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HomeMy Public PortalAboutResolution - 04-28- 20040825 - Curto Purchase i RESOLUTION NO. 04-28 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT, AUTHORIZING GENERAL MANAGER OR OFFICER TO EXECUTE THE CERTIFICATE OF ACCEPTANCE OF GRANT TO DISTRICT, AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION (SIERRA AZUL OPEN SPACE PRESERVE—LANDS OF CURTO) i 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 Sam Curto and Midpeninsula Regional Open Space District,a copy of which is attached hereto and by reference made a part hereof, and the President of the Board of Directors or an appropriate officer is authorized to execute the Purchase Agreement on behalf of the District. Section Two. The General Manager or President of the Board of Directors or other appropriate officer is authorized to execute a Certificate of Acceptance 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 and General Counsel are further authorized to approve any technical revisions to the attached Purchase Agreement and other transactional documents that do not involve any material change to any term of the Purchase Agreement and that are necessary or appropriate to the closing or implementation of this transaction. Section Four. The General Manager of the District is authorized to expend up to $30,000 to cover the cost of title insurance, escrow fees, demolition,and clean up costs and other miscellaneous costs related to this transaction. Section Five. It is intended, reasonably expected,and hereby authorized that the District's general next the ne long-term fund will be reimbursed in the amount of$412,000 from the proceeds of District note Board of Directors of Midpeninsula Regional ed b the g n of Resolution is adopted P issue. This Section P y r purposes of establishing compliance with the requirements of Section Open Space District solely for p g P P P expenditure is consistent with _ Regulations. The reimbursement of this paymentp 1.103 I E of the Treasury g 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 ors hereby District. The Board o f Direct reimbursed out of proceeds of indebtedness to be issued by the Distr y declares the District's official intent to use proceeds of indebtedness to reimburse itself for this open space land acquisition project expenditure. RESOLUTION NO. 04-28 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on August 25, 2004, at a Regular Meeting thereof, by the following vote: AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, D. Little, K. Nitz, P. Siemens NOES: None ABSTAIN: None ABSENT: None ATTEST. APPROVED: &"4�i � cretary President Board of Directors Board of Directors I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct copy of a resolution duly adopted by the Board of Directors of the Midpeninsulag P p Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. Dist Clerk i i u1 :47PM FROM-ALAIN PINEL 1-408-358-1 99 T-240 P•02/03 F-597 Page 2 3. B69roW. Promptly upon execution of this Agreeatent, in accordance with Section 12 herein, an escrow shall be opened at North American Title Company, 497 N. Santa Cruz Avenue, Los Gatos, CA 95030 (408) 399.4100, Escrow Officer, Susan Trovato (Escrow number 54170645) or other title company acceptable to District turd 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 HoId:r may reasonably require. This Agreement may be amended or supplemented by explicit additional escrow instructions sijned by tie varti u the 1�jte4 nrj'tm (� cilch P.Rt`tnw i»atrtir h11 notrinnc notetanar�onAP »+-.-w.. .a41a wli,' aa�l►aaau a1!►u�. ana.11llb va lYi`�j /��,cG111Gttt, U'C: UUUU111CLUM allU jn0I11e8 to tie deposited into the escrow as he rein provided, with the fallowing rerttis and conditions to apply to said escrow: A. The time provid ed ed for in the escrow fnr the close thereof shall be an or r before September 30, 2004, 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 wh en Escrow Holder causes the Grant Deed (as defined below) tc 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 Deed, covering the Property as described in said Exhibit "A." D. District shall deposit into the escrow, on or before the Closing: W 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 Folder in the amount of Three hundred ninety nine thousand and No/100 Dollars ($399,000.00), which is the balance of the Purchase Price of Four hundred thousand and No/100 Dollt rs as specified in Section 2. The balance of$1,000.00 is paid into escrow in accordance with 'Section 12 of this Agreement. E. District shall pay all the escrow fees, Counrr transfer tax, 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 t:scrow between District and Seller as of the Closing based upon the latest available tax infornu.tion using the customary escrow procedures. AUC-D3-04 01.d8Pm ;ROW-AIAIN PINE. 1-40t-1t8-1195 Y-240 P.03/03 F-597 Page 10 S. Afbi=iOn OL191putts. If a dispute arises out of or relates to this Agreement or the performance or breach thereof,the parties agree Prat 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 ne Wed 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 cond=ted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 er.seq. including the right of discovery. Hearings shall be held in Santa Clara County, Califomia. If the patties are unable to agree upon an arbitrator,the arbitration shall be conducted by Ju6cial Arbitration and Mediatio n Services Inc. in d acco ce ran 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 I%TUTRAL 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 MI TIALING 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"rHE ARBITRATION OF DISPUTES PROVISION TO NEUTRAL ARBITRATION. SELLER INITIAL DISTRICT IN ITIAL 12, plance- Provided that this Agreement is executed by Seller and delivered to District on or before August S, 2004, District shall have until midnight August 25, 2004 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 laaW into escrow and Seiler acknowledges receipt of the sum of One Thousand Dollars and Nc1100 ($1,OOt1.00), which shall be applied to the Purchase Price as set forth in Section 2 here-of. Provided that this Agreement is accepted by District, this transaction shall close as soon as practicable in accordance with t1lie terms and conditions set forth herein. 1l! 111 PURCHASE AGREEMENT This Agreement is made and entered into by and between SAM CURTO, an unmarried man 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 One hundred sixty (160) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Number 558-26-004. Said property is further described in the Legal Description attached to Preliminary Report number 54170645 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 Four hundred thousand and No/100 Dollars ($400,000.00), which shall be paid in cash at the "Closing" as defined in Section 3 hereof. Page 2 3. Escrow. Promptly upon execution of this Agreement, in accordance with Section 12 herein, an escrow shall be opened at North American Title Company, 497 N. Santa Cruz Avenue, Los Gatos, CA 95030 (408) 399-4100, Escrow Officer, Susan Trovato (Escrow number 54170645) 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 September 30, 2004, provided however, that the parties may, by written agreement, extend the time for Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow Holder causes the Grant Deed (as defined below) to be recorded in the Office of the County Recorder of Santa Clara County. B. Seller and District shall, during the escrow period, execute any and all documents and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale pursuant to the terms of this Agreement. C. Seller shall deposit into the escrow on or before the Closing an executed and recordable Grant Deed, covering the Property as described in said Exhibit "A." D. District shall deposit into the escrow, on or before the Closing: W 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 Three hundred ninety nine thousand and No/100 Dollars ($399,000.00), which is the balance of the Purchase Price of Four hundred thousand and No/100 Dollars as specified in Section 2. The balance of$1,000-00 is paid into escrow in accordance with Section 12 of this Agreement. E. District shall pay all the escrow fees, County transfer tax, 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. 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$400,000-00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) title exception 2, 3, 4 and 7 as listed in 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. Rialits 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 provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). 6. Seller's R es. 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. Page 4 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 an y 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. Integri1y 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 demolishing improvements or structures on the Property. 8. As-Is Purchase and.Sale. This sale is made without representation or warranty by Seller, except as expressly set forth in this Agreement. Seller has provided District with copies of all reports and documents in its possession regarding the improvements, physical, geologic and environmental condition of the Property ("Disclosure Documents") known to Seller for District' s inspection and review, as identified on exhibit "B," a copy of which is attached hereto and incorporated by this reference. District acknowledges that Seller has delivered to District the reports and documents listed in this Section, and that this list does not relieve Seller of its obligation to provide District with all Disclosure Documents known to it. Seller does not represent or warrant the accuracy of any information in the following reports, and is presenting them to the District merely as part of the Seller's disclosure of reports Seller has in its possession as described above. District represents, warrants, acknowledges and agrees that it has had full and ample opportunity prior to the execution of this Agreement to investigate the Property including, but not limited to, the physical condition thereof; the presence, absence or condition of improvements thereon; the suitability of the Property for any purpose; the compliance of the Property for any purpose; the compliance of the Property with applicable laws; the condition of the soil, water, vegetation, any water courses or bodies of water in, on or adjacent to the Property and the surroundings of the Property; and that District shall purchase the Property Page 5 AS-IS WITH ALL FAULTS. Except as expressly set forth in this Agreement, Seller expressly disclaims any representations or warranties concerning any of the foregoing matters. District represents and warrants to Seller that District has made visual inspections of the d that Property and such geologic, soils and other tests as District deems appropriate, an District accepts the condition of the Property as set forth above. 9. Hazardous Waste. A. Definitions. The term "Hazardous Waste," as used herein, means any substance, material or other thing regulated by or pursuant to any federal, state or local environmental law by reason of its potential for harm to human healt h or the environ ment 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. Sec tion 9601 et se .) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) Warranties. For the purpose of consummating the B. Representations an dW d warranties to sale and purchase of the Property, Seller makes the following representations an District which sha ll survive close of escrow, each of which is material and is being relied upon by District: d e without further inquiry the Property actua l know ledge q (i) To Sellers g i does not contain and has not previously contained any Hazardous Waste or underground storage tanks, and no Hazardous Waste has been or is being used, manufactured, handled, generated, stored, treated, discharged, present, buried or disposed of on, under or about the e rmitted undertaken, , Sell er unde , Property, or transported to or from the Property, no r has P authorized or suffered any of the foregoing; (ii) To Seller's actual knowledge without further inquiry, Seller has not received any notice and Seller has no actual knowledge that any private person or governmental authority or administrative agency or any employee or agent thereof has determined, ermined al leged ed or co mmenced enced or threatened to commence any litigation, or other proceedings, to determine that there is a presence, release, threat of release, placement on, under or about the Property, or the use, manufacture, handling, generation, storage, treatment, discharge, burial or disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous Waste, nor has Seller received any communication from any such person or governmental agency or authority concerning any such matters. C. Indemni . Seller shall indemnify, defend and hold harmless District from and against and all claims, liabilities, losses, damages, and costs incurred or suffered by District, including without limitation, attorney, engineering and other professional or expert fees, to the extent arising from any breach of the warranties or representations contained herein. Page 6 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A," as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91- 646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246- 256) (42 U.S.C. 4601 et seq.), and the California Relocation Assistance Act, Government Code Section 7260 et seq. Seller hereby waives any and all existing and/or future claims or rights 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. 11. 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 Waste or other pre-existing adverse conditions pursuant to its inspections, testing or evaluation. District's inspections shall be at District's sole expense. District shall repair any damage to the Property that may be caused by the District Parties while on the Property performing its inspections. 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. Attomgys' 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, Page 7 ttl 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 pennitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission by telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as follows: Seller: Sam Curto, c/o Jim Meech, Alain Pinel Realtors 214 Los Gatos - Saratoga Road Los Gatos, CA 95030 Telephone: (408) 358-1111 ext. 199 FAX: (408) 358-1199 Page 8 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager Telephone: (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 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. Page 9 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 A Each of the parties hereto agrees to y be reasonably execute and deliver such further documents and perform such other acts as ma 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 'is and permitted assigns of the parties hereto. permitted by law, on the success6 P. Broker's Com mission. The District has retained its own Broker in CO nnection with this transaction. District is solely responsible for payment of any and all commission or compensation due to its own Broker in connection with this transaction, if any. the Listing Agreement retaining Alain Pinel Realtors ("Seller's Seller has entered into Broker") as its broker in connection with this transaction. Notwithstanding anything to the the successful completion and consummation of contrary in the Listing Agreement, solely upon this transaction, District shall pay into escrow the sum of$12,000 to Seller's Broker as compensation for Seller's Broker's services in connection with this transaction. No other compensation or commission is due or payable by District to Seller's Broker. Seller is solely responsible for payment of any and all additional commission or compensation due to Seller's Broker in connection with this transaction, if any. Seller represents and warrants that no other broker besides Seller's Broker, has been retained or consulted by Seller in connection with this transaction. Seller agrees to defend, indemnify and hold District harmless from any and all claims, expenses, costs or liabilities arising out of a breach of Seller's representations and warranties herein, or arising from any broker, agent, finder or person, licensed or otherwise, claiming through, under or any 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. Page 10 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 ARBITRATION OF DISPUTES PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION,YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING FROM THE MATTER INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION TO NEUTRAL ARBITRATION. SELLER INITIAL DISTRICT INITIAL t1 12. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before August 5, 2004. District shall have until midnight August 25, 2004 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. Page 11 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 Sam Cu ACCEPTED FOR RECOMMENDATION Date: 7- 5 C_ (-j Michael C. Williams, Real Property Manager APP ROVED AS TO FO RM: Susan M. Schectman, General Counsel 7 MENDED FOR APPROVAL: L. Crai4 g Britton General Manager APPROVED AND ACCEPTED: President, Board of Directors ATTEST: Distr' lerk Date: Exhibit A CNORTH A00 CAN DIRECT ALL INQUIRIES TO: TIT LE Escrow Of ficer: Susan K.Trovato 9COMPAW Telephone No.: (408) 399-4100 Our No.: 56007-54170645-SKT North American Title Company Attn: Susan Trovato 497 N. Santa Cruz Avenue Los Gatos CA 95030 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 EXCLUDDELIEN, OR FROM COVERAGE ENCUMBRANCE NOT PURSUANT To TOR THEERRED TO PRINTED AS AN EXCEPTION BELOW R NOT SCHEDULES, CONDITIONS AND EXCLU STIPULATIONS OF SAID POLICY FORMS. THE PRINTED EXCEPTIONS AND EXSCON FROM THE COVERAGE OF SAID OPIES OF THE POLICY FORMS $ ICIES ARE HOUOLD BE READ,LICY OR LTHEY ARE SET FORTH ON THE ATTACHED COVER, 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 April 26, 2004 Pam Thompson 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: Sam Curto, an unmarried man Page 2 KT Or der No.: 56007 54170645-S 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 NORTHWEST ONE-QUARTER OF SECTION 14,TOWNSHIP 9 SOUTH, RANGE 1 WEST, MOUNT DIABLO BASE AND MERIDIAN. APN: 558-26-004 Page 3 Order No.: 56007-54170645-SKT At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions contained in said policy form would be as follows: ents collected with taxes,including utility 1 General and Special Property Taxes, and any assessments assessments, are a lien not yet payable to be levied for the fiscal year 2004-2005. 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: Wrights Station Road 4. Covenants, Conditions and Restrictions imposed by a Land Conservation Contract executed pursuant to Section 51200 et seq. of the California Government Code. Dated: November 21, 1972 Executed By: County of Santa Clara and Conrad O. Hansen Recorded: February 26, 1973 Instrument No.: 4458549 Book: 0250 Page: 1 5. An Abstract of Judgment in the amount shown below and any other amounts due. Entered: February 28, 2001 Amount: $3,959.14 Debtor: Sam Curio Creditor: Domencio J. Manzone, M.D. County: Santa Clara Court: Superior Court Case No.: CV 780323 Recorded: March 12, 2003 Instrument No.: 16879798 6. Any rights, interests or claims of parties in possession of the land not shown by the public records. 7. Any facts, rights, interests or claims which a correct survey would show. Page 4 Order No.: 56007-54170645-SKT INFORMATIONAL NOTES: A. There are no conveyances affecting said land recorded within (24) months of the date of � this report. � B. This charge fora policy of title insurance, if issued through this title order,will be based mnthe basic insurance rate. C. General and Special Property Taxes for the fiscal year shown below have been paid. Fiscal Year: 2003'2OD4 Total Amount: $471.52 First Installment: $235'76Poid Second Installment: $235.76 Paid � Land: $6.620.00 � Code Area: 80-008 � Parcel Number 558'26-004 � D. Pursuant to Section 12413.1of the insurance code funds d ineacnzvvnnuatba held for the � following time periods before they can be disbursed: � � 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 � a|circumstances an individually approved by management. � 2 -' certified checks, Uchecks--nextd available funds. 3. All' Cashierother checks,must in accordance with regulation CC adopted by the Federal Reserve Board of Governors before they must bedisbursed. � 4. Ora�amust beooUe�ed 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 bystate law. For Your Information,Our Wire Instructions Are: � Wire To: Credit The Account of: ConnohoaBanh North American Title Company � 75E'Trimble Bank Account No.: 1882618109 �acro�No .' 56007'54170645-SKT � ��n�000' {�A S�131 . Routing No.- 121137522 Branch/County No.: 560'07 � Attn: Susan K.Tnovoto � � � Pama� - Order No.: 56007'54170645-SH3' r • w GOOD FUNDS LAW CALIFORNIA ASSEMBLY BILL 512 (-AB512") IS EFFECTIVE ON JANUARY 1, 1990. UNDER A13512, NORTH AMERICAN TITLE COMPANY, INC. ("NORTH AMERICAN M WTITLE ITH COMPHE LOWING RULES: MAY ONLY MAKE FUNDS AVAILABLE FORO MON ETARY DISPERSA L IN ACCORDANCE 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 PRELIMI NARY CHA NGE OF OWN ERSHIP IP REPORT. IN LIEU OF SA ID 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: (1) 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; (Ili) 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. Page 6 r)rHar Nn - 58007-54170645-SKT ,SUN-14-�20a4 13:08 HFIT PLC.I C SERV I CES D I V 925 251 W 04 F•02� a f p r w_ I � E Y w •E V� I �E w Y _ � B 1 • a j Page 7 Order No.: 56007-54170645-SKT I Page 12 EXHIBIT B DISCLOSURE DOCUMENTS 1 Seller Documentation and Additional Disclosure 2. JCP Report 3. California Tax Data Disclosure 4. The JCP EnviroCheck Disclosure Report 5. Supplemental Statutory Disclosure 6. Explanation of Arbitration Clauses 7. Seller's Affidavit of Non-Foreign Status 8. Agent's Inspection Disclosure 9. Residential Earthquake Hazards Report 10. Disclosure Regarding Issuance of Preliminary Liquefaction and Landslide Map 11. PRDS Mold/Allergen Advisory 12. PRDS Lead-Based Paint and Lead-Based Paint Hazards Disclosure and Acknowledgment