HomeMy Public PortalAboutResolution - 03-32- 20030924 - Boehm Purchase RESOLUTION 03-32
RESOLUTION OF THE BOARD OF DIRECTORS OF
]MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF PURCHASE
AGREEMENT, AUTHORIZING OFFICER TO EXECUTE
CERTIFICATES OF ACCEPTANCE OF GRANTS TO
DISTRICT, AND AUTHORIZING GENERAL MANAGER TO
EXECUTE ANY AND ALL OTHER DOCUMENTS
NECESSARY OR APPROPRIATE TO CLOSING OF THE
TRANSACTION(SIERRA AZUL OPEN SPACE PRESERVE -
LANDS OF BOEHM, ET AL.)
The Board of Directors of Mid peninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of M[idpeninsula Regional Open Space District does hereby
accept the offer contained in that certain Purchase Agreement between Donald F. Boehm and
Jennifer Lin Boehm, Ronald Boehm and Steven B. Heymann and Nancy K. Heymann, as Trustees
of the Heymann Family Trust dated April 20, 1994 and the M[idpeninsula Regional Open Space
District, a copy of which is attached hereto and by reference made a part hereof, and authorizes
the President or appropriate officers to execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors or other appropriate officer is authorized
to execute Certificates of Acceptance for the Grant Deed and Quitclaim Deeds on behalf of the
District.
Section Three. The General Manager of the District shall cause to be given appropriate notice of
acceptance to the seller. The General Manager is further authorized to execute any and all other
documents in escrow necessary or appropriate to the closing of the transaction.
Section Four. The General Manager of the District is authorized to expend up to $5,000 to cover
the cost of title insurance, escrow fees, and other miscellaneous costs related to this transaction.
Section Five. The General Manager and General Counsel are further authorized to approve any
technical revisions to the attached Agreement and documents which do not involve any material
change to any term of the Agreement or documents, which are necessary or appropriate to the
closing or implementation of this transaction.
Section Six. It is intended, reasonably expected, and hereby authorized that the District's general
fund will be reimbursed in the amount of$150,000.00 from the proceeds of the next long-term
District note issue. This Section of this Resolution is adopted by the Board of Directors of
M[idpeninsula Regional Open Space District solely for purposes of establishing compliance with
the requirements of Section 1.103-18 of the Treasury Regulations. The reimbursement of this
payment expenditure is consistent with the District's budgetary and financial circumstances. There
are no funds or sources of moneys of the District that have been, or are reasonably expected to
be, reserved or allocated on a long-term basis, or otherwise set aside to pay the costs of this open
space land acquisition project which are to be paid or reimbursed out of proceeds of indebtedness
to be issued by the District. The Board of Directors hereby declares the District's official intent to
use proceeds of indebtedness to reimburse itself for this open space land acquisition project
expenditure.
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RESOLUTION No. 03-32
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on September 24, 2003, at a Regular Meeting thereof, by the following vote:
AYES: N. Hanko, P. Sieme", L. Hassett, K. N.i tz, J. Cyn, M. Davey, D. Littfe
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
t
;eca ary resident
and of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
stf Clerk
PURCHASE AGREEMENT
This Agreement is made and entered into by and between DONALD F. BOEHM
and JENNIFER LIN BOEHM, husband and wife as joint tenants; RONALD A. BOEHM a single
man; STEVEN B. HEYMANN and NANCY K. HEYMANN, as trustees of the Heymann
Family Trust dated April 20, 1994 (hereinafter collectively 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 an undivided 75% interest in certain real
property consisting of approximately 52.39 acres which has open space and recreational value,
located within an unincorporated area of the County of 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 currently owns an undivided 25% interest in said real
property and District desires to purchase Seller's remaining 75% interest in 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 all of Seller's right, title and interest
in said property to District so that District owns an undivided 100% fee interest in said property,
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: i
1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase
from Seller, Seller's undivided 75% fee interest in that certain real property located within an
unincorporated area of the County of Santa Clara, State of California, containing approximately
fifty two and thirty nine hundredths (52.39) acres, more or less, and commonly referred to as
Santa Clara County Assessor's Parcel Number 562-09-027. Said property is further described in
the Legal Description attached to Preliminary Report Number 51172019 dated August 22, 2003
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 j
property and appurtenances being acquired by District shall hereinafter be called the "Subject
Property" or the "Property".
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall
be One Hundred Fifty Thousand and No/100 Dollars ($150,000.00), which shall be paid in cash
at the "Closing" as defined in Section 3 hereof.
3. Escrow. Promptly upon execution of this Agreement, in 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 51172019) 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 hereinprovided,
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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 31, 2003, provided however, that the parties may, by written agreement, extend
the time for Closing. The term "Closing" as used herein shall be deemed to be the date when
Escrow Holder causes the Deeds (as defined below) to be recorded in the Office of the County
Recorder of Santa Clara County.
B. Seller and District shall, during the escrow period, execute any and all
documents and perform any and all acts reasonably necessary or appropriate to consummate the
purchase and sale pursuant to the terms of this Agreement.
C. Seller shall deposit into the escrow on or before the Closing an executed
and recordable Grant and Quitclaim Deed, covering the Property as described in said Exhibit
"A". Seller may convey fractional interests in the Subject Property to District, by means of one
or more Grant and Quitclaim Deeds so long as, upon the Closing, (a) the Seller's entire undivided
seventy-five percent (75%) of fee title to the Subject Property is conveyed to District by Seller,
and (b) District is able to obtain an owner's policy of title insurance in accordance with Section
3(F) below.
D. District shall deposit into the escrow, on or before the Closing:
(i) The required Certificates of Acceptance for the Grant and Quitclaim
Deed or Deeds, duly executed by District and to be dated as of the Closing;
(ii) District's check payable to Escrow Holder in the amount of One
Hundred Forty-nine Thousand and No/100 Dollars ($149,000.00) which is the balance of the
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Purchase Price of One Hundred Fifty Thousand and No/100 Dollars 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 and Seller shall share (50150) the escrow fees, the CLTA Standard
Policy of Title Insurance, if required by District, and all recording costs and fees. All other costs
or expenses not otherwise provided for in this Agreement shall be apportioned or allocated
between District and Seller in the manner customary in Santa Clara County. All current property
taxes on the Property shall be pro-rated through escrow between District and Seller as of the
Closing based upon the latest available tax information using the customary escrow procedures.
F. Seller shall cause North American Title Company, or other title company
acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA
Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of
$150,000 for the Property showing title to 75% of the Property vested in fee simple in District,
subject only to: (i) current real property taxes, (ii) title exception 4 as listed in said Preliminary
Report (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 and Quitclaim Deeds and attendant Certificates of Acceptance to
be recorded in the Office of the County Recorder of Santa Clara County. Upon the Closing,
Escrow Holder shall cause to be delivered to District the original of the policy of title insurance
required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject
Property (less Seller's portion of the expenses described in Section 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 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
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provisions of this paragraph shall survive the close of escrow and recordation of any Grant
Deed(s).
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.
C. Good Title. Seller has and at the Closing date shall have good, marketable
and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to
District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free
and clear of any recorded or unrecorded option rights or purchase rights or any other right, title
or interest held by any third party except for the exceptions permitted under the express terms
hereof, and Seller shall forever indemnify and defend District from and against any claims made
by any third party which are based upon any inaccuracy in the foregoing representations.
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 be'cause
of its flammability, toxicity, reactivity, corrosiveness or carcinogenicity. The term "Hazardous
Waste" also includes without limitation, polychlorinated biphenyls, benzene, asbestos, petroleum,
petroleum by-products, gas, gas liquids and lead.
The term "Environmental Law" as used herein includes, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.)
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) The Property does not contain any Hazardous Waste or underground
storage tanks;
(ii) Seller and the Property are in compliance with all applicable federal,
state and local laws, statutes, ordinances, orders, guidelines, rules and regulations pertaining to
Hazardous Waste or underground storage tanks;
(iii) At the time Seller acquired the Property, Seller did not know and had
no reason to know that any Hazardous Waste was present, used, manufactured, handled,
generated, stored, treated, discharged, buried or disposed of on, under or about the Property, or
had been transported to or from the Property;
(iv) Seller has not undertaken, permitted, authorized or suffered, and will
not undertake, permit, authorize or suffer the presence, use, manufacture, handling, generation,
storage, treatment, discharge, release, burial or disposal on, under or about the Property of any
Hazardous Waste, or the transportation to or from the Property, of any Hazardous Waste;
(v) There is no pending or, to Seller's best knowledge, threatened litigation
or proceedings before any administrative agency in which any person or entity alleges the
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;
(vi) Seller has not received any notice and has no knowledge or reason to
know that any governmental authority or any employee or agent thereof has determined, or
threatens 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;
(vii) There have been no communications or agreements with any
governmental authority or agency (federal, state or local) or any private entity, including, but not
limited to, any prior owners of the Property, relating in any way to the 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.
C. Indemnity. Seller shall indemnify, defend and hold harmless District from
and against any legal or administrative proceedings brought against District, and all claims,
liabilities losses, damages, and costs, foreseen and unforeseen, including without limitation,
attorney, engineering and other professional or expert fees, directly or indirectly arising from any
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breach of the warranties or representations contained herein, or arising from related to or
connected with the existence of any hazardous substances of any kind on or in the property,
except when any hazardous substance contamination was caused solely by District. Seller shall
be solely and completely responsible for responding to and complying with any administrative
notice, order, request, or demand, or any third party claim or demand relating to potential or
actual hazardous substance contamination on or in the Property, including any and all costs of
remediation and cleanup, except when such contamination was caused solely by District. In
addition to any remedies provided in this subsection, in the event Hazardous Waste is found to
exist on the property, District may exercise its right to bring an action against Seller to recover
any cleanup, repair or remediation costs from Seller and/or any other person or persons
determined to have responsibility for the presence of Hazardous Waste on the Property.
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. 14601 et seq.), and the California Relocation Assistance Act, Government Code Section
7260 et seq. Seller hereby waives any and all existing and/or future claims or rights Seller may
have to any relocation assistance, benefits, procedures, or policies as provided in said laws or
regulations adopted there under and to any other compensation, except as provided in this
Agreement. Seller has been advised as to the extent and availability of such benefits, procedures,
notice periods, and assistance, and freely and knowingly waives such claims, rights and notice
periods except as set forth in this Agreement, including the fair market value of said Property, as
provided for by said Federal Law and any similar California Law.
10. Miscellaneous Provisions.
A. Access for Investigations. From the date Seller delivers an executed copy
of this Purchase Agreement to District and until the Closing, District and District' s agents,
lender, contractors, engineers, consultants, employees, subcontractors and other representatives
(the "District Parties") may, upon the giving of reasonable advance written notice to Seller, enter
upon the Property for the purpose of inspecting, testing and evaluating the same; provided,
however, that District may not perform any work on the Property without Seller, s prior written
consent, which shall not be unreasonably withheld or delayed and further provided that District
shall give Seller at least 24 hours' prior notice of each proposed entry by District. District shall
indemnify, protect, defend and hold Seller free and harmless from and against any and all claims,
actions, causes of action, suits, proceedings, costs, expenses (including, without limitation,
reasonable attorneys, fees and costs), liabilities, damages, and liens caused by the activities of
District Parties while upon the Property prior to the Closing; provided, however, the foregoing
indemnity shall not cover or include any claims, damages or liens resulting from District' s
discovery of any Hazardous Substance or other pre-existing adverse conditions pursuant to its
inspections, testing or evaluation. District, s inspections shall be at District' s sole expense.
District shall repair any damage to the Property that may be caused by the District Parties while
on the Property performing its inspections.
B. Choice of Law. The internal laws of the State of California, regardless of
any choice of law principles, shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
C. Attorneys' Fees. If either party hereto incurs any expense, including
reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by
reason of any default or alleged default of the other party hereunder, the party prevailing in such
action or proceeding shall be entitled to recover from the other party reasonable expenses and
attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or
arbitration goes to final judgment. In the event of a settlement or final judgment in which neither
party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall
be entitled to recover from the other party reasonable expenses and attorneys' fees.
D. Amendment and Waiver. The parties hereto may by mutual written
agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the
time for the performance of any of the obligations of the other party; (ii) waive any inaccuracies
in representations and warranties made by the other party contained in this Agreement or in any
documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the
covenants contained in this Agreement or the performance of any obligations of the other party;
or (iv) waive the fulfillment of any condition that is precedent to the performance by such party
of any of its obligations under this Agreement. The General Manager is authorized to agree to an
extension of the time for the performance of any obligations on the part of District or Seller
pursuant to this Agreement, and to take any actions and execute any documents necessary or
appropriate to closing escrow and completing this conveyance, including execution of any
documents which may allow Seller to accomplish a tax deferred exchange of property as
permitted by law; provided, however that the District shall not take title to any third party
property other than the Subject Property. Any agreement on the part of any party for any such
amendment, extension or waiver must be in writing.
E. Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and in addition to any other
rights, powers and remedies which the parties may have at law or in equity in the event of the
breach of any of the terms of this Agreement. The exercise or partial exercise of any right,
power or remedy shall neither constitute the exclusive election thereof nor the waiver of any
other right, power or remedy available to such party.
F. Notices. Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such
communication shall be in writing and shall be deemed to have been validly served, given or
delivered at the time stated below if deposited in the United States mail, registered or certified
and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or
other private messenger, courier or other delivery service or sent by facsimile transmission by
telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as
follows:
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Seller: Donald F. and Jennifer Boehm, Ronald A. Boehm and Steven B.
and Nancy K. Heymann, Trustees c/o Donald Boehm
c/o Steven B. Heymann
Novx Corporation
830 Jury Court
San Jose, CA 95112
TEL: (408) 353-8338
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or
cabled notice shall promptly be sent by mail (in the manner provided above) to the addressee.
Service of any such communication made only by mail shall be deemed complete on the date of
actual delivery as indicated by the addressee's registry or certification receipt or at the expiration
of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party
hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a
different mailing address or a different person to which such notices or demands are thereafter to
be addressed or delivered. Nothing contained in this Agreement shall excuse either party from
giving oral notice to the other when prompt notification is appropriate, but any oral notice given
shall not satisfy the requirement of written notice as provided in this Section.
G. Severability. If any of the provisions of this Agreement are held to be void
or unenforceable by or as a result of a determination of any court of competent jurisdiction, the
decision of which is binding upon the parties, the parties agree that such determination shall not
result in the nullity or unenforceability of the remaining portions of this Agreement. The parties
further agree to replace such void or unenforceable provisions which will achieve, to the extent
possible, the economic, business and other purposes of the void or unenforceable provisions.
H. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed as an original, and when executed, separately or together, shall
constitute a single original instrument, effective in the same manner as if the parties had executed
one and the same instrument.
I. Waiver. No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be
construed as, a further or continuing waiver of any such term, provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
J. Entire Agreement. This Agreement is intended by the parties to be the
final expression of their agreement; it embodies the entire agreement and understanding between
the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions
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thereof, and it supersedes any and all prior correspondence, conversations, negotiations,
agreements or understandings relating to the same subject matter.
K. Time of Essence. Time is of the essence of each provision of this
Agreement in which time is an element.
L. Survival of Covenants. All covenants of District or Seller which are
expressly intended hereunder to be performed in whole or in part after the Closing, and all repre-
sentations and warranties by either party to the other, shall survive the Closing and be binding
upon and inure to the benefit of the respective parties hereto and their respective heirs, successors
and permitted assigns.
M. Assignment. Except as expressly permitted herein, neither party to this
Agreement shall assign its rights or obligations under this Agreement to any third party without
the prior written approval of the other party.
N. Further Documents and Acts. Each of the parties hereto agrees to execute
and deliver such further documents and perform such other acts as may be reasonably necessary
or appropriate to consummate and carry into effect the transactions described and contemplated
under this Agreement.
O. Binding on Successors and Assigns. This Agreement and all of its terms,
conditions and covenants are intended to be fully effective and binding, to the extent permitted by
law, on the successors and permitted assigns of the parties hereto.
P. Broker's Commission. District shall not be responsible for any real estate
commission or other related costs or fees in this transaction. Seller agrees to and does hereby
indemnify and hold District harmless from and against any and all costs, liabilities, losses,
damages, claims, causes of action or proceedings which may result from any broker, agent or
finder, licensed or otherwise, claiming through, under or by reason of the conduct of Seller in
connection with this transaction.
Q. Captions. Captions are provided herein for convenience only and they
form no part of this Agreement and are not to serve as a basis for interpretation or construction of
this Agreement, nor as evidence of the intention of the parties hereto.
R. Pronoun References. In this Agreement, if it be appropriate, the use of the
singular shall include the plural, and the plural shall include the singular, and the use of any
gender shall include all other genders as appropriate.
S. Arbitration of Disputes. If a dispute arises out of or relates to this
Agreement or the performance or breach thereof, the parties agree first to participate in non-binding
mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through
mediation, or if there is any remaining unresolved controversy or claim subsequent to mediation,
any remaining unresolved controversy or claim shall be settled by binding arbitration. The parties
shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of
California. The arbitration shall be conducted in accordance with the rules set forth in California
Code of Civil Procedure Sections 1280 et. seq. Hearings shall be held in Santa Clara County,
California. If the parties are unable to agree upon an arbitrator, the arbitration shall be conducted by
Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration
is required to resolve a dispute, it shall in all cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW,YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE AARBITRATION
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 APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION
PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
SELLER INITIAL Y13. XA
DISTRICT INITIAL C J
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11. Acceptance. Provided that tment is executed by Seller and delivered to
District on or before September 17, 2003, hall have until midnight September 24, 2003
to accept and execute this Agreement, and during said period this instrument shall constitute an
irrevocable offer by Seller to sell and convey the Property to District for the consideration and
under the terms and conditions herein set forth. Said offer shall remain irrevocable during this
period without the necessity of execution and acceptance of this Purchase Agreement by District.
As consideration for said irrevocable offer, District has paid into escrow 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.
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 Donald F. Boehm
Date:
t —r
ACCEPTED FOR RECOMMME�ENDATION
Michael C. Williams, Real Property LA n nk 'Li1
Manager Jennif Lin toehm
Date:
APPROVED AS TO FORM: Date:
Susan M. Schectman, General Counsel Ronald A. Boehm
Date: 9�03 Date: f
REC&MEN61M FOR APPROVAL: '
. Heymann, Trustee of the Heymann
en
n
amily Trust dated April 20, 1994
C ig Britt , General Manager
Date: l �
Date: g /0
APPROVED AND ACCEPTED: Na rk
y K. ey , Trustee of the Heymann
Fa ily st date pril 20, 1994
esident, Board of Directors Date: `� —
ATTEST:
' � A
DistroKerk,
Date: y
I
JINORTH
AMERICAN DIRECT ALL INQUIRIES TO:
T
Escrow Officer: Susan K. Trovato
PANY Telephone No.: (408) 399-4100
Our No.: 56007-51172019-SKT
Mid-Peninsula Regional Open Space District
Attn: Mike Williams
330 Distel Circle
Los Altos CA 94022
Property Address:
Loma Almaden Road
Los Gatos, CA
Update No. 2
Preliminary Report
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Company, Inc.
HEREBY REPORTS THAT IT IS PREPARED TO ISSUE, OR CAUSE TO BE ISSUED, AS OF THE DATE HEREOF,
A POLICY OR POLICIES OF TITLE INSURANCE, DESCRIBING THE LAND AND THE ESTATE OR INTEREST
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 August 22, 2003 Pam Thompson/asc/prt
at 07:30 am Title Officer
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
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:
Donald F. Boehm and Jennifer Lin Boehm, husband and wife as joint tenants; Ronald A. Boehm, a single
man ; Steven B. Heymann and Nancy K. Heymann, as trustees of the Heymann Family Trust Dated April
20, 1994 and and Midpeninsula Regional Open Space District, a public district, all as tenants in common
Page 2
Order No.: 56007-51172019-SKT
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Description:
The land referred to herein is situated in the State of California, County of Santa Clara,
Unincorporated Area, and is described as follows:
THE NORTH 3/4 OF LOT 11 AND THE SOUTH 1/2 OF LOT 12 IN SECTION 13, TOWNSHIP 9 SOUTH,
RANGE 1 WEST, M.D.M.
APN: 562-09-027
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Order No.: 56007-51172019-SKT
. . . '
At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions
contained in said policy form mmxwld be as 0mUm*vs:
� 1 General and Special Property Taxes, and any assessments collected with taxes, including utility
assessments, for the fiscal year 2OD3- 2OO4.
Total Amount: $1.336.08
First Installment: $868.03Open
Second Installment: $668.03Opmn
Land: $83.480.00
Parcel Number: 563-09-027
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 ofCalifornia.
3. Notwithstanding the insuring clauses of the policy, the Company does not insure against loss or �
damage by reason ofe lack ofa right hm access ho and from the land. �
4. This company will require that the Grant Deed executed byJ. B. Sardi. Jr. and Linda K8. Sondi. in
Trust, as Co-Trustees of the Sardi Family 1996 Trust dated March 21, 1996 to Midpeninsula
� Regional Open Space District, recorded Novemnber13. 1898. am Instrument No. 14499230. be re-
recorded tocorrec±thenoctionnumnbmrintho |ega| deanripUon.Thaoonnotaeotionnumberioi3.
VVe are in the process oyobtaining this corrected Deed. /
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Order No.: 50007'51172019-SKT
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/ INFORMATIONAL NOTES:
A. There are no conveyances affecting said land recorded within twenty-four (24) months of the date of
this report.
^
B. This charge for mpolicy of title insurance, if issued through this title order, will be based on the short �
term rate.
C. |fanALTA Lender's Policy istmbe issued, consider the following matters:
O. Water rights, claims or title to water, whether or not shown by the public records.
E. 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.
F. Pursuant bo Section 12413.1of the insurance code funds deposited |n escrow must be held for the �
following time periods before they can bedisbursed:
1 Cash or wired funds--available for immediate disbursal after deposit in bank or confirmation �
of receipt inaccount. Bear in 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 bedisbursed.
4. Drafts must be collected before they may bedisbursed. |
!
� North American Title Company will not be responsible for accruals of interest or other charges �
� resulting from compliance with the disbursement restrictions imposed by state law. �
�
For Your Information, Our Wire Instructions Are:
� ���m*Tm: Credit The Account o�
� �
CunvahcoBank North American Title Company
75E. Trimble Bank Account No.: 1891528554
San Jose, CA 95131 Escrow No.: 56007-51172019-BNT
� Routing No.: 121137622 Bnanch/CounhyNo.: 560-07
Attn: Susan K. Trovaho
Page
Order No.: 56007-51172019-SK|
GOOD FUNDS LAW
CALIFORNIA ASSEMBLY BILL 512 ("AB512") IS EFFECTIVE ON JANUARY 1, 1990, UNDER AB512, NORTH
AMERICAN TITLE COMPANY, INC. ("NORTH AMERICAN TITLE COMPANY, INC.") MAY ONLY MAKE FUNDS
AVAILABLE FOR MONETARY DISPERSAL IN ACCORDANCE WITH THE FOLLOWING RULES:
' SAME DAY AVAILABILITY - DISBURSEMENT ON THE DATE OF DEPOSIT IS ALLOWED ONLY WHEN FUNDS
ARE DEPOSITED TO NORTH AMERICAN TITLE COMPANY ("NORTH AMERICAN TITLE COMPANY, INC.") IN
CASH OR BY ELECTRONIC TRANSFER (WIRE). BEAR IN MIND THAT CASH WILL BE ACCEPTED FROM
CUSTOMERS ONLY UNDER SPECIAL CIRCUMSTANCES AS INDIVIDUALLY APPROVED BY MANAGEMENT.
' NEXT DAY AVAILABILITY - IF FUNDS ARE DEPOSITED TO NORTH AMERICAN TITLE COMPANY, INC. BY
CASHIER'S CHECKS, CERTIFIED CHECKS, OR TELLER'S CHECKS, DISBURSEMENT MAY BE ON THE NEXT
BUSINESS DAY FOLLOWING DEPOSIT. A "TELLER'S CHECK" IS ONE DRAWN BY AN INSURED FINANCIAL
INSTITUTION AGAINST ANOTHER INSURED FINANCIAL INSTITUTION (E.G., A SAVINGS AND LOAN FUNDING
WITH A CHECK AGAINST A FDIC INSURED BANK).
" 2-5 DAY AVAILABILITY (REGULATION CC). IF THE DEPOSIT IS MADE BY CHECKS OTHER THAN THOSE
DESCRIBED IN PARAGRAPHS 1 AND 2 ABOVE, DISBURSEMENT MAY OCCUR ON THE DAY WHEN FUNDS
MUST BE MADE AVAILABLE TO DEPOSITORS UNDER FEDERAL RESERVE REGULATION CC. THIS REQUIRES
A"HOLD"ON SOME CHECKS OF 2-5 DAYS OR LONGER IN SOME INSTANCES. PERSONAL CHECKS, DRAFTS,
PRIVATE CORPORATION AND COMPANY CHECKS, AND FUNDING CHECKS FROM MORTGAGE COMPANIES
THAT ARE NOT TELLER'S CHECKS ARE AMONG THOSE CHECKS SUBJECT TO SUCH HOLDS. (FOR
FURTHER DETAILS,CONSULT CHAPTER 598, STATUTES OF 1989.)
NOTE: THE ABOVE GUIDELINES ARE IN CONFORMITY WITH THOSE ISSUED BY THE DEPARTMENT OF
INSURANCE FOR ALL CALIFORNIA TITLE INSURANCE AND CALIFORNIA TITLE COMPANIES.
PRELIMINARY CHANGE OF OWNERSHIP REPORT
NOTE: ON OR AFTER JULY 1, 1985, THE COUNTY RECORDER'S OFFICE WILL CHARGE, IN ADDITION TO THE
REGULAR CHARGES, AN EXTRA $20.00 RECORDING FEE, UNLESS A DOCUMENT EVIDENCING A CHANGE OF
OWNERSHIP IS ACCOMPANIED BY A PRELIMINARY CHANGE OF OWNERSHIP REPORT. IN LIEU OF SAID
REPORT, SIGNED BY THE TRANSFEREE, THE RECORDER WILL ACCEPT AN AFFIDAVIT THAT THE TRANSFEREE
IS NOT A RESIDENT OF CALIFORNIA. TITLE BILLINGS WILL BE ADJUSTED TO REFLECT SUCH ADDITIONAL FEES
WHEN APPLICABLE.
IRS FORM 1099
BEFORE THE TRANSACTION CONTEMPLATED BY THIS REPORT CAN BE CLOSED, THE SELLER/BORROWER
MUST FURNISH A TAXPAYER IDENTIFICATION NUMBER TO US SO THAT WE CAN FILE AN IRS FORM 1099,OR ITS
EQUIVALENT, WITH THE INTERNAL REVENUE SERVICE. THIS PROCEDURE IS REQUIRED BY SECTION 6045 OF
THE INTERNAL REVENUE SERVICE.
NOTICE OF A WITHHOLDING REQUIREMENT
State Withholding $ Reporting for closings after January 1, 2003: Under California Law (Rev&Tax Code 18662) a
buyer may be required to withhold and deliver to the Franchise Tax Board (FTB) an amount equal to 3.33%of the
sales price in the case of disposition of California real property interest("Real Property") by either: 1)a seller who
is an individual or when the disbursement instructions authorize the proceeds to be sent to a financial Intermediary
of seller, or 2) a corporate seller that has no permanent place of business in California. Buyer may be subject to a
penalty (equal to the greater of 10% of the amount required to be withheld or $500) for failing to withhold and
transmit the funds to FTB in the time required by law. Buyer is not required to withhold any amount and will not be
subject to penalty for failure to withhold if: a)the sale price of the Real Property does not exceed $100,000; b) the
seller executes a written certificate under penalty of perjury certifying that the seller is a corporation with a
permanent place of business in California; or c)the seller,who is an individual,executes a written certificate under
penalty of perjury certifying one of the following: (I) the Real Property was the seller's principal residence (as
defined in IRC 121); (ii)the Real Property is or will be exchanged for property of likekind (as defined in IRC 1031)
and that the seller intends to acquire property similar or related in service or use so as to be eligible for
nonrecognition of gain for California income tax purposes under IRC 1031; (111) the Real Property has been
compulsorily or involuntarily converted (as defined in IRC 1033) and the seller intends to acquire property similar
or related in service or use as to be eligible for nonrecognition of gain for California income tax purposes under
IRC 1033; or (iv) the Real Property sale will result in loss of California income tax purposes. Seller is subject to
penalties for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding laws. FTB may
grant reduced withholding and waivers from withholding on a case-by-case basis for corporations or other entities.
For additional information regarding California withholding, contact the Franchise Tax Board at (toll free) 888-792-
4900),or by e-mail at urws@ftb.ca.gov or visit their website at www.ftb.ca.gov.
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Order No.: 56007-51172019-SKT
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OFFICE OF COUNTY ASSESSOR SANTA C L A R A COUNTY, CALIFORNIA DOOK PAOE �
562
0
�r1
8 T9S A.IW
—4 u`
—0-... +wrl I wra { Lao 1 LOT
ur•` (•aa,r.) t++Ta') ae as� r 1 aaw a• L aw•• I W-1 I (MnM1 I
N)PENNMA.A RES. ) (a"�Al I { �`�.
OPEN SPACE DISTA ,�„ I _i
-----------L •— - -- -�— •—�"— P L 1--
I* 1 6
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p�nwl I DYRM) ��`` (u.,.r-1 I (.iwM) (+a*+`) i (•�»w� ) LuTr w7 .. I Lnnwl n
421
29
nna, rRr �' rl 3
(1lNA.) 3D4.73 AG 70TAL I 4Y
•UOAf.)
YgPi,TiC1MJL REOONAL OPEN PACE DISTINCT �
--1 -L---- —
wr 14 Ims 1 Ora 11 wru 49
{N1�1M1 (4wM4 KwK 1 Away ]LR/F� 11 w.M/')
1 ILLOPfl MU A 001 AL� {
1 1 1 OPEN SPACE OKTW mePuwwsVu AE A
1 SPACE OISTNCT
OEEN PACE OINMCT
M&M AL:TOTAL ; -d �.Sts MEREST) '
MOPENOMMA REAICIUL.OPEN SPACE GISIMW 1 1 Q , q 7E.1l aC.TOTAI
{ !t y_7
31 I I ` xstA..,ealL L � II
wrn { wrn Nfa { 1e,a wC4 1 LOT*
1 tw,•u7 - 1 GwwAy Laww'7 t (awW Lrn�Ay (>.rr) 1 r,.r '
I 11eOPE1M91RA RECIO.AL�
I OPEN SPACE U6TRIC'T
IL}W,w LOT N• s. � W.W.
for 1as 10alO we
1
a%$?K TRY. I 1
I Ii 1
1 1
UME)aI E STOW-A5 cs"
ar1a+aw V-W
Ca.vM R♦T.Coal.5K 327.
[Naito Y TYI>01f-70f17
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