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HomeMy WebLinkAbout11 10750 Bermgarten Road APN 18-010-10 Agenda Item # I I TRUCKEE DONNER Public Util*ty Distr* ACTION To: Board of Directors From: Kathleen Neus Date: May 04, 2011 Subject: Consideration of the Sale of District Rea l Property 10750 Bermgarten Road, McGlashan Springs APN 18-010-10 1. WHY THIS MATTER IS BEFORE THE BOARD Only the Board can approve the sale of District land. 2. HISTORY The District water division owns a 160 acre parcel located parcel is commonly p below the Tahoe Donner Subdivision, this p monly referred to as McGlashan Springs. The parcel was declared surplus by the Board at the June 20, 2001 meetin four public agencies of surplus land for g� Letters notifying the p sale were sent to the State of California for preservation of open space; Truckee Tahoe Unified School Distric t for new schools; the Town of Truckee, for low income ho using; and the Truckee Donner Recreation and Park District for recreation purposes. None of the a enci in the parcel. g es expressed an interest This parcel has garnered a lot of interest from private years. At one time the parcel was p and public groups over the p considered for a community campus site. Some of the local citizens groups have expressed concerns abo ut the development of the parcel. In June of 2006, a Board workshop was held to discuss the features of the McGlashan Springs parcel. The Truckee River Watershed Council gave a slide presentation of the biodiversity of the parcel. As a result of this property was held on August 26, 2006. meeting, a tour of the 3. NEW INFORMATION The District has been in active negotiations with Tahoe regarding Donner Association (TDA) for the past few months re g 9 the sale of the parcel. A tentative agreement between TDA and the District has been reached. The offer is an all (Attachment A). cash offer of $775,000 To protect the special features on the property, after the a sale the District will hold an easement deed. The Eas ement Deed, identifying the key features of the property,p rty, will be recorded concurrently with the sale of the (Attachment property C chment B). The Easement Deed precludes TDA an d any future owners from developing the property f residential purposes including no single or multiple family re p p Y or or transient rental units. A ma is in p Y residences, mobile homes special f p included with the Easement Deed that identifies the p features of the property. Additionally, the Easement Deed, protects the existing 9 c edar groves, charcoal kilns, spring, and riparian zones allows for access that does not substantially disturb the natural condition of the features. Lastly, the property is to be maintained in its predominately natural, forested condition. In order to maintain the health of the property, TDA will be responsible to abide b best forest management practices and standards. Y TDA intends to use the property primarily for recreational ur construction, erection, installation I purposes, this includes the or placement of trails, sports fields, buildings or structures, or other non-residential improvements for TDA improvements must be in compliance with the the purposes. All n applicable Town of Truckee General Plan and Development Code standards. The improvements substantially disturb the special features and the forested nature is not significantly All escrow costs are to be split 50/50 between the buyer and sell enc Y seller, there is a five day contingency y period and escrow is to close 30 days after the contingency period. Easement Deed is to be recorded concurrent) with g Y p od. The y the close of escrow. 4. FISCAL IMPACT The fiscal impact associated with this sale is the cost of escrow. All proceeds will be deposited into the Water Department Capital p p tal Reserve Fund. 5. RECOMMENDATION Have the Board President sign both the Sales Agreement and g the Easement Deed. -5 M&W9!! Michael D. Holley General Manager Attachment A AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (10750 Bermgarten Road,Truckee, CA) THIS AGREEMENT OF PURCHASE AND SALE AND JOINT INSTRUCTIONS ("Agreement" solely for reference is dated so ESCROW purposes as of Ma 2011 and constitutes an agreement between, a Truckee Donner Public Y � ' public utility district("Seller" tility District, a California ), and TahoeTah oe Donner Association, a California nonprofit mutu benefit corporation ("Buyer"). p al The terms and conditions of this Agreement and the instructio located at 11429 Donner Pass Rd# 1 ("Escrow Holder") with regard ns to Placer "Title Company created pursuant hereto are as follows: to the escrow( Escrow") 1• Description of Property. Seller is the fee owner of the following ollowing property (a) that certain real property known as Assessor's Parcel Number consisting of approximately one hundred sixty-one 161 18 Ol 0-10 TruckTruckee, Count of Nevada Y ( )net acres of land located in the Town of Y (the"County"), State of California, more Particularlydescribed Exhibit A attached hereto and by this reference incorporated herein t ed in (the"Land"); (b) all rights,privileges,easements, tenements,hereditaments appurtenances which belong to or appertain to the Land and/ �rights of way and without limitation, all improvements,rights to all °r are owned by Seller, including, g minerals, oil,gas and other hydrocarbon substances on and under the Land, as well as all development rights, rights and water stock, if any,relatingto the P ghts' air rights, water, water Land (collectively, the `Appurtenances"); and (c) all intangible property owned or held by Seller in connection with the use thereof including, without limitation, all Permits with the Land or licenses,rental contracts and agreements (collectively, �maps, surveys,plans, leases, ( y, the "Intangible Property"). The Land and the Appurtenances are sometimes herein referred " The Real Property and the In to collectively as the "Real Property. p Y tangible Property are hereinafter collectively referred to as the"Property." 2. Purchase and Sale. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Seller agrees to sell the P purchase the Property from Seller,upon the terms Property to Buyer, and Buyer agrees to p and conditions herein set forth. 3. Purchase Price. The purchase price("Purchase Pric " Seven Hundred Seventy Five Thousand Dollars e ) for the Property shall be (��77 s,000.00). A- 1123413.8 4. Payment of Purchase Price. The Purchase Price for the Property shall by Buyer as follows: p Y 1 be payable (a) Deposit. Within three(3) business days after the full execution and delivery to Buyer of this Agreement, Buyer shall deposit, or cause to be deposited with cash or certified or bank cashier's check made payable p Escrow Holder, in p y ble to Escrow Holder, the sum of Fifty- Thousand Dollars ($50,000) (the"Deposit"). The Deposit shall be invested an interest-bearing account with all interest accruing by Escrow Holder in ng thereon to be credited to the Purchase Price upon the Close of Escrow (as hereinafter defined). Should Buyer timelyelect to Escrow pursuant to the provisions of this Agreement the De terminate this thereon (less Buyer's share of escrow costs incurred) shall be returned by Escrow Holder to Buyer without the need for further instructions to do so,this an Agreement pursuant hereto shall be deemed terminated and g d the Escrow created neither party shall have any further rights or obligations hereunder. Upon the expiration of the Contingency Period 8(a)(ii)below),provided Buyer has not elected g y (as defined in Section to terminate this Agreement, the Deposit shall become nonrefundable to Buyer unless Seller defaults hereunder or a condition obligation to close hereunder fails to occur. to Buyer's (b) Balance of the Purchase Price. On or before the Close of Escrow,provided Buyer has not elected to terminate this Agreement and the Escrow P ided accordance with its rights to terminate contained � created pursuant hereto in in this Agreement, Buyer shall deposit or cause to be deposited with Escrow Holder, in cash or by a certified or bank cashier's payable to Escrow Holder or a confirmed wire transfer o r s check made f funds, an amount equal to the Purchase Price(as determined pursuant to Section 3 above) together with B closing costs and prorations, less the sum of the Depositg Buyer's share of and any interest accrued thereon. 5. Escrow. (a) Opening of Escrow. For purposes of this Agreement, the Escrow shall an executed count be deemed opened on the date Escrow Holder shall have received this Agreement from both Buyer and Seller. Escrow Holder shall n counterpart of this notify Buyer and Seller,in writing, of the date Escrow is opened and the scheduled Closing Date, as defined In addition, Buyer and Seller agree to execute deliver and be bound by in Section 5(b)below. any reasonable or customary supplemental escrow instructions of Escrow Holder or other instrument reasonably be required by Escrow Holder in order to consummate the trans s as may by this Agreement. Any such supplemental instructions shall action contemplated supersede any portions of this Agreement. If not conflict with, amend or g there is any inconsistency between such supplemental instructions and this Agreement, this Agreement shall control (b) Close of Escrow. For purposes of this Agreement, the"Close shall be defined as the date that the grant deed conveying of Escrow y g the Real Property to Buyer(in the form typically used by Escrow Holder) (the "Grant Deed"), is recorded in the Official County. This Escrow shall close on or before thin 34 Records of the Period(the"Scheduled Closing Y( ) days after the end of the Contingency ng Date"), unless extended by mutual agreement of the parties. -2- 1123413.8 6. Condition of Title. It shall be a condition to the Close of Escrow that tit Real Property be conveyed to Buyer by Seller b the Gran le to the approved condition of title �� ,Y t Deed subject only to the following ("Approved Condition of Title"): (a) a lien to secure payment of real estate taxes, not delinquent; (b) the lien of supplemental taxes assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code " that such supplemental taxes are attributable ( Code" p), but only to the extent nbutable to the transaction contemplated by this Agreement. Seller shall be responsible for any supplemental taxes assessed pursuant to the C accrue prior to the Close of Escrow, to the extent that s p ode which such taxes relate to events (including, without limitation, any changes in ownership and/or new construction Close of Escrow; )occurring prior to the (c) matters affecting the Approved Condition of Title created b or with the express written consent of Buyer; Y (d) the restrictions contained in the easement agreement set forth in Exhibit B attached hereto and by this reference incorporated herein (the"Easement Agreement"); and ' (e) exceptions which are disclosed by the Report described in Section 8 a i hereof and which are approved or deemed approved b Buyer ' ( )( )Pp y y in accordance with Section 8(a)(i) hereof. Seller covenants and agrees that during the term of this Escrow,it will not c the Real Property to differ from the Approved Condition of Title cause title to Any liens, encumbrances,easements re described in this Section 6. restrictions, conditions, covenants, rights,rights of way or other matters affecting the Approved Condition of Title which may appear of r revealed after the date of the Report described in Section Y pp record or be Buyer may obtain shall also b 8(a)(i)below (or any ALTA survey that e subject to Buyer's approval pursuant to Section 8 below and must be eliminated or ameliorated to Buyer's satisfaction by Seller prior to the S Closing Date as a condition to the Close of Escrow for Buyer's benefit. Scheduled 7. Title Policy. Title shall be evidenced by the willingness of the Title or, g e Company to issue its CLTA Owner's Form Policy of Title Insurance e Owner's Form , , if requested Buyer, its ALTA Extended Coverage rm Policy of Title Insurance ("Title Policy")in the amount of the Purchase Price showing title to the Property vested in Buyer subject only Condition of Title. y J y to the Approved 8. Conditions to Close of Escrow. (a) Conditions to Buyer's Obli ations. The Close of Escrow and Buyer's obligation to consummate the transaction contemplated by this Agreement Y satisfaction of the following conditions for Buyer's benefit g are subject to the Y ton or prior to the dates designated below for the satisfaction of such conditions: -3- 1123413.8 (i) Title. Buyer shall have approved the legal description of the Land attached hereto as Exhibit A and any matters of title as disclosed by the followingdocuments (collectively, the"Title Documents")to be delivered to Buyer b Sel • ments preliminary Y Y Seller: (A) a standard p ary title report(the"Report") dated April 5, 2011 issued by Escrow Holder's Title Insurer Underwriter(the "Title Company") with respect to the Property; B if Buyer, an"extended coverage" supplemental P Y� ( ) requested by g pp al title report ("ALTA Report") issued by the Title Company with respect to the Real Property; (C)legible copies of all documents recorded or unrecorded,referred to in the Report and/or � whether p r the ALTA Report(if any); and(D) a color-coded map plotting all easements disclosed by the Report, and the ALTA R Seller shall direct the Title Company to deliver the Title DocumentsReport (if any}. days after the opening of Escrow. Buyer shall have until the date that is thirty(30) days after Buyer's receipt of the Title Documents (the"Title Approval Date" give ("Buyer's Title N ) to g Seller and Escrow Holder written notice("Bu Y Notice") of Buyer's disapproval or conditional approval of the legal description or any matters shown in the Title Documents. The failure Buyer's Title Notice on or before the Title Approval D of Buyer to give pp ate shall be deemed to constitute Buyer's approval of the legal description and all Title Documents. If Buyer disapproves conditionally approves the legal description and/or any matters of title show pp or nditionally n in the Title Documents, Seller may, within five(5)business days after its receipt of Buyer's Title Notice, elect to eliminate ameliorate to Buyer's satisfaction the disapproved or conditionallyapproved urinate or shall give Buyer written notice("Seller's Title app ed title matters. Seller Notice") of those disapproved or conditionally approved title matters, if any, which Seller agrees to either eliminate from the Title P exceptions to title to the Real Property or to ameliorate to Buyer'sPolicy as Closing Date as a condition to the Close of Escrow for Buyer's benefit. If Seller does not elect to eliminate or ameliorate to Buyer's satisfaction any disapproved or condition matters, or if Buyer disapproves of Seller's Title N conditionally approved title Notice, or if, despite its best efforts, Seller is unable to eliminate or ameliorate to Buyer's satisfaction all such disapproved matters prior to the Scheduled Closing Date, then Buyer shall have the right, b business days thereof to Seller and Escrow g Y a Pp venting delivered within five(5) Holder, to. (A) waive its prior disapproval,in which event said disapproved matters shall be deemed approved; or(B) terminate this Agreement the Escrow created pursuant hereto, in which event Bu er shall be en ' urnof and Deposits,plus any interest accrued thereon y titled to the return of the (less Buyer's share of costs incurred), and this Agreement,the Escrow and the rights and obligations of the parties hereunder Notwithstanding anything to the contrarycontained i p r shall terminate. n this Section 8(a)(i),Buyer hereby objects to all leases and liens evidencing monetary encumbrances (other than liens for property taxes) and Seller agrees to cause all such liens to b non-delinquent expense(including allprepayment e e eliminated at Seller's sole cost and penalties and charges)prior to the Close of Escrow. (ii) Review and Annroval of Documents and Materials. Within five 5 after the opening of Escrow, Seller shall deliver to Buyer, at Seller's ( ) days Buyer's review and approval, the documents Y r s sole cost and expense, for and materials respecting the Property set forth in subsection (A) through(I) below (the`Documents and Materials"). For a t of all of the D } Period of thirty(30) days following Buyer's receipt Documents and Materials from Seller(the "Contingency Period"), Buyer shall have the right to review and approve pp or disapprove in its -4- 1123413.8 sole and subjective discretion any or all of the Documents and Materials. The disapprove any of the Documents and Materials on failure of Buyer to or before the expiration of the Contingency Period shall be deemed to constitute Buyer's approval thereof. (A) Licenses. Any and all licenses,permits and agreements affecting or relating to the ownership, subdivision,possession or development of the Real possession or control of Seller, its agents or representatives; P Property in the (B) Governmental Correspondence. Copies of all applications and correspondence or other written communications to or from an governmental e or agency regarding any permit, approval, consent or Y g rnmental entity, department PP authorization with respect to the development of the Real Property which are in the possession or control of representatives, if any; Seller, its agents or (C) Surveys. Copies of the most recent surveys, if an ertainin the Property or any portion thereof which are in the possession or control Seller,, its agents or g to of Sell representatives; (D) M�a s. Any and all tentative,parcel and/or final ma s, anc development plans, site plans, building permits,certificates or occu p other governmentally approved or processes document P Y� specifications or any development of the Real Property s relating to the subdivision or p y which are in the possession or control of Seller, its agents or representatives; (E) Reports. Any and all reports,projections, studies or other documents or written information pertaining to the Propertyincluding, wit reports or documents related to an hazardous waste g, without limitation, any Y ste or toxic substances contained on or related to the Property, or any portion there, which are in the possession or control of Seller, its agents or representatives; (F) Tax Statements. Any and all property tax statements pertaining the Property which are in the possession or control of Seller, its agents or P g to g representatives; (G) Soils and Fnorineering Studies. Any and all soils reports, engineering data and other data or studies pertaining to the Real Property or which are in the possession or control of Seller, its agents or p Y any portion thereof g representatives; (H) Leases. Copies of any and all existing leases and amendment thereto of the Real Property or any portion thereof, if any("Leases");• an s (I) Agreements. Any and all reciprocal easement a reements if and any other contracts or agreements affecting or relating to the ownership g any, i the Real Property. p or development of -5- 1123413.8 (iii) Inspections and Studies. On or before the expiration of the Contingency Period, Buyer shall have approved the results of any and all surveys, inspections, g Y tests and studies (including, without limitation investigationsY p ,investigations, with regard to zoning,building codes and other governmental regulations, architectural inspections, engineering te sts, economicfeasibility studies and soils, seismic and geologic reports) with respect to the Real Property as Buyer may elect to make or obtain. The failure of Buyer to approve said result expiration of the Contingency Period shall be deemedPP son or prior to the to constitute Buyer's approval of the results. The cost of any such inspections, tests and studies,includingthe of ALTA survey of the Real Property(if an cost obtaining an y), shall be borne by Buyer. During the term of this Escrow, Buyer, its agents, contractors and subcontractors shall have the to right Land, at reasonable times during ordinary business hours to make any and g enter upon the all inspections and tests as may be necessary or desirable in Buyer's sole judgment and discretion. Buyer s Seller, at no cost, complete copies of all investigation reports Y hall give g p obtained by Buyer poor to closing. In the event this Agreement is canceled and escrow fails to close, this obligation termination of this Agreement. Buyer shall use care and consideration in g ion shall survive connection with any of its inspections. Buyer shall indemnify and hold Seller and the Property h all liability,claim or damage directlyarising out of or P y armless from any and g resulting from Buyer's investigations, including the entry and/or activities of Buyer, its agents,contractors and sub Land. Buyer's indemnity obligations shall survive the termination of this Agreement. (iv) Representations, Warranties and Covenants of Seller. Seller shall hav duly authorized and performed each and every agreement to be performed b e and Seller's representations, warranties and covenant P Y Seller hereunder s set forth in Section 14 shall be true and correct as of the Closing Date. (v) No Material Changes. At the Closing Date, there shall have been no material adverse changes in the title or physical condition of the Real Property. (vi) Moratorium. At the Closing Date, there shall be no reassessment reclassification,rezoning or other statute, law,judicial or administrative deci 'i ordinance or regulation(including amendments and modification son,proceeding, pending or proposed to be imposed b s of any of the foregoing) P y any governmental or quasi-governmental bodies or agencies having jurisdiction over the Real Property or any public or private utilit jurisdiction over the Real Property which would adverselyP y having judgment, the acquisition, development, affect, in Buyer's reasonable q pment, sale or use of the Real Property. (b) Conditions to Seller's Obligations. For the benefit of Seller, the Cl Escrow shall be conditioned upon the occurrence and/or satisfactionowe of conditions (or Seller's waiver thereof it being agreed that Seller of each of the following may waive any or all of such conditions): (i) Buyer's Obligations. Buyer shall have timely performed all of the obligations required by the terms of this Agreement to be performed b P y Buyer; and -6- 1123413.8 (ii) Buyer's Representations. All representations and warranties made b Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow. Y 9. Deposits by Seller. At least one(1)business day prior to the Scheduled Clos Date, Seller shall deposit or cause to be deposited with Escrow Holder the following ing and instruments: ng documents (a) Grant Deed. The Grant Deed, duly executed by Seller, acknowledged and in a Y recordable form typically used by Escrow Holder in the County. g (b) Bill of Sale. A bill of sale, assignment document, or other appropriate instrument (depending on the precise nature of the Intangible Property) Buyer(the "Bill of Sale") g p y)reasonably acceptable to whereby Seller conveys all rights to the Intangible Property. (c) Proof of Authority. Such proof of Seller's authority and authorization to enter into this Agreement and the transactions contemplated hereby, and such roof of the authority of the individual(s) executing and/or deliveringan instruments, power and certificates on behalf of Seller to act for and bind Y ruments, documents or Seller as may be reasonably required by the Title Company and/or Buyer. 10. Deposits by Buyer. Buyer shall deposit or cause to be deposited with Escrow Holder the funds which are to be applied towards the payment of p w amounts and at the times designated in p Y the Purchase Price in the g Section 4 above(as adjusted by the prorations and credits hereinafter provided). In addition, at least one (1) day prior to the Scheduled Closing shall deposit with Escrow Holder the Easement Agreement, ing Date, Buyer gr , duly executed by Buyer, acknowledged and in recordable form, together with such proof of Buyer's authority authorization to enter into this Agreement and the transaction Y y and proof of the power and authorityof the individual(s) s contemplated hereby, and such idual(s)executing and/or delivering any instruments, documents or certificates on behalf of Buyer to act for and bind as reason Buyer required by Title Company. Y ably maybe 11. Costs and Expenses. The cost and expense of the Title Policyattributable CLTA coverage shall be shared equally by Seller and Buyer le to attributable to ALTA coverage, if Y and the incremental amount g , any, shall be paid by Buyer. The escrow fee of Escrow Holder shall be shared equally by Seller and Buyer. Seller shall pay all document 'transfer payable in connection with the recordation of the Grant Deed. The amount of such transfer taxes shall not be posted on the Grant Deed but shall be supplied b separate affidavit. Seller shall pay,respectively, the Escrow Holder's customary p it. Buyer and stomary charges to buyers and sellers for document drafting,recording and miscellaneous charges. If, as a result of no f Seller,Escrow fails to close, Buyer and Seller shall shay fault of Buyer or e equally all of Escrow Holder's fees and charges. 12. Prorations. The following prorations shall be made between Seller an the Close of Escrow, computed as of the Close of Escrow: d Buyer on -7- 1123413.8 (a) Taxes Assessments and Other Amounts. Real property taxes, special taxes assessments, utility fees and/or deposits, and personal property taxes shall p Close of Escrow. Prorations of taxes and ass p p Y be prorated as of the assessment with respect to the Real Property shall be based upon the latest available tax information such that Seller shall be responsible taxes and assessments levied against the Property ble for all such p y t A o and including the day prior to the Close of Escrow and Buyer shall be responsible for all taxes, special taxes and assessment prior to the Cl s levied against the Real Property from and after the day P Close of Escrow. (b) Adjustments. If any errors or omissions are made regardingadjustments an prorations as aforesaid, the parties shall make the appropriate correct' d ions promptly upon the discovery thereof. If any estimations are made at the Close of Escrow regarding prorations, the parties shall make the appropriate correc ' g g adjustments or correction promptly when accurate information becomes available. Any corrected adjustment or proration shall be aid in cash entitled thereto. p to the party 13. Disbursements and Other Actions b Escrow Holder. Upon the Close o the Escrow Holder shall promptly undertake all of the following in the P f Escrow, manner indicated. (a) Prorations. Prorate all matters referenced in Section 12 based a upon closing statement for the escrow consistent with this Agreement(the"ClosingState p ing Escrow signed by the parties; Statement") delivered into (b) Recording. Cause the Grant Deed, the Easement Agreement and an oth documents which the parties hereto may mutually direct, to be recorded in the Y er of the County. Escrow Holder is instructed not to affix the amount of documentary Records cumentary transfer tax on the face of the Deed,but to supply same by separate affidavit; (c) Funds. Disburse the funds deposited by Buyer with Escrow Holder as follows: deliver to Seller the amount due Seller as shown on the ClosingStatement, items chargeable to the account of Buyer pursuant to the Closing ement, pay all balance of such funds, if any, Buyer;, to Bu er• and Statement, and refund the (d) Title Policy. Direct the Title Company to issue the Title Policy to Buyer. (e) Bill of Sale. Deliver the Bill of Sale to Buyer. 14. Seller's Representations and Warranties. In consideration of Buyer's this Agreement and as an inducement to Buyer to purchase the Pro s entering into e Y following representations and warranties each of which is materiap �Y� Seller makes the l and is being relied upon by Buyer(and the continued truth and accuracy of which shall constitute a con Buyer's obligations hereunder). As used in this Agreement condition precedent to "awareness" actual knowledge shall be limited to the actg Bement, Seller's "knowledge" and of Michael D. Holley, General Manager/Water Division Manager and/or Kathleen Neus, Technical Programs g ams -8- 1123413.8 Administrator/Property Coordinator. Notwithstanding the foregoing, neither Michael Holley Kathy Neus shall have personal liability to Buyer hereunder. nor (a) Authority. Seller has the full power and authority to sell the Property. This Agreement has been duly and validly authorized, executed and delivered b S Y y Seller and no other authorization is requisite to the valid and binding execution, delivery and performance of this Agreement by Seller; (b) Proceedings. Seller is not aware of any actions, suits,proceedings or Property, in law or governmental investigations pending or threatened against or affectingthe P g equity; (c) Third Party Consents. No consents or waivers of or by any third are pursuant necessary to permit the consummation by Seller of the transactions contemplatedrsuant to this party Agreement; (d) Compliance With Laws. Seller has received no notice and has no knowledge an of any violation of applicable law, ordinance, rule, regulation or requirement of g governmental agency, body or subdivision affecting1 q Y or relating to the Real Property,including, without limitation, any subdivision,building, use or environmental law, ordinance rule requirement or regulation; ' (e) Condemnation. Seller is not aware of any pending or threatened or an proceedings in eminent domain or otherwise, which would affect the Real Property, y portion thereof; (f) Governmental Notices. Seller shall deliver to Buyer each and ever notice or communication Seller receives from any governmental bodyon Seller' Y upon s receipt of the same; (g) Material Information. Seller shall notify Buyer of any material information concerning the Property about which Seller learns during the course of the Escrow upon Seller's obtaining knowledge of same; promptly (h) Leases. There are no leases or other agreements (whether oral or written affecting or relating to the right of any party with respect to the ) or any portion thereof; p possession of the Real Property, (i) Documents. All documents delivered to Buyer by Seller pursuant to this Agreement are or will be true and correct copies of originals and an and all information to Buyer by Seller in accordance with Section 8 a ii here Y tion supplied ( )( ) of is true and accurate, to Seller's knowledge; 0) Defects. Seller is not aware of any significant defects in the Real Property, except as expressly disclosed in the Documents and Materials. Also,if Seller becomesp Y� any significant defects in the Real Property during the term of the Es aware of give Buyer written notice thereof; crow, Seller shall promptly -9- 1123413.8 (k) Assessments. Seller is not aware of any intended public improvements will result in any charge being levied or assessed against the Real P is which g Property or any delinquent taxes, assessments (special, general or otherwise), or bonds of any nature affecting or any portion thereof; the Property, (1) Future Action. From and after the date hereof, without the prior written consent of buyer, Seller shall not execute nor consent to the execution Pm any existing lease of any onion of the Real of any lease or terminate P Property or any other instrument which may result in an alteration of the Approved Condition of Title; (m) Truthfulness in Closing. Except as expressly herein otherwise i rov representations and warranties of Seller set forth in this Agreement provided,the Close of Escrow as if those representations g ement shall be true on and as of the P s and warranties were made on and as of such time; (n) Hazardous Waste. To the best of Seller's knowledge there is no contamination,hazardous waste or toxic substance in existenceg Real Property or in any building on or below the surface of the located upon the Real Property, including, without limitation, contamination of the soil, subsoil or ground water, which constitutes a violation of any law,rule or regulation of any government entity having jurisdiction n thereof or which exposes Buyer to liability to third parties. No hazardous waste or toxic substances are or below the surface of the Real Property or in have been stored on or P Y any budding or other structure located on the Real Property by Seller or any tenant of the Real Property duringSeller's ow Seller is not aware that any such hazardous waste ownership thereof, and or toxic substances have been so stored on or below the surface of the Land or in any buildings or other improvements person or entity. No pollutants, hazardous avast P is thereon by any other e or toxic substances have ever been discharged by Seller or any tenant of any portion of the Real Propertyduring Seller's any body of water other than a sanitarysewers system g r s ownership thereof into y em established for that purpose,no such pollutants, hazardous waste or toxic substances have ever been disposed o tenant on the Real Property, including, without P f by Seller or any such limitation, by underground injection, and Seller is not aware of any such pollutants,hazardous waste or toxic substances havingbeen or disposed of by any other person or entity. No onion of the n so discharged P Land has ever been used by Seller or any tenant of any portion of the Land during Seller's ownership thereof as a waste disposal site and Seller is not aware of any such prior use. Seller storage or Property during Seller's ownershipthereof and all tenants of the Real have fully complied with all applicable laws and regulations in connection with handling, using, storing and/or disposing toxic substances, including, without limitation the maintenance P g of hazardous wastes and of all required permits and approvals. without limiting the other provisions of this Agreement, Seller shall Buyer's investigation of matters relatingto the foregoing cooperate with g g provisions of this Section and to provide access to and copies of any data and/or documents dealingwith o substances used at the Real Property and an disposal potentially hazardous Y P practices followed. Seller agrees that Buyer may make inquiries of governmental agencies regarding such Seller for the outcome of such discussions• Notwithstandingg g m afters, without liability to the foregoing, Seller is aware of the following, but has made no investigation into the potential existence use/production of hazardous waste or toxic substances related thereto: (1) the use/ p n of charcoal on the Property; (2) the existence of -10- 1123413.8 an old pipeline on the Property; and (3)the occasional deposit by Seller of asphalt,base rock sand and dirt upon the Property. With respect to the representations and warranties contained in this Section 14(n), Seller makes no warranties relating to the matters covered under items 1 through (3) in the immediately preceding sentence nor ( )P g any matters disclosed in the Phase I environmental report commissioned by Buyer. (o) Contracts. There are no contracts or agreements relating to the operation, maintenance, service,repair, development, improvements, management or ownership of the Real Property, or any portion thereof; (p) Agreement Not Constituting Breach or Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereunder will: P (i) constitute a breach of any agreement which affects the Property or an part thereof; Y (ii) conflict with or result in a breach of any writ, injunction or decree of any court or governmental instrumentality; (iii) violate any federal, state or local law, ordinance or regulation applicable to the Property; or (iv) accelerate the maturity of any obligation secured by or otherwise affecting the Property or any part thereof; (q) Litigation. There are no actions, suits,proceedings or claims pendingor,to h the the best of Sellers knowledge, threatened or contemplated, in connection with Property, and Seller has no knowledge of any action or inaction which may result in such an action suit proceeding or claim, and there are no actions, suits, proceedings or claims pendingor, to the best of Seller's knowledge threatened or contemplated, against Seller which 'g would materially affect Seller's ability to perform its obligations under this Agreement or an other document or instrument delivered by Seller to Buyer hereunder, and Se Y Seller has no knowledge or any action or inaction which may result in such an action, suit,proceeding or claim; (r) No Conflicting_Righhts_. No other party has any right to purchase the Property, nor are there any rights of first refusal or other options to purchase the Property, and P Y� not grant any such rights or solicit an other offers t Seller shall Y o purchase the Property so long as this Agreement is in effect; and (s) Representation and Warranties at Closing. Each of the representations and warranties of Seller in this Agreement may be relied upon by Buyer as true as of the Close of Escrow, and each such representation and warranty shall be deemed to have been repeated at that time. -11- 1123413.8 15. Buyer's Representations and Warranties. In consideration of Seller enteringinto this Agreement and as an inducement to Seller to sell the Property to Buyer, Bu P Y Buyer makes the following representations and warranties, each of which is material and is beingrelied u by condition precedent upon Seller(the continued truth and accuracy of which shall constitute a to Seller's obligations hereunder): (a) Buyer has the legal right,power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Buyer is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein; p (b) Buyer intends to use the Property primarily for recreational purposes and is willing to consider granting an easement, upon due consideration,for a future Donner Lake Rim Trail; and (c) The representations and warranties of Buyer set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were ma de on and as of such time. 16. LIQUIDATED DAMAGES. FOLLOWING BUYER'S APPROVAL OF THE MATTERS SET FORTH IN SECTION 8 ABOVE, IF BUYER COMMITS A MATERIAL DEFAULT UNDER THIS AGREEMENT AND THE CLOSE OF ESCROW FAILS TO OCCUR BY REASON OF SUCH DEFAULT THEN IN ANY SUCH EVENT,THE ESCROW HOLDER MAY BE INSTRUCTED BY ' SELLER TO CANCEL THE ESCROW, BUYER SHALL RETURN ALL DOCUMENTS MATERIALS TO SELLER. AND SELLER SHALL THERE AND UPON BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED UPON CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE THE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER'S DAMAGE REASON OF BUYER'S DEFAULT. ACCORDINGLY BY BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH TIME TO AWARD SELLER "LIQUIDATED DAMAGES"EQUAL TO THE TOTAL OF THE ENTIRE AMOUNT DEPOSITS PLACED INTO ESCROW BY BUYER PURSUANTOF THE TO SECTION 4 HEREOF, TOGETHER WITH ANY INTEREST ACCRUED THEREON. SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THE APPLICABLE FOREGOING AMOUNTS OF LIQUIDATED DAMAGES LIQUIDATED DAMAGES ARE REASONABLE AS AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY REASON OF BUYER'SQ Y, TO DEFAULT. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECT SELLER WAIVES ANY AND ALL RIGHTS WHICH SELL ION, ER OTHERWISE WOULD -12- 1123413.8 HAVE HAD UNDER CALIFORNIA CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 16 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. Seller's Initials Buyer's Initials 17. Damage or Condemnation Prior to Closing. Seller shall promptly notifyBuyer of any casualty to the Real Property or any condemnation proceeding commenced Y P g ced prior to the Close of Escrow. If any such damage or proceeding relates to or may result in the loss of an material portion of the Real Property, Seller or Buyer may, at their option, elect either Y p her to. (i)terminate this Agreement,in which event all funds deposited into Escrow by Buyer(less Buyer's share of art escrow costs incurred) shall be returned to Buyer and neither shall y party 1 have any further rights or obligations hereunder, or(ii) continue the Agreement in effect, in which event upon the Close of Escrow, Buyer shall be entitled to any compensation, awards or other p payments or relief resulting from such casualty or condemnation proceeding. 18. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail postage prepaid,return receipt requested, or sent b teleco y py, and shall be deemed received upon the earlier of(i)if personally delivered, the date of delivery to the address of the person to receive such notice, (ii)if mailed, four(4)business days after the date Y of posting by the United States post office, or(iii) if given by fax, when sent provided Sender has receipt confirming completed transmission. Any notice, request, demand, direction or o P g other communication sent by telecopy must be confirmed within forty-eight(48)hours by letter mailed or delivered in accordance with the foregoing. To Buyer: Tahoe Donner Association 11509 Northwoods Blvd. Truckee, CA 96161 Attention: Robb Etnyre, General Manager With a copy to: Downey Brand LLP 621 Capitol Mall, 18th Floor Sacramento, CA 95 814 Attention: Christopher A. Delfino To Seller: Truckee Donner Public Utility District PO Box 309 (11570 Donner Pass Road) -13- 1123413.8 Truckee, CA 96160 Attention: Michael Holley, General Manager With a copy to: Cristina L. Woole ,Attorney at La Y y w PO Box 8145 Truckee, CA 96162 To Escrow Holder: Placer Title Company 11429 Donner Pass Rd# 1 Truckee, CA 96161 Attention: Terry Lindroth Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receiptof g the notice, demand, request or communication sent. 19. Brokers. Each party represents and warrants to the other party that it has not utilized the services of a Broker with respect to the sale of the Property. 20. Legal Fees. In the event of the bringing of any action or suit by a part hereto against another party hereunder by reason of any breach of an of the y y covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment, or out of court settlement shall be entitled to have and recover of and from the other party all costs and expenses of suit, including actual attorneys' fees. 21. Assignment. Neither party may assign, transfer or convey its rights or obligations art under this Agreement without the prior written consent of the other and then g party,' en only if the party's assignee assumes in writing all of its obligations hereunder;provided, however, the art shall in no event be released from its obligations hereunder by reason of such assignment. Y . 22. Miscellaneous. (a) Survival of Covenants. The covenants,representations and warranties of both Buyer and Seller set forth in this Agreement shall survive the recordation of the Grant Deed a the Close of Escrow. and (b) Required Actions of Buyer and Seller. Buyer and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required in order to consummate the purchase and sale herein contemplated and shall use their best efforts to accomplish the Close of Escrow in accordance with the provisions hereof. -14- 1123413.8 (c) Time of Essence. Time is of the essence of each and ever term, condition obligation and provision hereof. y ' (d) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, g but all of which together, shall constitute one and the p same instrument. (e) Captions. Any captions to, or headings of, the Sections or subsections of t Agreement are solely for the convenience of the parties hereto are his and shall not be used for the interpretation p � not a part of this Agreement, rp n or determination of the validity of this Agreement or any provision hereof. (f) No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be p Y p d upon, nor obligate an of the parties the deemed to confer any rights Y p thereto,to any person or entity other than the parties hereto. incorporated(g) Exhibits. The Exhibits attached hereto are hereby inco herein b reference. rP y this (h) Amendment to this Agreement. The terms of this Agreement may not modified or amended except by an instrument in writingexecute Y be d by each of the parties hereto. (i) Waiver. The waiver or failure to enforce any provision of this Agree nt shall not operate as a waiver of any future breach of any such p any provision or a g meo hereof. other provision 0) Applicable Law. This Agreement shall be governed b and construed accordance with the laws of the State of California. Y in (k) Fees and Other Expenses. Except as otherwise provided herein each parties shall pay its own fees and expenses in connection with this Agreement of the . (1) Entire A reement. This Agreement supersedes any prior agreement negotiations and communications, oral or written, and contains t p g s, Buyer and Seller as to the subject matte he entire agreement between r hereof. No subsequent agreement,representation, or promise made by either party hereto, or by or to an employee, officer a either party shall be of any effect unless it is in writin and , gent o r representative of thereby. g executed by the party to be bound (m) Successors and Assigns. This Agreement shall be bindingu and inure to the benefit of the successors and assigns of the p to parties here upon shall . -15- 1123413.8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the da and year first above written. y BUYER: SELLER: TAHOE DONNER ASSOCIATION, a TRUCKEE DONNER PUBLIC UTILITY California nonprofit mutual benefit corporation DISTRICT, a California public utility district By: By: Its: Its: By: By: Its: Its: Acceptance by Escrow Holder: Placer Title Company hereby acknowledges that it has received a fully executed counterpart of the foregoing Agreement of Purchase and Sale and Joint Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. Dated: PLACER TITLE COMPANY By: Its: -16- 1123413.8 EXHIBIT A TO AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS LEGAL DESCRIPTION THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,COUNTY OF NEVADA,CITY OF TRUCKEE,AND IS DESCRIBED AS FOLLOWS: PARCEL ONE: THE NORTH HALF OF THE SOUTHWEST QUARTER AND THE NORTHWEST QUARTER OF TH SOUTHEAST QUARTER OF SECTION 8,TOWNSHIP 17 NORTH E RANGE 1b EAST. PARCEL TWO: THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 8,TOWNSHIP 17 NORTH,RANGE 16 EAST. EXCEPTING THEREFROM ALL THAT PORTION OF THE SOUTH ONE-HALF OF SECTION$ TOWNSHIP 17 NORTH,RANGE 16 EAST,NEVADA COUNTY,CALIFORNIA AS SET FORTH QUITCLAIM DEED RECORDED APRIL 18, 1986 INSTRUMENT NO. 1986-08456 OFFICIAL IN RECORDS,LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE. BEGINNING AT A POINT SITUATE ON THE SOUTHERLY LINE OF TAHOE DONNER UNIT FILED IN BOOK 4 OF SUBDIVISIONS,AT PAGE 36,NEVADA COUNTY RECORDS5 AS WHICH A B.L.M. BRASS CAP MARKING THE WEST ONE-QUARTER ,FROM BEARS NORTH 00 DEGREES 22'31" EAST 6 Q TER CORNER OF SAID SECTION 8 0.65 FEET, THENCE ALONG SAID SOUTHERLY LINE OF TAHOE DONNER UNIT 5 NORTH 88 DEGREES 34'3 2" EAST 131.44 FEET TO A 1" PIPE TAGGED R.C.E. 13309 FEET;THENCE SOUTH 89 DEGREES 42'29"EAST 3950 FEET MORE OR LESS TO THE WESTERLY LINE OF THE EAST ONE-HALF OF THE SOUTHER ONE-QUARTER OF SAID SECTION 8. SOUTHEAST APN: 18-010-10 EXHIBIT B TO AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS Recording requested by and when recorded mail to: Truckee Donner Public Utility District Attn:Michael Holley,General Manager 11570 Donner-Pass Road Truckee,CA 96160 Cristina L.Wooley,Esq. P.O.Box 8145 Truckee,CA 96162 Space above this line reserved for Recorder's use APN: 18-010-10 EASEMENT DEED This Easement Deed, dated , 2011, is entered into by and between Tahoe Donner Association ("TDA"), a California non-profit mutual benefit corporation and the Truckee Donner Public UtilityDistrict "TDPUD" ("Grantor"), ( ), a local public agency of the State of California("Grantee"),with reference to the following facts: RECITALS A. Concurrently herewith, Grantor has acquired from Grantee that certain real property known as Assessor's Parcel Number 18-010-10, consisting of approximately 161 P P Y north of Interstate 80 and South of Tahoe Donner in Nevada PP Y acres of land '� �� a County, California, which is more particularly described in Exhibit A (the "Property"). B. As partial consideration for Grantee's sale of the Property to Grantor, Grantor agreed to refrain from developing the Property for residential purposes, to re geed of specified features (more full described below), P � preserve the natural condition Y w), and to manage the forested condition of the Property, subject to the development rights set forth below. C. Grantee intends to use the Property for primarily recreational purposes. The r this Easement will serve the governmental conservation policies of P grant of Civil Code. P Section 815 of the California GRANT OF EASEMENT Now, therefore, for good and valuable consideration, the receipt and sufficient o hereby acknowledged, Grantor grants and Grantee accepts, Y f which is definition set forth in Section 815.1 of the p a Perpetual easement meeting the California Civil Code, in, on, over, and across the Property ("Easement") in favor of Grantee as holder of the Easement grantingto Grantee the rights specifically set out below, and restricting in perpetuity certain uses that may be made of the Pro ert subject to the following terms and conditions: P y' 1. Purposes and Limitations. The purposes of this Easement are to limit the development of the Property, to allow active management and development potential consistent with Paragraph four below, and g elopment of the Property P maintain the current access to and preservation of the specified features in a fashion similar to their existing use and condition, and to predominantly allow the Property to remain in its natural, forested condition. P Inaptly (a) No single or multiple family residences, mobile homes, or transient rental will be constructed on the Property. units (b) Existing cedar groves, charcoal kilns, spring and riparian zones are s features located on the Property. For informational purposes only, pedal features is generally depicted in Exhibit B P P Y� the location of the special P ("Features"), attached to and made a part of this Easement. Grantor may continue to access the Features, but shall not substantially natural condition of the Features, subject to the existing disturb the use and responsible forest management practices. (c) In maintaining the Property in its predominately natural, forested c Grantor shall rely upon responsible forest management practices condition, Grantor's reserved rights, as set for the below. g P es and standards, subject to 2. Initial Contact Information. Grantee: Grantor: Truckee Donner Public Utility District Tahoe Donner Association Attention: Michael Holley, General Manager Attn:Robb Etnyre,General Mana er PO Box 309 11509 Northwoods Blvd. g 11570 Donner Pass Road Truckee,CA 96161 Truckee, CA 96160 Phone: (530)587-9400 Phone: Fax: (530) 587-9419 Fax: 3. Grantor's Responsibilities. Grantor shall be solelyresponsible for taxes and for the upkeep and maintenance of the Property. P Payment of property . In view of Grantee's negative rights, limited access to the land, and lack of active involvement in the day-to-day activities on the Property, Grantor shall be solelyliable f management or injury or the death of any person, or physical damage to any property, or any other costs or liabilities resulting omission, condition, or other matter related to or o from any act, provision of this Easement is to be construed occurring on or about the Property. No as impairing the ability of Grantor to use the Property as collateral for any loan, provided that any lien created thereby this Easement. y s hall be subordinate to 4. Rights Reserved to Grantor. Grantor reserves to itself, and its successors an all rights accruing from its ownershipof the Property, i d assigns, including the right to engage in or to permit or invite others to engage in all uses of the Property that are not expressly prohibited limited by, and are consistent with the purposes of this Ease p Y p d or rP � merit. These ownership rights include, but are not limited to, the right to sell, lease, grant additional easements or o transfer the Property, as well as the right to privacy, the right otherwise P y, ght to exclude any member of the public from trespassing on the Property, and any other rights consistent with the Purpose Easement. Provided the Features are not substantial) disturb rP a of this Property is not significantly impaired, y ed and the forested nature of the g y and subject to the terms of this Easement, Grantor may undertake construction, erection, installation, or placement of trails, sports fields structures, or other non-residential improvements for Tahoe p � buildings, Donner Association's purposes on the Property, in compliance with the then-applicable Town of Truckee General Development Code standards. Nothing contained herein shall be construed as a Plan and grant to the general public of any right to enter upon any part of the Property. Nothingi this Ea relieves the Landowner of any obligation or restriction on the use oft n Easement law. Nothing in this Easement shall constitutehe Property Imposed by governmental approval of any improvements, construction or other activities that may be permitted under this Easement. 5. Enforcement. Grantee may take all actions that it deems necessaryto ensure with the development restrictions set forth in this Easement. If Granteenre compliance violation or potential violation, it may at its rinds what it believes is a y discretion take appropriate legal action to ensure compliance with the terms, conditions, covenants, and purposes of this Easement an the right to correct violations and prevent the threat of viol d shall have Imminent violation could irreversiblydiminish violations Except when an ongoing or h or impair the purposes of this Easement, Grantee shall give Grantor written notice of the violation or potential violation and thirty correct it, before filing any legal action. Grantee shall have an (30) days to or equity. Such remedies shall be cumulativeY and all remedies available at law and shall include temporary and/or permanent injunctive relief and monetary damages. If the violation will, in a art 's reasonable cause irreparable harm to the Property within such thirtysonable opinion, may demand that the breaching party take immediate (30 P Y) day period, the complaining party action. If the breaching party fails to take immediate action in such a situation, the complaining party may remedy the breaching party shall be responsible for reasonable costs oft he reY y violation and the mediation. .Failure or refusal to exercise any rights under the terms of this Easement by Grantee in the event of a violation term herein shall not constitute a waiver or forfeiture of Grantee' of any condition, covenant, or purpose of this Easement. s right to enforce any term, 6. Subsequent Transfers of Property. The terms, conditions restrictions, this Easement, or a clearly incorporated reference thereto and purposes of deed, lease, or other instrument b which � will be inserted in any subsequent y Grantor conveys or transfers title to, or any leasehold, possessory, or other interest in the Property. Grantor shall (i) notify Grantee of an transfer least thirty (30) days in advance of its occurrence; and (ii provide a Y anspy at p true and complete copy of this Easement, as recorded, to each transferee. No failure b a Grantor shall') validity or enforceability of the Easement. Pursuant to y however, affect the California Civil Code section 815.1, this Easement shall run with the land in perpetuity. Every provision of this Eas ement that applies to Grantor or Grantee shall also apply to their respective agents, heirs exec assigns, and all other successors as their interests may appear. executors, administrators, 7. Miscellaneous Provisions. If any provision of this Easement to any person(s) or circumstance(s), shall to an , or t he application thereof y ex tent be held invalid, illegal, or unenforceable (1)neither the remainder of this Easement, nor the application of such vi r persons) or circumstances) shall be affected thereb ts Eas P °provision to any other aI or unenforceable Y (ii) hi Easement shall be construed as though such invalid, illegal nforceable provision had never existed; and (iii)this Easement shall be valid and enforceable to the fullest extent permitted b applicable acknowledge that each party and its counsel have Y PP able laws. The parties reviewed and approved this Easement. The agreement terms of this Easement are intended as a final expression of their a matter hereof, and may not be contradicted by an prior or con g as to the subject Y P contemporaneous agreement or any extrinsic evidence. All exhibits attached and referred to in this Easement fully set out herein. No remedy or election given b this Easement are incorporated as if unless so indicated, and each remedyor election Y shall be deemed exclusive n shall, when possible, be cumulative with all other remedies at law or in equity. The parties shall execute such additional be reasonable and necessary to carry out this Easement. This Easement shall be construed in accordance with the laws of the State of California. Time is of the essence in obligations of the parties, but no failure of a art this Performance of the party to s Easement to insist upon the timely performance of any obligation by another party shall constitute a waive timely performance, or act as a waiver of the rightr of the right to require to require performance of any other obligation. Grantee is authorized to record or file an notices or appropriate to ensure the perpetual enforceabilityof 'Y instruments that may be document, and Grantor shall execute, this Easement, including re-recording this acknowledge, and/or deliver notices or instruments u on reasonable request from Grantee. P 8. Assignment. During TDA's ownership of the Property, TDP transfer this Easement without TDA's prior writ UD agrees not to assign or p ten consent. Notwithstanding the foregoing, in the event of TDPUD's dissolution, TDPUD's successor in interest will automatically become the Grantee hereunder. Should TDA transfer the Property, this Easement may be assigned or transferred by Grantee to any public agency or other organization entitled under Section 815.3 of the California Civil Code. Al to hold the easement duly recorded. 1 transfers shall be in writing and shall be 9. Amendment. This Easement may be amended b the writ Any such amendment shall be consistent with the u Y ten agreement of the parties. and shall not affect its perpetual duration. purposes of this Easement and California law rP Further, any amendment shall be in writing, shall refer to this Easement by reference to its recordation date, and shall be re records of the jurisdiction where the Property ed is located. corded in the official public . 10. No Third Party Benericiaries. This Easement is solely for the benefit of the Grantor and Grantee and shall create no rights y nature in any person or entity not a party hereto. 11. Termination of Rights and Obligations. A part 's personal rights this Easement terminate upon transfer of the art � Y P ghts and obligations under p y s interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 12. Acts Bevond Grantor's Control. Nothing contained in this E to entitle Grantee to bring any action against Grantor for Easement shall be construed resulting from (i) any natural cause beyond Grantor' any injury to or change in the Property Y s control, Including, without limitation, fire not caused by Grantor, flood, storm, terrorist acts, criminal acts and earth prudent action taken by Grantor under emergency conditions to r movement, or any significant injury to the Property or surr'oundin ro ertie P event, abate, or mitigate g p p s resulting from such causes, or(ii)acts by Grantee or its employees. In witness whereof, the parties execute this Easement Deed effective written. as of the date first above Grantor: Tahoe Donner Association Gr-• The Truckee Donner Public Utility District, a California mutual benefit corporation a California public utility y distract By: By: (signature) (signature) Print Name: Print Name: Title: Title: WIT MR ......... Scale I,*-mv IN y4 W., .—AN �Xfvw -Q At At 41M TV� '2v UZ I g WB.A N, M PQ LL. COO CL gg SIX!I or m a= ANECWJM x AM State of California ) County of On before me, title of the officer}, personally appeared (here insert name and who proved to me on the basis of satisfactory evidence to be the person(s) whose names is/ acknowledged to me that he/she/the executed ( } are subscribed to the within instrument and y the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the persons Person(s)acted,executed the instrument. ( )� or t he entity upon behalf of which the I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California } County of On before me, title of the officer}, personally appeared (here insert name and who proved to me on the basis of satisfactory evidence to be the person(s) whose names is/ acknowledged to me that he/she/the executed ( ) are subscribed to the within instrument and y the same 2n his/her/their authorized capacity(ies), and that by his/her/their signature ersons} on the instrument the s person(s) acted, executed the instrument. p ( ), or the entity upon behalf of which the I certify under PENALTY OF PERJURY under the laws of th e State of California that the foregoing Paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) w State of California ) County of ) On before me title of the officer (here insert name and ), personally appeared who roved t satisfactory evidence to be the person(s) whose names is/are s p o me on the basis of acknowledged to me that he/she/the executed the ) subscribed to the within instrument and Y e same In his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the erson s person(s)acted,executed the instrument. p ( )� or the entity upon behalf of which the I certify under PENALTY OF PERJURY under the laws of paragraph is true and correct. the State of California that the foregoing WITNESS my hand and official seal. Signature McGlashan Springs { 5/4/11 To:Michael Holley, General Manager Truckee Donner PUD From: Kaitlin Backlund, Executive Director Mountain Area Preservation Foundation RE: Easement Deed,APN 18-010-10, and Recommended Amendments General Manager Holley and Truckee Donner PUD Board Members: Thank you for the opportunity to offer amendments to the APN 18-010-10. We offer the followingamend proposed Easement Deed for meats and also recommend that annual monitoring of the"Special Features"be conducted by the Truckee Do reported back. Donner PUD and Purpose of proposed amendments: (1) "provide for a future trail easement for the Donner Rim Trail" f assuring one of the final links to the Donner Rimor the purpose of and Trail will be able to cross the Property (2)"residential uses including, but not limited to"for thepurpose supporting the Recitals B. "...Grantor agreed of clarifying and g to refrain from developing the Property for residential purposes... As currently written Grant of Easement 1.(a) offers qualifiers to ' supporting the Recital. q Recital B rather than Blue text is newly proposed language. Black text references the o An than es original document. Y g from the original document in black text are uninte nded errors) Recitals Grant of Easement 1.Purposes and Limitations. The purposes of this Easement ar from developing the Property for residential uses li a to refrain the Grantee Property, to peek allow active mana � mit the potential development of the management and development of the Property consistent with Paragraph four below,and maintain the current access to specified features in a fashion similar to their existing use and and the preservation of the condition,provide for a future trail easement for the Donner Rim Trail and to predominantly remain in its natural, forested condition. P nantly allow the Property to (a)No residential uses including, but not limited to or single mobile homes, or transient rental units will be constructed on the Property. N., May 4, 2011 Board Of Directors Aguera, Bender, Hemig, Hillstrom and L aliotis Truckee Donner Public Utility District , PO Box 309 Truckee, CA 96160 Dear Directors Aguera, Bender, -n4gi Hilistrom, and Laliotis Het 1 Thank You for the Opportunity to provide comment on the sale of .1-0750 Bermgarten Rd, also known as McGlashan Springs, The Watershed Council supports the sale of the parcel to Tahoe Donner Association, accompanied by an easement deed. We support the easement deed as out-lined in the staff report, that i-13, that the L easement asement will protect the natural and cultural resources, inClUding riparian zones and springs, and the easement _' ill preclude W development of the propert ..y for residential purposes. This parcel contains severall sensitivt--, riparian n areas a and srings p and maY also contain wetland, meadow and fen habitat. Further, this parcel is immediately adjacent to US Forest Service land,, which also contains riparian. wetland,, meadow and fen habitat. The terms. of the easement- protect the features on the McGlashan parcel, and also protec-t poten'tial degradation initiating from this parcel and moving to the adjacent USES parcel. We appreciate that the PUD will monitor the parcelf annually. We recommend that including a botanist in the annual -nonitoring can i ual insure the terms of the easement are being ,net. Thi IS would involve a short field vislit and Short report from a botanist-, The Watershed Council VVill also be willing to work wi'th the P h UD and/or Taoe Donner to include the monitoring as gar.. of Truckee River Day or another community based event. his has the added benefit Of COmmunity education and outreach. We urge YOU to Support the sale of the parcel, 'vvith the easement and associated monitoring program. Thank you for considering our rra -, m comendation- . n ce re I y, Lisa Wallace Execudive Director CC micha'l Hollt-1--y Stephen Poncelet