portion thereof prior to conveyance of these Easements to Grantee, Grantor shall deliver an executed consent of lienholder in which any lienholder or mortgagor agrees to subordinate its rights in the Center Parcel or any portions thereof to prevent any modification or extinguishment of the Easements by the exercise of any rights by any mortgage holder or lienholder. Grantor shall also obtain any consent, release or reconveyance of deed of trust required from any mortgagor or lienholder so that the Easements are conveyed to Grantee free and clear of any such liens and encumbrances. 12. No Partnershin. Nothing contained in this Agreement shall be construed as making Grantor and Grantee joint venturers or partners. 13. Miscellaneous (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement. 6 EXHIBIT C (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party the reasonable attorney's fees and costs incurred by the prevailing Party in the prosecution or defense of any such action or proceeding. (i) Terms Run with the Land. The easements, terms, covenants and conditions herein contained shall run with the land and be binding upon and inure to the benefit of the successors and assigns of the Parties hereto pursuant to California Civil Code Section 1468. 0) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. (k) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. 7 EXHIBIT C IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: I Its: Date: GRANTEE: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: 8 EXHIBIT D RECIPROCAL EASEMENT AND USE AGREEMENT This Reciprocal Easement and Use Agreement ("REA") dated as of July____2003, is by and between PRESENTATION CENTER, LOS GATOS, a California corporation ("Center") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("District"). District and Center are sometimes referred to in this REA singularly as a "Party" and together as "Parties". RECITALS A. Center is the owner of certain real property situated in the County of Santa Clara, State of California and more particularly described in Exhibit A attached hereto being a part of Assessor's Parcel numbers 544-31-005 and 006 (the "Center Parcel"). B. District is the owner of certain real property situated in Santa Clara County, including the property immediately adjacent to the Center Parcel and more particularly described in Exhibit B attached hereto, commonly known as Assessor's Parcel No. 544-31-002 (the "District Parcel"). C. Center and District have entered into that certain Easement Agreement dated July_, 2003 ("Center Parking Lot Easement") in which District granted to Center a non- exclusive easement for ingress, egress and certain accessory uses more specifically described in the Center Parking Lot Easement, attached hereto and included by this reference as Exhibit C. D. District may construct a separate permit parking lot northeast of the Center Parking Lot Easement (hereafter "Permit Parking Lot") Pursuant to a separate Easement Agreement dated July_, 2003, ("District Parking Access Easement"), Center has granted a vehicular access easement to District in order that District personnel and invitees may gain access to the potential Permit Parking Lot from Bear Creek Road, along a portion of the Center roadway and through a portion of the Center Parking Lot Easement. The District Parking Access Easement is attached hereto as Exhibit D and included by this reference. E. Center and District may, from time to time, wish to use portions of each other's parking areas, all in accordance with the terms of this Agreement. The Parties also wish to agree to terms for any construction, repair and maintenance of certain improvements and for certain cost sharing responsibilities. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Center Parking Lot Easement, From District to Center. (a) Grant of Center Parking Lot Easement. The terms and conditions of the Center Parking Lot Easement are set forth in Exhibit C and are incorporated herein by this reference. 1 EXHIBIT D (b) Construction. At the sole cost and expense of Center, Center shall construct the initial improvements which are more fully specified in Exhibit D to the Center Parking Lot Easement Agreement. (c) Maintenance and Repair Obligations. Center shall be solely responsible, at its sole cost and expense, for the maintenance and repair of the Center Parking Lot Easement as more fully set forth in Section IE of the Center Parking Lot Easement attached hereto as Exhibit"C." (d) Indemnification. Center shall indemnify, defend and hold harmless, District as more fully set forth in Section 9 of the Center Parking Lot Easement, attached hereto as Exhibit C. 2. District Permit Parking Lot. Pursuant to this REA, District may determine, in its sole discretion through its comprehensive use and management planning process and any other applicable law, including but not limited to the California Environmental Quality Act (CEQA), to develop and construct a Permit Parking Lot for approximately 15 standard sized vehicles on District land northeast of the Center Parking Lot Easement. (a) Grant of District Parking Access Easement, From Center to District. Center has granted to District an access easement for vehicular traffic from Bear Creek Road, over portions of the Center Parcel to the District Permit Parking Lot, all as more fully set in the District Parking Access Easement, the terms and conditions of which are set forth in Exhibit D and incorporated by this reference. (b) Consultation. District agrees to consult with Center on any proposed development or modification of the Permit Parking Lot to be located northeast of the Center Parking Lot Easement. The intent of such consultation is to minimize potential impacts on the Center and its activities that may result from public use of the Pen-nit Parking Lot District shall avoid any development design, plan or proposal which overburdens the District Parking Access Easement identified in Section 2(a) and Exhibit D of this REA. (c) Maintenance and Repair Obligations. District shall be responsible, at District's sole cost and expense, for the maintenance and repair of the Permit Parking Lot and the fence and all other improvements located thereon (collectively, the "Permit Parking Lot Improvements"); provided, however, that if any damage is caused to such Permit Parking Lot Improvements due to any negligence or willful misconduct of Center or Center's Licensees, then Center shall be required to reimburse District for the reasonable cost of repairing such damage. For the purposes of this Agreement, Center's Licensees means Center's agents, employees, licensees, guests, and other invitees. (d) Compliance with Law. District shall comply with all applicable federal, state and local law, statutes, rules, regulations, ordinances and other legal requirements relating to District's construction activities within the Pen-nit Parking Lot including without limitation to the California Environmental Quality Act(CEQA). 2 i EXHIBIT D (e) Indemnification. District shall indemnify, defend and hold harmless, Center as set out in Section 6 of the District Parking Access Easement, attached hereto as Exhibit E. (f) No Liability. Center shall not be liable for any loss, damage, or injury whatsoever to the person or property of any person or entity whatsoever, including but not limited to, any employee, invitees, agents or contractors of Center resulting from or arising out of any act or omission by District, or the use or occupancy of the Permit Parking Lot by District, or directly or indirectly from any state or condition of the Permit Parking Lot, except a state or condition caused solely by the negligence or willful misconduct of Center. 3. District Use of the Center Parking Lot Easement. (a) Access to Permit Parking Lot. District and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for pedestrian and vehicular access to a Permit Parking Lot as set out in the District Parking Access Easement. Neither District nor its Licensees shall use any portion of the Center Parking Lot Easement in any manner which is inconsistent with the Center Parking Lot Easement. (b) Parking. From time to time in accordance with the provisions of this Agreement, District may use portions of the Center Parking Lot Easement for special events, or at other times when District business requires,pursuant to the following conditions: I (i) District gives Center at least 10 days' written notice of its request to use the Center Parking Lot Easement and obtains Center's consent which shall not be unreasonably withheld, conditioned or delayed; and (ii) District is in compliance with the indemnity provisions of Section 3(c)below. Notwithstanding any provision in this R.EA to the contrary, Center may withhold its consent under this Section 3(b) if it determines, in its sole discretion, that the Center Parking Lot Easement will be fully utilized or needed for Center activities and/or Center Licensees at the time of the proposed District use in question. (c) Indemnity. In the event District uses all or a portion of the Center Parking Lot Easement pursuant to this Section 3, District will protect, indemnify, defend, and hold Center and its officers, directors, employees, agents, successors, assigns, members, and partners (each, an "Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the Center Indemnity Party): (a) any accident, injury or 3 EXHIBIT D death of persons (including workers) or losses of or damage to property occurring on or about the Center Parking Lot Easement during District use of the Center Parking Lot Easement under this Section 3; or (b) arising out of or in any way connected with District's use, possession, occupation, operation, maintenance or management of the Center Parking Lot Easement under this Section 3. 4. Center Use of a Permit Parking Lot. (a) Access to Permit Parking Lot. In the event, District decides to construct a Permit Parking Lot as described in this Agreement. Center and its Licensees may use those portions of the Center Parking Lot Easement set forth in Exhibit C for vehicular access to the Permit Parking Lot. (b) Parking. From time to time in accordance with the provisions of this Agreement, Center may use portions of the Permit Parking Lot for special events or business purposes pursuant to the following conditions: (i) Center determines, in good faith, that the Center Parking Lot Easement would be inadequate for the event in question; (ii) Center gives District at least 10 days' written notice of its request to use the Permit Parking Lot and obtains District's consent which shall not be unreasonably withheld, conditioned or delayed; and (iii) Center is in compliance with the indemnity provisions of Section 4(c)below. Notwithstanding any provision in this REA to the contrary, District may withhold its consent under this Section 4(b) if it determines, in its sole discretion, that the Permit Parking Lot will be fully utilized or needed for District activities and/or District Licensees. (c) Indemnification. In the event Center uses all or a portion of the Permit Parking Lot pursuant to this Section 4, Center will protect, indemnify, defend, and hold i 1 r assigns, members and partners District and its officers directors, employees,ees agents, successors,p y � g � , (each, an"Indemnified Party") harmless from and against any and all loss, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and all costs, disbursements and expense of legal counsel) imposed upon or incurred by or asserted against any such Indemnified Party by reason of the occurrence or existence of any of the following (except to the extent such losses, liabilities, obligations, claims, damages,penalties, causes of action, costs and expenses arise solely from the negligence or willful misconduct of the District Indemnity Party): (a) any accident, injury or death of persons (including workers) or losses of or damage to property occurring on or about the Permit Parking Lot during Center's use of the Permit Parking Lot under this Section 4; or(b) arising out of or in any way connected with Center's use, possession, occupation, operation, maintenance or management of the Permit Parking Lot under this Section 4. 4 EXHIBIT D 5. Construction of Alternate Access Road from Bear Creek Road to District Preserve (a) Covenants to Cooperate. District, at its sole cost and expense, and at its sole discretion, may explore the feasibility of constructing a separate or a shared alternate access road (hereafter"Alternate Access Road") for the benefit of District from Bear Creek Road to the District Permit Parking Lot or any other District public facility that may be developed in the future. The Parties acknowledge that such an Alternate Access Road might commence at the Center's entrance to the Center Parcel from Bear Creek Road or may commence elsewhere on Bear Creek Road. Construction of an Alternate Access Road may necessitate, to some degree, a widening and or reconfiguration of the portion of the existing Center driveway as shown on Exhibit_ and its entrance closest to Bear Creek Road, as well as some reconfiguration of Bear Creek Road itself, all subject to applicable ordinances, rules, regulations; and including, but not limited to, the California Environmental Quality Act (CEQA). District and Center agree to cooperate with each other in good faith, in connection with satisfying all reasonable requirements with respect to the study of the feasibility of such an arrangement. The Parties understand that such plans are preliminary and not binding. In the event District proposes to construct an Alternate Access Road to be located, in whole or in part, upon the Center Parcel, such proposal will be subject to a comprehensive, separate Memorandum of Understanding to be negotiated, drafted and executed by the Parties taking into account, without limitation, all applicable laws and the following criteria: (i) Aesthetics. The scenic qualities along Bear Creek Road and entrances to the Presentation Center shall be protected from adverse impact to the maximum extent possible; (ii) Signage. The Parties recognize that it is of paramount importance that appropriate signage be installed to avoid any confusion as to the location and identity of Presentation Center; (iii) Safety. All plans and specifications shall take into account any increased traffic flow on the portions of Bear Creek Road surrounding the entrance to Presentation Center and/or the proposed District facility; (iv) Public Trails. District would take full responsibility for evaluating the feasibility of establishing appropriate traffic control measures and other appropriate improvements along Bear Creek Road for the purpose of providing a public trail across Bear Creek Road, thereby connecting public trails on both sides of Bear Creek Road. (v) Conditions of Approval. District acknowledges receipt of the Center's Architectural and Site Approval Conditions of Approval for (File No. 8351-44-25- 02P-02A), dated February 6, 2003, relevant portions of which are attached hereto as Exhibit E ("Conditional Use Permit"), which include certain street and drainage improvements in and around the District Parking Access Easement. Center is contemplating entering into a Deferred Improvement Agreement as specified in the Conditions of Approval. If necessary, District and Center agree to cooperate, in the event the Deferred Improvements Agreement conflicts with 5 EXHIBIT D District's own Improvement Plans for the Alternate Access Road (defined below), to develop a j mutually acceptable agreement for construction of the an Alternate Access Road for District which will also permit Center to complete its required Deferred Improvements at Center's sole cost or to otherwise incorporate the Deferred Improvements in District's Improvement Plans at Center's sole cost. Nothing in this Section 5 shall interfere with Center's completion of or other compliance with the Conditions of Approval, at its own cost and election. (b) Preparation of Plans. In the event District proposes to construct an Alternate Access Road to be located in whole or in part upon the Center Parcel, and after Center and District execute the Memorandum of Understanding contemplated in this REA, District shall cause the preparation of plans and specifications for the improvements being constructed and installed by District ("District Improvement Plans") for review and approval by the County of Santa Clara. The District Improvement Plans, and any and all modifications thereto, shall conform to the Memorandum of Understanding and to applicable County standards and regulations. Prior to submitting to the County the District Improvement Plans, or any modification thereto, District shall deliver the District Improvement Plans to Center for approval of such portion of the District Improvement Plans as are located on the Center Parcel, which approval shall not be unreasonably withheld, conditioned or delayed. If Center does not deliver to District written notice of approval or disapproval of the District Improvement Plans within 20 days after Center's receipt of such plans, the District Improvement Plans shall be deemed approved, but only if District has first given Center telephone notice on or before the 151h day that it intends to deem such Plans approved. Absent such telephone notice, the Plans shall not be deemed approved upon Center's failure to timely respond. Such Plans may be resubmitted for Center approval. If Center does not deliver to District written notice of approval or disapproval of any modification of the District Improvement Plans within 10 days after Center's receipt of such modification, the modification shall be deemed approved. (c) Permits and Bonds. If District determines to construct the Alternate Access Road, District shall use reasonable efforts to process and obtain all permits and approvals of the County and any other governmental authorities required to construct and install the Alternate Access Road in accordance with the District Improvement Plans. District shall the a provide payment and performance bonds to guarantee such construction and payment of all construction costs arising thereunder, to the extent required by the County and other governmental authorities (d) In accordance with the proposed Memorandum of Understanding, Center shall grant District a temporary construction license, as necessary and subject to a mutually agreeable License Agreement ("License"), to construct and install the District Improvements if any portion of the Alternate Access Road is located upon the Center Parcel. Any such license or construction activity shall be preconditioned on, in addition to the other requirements of this Article 5, minimizing any disturbance or inconvenience to Center's ongoing retreat and business operations. (e) Insurance. Prior to the entry onto the License area for the Center Parcel for purposes of constructing and installing the Improvements, District shall obtain and maintain throughout the construction period until completion, comprehensive general liability 6 EXHIBIT D and property damage insurance, written on an occurrence basis, insuring against personal injury, death or property damage in the amount of at least $5,000,000 per occurrence. District shall be the named insured and Center shall be an additional insured under such policy. Evidence of such insurance shall be delivered to Center prior to commencement of any work either on the License area or elsewhere on the Center Parcel. District shall also satisfy all insurance requirements applicable under the terms of governmental permits or approvals applicable to the construction and installation of the Improvements. The requirements of this Section may be satisfied by delivery to Center of evidence of equivalent insurance coverage provided by membership in a government agency self insurance program. (f) Cost of Construction. District shall construct and/ install the Alternate Access Road at District's sole cost and expense. Center shall not be responsible for any costs incurred by District in connection with construction of the Alternate Access Road including, without limitation, costs occasioned by a County requirement that Bear Creek Road be widened to accommodate District's improvements. However, Center may request District to incorporate Center's Deferred Improvement Plans, into District's Improvement Plans, pursuant to Section 5(a)(v). In that event, Center and District will negotiate in good faith to develop a mutually acceptable cost sharing agreement for such improvements Notwithstanding the above, Center will pay District for any increased costs District incurs for construction of the Alternate Access Road which were incurred solely as a result of the incorporation of Center's Deferred Improvement Plans. (g) Construction Indemnities. Unless otherwise mutually agreed, District agrees to indemnify and hold harmless Center from any claims, costs, losses, expenses and liabilities (including reasonable attorney's fees) incurred in connection with all claims, arising from or a result of any mechanic's liens, stop notices or other claims regarding materials supplied or work performed, or the death, or accident, or injury, caused to any natural person, or to the property of any person, as shall occur by reason of the installation of the Alternate Access Road except for claims caused by the negligence or willful misconduct of the Center and its permittees. The form of indemnity shall be mutually acceptable to the Parties. (h) Term. The term of the obligation of the Parties under this Article 5 of the REA shall commence upon the mutual execution of this REA and the subsequent delivery of the REA to the respective Parties. This Article 5 shall terminate upon the later of 10 ears r � Y from the mutual execution date of this REA or December 31, 2013. 6. Existinp, Easements. The provisions of this Agreement are subject to any and all existing easements or rights of way affecting the Center and District's Parcels. In the event of any conflict between this Reciprocal Easement and Use Agreement and the terms of the Center Parking Lot Easement or District Parking Access Easement (collectively, "Easements") the terms of said Easements shall prevail. 7. Notice. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") that any Party hereto gives to any other Party shall be in writing and shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United 7 EXHIBIT D States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or(c) sent by overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows: If to District: Midpeninsula Regional Open Space District 300 Distel Circle Los Altos, California 94022-1404 Attn: L. Craig Britton, General Manager Telephone: (650)-691-1200 Facsimile: (650)-691-0485 If to Center: Presentation Center, Los Gatos 19480 Bear Creek Road, Los Gatos, CA 95033-9519 Attn: Patricia Marie Mulpeters Telephone: (408) 354.2346 Facsimile: (408) 354.5226 Luce, Forward, Hamilton & Scripps LLP 121 Spear Street, Suite 200 San Francisco, CA 94105 Attn: John C. Callan,Jr., Esq. Telephone: (415) 356.4600 Facsimile: (415) 356.3898 8. No Partnership. Nothing contained in this Agreement shall be construed as making Center and District joint venturers or partners. 9. Miscellaneous. (a) Dispute Resolutions. The Parties, on behalf of themselves and their respective officers, directors, employees, agents, successors and assigns, agree that if they cannot resolve any dispute or claim between themselves (including, but not limited to, any dispute as to whether a particular matter must be arbitrated or any claim that a Party was fraudulently induced into entering into this Agreement or any part of this Agreement), the dispute or claim shall be decided solely and exclusively by final and binding arbitration. The location of the arbitration shall be in Santa Clara County, California. The arbitration shall be in lieu of litigation in state or federal court and in lieu of trial by judge or by jury, and shall instead be conducted by JAMS-Endispute, or its successor, in accordance with its applicable arbitration rules and procedures then in effect. Unless the Parties otherwise agree, the single arbitrator will be chosen from JAMS-Endispute's panel of retired judges. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction and the Parties shall be entitled to utilize the courts to enforce the award. The Parties hereby knowingly, voluntarily, and irrevocably waive their right to a trial by jury and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge (without the use of a jury) sitting in a court 8 EXHIBIT D of competent jurisdiction. This binding arbitration and jury waiver provision shall survive termination or expiration of this Agreement (b) Captions. The captions of this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or describe the scope or intent of this Agreement and they shall not affect the interpretation hereof. (c) Exhibits. Each of the Exhibits references in this Agreement is attached hereto and incorporated herein. (d) Amendment. This Agreement may be amended only by an instrument in writing executed by the Parties hereto or their successors and assigns. (e) Time. Time is of the essence of this Agreement. (f) Written Consent Required. Whenever a Party is requested to consent or to approve of any matter with respect to which its consent or approval is required by this Agreement, such consent or approval shall be given in writing, unless otherwise stated in this Agreement. (g) Further Assurances. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. (h) Attorney's Fees. In the event that either Party shall institute any arbitration action or proceeding against any other Party hereto to enforce, interpret or seek damages for breach of any of the terms, provisions or conditions of this Agreement, then the prevailing Party in any such action or proceeding shall be entitled to recover from the other Party h reasonable attorne s fees and costs incurred b the prevailing Part in the prosecution or the easo Y Y p g Y defense of any such action or proceeding. (i) Severability. If any provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement (or the application of such provision to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each provision of this Agreement, unless specifically conditioned upon such invalid or unenforceable provision shall be valid and unenforceable to the fullest extent permitted by law. 0) Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. (k) No Assignment. Except as otherwise set forth in the various Easement Agreements, this REA may not be assigned, in whole or in part, to any third party or affiliate of either Center or District without the prior written consent of the other Party. Any 9 EXHIBIT D purported assignment made without requisite authority shall be deemed null and void. This REA may not,under any circumstances,be recorded. (1) Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this REA as of the date first written above. CENTER: PRESENTATION CENTER, LOS GATOS By: Name: Its: Date: DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT By: Name: Its: Date: Attest: By: District Clerk Date: 10 Exhibit E PURCHASE AGREEMENT This Agreement is made and entered into by and between PRESENTATION CENTER, LOS GATOS, a California Corporation hereinafter called "Seller" and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code, hereinafter called "District. RECITALS WHEREAS, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara and the County Santa Cruz and being more particularly described within the body of this Agreement; and WHEREAS, District was formed by voter initiative to solicit and receive conveyances of real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic and open space purposes; and WHEREAS, District desires to purchase said property for open space preservation and as part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and WHEREAS, Seller wishes to sell and convey the entirety of said property to District, and District wishes to purchase said property upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of Santa Clara and the County of Santa Cruz, State of California, containing approximately one hundred ninety seven and ninety five hundredths (197.95) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 544-50-003, 005 and 006 consisting of approximately 148.96 acres, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03 consisting of approximately 48.99 acres. Said property is further described in the Legal Descriptions attached to Preliminary Reports as: A. Exhibit A Old Republic Title Company Preliminary Report number 526475 dated February 21,2003 describes Santa Clara County Assessor's Parcel Numbers 544- 50-003, 005 and 006 (the "Santa Clara County Property"). Exhibit E Purchase Agreement Page 2 i B. Exhibit B Old Republic Title Company Preliminary Report number 226342 dated February 12, 2003 describes Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 03(the "Santa Cruz County Property"). Copies of said Preliminary Reports are attached hereto as Exhibit "A" and "B", and are incorporated herein by this reference. Said property is to be conveyed together with any easements, rights of way, or rights of use which may be appurtenant or attributable to the aforesaid lands, and any and all improvements attached or affixed thereto. All of said real property and appurtenances shall hereinafter be called the "Subject Property" or the "Property„ 2. Purchase Price. The total purchase price ("Purchase Price") for the Property and other rights granted herein shall be Three Million Three Hundred Sixty-Five Thousand and No/100 Dollars ($3,365,000.00). A Ten Thousand and No/100 Dollars ($10,000.00) Deposit Fee is paid into escrow in accordance with Section 14 of this Agreement ("Deposit Fee"). The Deposit Fee shall be applied to the Purchase Price at Closing. 3. LIQUIDATED DAMAGES. IF DISTRICT FAILS TO COMPLETE THIS PURCHASE BY REASON OF ANY DEFAULT OF DISTRICT, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO DISTRICT. BY INITIALING THIS SECTION 3, DISTRICT AND SELLER AGREE THAT IN EVENT OF SUCH DEFAULT BY DISTRICT, (1) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (2) AN AMOUNT EQUAL TO THE DEPOSIT FEE MADE BY DISTRICT AS SET OUT IN SECTION 2 OF THIS AGREEMENT IS A FAIR AND REASONABLE ESTIMATE OF SUCH DAMAGES AND SHALL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELLER; (3) THE PAYMENT OF LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER AT LAW OR IN EQUITY, AND SELLER WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE; (4) ESCROW HOLDER SHALL PAY THE DEPOSIT FEE TO SELLER AS LIQUIDATED DAMAGES; AND (5) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OR THE CALIFORNIA CIVIL CODE. NOTWITHSTANDING THE ABOVE, IN THE EVENT THIS AGREEMENT IS TERMINATED BY REASON OF ANY DEFAULT BY SELLER, OR BY REASON OTHER THAN THE DEFAULT OF THE DISTRICT, THE DEPOSIT FEE SHALL BE RETURNED IN FULL TO THE DISTRICT. ALL INTEREST ACCRUING FROM THE DEPOSIT FEE SHALL BE CREDITED TO THE DISTRICT'S ACCOUNT. Exhibit E Purchase Agreement Page 3 SELLER INITIAL DISTRICT INITIAL 4. Escrow. Promptly upon execution of this Agreement, an escrow shall be opened at Old Republic Title Company, 1900 The Alameda, San Jose, CA 95126 (408) 557- 6400 (Escrow number 526475) or other title company acceptable to District and Seller (herein- after "Escrow Holder") through which the purchase and sale of the Property shall be consummated. A fully executed copy of this Agreement shall be deposited with Escrow Holder to serve as escrow instructions to Escrow Holder; provided that the parties shall execute such additional supplementary or customary escrow instructions as Escrow Holder may reasonably require. This Agreement may be amended or supplemented by explicit additional escrow instructions signed by the parties, but the printed portion of such escrow instructions shall not supersede any inconsistent provisions contained herein. Escrow Holder is hereby appointed and instructed to deliver, pursuant to the terms of this Agreement, the documents and monies to be deposited into the escrow as herein provided, with the following terms and conditions to apply to said escrow: A. The time provided for in the escrow for the close thereof shall be on or before July 31, 2003, provided however, that the parties may, by written agreement, extend the time for Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow Holder causes the Grant Deeds (as defined below) to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. B. Seller and District shall, during the escrow period, execute any and all documents and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale pursuant to the terms of this Agreement. C. Seller shall deposit into the escrow on or before the Closing: (i) An executed and recordable Grant Deed, covering the Santa s Clara County Property a described in said Exhibit "A". (ii) An executed and recordable Grant Deed, covering the Santa Cruz County Property as described in said Exhibit "B". D. District shall deposit into the escrow, on or before the Closing: (i) The required Certificates of Acceptance for the Grant Deeds duly executed by District and to be dated as of the Closing; i Exhibit E Purchase Agreement Page 4 (ii) District's check payable to Escrow Holder for the Purchase Price in the amount of Three Million Three Hundred Fifty Five Thousand and No/loos ($3,355,000.00) which is the balance of the Purchase Price of Three Million Three Hundred Sixty Five Thousand and No/100 Dollars ($3,365,000.00) as specified in Section 2. The $10,000.00 Deposit Fee set out in Section 14 of this Agreement shall be applied to the Purchase Price. E. Seller and District shall share (50/50) the escrow fees, the CLTA Standard Policy of Title Insurance, if required by District, and all recording costs and fees. All other costs or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between District and Seiler in the manner customary in Santa Clara and Santa Cruz Counties. All current property taxes on the Property shall be pro-rated through escrow between District and Seiler as of the Closing based upon the latest available tax information using the customary escrow procedures. F. As a condition to close of escrow, Seller shall cause Old Republic Title Company, or other title company acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of$3,365,000 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exceptions 7, 8, 9, 10, 12, 13,14 and 17 as listed in Preliminary Report No. 526475 (Exhibit "A", Santa Clara County Property) and title exceptions 2, 3, 4, 5 and 6 as listed in Preliminary Report No. 226342 (Exhibit "B", Santa Cruz County Property) (iii) such additional title exceptions as may be approved in writing by District prior to the Closing as determined by District in its sole and absolute discretion. G. Escrow Holder shall, when all required funds and instruments have been deposited into the escrow by the appropriate parties and when all other conditions to Closing have been fulfilled, cause the Grant Deeds and attendant Certificates of Acceptance to be recorded in the Office of the County Recorder of Santa Clara and Santa Cruz Counties. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section 5.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 6. Rights and Liabilities of the Parties in the Event of Termination. In the event this Agreement is terminated and escrow is canceled for any reason, all parties shall be Exhibit E Purchase Agreement Page 5 excused from any further obligations hereunder, except as otherwise provided herein. In the event escrow is terminated due to District's default, Seller's remedies shall be as set out in Section 3 herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for payment of its title and escrow cancellation charges (subject to rights of subrogation against any party whose fault may have caused such termination of escrow). District expressly reserves any rights and remedies which it may have against Seller or any other party by reason of a wrongful termination, default or failure to close escrow, 7. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District. A. Authority. Seller has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of Seller have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which Seller is a party or to which Seller is bound. B. Hazardous Materials. To the best of Seller's knowledge, there are no underground storage tanks located on, in or under the Property. There are no Hazardous Materials in, on, under, from or affecting the Property which violate federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, refinement, handling, productions or disposal of Hazardous Materials. There is no violation of any federal, state or local law, ordinance, rule, regulation or policy governing the use, storage, treatment, transportation, release, discharge, disposal, generation, manufacture, handling, production or disposal of Hazardous Materials in, on, under, from, or affecting the Property, and there have been no actions commenced, or, to the best of Seller's knowledge, threatened by any party for noncompliance therewith. For purposes of this Agreement, "Hazardous Materials" includes, without limitation, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other similar federal, state or local government law, ordinance, rule or regulation. Exhibit E Purchase Agreement Page 6 C. No Actions. Seller represents and warrants to District that it is not presently a party to any actions, suits, condemnations or proceedings pending or, to the best knowledge of Seller, threatened against or affecting the Property or its use. D. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof. E. Leases or Occupancy of Premises. Seller warrants that, as of the Closing, there will exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). F. Knowledge of Seller. Wherever Seller's "knowledge" is referenced in this Agreement, such references shall be deemed to be limited solely to the actual knowledge, without imputation and, unless otherwise specifically provided for to the contrary, without independent investigation, inspection or inquiry of Seller. 8. District's Representations and Warranties. District represents and warrants the following to Seller: District has the right, power and authority to enter into this Agreement and to perform its obligations hereunder without the consent of any third party. The persons executing this Agreement on behalf of District have the right, power and authority to do so. This Agreement constitutes the legal, valid and binding obligation of District enforceable against District in accordance with its terms. This Agreement does not violate any provision of any other agreement or document to which District is a art or to which District is bound. g party 9. Integrity of Pro ert . 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. 1 Exhibit E Purchase Agreement Page 7 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A" and Exhibit "B" as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. '4601 et seq.), and the California Relocation Assistance Act, Government Code Section 7260 et seq. Seller hereby waives any and all existing and/or future claims or rights Seller may have to any relocation assistance, benefits, procedures, or policies as provided in said laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. Seller has been advised as to the extent and availability of such benefits, procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights and notice periods except as set forth in this Agreement, including the fair market value of said Property, as provided for by said Federal Law and any similar California Law. 11. "AS-IS" Purchase and Sale. A. Acceptance of Property Condition. Closing of escrow for the transaction contemplated herein shall constitute District's representation that it has examined and inspected the Property and knows and is satisfied with the physical condition, quality, and state of repair of the Property in all respects and has determined that the same is acceptable to District "as is", and "with all faults" condition, and further accepts and agrees to bear all risks regarding all physical conditions and/or defects, latent, patent, or otherwise of the Property except as to the representations and the warranties of Seller contained in this Agreement. District agrees and acknowledges that, except as set forth in this Agreement, no other representations, statements or warranties, express or implied, including any warranties of habitability, merchantability, suitability and fitness for intended purpose have at an time been made b Y P rP Y Y Sellers or their agents, as to the physical condition, quality, value, desirability, or state of repair of the Property. B. Specific Disclosures. District is aware that there is currently a 10 foot by 60 foot green house trailer, a red Datsun pick up truck, a orange International delivery truck and some abandoned personal property located on Santa Clara Assessor's Parcel Number 544- 50-003, commonly referred to as the "Christmas Tree Lot". Furthermore, there is an accumulation of trash and other abandoned personal property on Santa Cruz County Assessor's Parcel Number 091-051-02. Seller will not remove any of this property or correct any of these conditions prior to the Closing, or ever, and District agrees to take the Property subject to such conditions. 12. Disclosure of Property Related Documents. Exhibit E Purchase Agreement Page 8 A. Document Review. Prior to Seller's execution this Agreement, Seller represents and warrants that Seller has furnished to District or made available for review by District (with the right to photocopy the same) all documents in Seller's possession or control, or reasonably obtainable from Seller's consultants, attorneys or agents, excepting any documents which are privileged or confidential under the attorney client privileges, or subject to the attorney work-product privileges, concerning the Property, including: (i) Reports, studies, audits, investigations, inspections, appraisals, tests, and other inquiry materials concerning any physical condition of the Property, or any improvement, structure, facility, road, utility, or water facilities thereupon, including, but not limited to, the environmental or geotechnical condition of the Property and such improvements; (ii) Environmental impact reports, CEQA documents, zoning, land use or development applications or documents relating to the Property; (iii) Government licenses, permits, entitlements or certificates applicable to ownership, use, operation or occupancy of the Property; The foregoing shall be collectives referred to as the "Property Related Documents". Upon Y P Y P District's execution of this Agreement, District has reviewed any and all such documents and completed any investigation or inspection of the Property required by it to satisfy itself II regarding any concerns District may have related to these Property Related Documents or to the physical condition of the Property including without limitation environmental, geologic, flood or safety conditions. B. Notice of Acceptance. District's delivery of executed copies of this Agreement to Seller shall constitute District's written approval of the "as-is" condition of the Subject Property. C. Title. District acknowledges receipt of the documents enumerated in the Preliminary Report No. 526475 (Exhibit "A") as exceptions to coverage identified as Numbers, 12, 13 and 14, and Preliminary Report No. 226342 (Exhibit "B") as exception to coverage identified as number 6 and the rights and obligations associated therewith. 13. Miscellaneous Provisions. A. Access for Investigations. Pursuant to a separate Permission for Access for Inspection of Property dated March 26, 2003 ("Access Agreement"), District and Exhibit E Purchase Agreement Page 9 District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") have been and may continue to enter upon the Property for the purpose of inspecting, testing and evaluating the same. A fully executed copy of the Access Agreement is attached hereto as Exhibit "C" and incorporated herein by this reference. Notwithstanding provisions to the contrary, the termination of the Access Agreement shall be contemporaneous with the Close of Escrow under this Agreement. B. Choice of Law. The internal laws of the State of California, regardless of any choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. C. Attorneys' . If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall be entitled to recover from the other party reasonable expenses and attorneys' fees. D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the time for the performance of any of the obligations of the other party; (ii) waive any inaccuracies in representations and warranties made by the other party contained in this Agreement or in any documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the covenants contained in this Agreement or the performance of any obligations of the other party; or (iv) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. The General Manager is authorized to agree to an extension of the time for the performance of any obligations on the part of District or Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to an other P Y remedies which h parties m have at law or in equity in the event of the r and rem ch the es a rights, owes p y q y g P r partial i n right, terms of this Agreement. The exercise o ar exercise of a breach of any of the g p y g , Exhibit E Purchase Agreement Page 10 power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. i F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express j or other private messenger, courier or other delivery service or sent by facsimile transmission, addressed as indicated as follows: Seller: Presentation Center Attn: Sister Patricia Marie Mulpeters 19480 Bear Creek Road Los Gatos, CA 95033-9519 Telephone: (408) 354-2346 FAX (408) 354-5226 Copy: John C. Callan, Jr., Esq. Luce Forward 121 Spear Street, Suite 200 San Francisco, CA 94105 Telephone: (415) 356-4600 FAX (415) 356-3898 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. CraigBritton, General Manager g Telephone: (650) 691-1200 FAX: (650) 691-0485 notice hall promptly a sent b If sent by facsimile copy, a confirmed copy of such facsimile of ce s p p y b y mail (in the manner provided above) to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a different mailing address or a different person to which such notices or demands are thereafter to be addressed or delivered. Nothing contained in this Agreement shall excuse either parry from giving oral Exhibit E Purchase Agreement Page 11 notice to the other when prompt notification is appropriate, but any oral notice given shall not satisfy the requirement of written notice as provided in this Section. G. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions. H. Counterparts. This Agreement may be executed in separate . counterparts, each of which shall be deemed as an original, and when executed, separately or together, shall constitute a single original instrument, effective in the same manner as if the parties had executed one and the same instrument. I. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. Entire Agreement. This Agreement is intended by the parties to be the final expression of their agreement; it embodies the entire agreement and understanding between the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings relating to the same subject matter. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. L. Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all representations and warranties by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. M. Assignment. Except as expressly permitted herein, neither party to this Agreement shall assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party; provided, however, that District may assign all of its rights and obligations hereunder to Peninsula Open Space Trust (POST) without further approval of Seller. Exhibit E Purchase Agreement Page 12 N. Further Documents and Acts. Each of the parties hereto agrees to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to consummate and carry into effect the transactions described and contemplated under this Agreement. O. Binding on Successors and Assigns. This Agreement and all of its terms, conditions and covenants are intended to be fully effective and binding, to the extent permitted by law, on the successors and permitted assigns of the parties hereto. P. Broker's Commission. There are no real estate brokers or finders involved in this Agreement. Seller and District shall each indemnify and hold the other harmless from any loss, claim, liability, judgment or expense of whatsoever kind and nature, including attorneys' fees, arising out of, or in connection with, any claim for a brokerage commission or finder's fee by any person claiming through Seller or District, respectively. Q. Capt_i_o_ns. Captions are provided herein for convenience only and they form no part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement, nor as evidence of the intention of the parties hereto. R. Pronoun References. In this Agreement, if it be appropriate, the use of the singular shall include the plural, and the plural shall include the singular, and the use of any gender shall include all other genders as appropriate. S. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof, the parties agree first to participate in non- binding mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through mediation within thirty (30) days of the aggrieved parry's written notice to the other, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding arbitration. The parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et. seq. including the right of discovery. Hearings shall be held in Santa Clara County, California. If the parties are unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL i Exhibit E Purchase Agreement Page 13 ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION. SELLER INITIAL DISTRICT INITIAL 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before noon on July 8, 2003, District shall have until midnight July 23, 2003 to accept and execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by Seller to sell and convey the Property to District for the consideration and under the terms and conditions herein set forth. Said offer shall remain irrevocable during this period without the necessity of execution and acceptance of this Purchase Agreement by District. As consideration for said irrevocable offer, District has paid into escrow a Deposit Fee and Seller acknowledges receipt of the sum f Ten Thousand Dollars an N g p o housa d d of 100 ($10,000.00), which shall be applied to the Purchase Price as set forth in Section 2 hereof, and shall constitute liquidated damages pursuant to Section 3 of this Agreement in the event District fails to complete this purchase by reason of a default by the District. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers to be effective as of the date of final execution by District. 111 l!/ 111 //1 Exhibit E Purchase Agreement Page 14 DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN PRESENTATION CENTER SPACE DISTRICT ACCEPTED FOR RECOMMENDATION Date: Michael C. Williams, Real Property Representative APPROVED AS TO FORM: Susan M. Schectman, District Counsel RECOMMENDED FOR APPROVAL: L. Craig Britton General Manager APPROVED AND ACCEPTED: President, Board of Directors ATTEST: District Clerk Date: EXHIFJI*r * *OLD REPUBLIC TITLE COMPANY 1900 THE ALAMEDA • SAN JOSS,CA • 95126 • (408)557-8400 Fax:(408)249-2314 PRELIMINARY REPORT AMENDED-2/Update Issued for the sole use of: Our Order No. 526475-NM MIDPENINSULA REGIONAL OPEN SPACE Reference 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Fischer i Nicole Monsees Buyer: Midpeninsula Regional Property Address: 19480 Bear Creek Road, Los Gatos, CA [Unincorporated area of Santa Clara County] In- response to the above referenced application for a policy of title insurance, OLD REPUBLIC TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance descnbrng the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown of referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to Provide you with notice of matters which are not covered under the terms of the title insurance policy and should be y ull caref considered. It is important to note that this preliminary report is not a written representation as to the condition p p rY p p of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. Dated as of February 21st ,2003 ,at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to,See Attached Page 1 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE as to Parcels One, Two, Three, Four, Five and Six and EASEMENTS as to Parcels Seven and Eight. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, Los Gatos, a California corporation Page 2 of 12 Pages � OLD REPUBLIC TITLE COMPAW � ORDEmmO. 520475-0M AMENDED-2/Update The land referred to in this Report is situated in the County of � State uf California, and |o described aofollows: � PARCEL ONE: J\ part of Section 6, Township 9 South, Range l West, M.D.M. Beginning at a one ±ocb iron pipe at the Northeast corner of the Northwest 1/4 of Section 7, Township 9 South, Range l West, M.D.M. ; and running tbeooa along the line between Sections G and ?, North 89' 50' West, 102I.I feat to an iron pipe in the center line of the Bear Creek Road; thence along the said center | line North 50^ 30' East, 283'8 feet/ tb0000 North 66' 15' East, 283.8 feet/ � thence North 13` OO/ West, 194,7 feet; tbauoe North 85^ 45' East, 132.66 feet; � � thence North 67. OO' East, 135,3 feet; thence North 13. OO' East, 181.5 feet; � thence North 68' 30' East, 158,4 feet; thence South 66' 30' East, 166.3 feet/ thence North 89^ 09' East, 90.8 feet; thence North 39' 32' East, 140'7 feet; thence North 27^ 36' East, 108,1 feet; thence North 2` 51 ' East, 20I.2 feet/ | thence North 60' 07' East, 241.3 feet; thence North 4^ 49' East, 216.3 feet; � thence North 22^ 451 East, 110'35 feet; thence North 55^ 24' East, I80'75 feet; � � . thence North 23. O4` East, 103,15 feet/ tbeoma North 7 OO' West, 93'85 feet to a point opposite the old lane leading to the residence of B. P. Rankin and William Rankin and from said last named point, a sycamore tree one foot in � � diameter bears South 28' 41' West, 36.8 feet and a nail in a Madznne tree bears North 22' 18' West, 59'85 feet; thence along the center line of said lane, South 70^ 12' East, 123.1 feet/ thence South 55^ 33' East, 72.92 feet; thence South 42^ 20' East, 91.45 feet and South 32^ 13' East, 137.75 feet to an iron pipe/ thence running North 56^ 30' East, 109.7 feet to an iron pipe; thence North 52^ 04' East, 475.12 feat to a 2 ioob iron pipe in the bottom of a ravine; thence � � down the bottom of said ravine the following courses and distances: South 67_ � 47' East, 140.55 feet; South 59^ 31 ' East, 84,4 feet; South 47' 57' East, 70.8 feet; South 49` 39` East, 71,2 feet/ South 61^ 25' East, 123.8 feet; South 42^ 24' East, 32'5 feet; South 56^ lG' East, 73' 9 feet; South 63' 15' East, 82.5 feet; South 43` 46' East, 85.1 feet; South 48^ 50' East, 80,7 feet; South 37` 16' East, 115'6 feet; South 26' 21' East, 54'4 feet to a point in the center Iioa of a creek known as Collins Creek; thence op the center line of Collins � | Creek the following courses and distances: South 45^ 161 West, 63. 6 feet; South 32~ 48' West, 56. 6 feet; South 42~ 48' West, 72.1 feet; South I3^ 15' West, 54,0 feet; South 44^ 55` West, 75.1 feet/ South 72- 12' West, 40.3 feet; South 50^ 32' West, 47.1 feat/ South 61^ 57' West' 65.7 feet; South 40` 07' West, 34.2 feet/ South 33^ 17` West, 72.6 feet/ thence South 44^ 41 / West, 94.3 feet; South � | ll` 09' West, 49. 6 feet/ South 81' 40' West, 72.2 feet; South 33^ 46' West, 70.4 | feet; South 68' 26' West, 43'7 feet; South 38' 23' West, 139'8 feet; South 53- 37' West, 94,7 feet; South 81^ 47' West, 52.6 feat; South 37^ 20' West, 51.8 feet; South 54' 14' West, 104.5 feet; South 80^ 53' West, 200.00 feet; North 78' 15' West, 134.2 feet; South 73^ 27' West, 38.5 feet; South 81' lU/ West, 29.4 feet/ South 47^ 54' West, 52.4 feet; South 63^ 37' West, I09.4 feet; South 30~ 55' West, 59,5 feet; South 48^ 23' West, 219,2 feat/ South 67^ 29/ West, 68.15 ' feet; South 41` 40` Rest, 76,2 feat/ South 61^ 05' West, 48.0 feet/ and South 62~ 06' West, 51,0 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range 1 West, and from said iron pipe, a redwood tree 8 inches in diameter bears North 71' 45' East, 36^0 feet and a tan oak tree 16 iooben in OLD REPUBLIC TITLE COMPANY ORD00;JO. 626475-NM � AMENDED-2/Update � � diameter bears North 41' East, 47.5 feet; thence along the line between said Sections 6 and 7, North 88' 40' West, 408.0 feet to the place of beginning. PARCEL TWO: � Beginning at an iron pipe at the Northeast corner of the Northwest 1/4 of � Section 7, Township 9 South, Range l West, 8.Q'M'/ and running thence along the 1/4 Section line through the center of Section 7, South O' 35' West, 96,9 feet to a one inch iron pipe in the bottom of a ravine known as Collins Creek; and thence continuing South O^ 35' West, 563.1 feet to a one ioob pipe from a width of a one foot tan oak bears South 45` 00' East, 3'2 feet and a 6 ioob tan oak bears North 30' OO' East, 11,3 feet/ tbeuow parallel with the line between Sections 6 and 7, North 88^ 50' West, 730.3 feet to a one ioob pipe in the bottom of said Collins Creek and continuing North 89` 50' West, 364.8 feet to an � iron pipe in the center line of the Bear Creek Road, from which 5 nails in a redwood stump 7 feet in diameter bears North 46^ 37' East, 18,36 feat and a maple tree 6 inches in diameter bears South 49' 54' East, 26.33 feet; thence along the center line of the Bears Creek Road, North U^ 37' East, I30.9 feet; � thence North 31^ 34' East, 98.9 feet; thence North 2^ 58' East, 126.6 feet/ thence North 38^ 42' East, 133.0 feet/ tbaone North 54^ 33' West, I41.0 feet; � thence North 21, 57' East, 143.4 feet to an iron pipe in the line between Sections 6 and 7, Township 9 South, Range I West from which an old blaze on a redwood stump 4 feet in diameter bears North 5' West, 37 feet and lO ioob maple tree bears South 25~ 04' East, 30'8 feet/ thence along the line between Sections 6 and 7, South 89^ 50' East, I021.I feet to the glace of beginning and being a part of the Northwest I/4 of Section 7, Township 8 South, Range l West, M.D.W. PARCEL THREE: All that certain real property situate partly within the County of Santa Clara and partly within the County of Santa Cruz, State of California, described as follows: The 0nztb 1/2 of the Northwest 1/4 of Section 7, Township S South, Range l West � and the Northeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. � EXCEPTING THEREFROM, however, that certain tract conveyed by Lucy Jane Russell and John Russell, her husband to Mary A. Laddiok by Deed dated December lU, 1886 and recorded in the Office of the Recorder of Santa Clara County on January ll, 1887 in Book 87 of Deeds, Page 821, and more particularly described as follows: Commencing at the intersection of the East line of MelIotto Road with the North line of the North I/2 of the Northwest 1/4 of Section 7, Township 9 South, Range l West, M'D'B.aM' ; and running thence Southeasterly and Southerly along the East line of said MeIotto Road at a place called the "Grecian Band"; thence Northerly and Northeasterly along the West aide of the County Road, about 44 rods to the intersection thereof with the said North line of Section 7 aforesaid; and tbe000 West along the said North line of said Section 7 about 42 rods to the place of beginning. Containing approximately 6 acres and being a part of said North 1/2 U| Page 4 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update of the Northwest 1/4 of Section 7, Township 9 South, Range 1 West, M.D.B.&M. EXCEPTING THEREFROM also, so much thereof, as is described as Parcel Number Two hereinabove. PARCEL FOUR: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California described as follows: Commencing at a point which is the Northeast corner of the Southwest quarter of Section 7, Township 9, South Range 1 West and running thence Southerly and along the Easterly line of said quarter Section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly courses and following the meandering of the center line of said Summit Road to a stake marked "S C12211; thence Westerly in a straight line 145 feet to a stake set in the center of said Zayante Road; thence Westerly and along the center of Zayante Road, 328 feet to a stake, 24 feet in a Northeasterly direction from a madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9 South, Range 1 West (said North line being the dividing line between lands of John and Sarah V. Hetherington and the land of W. D. Von Lone) to the place of beginning. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL FIVE: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South, Range 1 West, Mount Diablo Base of Meridian. Excepting however therefrom the portion thereof known as the Apple Orchard. PARCEL SIX: All that certain real property situate partly within the County of Santa Cruz and partly within the County of Santa Clara, State of California, described as follows: The Northwest 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West and the Southeast 1/4 of the Northeast 1/4 of Section 12, Township 9 South, Range 2 West, Mount Diablo Meridian. i Excepting from Parcels 1, 2, 3, 4, 5, and 6, above, any portion of said Parcels I Page 5 of 12 Pages i OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update lying within Santa Cruz Count California. Y g Y PARCEL SEVEN: An Easement for the installation, construction, maintenance and repair of a water pipeline, being a strip of land 20 feet in width, situate in the County of Santa Clara, State of California, lying entirely within those certain parcels of land designated as Parcel Two and Parcel Eleven, conveyed by The California Province of the Society of Jesus, a corporation, to Hong Kong Metro Realty Inc., a corporation, by Deed dated September 12, 1989, recorded September 13, 1989 in Book L091 at Page 104, Official Records of Santa Clara County, being 10 feet on each side of the following described center line: Beginning at a point on the general Westerly boundary of the existing State Highway 17, known as Section C, Route 5, District IV, Santa Clara County; said point being opposite to Engineer's Centerline Station 163+00, as shown on that certain State of California Department of Public Works Division of Highways "Right-of-Way Record Map, R-52.15"; said point also being the Northerly terminus of the line described as "North 24. 25' East, 580.00 feet" in that certain Deed to the State of California, recorded November 22, 1937 in Book 843, at Page 569, Official Records of Santa Clara County; thence along said Westerly boundary, South 24' 25' 00" West, a distance of 510.22 feet to the true point of beginning; thence leaving said Westerly boundary along a now existing waterline, the following courses: North 67° 01' 11" West, a distance of 5. 63 feet; thence South 81' 36' 30" West, a distance of 54. 97 feet; thence South 43' 29' 39" West, a distance of 337.23 feet; thence South 33' 30' 37" West, a distance of 139.66 feet to a point designated as "Point A"; thence North 65. 26' 45" West, a distance of 231.38 feet; thence South 63. 23' 26" West, a distance of 80.57 feet; thence North 7 i' 511 46„ West a distance of 269.78 feet; thence North 5 3 431 23" West, a distance of 123. 96 feet, thence North 66' 161 40 West, a distance of 104.25 feet; thence North 48' 21' 18" West, a distance of 156.44 feet to a point of curvature; thence Westerly along a 150.00 foot radius tangent curve to the left through a central angle of 57' 27' 47", a distance of 150.44 feet to a point of tangency; thence South 74` 10' 55" West a distance of 63.54 feet to a point of curvature; thence Westerly along a 100 foot radius tangent curve to the right through a central angle of 48* 17' 19", a distance of 84.28 feet to a point of tangency; thence North 57° 31' 46" West, a distance of 117.58 feet; thence North 87' 31' 20" West, a distance of 173.81 feet; thence South 79` 56' 02" West, a distance of 52.37 feet to a point designated as "Point B"; thence South 35' 56' 51" East, a distance of 59.05 feet; thence South 48. 33' 24" East, a distance of 135. 94 feet to a point of curvature; thence Southerly along a 65.00 foot radius tangent curve, through a central- angle of 81` 20' 40", a distance of 92.28 feet to a point of tangency; thence South 32" 47' 16" West, a distance of 228.03 feet; thence South 51' 35' 12" West, a distance of 119.00 feet; thence South 04' 34 ' 59" East, a distance of 115. 60 feet; thence South 19' 48' 54" West, a distance of 66.38 feet; thence South 54' 53' 13" West, a distance of 167.04 feet; thence North 83' 23' 10" West, a distance of 86. 82 feet; thence South 47` 45' 21" West, a distance of 23.30 feet; thence South 09' 36' 07" West, a distance of 59.06 feet; thence South 43' 22' 11" West, a Page 6 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update distance of 364.83 feet; thence South 26' 15' 11" West, a distance of 37.53 feet; thence South 00' 58' 33" West, a distance of 45.34 feet; thence South 32' 55' 13" West, a distance of 129.01 feet; thence South 64' 10' 01" West, a distance of 102.04 feet to a point of curvature; thence Southwesterly along a 400.00 foot radius tangent curve to the left, through a central angle of 27' 31 ' 5011, a distance of 192.20 feet to a point of tangency; thence South 39' 38' 11" West, a distance of 81.44 feet; thence North 78' 41' 22" West, a distance of 24.21 feet; thence North 17' 11' 38" West, a distance of 241.08 feet; thence North 13` 25' 33" East, a distance of 129. 65 feet; thence North 85` 02' 23" West, a distance of 122. 68 feet; thence South 85' 38' 23" West, a distance of 202. 60 feet; thence South 00` 00' 24" East, a distance of 41.26 feet; thence South 16* 14' 40" West, a distance of 175.28 feet; thence South 36' 22' 14" West, a distance of 20.23 feet; thence South 84° 29' 12" West, a distance of 240.05 feet to a point of curvature; thence Westerly along a 500.00 foot radius tangent curve to the right, through a central angle of 22" 18' 12", a distance of 194. 63 feet to a point of tangency; thence North 73' 12' 36" West, a distance of 172.10 feet; thence North 49' 27' 19" West, a distance of 140.24 feet; thence South 38` 54' 48" West, a distance of 61.71 feet; thence South 23' 23' 22" West, a distance of 105.56 feet; thence South 08' 59' 08" East, a distance of 107.30 feet; thence South 14' 49' 01" West, a distance of 46.08 feet; thence South 33' 11' 18" West, a distance of 247. 99 feet; thence South 77' 55' 31" West, a distance of 66. 93 feet; thence North 67' 34' 43" West, a distance of 50.52 feet; thence South 80" 21' 44" West, a distance of 37.39 feet, more or less, to a point on the boundary line common to the lands, now or formerly of the Presentation Center, Los Gatos, and Hong Kong Metro Realty; said point bears North 42' 30' West, a distance of 29.14 feet from the Southerly terminus of the line described as "North 42 1/2' West, 2. 90 chains" in the Description of said Parcel Eleven in said Deed recorded in Book L091 at Page 104, Official Records of Santa Clara County; said point also bears South 62` 46' 49" East, a distance of 367.38 feet from a redwood tree stump 6 feet in diameter and 10 feet high, as said stump is described in said Deed; said point also being the terminus of this strip Easement. PARCEL EIGHT: An Easement for the installation, construction, maintenance and repair of a water pipeline and water tank, lying entirely within Parcel Two in the Deed recorded September 13, 1989 Recorder's Document No. 10251767. Beginning at the hereinabove described "Point A"; thence along the hereinabove centerline North 33' 30' 37" East, a distance of 8.55 feet; thence at right angles to said center line, North 56' 29' 23" West, a distance of 10.00 feet to an angle point in the Northerly line of the hereinabove described strip Easement; said angle point being the true point of beginning; thence along said Northerly line, North 33' 30' 37" East, a distance of 11.21 feet; thence leaving said Northerly line, North 20' 10' 40" West, a distance of 73.49 feet; thence North 47' 16' 04" West, a distance of 48. 63 feet; North 30" 34 ' 40" West, a distance of 98.81 feet; thence North 67' 26' 26" West, a distance of 175.70 feet; thence North 08" 08' 27" East, a distance of 38.28 feet to a point on a non-tangent curve to the left, the center of which bears North 00 51' 40" West, Page 7 of 12 Pages I OLD REPUBLIC TITLE COMPANY ORDER NO. 52 6475-NM AMENDED-2/Update a distance of 46.87 feet; thence along said curve, through a central angle of 335' 19' 11", a distance of 274.31 feet; thence South 08° 08' 27" West, a distance of 54. 96 feet; thence South 67' 26' 26" East, a distance of 184.54 feet; thence South 30' 34' 40" East, a distance of 95.08 feet; thence South 47' 16' 04" East, a distance of 46.74 feet; thence South 20' 10' 40" East, a distance of 64.45 feet to the Northerly line of the hereinabove described strip Easement; thence along said Northerly line, South 65' 26' 45" East, a distance of 14.08 feet to the true point of beginning. I 544-31-005 - 80 007 544-31-006 - 80 007 544-50-003 - 80 007 544-50-005 - 75 000 544-50-006 - 75 000 CR/Cl/dot A544-31-001, -003, -005 and -006 upd/ja2/24/03 upd/ja3/3/03 Page 8 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. 2. Taxes for the fiscal year 2002-03. Bill No. : 544-31-005, Code Area: 80007 First Installment: $54.04, has been paid Second Installment: $54.04, a lien, due and payable The above installments include a property tax exemption of NONE. 3. Taxes for the fiscal year 2002-03. Bill No. : 544-31-006, Code Area: 80007 First Installment: $4, 957.22, has been paid Second Installment: $4, 957.22, a lien, due and payable The above installments include a property tax exemption of NONE. 4. Taxes for the fiscal year 2002-03. Bill No. : 544-50-003, Code Area: 80007 First Installment: $163. 61, has been paid Second Installment: $163.61, a lien, due and payable The above installments include a property tax exemption of NONE. 5. Taxes for the fiscal year 2002-03. Bill No. : 544-50-005, Code Area: 75000 First Installment: $158. 93, has been paid Second Installment: $158.93, a lien, due and payable The above installments include a property tax exemption of NONE. 6. Taxes for the fiscal year 2002-03. Bill No. : 544-50-006, Code Area: 75000 First Installment: $20.48, has been paid Second Installment: $20.48, a lien, due and payable The above installments include a property tax exemption of NONE. 7. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq. , of the Revenue and Taxation Code of the State of California. 8. Any easement for water course over that portion of said land lying within the banks of Collins Creek and any changes in the boundary lines of said land that have occurred or may hereafter occur from natural causes. 9. Water rights, claims or title to water, whether or not shown by the Public Records. 10. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Summit Road, Bear Creek Road also known as Dougherty Road, Upper East Zayante Road and Mellott's Road (or any of said roads or highways) . Page 9 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 11. Easements or Rights of Access, if any, "over the present road leading through the said tract of land. . .to the land of J. C. Moody", as set forth in the Deed from Charles B. Rogers et ux, to Montezuma Mountain Ranch School, recorded January 24, 1912 in Book 383 of Deeds, Page 35, Santa Clara County Records. Affects Parcel One. 12. Agreement for Executed by Montezuma Mountain Ranch School and Between Harry L. Tevis On the terms, covenants and conditions contained therein, Dated May 7th, 1926 Recorded May 21st, 1926 in Book 240 of Official Records, Page 488 For appropriation of water from Collins Creek and discharges of sewage and waste water into Collins Creek. Supplemental Agreement recorded June 9, 1926 in Book 251, Page 89, Official Records. 13. Williamson Act - Land Conservation Contract as follows: City/County Santa Clara Landowner Sisters of the Presentation, Los Gatos Recorded February 23rd, 1976 in Book B879 of Official Records, Page 743 Contract/File No. Resolution Altering Boundaries of the Agricultural Preserve in the County of Santa Clara, recorded February 26, 1976 in Book B885, Page 605 and re-recorded March 22, 1976 in Book B927, Page 474, Official Records. 14. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following instrument: Granted to General Telephone Company of California For Poles, cables, crossarms, wires, anchors, guys, braces, underground conduits, manholes and appurtenances for the transmission of electric energy for communication and other purposes Recorded July 2nd, 1986 in Book J752 of Official Records, Page 575 Affects A strip of land 12 feet in width, in the Southeast 1/4 of the Nrothwest 1/4 of Section 7, Township 9 South, Range 1 West, within the Southerly 54 feet of the land lying Northerly of Summit Road and Westerly of Bear Creek Road. 15. Any unrecorded and subsisting leases. Page 10 of 12 Pages ' � � � � � OLD REPUBLIC TITLE COMPAW � � ORDERNO. 526475-0M � AMENDED-2/Update 16, The requirement that this company be provided with a suitable Dwoar`a Affidavit from the Seller (form O8T 174) or a copy of the Real Estate Transfer Disclosure Statement "TDS" (California Civil Code Section 1102, et seq.) . The Company reserves the right to make additional exceptions and/or requirements upon review of the Owner's Affidavit and/or the "TDS"' 17. "The loaoriog clauses of the policy notwithstanding, the company does not � insure against Ioaa reluIting from any shortage in area, diaoraapaooy in boundary lines or other matters which would be disclosed by survey made by licensed land � surveyor". � lD' The requirement that a certified copy of a resolution of the board of � � directors be furnished to this Company authorizing or ratifying the proposed � conveyance, and that there be annexed to the conveyance a certificate of � compliance and approval meeting the requisites of Section 9632 Corporations Code, and that its articles of incorporation and its by-laws be furnished to this Company for review prior to the recordation of such conveyance. -------------------- Informational Notes -------------------- l. The last recorded instrument(s) conveying record title to the premises is/are: A deed executed by Sisters of the Presentation, a California corporation to Presentation Center, Loa Gatos, a California corporation, recorded August 4tb, 1992 in Book M3I2 of Official Records, Page 2035, The last conveyance affecting said land recorded within the last two years, prior to the date of this Report are: NONE. 2. County recorder will charge an additional $ 10.00 "Monument User Fee" to | record a Grant Deed using the legal description in this report. � 3' The mailing address of the veatee as shown in the records is: 19480 Bear Creek Rd, Ima Gatos, CA 95033. 4' The applicable rate(s) for the policy(s) being offered by this report or � commitment appears to be section(s) 3.1, � | � 5. Short Term Rate ("STB") does not apply. Page 11 of 12 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 526475-NM AMENDED-2/Update 6. In addition to existing requirements pertaining to sellers who are non-residents of California, as a result of recent changes to Section 18662 of the Revenue and Taxation Code, in transactions closing after January 1, 2003 the buyer may then be responsible to withhold 3 1/3% of the sales price (as defined therein) from any seller, if this property is not the seller's principal residence. The statute, as modified, also provides for certain exemptions to the buyer's responsibility to withhold, which may apply. Page 12 of 12 Pages O F F I C C O F C O U N T Y A S S E S S O R S A N T A C L A R A C O U N T Y C A L I F O R N I A (l sow .......... ........._ 4 544 JIF 50 SI IAIDPENIAS'UlA REG. OPEN SPACE DIST. O r TWF Is- P2W T"P 45-it1W ru x rulmr +Z T rm•n.0 of .c a ! r- p (D 4 a f "TO 1 i 19 n e��.bt4 Q 6 :M W.B. M Lp Q T ` '� n 3! c0 K nO IL LOT 11 "SU%AMIT l F ' O• - 56 9Q S A N T A l o I . J 1 1. CO. DWY. ESTABLISHED BY ORD_M-N.S-3.13 11-19-Ti 35 17l.Y K GA � d no K 4 1" = 500' rasu— LA NCE E. STONE- ASSESSON Cod.d.-,w 1.cww l P-F— Vi Camp7ed under R.A'Codk Sac.377. EN-d.IMA Yet 2M-IM i 0 F F I CE OF , COUNTY ASSESSOR SAN TA C L A R A COUNTY . C A L I F0R4IADow A 31 A q �, ! a 5 4 �p W\ ' 0 O `pf�d• +'avr. - ... ..__ .. � � J -� II Fes-' TMPealw I TGVSIW �:.:W I i 31.3• 'lu• VCL M•10 t 3 XL M.1 r r` p.l'!AC , 04M1� 1�•r. —.•rf � •tea a .� KLWf i• .«. .. a _ Toc. 7- s�l ♦ J )SIK�\ sit. •r` .,,' --`,�-----� (rs�j4°• �O.pea ; w/ 'tom' ? )fit',± •� •• � rs NOVITIATE OF L05 GA705 •° 'ao w.■ LWn ® i K. 6 a1.vAc * T,4 R •' (nxjMJ• c4 ram. i „w. W a Q •v ' �. t,..•a. sS .,• a 2L59 AC GP •S 4 •K,. •/p t I a■M) °4ow� �� F . • T•1.t NOVt7tATE OF i1O LOS GATQS �' OM7VEA5 AE4U£ST { 791d-mrs mac 1■ww {fC •m<. w� •No. a•+ emu■: t•�� ) �.•c+ (nrvc■> � � 1 I 59.24 AC GR ` na O � .•iraAo• �` >b r 0 � 3 Cmfhd n ce'k'■1oKa rla x.S77•f\1■ e.r 7.e■de F.m■eaartt•raw.)a117 i Eft•ettw far R•t Y■■r1999-2000 .AVIRCVCE E. S*ONC - -SS-SSCR ------------- * * OLD REPUBLIC TITLE COMPANY Ills* * ** 20 E.ALISAL STREET • SALINAS,CA • 93901 • (831)757-8051 Fax:(831)373-4863 PRELIMINARY REPORT UPDATE z Issued for the sole use of: Our Order No. 22 6342-T MidPeninsula Regional Open Space District Reference 526476 330 Distel Circle Los Altos, California 94022 When Replying Please Contact: Attention: Tom Old Republic Title Company 1900 The Alameda Buyer: MidPeninsula Regional Open San Jose, CA 95126 Space District Attn: NICOLE MONSEES (408) 557-8400 Property Address: In response to the above referenced application for a policy of title insurance, OLD REPUBLIC TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown of referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide ou with notice of matters which are not covered p 'r under the terms of the title insurance policy and y p Y should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. Dated as of February 12th 2003 at 7:30 A.M. OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to,See Attached Page ___1 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The form of policy of title insurance contemplated by this report is: a CLTA Standard Coverage (1990) Owner's Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred to covered by this Report is: a FEE. Title to said estate or interest at the date hereof is vested in: PRESENTATION CENTER, LOS GATOS, a California Corporation Page 2 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I The land referred to in this Report is situated in the County of Santa Cruz , in the unincorporated area, State of California,and is described as follows: PARCEL I: The North half of the Northwest quarter of Section 7, in Township 9 South Range 1 West, and the Northeast quarter of the Northeast quarter of Section 12, in Township 9 South, Range 2 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road, Summit Road and Skyline Boulevard. PARCEL II: Commencing at a point which is the Northeast corner of the Southwest Quarter of Section 7, Township 9 South, Range 1 West and running thence Southerly and along the Easterly line of said quarter section to a stake set in the center of the Summit Road; thence in a Northerly and Westerly course and following the meandering of the center line of said Summit Road to a stake marked "S C 122"; thence Westerly in a straight line 145 feet to a stake set in the center of Zayante Road; thence Westerly and along the center of said Zayante Road, 328 feet to a stake, 24 feet in a' Northeasterly direction from a Madrone tree about 6 inches in diameter and 7 feet in a Westerly direction from a Madrone tree of similar dimensions; thence Westerly in a straight line to a stake at the Northwest corner of said Southwest quarter of Section 7; thence Easterly and along the North line of said Southwest quarter of Section 7, Township 9, South Range 1 West, (said North line being the dividing line between lands of John and Sarah V. Hetherington and the lands of W.D. Van Lone) to the place of beginning. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Summit Road. PARCEL III: Lot 2 and the Southeast one-quarter of the Northwest one-quarter of Section 7 Township 9 South Range 1 West, Mount Diablo Base and Meridian. Excepting therefrom those portions of land lying within Santa Clara County. Excepting therefrom those portions of land lying within the boundaries of Bear Creek Road and Summit Road. Assessor's Parcel Number: 091-051-02 and 091-051-03 Page 3 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows; 1. Taxes and assessments, general and special, for the fiscal year 2003-2004 a lien, but not yet due or payable. Code No. : 65-021 Assessor's Parcel No. : 091-051-02 and 091-051-03 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq. , of the Revenue and Taxation Code of the State of California. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. Rights of the public, County and/or City, in and to that portion of said land lying within the lines of Upper East Zayante Road. 5. Any easement for water course over that portion of said land lying within the banks of Zayante Creek. 6. Recitals shown or noted upon a map as follows: i i Map Entitled Record of Survey , Lands of Parola and Pirone Filed On October 26th, 1967 in Volume 48 of Maps, at Page 29 Which Says "NOTE: The centerline of Summit Road as travelled, shown and delineated on this map is in conflict with the centerline of record and declared a Public Highway in 1889" 7. NOTE: Office of the Secretary of State Corporate Filing 1500 - llth, 3rd Floor Sacramento, CA 95814 (916) 657-5448 Reports that Presentation Center, Los Gatos, a California Corporation, was incorporated on February 9, 1959 and is presently in good standing. 8. The requirement that a certified copy of a resolution of the board of directors be furnished to this company authorizing or ratifying the proposed conveyance or encumbrance of said land.d. i Page 4 of 5 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 226342-T UPDATE I -------------------- Informational Notes -------------------- 1. NOTE: According to the public records, there have been no deeds conveying the property described in this report recorded within a period of two years prior to the date hereof except as follows: NONE 2. The applicable rate(s) for the policy(s) being offered by this report or commitment appears to be section(s) 2.1. Short Term Rate ("STR") does not apply. 3. Taxes and assessments, general and special, for the fiscal year 2002 - 2003 as follows: Assessor's Parcel No. 091-051-02 Code No. 65-021 lst Installment $0.00 2nd Installment $0.00 Land $785.00 Imp. Value $0.00 P.P. Value $0.00 Exemption $755.00 4. Taxes and assessments, general and special, for the fiscal year 2002-2003 as follows: Assessor's Parcel No. : 091-051-03 Code No. : 65-021 1st Installment $ 96.91 Marked Paid 2nd Installment $ 96.91 Marked Paid Land $ 9,700.00 Imp. Value $ 0.00 P.P. Value $ 0.00 Exemption $ 0.00 JT/js 9/20/01 end Examined By: Julie Timsak GA/UPT/2-24-03 Page 5 of 5 Pages POR. SEC. 7, T 9 S., R'. l W.,"8 .SEC. /2, T 9 5,R.2-W., M.Q B.8 M. Tax Area code 91 -05 65� . FOR TAX PURPOSES ONLY -MkW.1k1w,....W Mkm,Fy r...b„d..iM nk..o wm..wr Compliments of . OLD RFPTJBI:IC 1 z 7 ..w....x..,..,. Title Corng>irry a z 1 400' W 1 1 b y -44 NTA 6�rq 1 c 1 s4y�4 3 YS .. b.'y�i 'i1�. I CMG ■ ' t. 33 • N !/ • 1 1 1 1 —�-o Q6 UPPER EAST ZAYANTE RD. 502,J'. C 6j • VAh1yw Note -Assegors Poree/ 0100 B Assessor's Afop No. 91-05 '.�k a . Lot Ni,c*bers Shownin'Ejrc%s. County of-Santa Cruz, Calif Ju/y 1953 PERMISSION FOR ACCESS FOR INSPECTION OF PROPERTY For the purpose of conducting an inspection to determine the condition of the Property under negotiation (defined below), the Midpeninsula Regional Open Space District and the District's employees and/or consultants (hereafter collectively referred to as "District") may, upon giving reasonable advance written notice to Presentation Center, Los Gatos, a California corporation ("Presentation"), enter upon the Property owned by Presentation commonly known as Santa Clara County Assessor's Parcel Numbers 544-31-005 and 006, 544-50-003, 005 and 006, and Santa Cruz County Assessor's Parcel Numbers 091-051-02 and 003 (hereafter "the Property"); provided that District shall give at least 2 days prior written notice of each proposed entry by District. The access is granted as of the date last set forth below ("Effective Date") and shall terminate 60 days from the Effective Date. This Permission for Access is for the purpose of inspecting, testing and evaluating the Property; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed. District shall indemnify, protect, defend and hold Seller free and harmless from and against any and all claims, actions, causes of action, suits, proceedings, costs, expenses (including, without limitation, reasonable attorneys' fees and costs), liabilities, damages, and liens caused by the activities of District while upon the Property pursuant to this Permission for Access, provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from discovery of any hazardous substances or other preexisting adverse conditions on the Property. Prior to District's initial entry onto the Property, District shall provide Presentation with proof of liability insurance for District and its agents in commercially reasonable policy limits and a certificate of insurance naming Presentation as an additional insured. Proof of Membership in a government self-insurance pool shall satisfy this requirement. District's inspections shall be at District's sole expense. District shall repair any damage to the Property that may be caused by the District while on the Property performing its inspections. Read and Approved Midpensinsula Regional Open Presentation Center, Los Gatos, Space District a California corporation By: ' � By: Its: Its: Dated: ?, t ? Dated: �_ Recording Requested By and When Recorded Return to: State Coastal Conservancy 1330 Broadway, Suite 1100 Oakland, CA 94612 Attn: Legal Counsel DECLARATION OF COVENANTS, Preserve: Bear Creek Redwoods Open Space Preserve CONDITIONS AND RESTRICTIONS Project: Bear Creek Redwoods Expansion APN: 544-50-003, 544-50-005 and 544-50-006 RECITALS A. The CALIFORNIA COASTAL CONSERVANCY ("Conservancy") and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT("District")entered into the"Grant Agreement No. 02-205"between the Conservancy and District"("Agreement"), dated June_, 2003 to partially fund the District's acquisition of the real property, as described in the attached Exhibit I and incorporated by this reference ("Real Property"). B. The Conservancy has partially funded District's Real Property acquisition for the purposes of natural resource protection, public access and open space preservation. C. Under the terms of the Agreement, District has agreed to dedicate the Real Property as public open space and comply with the terms and conditions of this Declaration of Covenants, Conditions and Restrictions("Declaration"). THEREFORE,District agrees to the covenants, conditions and restrictions to the Real Property as described in Exhibit I, as fully set forth herein. 1. COVENANTS CONDITIONS AND RESTRICTIONS A. Purpose. The Real Property was acquired by District pursuant to a grant of funds from the Conservancy, for the purposes of natural resource protection, public access and open space preservation. No use of the Real Property inconsistent with that purpose is permitted. B. Dedication. The Real Property was acquired by District pursuant to a grant of funds from the Conservancy, requiring that the Real Property shall be dedicated for the purposes of public parks and open space in accordance with Section 5540 of Public Resources Code. C. Mitigation. Without the written permission of the State of California acting through the Executive Officer of the Conservancy, the District shall not use or allow the use of any portion of the Real Property for mitigation to compensate for adverse changes to the environment elsewhere. The District shall not use or apply mitigation funds, if any, toward the District matching requirements of the Conservancy grant used to acquire the Real Property. D. The Real Property, including any portion of it or any interest in it, may not be used as security for any debt without written approval of the State of California, acting through the Executive Officer of the Conservancy, or its successor. E. The Real Property, including any portion of it or any interest in it, may not be transferred without the i approval of the State of California, acting through the Executive Officer of the Conservancy, or its successor. F. District is obligated to use, manage, operate and maintain the Real Property for the purposes of natural resource protection, public access and open space preservation. District's use of the property will be consistent with the terms of its Agreement with the Conservancy dated June_, 2003, as such may be amended from time to time. If any of the essential provisions stated above are violated, all of the District's right, title and interest in the real property shall vest in the State of California for the benefit of the Conservancy or its successor, upon acceptance of the real property and approval of the State Public Works Board; provided, however, that the State, through the Executive Officer of the Conservancy, or its successor, may designate another public agency or a nonprofit organization to accept the right, title and interest, in which case vesting shall be in that agency or organization rather than in the State. However, the Conservancy shall first give the District ninety (90)days written notice of any violation stating the specific nature thereof, in order for District to correct any such violation to the Conservancy's satisfaction. If the District has not corrected such violation within such 90 day notice period, or any extension thereto, the Conservancy may exercise its right to ownership of the Property. 2. ENFORCEABLE COVENANT AND RESTRICTION This Declaration and all its terms, conditions, restrictions, and covenants is intended for the benefit of Conservancy, its successor or assign and constitutes an enforceable restriction. District and Conservancy expressly intend that this covenant run with the land described in Exhibit"I",to constitute an equitable servitude therein, and shall bind every successive owner of said land,or of any interest in it and shall be enforceable by Conservancy, its successors and assigns. This Declaration is made for the sole benefit and protection of District and Conservancy. Nothing herein shall be deemed to require the approval or consent of any third party, owner, or occupant of any other parcel of real property located within or without the boundaries of District other than Conservancy or to create any right in any third party for such enforcement of the terms of this Declaration. In witness of the above, the parties have signed this Declaration on the date shown therewith. I CALIFORNIA COASTAL CONSERVANCY: Dated: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT: Dated: Nonette Hanko, Board President Page 2 Regional Open 5. ice 4y MIDPENINSULA REGIONAL OPEN SPACE DISTRICT R-03-65 Meeting 03-15 July 9, 2003 ! AGENDA ITEM 3 AGENDA ITEM Authorization to Amend Annual Service Agreement with HiTech Construction Management and Design, Inc. to Provide Construction Management Servic r Capital Improvement Projects in Fiscal Year 2003-2004 GENERAL MANAGER'S RECOMME TIO Authorize the General Manager to amend the annual service agreement with HiTech Construction Management and Design, Inc. of San Francisco to add construction management services for capital improvement projects in fiscal year 2003-2004 in the amount of$30,900, for a total amount not to exceed $93,900. DISCUSSION At our May 28 2003 meeting, you authorized the General Manager to execute an annual Y Y � g> Y g services agreement with HiTech Construction Management for$63,000, and with Strategic Construction Management for$30,900 (see Report R-03-41). Since that time, staff has worked diligently with these firms to finalize the agreements, obtain work scopes, and review insurance coverage. As a result, HiTech Construction Management is under contract and well underway. However, Strategic Construction Management requested a number of contract and insurance requirement modifications. After reviewing their requests, the General Counsel advised against making most of the modifications,judging them as not in the District's best interest. Strategic Construction Management feels that they are unable to enter into agreement without the modifications. Therefore, they are unavailable to perform the services originally anticipated. HiTech Construction Management has the necessary qualifications and is interested in assisting the District with the additional capital improvement projects that staff originally discussed with Strategic Construction Management. These construction projects include: • Jacques Ridge Staging Area, Sierra Azul Open Space Preserve • Ranch House Remodel, La Honda Creek Open Space Preserve • Spring Ridge Road Re-route, Windy Hill Open Space Preserve Itemized cost estimates, including construction costs and construction management services, were developed during budget preparation for each capital improvement project. The total budget for construction management in fiscal year 2003-2004 is $93,900. The budget allocated for the three above-listed projects amounts to $30,900, which, added to the previous $63,000 330 Distel Circle • Los Altos,CA 94022-1404 • Phone:650-691-1200 - Fax: 650-691-0485 + E-mail: mrosd@openspace.org • Web site:www.openspace.org aKi OOE�s Boars/of Directors:Pete Siemens,Mary C. Davey,Jed Cyr, Deane Little, Nonette Hanko, Larry Hassett, Kenneth C. Nitz - General Manager:L.Craig Britton R- -03 65 Page 2 authorization for HiTech Construction Management, equals the requested contract total of $93,900, representing the full budget amount. With approval of the amended annual services agreement, staff will obtain a work scope and fee proposal from HiTech Construction Management for the additional projects at the appropriate time. The level of service and fee for each project will be negotiated so that it is reasonable and comparable to other recently solicited work of a similar nature. CEQA COMPLIANCE The District has concluded that amending this annual services agreement with a construction management consultant does not constitute a project under California Environmental Quality Act (CEQA). Therefore, the recommended action is exempt from CEQA. Prepared by: Sandy Sommer, AICP /ASLA, Senior Planner Contact Person: Same as above i I i Regional Open ', ice R-03-64 Meeting 03-15 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT July 9,2003 AGENDA ITEM 4 AGENDA ITEM Guadalupe River Watershed Natural Resource Damage Assessment and Regional Water Quality Control Board TMDL Process;Authorize the General Manager to Extend the Agreement for Legal Services with the Law Firm of Barg, Coffin,Lewis&Trapp and Authorize Payments Not to Exceed an Additional$25,000 GENERAL COUNSEL'S RECOMMENDATION Authorize the General Manager to extend the agreement for legal services with the Law Firm of Barg,Coffin, Lewis&Trapp and authorize payments not to exceed an additional$25,000. DISCUSSION At your August 8,2001 meeting,you authorized retention of the law firm of Barg, Coffin,Lewis&Trapp to represent the District in settlement negotiations with the United States Fish and Wildlife Service and the California Department of Fish and Game, acting as Trustees of natural resources that they allege have been damaged by mercury contamination that may have emanated,historically,from lands owned by several private and public entities in the Guadalupe River watershed,including the District's former Rancho de Guadalupe property at Sierra Azul Open Space Preserve(see Report R-0 1-95). The initial expenditure authorized was$45,000. At your February 27,2002 meeting you authorized an additional$20,000 for legal services(see Report R-02-34),and at your May 22, 2002 meeting you authorized an additional$30,000(see Report R-02-69). A total of$95,000 has been spent for legal fees on this project so far. Participation in this complex cooperative process has thus far resulted in a significant reduction in the compensation demands of the Trustees. These multi-party negotiations are now focused on developing a consent decree and,it is hoped,finalizing a settlement that will meet the needs of all parties and appropriately address and allocate among the participating agencies responsibility for any resource damages. In addition, in April 2003 the California Regional Water Quality Control Board notified landowners in the Guadalupe Watershed that the Regional Board is developing a maximum mercury load('TMDL')for the watershed,and that landowners must determine in what manner they will fulfill the Regional Board's TMDL requirements. Specialized legal services are needed to represent the District in developing an appropriate compliance program. This will result in additional legal costs in the near term. It is anticipated that these costs will decline as a compliance plan is developed and technical staff assumes the lead on this project. It is recommended that the Board authorize$25,000 for these legal services at this juncture. It is likely additional appropriations will be required this budget year. These cannot be estimated until District staff has a clearer picture of what alternatives for TMDL compliance are available to the District. Sufficient funds for this expenditure have been budgeted in the Acquisition Department's Land Expenditures legal fees category. Prepared by: Susan M. Schectman,General Counsel Contact person: Same as above 330 Distel Circle • Los Altos, CA 94022-1404 * Phone: 650-691-1200 Fax: 650-691-0485 * E-mail: mrosd@openspace.org • Web site: www.openspace.org Board of Directors: Pete Siemens,Mary C.Davey,Jed Cyr, Deane Little, Nonette Hanko, Larry Hassett, Kenneth C.Nitz - General Manager:L.Craig Britton Regional Open .". ice R-03-63 Meeting 03-15 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT July 9, 2003 AGENDA ITEM 5 AGENDA ITEM Midpeninsula Regional Open Space District v. Wozniak: (Encroachment at Bear Creek Redwoods Open Space Preserve)Authorize the General Manager to Approve Litigation Expenses Pursuant to the Retainer Agreement with the Law Firm of Miller, Starr&Regalia in an Additional Amount Not to Exceed $30,000 GENERAL COUNSEL'S RECOMMENDATION '016 Authorize the General Manager to approve litigation expenses pursuant to the retainer agreement with the Law Firm of Miller, Starr&Regalia in the matter of Midpeninsula Regional Open Space District v. Wozniak in an additional amount not to exceed $30,000. DISCUSSION In 2001-2002, District staff discovered that an owner of land adjacent to Bear Creek Redwoods Open Space Preserve had created dirt trails in the Preserve for bicycle and motorcycle use, and had built a fenced-in pasture on the Preserve where llamas were permitted to graze. Several motorcycle jumps were built in this encroachment area. The situation deteriorated further when the llama pasture area was bulldozed with construction equipment, multiple large motorcycle jumps were built, and all vegetation was cleared from the surface of the pasture. The District Board authorized the initiation of a lawsuit to stop this activity and to resolve these issues. General Counsel recommended that the Law Firm of Miller, Staff&Regalia(the Firm) be retained to represent the District in this litigation since it is one of the most qualified real property litigation firms in the area. The Firm had also represented the District in the complex transaction by which the Preserve was acquired, and thus was familiar with the Preserve and related issues. In late 2001, under the General Manager's then-existing contractual authority, the Firm was retained with an authorized spending limit of$10,000. Suit was filed on May 13, 2002. On June 20, 2002, the defendants stipulated to entry of a Temporary Restraining Order halting any further activity pending court review. The Order was approved by the Court on June 26, 2002. On July 24, 2002 the Board authorized a total amount of$25,000 to pursue the lawsuit, which included the prior$10,000 expenditure (see Report R-02-95). On November 13, 2002,the Board authorized an additional amount of$20,000 (see Report R-02-126). The total spent thus far on this matter is $45,000. Since that time, staff and the Firm have taken further actions required to prosecute this litigation, which has included: conducting discovery, taking depositions, and obtaining relevant documents from the defendants; responding to the defendants' discovery requests; negotiating the terms of a Permit to Enter requiring the llama pasture area damage to be remediated by the defendants; 330 Distel Circle - Los Altos, CA 94022-1404 - Phone: 650-691-1200 Fax: 650-691-0485 * E-mail: mrosd@openspace.org * web site: www.openspace.org Board of Directors:Pete Siemens,Mary C. Davey,Jed Cyr, Deane Little, Nonette Hanko,Larry Hassett, Kenneth C. Nitz - General Manager:L.Craig Britton R-03-63 Page 2 responding to the defendants' cross-complaint to quiet title to alleged prescriptive easements; attending required court appearances; meeting with District staff, and representing the District in mediation and settlement discussions. It is now appropriate to authorize additional funds in an amount sufficient to prosecute the case through its next required steps. General Counsel recommends that the Board authorize additional legal fees and costs in an amount not to exceed $30,000. Funds for this lawsuit are budgeted in the Acquisition Department's Land Expenditures Legal Fees category. Sufficient funds are available in this category for this expenditure. Prepared by: Susan Schectman, General Counsel Contact person: Same as above Regional Open Space MIDPENINSULA REGIONAL OPEN SPACE DISTRICT To: Board of Directors From: L. Craig Britton, General Manager it Date: July 3, 2003 Re: FYI's I� I i 330 Distel Circle • Los Altos,CA 94022-1404 • Phone:650-691-1200 Fax:650-691-0485 • Email:mrosd@openspace.org • Web site. www.openspace.org Regional Open , - ace MIDPENINSULA REGIONAL OPEN SPACE DISTRICT June 26, 2003 Honorable Liz Kniss Member, Santa Clara County Board of Supervisors 70 West Hedding Street, I Oth Floor San Jose, CA 95111 Dear Supervisor Kniss: In May 1996 a Joint Powers Agreement was executed by and between the Midpeninsula Regional Open Space District and the County of Santa Clara for the purpose of forming the Midpeninsula Regional Open Space District Financing Authority. This Authority provides enhanced opportunities for long-term financing of District land acquisitions, and was created with the full cooperation and endorsement of the County. The Authority Board is comprised of four members of the District's Board of Directors, and the member of the Santa Clara County Board of Supervisors whose district encompasses the greatest territory of the District. That is currently district number five, making you the designated representative on the Authority Board. The Authority is required to hold a minimum of one meeting per calendar year; however, occasionally it is necessary to meet more often. A Special Meeting is being scheduled for Wednesday, August 13, 2003, beginning at 7:45 p.m. at the District's Administration office in Los Altos. It is expected to consist of approving the re-funding of the 1993 issue and a partial refinancing of the 1996 Note Issues and authorizing the District to borrow additional funds for future acquisitions. An agenda will be sent to you prior to the meeting itself. While we expect the Authority to have a quorum from members of the District Board of Directors, you are of course invited and encouraged to attend. Please feel free to contact me if I can answer any questions or provide further information. Sin ely, L. Craig on General Manager LCB:lz cc: Blanca Alvarado, Chairperson, Board of Supervisors MROSD Board of Directors 330 Distei Circle • Los Altos, CA 94022-1404 a Phone: 650-691-1200 Fax: 650-691-0485 - E-mail: mrosd@openspace.org a Web site: www.openspa(:e.org Board of Directors:Pete Siemens,Mary C.Davey,Jed Cyr, Deane Little, Nonette Hanko,Larry Hassett, Kenneth C.Nitz - General Manager:L.Craig Britton Regional Open ! . icy MIDPENINSULA REGIONAL OPEN SPACE DISTRICT June 27, 2003 Mariquita West and Celia Thompson-Taupin Friends of Bear Creek Redwoods P.O. Box 634 Los Gatos, CA 95031 Dear Ms. West and Ms. Thompson-Taupin: We have recently received very exciting news! We have been granted the $1,807,500 matching grant we requested from the Coastal Conservancy (San Francisco Bay Area Program) to assist with purchase of 198 acres of forested land from the Presentation Center. This purchase will not only allow the District to permanently protect a critical section of Lexington Reservoir Basin viewshed, but it will also provide a key connection between two sections of the District's Bear Creek Redwoods Open Space Preserve. On behalf of the Board of Directors of the Midpeninsula Regional Open Space District, I would like to thank you for taking time out of your very busy schedule to write a letter of support for us to receive this very generous grant. We sincerely appreciate your continued and generous dedication and effort to help make the open space preservation programs in the Midpeninsula area a success! Sincerely, L. Craig Britton ` General Manager This letter was also sent to the following groups and individuals: CB/ec Sempervirens Fund cc: MROSD Board of Directors Committee for Green Foothills POST Honorable Joe Simitian Honorable Michael Honda Honorable Byron Sher 330 Distel Circle Los Altos, CA 94022-1404 Phone:650-691-1200 Fax: 650-691-0485 * E-mail:mrosd@openspace.org * Web site:www.openspace.org Board of Dhectors:Fete Siemens,Mary C.Davey,Jed Cyr, Deane Little, Nonette Hanko, Larry Hassett, Kenneth C.Nitz - Genera/Manager:L.Craig Britton Chief of Public Affairs Susan Fitts Community Relations Manager Teddy Morse NEWS RELEASE Contact: Marty Grimes (408) 265-2607 ext. 2881 Pager: (408) 951-4714 E-mail: mgrimes@valleywater.org Date: May 21, 2003 Water district board has no plans to encroach on Coe State Park SANTA CLARA COUNTY—Alternatives to solve a water supply and quality problem at San Luis Reservoir will not include any plans to inundate any part of Henry W. Coe State Park. Today, the district board of directors affirmed that the district would not create adverse impacts to the state park to solve the problem. "We have a good range of possible solutions on the table," said Sig Sanchez, board chairman. "We can solve this without damaging the park." In a memo to the Santa Clara Valley Water District board of directors, Stanley M. Williams, district chief executive officer, concluded that a reservoir that encroaches upon a state park would be incompatible with district interests and state law. On Tuesday, the board unanimously concurred with Mr. William's interpretation. The district's list of alternatives to solve the problem known as low-point includes a reservoir on Pacheco Creek just north of Highway 152 in southern Santa Clara County. Until today, the district had left open the possibility that this alternative could result in water backing into the state park. Along with several other alternatives, the water district will continue to study the possible expansion of Pacheco Reservoir because it may be possible to design this alternative in a way i MORE 2-2-2-2-2 that avoids adverse impacts to Henry W. Coe State Park. This project is in a preliminary stage and, as such, the potential effects and benefits of each alternative have not been fully studied. The water district concluded that creating a storage facility using state park land would require changing the park's designation from "state park" to "state recreation area." Because the designation as state recreation area is incompatible with district interests, the district will not seek such a change in designated use. A designation as a state recreation area would mean a drinking water reservoir could be open to boating, fishing and other active recreational uses. Since August 2002, the water district has been studying potential solutions to the low- point problem at San Luis Reservoir. A significant proportion of the water supply to Santa Clara County and San Benito County is at risk due to the low-point problem. Water quality degrades when the reservoir reaches a certain low point during the summer, the peak demand season. If central and southern California water users draw the reservoir down beyond a certain point, the intake for water users west of the reservoir would run dry. The other alternatives that are under consideration include a pipeline to bypass San Luis Reservoir, lowering the reservoir's existing intake facilities, source water quality control, water treatment methods and a combination approach which could include elements of these alternatives, a change in operations of existing facilities and integration with other regional projects. This is the preliminary list of alternatives that the district will study in detail in the environmental impact report in addition to a "no project" alternative. The district has not yet determined which option will be the "preferred alternative." The Santa Clara Valley Water District manages Santa Clara County's wholesale drinking water resources, coordinates flood protection for its 1.7 million residents and provides stewardship for the coup s 10 reservoirs and more than 700 miles of streams. www.valleywater.org � r May 28, 2003 Subject: San Luis Reservoir Low-Point Improvement Project Dear Interested Party: On behalf of the Santa Clara Valley Water District I want to update you on the San Luis Reservoir Low-Point Improvement Project and provide the enclosed fact sheet with additional information for your review. In March of 2002, the district began conducting a feasibility study to solve the low-point problem in San Luis Reservoir. The project's goal is to maintain a high quality, reliable, and cost effective water supply for the district and other contractors of the U.S. Bureau of Reclamation's San Felipe Division. We are currently in the process of narrowing down the range of alternatives to be studied in the Environmental Impact Report and Environmental Impact Statement (EIR/EIS). We are planning to hold a public meeting this summer to provide information on the screening process and the remaining alternatives. We will notify you by mail, Web site posting and newspaper announcements once the date has been confirmed. Recently, many groups and individuals have contacted us expressing their concern about alternatives that may potentially impact Henry W. Coe State Park. I would like to take this opportunity to assure you that the district will not construct any project that would inundate any lands within Henry W. Coe State Park. We appreciate the public's interest and participation in this project and look forward to working with all members of our community to solve the low-point problem. The coming year will involve detailed analysis of the proposed alternatives through the environmental review process, with the draft EIR/EIS expected to be released in 2004. The water district welcomes public feedback during the EIR/EIS process, which is further explained in the enclosed fact sheet. If you have additional questions, please visit our Web site at www.valieywater.org or contact Kurt Arends, the project's manager, at (408) 265-2607 extension 2384. S' cerely, Walt Wadlow Chief Operating Officer Attachments: May 21, 2003 news release Project fact sheet mg/mg i he r C `a-Fct 1UF."7' E3e; t r f r y 1 -" u 1 Y ortky t r; ked ;tent .sV:n _ mancc�F r ert of ,daref rus.ur e, lr e n ewr ear*a Iv San Luis Reservoir Low-Point Improvement Project A significant proportion of the water supply —-- a 33 to Santa Clara County, Sar. Benito County and the Pajaro Valley is at risk due to the low-point problem at San Luis Reservoir. Water qualiy degrades when the reservoir reaches a certain low point during the summer, the peak demand season. t i S I� The San Luis Reservoir Low-Point Improvement Project was established to study ways to allow the San Luis Reservoir to be fully utilized without interrupting water deliveries or impacting water quality to users to the west. San Luis Reservoir - A key component of the state and federal water supply systems The San Luis Reservoir is one of California's largest reservoirs and is a key element of the state's water supply system. With a capacity of more than 2 million acre-feet, it is the largest offstream storage facility in the world. Each year, water from the Sacramento-San Joaquin Delta is delivered via the California Aqueduct and Delta Mendota Canal to Sari Luis Reservoir for storage until it is released for use throughout much of the state during the dry season. The reservoir is jointly owned and operated by the U.S. Bureau of Reclamation and the Califor- nia Department of Water Resources and stores water from both the State Water Project and the federal Central Volley Project. San Luis Reservoir currently provides water to the Santa Clara Valley Water District and San Benito County Water District. The Pajaro Valley Water Management Agency is expected to draw from this water source in the fiture. Water is delivered to these users through the San Felipe Division on the west side of the reservoir. Other users south of the Delta receive water through the William R. Gianelli Pumping-Generating Plant located on the east side of the reservoir. The low-point problem The low-point problem represents a significant threat to the reliability and quality of our water supply. During the i summer, as the San Luis Reservoir is drawn down, a thick layer of algae grows on the surface. When the amount of water drops to the beginning of the low point (300,000 acre-feet), algae begins to enter the San Page I San Luis Reservoir Pacheco Regulating Tank EL 635' Crest Gianelli Pacheco EL.554' Intake Pump Plant ♦ Capacq 2.03 MAF cm EL 545' To Sisk San Felipe Division Dam ♦ Close Upper Intake EL 406'1571 TAF Upper Intake ♦ "Low Point"EL 369't 300 TAF EL.376'1345 TAF V Inaetive Conservatio pool 326 TF Top of Lower Intake Pacheco EI.334'1110 TAF To CVPlSWP _ Top of Wake Tunnel Reach 1 Contractors El.296' Bottom of bake 273 Felipe Division intake degrading water quality and making the water harder to treat. At the reservoir's lowest level, the water elevation would fall below the San Felipe Division intake interrupting the ability to pump water. The San Felipe Division intake is situated at a higher elevation than the Gionelli facility on the east side of the reservoir. Even without the algae problem, the water level has to be kept above the lower San Felipe Division intake or water deliveries are cut off. In response, reservoir operators now manage the reservoir to maintain water levels above the low-point eleva- tion; as a result, approximately 200,000 acre feet of water stored in the reservoir remains unavailable to state and federal users each year. The low-point problem will 200,000 acre-feet of water, more than 65 worsen as statewide demands for water grow, increasing the need to use the 200,000 acre feet of storage within billion gallons, remains unavailable each year. San Luis Reservoir. In addition, new protections for the environment and fish habitat may restrict the amount of water that can be exported from the Delta, further impacting the state's water supply. CALFED — a consortium of state and federal agencies committed to restoring the Bay-Delta environment and improving the management of California's water resources — identified the need to solve the low-point problem in 2000. CALFED also recommended that the Santa Clara Valley Water District study the development of a canal bypassing San Luis Reservoir, in conjunction with expanded local reservoir storage serving the San Felice Division. The Santa Clara Valley Water District is now working with the U.S. Bureau of Reclamation under a Proposition 13 grant from the California Department of Water Resources to conduct a feasibility analysis and formulate a solution to the low-point problem. • . - .Cole To increase the operational flexibility of storage in San Luis Reservoir and ensure a high-quality, reliable water supply for San Felipe Division contractors. Page 2 Objective 1: Increase the operational flexibility of the San Luis Reservoir by increasing the effective storage. This provides an additional 200,000 acre feet of storage to the state and federal I water projects. Solving the low point problem will increase the amount of water available for agricultural, I domestic, industrial and environmental uses. Objective 2: Ensure that San Felipe Division contractors are able to utilize their annual Central Valley Project contract allocation to meet their water supply and wager quality commitments. Because San Luis Reservoir provides about one-third of the San Felipe Division water agen- cies' annual supply, and the low-point problem has the potential to affect about half of that allocation, this represents a significant concern. The low-point problem occurs in the late i summer and early fall when these water supplies are needed the most. j Potential effects of!ne low-point problem include: { • Interruptiom of water deliveries to domestic, industrial and agricul- tural users Interrupton of water deliveries used to replenish groundwater j supplies • Blockage of agricultural irrigation systems 1 • Reduced ability to treat water effectively inc/eased water treatment costs I • Odor problems. Algae bloom in Son Luis Reservoir i Ob jettive 3: Provide opportunities for project-related enhancements and other im- provements. Consistent with Santa Clara Valley Water District policy, opportunities to enhance or restore natu,d resource benefits of streams and watersheds will be identified. Depending on the chosen solution to the lowpoint problem, various enhancements and improvements (for example, open space, trails and environmen- I ! i tal retoration) could be integrated into the project. i A range of alternatives Througi initial studies and public input, 75 conceptual alternatives were initially identified. Using a multi-level screening process, the list has been narrowed down to seven preliminary alternatives to be fully analyzed in the environmental review process. Ultimately, a combination of the following alternatives may be needed to address the project's objectives. • Warr treatment alternatives would involve removing algae at existing water treatment plants using disso�ed air flotation. • Water quality problems could be addressed with algae harvesting or algicide applications at San Luis Reservoir. • Lowering the existing San Felipe Division intake facilities would enable water agencies to continuepumping water directly from San Luis Reservoir from underneath the layer of algae. • A bypass pipeline to deliver water around or beneath San Luis Reservoir to the San Felipe Division could be used Aen the reservoir level is too low. • Expanding the existing Pacheco Reservoir would enable water agencies to store their share of federal water before the San Luis Reservoir reaches its low point each year. • A combi"ion solution could be formulated by combining elements of the above alternatives, reoperationoi existing facilities such as Anderson Reservoir and integrating other regional solutions such as the expansiohof Los Vaqueros Reservoir in Contra Costa County or connections to San Francisco Public Utilities Coma,ission Hetch Hetchy water supplies. • A no actionino project alternative will study the impacts of taking no action. Page 3 a The he environmental review process The Santa Clara Valley Water District and U.S. Bureau of Reclamation have determined that the San Luis Reservoir low-Point Improvement Project may have a significant impact on the environment and have decided to prepare an Environmental Impact Report/Environmental Impact Statement (EIR/EIS) to provide ample opportunity for disclosure and public participation in the planning and decision-making process. The water district is the lead agency for compliance with the California Environmental Guality Act (CEQA), and the U.S. Bureau of Reclamation is the lead agency for compliance with the National Environmental Policy Act (NEPA). The purpose of the Draft EIR/EIS will be to evaluate potential environmental effec�s of implementing the various project alternatives, including "no action." CEQA and NEPA require that a wide range of potential solutions be studied - even those that might have significant environmental impacts. The process of developing an EiR/EIS ensures public comment and input for projects that may have environmental effects. The Draft EIR/EIS will address the physical, biological and human environment and will also describe adverse effects, anticipated benefits, and cumulative impacts. When the Draft EIR/EIS is released, a public comment period of 45 days will commence, during YAich a public hearing will be held. All comments received during that period will be included and addressed in theFinal EIR/ EIS. Ultimately, the Santa Clara Valley Water District Board of Directors and the U.S. Bureau of Reclamation will hold public hearings to certify the Final EIR/EIS. The preferred alternative will not be identified until theenviron- mental impacts of each alternative have been studied. Notice of Intent/Notice of Preparation August 2002 Public scoping meetings August 2002 Public meetings on alternatives Summer 2003 Public review and comment on Draft EIR/EIS 2004 Final EIR/EIS.public hearings Early 2005 ` Public input The Santa Clara Valley Water District welcomes public input during the environmental planning procoss and will consider comments received when preparing the project EIR/EIS. The water district's public input pro. ss includes public meetings, written updates and a project Web site. In addition, a committee of stakek)lders has been formed to advise the water district during this process, and the project team continues to mee(lKith other interested parties to update them on thepr oject and seek additional input. As the potential solutions were identified, many people expressed their preferences or opposition b various alternatives. Most notably, a number of groups and individuals have expressed their objection to any alternative that would affect Henry W. Coe State Park. As it had been described previously, the Pacheco R rvoir expan- sion could have potentially encroached upon the park. In May 2003, the water district ruled oulany possibility of adversely affecting Henry W. Coe State Park. There will be no inundation of any Coe Park l(Wis. As this alternative is fully developed, all potential impacts will be identified. For additional information, visit the water district Web site at Santo(lafa Valley www.valleywater.arg, contact Senior Project Manager Kurt Arends at WtaE list is (408) 265-2600 or send an e-mail inquiry to SLReservoirLowPoint@vaIleywater.org. Page 4 5/03 i Regional Open Space MIDPENINSULA REGIONAL OPEN SPACE DISTRICT �I i To: Board of Directors From: L. Craig Britton, General Manager i I Date: July 9, 2003 Re: FYI's i 330 Distel Circle • Los Altos,CA 94022-1404 • Phone:650-691-1200 Fax:650-691-0485 • E-mail:mrosd@openspace.org • Web site: www.openspace.org Regional Open ice 2 �I ZY MIDPENINSULA REGIONAL OPEN SPACE DISTRICT July 3,2003 Paul Morabito,Chair California Coastal Conservancy 1330 Broadway, 11th Floor Oakland,CA 94612 Dear Mr. Morabito: On behalf of the Mid peninsula Regional pOpen Space District(MROSD),I am writing to encourage your support for the Peninsula Open Space Trust's (P ST's Driscoll Ranchproject in San Mateo Count y. The 3, 681-acre Driscoll Ranch and adjacent MROSD La Honda Creek Open Space Preserve and Djerassi property conservation easement area will create almost ten square miles of permanently protected open space with over 14 miles of riparian corridor,providing an extraordinary habitat for wildlife such as the mountain lion,as well as,endangered steelhead trout, tiger salamander,and the San Francisco garter snake. Standing on one of the ranches grassy ridges, taking in the glorious views of rolling hills,redwood forests,oak woodlands,and winding creeks,inspires an appreciation for the property's sheer size and significance. Hikers from either the adjoining MROSD La Honda Creek Open Space Preserve or El Corte de Madera Creek Open Space Preserve will have an opportunity to visit and enjoy a diverse and beautiful section of the Skyline corridor in San Mateo County. In addition to Driscoll Ranch's natural resources and low impact recreational potential, the project P P � P 1 offers an intriguing opportunity to maintain the historic use of the land. As part of the Resource Management Plan developed by POST,the former ranch owner will continue to operate a grazing operation on the ranch. The goal is to demonstrate that when managed according to a carefully developed plan,grazing can be compatible with resource conservation and public recreation. By helping POST protect Driscoll Ranch, the Coastal Conservancy will help create outstanding low impact recreational opportunities,protect and enhance rime wildlife habitat n help p pp ,and e preserve the P P P Central Coast's agricultural heritage. I encourage your support for this important project. Sin erel L. Craig ritton General Manager I LCB/ec Cc: MROSD Board of Directors 330 Distel Circle • Los Altos,CA 94022-1404 Phone:650-691-1200 Fax:650-691-0485 • E-mail:mrosd©openspace.org • Web site:www.openspace.org a Board of Directors:Pete Siemens,Mary C. Davey,Jed Cyr, Deane Little, Nonette Hanko,Larry Hassett,Kenneth C. Nitz • General Manager:L.Craig Britton f i Regional Open ace July 7, 2003 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Honorable James Janz Mayor,Town of Atherton 91 Ashfield Road Atherton, CA 94027 Dear Mayor Janz: In 1976,Atherton joined the jurisdiction of the Midpeninsula Regional Open Space District. Since then, on behalf of Atherton's constituents and others from throughout the region, the District has carried out its mission of preserving and protecting open space resources and providing for low-intensity recreational opportunities on public open space lands. As a town within the boundaries of the District, your constituents are enjoying the benefits of nearly 50,000 acres of open space lands and 220 miles of public trails provided by the District since its inception over 30 years ago. Today, the District is embarking on a new and exciting undertaking as it proposes to extend its boundaries to include a portion of the natural treasure that is the San Mateo County coast. I am writing to ask for your help in the form of a resolution from your Town Council in support of the District's proposal. During 1997 and 1998, the District received requests and petitions from individuals, organizations,and elected bodies(including the Half Moon Bay City Council and the Midcoast Community Council)asking for our participation in coastside open space and agricultural preservation and management. In a subsequent poll, 90% of San Mateo County respondents said that preservation of open space west of Skyline Boulevard was important. Other agencies have only limited capacity to provide agricultural conservation and open space management services, and have recognized the need for a local public organization to help provide these services. These factors indicated a great desire and need for the District's active participation in coastal preservation efforts. In order to promote continued agricultural activity,preserve and manage public open space lands, and provide for low-intensity recreational use of public open space lands,the District is working to extend its boundaries to encompass the San Mateo County coast from the southern border of the City of Pacifica to the San Mateo/Santa Cruz County line. If successful, over the next 15 years we expect to purchase(from willing sellers only,and often through acquiring easements) and/or manage up to 11,800 acres of pristine open space and continuing-use agricultural land. For your further information,I have enclosed a copy of our"Answers to Frequently Asked Questions"brochure about the annexation effort. At this point,we have prepared and circulated a final environmental impact report (FEIR)as needed for our application to the San Mateo County Local Agency Formation Commission, and anticipate soon considering adoption of a formal application for annexation. As we move to the next stages of this process,the support of cities within the District is important. Accordingly, I am asking that you place a resolution of support(sample enclosed)on your next available agenda in June/July for Council adoption. A District representative would be happy to meet with you in advance of that to answer any questions you may have, and of course a District Board member and/or staff member will attend the Council meeting to respond in the event any questions arise. 330 Distel Circle ® Los Altos, CA 94022-1404 # Phone:650-691-1200 Lax: 650-691-0485 . E-mail:mrosd@openspace.org « web site:www.openspace.org fmard or Directors:Ilete Siemens,Mary C.Davey,Jed Cyr, Deane Little, Nonette Hanko,Larry Hassett, Kenneth C.Nitz - General Manager:L.Craig Britton This proposed program, while relatively modest, will have a significant positive impact on the quality of life for our constituents,especially in these unprecedented economic times when people are even more interested in looking close to home for their outdoor recreation, and in preserving the bounty of our natural resources in the nearby mountains and on the coast. Further, such an extension of the District's boundaries would not change any land use designations or land use control,as the District does not have any regulatory or zoning authority,would not have any financial effect on your agency. I believe the people of Atherton will appreciate and applaud your Council's decision to support the District's proposal—it's clearly a Win-win opportunity. The District General Manager and I are available to discuss any procedural or substantive questions you or your staff may have,and to schedule a meeting if you deem it desirable. Of course, we would welcome a call from you if you'd like to talk about any element of this proposal;please contact our General Manager,Craig Britton,at(650)691-1200. In the meantime, I hope that you will have the opportunity to reflect on the very real need of our mutual constituents for preservation and management of public open space west of Skyline Boulevard,and protection of continuing agricultural activities on the San Mateo Coast. I'm sure you'll agree that an extension of the District's boundaries and responsibilities is the optimal way to meet these needs of our region. Sincerely, I I Nonette Hanko President,Board of Directors cc: MROSD Board of Directors Jim Robinson, Atherton Town Manager i Claims No. 03-12 Meeting 03-15 Date 07/09/03 Revised Midpeninsula Regional Open Space District # Amount Name Description 6029 $135.21 A-Tool Shed,Inc. Roofing Nail Gun Rental-DHF 6030 $365.60 ADT Security Services Burglar Alarm Service 6031 $1,031.72 Albion Environmental,Inc. Biological Services-Old Page Mill Trail Repair 6032 $736.98 Allied Auto Works Vehicle Service and Repairs 6033 $8.61 Baron Welding&Iron Works,Inc. Plumbing Supply 6034 $36.00 Bay Area Air Quality Mgmnt District Permit to Operate Fuel Tank-SFO 6035 $339.52 Beck's Shoes Inc. Uniform Shoes 6036 $122.18 Body Therapeutics Safety Supplies 6037 $153.36 California Water Service Company Water Service 6038 $414.00 Camino Medical Group Medical Services 6039 $300.00 CARPOSA Registration-G.Baillie,C.Britton,J.Maciel,Sango 6040 $417.01 Cascade Fire Equipment Company Field Supplies 6041 $80.00 Clark Pest Control Pest Control 6042 $12,015.76 Columbia Printing Map Printing-RSA,Purisima and S.Skyline Region 6043 $466.21 Costco Supplies 6044 $106.96 Davey,Mary Reimbursement-Mileage 6045 $2,138.00 Diane L.Renshaw Consulting Ecologist Consulting Services-Pulgas Ridge Trails 6046 $50.50 G&K Service Shop Towel Service 6047 $56.67 Galls Incorporated First Aid Supplies 6048 $3,650.00 Geologica,Inc. Consulting-Stevens Creek Shoreline Nature Study Area 6049 $182.58 Green Waste Recovery,Inc. Garbage Services 6050 $1,599.94 Hanko,Nonette Reim.-Conference-Special Park District Forum 6051 $59.90 Jobs Available,Inc. Subscription Renewal 6052 $416.74 Just Ergonomics,Inc. Erognomic Equipment 6053 $15,000.00 Macias,Gini&Company Auditor Services 6054 $84.97 Malone,Brian Reimbursement-Field Supply 6055 50 87 MCI Lon Distance Telephone Service $ 9 P 6056 $65.77 MetroMobile Communications Radio Repairs&Maintenance 6057 $32.33 Pacific Bell Telephone Service 6058 $24.84 Peninsula Digital Imaging Printing-Site Plans-Virginia Mill Trail 6059 $17.26 Pringle Tractor Co. Tractor Supplies 6060 $9.37 Rancho Hardware&Garden Shop Field Supplies 6061 $270.73 Roy's Repair Service Vehicle Repairs&Service 6062 $156.37 Safety Kleen Oil Recycling&Solvent Tank Service 6063 $34,92 San Jose Mercury News Subscription 6064 $1,940.00 *1 San Mateo Co.Planning&Building Div. Virginia Mill Project Planning Permit 6065 $732.00 *2 San Mateo Co.Planning&Building Div. Virginia Mill Project Building Permit 6066 $2,000.00 *3 San Mateo Co.Planning&Building Div. Grabtown Gulch Project Planning Permit 6067 $732.00 *4 San Mateo Co.Planning&Building Div. Grabtown Gulch Project Building Permit 6068 $88.00 Santa Clara County-Office of Sheriff Fingerprinting-New Recruit 6069 $16.31 SBC Payment Center Telephone Service 6070 $136.80 Skyline County Water District Water Service 6071 $248.14 Soma Ergonomics,Inc. Office Furniture 6072 $100.00 Spectrum Resources Radio License Renewal 6073 $287.68 Summit Uniforms Uniform Expense 6074 $129.73 Tran,Minh Reimbursement-Computer Supplies 6075 $545.46 Turf&Industrial Equipment Co. Vehicle Supplies 6076 $30.06 Union 76 Fuel Expense 6077 $971.00 United Rentals Highway Tech. Trail Direction Signs&Misc.Preserve Signs i 6078 R $105.60 All Laser Service Printer Service i Page t of 2 Claims No. 03-12 Meeting 03-15 Date 07/09/03 Revised Midpeninsula Regional Open Space District # Amount Name Description 6079 R $199.48 ANG Newspapers Legal Advertisement 6080 R $500.00 Association of Bay Area Governments Annual Membership 6081 R $73.26 California Chamber of Commerce Diesel Fuel Taxes , 6082 R $80.00 Clark Pest Control Pest Control 6083 R $10,870.00 Columbia Printing Summer 2003 Newsletters 6084 R $132.00 County of Santa Clara--Fiscal Services Finger Print Services 6085 R $3,415.29 Design Concepts Scanning Photos&Slides 6086 R $864.98 Forestry Supplies,Inc. Field Supplies 6087 R $1,912.21 Gardenland Power Equipment Field Supplies&Equipment 6088 R $191.38 Goodco Press Inc. Printing Services-Field Offices Forms 6089 R $23.71 Grainger,Inc. Field Supplies 6090 R $10,041.50 Jakaby Engineering Consulting Services-Virginia Mill Trail-ECDMC 6091 R $1,966.10 Jos.J.Albanese,Inc. Demolition-Handball Court-St.Joseph 6092 R $2,577.92 LFR Levine Fricke Public Access Improvements-Pulgas Ridge 6093 R $99.76 Local Government Publications Legal Book 6094 R $114.64 Los Altos Garbage Co. Refuse Services 6095 R $19,188.25 ## Miller,Starr&Regalia Legal Services 6096 R $42.78 Northern Energy,Inc. Propane Service&Tank Rental 6097 R $2,859.25 Nortrax West Equipment Rental 6098 R $10,000.00 *5 Old Republic Title Company Acquisition Deposit 6099 R $637.94 Orchard Supply Hardware Field Equipment&Supplies 6100 R $289.67 Pacific Bell Telephone Service 6101 R $258.20 Peninsula Digital Imaging Printing-Bid Set-Old Page Mill Road 6102 R $248.16 Petty Cash Conference&Training Expense,Office&Field Supplies, Vehicle Mileage Reimbursement,Volunteer Supplies, Out of Town&Local Bus.Meeting Expense 6103 R $85.00 Richard P.Carr R.P.T. Ergonomic Assessment 6104 R $30.00 San Mateo Co.Public Health Lab. Tick Testing 6105 R $2,124.00 Seaver,Richard DBA Rural Pig Mgmnt Pig Control Services 6106 R $18.40 Summit Uniforms Uniform Expense 6107 R $5,482.50 Timothy C.Best,CEG Consulting Services-Road Assessment/ECDM&Pulgas Ridge 6108 R $6.90 United Parcel Service Parcel Shipping 6109 R $51.36 Verizon Pager Service 6110 R $98.13 Xpedite System,Inc. Fax Broadcast Systems Services Total $123,176.43 *1 Urgent Check Issued 6/30/03 *2 Urgent Check Issued 6/30/03 *3 Urgent Check Issued 6/30103 *4 Urgent Check Issued 6/30/03 *5 Urgent Check Issued 7/09/03 ## In the event agenda item#5 is not approved,this claim will not be processed Page 2 of 2