HomeMy Public PortalAbout19951220 - Resolution - Board of Directors (BOD) (5) Cover Sheet for Scanning by ECS
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Document No. 95-48
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RESOLUTION 95-48
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF PURCHASE
AGREEMENT, AUTHORIZING 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 SHANNON)
The Board of Directors of the Midpeninsula Regional Open Space District does
resolve as follows:
S=fign One. The Board of Directors of the Midpeninsula Regional Open Space
District does hereby accept the offer contained in that certain Purchase Agreement between
Frances Joan Shannon and the Midpeninsula Regional Open Space District, a copy of which
is attached hereto and by reference made a part hereof, and authorizes the President or
appropriate officers to execute the Agreement on behalf of the District.
Section Two. The 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 further is authorized to
execute any and all other documents in escrow necessary or appropriate to the closing of the
transaction.
Section Four. The General Manager of the District is authorized to expend up to
$5,000 to cover the cost of title insurance, escrow fees, site clean-up, 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$108,340
from the proceeds of the next long term District note issue. This Section of this Resolution
is adopted by the Board of Directors of the 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
District's budgetary and financial circumstances. There are no funds or sources of moneys
Resolution 95-48 Page 2
of the Digit that have been, or reasonably are expected to be reserved or allocated on a
long-term basis, or otherwise set aside to pay the costs of this open space land acquisition
project which are to be paid or reimbursed out of proceeds of indebtedness to be issued by
District. The Board of Directors hereby declares District's official .intent to use proceeds of
indebtedness to reimburse itself for this open space land acquisition project expenditure.
RESOLUTION NO. 95-48
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open
Space District on December 20 19 95 at a regular meeting thereof, by
the following vote:
AYES: Peter Siemens, Mary Davey, Nonette Hanko, Betsy Crowder, and Wim
de Wit
NOES: None
ABSTAIN: None
ABSENT: Ernestine Henshaw and David Smernoff
ATTEST: APPR VED:
Secretary, Board pf Directors President, Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify
that the above is a true and correct copy of a resolution duly adopted by the Board
of Directors of the Midpeninsula Regional Open Space District by the above vote at
a meeting thereof duly held and called on the above day.
U41 ?
Distri Clerk
PURCHASE AGREEMENT
This Agreement is made and entered into by and between FRANCES JOAN
SHANNON, Trustee of the Frances J. Shannon Revocable Living Trust dated May
11 , 1994, 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 eight and thirty four one hundredths
(108.34) acres, more or less, and commonly referred to as Santa Clara County
Assessor's Parcel Numbers 562-22-001 and 562-22-004. Said property
being further described in the Legal Description attached to Preliminary
Title Report number 610006 from American Title Insurance Company, a copy
of said preliminary title report attached hereto as Exhibit "A", and
Purchase Agreement - Shannon Page 2
incorporated herein by this reference. Said property 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 hereinafter called the "Subject Property" or the "Property".
2. Purchase Price. The total purchase price ("Purchase Price") for
the Property shall be One Hundred Eight Thousand Three Hundred Forty and
No/100 Dollars ($108,340.00), which shall be paid in cash at the "Closing" as
defined in Section 3 hereof.
3. Escrow. Promptly upon execution of this Agreement, in
accordance with Section 11 herein, an escrow shall be opened at American
Title Insurance Company, 431 North Santa Cruz Avenue, Los Gatos, CA 95030,
phone number (408) 399-7733 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 January 12, 1996, but in no event earlier than January 2,
1996; 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
Purchase Agreement - Shannon Page 3
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 One Hundred Eight Thousand Three Hundred Forty and No/100
Dollars ($108,340.00).
(e) Seller shall pay for 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 American Title Insurance 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 $108,340.00 for
the Property showing title to the Property vested in fee simple in District,
subject only to: (i) current real property taxes, (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, 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
Purchase Agreement - Shannon Page 4
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 pd aga. Seller understands and agrees that the provisions of
this paragraph shall survive the close of escrow and recordation of any Grant
Deed(s).
6. Seller's Representations and Warranties. For the purpose of
consummating the sale and purchase of the Property in accordance herewith,
Seller makes the following representations and warranties to District, which
shall survive close of escrow, each of which is material and is being relied
upon by District.
6.01 Authority, Seller has the full right, power and authority
to enter into this Agreement and to perform the transactions contemplated
hereunder.
6.02 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
Purchase Agreement - Shannon Page 5
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.
6.03 Good JilLe. 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.
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
Purchase Agreement - Shannon Page 6
close of escrow, each of which is material and is being relied upon by
District:
(i) The Property does not contain any Hazardous Waste
or underground storage tanks;
(ii) Seller and the Property are in compliance with all
applicable federal, state and local laws, statutes, ordinances, orders,
guidelines, rules and regulations pertaining to Hazardous Waste or
underground storage tanks;
(iii) At the time Seller acquired the Property, Seller
did not know and had no reason to know that any Hazardous Waste was
present, used, manufactured, handled, generated, stored, treated, discharged,
buried or disposed of on, under or about the Property, or had been transported
to or from the Property;
(iv) Seller has not undertaken, permitted, authorized or
suffered, and will not undertake, permit, authorize or suffer the presence,
use, manufacture, handling, generation, storage, treatment, discharge,
release, burial or disposal on, under or about the Property of any Hazardous
Waste, or the transportation to or from the Property, of any Hazardous
Waste;
(v) There is no pending or, to Seller's best knowledge,
threatened litigation or proceedings before any administrative agency in
which any person or entity alleges the presence, release, threat of release,
placement on, under or about the Property, or the use, manufacture, handling,
generation, storage, treatment, discharge, burial or disposal on, under or
about the Property, or the transportation to or from the Property, of any
Hazardous Waste;
(vi) Seller has not received any notice and has no
knowledge or reason to know that any governmental authority or any
employee or agent thereof has determined, or threatens to determine, that
there is a presence, release, threat of release, placement on, under or about
the Property, or the use, manufacture, handling, generation, storage,
treatment, discharge, burial or disposal on, under or about the Property, or
the transportation to or from the Property, of any Hazardous Waste;
(vii) There have been no communications or agreements
Purchase Agreement - Shannon Page 7
with any governmental authority or agency (federal, state or local) or any
private entity, including, but not limited to, any prior owners of the
Property, relating in any way to the presence, release, threat of release,
placement on, under or about the Property, or the use, manufacture, handling,
generation, storage, treatment, discharge, burial or disposal on, under or
about the Property, or the transportation to or from the Property, of any
Hazardous Waste.
(c) Indemnity. Seller shall indemnify, defend and hold
harmless District from and against any legal or administrative proceedings
brought against District, and all claims, liabilities losses, damages, and
costs, foreseen and unforeseen, including without limitation, attorney,
engineering and other professional or expert fees, directly or indirectly
arising from any breach of the warranties or representations contained
herein, or arising from related to or connected with the existence of any
hazardous substances of any kind on or in the property, except when any
hazardous substance contamination was caused solely by District. Seller
shall be solely and completely responsible for responding to and complying
with any administrative notice, order, request, or demand, or any third party
claim or demand relating to potential or actual hazardous substance
contamination on or in the Property, including any and all costs of
remediation and cleanup, except when such contamination was caused solely
by District. In addition to any remedies provided in this subsection, in the
event Hazardous Waste is found to exist on the property, District may
exercise its right to bring an action against Seller to recover any cleanup,
repair or remediation costs from Seller and/or any other person or persons
determined to have responsibility for the presence of Hazardous Waste on the
Property.
9. Waiver of Statutory Compensation. Seller and District understand
and agree that Seller may be entitled to receive 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
10017, Title IV of the Surface Transportation and Uniform Relocation
Assistance Act of 1987 (101 Statutes, 246-256), and California Government
Code Section 7267, and following. Seller hereby waives any and all existing
and/or future rights seller may have to the fair market value of said
Property, appraisals, etc., as provided for by said Federal Law and any
corresponding California Government Code Sections.
Purchase Agreement - Shannon Page 8
10. Miscellaneous Provisions.
10.01 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.
10.02 Attorneys' Fees. If either party hereto incurs any
expense, including reasonable attorneys' fees, in connection with any action
or proceeding 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 or proceeding 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.
10.03 Amendment and Waiver. The parties hereto may by
mutual written agreement amend this Agreement in any respect. Any party
hereto may: (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. Any agreement on the
part of any party for any such amendment, extension or waiver must be in
writing.
10.04 Rights CU[pulative. 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.
10.05 Notigps. Whenever any party hereto desires or is
required to give any notice, demand, or request with respect to this
Purchase Agreement - Shannon Page 9
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: Frances Joan Shannon, Trustee by Shaunee
H. Power, her attorney in fact
c/o Joe Beatty Real Estate-(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
(415) 691 -1200
FAX: (415) 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
III 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.
10.06 qgyerabilu. If any of the provisions of this
Agreement are held to be void or unenforceable by or as a result of a
Purchase Agreement - Shannon Page 10
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.
10.07 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.
10.08 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.
10-09 Entire Agreerngnt. 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.
10.10 Time of Essence. Time is of the essence of each
provision of this Agreement in which time is an element.
10.11 Survival QJ 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.
10.12 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.
Purchase Agreement - Shannon Page 11
10.13 Further Documentsn 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.
10.14 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.
10.15 Bra Commission. District shall not be responsible
for any real estate commission or other related costs or fees in this
transaction. Seller agrees rees to and does hereb
y 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.
10.16 Captii.Q.O5. 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.
10.17 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.
11 . AcceptanCe. Provided that this Agreement is exec
uted by Seller
and delivered to District on or before October 18, 1995, District shall have
until midnight December 20, 1995 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.
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.
Purchase Agreement - Shannon Page 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers to be effective as of the date of final
execution by District in accordance with the terms hereof.
DISTRICT: SELLER:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
Frances Joan Shannon, Trustee
APPROVED AS TO FORM:
Shaunee H. Power,
Sue Schectman, District Counsel her attorney-in-fact
RECOMMENDED FOR APPROVAL:
Date: �
L. Craig Britton, General Manager
AP , VED . ND ACCEPTED:
i
reside' t, Board of Directors
ATTEST:
District Clerk
Date:
I _