HomeMy Public PortalAboutResolution - 01-06- 20010314 - Lobner Purchase RESOLUTION NO. 0 1-06
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF THE PURCHASE
AGREEMENT—BARGAIN SALE, AUTHORIZING OFFICER TO
EXECUTE CERTIFICATES OF ACCEPTANCE OF GRANTS TO
DISTRICT AND EXECUTE GRANT OF RIGHT OF FIRST OFFER,
AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY
AND ALL OTHER DOCUMENTS NECESSARY OR
APPROPRIATE TO CLOSING OF THE TRANSACTION (MONTE
BELLO OPEN SPACE PRESERVE - LANDS OF LOBNER)
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 Purchase Agreement—Bargain Sale between Darlene Lobner
Martin, a married woman as her sole and separate property, and the Midpeninsula Regional Open
Space District, a copy of which is attached hereto and by this reference made a part hereof, and
authorizes the President or appropriate officers to execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors, or other appropriate officer, is authorized to
execute a Certificate of Acceptance for the Grant Deed on behalf of the District.
Section Three. The President of the Board of Directors, or other appropriate officer, is authorized to
execute the Grant of Right of First Offer and the attendant Certificate of Acceptance on behalf of the
District.
Section Four. The General Manager of the District shall cause to be given appropriate notice of
acceptance to seller. The General Manager is further authorized to execute any and all other
documents in escrow necessary or appropriate to the closing of the transaction.
Section Five. The General Manager of the District is authorized to expend up to $12,000 to cover the
cost of title insurance, escrow fees, survey costs and other miscellaneous costs related to this
transaction.
Section Six. The General Manager and General Counsel are further authorized to approve any
technical revisions to the attached Agreement and documents which do not involve any material
change to any term of the Agreement or documents, which are necessary or appropriate to the closing
or implementation of this transaction.
Section Seven. It is intended, reasonably expected, and hereby authorized that the District's general
fund will be reimbursed in the amount of$1,200,000 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.
RESOLUTION NO. 01-06
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on March 14, 2001, at a regular meeting thereof, by the following vote:
AYES: P. Siemenz, D. Litte.e, L. Hazzett, J. Cyh, M. Davey, N. Hanko, K. N-ctz
NOES: none
ABSTAIN: none
ABSENT: none
ATTEST: APPROVE .
Secretary President
Board of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
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Acin�, District Cle
PURCHASE AGREEMENT - BARGAIN SALE
This Agreement is made and entered into by and between Darlene Lobner Martin,
a married woman as her sole and separate property who acquired title as Darlene Lobner Stager
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 totaling approximately
50.79 acres which has open space and recreational value, located within an unincorporated area
of the County of Santa Clara, and being more particularly described as Parcel I and Parcel 2 in
the legal description attached to Preliminary Report Number 51170165 attached hereto as
Exhibit"A" 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
I
WHEREAS, District desires to purchase said Parcel I containing approximately
40 acres for open space preservation and as part of the ecological, recreational, and aesthetic
resources of the midpeninsula area; and
WHEREAS, District also desires to acquire and receive a right of first offer to
purchase said Parcel 2 containing approximately 10.79 acres; and
WHEREAS, Seller wishes to sell and convey the entirety of said Parcel I
containing approximately 40 acres to District, and a right of first offer to purchase said Parcel 2
containing approximately 10.79 acres, and District wishes to purchase said property and property
rights upon the terms and conditions set forth herein; and
WHEREAS, Seller wishes to sell and convey said Parcel I to District, at a price
below fair market value, 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 and interest herein, located within an unincorporated area of
the County of Santa Clara, State of California, as follows:
Purchase Agreement Page 2
A. Fee title to all that certain parcel of real property, containing approximately
forty (40) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel
Number 351-13-007 and being further described as Parcel I in the Legal Description attached to
Preliminary Report number 51170165 from North American Title Company. A copy of said
Preliminary Report attached hereto as Exhibit "A", and incorporated herein by this reference.
Said property is to be conveyed together with any easements, rights of way, or rights of use
which may be appurtenant or attributable to the aforesaid lands, and any and all improvements
attached or affixed thereto. All of said real property, appurtenances and other property rights as
described hereunder being acquired by District under this Agreement, shall hereinafter be called
the "Subject Property" or the "Property."
B. Seller shall retain all that certain property containing approximately 10.79
acres, more or less, and commonly referred to Santa Clara County Assessor's Parcel number
351-13-018 being further described as Parcel 2 in said Preliminary Report (Exhibit"A"). Said
retained property shall be subject to a Grant of Right of First Offer in the form of Exhibit"B" as
attached hereto and incorporated herein by this reference.
2. Purchase Price. The total purchase price ("Purchase Price") for the Property and
other property interests being acquired herein by District shall be One Million Two Hundred
Thousand and No/100 Dollars ($1,200,000.00), which shall be paid in cash at the "Closing" as
defined in Section 4 hereof.
3. Survey.
A. Survey as Condition of Closing. Six (6) cabins are located on Parcel I and
Parcel 2 as described herein. Five of said cabins are occupied as rentals and one cabin is vacant
and in poor condition. The vacant cabin appears to be located entirely upon Parcel 1. One or
two of the occupied cabins may be located on or partially located on Parcel 1. Seller desires to
retain the five (5) occupied rental cabins as a part of Seller's Parcel 2. Therefore, Seller and
District understand and agree that one condition of the Closing(as defined in Section 4 herein) is
that the Seller and District shall jointly hire a licensed land surveyor("surveyor") acceptable to
the parties hereto to complete a survey to determine the common east west property boundary
between said Parcel I and Parcel 2. The purpose of the survey is to determine the location of
Seller's existing occupied rental cabins in relation to said east/west property boundary and
domestic water easements if necessary, as shown in Exhibit"C" attached hereto and
incorporated by this reference.
B. Legal Descriptions. If the survey determines that one or more of the five
rental cabins are located on or partially on Parcel 1, District and Seller shall diligently pursue the
preparation of revised legal descriptions to adjust the boundary between Parcel 1 and Parcel 2 to
include the five occupied rental cabins as part of Seller's Parcel 2. The parties intend that the
legal description for Parcel 2 will include the five occupied rental cabins while still containing
Purchase Agreement Page 3
approximately 10.79 acres, and the legal description for Parcel I will contain approximately 40
acres. The survey, and said revised legal descriptions shall be completed as soon as possible
after execution of the Agreement by District as provided in Section 13 hereof, but in no event
later than June 15 , 2001, the final date of Closing as provided in Section 4.A herein.
C. Certificate of Compliance. If revised legal descriptions for Parcel I and
Parcel 2 are required in accordance with Section 3.13 above, Seller and District agree to
diligently pursue the completion of a Certificate of Compliance application through the County
of Santa Clara as evidence that Parcel 2 is a legally subdivided parcel. In accordance with
California Government Code Section 66426.5 and 66428 (the Subdivision Map Act), public
agencies are afforded certain exemptions; however, Seller desires evidence that Seller's retained
Parcel 2 is a legally subdivided parcel; therefore, the parties agree to pursue the completion of a
Certificate of Compliance application through the County of Santa Clara on or before September
15, 2001. Obtaining said Certificate of Compliance is not a condition of Closing.
D. Payment of Surveyor. Seller and District shall share (50150) all costs of
hiring a surveyor("surveyor") acceptable to the parties hereto to perform the survey work
described herein including, if necessary, the preparation of revised legal descriptions, recording
fees, and the Certificate of Compliance application fee. Said survey work shall not exceed a
total combined cost of$15,000, without written consent of the parties. The parties agree to hire
a surveyor and complete the survey, and, if necessary, revised legal descriptions of Parcel I and
Parcel 2 by June 15, 2001, and process the completion of a Certificate of Compliance application
through the County of Santa Clara on or before September 15, 2001.
4. Escrow. Promptly upon execution of this Agreement, in accordance with Section
13 herein, an escrow shall be opened at North American Title Company, 497 N. Santa Cruz
Avenue, Los Gatos, CA (408) 399-4100 (Escrow number 51170165) or other title company
acceptable to District and Seller(hereinafter "Escrow Holder") through which the purchase and
sale of the Property and other property interests acquired herein 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 June 15, 2001; 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
Purchase Agreement Page 4
Escrow Holder causes the Grant Deed (as defined below) to be recorded in the Office of the
County Recorder of Santa Clara County.
B. Seller and District shall, during the escrow period, execute any and all
documents and perform any and all acts reasonably necessary or appropriate to consummate the
purchase and sale pursuant to the terms of this Agreement.
C. Seller shall deposit into the escrow on or before the Closing:
(i) An executed and recordable Grant Deed, covering Parcel I as described
in said Exhibit"A".
(ii) An executed and recordable Grant of Right of First Offer in the form
of said Exhibit"B".
If revised legal descriptions are required in accordance with Section 3
herein, the revised legal description of Parcel I will be inserted into the Grant Deed and the
revised legal description of Parcel 2 will be inserted into the Grant of Right of First Offer prior
to the Closing.
D. District shall deposit into the escrow, on or before the Closing:
(i) The required Certificates of Acceptance for the Grant Deed, and Grant
of Right of First Offer duly executed by District and to be dated as of the Closing.
(ii) District's check payable to Escrow Holder in the amount of One
Million One Hundred and Ninety-Nine Thousand and No/100 Dollars (S 1,199,000.00) which is
the balance of the Purchase Price of One Million Two Hundred Thousand and No/100 Dollars
(S 1,200,000.00) as specified in Section 2. The balance of S 1,000.00 is paid into escrow in
accordance with Section 13 of this Agreement.
E. Seller and District shall share (50150) the escrow fees, the CLTA
Standard Policy of Title Insurance, if required by District, and all recording costs and fees. All
other costs or expenses not otherwise provided for in this Agreement shall be apportioned or
allocated between District and Seller in the manner customary in Santa Clara County. All
current property taxes on the Property shall be pro-rated through escrow between District and
Seller as of the Closing based upon the latest available tax information using the customary
escrow procedures.
F. Seller shall cause North American Title Company, or other title company
acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA
Purchase Agreement Page 5
Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of
51,200,000.00 for the Property showing title to the Property vested in fee simple in District,
subject only to: (i) current real property taxes, (ii) title exceptions 5, 6, 7, 8, 9 and 10 as listed in
the Preliminary Report (Exhibit "A") dated January 23, 2001, and (iii) such additional title
exceptions as may be approved in writing by District prior to the Closing as determined by
District in its sole and absolute discretion.
G. Escrow Holder shall, when all required funds and instruments have been
deposited into the escrow by the appropriate parties and when all other conditions to Closing
have been fulfilled, cause the Grant Deed and Grant of Right of First Offer and corresponding
Certificates of Acceptance to be recorded in the Office of the County Recorder of Santa Clara
County. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of
the policy of 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
4.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.
5. Ri hts and Liabilities of the Parties in the Event of Termination. In the event this
Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from
any further obligations hereunder, except as otherwise provided herein. Upon any such
termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for
payment of its title and escrow cancellation charges (subject to rights of subrogation against any
party whose fault may have caused such termination of escrow), and each party expressly
reserves any other rights and remedies which it may have against any other party by reason of a
wrongful termination or failure to close escrow.
6. Leases or Occupancy of Premises. Seller warrants that there exist no oral or
written leases or rental agreements affecting all or any portion of the Subject Property. Seller
further warrants and agrees to hold District free and harmless and to reimburse District for any
and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by
reason of any such lease or rental agreement of the Property being acquired by District,
including, but not limited to, claims for relocation benefits and/or payments pursuant to
California Government Code Section 7260 et seq. Seller understands and agrees that the
provisions of this paragraph shall survive the close of escrow and recordation of any Grant
Deed(s).
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.
Purchase Agreement Page 6
A. Authority. Seller has the full right, power and authority to enter into this
Agreement and to perform the transactions contemplated hereunder.
B. Valid and Bindinz Agreements. This Agreement and all other documents
delivered by Seller to District now or at the Closing have been or will be duly authorized and
executed and delivered by Seller and are legal, valid and binding obligations of Seller sufficient
to convey to District the Subject Property and the Right of First Offer described therein, and are
enforceable in accordance with their respective terms and do not violate any provisions of any
agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws or
corporate resolutions of Seller.
C. Good Title. Seller has and at the Closing date shall have good, marketable
and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed
to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and
free and clear of any recorded or unrecorded option rights or purchase rights or any other right,
title or interest held by any third party except for the exceptions permitted under the express
terms hereof, and Seller shall forever indemnify and defend District from and against any claims
made by any third party which are based upon any inaccuracy in the foregoing representations.
8. Integrity of Property. Except as otherwise provided herein or by express written
permission granted by District, Seller shall not, between the time of Seller's execution hereof and
the close of escrow, cause or allow any physical changes on the Property. Such changes shall
include but not be limited to grading, excavating or other earthmoving activities, cutting or
removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements
or structures on the Property.
9. Hazardous Waste.
A. Definitions. The term "Hazardous Waste," as used herein, means any
substance, material or other thing regulated by or pursuant to any federal, state or local
environmental law by reason of its potential for harm to human health or the environment
because of its flammability, toxicity, reactivity, corrosiveness or carcinogenicity. The term
"Hazardous Waste" also includes without limitation, polychlorinated biphenyls, benzene,
asbestos, petroleum, petroleum by-products, gas, gas liquids and lead.
The term "Environmental Law" as used herein includes, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.) and the Resource Conservation and Recovery Act(42 U.S.C. Section 6901
et seq.).
Purchase Agreement Page 7
B. Representations and Warranties. For the purpose of consummating the
sale and purchase of the Property, 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:
(i) To Seller's knowledge the Property does not contain and has not
previously contained any Hazardous Waste or underground storage tanks, and no Hazardous
Waste has been or is being used, manufactured, handled, generated, stored, treated, discharged,
present, buried or disposed of on, under or about the Property, or transported to or from the
Property, nor has Seller undertaken, permitted, authorized or suffered any of the foregoing.
(ii) Seller has not received any notice and Seller has no actual knowledge
that any private person or governmental authority or administrative agency or any employee or
agent thereof has determined, alleged or commenced or threatened to commence any litigation,
or other proceedings, to determine that there is a presence, release, threat of release, placement
on, under or about the Property, or the use, manufacture, handling, generation, storage,
treatment, discharge, burial or disposal on, under or about the Property, or the transportation to
or from the Property, of any Hazardous Waste, nor has Seller received any communication from
any such person or governmental agency or authority concerning any such matters.
C. Indemnity. Seller shall indemnify, defend and hold harmless District from
and against and all claims, liabilities, losses, damages, and costs incurred or suffered by District,
including without limitation, attorney, engineering and other professional or expert fees, to the
extent arising from any breach of the warranties or representations contained herein.
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", 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 Seiler 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, appraisals, etc., as provided for by said Federal Law and any corresponding California
Government Code Sections, and District agrees to provide Seller with an executed IRS Form
8283 as evidence of the Bargain Sale price accepted by Seller thereunder.
Purchase Agreement Page 8
11. Charitable Contribution. District and Seller acknowledge and agree that Seller
may seek a tax benefit for the charitable contribution of the difference between the purchase
price being paid by the District and the Property's fair market value being donated to the District
as part of this transaction. District expresses no opinion as to whether Seller will receive any
deduction for federal or state income tax purposes as result of this transaction. Seller
acknowledges and agrees that Seller is relying solely upon the advice of its own attorneys,
accountants and other professional advisors with respect to all such matters, and to the tax
consequences of this Agreement in general. Without limitation of the foregoing, if such
contribution is not deductible for federal and state income tax purposes, in whole or in part, such
non-deductibility or non-treatment will not relieve Seller of any of its obligations under this
Agreement or otherwise affect this Agreement in any way or require the payment of any
additional or substitute consideration by District for the purchase of the Subject Property or
entitle Seller to any remedies against District as a result thereof. District agrees to provide Seller
with an executed IRS Form 8283 as evidence of the Bargain Sale price accepted by Seller
thereunder.
12. Miscellaneous Provisions.
A. Access for Investigations. From the date Seller delivers an executed copy of this
Purchase Agreement to District and until the Closing, District and District's agents, lender,
contractors, engineers, consultants, employees, subcontractors and other representatives (the
"District Parties") may, upon the giving of reasonable advance written notice to Seller, enter
upon the Property for the purpose of inspecting, testing and evaluating the same; provided,
however, that District may not perform any work on the Property without Seller's prior written
consent, which shall not be unreasonably withheld or delayed and further provided that District
shall give Seller at least 24 hours' prior notice of each proposed entry by District. 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 Parties while upon the Property prior to the Closing; provided, however, the
foregoing indemnity shall not cover or include any claims, damages or liens resulting from
District's discovery of any Hazardous Substance or other pre-existing adverse conditions
pursuant to its inspections, testing or evaluation. 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
Parties while on the Property performing its inspections.
B. Choice of Law. The internal laws of the State of California, regardless of
any choice of law principles, shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
C. Attorneys' Fees. 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
Purchase Agreement Page 9
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 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.
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 or
other private messenger, courier or other delivery service or sent by facsimile transmission by
telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as
follows:
Seller: Darlene Lobner
3481 Lakeside Drive, Penthouse TS5
Atlanta, GA 30326
(404) 995-9434
cellular(916) 804-0322
Purchase Agreement Page 10
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
(650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or
cabled notice shall promptly be sent by mail (in the manner provided above) to the addressee.
Service of any such communication made only by mail shall be deemed complete on the date of
actual delivery as indicated by the addressee's registry or certification receipt or at the expiration
of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party
hereto may from time to time, by notice in writing served upon the other as aforesaid, designate
a different mailing address or a different person to which such notices or demands are thereafter
to be addressed or delivered. Nothing contained in this Agreement shall excuse either party
from giving oral notice to the other when prompt notification is appropriate, but any oral notice
given shall not satisfy the requirement of written notice as provided in this Section.
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 nullityor 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. Counte[parts. 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.
Purchase Agreement Page 11
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 repre-
sentations 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), or other County,
State or Federal Park Agency or other non-profit Land Trust organization without further
approval of Seller.
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. District shall not be responsible for any real estate
commission or other related costs or fees in this transaction. Seller agrees to and does hereby
indemnify and hold District harmless from and against any and all costs, liabilities, losses,
damages, claims, causes of action or proceedings which may result from any broker, agent or
finder, licensed or otherwise, claiming through, under or by reason of the conduct of Seller in
connection with this transaction.
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. 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, 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
i
Purchase Agreement Page 12
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. 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
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 DISCOVERY AND 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
13. Acceptance. Provided that this Agreement is executed by Seller and delivered to
District on or before March 6, 2001, District shall have until midnight March 14, 2001
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 and Seller
acknowledges receipt of the sum of One Thousand Dollars and No/100 ($1,000.00), which shall
be applied to the Purchase Price as set forth in Section 2 hereof.
Provided that this Agreement is accepted by District, this transaction shall close as soon
as practicable in accordance with the terms and conditions set forth herein.
ill
Purchase Agreement Page 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers to be effective as of the date of final execution by
District in accordance with the terms hereof.
DISTRICT: SELLER:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT Darlene Lobner Martin, a married
woman as her sole and separate property
ACCEPTED FOR RECOMMENDATION Date: C`
C�
Michael C. Williams, Real Property Consent of Spouse:
Representative
APPROVED AS TO FORM: Andrew Martin
S-Irl
y Date: D 3
Susan M. Schectman, General Counsel
RECO E"'D FOR APPROVAL:
L. Craig Britton, General Manager
APPROV ND ACCEPTED:
President, Board of Directors
ATTEST:
Y
f�Gf7�� District C1
Date:
NORTH
AMERICAN
fiTW DIRECT ALL INQUIRIES TO:
ANY Escrow officer: Susan K.Trovato
Telephone No.: (408)39,9.41()o
Our No.: 56007-51170165-SKT
Mid-Peninsula Regional Open Space_District
Attn: Mike Williams
330 Distel Circle
Los Altos CA 94022
Property Address:
18000 Stevens Canyon Road
Cupertino, California
Preliminary Report
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Company
HEREBY REPORTS THAT IS PREPARED TO ISSUE,OR CAUSE TO BE ISSUED,AS OF THE DATE ,A
POLICY OR POLICIES OF TITLE INSURANCE, DESCRIBING THE LAND AND THE ESTATE ORHEREOF INTEREST
HEREINAFTER SET FORTH, INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY
DEFECT, LIEN, OR ENCUMBRANCE NOT SHOWN OR REFERRED TO AS AN EXCEPTION BELOW OR NOT
EXCLUDED FROM COVERAGE PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AND
STIPULATIONS OF SAID POLICY FORMS.
THE PRINTED EXCEPTIONS AND EXCLUSION FROM THE COVERAGE OF SAID POLICY OR POLICIES ARE
SET FORTH ON THE ATTACHED COVER, 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
T
EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS ARE MEAN
PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED UNDER THE TERMS OF THE TO
INSURANCE POLICY AND SHOULD BE CAREFULLY CONSIDERED. TITLE
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 THERETO) 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 January 23,2001 Pam Thompson/pu
at 07:30 am Title Officer/Examiner
497 N. Santa Cruz Avenue, Los Gatos, CA 95030
Phone No.: (408)399-4100 Fax No.: (408)354-3212
Page J-0t
The form of poilcy
of tale insurance contemplated by this 1fGPCA is:
CLTA Owner's Standard Coverage Policy- 1990
ALTA 1992 Moan Coverage Policy
The estate or interest in the land hereinafter described or referred to covered by this report Ic
A fee
Title to said estate or interest at the date hereof is vested in:
Darlene Lobner Stager, by devise
i
HIM
Page `
Page 2
Ordar Nn, r;AM7_r%1 i 7n1,qr ,Qk-'i
Description:
The land referred to herein Is situated in the State of California, County of Santa Clara, City of
Cupertino, and is described as follows:
PARCEL 1:
THE NORTHEAST 1/4 OF THE NORTHWEST 1f4 OF SECTION 31 TOWNSHIP 7 SOUTH, RANGE 2
WEST.
PARCEL 2:
A PORTION OF THE NORTHWEST ONE-QUARTER OF THE NORTHEAST, ONE-QUARTER OF
SECTION 31, TOWNSHIP 7 SOUTH, RANGE 2 WEST, MOUNT DIABLO BASE AND MERIDIAN,AND
DESCRIBED AS FOLLOWS:
BEGINNING AT THE ONE-QUARTER SECTION CORNER OF THE NORTH LINE OF SAID SECTION
31;THENCE SOUTH ALONG THE ONE-QUARTER SECTION LINE RUNNING NORTHERLY AND
SOUTHERLY THROUGH THE CENTER OF SAID SECTION 31, 1320 FEET, MORE OR LESS,TO THE
SOUTHWEST CORNER OF THE NORTHWEST ONE-QUARTER OF THE NORTHEAST ONE-
QUARTER OF SAID SECTION 31;THENCE SOUTH 8V 17'EAST ALONG THE SOUTH LINE OF THE
NORTHWEST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION 31,TO A
ONE INCH PIPE AT THE SOUTHERLY TERMINUS OF THE LINE DIVIDING LANDS FORMERLY OF
ALVIN B. CARR, ET UX,AND LANDS FORMERLY OF R.F. SCHOMBERG, ET AL, AS SAID DIVIDING
LINE WAS ESTABLISHED BY JUDGMENT MADE IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ON AUGUST 1, 1949 IN ACTION OF
ALVIN B. CARR, ET UX, PLAINTIFFS, VS. R. F. SCHOMBERG, ET AL, CASE NO. 6&1372, A
CERTIFIED COPY OF SAID JUDGMENT WAS RECORDED FEBRUARY 16, 1953, BOOK 2581,
OFFICIAL RECORDS, PAGE 504, SAID DIVIDING LINE BEING SHOWN ON MAP OF RECORD OF
SURVEY FILED DECEMBER 12, 1961, BOOK 141 OF MAPS, PAGE 13;THENCE NORTH ALONG
SAID DIVIDING LINE BEING SHOWN ON MAP OF RECORD OF SURVEY FILED DECEMBER 12,
1961, BOOK 141 OF MAPS, PAGE 13;THENCE NORTH ALONG SAID DIVIDING LINE AS
ESTABLISHED BY SAID JUDGMENT 1317.83 FEET TO AN IRON PIPE AT THE NORTHERLY
TERMINUS OF SAID DIVIDING LINE IN THE NORTH LINE OF SAID SECTION 31;THENCE NORTH
899 25'WEST ALONG THE NORTH LINE OF SAID SECTION 31,TO THE POINT OF BEGINNING.
ASSESSOR'S PARCEL NUMBER: 351-13-007&351-13-018
EXHIBIT
Page
Page 3
Order No.: 56007-51170165-SKT
At the date hereof exceptions to coveraSis In addition to the printed exceptions and exclusions
contained In said policy fonn would be as follows:
1 General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments, are a lien not yet payable to be levied for the fiscal year 2001 -2002.
2. General and Special Property Taxes,and any assessments collected with taxes, including utility
assessments, for the fiscal year 2000-2001.
Total Amount: $790.46
First Installment: $395.23 Paid
Second Installment: $395.23 Open
Cost: $36,815.00
Land: $28,400.00
Code Area: 85-002
Parcel Number: 351-13-007
3. General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments,for the fiscal year 2000-2001.
Total Amount: $245.70
First Installment: $122.85 Paid
Second Installment: $122.85 Open
Land: $11,863-00
Improvements: $2,996.00
Code Area: 85-002
Parcel Number: 351-13-018
4. The Lien of Supplemental Taxes, if any,assessed pursuant to the provisions of Chapter 3.5
(commencing with Section 75)of the Revenue and Taxation Code of the State of California.
5. Rights of the public,county and/or city in that portion lying within the street as it now exists:
Stevens Canyon Road.
6. Rights and Easements for Navigation and Fishery which may exist over that portion of said land
lying beneath the waters of Stevens Creek.
7. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
In Favor of: Pacific Gas and Electric Company, a California
corporation
No representation is made as to the present ownership of said easement.
Purpose: Poles and wires
Recorded: December 30, 1946
Book: 1435
Page: 18
Affects: As therein described
EXHISM
Page 4
Order No.: 56007-51170165-SKT
8. An easement affecting the portion of said land and for the purpose stated herein,and incidental
purposes.
In Favor of: Pacific Gas and Electric Company
No representation is made as to the present ownership of said easement.
Purpose: Poles, together with all necessary appurtenances
Recorded: December 30, 1946
Book: 1435
Page: 20
Affects: As therein described
9. An easement affecting the portion of said land and for the purpose stated herein,and incidental
purposes.
In Favor of: The Pacific Telephone and Telegraph Company
No representation is made as to the present ownership of said easement.
Purpose: Wires and cables
Recorded: March 9, 1949
Book: 1755
Page: 491
Affects: As therein described
10. An easement affecting the portion of said land and for the purpose stated herein,and Incidental
purposes.
In Favor of: The Pacific Telephone and Telegraph Company
No representation is made as to the present ownership of said easement.
Purpose: Wires and cables
Recorded: March 9, 1949
Book, 1755
Page: 493
Affects: As therein described
EXHIBrr A
Page,
Page 5
Order No.: 56007-51170165-SKT
F=351
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THE INFOHMiAI ION ON I HIS PLAT IS PRBV*tts FEtII
EQ -T- YOUR CONVENIENCE AS A GUIDE TO THE GENERAL
m LOCATION Of THE SUBJECT PROPERTY.THE ACCURACY
OF THIS PLAT IS NOT GUARANTEED,NOR IS IT A PART
OF ANY POLICY,REPORT OR GUARANTEE TO WHICH IT
1 MAY BE ATTACHED"
c� —
EXHIBIT B
WHEN RECORDED MAIL TO:
Midpeninsula Regional Open
Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Michael C. Williams
GRANT OF RIGHT OF FIRST OFFER
This Right of First Offer Agreement (hereafter "Agreement") is entered into this date of
between DARLENE LOBNER MARTIN, a married woman as her sole and
separate property who acquired title as Darlene Lobner Stager(hereinafter"Grantor") and Midpeninsula
Regional Open Space District, a California Special District (hereinafter"District").
RECITALS
A. Grantor is the fee owner of certain real property (hereinafter called "Parcel A") and commonly
referred to as Santa Clara County Assessor's Parcel Number 351-13-018, situated in an
unincorporated area of the County of Santa Clara, State of California, and more particularly
described in Exhibit "I", as attached hereto and incorporated herein by this reference.
B. District is the fee owner of certain real property (hereinafter called"Parcel B" and"Parcel C"), and
commonly referred to as, respectively, Santa Clara County Assessor's Parcel Numbers 351-13-007
and 351-13-004, located adjacent to Parcel A, and more particularly described in Exhibit"Il"
attached hereto and incorporated herein by this reference.
C. It is the desire of Grantor to grant District and the right of the District to receive a right of first offer
as more particularly described herein.
NOW, THEREFORE, for valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, Grantor hereby agrees as follows:
I. GRANT OF RIGHT OF FIRST OFFER
A. Grantor shall not sell or agree to sell all or any portion of Parcel A without first offering
Parcel A or the portion of Parcel A for sale to District. The word "sell" shall include any transfer,
conveyance, or assignment, of all or any portion of Parcel A, except for a transfer by bequest, gift, trust
or inheritance. In the event of a transfer of all or a portion of Parcel A by gift, bequest, family trust, or
inheritance, this right of first offer shall remain in effect against the person or entity holding title or other
interest in Parcel A as a result of said transfer.
B. Grantor hereby grants to District a right of first offer to purchase Parcel A. Prior to
placing any or all of Parcel A on the Market for sale or prior to agreeing to sell any or all of Parcel A to
a third party upon receipt of an unsolicited offer to purchase all or a portion of Parcel A, and before
there can be consummation of any sale or transfer of all or any portion of Parcel A, except as provided
hereinabove, Grantor shall first offer said Parcel A or part thereof to District in the following manner:
Grant of Right of First Offer—Exhibit B Page 2
1. Notice. Grantor shall give District written notice (hereinafter"Notice") of his or
her desire to sell Parcel A, or notice of his or her desire to accept an unsolicited third party purchase
offer for Parcel A. Such Notice shall state the price and terms and conditions under which Grantor is
willing to sell as follows:
a. If Grantor desires to sell Parcel A, Grantor and District shall thereafter, in
a good faith effort, attempt to agree upon a mutually acceptable price for Parcel A(the "Agreed Upon
Price"). If, within 10 days of District's receipt of the Notice, Grantor and District cannot agree upon a
purchase price for Parcel A or the portion of Parcel A, the parties agree to implement the Appraisal
Process under the procedures set forth in Subsection 1.132, hereinbelow as the method to establish the
fair market value of Parcel A or any portion of Parcel A. If District notifies Grantor that it does not wish
to exercise its right of first offer as provided in Subsection 1.134, the parties agree that Grantor shall be
free to offer Parcel A or portion thereof for sale to other parties. If the Parties consent to an Agreed
Upon Price (either by agreement or by the Appraisal Process), District shall make its election to
purchase Parcel A or the portion of Parcel A as provided for in Subsection 1.133 to allow Grantor to sell
to District and District to exercise its Right of First Offer without Grantor listing the property on the
open Market, Grantor understands and agrees that once Grantor gives District Notice of its desire to sell,
Grantor must sell to District, at District's election as provided in Subsection 1.133.
b. In the event Grantor receives an unsolicited bona fide offer to purchase all
or a portion of Parcel A from a third party(which bona fides shall be subject to verification by District),
Grantor shall give Notice to District including a copy of such offer,which shall set forth the price,terms
and conditions of such offer, and a statement of Grantor's intention to accept such offer. The Appraisal
Process shall not be used if Grantor receives an unsolicited third party offer, and District shall have the
right to either make its election to match said purchase offer or to decline to match said purchase offer
for Parcel A or the portion thereof as provided for in the corresponding Subsections 1.133 or 1.134.
2. Appraisal Process. If no agreement upon a purchase price is reached within ten
(10) days of the date of District's receipt of the Notice (except for an unsolicited bona fide offer from a
third party), the parties shall attempt to agree upon the appointment of an independent appraiser or,
failing that, within an additional 10 day period, they shall each appoint an appraiser and the two
appraisers shall, within an additional 10 days, select a third independent appraiser to determine such fair
market value. As soon as possible, but no later than forty-five (45) days after District receives the
Notice, said independent appraiser will determine the fair market value of Parcel A, or such portion of
Parcel A as Grantor has offered for sale.
3. District's Election to Purchase. Within twenty-one (2 1) days after District
receives the Notice, or the independent appraiser's determination of the fair market value if the
Appraisal Process is used, whichever is later, District shall have the prior right to elect to purchase said
property at the Agreed Upon Price; provided, however, that the purchase must be consummated by
District with the close of escrow as soon as possible,but in no event later than sixty (60) days after its
election to exercise its Right of First Offer(unless any further delays are caused by default or breach on
the part of Grantor). Such right may be exercised in writing by personal delivery to Grantor of a notice,
as provided in Section HIT herein, of District's exercise of its right to purchase. In the event that
District so elects to purchase the property,the District shall be required to pay cash at the closing
thereof, unless Grantor and District have agreed upon other terms of financing the purchase.
i
Grant of Right of First Offer—Exhibit B Page 3
4. District's Election Not to Purchase. If District notifies Grantor that it does not
i wish to exercise its right of first offer or if the right is not exercised within the twenty-one (2 1) day
period, Grantor shall be free to offer Parcel A for sale to other parties.
II. MISCELLANEOUS.
A. All of the grants, covenants, conditions and restrictions contained above shall be binding
upon Grantor, his successors and assigns, lessees and any and all other persons acquiring all or any
portion of or interest in as Santa Clara County Assessor's Parcel Number 351-13-018 that is subject to
the provisions of this Grant of Right of First Offer, whether by operation of law or in any other manner
whatsoever. All of the grants, covenants, conditions and restrictions contained in this instrument are for
the benefit of: (i) District, its successors and assigns; and (ii) Parcel B and Parcel C, as described herein.
B. All of the provisions hereof shall be covenants running with the land pursuant to
applicable law, including, but not limited to, Section 1468 of the Civil Code of the State of California. It
is expressly agreed that each grant, covenant, condition or restriction contained herein to do or to refrain
from doing any act:
I. Is a burden upon Parcel A and each portion thereof and interest therein that is
subject to the provisions of this instrument, and
2. Shall be binding upon each successive owner during its ownership of Parcel A or
portion thereof or interest therein, derived in any manner.
C. Consideration. The consideration for this Right of First Offer is the purchase price paid
by District to Grantor for purchase of Grantor's Parcel B(Santa Clara County Assessor's Parcel No. 351-
13-007) pursuant to the Purchase Agreement entered into between District and Grantor current with the
execution of this agreement.
D. Term. District's Right of First Offer shall begin upon the date of execution of this
document by District and shall continue for a term of thirty years.
E. Assignment; Successors. District's rights and obligations under this Agreement shall not
be assigned without Grantor's prior written consent, and any assignment without that consent shall be
void, except transfer by District to another public agency or non profit organization having a similar
purpose. Subject to this restriction, this Agreement shall inure to the benefit of and be binding on the
parties and their respective successors, heirs, personal representatives, and assigns.
F. Notices. All notices, demands, requests, and exercises under this Agreement by either
party shall be delivered by had, sent by United States Mail, Registered or Certified, postage prepaid,
addressed to the other party, or sent by telecopy or similar means, if a copy of the notice is also sent by
United States Certified Mail as follows:
Grant of Right of First Offer— Exhibit B Page 4
District: Attn: General Manager
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Tel: 650-691-1200
Fax: 650-691-0485
Grantor: Darlene Lobner Martin
3841 Lakeside Drive, Penthouse TS5
Atlanta, GA 30326
(404) 995-94-14
Notices, demands, requests, and exercises served in this manner shall be considered sufficiently given or
served for all purposes under this Agreement at the time the notice, demand, request, or exercise is
delivered by hand, when postmarked to the addresses shown above, or on transmittal by telecopier or
other similar means, provided that a transmission report is generated that reflects the accurate
transmission of the notices.
The addresses above may be changed by written notice to the other party; provide, however, that no
notice of a change of address shall be effective until actual receipt of the notice. Copies of notices are
for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed
a failure to give notice.
G. Construction. In construing this Agreement, the singular form shall include plural and
vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but
rather as if both parties have prepared it. Unless otherwise indicated, all referenced to sections are to
this Agreement.
H. This Agreement shall be interpreted and construed in accordance with California law.
GRANTOR: DISTRICT:
Midpeninsula Regional Open Space District
By:
Darlene Lobner Martin, a married woman By:
as her sole and separate property President, Board of Directors
Date: Date:
Attest:
District Clerk
Date:
Grant of Right of First Offer— Exhibit B Page 5
EXHIBIT I
PARCEL A:
The land referred to herein is situated in the State of California, County of Santa Clara, City of
Cupertino, and is described as follows:
A PORTION OF THE NORTHWEST ONE-QUARTER OF THE NORTHEAST
ONE-QUARTER OF SECTION 31, TOWNSHIP 7 SOUTH, RANGE 2 WEST, MOUNT DIABLO
BASE AND MERIDIAN, AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE ONE-QUARTER SECTION CORNER OF THE NORTH LINE SAID
SECTION ')1; THENCE SOUTH ALONG THE ONE-QUARTER SECTION LINE RUNNING
NORTHERLY AND SOUTHERLY THROUGH THE CENTER OF SAID SECTION 3 1; 1320 FEET,
MORE OR LESS, TO THE SOUTHWEST CORNER OF THE NORTHWEST ONE-QUARTER OF
THE NORTHEAST ONE-QUARTER OF THE SAID SECTION 3 1: THENCE SOUTH 89*17' EAST
ALONG THE SOUTH LINE OF THE NORTHWEST ONE-QUARTER OF THE NORTHEAST ONE-
QUARTER OF DAID SECTION 31, TO A INE INCH PIPE AT THE SOUTHERLY TERMINUS OF
THE LINE DIVIDING LANDS FORMERLY OF ALVIN B. CARR, ET UX, AND LANDS
FORMERLY OF R.F. SCHOMBERG, ET AL, AS SAID DIVIDING LINE WAS ESTABLISHED BY
JUDGEMENT MADE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND
FOR THE COUNTY OF SANTA CLARA ON AUGUST 1, 1949 IN ACTION OF ALVIN B. CARR,
ET UX, PLAINTIFFS, VS. R. F. SCHOMBERG, ET SL, CASE NO. 68372, A CERTIFIED COPY OF
SAID JUDGEMENT WAS RECORDED FEBRUARY 16, 1953, BOOK 2581, OFFICIAL RECORDS,
PAGE 504, SAID DIVIDING LINE BEING SHOWN ON MAP OF RECORD OF SURVEY FILED
DECEMBER 12, 196 BOOK 141 OF MAPS, PAGE 13: THENCE NORTH ALONG SAID
DIVIDING LINE BEING SHOWN ON MAP OF RECORD OF SURVEY FILED DECEMBER 12,
1961 BOOK 141 OF MAPS, PAGE 13; THENCE NORTH ALONG SAID DIVIDING LINE AS
ESTABLISHED BY SAID JUDGEMENT 1317.83 FEET TO AN IRON PIP AT THE NORTHERLY
TERMINUS OF SAID DIVIDING LINE IN THE NORTH LINE OF SAID SECTION3 1; THENCE
NORTH 89* 25' WEST ALONG THE NORTH LINE OF SAID SECTION 31, TO THE POINT OF
BEGINNING.
ASSESSOR'S PARCEL NUMBER: 351-13-018
Grant of Right of First Offer— Exhibit B Page 6
EXHIBIT II
PARCEL B:
The land referred to herein is situated in the State of California, County of Santa Clara, City of
Cupertino, and is described as follows:
THE NORTHEAST 1/40F THE NORTHWEST 1/40F SECTION 31 TOWNSHIP 7 SOUTH, RANGE 2
WEST.
ASSESSOR'S PARCEL NUMBER: 351-13-007
PARCEL C:
The land referred to herein is situated in the State of California, County of Santa Clara, City of
Cupertino, and is described as follows:
LOT'S 8 AND 13 AND THE EAST V20F THE SOUTHWEST '/4 0F SECTION 30, TOWNSHIP 7
SOUTH OF RANGE 2 WEST OF M.D.M.
ASSESSOR'S PARCEL NUMBER: 351-13-004
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