HomeMy Public PortalAboutResolution - 02-27- 20020814 - Daloia Purchase RESOLUTION NO. 02-27
RESOLUTION OF TBE BOARD OF DIRECTORS OF
I�PENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF PURCHASE
AGREEMENT, AUTHORIZING OFFICER TO EXECUTE
THE ACQUISITION FUNDING AGREEMENT AND TEE
MEMORANDUM OF AGREEMENT AND THE
CERTIFICATE OF ACCEPTANCE OF GRANT TO
DISTRICT, AND AUTHORIZING GENERAL MANAGER
TO EXECUTE ANY AND ALL OTHER DOCUMENTS
NECESSARY OR APPROPRIATE TO CLOSING OF TEE
TRANSACTION(SIERRA AZUL OPEN SPACE
PRESERVE—LANDS OF DALOIA)
The Board of Directors of Nfidpeninsula 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 between the Robert J. Daloia and
Nfidpeninsula Regional Open Space District, a copy of which is attached hereto and by reference made a
part hereot and authorizes the President or appropriate officers to execute the Purchase Agreement,
Promissory Note and Deed of Trust on behalf of the District.
Section Two. The President of the Board of Directors or other appropriate officer is authorized
to execute the Acquisition Funding between the Bay Area Ridge Trail Council (and the State of
California Coastal Conservancy) and the Nfidpeninsula Regional Open Space District and the
Memorandum of Agreement memorializing said Acquisition Funding Agreement.
Section Three. 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 Four. The General Manager of the District shall cause to be given appropriate notice of
acceptance to the seller. The General Manager and General Counsel are fiuther authorized to approve
any technical revisions to the attached Purchase Agreement, Acquisition Funding Agreement,
Memorandum of Agreement and other transactional documents which do not involve any material
change to any term of said agreements or other transactional documents, which are necessary or
appropriate to the closing or implementation of this transaction.
Section Five. The General Manager of the District is authorized to expend up to $5,000 to cover
the cost of title insurance, escrow fees, and other miscellaneous costs related to this transaction.
Section Six. It is intended, reasonably expected, and hereby authorized that the District's general
fund will be reimbursed in the amount of$300,000 from the proceeds of the next long-term District note
issue. This section of this Resolution is adopted by the Board of Directors of Nfidpeninsula 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 Districts official intent to use proceeds of indebtedness to reimburse itself for this open
space land acquisition project expenditure.
RESOLUTION No. 02-27
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on August 14, 2002, at a Regular Meeting thereof, by the following vote:
AYES: D. L%ttte, N. Hanko, L. H"sett, J. Cy,%, K. N-ctz, M. Vavey, P. Siemenz
NOES: none
ABSTAIN: none
E
ABSENT: none
ATTEST: APPROVED:
e
$ecx President
Boar ofDirectors 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.
Dist
pi erk
PURCHASE AGREEMENT
This Agreement is made and entered into by and between ROBERT J. DALOIA
hereinafter called "Seller" and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California
Public Resources Code, hereinafter called "District."
RECITALS
WHEREAS, Seller is the owner of certain real property which has open space
and recreational value, located within an unincorporated area of the County Santa Clara, and
being more particularly described within the body of this Agreement; and
WHEREAS, District was formed by voter initiative to solicit and receive
conveyances of real property by purchase, exchange, gift, or bargain purchase for public park,
recreation, scenic and open space purposes; and
WHEREAS, District desires to purchase said property for open space
preservation and as part of the ecological, recreational, and aesthetic resources of the
midpeninsula area; and
WHEREAS, Seller wishes to sell and convey the entirety of said property to
District, and District wishes to purchase said property upon the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants herein contained, the parties hereto agree as follows:
1. Purchase and Sale. Seller agrees to sell to District and District agrees to
purchase from Seller, Seller's real property located within an unincorporated area of the
County of Santa Clara, State of California, containing Forty (40) acres, more or less, and
commonly referred to as Santa Clara County Assessor's Parcel 562-07-011. Said property is
further described in the Legal Description attached to Preliminary Report 51172174 from
North American Title Company. A copy of said Preliminary Report is 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 and appurtenances shall hereinafter be called the "Subject Property"
or the "Property".
2. Purchase Price. The total purchase price ("Purchase Price") for the Property
shall be Three Hundred Thousand and No/100 Dollars ($300,000.00) which shall be paid in
the following manner:
Purchase Agreement
A. An initial payment of One Thousand and No/100 Dollars ($1,000.00)
towards the Purchase Price has been paid into escrow in accordance with Section 11 of this
Agreement; and
B. District shall deposit into escrow with the Escrow Holder the sum of
Fifty nine Thousand and No/100 Dollars ($59,000.00) in cash; and
C. District shall deposit into escrow, a Secured Promissory Note (the
"Note") in the principal amount of Two Hundred and Forty Thousand and No/100 Dollars
($240,000.00) payable to Seller in the form attached hereto as Exhibit "B" and incorporated
by this reference. Said Note shall bear tax-free interest at the rate of six and twenty five
hundredths percent (6.25%). The Note shall provide for quarterly installment payments of
accrued interest and principal, and a final payment of remaining principal amount and any and
all remaining accrued interest shall be due and payable on or about October 10, 2017. Said
Note shall be secured by a First Deed of Trust ("Deed of Trust") encumbering the District-
owned real property as described in the Deed of Trust, in the form attached hereto as Exhibit
"C" and incorporated by this reference. The Note, but not the Deed of Trust securing the
Note, is and shall be junior and subordinate to all outstanding public notes, notes secured by a
Deed of Trust, bonds, leases or other obligations secured by revenues of the District, and any
and all subsequent public note issues of District.
3. Escrow. Promptly upon execution of this Agreement, in accordance with
Section 11 herein, an escrow shall be opened at North American Title Company, 497 N. Santa
Cruz Avenue, Los Gatos, CA 95030, (408) 399-4100 (Escrow number 51172174) or other
title company acceptable to District and Seller (hereinafter "Escrow Holder") through which
the purchase and sale of the Property shall be consummated. A fully executed copy of this
Agreement shall be deposited with Escrow Holder to serve as escrow instructions to Escrow
Holder; provided that the parties shall execute such additional supplementary or customary
escrow instructions as Escrow Holder may reasonably require. This Agreement may be
amended or supplemented by explicit additional escrow instructions signed by the parties, but
the printed portion of such escrow instructions shall not supersede any inconsistent provisions
contained herein. Escrow Holder is hereby appointed and instructed to deliver, pursuant to the
terms of this Agreement, the documents and monies to be deposited into the escrow as herein
provided, with the following terms and conditions to apply to said escrow:
A. The time provided for in the escrow for the close thereof shall be on or
before October 11, 2002, provided however, that the parties may, by written agreement,
extend the time for Closing. The term "Closing" as used herein shall be deemed to be the date
when Escrow Holder causes the Grant Deed (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.
2
Purchase Agreement
C. Seller shall deposit into the escrow on or before the Closing an executed
and recordable Grant Deed, covering the Property as described in said Exhibit "A".
D. District shall deposit into the escrow, on or before the Closing:
(i) The required Certificate of Acceptance for the Grant Deed, duly
executed by District and to be dated as of the Closing;
(ii) The Note, duly executed by District, together with an executed
and acknowledged Deed of Trust encumbering the District owned real property securing the
Note as provided in Section 2.0 hereof and to be dated as of the Closing.
(iii) District's check payable to Escrow Holder in the amount of
Fifty-nine Thousand and No/100s ($59,000.00) which is the balance due from District for the
cash down payment as specified in Section 2. The balance of$1,000.00 is paid into escrow in
accordance with Section 11 of this Agreement.
E. District shall pay the escrow fees, the CLTA Standard Policy of Title
Insurance, if required by District, and all recording costs and fees. 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 Standard Policy of Title Insurance, dated as of the Closing, insuring District in the
amount of$300,000 for the Property showing title to the Property vested in fee simple in
District, subject only to: (i) current real property taxes, (ii) exceptions 3 and 4 as shown in the
Preliminary Report dated May 1, 2002 attached as Exhibit "A", 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 attendant Certificate of Acceptance to be
recorded in the Office of the County Recorder of Santa Clara County. Upon the Closing,
Escrow Holder shall cause to be delivered to District the original of the policy of title
insurance required herein, and to Seller Escrow Holder's check and Note for the full purchase
price of the Subject Property (less Seller's portion of the expenses described in Section 3.E),
and to District or Seller, as the case may be, all other documents or instruments which are to
be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder
shall return all monies, documents or other things of value deposited in the escrow to the party
depositing the same.
4. Rights and Liabilities of the Parties in the Event of Termination. In the event
this Agreement is terminated and escrow is canceled for any reason, all parties shall be
excused from any further obligations hereunder, except as otherwise provided herein. Upon
3
Purchase Agreement
any such termination of escrow, all parties hereto shall be jointly and severally liable to
Escrow Holder for payment of its title and escrow cancellation charges (subject to rights of
subrogation against any party whose fault may have caused such termination of escrow), and
each party expressly reserves any other rights and remedies which it may have against any
other party by reason of a wrongful termination or failure to close escrow.
5. Leases or Occupancy of Premises. Seller warrants that there exist no oral or
written leases or rental agreements affecting all or any portion of the Subject Property. Seller
further warrants and agrees to hold District free and harmless and to reimburse District for
any and all costs, liability, loss, damage or expense, including costs for legal services,
occasioned by reason of any such lease or rental agreement of the Property being acquired by
District, including, but not limited to, claims for relocation benefits and/or payments pursuant
to California Government Code Section 7260 et seq. Seller understands and agrees that the
provisions of this paragraph shall survive the close of escrow and recordation of any Grant
Deed.
6. Seller's Representations and Warranties. For the purpose of consummating the
sale and purchase of the Property in accordance herewith, Seller makes the following
representations and warranties to District, which shall survive close of escrow, each of which
is material and is being relied upon by District.
A. Authority. Seller has the full right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereunder.
B. Valid and Binding Agreements. This Agreement and all other
documents delivered by Seller to District now or at the Closing have been or will be duly
authorized and executed and delivered by Seller and are legal, valid and binding obligations of
Seller sufficient to convey to District the Subject Property described therein, and are
enforceable in accordance with their respective terms and do not violate any provisions of any
agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws
or corporate resolutions of Seller.
7. 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.
8. 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,
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Purchase Agreement
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.)
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.
9. 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 Seller may have to any relocation assistance, benefits, procedures, or policies as
provided in said laws or regulations adopted there under and to any other compensation,
except as provided in this Agreement. Seller has been advised as to the extent and availability
5
Purchase Agreement
of such benefits, procedures, notice periods, and assistance, and freely and knowingly waives
such claims, rights and notice periods except as set forth in this Agreement, including the fair
market value of said Property, as provided for by said Federal Law and any similar California
Law.
10. Miscellaneous Provisions.
A. Seller's Obligation to Disclose Documents. Within ten (10) days after
Seller's execution of this Purchase Agreement, Seller agrees to make available to District for
inspection and copying by District all documents in Seller's possession or control relating to
the title, physical, legal, geological and environmental condition of the Property including,
without limitation, any deeds, leases, easements, licenses, termite or other pest control
reports, building or property repair or maintenance records, environmental inspections or
surveys, septic system inspection reports, water supply or water quality tests or well
inspection reports, fuel tank inspection reports and tank integrity test reports, landslide or
geologic reports, and disclosure statements regarding hazardous materials, asbestos, lead based
paint, and any other documents relating to the title, use, occupancy or condition of the
Property.
B. 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 Waste 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.
C. 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.
D. 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 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,
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Purchase Agreement
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.
E. Amendment and Waiver. The parties hereto may by mutual written
agreement amend this Agreement in any respect including: (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.
F. Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in addition to any other
rights, powers and remedies which the parties may have at law or in equity in the event of the
breach of any of the terms of this Agreement. The exercise or partial exercise of any right,
power or remedy shall neither constitute the exclusive election thereof nor the waiver of any
other right, power or remedy available to such party.
G. 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: Robert J. Daloia
P.O. Box 895
Rocklin, CA 95677
(916) 652-3566
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Purchase Agreement
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.
H. Severabili!y. If any of the provisions of this Agreement are held to be
void or unenforceable by or as a result of a determination of any court of competent
jurisdiction, the decision of which is binding upon the parties, the parties agree that such
determination shall not result in the nullity or unenforceability of the remaining portions of
this Agreement. The parties further agree to replace such void or unenforceable provisions
which will achieve, to the extent possible, the economic, business and other purposes of the
void or unenforceable provisions.
I. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed as an original, and when executed, separately or
together, shall constitute a single original instrument, effective in the same manner as if the
parties had executed one and the same instrument.
J. Waiver. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or be construed as, a further or continuing waiver of any such term, provision or
condition or as a waiver of any other term, provision or condition of this Agreement.
K. Entire Agreement. This Agreement is intended by the parties to be the
final expression of their agreement; it embodies the entire agreement and understanding
between the parties hereto; it constitutes a complete and exclusive statement of the terms and
conditions thereof, and it supersedes any and all prior correspondence, conversations,
negotiations, agreements or understandings relating to the same subject matter.
L. Time of Essence. Time is of the essence of each provision of this
Agreement in which time is an element.
Purchase Agreement
M. Survival of Covenants. All covenants of District or Seller which are
expressly intended hereunder to be performed in whole or in part after the Closing, and all
representations and warranties by either party to the other, shall survive the Closing and be
binding upon and inure to the benefit of the respective parties hereto and their respective heirs,
successors and permitted assigns.
N. 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.
O. 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.
P. 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.
Q. Broker's Commission. Seller and District warrant and represent to the
other that no real estate brokers or other third parties are involved in this transaction such that
said third party could claim a commission, finder's fee or other entitlement. The Seller shall
indemnify the District from any such claim made by or through the conduct of the Seller and
the District shall indemnify the Seller from any such claim made by or through the conduct of
the District, in connection with this transaction.
R. 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.
S. 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.
T. 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 judge of the Superior Court of California. The arbitration shall be conducted in
accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et.
seq. Including the right of discovery. Hearings shall be held in Santa Clara or San Mateo
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.
9
Purchase Agreement
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 AN 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 BINDING ARBITRATION.
SELLER INITIAL DISTRICT INITIAL W (CJ
11. Acceptance. Provided that this Agreement is executed by Seller an delivered
to District on or before July 22, 2002, District shall have until midnight August 14, 2002 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.
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Purchase Agreement
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 Robert . Daloia
ACCEPTED FOR RECOMMENDATION Date: 7ZL
Michael C. Williams, Real Property
Representative
R O ENDED FQg APPROVAL:
L. Craig Britton, Gen er
APPROVED AS TO FORM:
-&"a���4VN6t",4
Susan M. Schectman, General Counsel
APPROVED AND ACCEPTED:
President, Board of Directors
ATTEST:
Distric rkCIX
Date: `Z' o a _
11
QNORTH
AMERICAN
DIRECT ALL INQUIRIES TO:
IRM11TLE
COMPANY Escrow Officer: Susan K. Trovato
Telephone No.: (408)399-4100
Our No.: 56007-51172174-SKT
Mid-Peninsula Regional Open Space District
Attn: Mike Williams
330 Distell Circle
Los Altos CA 94022
Property Address:
Assessor's Parcel No.: 562-07-011
Los Gatos, California
Update No. 1
Preliminary Report
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Y
Com an Inc.
Company,
HEREBY REPORTS THAT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED,AS OF THE DATE HEREOF,A
POLICY OR POLICIES OF TITLE INSURANCE, DESCRIBING THE LAND AND THE ESTATE OR INTEREST
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
EXCLUSIONS SET FORTH IN EXHIBIT A OF THIS REPORT CAREFULLY. THE EXCEPTIONS ARE MEANT TO
PROVIDE YOU WITH NOTICE OF MATTERS WHICH ARE NOT COVERED UNDER THE TERMS OF THE TITLE
INSURANCE POLICY AND SHOULD BE CAREFULLY CONSIDERED.
IT IS IMPORTANT TO NOTE THAT THIS PRELIMINARY REPORT IS NOT A WRITTEN REPRESENTATION AS
TO THE CONDITION OF TITLE AND MAY NOT LIST ALL LIENS, DEFECTS, AND ENCUMBRANCES
AFFECTING TITLE TO THE LAND.
THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS 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 May 1, 2002 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 /`�
The form of policy of title insurance contemplated by this report is:
1990 -CLTA Owner's Standard Coverage Policy
The estate or interest in the land hereinafter described or referred to covered by this report Is:
A fee
Title to said estate or interest at the date hereof is vested in:
Robert J. Daloia, a single man
Page 2
Order No.: 56007-5117217 -SKT
Description:
The land referred to herein is situated in the State of California, County of Santa Clara,
Unincorporated Area, and Is described as follows:
PARCEL ONE:
THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 5,T. 9 S., R. 1 E., M.D.B. & M.,
ACCORDING TO THE OFFICIAL PLAT OF THE SURVEY OF SAID LANDS ON FILE IN THE OFFICE
OF THE BUREAU OF LAN MANAGEMENT, APPROVED SEPTEMBER 22, 1871.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT AS APPURTENANT TO PARCEL ONE ABOVE DESCRIBED OR ANY
PORTION THEREOF, FOR USE AS A ROADWAY FOR VEHICLES OF ALL KINDS, PEDESTRIANS
AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPE LINES,AND FOR TELEPHONE,
TELEVISION SERVICE, ELECTRIC LIGHT AND POWER LINES, TOGETHER WITH THE NECESSARY
POLES OR CONDUITS OVER A STRIP OF LAND 60 FEET WIDE ACROSS THE WEST 1/2 OF THE
NORTHWEST 1/4 OF SECTION 8,AND OVER THE WESTERLY AND SOUTHERLY PORTIONS OF
THE SOUTH 1/2 OF SAID SECTION 8, AND OVER A STRIP OF LAND 60 FEET WIDE ACROSS LOT 2
OF SECTION 17, ALL IN T. 9 S., R. 1 E., M. D. B & M., WHICH LATTER 60 FOOT STRIP EXTENDS
FROM THE SOUTHERLY LINE OF SAID SECTION 8, SOUTHERLY TO THE NORTHERLY LINE OF
THE SO-CALLED LOMA-ALMADEN ROAD CROSSING SAID LOT 2.
AP No.: 562-07-011
Page 3 Order No.: 5600jjk1"ft-SKT
^ ,
� At the date hereof exceptions 0w coverage imaddition to the printed exceptions and exclusions �
�
contained in said policy form 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 bmbe levied for the fiscal year 2OQ2-2003.
| 2. 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.
3. Rights and Easements for Navigation and Fishery which may exist over that portion of said land
lying beneath the waters ofRinoonCreek.
4. An easement affecting the portion of said land and for the purpose stated herein, and incidental
purposes.
|n Favor of: Pacific Gas and Electric Company, oCalifornia |
|
corporation (No representation ie made as to the present .
ownership of said easement)
No representation io made amto the present ownership of said easement.
Purpose: Electrical transmission
Recorded: April 28. 1g7U
Book: 8904 |
Page: 276 '
Affects: Ao therein described
� 5. The rights of interests described in Parcel Two herein are not considered insurable bythis
company and no title insurance for said parcel will be contained in any policy of title insurance
issued in this transaction. Said parcel io set forth herein for convenience of conveying whatever
� interest the vemteem may own and not for insurance purposes.
�
�
Page �
Order No.: 58007-51172174-SKT
� '
-
� INFORMATIONAL NOTES:
A. There are no conveyances affecting said land recorded within (24)months of the date of
this report.
Our ALTA Loan Policy, when issued will contain the following exception in Schedule B, Part 1:
"Water rights, or claims or title to water in, on or under the land,whether or not the matters are shown
by the public naoond."
B. This charge for a policy of title insurance, if issued through this title order,will be based on the basic
insurance rate.
C. |fmnALlA Lender's Policy iobobe issued, consider the following matters:
D. Any easement or lesser right not disclosed by those public records which impart constructive notice,
and which are not visible and apparent from on inspection of the surface of said land.
E. General and Special Property Taxes for the fiscal year shown below have been paid.
� Fiscal Year: 2001 '2002 �
� Total Amount: $418.06
� First Installment: $200.03Poid
Second Installment: $209.03Paid
� Land: $16.852.00
Code Area: 72-007
Parcel Number: 562-07-011
� F. Pursuant to Saotbm 12413.1 of the insurance code funds deposited in escrow must be held for the �
� following time periods before they can bediobunoed'
� �
1 Cash or wired fundm—mvai|ab|e for immediate disbursal after deposit in bank orconfirmation
oY receipt inaccount. Bear|n mind that Cash will be accepted from customers only under �
special circumstances os individually approved bymanagement.
2. Cashier checks, certified checks, tellers checks--next day available funds.
3. All other checks must be held in accordance with regulation CC adopted by the Federal
Reserve Board of Governors before they must bmdisbursed.
4 Drafts must be collected before they may bedisbursed.
� North American Title Company will not be responsible for accruals finterest or other charges
� resulting— from . a posed by
state law.
For Your Information, Our Wire Instructions Are:
Wire To: Credit The Account of:
ComaricaBank North American Title Company
Detroit, Michigan Bank Acco tm 189152855*
Routing No.: 121137522 Escrow N 5600/ 511721/4-SK|
Branch/County No.: 560-07
Attn: Susan K. Trovato
� Page
� Order No.: O b1172174'8KT
O F F I C E O F C O U N T Y A S S E S S O R S A N T A C L A R A C O U N T Y. C A L I F O R N I A
Pc•eb/o Trcc' V! 3 _ BOOK n77
BOOK 562
575
`1/ /�•^ASS a6 � � E
MIDPENINSULA REGIONAL
r
�� 22
�i.
11 OPEN SPACE DISTRICT
tt� 1
`10�1 h ja P 635.747 AC. TOTAL `
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TP.9 S.,R.I E.
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a [mpled w cmk+msca wlh uc.)17 d Me
P.i(.cede (a au�.nee!N9afn orT.
6 ENac1A+Far Ra raar 1999-2000
1`6�1 LANRENCE E. STONE - ASSESSOR
THE INFdHM A+Ina oN rule vl•41 IS PROV'"th ton
YOUR CONVENIENCE AS A GUIDE TO THE GENERAL
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
MAY BE ATTACHED."
DO NOT DESTROY THIS ORIGINAL NOTE: This original note, together with a Request for
Reconveyance signed by the Lender hereof, must be surrendered to the Midpeninsula Regional Open
Space District before the final principal payment will be made.
PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Amount Date of Note
Los Altos, California
FOR VALUE RECEIVED, on or before , 2002, in installments as provided
below, the undersigned, MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a California
Public District("Maker"), does hereby promise to pay to Robert J. Daloia, P.O. Box 895, Rocklin, CA
95677 ("Lender") or at such other place as the Lender hereof may, from time to time, hereafter
designate in writing, in lawful money of the United States of America, the principal amount of Two
Hundred and Forty Thousand and No/100 Dollars ($240,000.00), together with tax free interest from
the date hereof on unpaid principal at the rate of six and twenty five hundredths percent (6.25%) per
annum. Should any accrued interest not be paid when due, as provided below, it shall be added to the
unpaid principal and shall thereafter bear interest in the same manner as principal.
1. Payments. Installments of principal and interest shall be due, payable and credited as follows:
(a) Installment Payments: Accrued interest and principal hereon shall be paid by Maker in
quarterly installment payments of Six Thousand One Hundred and Ninety Two and
77/100 Dollars ($6,192.77) (every three (3) months) payable on January 10, April 10,
July 10 and October 10 of each year until this Note is satisfied in its entirety. The first
such quarterly payment shall be due and payable on January 10, 2003.
(b) Maturity Date: The final payment of the remaining principal amount plus any and all
accrued interest shall be paid by Maker on or before October 10, 2017.
(c) In case any date specified above for the payment of principal and/or interest on this
Note shall be a legal holiday, such payment shall be made on the first succeeding
business day.
(d) All payments made hereon shall be applied first to the payment of all unpaid interest
accrued hereon to the date of such payment and the balance, if any, shall be applied to
the payment of principal. Interest shall thereupon cease upon the principal paid.
i
I
1
gage
2. Securi1y. This Note is secured by a First Deed of Trust with Assignment of Rents (the "Deed
of Trust"), of even date herewith, executed by Maker, as Trustor, to North American Title
Company, as Trustee, and naming Lender as Beneficiary, encumbering the real property, more
particularly described in the first Deed of Trust.
3. Junior Lien. The Note, but not the Deed of Trust securing the Note, is and shall be junior and
subordinate to all outstanding public notes, notes secured by a Deed of Trust, bonds, leases or
other obligations secured by revenues of the Maker, and any and all subsequent public note
issues of Maker or future pledge of revenues created by Maker for the purpose of public
financing the Maker's purpose or operation.
4. Late Char-ges and Acceleration Upon Default. Payments not made within 30 days of due date
shall be subject to a late charge of five (5%) percent of the unpaid payment. At the option of
Lender, the entire principal balance together with all accrued interest thereon shall immediately
become due and payable upon the occurrence of any of the following (hereinafter referred to as
an "Event of Default"):
(a) the default by Maker in the payment of principal or interest when due pursuant to the
terms hereof which has not been cured within 30 days of written notice of such default
by; or
(b) default in the performance of any obligation or covenant of the Maker contained herein
which has not been cured within 30 days of written notice of such default by Lender.
5. Loss or Destruction. Upon receipt of evidence reasonably satisfactory to Maker of the loss,
theft, destruction or mutilation of this Note, and in the case of any such loss, theft, or
destruction of this Note, upon delivery of an indemnity bond by the holder hereof in such
reasonable amount as Maker may determine, or, in the case of any such mutilation, upon
surrender and cancellation of this Note, Maker will execute and deliver, in lieu thereof, a
replacement note of like form, substance and effect.
6. Law. This Note shall be governed by and construed in accordance with the laws of the State of
California.
7. Severance. Every provision of this Note is intended to be severable. In the event any term or
provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of
competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain binding and enforceable.
8. Waiver. Any waiver, express or implied, of any breach hereof or default hereunder shall not
be considered a waiver of any subsequent breach or default.
9. Section Headings. Section headings are solely for the convenience of the parties and are not a
part of this Note.
ago
10. Modification. No provision of this Note may be waived, modified or discharged other than by
an agreement in writing signed by the party against whom enforcement of such waiver,
modification or discharge is sought.
11. Assignment. Lender may assign this Note upon obtaining the prior written consent of Maker,
which consent will not be unreasonably withheld.
12. Notice. Any notice required or permitted in connection with this Note will be in writing and
will be given to Lender at the address set out above, and to Maker at the following address:
General Manager, Midpeninsula Regional Open Space District, 330 Distel Circle, Los Altos,
CA 94022, by personal delivery, facsimile transmission, or registered or certified mail first
class United States mail, return receipt requested.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as of the date and
year first above written.
MAKER: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT,
A Public District
President, Board of Directors
ATTEST:
3
EXHILIT
RECORDING REQUESTED BY
Order No. Escrow No.
AND WHEN RECORDED MAIL TO
Name
Street
Address
City&
State L
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
QNMVWUA4,*—
A.P.N. S62—n2—Q08 & OC)q
This Deed of Trust, made this day of between
Midpeninsula Regional Open Space District, a public district
herein called Trustor,
whose address is 330 Distel Circle Los Altos CA 94022
(number and street (city) (state) zip)
North American Title Companv, a California corporation, herein called Trustee, and
Robert J. Daloia
herein called Beneficiary,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE,
that property in County, California, described as:
Parcel 1
ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND SITUATED IN THE COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA, AND BEING THE MIDDLE 26 2/3 ACRES
OF SAID EAST 1/2 OF THE NORTHWEST 1/4 OF SAID SECTION 8 , TOWNSHIP 9 ,
RANGE 1 EAST, M.D .M.
Parcel 2
THE SOUTHERLY TWENTY-SIX AND TWO-THIRDS ( 26 2/3) ACRES OF THE EAST
ONE-HALF OF NORTHWEST ONE QUARTER OF SECTION 8 , TOWNSHIP 9 SOUTH RANGE
1 EAST, M.D.B . & M.
APNs : 562-07-008 & 562-07-009
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to
and conferred upon Beneficiary by paragraph (10)of the provisions incorporated herein by reference to collect and apply such
rents, issues and profits.
For the Purpose of Securing: 1. Performance of each agreement of Trustor incorporated by reference or contained herein.
2. Payment of the indebtedness evidenced by one promissory note of even date herewith, and any extension or renewal thereof,
in the principal sum of S _$ 1_2A_0_,_QQja0_0_ executed by Trustor in favor of Beneficiary or order, 3. Rayment of such
further sums as the then record owner of said property hereafter may borrow from Beneficiary, when evidenced by another
note (or notes) reciting it is so secured.
56^4
T 3.4(Re,.4 94) page I of 2 —7)
1'7�
To Protect the Security of This Deed, ist,Trustor Agrees:By the execution and deli% his Deed of Trust and the note secured
hereby, that provisions(1)to(14), inclu. A the fictitious deed of trust recorded in Santa b, _,,a County and Sonoma County October
18, 1961,and in all other counties October 23, 1961, in the book:and at the page of Official Records in the office of the county recorder of
the county where said property is located, noted below opposite the name of the county, viz.:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 435 684 Kings 792 833 Placer 895 301 Sierra 29 335
Alpine 1 250 Lake 362 39 Plumes 151 5 Siskiyou 4" 181
Amador 104 348 Lassen 171 471 Riverside 3005 523 Solano 1105 182
Butte 1145 1 Los Angeles T2055 899 Sacramento 4331 62 Sonoma ISM 689
Caloveras 145 152 Madera $10 170 San Benito 271 383 Stanislaus 1715 456
Coluse 296 617 Morin 150$ 339 San Bernardino 5567 61 Sutter 572 297
Contra Costa 3978 47 Mariposa 77 292 San Francisco A332 90S Tehams 401 289
Del Norte 78 414 Mendocino 579 530 San Joaquin 2470 311 Trinity 93 366
El Dorado S68 456 Merced 1547 538 San Luis Obispo 1151 12 Were 2294 275
Fresno 4626 572 Modoc 184 $51 San Mateo 4078 4" Tbokrmne 135 47
Glenn 422 184 Moro 52 429 Santa Barbara 1878 860 Vlenturs 2062 386
Humboldt 657 527 Monterey 2194 538 Santa Clara 5336 341 Y010 853 245
Imperial 1091 501 Napa 639 86 Santa Cruz 1431 494 Yuba 334 486
Irtyo 147 598 Nevada 305 320 Shasta 684 528
Kern 3427 60 Orange 5$89 611 San Diego Series 2 Book 1961,Page 183687
(which provisions, identical in all counties, are printed on attached herewith)hereby are adopted and incorporated herein and made a part
hereof as fully as though set forth herein at length;that he will observe and perform said provisions;and that the references to property,obliga-
tions and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth in this Deed of Trust.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to him at his address
herembefore set forth.
I
STATE OF CALIFORNIA SS Signature of Trustor
COUNTY OF
On before me, MIDPENINSII( A REGIONAL OPEN
personally appeared SPACE DISTRICT . a public d i s t r i c
PrPcidiant, Rnard pf DirPctnrs
personally known to me(or proved to me on the basis of satisfactory evidence)to be
the person(s)whose name(s)is!are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies).and
that by his/her/their signature(s)on the instrument the person(s), or the entity upon
behalf of which the person(s)acted,executed the instrument.
WITNESS my hand and official seal.
Signature (This area for official notarial seal)
FOR RECONVEYANCE SEND TO THE NEAREST OFFICE OF NORTH AMERICAN TITLE COMPANY
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid.
Dated
TO NORTH AMERICAN TITLE COMPANY,Trustee:
The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust.All sums secured by said Deed of Trust have been
fully paid and satisfied;and you are hereby requested and directed,on payment to you of any sums owing to you under the terms of said Deed of Trust,to
cancel all evidences of indebtedness,secured by said Deed of Trust,delivered to you herewith together with said Deed of Trust,and to reconvey,without warranty,
to the parties designated by the terms of said Deed of Trust,the estate now held by you under the same.
MAIL RECONVEYANCE TO:
(By)
(By)
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures.
Both must be delivered to the Trustee for cancellation before reconveyance will be made.
T 34A(Rev.4194) Page 2 of 2
page
i
' DO NOT RECORWFOR INFORMATION ES
SHORT FORM OF TRUST AND ASSIGNMENT OF RID(INDIVUAL)
The following is a copy of provisions(I) 4),inclusive,of the fictitious deed of trust,recorded in each county in California,as stated in the foregoing
Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
To Protect the Security of This Deed of Trust,Trustor Agrees:
(1)To keep said property in good condition and repair;not to remove or demolish any building thereon;to complete or restore promptly in good and workmanlike
manner any building which may be constructed,damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished
therefor;to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon;not to commit or permit waste thereof,
not to commit,suffer or permit any act upon said property in violation of law;to cultivate,irrigate,fertilize,prune and do all other acts which from the character
or use of said property may be reasonably necessary,the specific enumerations herein not excluding the general.
(2)To provide,maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary.The amount collected under any
fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine,or at option
of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default
hereunder or invalidate any act done pursuant to such notice.
(3)To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee;and to pay
all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum,in any such actions or proceeding in which Beneficiary or
Trustee may appear,and in any suit brought by Beneficiary to foreclose this Deed.
(4)To pay:at least ten days before delinquency all taxes and assessments affecting said property,including assessments on appurtenant water stock;when
due,all encumbrances,charges and liens with interest,on said property or any part thereof,which appear to be prior or superior hereto,all costs, fees and
expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided,the Beneficiary or Trustee,but without obligation so to do and without notice
to or demand upon Trustor and without releasing Trustor from any obligation hereof,may: make or do the same in such manner and to such extent as either
may deem necessary to protect the security hereof,Beneficiary or Trustee being authorized to enter upon said properly for such purposes;appear in and defend
any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee;pay,purchase,contest or compromise any
incumbrance,charge or lien which in the judgerrent of either appears to be prior to or superior hereto;and,in exercising any such powers,pay necessary ex-
penses,employ counsel and pay his reasonable fees.
(5)To pay immediately and without demand all sums so expended by Beneficiary or Trustee,with interest from date of expenditure at amount allowed
by law in effect at the date hereof,and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any
amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
(6)That arty award of damages in connection with any condemnation for public use or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such moneys received by him/her/them in the same manner and with the same effect as above provided
for disposition of proceeds of fire or other insurance.
(7)That by accepting payment of any sum secured hereby after its due date,beneficiary does not waive his right either to require prompt payment when
due of all other sums so secured or to declare default for failure so to pay.
(8)That at any time or from time to time,without liability therefor and without notice,upon written request of Beneficiary and presentation of this Deed
and said Note for endorsement,and without affecting the personal liability of any person for payment of the indebtedness secured hereby.Trustee may;reconvey
any part of said property.consent to the malting of any map or plat thereof,join in granting any easement thereon,or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
4 That upon written request of Beneficiary stating that all sums secured hereby have been paid,and upon surrender of this Deed and said Note to Trustee
( ) Po
for cancellation and retention and upon payment of its fees,Trustee shall reconvey, without warranty,the property then held hereunder.The recitals in such
mcomeyance of any matters or facts shall be conclusive proof of the truthfulness thereof.The grantee in such neconveyance may be described as"the person
or persons legally entitled thereto"Five years after issuance of such full mconveyance,Trustee may destroy this document(unless directed in such request
to retain it).
(10)That as additional security,Trustor hereby gives to and confers upon Beneficiary the right,power and authority,during the continuance of these Trusts,
to collect the rents,issues and profits of said property,reserving unto Trustor the right,prior to any default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder,to collect and retain such rents,issues and profits as they become due and payable.Upon any such default,
Beneficiary may at any time without notice,either in person,by agent,or by a receiver to be appointed by a court,and without regard to adequacy of any security
for the indebtedness hereby secured enter upon and take possession of said property or any part thereof,in his/her/their own name sue for or otherwise collect
such rents,issues and profits,including those past due and unpaid,and apply the same,less costs and expenses of operation and collection,including reasonable
attorney's fees,upon any indebtedness secured issues and profits and the application thereof as aforesaid,shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(11)That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder,Beneficiary may declare
all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default
and of election to cause to be sold said property,which notice Trustee shall cause to be filed for record.Beneficiary also shall deposit with Trustee this Deed,
said Note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default,and notice of sate having been given as
then required by law,Trustee,without demand on Trustor,shall sell said property at the time and place fixed by it in said notice of sale,either as a whole or
in separate parcels,and in such order as it may determine,at public auction to the highest bidder for cash in lawful money of the United States,payable at
time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale and from time to time
thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement.Trustee shall deliver to such purchaser is deed
conveying the property so sold,but without any covenant or warranty,express or implied.The recitals in such deed of any matters of facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor,Trustee,or Beneficiary as hereinafter defined,may purchase at such sale.
After deducting all cosy,fees and expenses of Trustee and of this Trust,including cost of evidence of title in connection with sale,Trustee shall apply
the proceeds of sale to payment of:all sums expended under the terms hereof,not the repaid,with accrued interest at the amount allowed by law in effect at
the date hereof;all other sums then secured hereby;and the remainder. if any,to the person or persons legally entitled thereto.
(12)Beneficiary,or any successor in ownership of any indebtedness secured hereby,may from time to time,by instrument in writing,substitute a successor
or successors to any Trustee named herein or acting hereunder,which instrument executed by the Beneficiary and duly acknowledged and recorded in the office
of the recorder of the county or counties where said property is situated,shall be conclusive proof of proper substitution of such successor Trustee or Trustees.
who shall,without conveyance from the Trustee predecessor,succeed to all is title,estate,rights,powers and duties.Said instrument must contain the name
of the original Trustor,Trustee and Beneficiary hereunder,the book and page where this Deed is recorded and the name and address of the new Trustee.
(13)That this Deed applies to, inures to the benefit of,and binds all parties hereto,their heirs,legatees,devisees,administrators,executors,successors
and assigns.The term Beneficiary shall mean the owner and holder,including pledgees,of the Note secured hereby,whether or not named as Beneficiary herein.
In this Deed, whenever the context so requires,the masculine gender includes the feminine and/or neuter,and the singular number includes the plural.
(14)That trustee accepts this Trust when this Deed,duly executed and acknowledged,is made a public record as provided by law.Trustee is not obligated
to notify any party hereto of pending sale under any other Deed of Trost or of any action or proceeding in which Trustor,Beneficiary or Trustee shall be a
party unless brought by Trustee.
T•34A(Rev.4 t 94)
, t
ACQUISITION FUNDING AGREEMENT BETWEEN BAY AREA RIDGE TRAIL COUNCIL AND
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
This Acquisition Funding Agreement (this "Agreement") dated September 11, 2002, for
reference purposes, is made by and between MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT ("DISTRICT"), a public agency and BAY AREA RIDGE TRAIL COUNCIL ("BARTC"), a
California nonprofit public benefit corporation, to memorialize the parties' understandings and
agreements with respect to the following project (the "Project")to be undertaken by DISTRICT:
the grant of acquisition funding for DISTRICT's purchase of a private in-holding within Sierra Azul
Open Space Preserve ("OSP"). BARTC and DISTRICT collectively, shall be referred as the
"Parties" hereinafter.
RECITALS
A. DISTRICT intends and has agreed to use good faith efforts to acquire a private in-holding
within Sierra Azul Open Space Preserve. To advance this process, BARTC has allocated a total
of One Hundred Fifty Thousand Dollars ($150,000.00)of funds granted to it from State of
California Coastal Conservancy ("SCC")toward the acquisition of this in-holding (the "Acquisition
Grant").
B. To achieve the greatest efficiency in use of available resources for the Project, DISTRICT
will negotiate the acquisition of the private in-holding. DISTRICT shall contribute its own
resources and funding, and shall seek other resources and funding as necessary to complete the
Project.
NOW, THEREFORE, for valuable consideration, the Parties agree that the foregoing recitals are
true and correct, and agree as follows:
1 PURPOSE OF AGREEMENT. The purpose of this Agreement is to define the terms and
conditions for BARTC's grant of funding to DISTRICT for an acquisition related to the Project.
This Agreement shall be effective upon full execution by the Parties, and approval of the
Acquisition Grant by SCC ("Effective Date").
2. TERM. DISTRICT shall use good faith efforts to complete the acquisition of the private in-
holding within Sierra Azul OSP, as more particularly described herein below, not later than
December 31, 2003. This Agreement shall run from its Effective Date for a period of twenty (20)
years, unless otherwise terminated or amended as provided in this Agreement. BARTC shall
have no obligation to grant the Acquisition Grant to DISTRICT, unless and until all of the
conditions precedent to acquisition and disbursement, as set forth in Paragraphs 4 and 5
respectively, have been satisfied.
3. SCOPE OF THE PROJECT. A detailed description of the scope of the Project is attached
hereto at Exhibit A, and incorporated by reference.
4. DISTRICT's OBLIGATIONS RE: Daloia PROPERTY ACQUISITION.
a. Acquisition of In-holding. DISTRICT intends to and agrees to use good faith efforts to
acquire fee simple title to that certain property located within the boundaries of the
Sierra Azul OSP referred to by the Parties as "the Daloia Property" as more
particularly described in Exhibit B attached hereto and incorporated by reference. The
Daloia Property contains approximately 40 acres and has an estimated fair market
value of Three Hundred Thousand Dollars ($300,000). BARTC agrees to make the
Acquisition Grant in a total amount not to exceed $150,000 for the Daloia Property
subject to the following, and within the Term above.
b. Conditions Precedent to Acquisition and Disbursement. BARTC shall have no
obligation to make or disburse the Acquisition Grant unless and until the following
conditions precedent have been met:
(I) A resolution has been adopted by SCC authorizing the making of the
grant to BARTC, and a resolution has been adopted by the Board of
Directors of BARTC and the Board of Directors of DISTRICT authorizing
the making and receiving of the Acquisition Grant, respectively, and the
execution of this Agreement and approval of its terms and conditions.
(ii) BARTC has reviewed and approved in writing: all title and acquisition
documents pertaining to acquisition of the Daloia Property, including,
without limitation, an appraisal conducted in accordance with the SCC
"Environmental Appraisal Guidelines", preliminary title report, agreements
for purchase and sale, escrow instructions and instruments of conveyance.
(iii) BARTC has reviewed and approved in writing the number, location,
design, and wording of signs and placards to be placed on the Daloia
Property as provided in Paragraph 6 "SIGNS" below.
(iv) DISTRICT has delivered into escrow, in form reviewed and approved in
writing by BARTC and SCC, either a fully executed Irrevocable Offer to
Dedicate Title in Fee, or a resolution of the DISTRICT Board of Directors
dedicating the Daloia Property for park or open space purposes pursuant to
Public Resources Code Section 5540, or both, and any interest so
dedicated may be conveyed only as provided in Section 5540 of the Public
Resources Code. If required by the SCC, the offer shall be recorded
concurrently with or in the instrument conveying title to the Daloia Property
to DISTRICT. DISTRICT may also deliver into escrow, in a form reviewed
and approved in writing by SCC, a legal document in lieu of the above
described documents, provided that the document is legally sufficient to
accomplish the dedication of the Daloia Property for park or open space
purposes, and provided that the document contains all of the terms and
conditions set out in paragraph 4 (0 (1)through (vi) herein.
(v) The purchase price for the Daloia Property purchased under this
Agreement shall not exceed fair market value as established by the
appraisal approved by BARTC. DISTRICT shall obtain at its cost and
deliver an appraisal of the Daloia Property to BARTC not later than two (2)
months prior to the expected date of close of escrow.
(vi) DISTRICT has obtained and deposited into escrow all necessary funds
beyond those granted under this Agreement needed to complete the
acquisition of and close of escrow on the Daloia Property.
c. Use and Disbursement of Acquisition Funds. Upon satisfaction of all provisions of
Paragraph 4.b. herein, "Conditions Precedent To Acquisition and Disbursement",
BARTC shall disburse a total amount not to exceed One Hundred and Fifty Thousand
Dollars ($150,000.00)for acquisition of the Daloia Property. The acquisition funds
shall be used only for the following purposes: towards the purchase price payable by
DISTRICT, and escrow, recording and/or title insurance fees, to the extent not
included in the purchase price. DISTRICT shall notify BARTC in writing of the escrow
account number associated with the acquisition of the Daloia Property. DISTRICT
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shall request disbursement for the acquisition by sending a letter to BARTC, and shall
include the name and address of DISTRICT, a reference to this Agreement, the date
of the request, the date of projected close of escrow, the amount to be disbursed, and
a description of the items for which disbursement is requested. Additionally, the letter
shall include the name, address and telephone number of the title company or escrow
holder and the escrow account number to which the funds will be disbursed. The
letter shall be signed by an authorized representative of DISTRICT. Failure to send
the required letter will relieve BARTC of its obligation to disburse funds. Upon receipt
of the letter, BARTC will make good faith efforts to disburse the total amount of
$150,000 into escrow on or before October 10, 2002. These funds will be used as
follows: 1. the amount of$60,000 will be paid to Seller of the Daloia Property at the
close of escrow as the principal payment, 2. the payment of all required escrow,
recording, and title insurance costs and fees will be deducted from these funds; and 3.
the remaining balance of these funds will be disbursed to DISTRICT at the close of
escrow. After the close of escrow, DISTRICT will deliver to BARTC a copy of the
policy of title insurance for the Daloia Property vesting fee title in the DISTRICT in the
face amount of$300,000.
d. Authorization. In no event will BARTC have any obligation to grant the Acquisition
Grant, unless and until SCC duly authorizes the concomitant grant to BARTC, which
may occur at more than one meeting of SCC.
e. Maintenance. DISTRICT shall use, manage, operate and maintain the Daloia
Property in a manner consistent with the purpose of the acquisition. DISTRICT further
assumes in perpetuity all management, operation and maintenance costs associated
with the Daloia Property, including the costs of ordinary repairs and replacements of a
recurring nature, and costs of enforcement of regulations. BARTC shall not be liable
for any costs of such management, operation or maintenance. DISTRICT shall refrain
from developing or otherwise using any other property it owns or controls in the vicinity
of the Daloia Property in such a way as to materially interfere with or inconvenience
the use, management, operation or maintenance of the Daloia Property, or to detract
from the purpose of the acquisition. DISTRICT may be excused from its obligations
for management, operation and maintenance only upon the written approval of
BARTC, DISTRICT shall not use or allow the use of any portion of the Daloia Property
to compensate for adverse changes to the environment caused by DISTRICT on other
property. DISTRICT shall maintain and operate the Daloia Property for use and
benefit of the public for park and open space purposes and shall dedicate a trail
alignment for the Bay Area Ridge Trail on or before October 12, 2004 through the
Property.
f. Memorandum of Agreement . If required by SCC as a further condition to
DISTRICT's receipt of the Acquisition Grant, DISTRICT shall execute and deliver a
"Memorandum of Agreement" in a form acceptable to BARTC and SCC, to provide
recorded notice of this Agreement. Said Memorandum shall include the following
essential provisions, and if required by SCC shall be recorded concurrently with the
instrument that conveys title to the Daloia Property to DISTRICT.
(i) Purpose. The Real Property was acquired by the District pursuant to a grant of
funds from BARTC, whose funds were received from the Conservancy, for the
purposes of open space, watershed protection, public access and recreation. No use
of the Real Property inconsistent with that purpose is permitted.
(ii) Dedication. The Real Property was acquired by the District pursuant to a grant of
funds from the BARTC, requiring that the Real Property shall be dedicated for the
purposes of parks and open space in accordance with Section 5540 of Public
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Resources Code.
(iii) Mitigation. Without the written permission of the Executive Officer of the
Conservancy, the DISTRICT shall not use or allow the use of any portion of the
Property for mitigation to compensate for adverse changes to the environment
elsewhere. All funds generated in connection with any authorized or allowable
mitigation on the Real Property shall be remitted promptly to the Conservancy until the
Conservancy has been fully paid for all of its past, present and future costs with
respect to the Real Property, including without limitation, staff, planning, development,
restoration, operation and maintenance, and monitoring costs, at fair market value as
of the time the mitigation is to begin.
(iv) The Real Property, including any portion of it or any interest in it, may not be
used as security for any debt without written approval of the State of California, acting
through the Executive Officer of the Conservancy, or its successor.
(v) The Real Property, including any portion of it or any interest in it, may not be
transferred without the approval of the State of California, acting through the Executive
Officer of the Conservancy, or its successor.
(vi) DISTRICT is obligated to use, manage, operate and maintain the Real Property for
the purposes of open space, watershed protection, public trail access and recreation.
DISTRICT's use of the property will be consistent with the terms of its Agreement with
the BARTC dated September 11,2002, as such may be amended from time to time.
(vii)lf any of the essential provisions stated above are violated, all of the DISTRICT's
right, title and interest in the real property shall vest in the State of California for the
benefit of the Conservancy or its successor, upon acceptance of the real property and
approval of the State Public Works Board; provided, however, that the State, through
the Executive Officer of the Conservancy, or its successor, may designate another
public agency or a nonprofit organization to accept the right, title and interest, in which
case vesting shall be in that agency or organization rather than in the State. However,
the BARTC and/or Conservancy shall first give the DISTRICT ninety (90)days written
notice of any violation stating the specific nature thereof, in order for DISTRICT to
correct any such violation to the Conservancy's satisfaction. If the DISTRICT has not
corrected such violation within such 90 day notice period, or any extension thereto, the
Conservancy may exercise its right to ownership of the Property
5. BARTCs CONTRIBUTION.
a. Limited Contribution. It is understood that SCC will furnish BARTC a portion of the
funds necessary for completion of the Project. BARTC's liability for any contribution
under this Agreement shall be limited to SCC funds available and received for the
Project. BARTC shall incur no liability to DISTRICT, its officers, agent, employees,
suppliers, or contractors for failure to make or any delay in making such payments.
None of the funds provided by BARTC hereunder shall be used for salary,
administrative expenses or office space incidental to the construction of the Project.
b. No Further Liability. In no case shall BARTC be liable for any acquisition costs for the
Daloia Property in excess of the Acquisition Grant of$150,000, nor for any
unauthorized or ineligible costs. DISTRICT shall be responsible for any and all costs
of the Project that exceed the amount listed above. If BARTC determines that
DISTRICT has used funds provided under this Agreement for purposes not authorized
or prohibited hereunder, DISTRICT shall pay BARTC 100% of the amount improperly
expended within 30 days of BARTCs written request. BARTC shall reimburse
DISTRICT for the reasonable approved costs (according to Paragraph (4) (c))
associated with the Project as described herein. If DISTRICT is in doubt about the
acceptability of an expense for any part of the Project, DISTRICT shall ask in writing
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that BARTC review and approve a proposed expenditure. DISTRICT may reasonably
rely on BARTC's response.
6. SIGNS.
a. Specifications. DISTRICT shall erect signs visible from the nearest public roadway or
parking facility directing the public to the Project. In addition, DISTRICT shall erect
signs acknowledging SCC's and BARTC's assistance and displaying the Parties'
logos, unless this acknowledgement is incorporated into other signs in a manner
approved by the Parties. DISTRICT shall obtain the specifications for SCC and
BARTC signs and logo from BARTC for this purpose.
b. Bond Act. This Project is funded in part from the Safe Neighborhood Parks, Clean
Water, Clean Air, and Coastal Protection Bond Act of 2000, which requires that all
recipients of bond funds post signs acknowledging the source of funds, in accordance
with guidelines issued by the Secretary for Resources, DISTRICT shall additionally
comply with this Paragraph. In such event, in accordance with these guidelines, the
signage plan must also include at least one sign of at least two (2)feet by two (2)feet,
containing the specified "universal logo" to be equated with the 2000 Bond Act
statewide, and placed to maximize visibility and durability. There is no maximum size
or number of these signs, but at least one sign must be posted by the time the project
is completed. Exceptions to this size requirement are permitted in the case of trails,
historical sites and other areas where these dimensions may not be appropriate, in
which case BARTC may, in consultation with DISTRICT, authorize the use of
appropriate alternative signage that acknowledges Parks/Water Bond 2000 funding in
a recognizable way.
c. Sign Review. District shall design, construct and install signs in consultation with
BARTC . The parties agree and understand that signs shall be consistent with other
District signage, be unobtrusive and consistent with the purpose for which the District
is acquiring the Real Property.Plans describing the number, design, placement, and
wording of the signs shall be submitted to BARTC for review and written approval prior
to the installation of the signs.
7. NOTICES. Any notices or copies of documents to provided hereunder shall be mailed to
the respective Parties addressed as follows:
MIDPENINSULA REGIONAL OPEN BAY AREA RIDGE TRAIL COUNCIL
SPACE DISTRICT Holly Van Houten - Executive Director
L. Craig Britton —General Manager 1007 General Kennedy Avenue, Suite 3
330 Distel Circle San Francisco CA 94129
Los Altos Hills, CA 94022-1404 Tel: (415) 561-2595
Tel: 650-691-1200
8. RECORDS. DISTRICT shall maintain financial accounts, documents, and records
(collectively, "records") relating to this Agreement, in accordance with the guidelines of
"Generally Accepted Accounting Practices" ("GAAP") published by the American Institute of
Certified Public Accountants. The records shall include, without limitation, evidence sufficient to
reflect properly the amount, receipt, deposit, and disbursement of all funds related to the
completion of the Project. DISTRICT shall maintain adequate supporting records in a manner
that permits tracing from the request for disbursement forms to the accounting records and to the
supporting documentation. BARTC may review, obtain, and copy all records relating to
performance of the Agreement. DISTRICT shall provide evidence to BARTC of all funds
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expended on an annual basis. DISTRICT shall provide BARTC with any relevant information
requested and shall permit BARTC access to its premises upon reasonable notice, during normal
business hours, to inspect and copy books, records, accounts, and other material that may be
relevant for the purpose of determining compliance with this Agreement and any applicable laws
and regulations. DISTRICT shall retain the required records for a minimum of five (5)years
following the final disbursement of funds. The records shall be subject to examination and audit
by BARTC or the Bureau of State Audits during the retention periods. If DISTRICT retains any
contractors to accomplish any of the work of this Agreement, DISTRICT shall first enter into an
agreement with each contractor requiring the contractor to meet the terms of this paragraph and
to make the terms applicable to all subcontractors.
9. INDEMNIFICATION. DISTRICT shall defend, indemnify and hold BARTC and SCC, their
officers, directors, employees, agents, successors and assigns, harmless from and against any
liability, suit, claim, expense, loss, injury, damage, and attorney's fees and court costs (including
those incurred to enforce this provision), arising out of or in any way connected with or incident to
this Agreement, including the willful misconduct, negligence (whether active or passive) of
DISTRICT or its agents, any acts or omissions related to the Project and DISTRICT 's
performance under this Agreement, except for the negligence or willful misconduct of BARTC or
SCC. The duty of DISTRICT to indemnify and save harmless includes the duty to defend as set
forth in Civil Code Section 2778. DISTRICT waives any and all rights to any type of express or
implied indemnity or right of contribution from the State, its officers, agents or employees, for any
liability resulting from, growing out of, or in any way connected with or incident to this Agreement. J
10. INSURANCE. Unless DISTRICT is self-insured or self insured by a membership in a
government risk-pooling entity, DISTRICT shall provide and maintain public-liability and property-
damage insurance for liability assumed by DISTRICT under this Agreement with minimum limits
of liability as follows: A single limit for bodily injury (including death) and property damage liability
combined of not less than $1,000,000 each occurrence and $2,000,000 in the aggregate.
DISTRICT also shall provide and maintain insurance or self-insurance against fire, vandalism and
other loss, damage, or destruction of the facilities or structures constructed pursuant to this
Agreement. Unless self-insured, this insurance shall be issued by a company or companies
admitted to transact business in the State of California. The liability insurance policy shall contain
an endorsement specifying that: BARTC and the State of California, its officers, agents and
employees are included as additional insureds for any liability resulting from, growing out of, or in
any way connected with or incident to this Agreement. The policy will not be cancelled or
reduced in coverage without thirty (30) days' prior written notice to BARTC. DISTRICT shall
require its contractors to name BARTC and SCC as additional insureds on all liability insurance
required hereunder, and provide copies of the same to BARTC and SCC prior to commencement
of the Project. If DISTRICT is self- insured it will provide written evidence of the same and its
financial assets providing security for such self-insurance to BARTC.
11. NON-DISCRIMINATION. In connection with this Project DISTRICT shall comply with all
applicable Federal, State, and local laws and regulations including DISTRICT's policies
concerning nondiscrimination and equal opportunity in contracting. Such laws include but are not
limited to the following: Title VII of the Civil Rights Act of 1964 as amended; Americans with
Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sections 503 and 504); California Fair
Employment and Housing Act (Government Code sections 12900 et seq.); and California Labor
Code sections 1101 and 1102. In connection with this Project, DISTRICT shall not discriminate
against any contractor, employee, or applicant for employment because of age, race, color,
national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical
disability, medical condition, political beliefs, organizational affiliations, or marital status in the
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recruitment, selection for training including apprenticeship, hiring, employment, utilization,
promotion, layoff, rates of pay or other forms of compensation. Nor shall DISTRICT discriminate
in provision of services called for in this Agreement because of age, race, color, national origin,
ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical
condition, political beliefs, organizational affiliations, or marital status. DISTRICT shall include this
nondiscrimination clause in all contracts and subcontracts for performance of work under this
Agreement.
12. TERMINATION. BARTC shall have the right to terminate this Agreement with respect to
the Project, upon five (5) days prior written notice to DISTRICT, if BARTC reasonably determines
any of the following: DISTRICT has incurred obligations or made expenditures which are not
permitted or are prohibited under this Agreement; DISTRICT has failed to fulfill its obligations
under this Agreement in a timely or professional manner; DISTRICT is in material violation of any
of the terms of this Agreement; or SCC notifies BARTC that funding for the Project will be
terminated. If SCC or BARTC terminates prior to the completion of the Project, DISTRICT shall
take all reasonable measures to prevent further costs under this Agreement. Termination shall
have no effect on the Parties' rights and obligations arising out of this Agreement occuring before
the effective date of such termination.
13. MISCELLANEOUS. Without the written permission of BARTC, DISTRICT shall not use or
allow the use of any portion of the Property to compensate for adverse changes to the
environment elsewhere caused by DISTRICT. Time is of the essence in this Agreement. No
changes in this Agreement shall be valid unless made in writing and signed by the Parties hereto.
No oral understanding or agreement not incorporated herein shall be binding on the Parties.
Without the written consent of BARTC, this Agreement is not assignable by DISTRICT in whole or
in part.
This Agree aqt is executed by the Parties on the date(s) shown below:
Midpenin I&R�gio al Open Space District BAY A EA RIDGE TRAIL COUNCIL
L. Craig Britton, executed
Manager Holly Van Wuten, Executive Director
Date: L U L Date �IU2-
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i
EXHIBIT
PROPOSED DALOIA PROPERTY ACQUISITION
The 40-acre property is located east of Los Gatos between Mt. Umunhum and Guadalupe
Reservoir. Surrounded entirely by Sierra Azul Open Space Preserve, the property
includes one of the last remaining privately owned sections of the 11-mile stretch of the
planned Bay Area Ridge Trail that connects Lexington Reservoir to Almaden Quicksilver
County Park. The property is in the center of the rugged and remote Rincon Creek
watershed on the north-facing slope overlooking the County Park and Almaden Valley.
The planned Jacques Ridge parking area, due to be constructed this year, is located
approximately 2.5 miles to the east at the intersection of Hicks Road and Mt. Umunhum
Road and when constructed in 2003, will provide easy access to the property. In
recognizing the importance of this property as it relates to completing the Ridge Trail, the
District is seeking grant funds from the Bay Area Ridge Trail Council. If acquired, the
property not only provides the vitally important link in the Ridge Trail but protects
valuable wildlife habitat and watershed land as well as the visual integrity of the
surrounding open space preserve.
The property is situated near the base of Mt. Umunhum on extremely steep and rugged
west-facing slopes overlooking the uppermost reach of the Rincon Creek. The landscape
is largely comprised of a dense mixed evergreen forest, comprised largely of madrone,
bay laurel, oak and Douglas fir. A tributary of Rincon Creek bisects the western portion
of the property and joins Rincon Creek a few hundred feet north of the property line. The
creek runs year-round and, together with the property's diverse landscape, provides
desirable habitat for a wide variety of wildlife that includes mountain lion, deer, bobcat,
and coyote.
The property is accessed by Woods Road, an unsurfaced road that is the planned
alignment of the Bay Area Ridge Trail connecting Almaden Quicksilver County Park to
Mt. El Sombroso and Lexington Reservoir County Park. Historically, the road was
constructed in the late 1800's for the purpose of bringing timber out of the watersheds of
Rincon Creek and Guadalupe Creek to the Almaden and Guadalupe mines. Hikers,
bicyclists and equestrians have passed through the property for many years, gaining
access to adjacent District and County lands. Although densely wooded, there are places
along Woods Road where trail users can catch dramatic views of Mt. El Somboso, Mt.
Umunhum, and Almaden Quicksilver County Park. Beyond the property to the west, the
Woods Road connects to Kennedy Trail and Kennedy Road in Los Gatos, as well as
Limekiln Trail and Priest Rock Trail originating in Lexington Reservoir County Park.
Immediately to the south of the property, Woods Road intersects Barlow Road which
connects to Mt. Umunhum near the Bald Mountain.
The property is located within the District boundary and in an unincorporated area of
Santa Clara County. It is zoned HS (Hillside), requiring one dwelling unit per 160 acres,
unless the development is clustered whereby the allowable density is based on the
average steepness of the property. The property has a legal density of one dwelling unit.
The property would be difficult to develop for residential purposes due to the length of
the access road and steep slopes.
The Santa Clara Countywide Trails Master Plan shows the Bay Area Ridge Trail in the
vicinity of the property, located along Woods Road between Mt. El Sombroso and
Almaden Quicksilver County Park. The District's Regional Open Space Study shows
Woods Road as an existing major trail and planned Bay Area Ridge Trail.
The property is rated in the District's Open Space Master Plan as having moderate
composite open space values and are important in terms of providing potential outdoor
recreation,wildlife habitat, and scenic backdrop as viewed from the surrounding area and
Almaden Quicksilver County Park.
PROPOSED NEVILLE PROPERTY ACQUISITION
The 24-acre property is located southeast of Los Gatos between Lexington Reservoir and
Mt. El Sombroso. Surrounded entirely by Sierra Azul Open Space Preserve, the property
includes one of the last remaining privately owned sections of the 11-mile stretch of the
planned Bay Area Ridge Trail that connects Lexington Reservoir to Almaden Quicksilver
County Park.
The property is situated on steep west-facing slopes above Limekiln Canyon
approximately two miles above Lexington Reservoir. Priest Rock Trail passes through
the property and is a major trail connecting Lexington Reservoir to Mt. El Sombroso,
Kennedy Road and Almaden Quicksilver County Park. The portion of the trail located
on the property offers panoramic views of the Lexington Reservoir basin and beyond,
including the Bear Creek Redwoods, El Sereno and St. Joseph's Hill Open Space
Preserves. In recognizing the importance of this property as it relates to completing the
Ridge Trail, the District is seeking grant funds from the Bay Area Ridge Trail Council. If
acquired,the property not only provides the vitally important link in the Ridge Trail but
protects valuable wildlife habitat and watershed land as well as the visual integrity of the
surrounding open space preserve.
The rectangular-shaped property has a diverse landscape with the upper ridge comprised
largely of chaparral and scrub oak while the lower canyons are densely wooded. A
narrow spine-like ridge bisects the property in the east-west direction and provides
drainage into two separate watersheds. Limekiln Creek enters the property on the north
side of the ridge and Soda Springs Canyon Creek forms the southern boundary.
The property is accessed by Priest Rock Trail, an unsurfaced road that is the planned
alignment of the Bay Area Ridge Trail connecting Lexington Reservoir County Park to
Mt. El Sombroso. Hikers,bicyclists and equestrians have passed through the property for
many years, gaining access to adjacent District lands. Generous views of the surrounding
area are available along the entire trail. In addition to providing a portion of the regional
trail connection between Lexington Reservoir and Almaden Quicksilver County Parks,
the trail is part of a shorter six mile loop trail experience that includes portions of Priest
Rock, Kennedy and Limekiln Trails.
The property is located within the District boundary and in an unincorporated area of
Santa Clara County. It is zoned HS (Hillside), requiring one dwelling unit per 160 acres,
i based on the
' clustered whereby the allowable dens is b
unless the developmentis s
Y t}'
average steepness of the property. The property has a legal density of one dwelling unit,
but has no deeded access rights. The property would be difficult to develop for
residential purposes due to the length of the access road and steep slopes.
The Santa Clara Countywide Trails Master Plan shows the Bay Area Ridge Trail in the
vicinity of the property, located along Priest Rock Trail between Lexington Reservoir
County Park and Mt. El Sombroso. The District's Regional Open Space Study shows
Priest Rock Trail as an existing major trail and planned Bay Area Ridge Trail.
The property are rated in the District's Open Space Master Plan as having moderate
composite open space values and are important in terms of providing potential outdoor
recreation, wildlife habitat, and scenic backdrop as viewed from the surrounding open
space preserve and Lexington Reservoir County Park
EXH161 a 9
Description:
The land referred to herein Is situated in the State of California,County of Santa Clara,
Unincorporated Area, and is described as follows:
PARCEL ONE:
THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 5,T. 9 S., R. I E., M.D.B. & M.,
ACCORDING TO THE OFFICIAL PLAT OF THE SURVEY OF SAID LANDS ON FILE IN THE OFFICE
OF THE BUREAU OF LAN MANAGEMENT, APPROVED SEPTEMBER 22, 1871.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT AS APPURTENANT TO PARCEL ONE ABOVE DESCRIBED OR ANY
PORTION THEREOF, FOR USE AS A ROADWAY FOR VEHICLES OF ALL KINDS, PEDESTRIANS
AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPE LINES,AND FOR TELEPHONE,
TELEVISION SERVICE, ELECTRIC LIGHT AND POWER LINES,TOGETHER WITH THE NECESSARY
POLES OR CONDUITS OVER A STRIP OF LAND 60 FEET WIDE ACROSS THE WEST 1/2 OF THE
NORTHWEST 1/4 OF SECTION 8, AND OVER THE WESTERLY AND SOUTHERLY PORTIONS OF
THE SOUTH 1/2 OF SAID SECTION 8, AND OVER A STRIP OF LAND 60 FEET WIDE ACROSS LOT 2
OF SECTION 17, ALL IN T. 9 S., R. I E., M. D. B & M., WHICH LATTER 60 FOOT STRIP EXTENDS
FROM THE SOUTHERLY LINE OF SAID SECTION 8, SOUTHERLY TO THE NORTHERLY LINE OF
THE SO-CALLED LOMA-ALMADEN ROAD CROSSING SAID LOT 2.
AP No.: 562-07-011
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