Loading...
HomeMy Public PortalAboutResolution - 03-41- 20031112 - James Purchase RESOLUTION 0341 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT, AUTHORIZING OFFICER OR THE GENERAL MANAGER TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT 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 JAMES) The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement between Ivor J. James,Jr.,as Trustee of the James Family Living Trust Agreement dated March 28, 1978 and the Midpeninsula 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 General Manager,President of the Board of Directors or other appropriate officer is authorized to execute a Certificate of Acceptance for the Grant Deed on behalf of the District. Section Three. The 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$250,000.00 from the proceeds of the next long-term District note issue. This Section of this Resolution is adopted by the Board of Directors of Midpeninsula Regional Open Space District solely for purposes of establishing compliance with the requirements of Section 1.103-18 of the Treasury Regulations. The reimbursement of this payment expenditure is consistent with the District's budgetary and financial circumstances. There are no funds or sources of moneys of the District that have been,or are reasonably expected to be, reserved or allocated on a long-term basis,or otherwise set aside to pay the costs of this open space land acquisition project which are to be paid or reimbursed out of proceeds of indebtedness to be issued by the District. The Board of Directors hereby declares the District's official intent to use proceeds of indebtedness to reimburse itself for this open space land acquisition project expenditure. RESOLUTION NO. 03-41 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on November 12, 2003, at a Regular Meeting thereof, by the following vote: AYES: M. Davey, K. Nitz, L. Ha zett, P. Siemend, J. CytL NOES: None ABSTAIN: None ABSENT: N. Hanko, D. Little i ATTEST: APPROVED: b S retary Vice President oa 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. Dist ' lerk PURCHASE AGREEMENT This Purchase Agreement (hereafter "Agreement") is made and entered into by and between IVOR J. JAMES, JR., as Trustee of the James Family Living Trust Agreement dated March 28, 1978_hereinafter called "Seller" and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code, hereinafter called "District." RECITALS WHEREAS, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara, and 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 approximately Thirty-six and sixty-two hundredths (36.62) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Number 562-06-009. Said property is further described in the Legal Description attached to Preliminary Report number 53171886 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 Two hundred fifty thousand and No/100 Dollars ($250,000.00), 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, CA, f r + i Purchase Agreement Page 2 (408) 399-4100 (Escrow number 53171886) 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 December 12, 2003, provided however, that the parties may, by written agreement, extend the time for Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow Holder causes the Grant 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 an and all acts reasonably necessary or appropriate to consummate the Y Y rY 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 Deed, covering the Property as describedinsaid Exhibit "A D. District shall deposit into the escrow, on or before the Closing: :g (i) The required Certificate of Acceptance for the Grant Deed, duly executed by District and to be dated as of the Closing; (ii) District's check payable to Escrow Holder in the amount of Two hundred forty-nine thousand and No/100 Dollars ($249,000.00) which is the balance of the Purchase Price of Two hundred fifty thousand and No/100 Dollars ($250,000.00) as specified in Section 2. The balance of$1,000.00 is paid into escrow in accordance with Section 11 of this Agreement. E. Seller shall pay 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. Purchase Agreement Page 3 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 $250,000.00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exceptions 3, 4 and 6 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 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 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 Goverment Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). 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 Purchase Agreement Page 4 representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District. A. Authori!y. 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. Integrily 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, asbestos, petroleum, petroleum by-products, gas, gas liquids and lead. The term "Environmental Law" as used herein includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) Purchase Agreement Page 5 B. Representations and Warranties. For the purpose of consummating the sale and purchase of the Property, Seller to the best of seller's knowledge and belief, without specific inspection, 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. Purchase Agreement Page 6 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 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. Notwithstanding anything to the contrary in this Sections 8.C, Seller's maximum aggregate monetary liability pursuant to this Section 8.0 Indemnity shall be limited to the sum of Two hundred and fifty thousand Dollars ($250,000.00). 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 Purchase Agreement Page 7 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. Purchase Agreement Page 8 E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission by telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as follows: Seller: Ivor J. James, Jr. 2120 Briarwood Drive San Jose, CA 95125 TEL: (408) 266-7346 Copy: Robert J. Logan, Esq. Logan & Powell LLP 255 W. Julian Street, Suite 302 San Jose, CA 95110-2406 TEL: (408) 287-2156 FAX: (408) 280-1749 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 Purchase Agreement Page 9 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. 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. H. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed as an original, and when executed, separately or together, shall constitute a single original instrument, effective in the same manner as if the parties had executed one and the same instrument. I. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. Entire Agreement. This Agreement is intended by the parties to be the final expression of their agreement; it embodies the entire agreement and understanding between the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings relating to the same subject matter. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. L. Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all representations and warranties by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. M. Assignment. Except as expressly permitted herein, neither party to this Agreement shall assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party. 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 Purchase Agreement Page 10 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. Cgptions. 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. including the right of discovery. Hearings shall be held in Santa Clara County, California. If the parties are unable to agree upon an arbitrator,the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW,YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL 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 Purchase Agreement Page 11 "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 <1 DISTRICT INITIAL 11. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before October 31, 2003, District shall have until midnight November 12, 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. J// Purchase Agreement Page 12 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 " Ivor J. James, Jr., as Trustee of the ACCEPTED FOR RECOMMENDATION James Family Living Trust Agreement Dated March 28, 1978 Michael C. Williams, Real Property Manager Date: Z� 3 Date: 0 '3—� APPROVED AS TO FORM: r Susan M. Schectman, District Counsel Date: RECO END FOR APPROVAL: L. Craig Britton General Manager Date: l 3 APPROVED AND ACCEPTED: President, B and of Dire ors Date: Sally T ' oldt, Distr' t erk Date: // /.i 02 i EXHIBIT 44 h ,.w ■NORTH AMERICAN DIRECT ALL INQUIRIES TO: TITLE COMPANY Escrow Officer: Susan K. Trovato Telephone No.: (408)399-4100 Our No.: 56007-53171886-SKT Mid-Penninsula Open Space District Attn: Mike Williams 330 Distel Circle Los Altos CA 94022-1404 Property Address: Mt. Umunhum San Jose, CA Preliminary Report IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, I North American Title Company, Inc. i 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 15, 2003 Pam Thompson/asc/ca 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 I The form of policy of title insurance contemplated by this report is: i 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 as to Parcel One. An easement more fully described below as to Parcels Two,Three, Four, Five and Six. Title to said estate or interest at the date hereof is vested in: Ivor J. James, Jr., as Trustee of the James Family Living Trust Agreement dated March 28, 1978 i �f Page 2 Order No.: 56007-53171886-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 1: LOT 9, SECTION 17, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, PARCEL 2: A NONEXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AND FOR THE INSTALLATION AND MAINTENANCE OF PUBLIC UTILITIES ON, OVER, AND UNDER A STRIP, 60 FEET IN WIDTH, OF THAT CERTAIN PARCEL OF LAND DESCRIBED AS LOT 4, SECTION 20, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, RUNNING BETWEEN THE NORTHERLY AND EASTERLY BOUNDARIES OF SAID LOT 4, THE CENTER LINE OF SAID STRIP BEING THE CENTER LINE OF THE EXISTING LOMA ALMADEN ROAD AS IT TRAVERSES SAID LOT 4; PARCEL 3: A NONEXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AND FOR THE INSTALLATION AND MAINTENANCE OF PUBLIC UTILITIES ON, OVER, AND UNDER A STRIP, 20 FEET IN WIDTH, OF THAT CERTAIN PARCEL OF LAND DESCRIBED AS THE SE 1/4 OF SE 1/4, SECTION 18, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, RUNNING BETWEEN THE NORTHERLY AND EASTERLY BOUNDARIES OF SAID PARCEL, THE CENTER LINE OF SAID STRIP BEING THE CENTER LINE OF THE EASTERLY BRANCH OF THE EXISTING LOMA ALMADEN ROAD AS IT TRAVERSES SAID PARCEL. PARCEL 4: A NONEXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AND FOR THE INSTALLATION AND MAINTENANCE OF PUBLIC UTILITIES ON, OVER,A ND UNDER A STRIP, 60 FEET IN WIDTH, OF THAT CERTAIN PARCEL OF LAND DESCRIBED AS SE 1/4 OF SE 1/4, SECTION 18, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, RUNNING BETWEEN THE NORTHERLY AND EASTERLY BOUNDARIES OF SAID PARCEL,THE CENTER LINE OF SAID STRIP BEING THE CENTER LINE OF THE WESTERLY BRANCH OF THE EXISTING LOMA ALMADEN ROAD AS IT TRAVERSES SAID PARCEL; PARCEL 5: AN EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF PIPELINE AND PUMPING EQUIPMENT, ON OVER, AND UNDER A STRIP, 10 FEET IN WIDTH, OF THAT CERTAIN PARCEL OF LAND DESCRIBED AS THE NE 1/4 OF NE 1/4, SECTION 19, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, THE CENTER LINE OF SAID STRIP BEING A STRAIGHT LINE RUNNING FROM THE CENTER OF A SPRING NORTHEASTERLY TO THE POINT ON THE EASTERLY BOUNDARY OF SAID PARCEL THAT IS 25 FEET FROM THE COMMON CORNER OF SAID PARCEL, LOT 4, SECTION 20, HEREINABOVE DESCRIBED AND LOT 9, SECTION 17, HEREINABOVE DESCRIBED; PARCEL 6: AN EASEMENT FOR THE INSTALLATION AND MAINTENANCE OF PIPELINE AND PUMPING EQUIPMENT ON, OVER,AND UNDER A STRIP, 10 FEET IN WIDTH OF THE CERTAIN PARCEL OF LAND DESCRIBED AS LOT 4, SECTION 20, TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. DIABLO BASE AND MERIDIAN, THE CENTER LINE OF SAID STRIP BEING THE PROLONGATION OF THE Page 3 Order No.: 56007-53171886-SILT i CENTER LINE OF THE ABOVE-DESCRIBED EASEMENT ON THE NE 1/4 OF NE 1/4, SECTION 19, SAND CENTER LINE RUNNING IN A STRAIGHT LINE FROM THE POINT ON THE WESTERLY BOUNDARY OF SAID LOT 4 THAT IS 25 FEET FROM THE COMMON CORNER OF SAID LOT 4, LOT 9, SECTION 17, HEREINABOVE DESCRIBED, AND THE NE 1/4 TO NE 1/4, SECTION 19, HEREINABOVE DESCRIBED, TO THE POINT ON THE SOUTHERLY BOUNDARY OF LOT 9, SECTION 17, HEREINABOVE DESCRIBED, WHERE SAID CENTER LINE INTERSECTS SAID BOUNDARY; TOGETHER WITH THE RIGHT TO TAKE AND USE ONE-FOURTH OF ALL WATER AVAILABLE FROM OR PRODUCED BY THE PRINCIPAL SPRING LOCATED ON THAT CERTAIN PARCEL OF LAND DESCRIBED AS THE NE 1/4 OF NE 1/4, SECTION 19,TOWNSHIP 9 SOUTH, RANGE 1 EAST, MT. I DIABLO BASE AND MERIDIAN. APN: 562-06-009 I Page 4 Order No.: 56007-53171886-SKT I ' . . . . � At the date hereof exceptions tm coverage |n addition tmthe printed exceptions and exclusions contained in said policy form mould beasfollows: / 1 General and Special Property Taxes, and any assessments collected with taxes, including utility assessments, are m lien not yet payable hmbe levied for the fiscal year 2QO3'2OO4. � | 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 of the public, county and/or city in that portion lying within the street as it now exists: � Loma Almaden Road 4. An easement affecting the portion of said land and for the purpose stated herein, and incidental purposes. | |n Favor of: The Pacific Telephone and Telegraph Company � No representation hu made onto the present ownership of said easement. Purpose: Utility purposes i Recorded: April 11. 1BGO � Book: 4758 � � Page: 733 Affects: The exact location and extent of said easement ianot � disclosed ofrecord � � Subject to the terms, provisions and conditions contained therein. � G. An easement affecting the portion of said land and for the purpose stated herein, and incidental � purposes. In Favor of: VViUiorn R. Estrada, U � No representation is made mmto the present ownership of said easement. Purpose: Ingress and egress and public utilities � Recorded: September 22. 1978 � Book: D970 � Page: 375 Affects: The exact location and extent of said easement ianot � disclosed ofrecord 6. An easement affecting the portion of said land and for the purpose stated herein, and incidental purposes. � |n Favor of: Donald L Davis and Nancy LDavis � No representation ha made aoto the present ownership of said easement. Purpose: Ingress and egress and public utilities Recorded:� September | ' | Book: O872 Page: 384 /ffemdo: The exact location and extent of said easement ksnot � disclosed ofrecord � | � Page Order No.: 56007-53171888'SKT | ' | � 7. Anyinvaliddym-defwctk) theUUeofthevesteeshlthewven such trust is invalid or fails to confer | sufficient powers in the buytmem, or in the event there is m lack uf compliance with the terms and | ' provisions of the trust instrument. This company will require a Certification of Trust(pursuant to California Probate Code Section 18100.5)from the current trustee(s)stating said trust is in full force and effect and there have | been nm changes except ao set forth � � � B. Any rights, interests or claims of parties in possession of the land not shown by the public � records. � | B, Any facts, rights, interests or claims which a co/rectoun/eyvvou|d show. � � | ! � � Page i Order No.: 56007-53171886-8NT ! � � 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 e policy of title insurance, if issued through this title order, will be based on the basic insurance rate. | C. General and Special Property Taxes for the fiscal year shown below have been paid. � Fiscal Year: 2OO2 -2OD3 � � � Total Amount: $846.96 First Installment: a423/48Paid � Second Installment: $423.48Paid � Land: $53,653.00 Code Area: 7�-�O� � � � Parcel Number: 582-06-009 � D. In addition to the county transfer tax of$0.55 per$500.00 the land herein also subject to a City of San Jose conveyance tax in the amount of$1.65 per$5OO.00valuation. This city tax ie figured onthe full value of the land with no credits for existing loans orbonds. E� Pursuant to Section 12413.1 of the insurance code funds deposited in 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 aa 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 oy Governors before they must bedisbursed. � � 4. Drafts must be collected before they may bedisbursed. � North American Title Company will not boresponsible 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: Wire To: Credit The Account of: ComnerinoBank North American Title Company � 75E. Trimble Bank Account No.: 1891528554 San Jose, CA 95131 Escrow No.: 58007'53171888-SKT � Routing No.: 121137522 Brmnoh/CountyNo.: 560-07 � � Attn: Susan K. Trnvobo � Page Order No.: 50007'53171886-SKT 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 rice in the case of disposition of California real property interest("Real Property") by either: 1) a seller who P p 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 $100,000; b) the seller executes a written certificate under penalty of perjury certifying that the seller is a corporation with a permanent place of business In California; or c)the seller,who is an individual,executes a written certificate under penalty of perjury certifying one of the following: (1) the Real Property was the seller's principal residence (as defined in IRC 121); (11) the Real Property is or will be exchanged for property of likekind (as defined in IRC 1031) and that the seller intends to acquire property similar or related in service or use so as to be eligible for nonrecognition of gain for California income tax purposes under IRC 1031; (ill) the Real Property has been compulsorily or involuntarily converted (as defined in IRC 1033) and the seller intends to acquire property similar or related in service or use as to be eligible for nonrecognition of gain for California income tax purposes under IRC 1033; or (iv) the Real Property sale will result In loss of California income tax purposes. Seller Is subject to penalties for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding laws. FTB may grant reduced withholding and waivers from withholding on a case-by-case basis for corporations or other entities. For additional information regarding California withholding, contact the Franchise Tax Board at(toll free) 888-792- 4900),or by e-mail at urws@ftb.ca.gov or visit their website at www.ftb.ca.gov. I Page 8 {order No.: 56007-53171886-SKT w b n• nFE � fq_ l9 ''/ • 40 > g t } I w to—�urxIn I= �I F: fl w$ O uu.64 users p19 S a a II&VO o e = Ira F s neAu /••roo' ■ � N to, I f ' I .r g � pp Page 9 Order No.: 56007-53171886-SKT