Loading...
HomeMy Public PortalAboutResolution - 04-45- 20041215 - Davidson Purchase RESOLUTION 04-45 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREE ,MENT AUT HORIZING GENERAL MANAGER OR OFFICER 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 DAVIDSON) ula Regional Open S The Board of Directors of Midpeninsula ace District does resolve as follows:g p p Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement between C. Davidson Family Limited Partnership, a California partnership, and 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 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 Agreement and other transactional documents which do not involve any material change to any term of the Agreement or other transactional documents which 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 $15,000 to cover the cost of title insurance, escrow fees, road restoration, and other miscellaneous costs related to this transaction. Section Five. It is intended, reasonably expected, and hereby authorized that the District's general fund will be reimbursed in the amount of$500,000 from the proceeds of the next long-term District note issue. This Section of this Resolution is adopted by the Board of Directors of Midpeninsula Regional Open Space District solely for purposes of establishing compliance with the requirements of Section 1.103-18 of the Treasury Regulations. The reimbursement of this payment expenditure is consistent with the District's budgetary and financial circumstances. There are no funds or sources of moneys of the District that have been, or are reasonably expected to be, reserved or allocated on a long-term basis or otherwise set aside to pay the costs of this open space land purchase 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 purchase project expenditure. i RESOLUTION No. 04-45 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on December 15, 2004, at a Special Meeting thereof, by the following vote: AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, D. Little, K. Nitz, P. Siemens I NOES: None ABSTAIN: None ABSENT: None ATTEST: APPROVED: ecretary 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 t b the above vote at a meeting thereof duly the Midpeninsula Regional Open Space District y g held and called on the above day. Distr' erk i III PURCHASE AGREEMENT This Agreement is made and entered into by and between C & B Davidson Family Limited Partnership, a California partnership 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 Sixty-Two and seventy- four hundredths (62.74) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Numbers 575-12-008 and 575-12-012. Said property is further described in the Legal Description attached to the Amended Preliminary Report #1, dated November 5, 2004, Number 64240715 from Commonwealth Land Title Company. A copy of said Amended 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". i Purchase Agreement - Davidson Page 2 of 11 2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be Five Hundred Thousand and no Dollars ($500,000.00), which shall be paid in cash at the "Closing" as defined in Section 3 hereof. 3. Escrow. Promptly u execution of this Agreement, in accordance with P Y upon 11 herein an escrow shall be opened at Commonwealth Land Title Company, 5353 Section p y, P Almaden Expressway, Suite 60, San Jose, CA, 95118 (408) 269-5300 (Escrow number 64240715) 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 monies to be instructed to deliver, pursuant to the terms of this Agreement, the documents and rn o 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 February 17, 2005, 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. Seiler 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: (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 Four Hundred Ninety Nine Thousand and no Dollars ($499,000.00) which is the balance of the Purchase Price of$500,000.00 as,specified in Section 2. The balance of$1,000.00 is paid into escrow in accordance with Section 11 of this Agreement. Purchase Agreement - Davidson Page 3 of 11 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. F. Seller shall cause Commonwealth Land 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$500,000.00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) title exceptions 4, 5, and 6 of Exhibit A, (ii) 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, District the original of the policy of title Escrow Holder shall cause to be delivered top y and to Seller Escrow Holder's check for the full purchase rice of insurance required herein, p p the Subject Property (less Seller's portion of the expenses described in Section 3.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 4. Rights and Liabilities of the Parties in the Event of Termination. In the event this Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from any further obligations hereunder, except as otherwise provided herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for payment of its title and escrow cancellation charges (subject to rights of subrogation against any party whose fault may have caused such termination of escrow), and each party expressly reserves any other rights and remedies which it may have against any other party by reason of a wrongful termination or failure to close escrow. 5. Leases or Occupancy of Premises. Seller warrants that there exist no oral or written leases or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the Purchase Agreement - Davidson Page 4 of 11 provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed. 6. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District. A. Authority. Seller has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. B. Valid and Binding Agreements. This Agreement and all other documents delivered by Seller to District now or at the Closing have been or will be duly authorized and executed and delivered by Seller and are legal, valid and binding obligations of Seller sufficient to convey to District the Subject Property described therein, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws or corporate resolutions or partnership requirements of Seller. C. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and Seller shall forever indemnify and defend District from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. 7. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or allow any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. 8. Hazardous Waste. A. Definitions. The term "Hazardous Waste," as used herein, means any substance, material or other thing regulated by or pursuant to any federal, state or local environmental law by reason of its potential for harm to human health or the environment 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. Purchase Agreement - Davidson Page 5 of 11 The term "Environmental Law" as used herein includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) B. Representations and Warranties. For the purpose of consummating the sale and purchase of the Property, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District: (i) To Seller's knowledge the Property does not contain and has not previously contained any Hazardous Waste or underground storage tanks, and no Hazardous Waste has been or is being used, manufactured, handled, generated, stored, treated, discharged, present, buried or disposed of on, under or about the Property, or transported to or from the Property, nor has Seller undertaken, permitted, authorized or suffered any of the foregoing; (ii) Seller has not received any notice and Seller has no actual knowledge that any private person or governmental authority or administrative agency or any employee or agent thereof has determined, alleged or commenced or threatened to commence any litigation, or other proceedings, to determine that there is a presence, release, threat of release, placement on, under or about the Property, or the use, manufacture, handling, generation, storage, treatment, discharge, burial or disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous Waste, nor has Seller received any communication from any such person or governmental agency or authority concerning any such matters. C. Indemnity. Seller shall indemnify, defend and hold harmless District from and against and all claims, liabilities, losses, damages, and costs incurred or suffered by District, including without limitation, attorney, engineering and other professional or expert fees, to the extent arising from any breach of the warranties or representations contained herein. 9. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91- 646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246- 256) (42 U.S.C. 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 Purchase Agreement - Davidson Page 6 of 11 provided in said laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. Seller has been advised as to the extent and availability of such benefits, procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights and notice periods except as set forth in this Agreement, including the fair market value of said Property, as provided for by said Federal Law and any similar California Law. 10. Miscellaneous Provisions. A. Access for Investigations. From the date Seller delivers an executed copy of this Purchase Agreement to District and until the Closing, District and District' s agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives the *"District Parties") may, upon the giving of reasonable advance written notice to Seller, enter upon the Property for the purpose of inspecting, testing and evaluating the same; provided, however, that District may not perform any work on the Property without Seller' s prior written consent, which shall not be unreasonably withheld or delayed and further provided that District shall give Seller at least 24 hours' prior notice of each proposed entry by District. District shall indemnify, protect, defend and hold Seller free and harmless from and against any and all claims, actions, causes of action, suits, proceedings, costs, expenses (including, without limitation, reasonable attorneys, fees and costs), liabilities, damages, and liens caused by the activities of District Parties while upon the Property prior to the Closing; provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from District, s discovery of any Hazardous 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. 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. Purchase Agreement Pae7of11 Davidson g D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any parry 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 parry of any of its obligations under this Agreement. The General Manager is authorized to agree to an extension of the time for the performance of any obligations on the part of District or Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express Cher delivery service or sent b facsimile transmission or other private messenger, courier or o ry Y by PY, telegraph telex teleco tele ra h or cable or other similar electronic medium, addressed as indicated as follows: Seller: C & B Davidson Family Limited Partnership, a CA partnership c/o Gary Beck 7172 Anjou Creek Circle San Jose, CA 95120 (408) 268-4062 FAX: (408) 927-0225 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: L. Craig Britton, General Manager Purchase Agreement - Davidson Page 8 of 11 (650) 691-1200 FAX: (650) 691-0485 If sent by telegraph,tele ra h, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile n the manner provided above to the or cabled notice shall promptly be sent by mail (i p ) de only b mail shall be deemed complete addressee. Service of any such communication ma y y P certification receipt o r on the date of actual deliveryas indicated by the addressee s registry or p expiration of the third 3rd business day after the date of mailing, whichever is earlier at the ( ) Y P in time. Either party hereto may from time to time, by notice in writing served upon the other as g aforesaid designate a different mailing address or a different person to which such notices i 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 an oral notice given shall not satisfy the requirement of wr itten notice as Y 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. i Purchase Agreement - Davidson Page 9 of 11 L. Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all 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 or appropriate to consummate and carry into effect the transactions described and contemplated under this Agreement. O. Binding on Successors.and Assigns. This Agreement and all of its terms, conditions and covenants are intended to be fully effective and binding, to the extent permitted by law, on the successors and permitted assigns of the parties hereto. P. Broker's Commission. District shall not be responsible for any real estate commission or other related costs or fees in this transaction. Seller agrees to and does hereby indemnify and hold District harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of Seller in connection with this transaction. Q. Captions. Captions are provided herein for convenience only and they form no part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement, nor as evidence of the intention of the parties hereto. R. Pronoun References. In this Agreement, if it be appropriate, the use of the singular shall include the plural, and the plural shall include the singular, and the use of any gender shall include all other genders as appropriate. S. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof,the parties agree first to participate in non- binding mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through mediation, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding arbitration. The parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et. seq. 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 Purchase Agreement - Davidson Page 10 of 11 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 OF YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY INC LUDED 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 ��� 11. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before December 3, 2004, District shall have until midnight December 15, during said period this instrument shall accept and execute this Agreement, and du p 2004 to a g P g 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. lI/ I// i I Purchase Agreement - Davidson Page 11 of 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. t DISTRICT: SELLER: C & B Davidson Family Limite t ^I; Pa tnership, a California partnership aA MIDPENINSULA REGIONAL OPEN SPACE DISTRICT (Name) �� ACCEPTED FOR RECOMMENDATION Date: �- \.� 0,— Michael C. Williams, Real Property Manager APPROVED AS TO FORM: Susan M. Schectman, General Counsel 7 i RE FOR APPROVAL: i L. Craig Britton, General er) APPROVED AND ACCEPTED: President, Board of Directors ATTEST: Distric erk Date: i i 11924 - Almaden 5353 Almaden Expressway Suite 60 San 3ose, CA 95118 Phone: (408) 269-5300 Fax: (408) 269-1600 LandAmerica Commonwealth Joe Beatty Real Estate Our File No: 64240715 7172 Anjou Creek Circle Escrow Officer: Laura Higgins San lose, CA 95120 Attn: Gary Beck AMENDED PRELIMINARY REPORT #1 Dated as of November 5, 2004 at 7:30 a.m. In response to the above referenced application for a policy of title insurance, Commonwealth Land Title Company 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 therein 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 in Exhibit B attached. Copies of the Policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) 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. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit B of this report carefully. The exceptions and exclusions 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. EXHIBIT A CLTA Preliminary Report Form (Rev 1/1/95) Page 1 File No: 64240715 SCHEDULE A The form of policy of title insurance contemplated by this report is: CLTA Standard Loan ALTA Loan 1992 The estate or interest in the land hereinafter described or referred to covered by this report is: A FEE as to Parcels One and Three; AN EASEMENT more fully described below as to Parcel Two Title to said estate or interest at the date hereof is vested in: C & 6 Davidson Family Limited Partnership, a CA partnership The land referred to herein is situated in the County of Santa Clara, State of California, and is described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF CLTA Preliminary Report Form (Rev 1/1/95) Page 2 File No: 64240715 Exhibit "A,. All that certain real property situate in the County of Santa Clara, State of r' s California, described follows:a (Unincorporated Area) PARCEL ONE: I � All of Parcel A as shown upon that certain Lot Line Adjustment Parcel Map recorded on May 10, 1982, in Book 500 of Maps at Pages 9 and 10. PARCEL TWO: III Road and utilities easement as conveyed in Deed recorded May 20, 1982, in Book G795, Page 626, Series No. 7369004, Santa Clara County Records, and being more particularly described as follows: Beginning at a 1-inch iron pipe labeled Monument 37 on a Parcel Ma recorded in 9 9 PP P 24 and 25 of Maps, Official Records of Santa Clara Count Book 405, Pages p , y, thence South 00 51' West 145.92 feet to a 1-inch iron pipe Monument 36; thence South 90 11' West 71.00 feet to a 1-inch iron pipe; thence South 00 11' West 50.07 feet to a point, thence North 770 49' West 48.47 feet to a 1-inch iron pipe, thence North 770 49' West 55.53 feet to a point, thence North 130 36' West 55.33 feet to a 1-inch iron pipe, thence North 130 36' West 264.24 feet to '/z-inch iron pipe, thence South 750 39' East 19.80 feet to a 1-inch iron pipe tagged County Surveyor; thence South 750 39' East 36.80 feet to a 1/2-inch iron pipe; thence South 750 39' East 143.68 feet to the .point of beginning. P 9 9 Assessor's Parcel Number 575-12-012 PARCEL THREE: Parcel A, as shown upon the Parcel Map recorded March 20, 1981, in Book 481 of Maps, at Pages 20 and 21. Assessor's Parcel Number 575-12-008 l CLTA Preliminary Report Form (Rev 1/1/95) I Page 3 i File No: 64240715 SCHEDULE B At the date hereof Exceptions to coverage in addition to the printed exceptions and exclusions in said policy form would be as follows: 1. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes for the fiscal year 2004 - 2005. 1st Installment: $392.11 Paid 2nd Installment: $392.11 Open Land Value: $35,485.00 Code Area: 80-002 Assessment No.: 575-12-008 Affects: Parcel Three 2. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes, for the fiscal year 2004 - 2005. 1st Installment: $1,438.85 Paid 2nd Installment: $1,438.85 Open Land Value: $211,964.00 Code Area: 80-002 Assessment No.: 575-12-012 Affects: Parcels One &Two 3. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to t th e Revenue and Taxation Code of the State of California. 4. An easement for the purposes shown below and rights incidental thereto as shown or as offered for dedication on the recorded map shown below. Map: Parcel Map Filed: October 6, 1977, Book 405 of Maps, Pages 24 and 25 Easement purpose: Slope Affects: 20-foot strip of land along a Southwesterly lot line; reference is made to said document for full particulars Easement purpose: Road and utilities Affects: 60-foot strip of land contiguous to and 20 feet Northeasterly of a Southwesterly lot line CLTA Preliminary Report Form (Rev.1/1/95) Page 4 Y Y C r M Y V `C File No: 64240715 SCHEDULE B - Continued 5. Matters contained in the dedication statement or elsewhere on the tract or parcel map shown below, which among the things provide: Tract/Parcel Map: Parcel Map (405 M 24) Provisions: There is no existing road in the 60-foot right of way; approval will be required from the county prior to construction of access roads and additional rights of way may have to be obtained Reference is made to said map for full particulars. 6. Matters contained in the dedication statement or elsewhere on the tract or parcel map shown below, which among the things provide: Tract/Parcel Map: Parcel Map (481 M 20) Provisions: Parcels shall be conditioned by Santa Clara County Land Development Coordinator; conditions to include, but not limited to, road dedication and road improvements, water supply, sewage disposal, and fire protection Reference is made to said map for full particulars. 7. Matters which may be disclosed by an inspection or by a survey of said land that is satisfactory to this Company, or by inquiry of the parties in possession thereof. *** END OF EXCEPTIONS *** BW2/bw2/November 9, 2004 BW2/bw2/November 18, 2004 - Amendment #1 (#4 now includes old #4 & #5) Requirements: REQ NO.1: The Company will require that a certified copy of the Statement of Partnership Authority (Form GP-1) filed in the Office of the Secretary of State for the partnership named below be recorded in the Office of the County Recorder for the county in which the land is located as provided in Corporations Code Section 16105. In addition the Company will require a list of the names and mailing addresses of all partners in the partnership if not set forth in the Statement of Partnership Authority. Partnership: C & B Davidson Family Limited Partnership, a CA partnership REQ NO.2: The Company will require that it be provided with a full copy of the partnership thereto together with all supplements or amendments agreement of the partnership named below, tope pp , before issuing any policy of title insurance. Partnership: C & B Davidson Family Limited Partnership, a CA partnership i i I i CLTA Preliminary Report Form (Rev 1/1/95) Page 5 File No: 64240715 INFORMATIONAL NOTES NOTE NO. 1: PRIVACY NOTICE (15 U.S.C. 6801 AND 16 CFR PART 313): WE COLLECT NONPUBLIC PERSONAL INFORMATION ABOUT YOU FROM INFORMATION YOU PROVIDE ON FORMS AND DOCUMENTS AND FROM OTHER PEOPLE SUCH AS YOUR LENDER, REAL ESTATE AGENT, ATTORNEY, ESCROW, ETC. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT OUR CUSTOMERS OR FORMER CUSTOMERS TO ANYONE, EXCEPT AS PERMITTED BY LAW. WE RESTRICT ACCESS TO NONPUBLIC PERSONAL INFORMATION ABOUT YOU TO THOSE EMPLOYEES WHO NEED TO KNOW THAT INFORMATION IN ORDER TO PROVIDE PRODUCTS OR SERVICES TO YOU. WE MAINTAIN PHYSICAL, ELECTRONIC AND PROCEDURAL SAFEGUARDS THAT COMPLY WITH FEDERAL REGULATIONS MATT N. BLI O TO GUA RD YOUR NONPUBLIC PERSONAL INFORMATION. i NOTE NO. 2: SENATE BILL 2319 EFFECTIVE JANUARY 1, 1991, REQUIRES THAT UNLESS WAIVED BY THE CALIFORNIA FRANCHISE TAX BOARD, A BUYER MUST WITHHOLD FROM ANY SELLER WHO IS NOT A CALIFORNIA RESIDENT, A SUM EQUAL TO 3 1/3% OF THE SALES III PRICE OF THE PROPERTY CONVEYED. NOTE NO. 3: THE INFORMATION ON THE ATTACHED PLAT IS PROVIDED FOR YOUR CONVENIENCE AS A GUIDE TO THE GENERAL LOCATION OF THE SUBJECT PROPERTY. THE ACCURACY OF THIS PLAT IS NOT GUARANTEED, NOR IS IT A PART OF ANY POLICY, REPORT OR GUARANTEE TO WHICH IT MAY BE ATTACHED. i NOTE NO. 4: CALIFORNIA INSURANCE CODE SECTION 12413.1 REGULATES THE DISBURSEMENT OF ESCROW AND SUB-ESCROW FUNDS BY TITLE COMPANIES. THE LAW REQUIRES THAT FUNDS BE DEPOSITED IN THE TITLE COMPANY ESCROW ACCOUNT AND AVAILABLE FOR WITHDRAWAL PRIOR TO DISBURSEMENT. FUNDS DEPOSITED WITH THE COMPANY BY WIRE TRANSFER MAY BE DISBURSED UPON RECEIPT. FUNDS DEPOSITED WITH THE COMPANY VIA CASHIER'S CHECK OR TELLER'S CHECK DRAWN ON A CALIFORNIA BASED BANK MAY BE DISBURSED ON THE NEXT BUSINESS DAY AFTER THE DAY OF DEPOSIT. IF FUNDS ARE DEPOSITED WITH THE COMPANY BY OTHER METHODS, RECORDING AND/OR DISBURSEMENT MAY BE DELAYED. ALL ESCROW AND SUB-ESCROW FUNDS RECEIVED BY THE COMPANY WILL BE DEPOSITED WITH OTHER ESCROW FUNDS IN ONE OR MORE NON- INTEREST BEARING ESCROW ACCOUNTS OF THE COMPANY IN A FINANCIAL INSTITUTION SELECTED BY THE COMPANY. THE COMPANY MAY RECEIVE CERTAIN DIRECT OR INDIRECT BENEFITS FROM THE FINANCIAL INSTITUTION BY REASON OF THE DEPOSIT OF SUCH FUNDS OR THE MAINTENANCE OF SUCH ACCOUNTS WITH SUCH FINANCIAL INSTITUTION, AND THE COMPANY SHALL HAVE NO OBLIGATION TO ACCOUNT TO THE DEPOSITING PARTY IN ANY MANNER FOR THE VALUE OF, OR TO PAY TO SUCH PARTY, ANY BENEFIT RECEIVED BY THE COMPANY. THOSE BENEFITS MAY INCLUDE, WITHOUT LIMITATION, CREDITS ALLOWED BY SUCH FINANCIAL INSTITUTION ON LOANS TO THE COMPANY OR ITS PARENT COMPANY AND EARNINGS ON INVESTMENTS MADE WITH THE PROCEEDS OF SUCH LOANS, ACCOUNTING, REPORTING AND OTHER SERVICES AND PRODUCTS OF SUCH FINANCIAL INSTITUTION. SUCH BENEFITS SHALL BE DEEMED ADDITIONAL COMPENSATION OF THE COMP ANY FOR ITS SERVICES IN CONNECTION WITH THE ESCROW OR SUB-ESCROW. NOTE NO. 5: THE CHARGES WHICH THE COMPANY WILL MAKE FOR NEXT DAY MESSENGER SERVICES (I.E. FEDERAL EXPRESS, UPS, DHL, AIRBORNE, EXPRESS MAIL, ETC.) ARE $15.00 PER LETTER, STANDARD OVERNIGHT SERVICE, AND $25.00 FOR LARGER SIZE PACKAGES AND/OR PRIORITY DELIVERY SERVICES. SUCH CHARGES INCLUDE THE COST OF SUCH MESSENGER SERVICE AND THE COMPANY'S EXPENSES FOR ARRANGING SUCH MESSENGER SERVICE AND ITS OVERHEAD AND PROFIT. SPECIAL MESSENGER SERVICES WILL BE BILLED AT THE COST OF SUCH SERVICES. THERE WILL BE NO ADDITIONAL CHARGE FOR PICK-UP OR DELIVERY OF PACKAGES VIA THE COMPANY'S REGULARLY SCHEDULED MESSENGER RUNS. Form 2210-11 (6/2/98) Page 6 File No: 64240715 NOTE NO. 6: SECTION 12413.1 OF THE CALIFORNIA INSURANCE CODE, EFFECTIVE JANUARY 1, 1990, REQUIRES THAT ANY TITLE INSURANCE COMPANY, UNDERWRITING TITLE COMPANY OR CONTROLLED ESCROW COMPANY HANDLING FUNDS IN AN ESCROW OR SUB- ESCROW CAPACITY, WAIT A SPECIFIED NUMBER OF DAYS BEFORE DEPOSITING FUNDS, BEFORE RECORDING ANY DOCUMENTS IN CONNECTION WITH THE TRANSACTION OR DISBURSING FUNDS. THIS STATUTE ALLOWS FOR FUNDS DEPOSITED BY WIRE TRANSFER TO BE DISBURSED THE SAME DAY AS DEPOSIT. IN THE CASE OF CASHIER'S CHECKS OR CERTIFIED CHECKS, FUNDS MAY BE DISBURSED THE NEXT DAY AFTER DEPOSIT. IN ORDER TO AVOID UNNECESSARY DELAYS OF THREE TO SEVEN DAYS, OR MORE, PLEASE USE WIRE TRANSFER, CASHIER'S CHECKS OR CERTIFIED CHECKS WHENEVER POSSIBLE. IF YOU HAVE ANY QUESTIONS ABOUT THE EFFECT OF THIS LAW, PLEASE CONTACT YOUR COMMONWEALTH LAND TITLE COMPANY OFFICE FOR MORE DETAILS. WIRE TRANSFER INSTRUCTIONS WIRE TO: BANK OF AMERICA CA9-703-16-20 333 SOUTH BEAUDRY AVENUE, 16TH FLOOR LOS ANGELES, CA 90017-1466 ABA ROUTING NO.: 121000358 FOR CREDIT TO: COMMONWEALTH LAND TITLE COMPANY ACCOUNT NUMBER: 1235520752 NOTE NO. 7: THERE ARE NO CONVEYANCES AFFECTING SAID LAND RECORDED WITHIN TWO (2) YEARS OF THE DATE OF THIS REPORT. NOTE NO. 8: THE CHARGE FOR A POLICY OF TITLE INSURANCE WHEN ISSUED THROUGH THIS TITLE ORDER, WILL BE BASED ON THE SHORT-TERM RATE. NOTE NO. 9: TITLE SEARCH DISCLOSED NO OPEN DEEDS OF TRUST. PLEASE CONFIRM PRIOR TO CLOSE OF ESCROW. Page 7 Exhibit B(Rev.2l4/02) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-1"0 EXCLUSIONS FROM COVERAGE The following matters arc expressly excluded from the coverage of this policy and the Company will not pay loss or damage,costs,attorneys'fees or expenses which arise by reason of 1. (a) Any law,ordinance or governmental regulation(including but not limited to building or zoning taws,ordinances,or regulations)restricting,regulating,prohibiting or relating to()the occupancy,use or enjoyment of the land:(ii)the character,dimensions or location of any improvement now or hereafter erected on the land(iii)a separation in ownership or a change in the dimensions or area of the '.... land or any parcel of which the land is or was a part;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulaliom,except to the extent that a notice of the enforcement thereof or a notice of a defect,lien,or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the exercise thereof or notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Due of Policy. 2 Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Policy which would be bring on the rights of a purchaser for vale without knowledge. 3 Defects,liens,encumbrances,adverse claimer or other matters: (a) whether or net recorded in the public records at Date of Policy,but created,suffered,assumed or agreed to by the insured claimant: (b) not known to the Company,not recorded in the public records at Date of Policy,but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) Resulting in an toss or damage to the insured claimant; (d) Attaching or mated subsequent to Date of Policy;or (e) Resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. 4 Unenforcability of the lien of the insured mortgage because of the inability or failure of the insured at Date of policy,or the inability or failue of any subsequent owner of the indebtedness to comply with the applicable doing business laws of the state in which the land is situated. 5 Invalidity or unenforceability of the lien of the insured mortgage,or claim thereof,which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6 Any claim,which arias out of the transaction vesting in the insured the estate or interest insured by this policy or the transaction crating the interest of the insured lender,by reason of the operation of federal bankruptcy,state insolvency or similar creditors'rights laws. EXCEPTIONS FROM COVERAGE—SCHEDULE B,PART I This policy does not insure against loss or damage(and the Company will not pay costs,a wmeys'fees or expenses)which arise by reason of 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of suuch agency or by the public words. 2. Any facts,rights,interests,or claims which are not shown by the public records but which could be ascertained by an inspection of the land which may be asserted by persons in possession thereof. 3. Easements,liens or encumbrances,or claims thereof,which are not shown by the public records. 4. Discrepancies,conflicts in boundary lines,shortage in are,encroachments,or any other facts which a correct survey would disclose,and which are not shown by the public records. 5. (a)Umpatemed mining claims;(b) reservations or exceptions in patents or in Acts authorizing the issuance thereof;(c) water rights,claims or title to water,whether or of the matters excepted under(a), (b)or(c)arc shown by the public records. CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE(612/98) ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE(10/17/98) EXCLUSIONS In addition to the Exceptions in Schedule B,You arc not insured against loss,costs,attorneys'fees,and expenses resulting from I. Governmental police power,and the existence or violation of any law or government regulation. This includes ordinances,laws and regulations concerning: A. building b. zoning C. land use d. improvements on the Land e. land division C environmental protection This Exclusion does not apply to violations or the enforcement of chase matters if notice of the violation or enforcement appears in the Public Records at the Policy Date. This Exclusion does not limit the coverage described in Covered Risk 14,15,16,17 or 24. 2 The failure of Your existing structures,or any part of them,to be constructed in accordance with applicable building codes.This Exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at the Policy Date. 3 The right to take the Land by condemning it,unless: A. a notice of exercising the right appears in the Public Records at the Policy Datr,or b. the taking happened before the Policy date and is binding on You if You bought the Land without knowing of the taking. 4 Risks: A. that are crated,allowed,or agreed to by You,whether or not they appear in the Public Records; b. that are known to You at the Policy Date,but not to Us,unless they appear in the Public Records at the Policy Date; C. that result in no toss to You;or d. that fast occur after the Policy Date-this does not limit the coverage described in Covered Risk 7,8d,22,23,24 or 25. 5 Failure to pay value for Your Title. 6 Lack of a right; a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A;and b. in streets,alleys,or waterways that ouch the land. This Exclusion does not limit the coverage described in Covered Risk 1 I or 18. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY(6-1-87) EXCLUSIONS In addition to the Exceptions in Schedule B,you are not insured against loss,costs,attomeys'fees,and expenses resulting from: I Governmental police power,and the existence or violation of any law or government regulation.This inchdcs building and zoning ordinances and also laws and regulations concerning: • Land use • Improverrents on the land • Land division Environmental protection This exclusion does of apply to violations or the enforcement of these matters which appear in the public records at Policy Date. This exclusion does not limit the zoning coverage described in items 12 and 13 of Covered Tile Risks. condemning it unless•2 The right o take the land , u$ by • A notice of exercising the right appears in the public records on the Policy Date • The taking happened prior to the Policy Date and is binding on you if you bought the lard without knowing of the taking 3 Title Risks: • That are created,allowed,or agreed to by you • That are known to you,but rot to us,on the Policy Date-unless they appeared in the Public Records • That result in no loss to you That first affect your title after the Policy Date-this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks 4 Failure to pay value for your title. 5 Lack of a right: • To any land outside the area specifically described and referred to in Item 3 of Schedule A OR • In streets,alleys,or waterways that touch your land This exclusion does not limit the access coverage in Item 5 of Covered Title Risks AMERICAN LAND TITLE ASSOCIATION LOAN POLICY(10-17-92) WITH ALTA ENDORSEMENT-FORM 1 COVERAGE and AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY(10-17-92) WITH ALTA ENDORSEMENT-FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE The following matters,arc expressly excluded from the coverage of this policy and the Company will not pay loss or damage,costs,storey's fees or expenses which arise by reason of 1. (a) Any law,ordinance or governmental regulation(including but not limited to building and zoning laws,ordinances,or regulations)restricting,regulating,prohibiting or relating to(i)the occupancy, use or enjoyment of the land;(hi)the character,dimensions or location of any improvement now or hercafler erected on the land;(iii)a separation in ownership or a change in the dimensions or area of the a land or any parcel of which the land is or was a part;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,except to the extent that a notice of the enforcement thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation effacing the lard has been recorded in the public records at Due of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Due of Policy,but not excluding from coverage any taking which has occurred prior to Due of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects,liens,emumbrances,adverse claims or other matters: (a) created,suffered,assumed or agreed to by the insured claimant; (b) not known to the Company,not recorded in ate public records at Date of Policy,but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant beaux an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy(except to Ax extent that this policy insures the priority of the Ilan of the inured mortgage over any statutory lien for services,labor or material or to the extent insurance is afforded herein as to assessments for street improvements under construction or completed at Date of Policy);or (c) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. 4. Unenforcesbility of the lien of the instated mortgage because of the inability or failure of the insured at Date of Policy,or the inability or failure of any subsequent owner of the indebtedness,to comply with applicable doing business laws of the state in which the land is situated. 5. Invalidity or unxnforcabilhy of the lien of the insured mortgage,or claim thereof,which arises out of the transaction evidenoed by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any statutory lien for services,labor or materials(or the claim of priority of any statutory lien for services,labor or materials over the lien of the insured mortgage)arising from an improvement or work which at Date of Policy the insured has advanced or is obligated to advance. 7. Any claim which arises out of the transaction creating the interest of the mortgagee insured by this Policy,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws, that is based on: (h) the transaction creating the interest of tlx insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer,or (ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination;or (iii) the transaction crating the interest of the insured mortgagee being deemed a pre (a) to timely record the instrument of transfer;or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. The above policy forms may be issued to afford either Standard Coverage or Extended Coverage. to addition to the above Exclusions from Coverage,the Exceptions from Coverage in a Standard Coverage i policy will also include the following General Exceptions: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage(and the Company will not pay costs,attorneys'fees or expenses)which arise by reason of 1. Taxes or assessments which arc not shown as existing liens by the records of any lacing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which nay result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of such agency or by the pubic records. 2. Any facts,rights,interests or claim which arc not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof 3. Easements,liens or encumbrances,or claims thereof,which are not shown by the public records. 4. Discrepancies,conflicts in boundary pines,shortage in area,encroachments,or any otter facts which a correct survey would disclose,and which arc not shown by the public records. 5. (a)Unpatented mining claims;(b)reservations or exceptions in patents or in Acts authorizing the issuance thereof;(c)water rights,claims or title to water,whether or not the matters excepted under(a),(b) or(c)are shown by the public records. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY(10-17-92) And AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY(10-17-92) EXCLUSIONS FROM COVERAGE The following matters arc expressly excluded from the coverage of this policy and the Company will not pay loss or damage,costs,attorneys'fees or expenses which arise by reason of: 1, (a) Any law,ordinance or governmental regulation(including but not limited to building and zoning laws,ordinaces,or regulations)restricting,regulating,prohibiting or relating to()the occupancy, use or enjoyment of the land;(hi)the character,dimensions or location of any improvement now or hereafter erected on the land;(iii)a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part;or(iv)environmental protection,or the effect of any violation of theme laws,ordinances or governmental regulations,except to the extent that a notice of the enforcensenl thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violating affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental policy power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects,liens,encumbrances,adverse claims or other matters: (a) created,suffered,assume or agreed to by the insured claimant' (b) not known to the Company,not recorded in the public records at Date of Policy,but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy;or (c) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim,which arises out of the transaction vesting in the insured the estate or interest insured by the policy,by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that is based on: (i) the transaction creating the estate or interest insured by this policy being deenxd a f sudulent conveyance or fraudulent transfer;or (ii) the transaction crating the estate or interest insured by the policy being deemed a preferential transfer except where the preferential transfer results from the failure: i (a) to timely record the instrument of transfer;or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. The above policy forms may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage,the Exceptions from Coverage in a Standard Coverage Policy will also include the following General Exceptions. EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage(and the Company will not pay costs,storeys'fees or expenses)which arise by reason of: 1. Taxes or assessments which we not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of such agency or by the pubic records. 2. Any facts,rights,interests or claim which are not shown by tlx public records but which could be ascertained by an iospeetlon of the Tani or by making inquiry ofpwamns in possession thereof. 3. Easements,liens or encumbrances,or claims thereof,which see not dawn by the public records. 4. Discrepancies,conflicts in boundary lines,shortage in ara,encroachments,or any other facts which a correct survey would disclose,and which are not shown by the public records. 5. (a)Unpatemcd mining claims;(b)reservations or exceptions in patents or in Acts authorizing the issuance thereof;(c)water rights,claims or title to water,whey or not the matters excepted under(a),(b) or(e)arc shown by the public records 1 ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY(10/13/01) EXCLUSIONS FROM COVERAGE The following matters arc expressly excluded from the coverage of this policy and the Company will not pay loss or damage,cost&attorneys fees or expenses which arise by reason of 1. (a) Any law,ordinance or governmental regulation(including but not limited to building and zoning laws,ordinances,or regulations)restricting,regulating,prohibiting or relating to(i)the occupancy, use,or enjoyment of the Land;(ii)the character,dimensions or location of any improvement now or hereafter erected on the Land;(ii)a separation in ownership or a change in the dirnorglons or areas of the Land or any parcel of which the Land is or was a part;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,except to the extent that a notice of the enforcement thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 12,13,14,and 16 of this policy. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,hen or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 12,13,14,and 16 of this Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the Public Records at Date of Policy,but not excluding from coverage any taking which has occurred prior to Date of Policy which would be bring on the rights of a purchaser for value without Knowledge. 3. Defects,liens,encumbrances,adverse claims or other matters; (a) created,suffered,assumed or agreed to by the Insured Claimant; ''�... (b) not Known to the Company,not recorded in the Public Records at Date of Policy,but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting In no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy(this paragraph does not limit the coverage provided under Covered Risks 8,16,18,19,20,21,22,23,24,25 and 26);or (e) resulting in loss or damage which would not have been so stained if the insured Claimant had paid value for the Insured Mortgage. 4. Unenforceabilhy of the lien of the Insured Mortgage because of the inability or failure of the Insured at Date of Policy,or the inability or failure of any subsequent owner of the indebtedness,to '..� comply with applicable doing business laws of the state in which the Lard is situated. ',.. 5. Invalidity or unenforcability of the lien of the Insured Mortgage,or claim themoC which arises out of the transaction evidenced by the insured Mortgage and is based upon usury,except as provided in Covered Risk 27,or any consumer credit protection or truth in lending law. 6. Real property taxes or assessments of any governments[authority which become alien on the Land subsequent to Date of Policy. This exclusion does not limit the coverage provided under covered Risks 7,8(e)and 26. �'.. 7. Any claim of invalidity,unenforcability or lack of priority of the lien of the Insured Mortgage as to advances or modifications nude after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest coveted by this policy. This exclusion does not limit the coverage provided in Covered Risk 8. 8. Lack of priority of the lien of the Insured Mortgage as to each and every advance made after Date of policy,and all interest charged therson,over liens,encumbrances and other matters affecting the tick,the existence of which are Known to the Insured at: (a) The time of the advance;or (b) The time a modification is nude to the terns of the Insured Mortgage which changes the rate of interest charged,if the rate of Interest is grater as*result of the modification thank would have been before the modification.This exclusion does not limit the coverage provided in Covered Risk 8. 9. The failure of tee residential structure,or any portion thereof to have been constructed before,on or after Date of Policy in accordance with applicable building coda.This exclusion does not apply to violations ofbuilding coda itnotke of the violation appears in the Public Records at Date of Policy.