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Document Date: 2/14/2007
Document Type: Resolution
Preserve Name:
Keywords(no more than 4): BDS Capital Purchase
Project Name:
Project Number:
Vendor or Other Party:
Name (First):
Name(Last):
Address:
APN Number:
Document No. 07-05
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RESOLUTION NO. 07- 05
PASSED AND ADOPTED b the Board of Directors of the Mid peninsula Regional Open Space
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District on February 14, 2007 at a Special and Regular Meeting thereof, by the following
vote:
AYES: J. M. Dave N. Hanko L. Hasset�', y, , t, K. Nitz, C. Riffle, P. Siemens
NOES: None
ABSTAIN: None
None
ABSENT:
ATTEST:
APPROVED:
I'V 1G1h� I
cretar P sident
Se y
Board of Directors
oard of Directors
I the District Clerk of the Mid peninsula 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.
District C
RESOLUTION NO. 07-05
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF PURCHASE
AGREEMENT,AUTHORIZING 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 BDS CAPITAL,INC.)
The Board of Directors of the Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of the Midpeninsula Regional Open Space District does hereby
accept the offer contained in that certain Purchase Agreement between BDS Capital, Inc., a California
Corporation 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 or 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 or the General Manager's designee shall cause to be
given appropriate notice of acceptance to the seller and to extend escrow if necessary. 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 $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$1,250,000 from the proceeds of the next long-term District note
issue. This Section of this Resolution is adopted by the Board of Directors of 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
the District's budgetary and financial circumstances. There are no funds or sources of moneys of the
District that have been,or are reasonably expected to be, reserved or allocated on a long-term basis, or
otherwise set aside to pay the costs of this open space land acquisition project that are to be paid or
reimbursed out of proceeds of indebtedness to be issued by the District. The Board of Directors hereby
declares the District's official intent to use proceeds of indebtedness to reimburse itself for this open
space land acquisition project expenditure.
Purchase Agreement Page I
PI.J.IZCI IASF AGREEMENT
This Purchase Agreement (-Agreenient-) is made and entered into by and between BDS
Capital, Inc., a California Corporation ("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 ("District"). Each of Seller and District is referred to
herein as a "Party"; collectively, they are referred to herein as the "Parties."
RECITALS
WHEREAS, Seller is the owner of certain real property comprising open space and
recreational value, located within an unincorporated area of the County of Santa Clara, and 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
Wl IERFAS, 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 agree as follows:
I. 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 fifty four acres (54 acres), more or
less, and commonly referred to as Santa Clara County Assessor's Parcel Number 575-07-008.
Said property is further described in the Legal Description attached to Preliminary Report
Number 0616002736 from Old Republic Title Company (the "Preliminary Report"). A copy of
the Preliminary Report is attached hereto as Exhibit "A" and incorporated herein by this reference
("Exhibit A"). Said property, together with any easements, rights of way, or rights of use that
may be appurtenant or attributable to the aforesaid lands, and any and all improvements attached
or affixed thereto, are referred to collectively herein as the "Subject Property" or the "Property."
2. Purchase Price. The total purchase price for the Property shall be One Million
Two Hundred Fifty Thousand and No/]00 Dollars ($1,250,000.00) (the "Purchase Price"), which
sum, less the Deposit set forth in Section I I hereof, shall be paid in cash at the "Closing" as said
term is defined in Section 3 hereof.
3. Escrow. Promptly upon execution of this Agreement in accordance with Section
1 I hereof, an escrow shall be opened (the "Escrow") at Old Republic Title Company, 1900The
Purchase Agreement Page 2
Alameda, San Jose, CA 95126 [(408) 557-8400] (Escrow number 0616002736) or at such other
title company as is acceptable to District and Seller (the "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. In addition, 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 such 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 February 28, 2007, provided however, that the Parties may, by written agreement, extend
the time of Closing. The term "Closing" as used herein shall be deemed to be the date on which
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, prior to the Closing, execute any and all
documents and perform any and all acts reasonably necessary or appropriate to consummate the
purchase and sale of the Property pursuant to the terms of this Agreement.
C. On or before the Closing , Seller shall deposit into Escrow an executed
and recordable grant deed for the Property ("Grant Deed"). as the Property is described in Exhibit
A.
D. On or before the Closing, District shall deposit the following into Escrow:
(i) The required Certificate of Acceptance for the Grant Deed, duly
executed by District and dated as of the Closing,
(ii) District's check or wire payable to Escrow Holder in the amount of
One Million Two Hundred Forty Thousand and No/]00 Dollars ($1,240,000.00), which sum
equals the balance of the Purchase Price after deduction of the sum of Ten Thousand and No/100
Dollars ($10,000.00) paid into escrow in accordance with Section 11 hereof.
E. Seller shall pay the escrow fees, the CLTA Standard Policy of Title
Insurance if the same is 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 between District and Seller, through Escrow, as of the Closing,
based upon the latest available tax information using the customary escrow procedures.
F. Seller shall cause Old Republic Title Company, or other title company
acceptable to District and Seller, to prepare and commit to deliver to District a CLTA Standard
Policy of'Title Insurance, dated as of the Closing, insuring District's interest in the Property in
the amount of One Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00),
showing title to the Property vested in fee simple in District, subject only to: (i) current real
r r
Purchase Agreement Page 3
property taxes, (ii) title exceptions 4, 5, 6, 7, 8 and 9 listed in the Preliminary Report (Exhibit A),
and (iii) any 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. At such time as all required funds and instruments have been deposited
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into the Escrow as required hereunder and when all other conditions to Closing have been
fulfilled, Escrow Holder shall 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
[folder 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 Purchase Price (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 that are to be delivered to them as required hereunder. If the Closing
does not occur, except as otherwise directed in writing by either Party to Escrow Holder, Escrow
Holder shall return, to the Party depositing the same, all monies, documents or other things of
value deposited in the Escrow.
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4. Rights and Liabilities of the Parties in the Event of Terrnination. In the event this ,
Agreement is terminated and the Escrow is canceled for any reason, the Parties shall be excused
from any further obligations hereunder except as otherwise provided herein. Upon any such
termination of Escrow, the Parties shall (subject to rights of subrogation against the Party whose
fault may have caused such cancellation of Escrow) be jointly and severally liable to Escrow
Holder for payment of its title and Escrow cancellation charges, if any, and each Party expressly
reserves any other rights and remedies it may have against the other Party by reason of a
wrongful termination or failure to close Escrow.
5. 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 representations and warranties shall survive
close of escrow and each of which is material to and 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, and are enforceable in accordance with their respective
terms and do not violate any provisions of any agreement to which Seller is a party or by which
Seller may be bound or any articles, bylaws or corporate resolutions of Seller.
C. Leases or Occupancy of Premises. There exist no oral or written leases,
licenses, 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 an such lease, license, or rental agreement of the Property being acquired b District,
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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 Page 4
provisions of this Section 5.C. shall survive the close of escrow and the recordation of the Grant
Deed.
D. Good Title. Seller has and, at the Closing, 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 Section 3.F.
hereof, and Seller shall forever indemnify and defend District from and against any claims made
by any third party that are based upon any inaccuracy in the foregoing representations.
6. 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 Closing, cause or allow any physical changes to the Property. Such prohibited changes
include but are not 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.
7. As-Is Purchase and Sale. The sale contemplated by this Agreement is made
without representation or warranty by Seller except as expressly set forth in this Agreement.
District represents, warrants, acknowledges and agrees that it has had full and ample opportunity
prior to the execution of this Agreement to investigate the Property including, but not limited to,
the physical condition thereof and the presence, absence or condition of improvements thereon.
District shall purchase the Property AS-IS WITH ALL FAULTS.
8. Hazardous Waste.
A. Definitions.
(i) 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.
(ii) 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 elseq.)
B. Representations and Warranties. For the purpose of consurmnating the
sale and purchase of the Property, Seller makes the following representations and warranties to
District, which representations and warranties shall survive the Closing and each of which is
material to and 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
Purchase Agreement Page 5
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
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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, as provided for by the Federal Uniform Relocation Assistance and
Real Property Acquisition Act of 1970 (Public Law 91-646), the Uniform Relocation Act
Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. § 4601 et seg.), and the
California Relocation Assistance Act, Government Code Section 7260 et sett. Seller hereby
waives any and all existing and/or future claims or rights Seller may have to any relocation
assistance, benefits, procedures, or policies as provided in said laws or regulations adopted
thereunder and to any other compensation except to the extent, if any, provided for in this
Agreement. Seller has been advised of the extent and availability of such benefits, procedures,
notice periods, and assistance (including the fair market value of the Property) as provided for by
said Federal Law and any similar California Law, and hereby freely and knowingly waives such
claims, rights and notice periods except to the extent, if any, set forth in this Agreement.
10. Miscellaneous Provisions.
A. Access for Investigations. From the date Seller delivers an executed copy
of this Purchase Agreement to District until the Closing, District and District's agents, lenders,
contractors, engineers, consultants, employees, subcontractors and other representatives
(collectively, 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, conditioned or delayed and further
provided that District shall give Seller at least twenty-four(24) hours' prior notice of each
proposed entry by the District Parties. 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 the District Parties on the Property prior
to the Closing; provided, however, the foregoing indemnity shall not cover or include any claims,
Purchase Agreement Page 6
damages or liens resulting from District's discovery, pursuant to its inspections, testing or
evaluation, of any Hazardous Waste or other pre-existing adverse conditions. 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 pursuant to this Section I O.A.
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 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, 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, or arbitrator, in the case of arbitration, whether or not such
action, proceeding or arbitration goes to final judgment. In the event ofa settlement or final
judgment in which neither party is awarded all of the relief prayed for, the prevailing party as
determined by the Court, or arbitrator in the case of arbitration, shall be entitled to recover from
the other party reasonable expenses and attorneys' fees.
D. Amendment and Waiver. The Parties may by, mutual written agreement,
amend this Agreement in any respect. Either Party 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 contained in this Agreement or in any documents delivered
pursuant hereto that are made by the other Party; (iii) waive compliance by the other Party with
any of the covenants contained in this Agreement or the performance of any obligations of the
other Party; or (iv) waive the fulfillment of any condition that is precedent to the performance by
such Party of any of its obligations under this Agreement. The General Manager of District 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 close Escrow and to complete this conveyance, including
execution of any documents that 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
property other than the Subject property. Any agreement on the part of either 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 that 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 either Party 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 it'delivered by Federal Express or
other private messenger, courier or other delivery service or sent by facsimile transmission by
Purchase Agreement Page 7
telex, telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as
follows:
Seller: MichaelT. Parsons
CUPERTINO CAPITAL
15700 Winclicstcr 111\,d.
Los Gatos. CA 95030
Telephone: (408) 354-9777
FAX: (408) 354-9787
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
Telephone: (650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or
cabled notice shall promptly be sent by mail (in the manner provided above) to the addressee.
Service of any such communication made only by mail shall be deemed complete on the date of
actual delivery as indicated by the addressee's registry or certification receipt or at the expiration
of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either Party
may from time to time, by notice in writing served upon the other Party 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 I O.E.
G. Severability. If any of the provisions of this Agreement is held to be void
or unenforceable by or as a result of a determination of any court of competent jurisdiction, the
decision of which shall be binding upon the Parties, the Parties agree that such determination
shall not result in the nullity or unenforceability ofthe remaining portions of this Agreement.
The Parties further agree to replace such void or unenforceable provisions with substitutes that
will achieve, to the extent possible, the economic, business and other purposes of the void or
unenforceable provisions.
Fl. 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
Purchase Agreement Page 8
the Parties; it constitutes a complete and exclusive statement of the terms and conditions thereof,
and it supersedes any and all prior correspondence, conversations, negotiations, agreements or
understandings relating to the same subject matter.
K. Time of Essence. Time is of the essence of each provision of this
Agreement in which time is an element.
L. Survival of Covenants. All covenants of District or Seller that 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 and their respective heirs,
successors and permitted assigns.
M. Assignment. Except as expressly permitted herein, neither Party 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 Party 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.
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 that 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.
R. Pronoun References. In this Agreement, if 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, the same 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. 7he arbitration shall be conducted in accordance with the rules set forth in California
Purchase Agreement Page 9
Code of Civil Procedure Sections 1280 et. seq. including the right of discovery. Hearings shall
be held in Santa Clara County, California. If the Parties are unable to agree upon an arbitrator,
the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. in
accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all
cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP
ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDEWIN 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.
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SELLER INITIAL DISTRICT INiTIAI
H. Acceptance. Provided that this Agreement is executed by Seller and delivered to
District on or before December 21, 2006, District shall have until midnight February 14, 2007 to
accept and execute this Agreement and, during said period, this instrument shall constitute an
exclusive and irrevocable offer by Seller to sell and convey the Property to District for the
consideration and under the terms and conditions herein set forth. Regardless of whether this
Agreement is executed by District during this period, said offer remains irrevocable. As
consideration for said irrevocable offer, District hereby delivers to Seller a check in the amount
of Ten Thousand Dollars and No/100 ($10,000.00), payable to Escrow Holder, and Seller agrees
promptly to deposit such check with Escrow Holder. Said sum shall be applied to the Purchase
Price as set forth in Section 2 hereof.
Provided that this Agreement is accepted in writing by District, the transaction
contemplated hereby shall close as soon as practicable in accordance with the terms and
conditions set forth herein.
Purchase Agreement Page 10
IN WITNESS WHEREOF, the Parties 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 BDS CAPITAL, INC
SPACE DISTRICT
APPROVED A, C
i
Pr dent, Boar of Directors ILLv
z i9 e
Date Date
ATTEST: �, e
District Cler
Date: oZ / �
ACCEPTED FOR RECOMMENDATION
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
Susan M. Schectman, General Counsel
R ND R APPROVAL:
L. Craig ritto , General Manager
Signature Page for BIDS Capital Purchase Agreement
EXI4IBIT A `
1900 The Alameda
* >F OLD REPUBLIC San Jose, CA 95126
TITLE COMPANY 408 557-8400 Fax: 408 249-2314
PRELIMINARY REPORT
Issued for the sole use of: Our Order Number 0616002736-SR
CUPERTINO CAPITAL Customer Reference 0616002736
15700 WINCHESTER BLVD
LOS GATOS, CA
Attention: MIKE PARSONS When Replying Please Contact:
Sandy Rose
(408) 557-8400
Property Address:
Reynolds Road, Los Gatos, CA
[Unincorporated area of Santa Clara County]
In response to the above referenced application for a policy of title insurance, OLD REPUBLIC 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 Exclusions from the coverage and Limitations on Covered Risks of said Policy or Polices are set forth in
Exhibit A attached. Limitations on Covered Risks applicable to the Homeowner's Policy of Title Insurance which establish a Deductible
Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Exhibit A. Copies of the Policy forms should
be read.They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this
report carefully.The exceptions 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.
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.
Dated as of September 8, 2006, at 7:30 AM
OLD REPUBLIC TITLE COMPANY
For Exceptions Shown or Referred to, See Attached
Page 1 of 9 Pages
ORT 315R-A lRPv. 5/1/001
OLD REPUBLIC TTME COMPANY
ORDER NO. 0616002736-SR
The form of policy of title insurance contemplated by this report is:
A CLTA Standard Coverage Owner's Policy; AND an ALTA Loan Polity. A specific request
should be made if another form or additional coverage is desired.
The estate or interest in the land hereinafter described or referred or covered by this Report is:
Fee as to Parcel One and Easements as to Parcels Two, Three, Four, Five, Six, Seven, Eight
and Nine
Title to said estate or interest at the date hereof is vested in:
BDS Capital, Inc., a California Corporation, as agent
The land referred to in this Report is situated in the unincorporated area of the County of Santa Clara, state of California,
and is described as follows:
PARCEL ONE:
All that certain parcel of land situated in Pueblo Tract No. 3, County of Santa Clara, State of California
described as follows:
Beginning at the Southwest corner of that certain 209.00 acre tract of land conveyed by the City of San Jose
to D.H. Hahn by deed dated August 23, 1867 and recorded August 23, 1867 in Book"W"of Deeds, page 404,
Records of Santa Clara County, California, said point of beginning being also the corner to Sections 5 and 6, 31
and 32 Townships 8 and 9 S.R. 1 E., M.D.B, & M., thence running West along the dividing line between said
Sections 6 and 31 and along the Northerly line of that certain 158.94 acre tract of land described in the Deed
from the City of San Jose to D.H. Hahn, dated and recorded March 16, 1868, in Book"W"of Deeds, at Page
635, Records of said County of Santa Clara, 924 feet to a stake on the Southwesterly line of Pueblo Lands
Tract No. 3 as finally confirmed to the City of San Jose by the United States of America, the patent for which is
recorded in the office of the County Recorder of the County of Santa Clara, State of California, in Book"D" of
Patents, Page 12; thence running along said line S. 100 45' 00" E. 665 feet to an angle point therein; thence
still along said line S. 58° 24' 00" E. 2150 feet; thence leaving said line and running N. 01 13' 59" E. 2341.00
feet; thence N. 89146' 01" W., 1003.28 feet, more or less, to a point on the Section line dividing above
mentioned Sections 31 and 32; thence S. 00 16' 07" W. along said line, 635.67 feet, more or less, to the point
of beginning. Being a portion of the Pueblo Tract Number 3.
PARCEL TWO:
A right of way 40'feet in width, the center line is more particularly described as follows:
Beginning at a point that bears South 890 46' 01" East 49.70 feet from the Southwest corner of that 10.779
acre parcel of land shown on that certain Record of Survey filed for record in Book 389 of Maps, Page 18,
Records of Santa Clara County, and thence running the following courses and distances:
North 00 13' 59" East 82.78 feet; North 50 290 37" East 204.57 feet and thence North 430 46' 23" West 117.93
feet more or less to a point on the Westerly line of the aforementioned 10.779 acre parcel of land.
PARCEL THREE:
Page 2 of 9 Pages
ORT 31 SR-R
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
A forty foot Right of Way, the centerline of which is more particularly described as follows:
Beginning at the described point "F", in the description of Parcel "F", being on the Southwesterly line of that
10.779 acre parcel of land shown on that certain Record of Survey filed for record in Book 389 of Maps, page
18, Official Records of Santa Clara County, and which bears S. 00 13' 59" W. 89.32 feet from the Northwest
corner of the 10.779 acre parcel, and thence running the following courses and distances: N. 58 21' 53" E.
44.65; thence N. 55 30' W. 45.09 feet more or less to a point on the Northwesterly line of the aforementioned
10.779 acre parcel of land, said point also being the beginning point of a forty foot Right of Way as described
in Book "E" 120, Page 528, Official Records of Santa Clara County.
PARCEL FOUR:
A 40 foot right of way and Public Utility Easement, the centerline of which is more particularly described as
follows:
Beginning at a point on the West line of that 10.779 acre parcel shown on that Record of Survey Map filed for
record in Book 389 of Maps at Page 18. Santa Clara County, said point being N 0° 13' 59" E. 393 feet from
the Southwest corner of said parcel; thence N 50130' W. 16 feet; thence N 640 50' W. 73 feet; thence
117.64 feet along a 120 foot radius curve to the left, having an interior angle of 561 10'; thence 19.90 feet
along a compound curve to the left, having an interior angle of 28130' and a radius of 40 feet; thence 63.49
feet along a reverse curve to the right having an interior angle of 145130' and a radius of 25 feet; thence
18.85 feet along a reverse curve to the left having an interior angle of 270 00' and a radius of 40 feet; thence
N 380 00' E 66.50 feet; thence 77.93 feet along a 142.50 feet radius curve to the left having an interior angle
of 310 20'; thence N 60 40' E. 218.20 feet; thence 27.75 feet along a 60 foot radius curve to the left, having
an interior angle of 260 30'; thence 123.39 feet along a 70 foot reverse curve to the right, having an interior
angle of 1011 00'; thence 62.83 feet along a compound curve to the left, having an interior angle of 600 00'
and a radius of 60 feet; thence N 210 09' 47" E. 0.92 feet to a point on the centerline of that 40 foot Right of
Way listed as Parcel Five on that Deed recorded in Book 120 of Official Records Page 528, Santa Clara County,
last said point being S 00 13' 59" W. 38.73 feet and N 540 53' W 37.04 feet from the Northwest corner of said
10.779 acre parcel.
PARCEL FIVE:
A forty foot Right of Way, the centerline of which is more particularly described as follows:
Beginning at a point on a line that bears S. 00 13' 59" W. 38.73 feet from the Northwest corner of that 10.779
acre parcel of land shown on that certain Record of Survey filed for record in Book 389 of Maps, page 18
Official Records of Santa Clara County, said point also being the beginning point of a forty foot Right of Way as
described in Book E120, Page 528, Official Records of Santa Clara County, and thence running the following
courses and distances, N. 541 53' W. 57.11 feet, N. 690 35' W. 86.97 feet, S. 841 51' W. 132.56 feet, S. 540
38' W. 74.36 feet, N. 280 28'W. 60.08 feet, N. 10 14' W. 115.06 feet, N. 241 52' E. 235.30 feet, S. 550 54' W.
251.91 feet, N. 130 19' W. 214.67 feet, N. 230 16' E. 72.51 feet, N. 510 08' E. 98.50 feet, N. 720 15' E. 83.75
feet and N. 80 55" E. 81.68 feet to the True Point of Beginning of this description; thence N. 200 15' E. 101.19
feet more or less to a point on the Southwesterly line which bears N. 590 35' E. 19.43 feet from the most
Southerly point of Parcel No. 4, as shown on that certain Record of Survey filed for record in Book 300, at
Page 44, Official Records of Santa Clara County.
PARCEL SIX:
Page 3 of 9 Pages
ORT 315R-R
010 REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
A 40 foot Right of Way as described in the Deed from Francis H. Tucker and Nellie A. Tucker, his wife, to R. J.
Tucker and Gayle Tucker, his wife, as joint tenants, as set forth in the Deed dated December 29, 1965, and
rerecorded on January 18, 1966, in Book 7251, Page 342 of Official Records of Santa Clara County, which is
more particularly described as follows:
Beginning at a point that bears South 00 13' 59" West 38.73 feet from the Northwest corner of that 10.779
acre parcel of land shown on that certain Record of Survey filed for record on February 18, 1977, in Book 389
of Maps Page 18 Official Records of Santa Clara County and thence running the following courses and
distances North 540 53' West 57.11 feet, North 690 35West 86.87 feet, South 84* 51' West 132.56 feet,
South 540 38' West 74.36 feet, North 280 28West 60.08 feet, North 10 14' West 115.06 feet, North 240 52'
East 235.30 feet, South 55* .54' West 251.91 feet, North 130 19' West 214.67 feet, North 230 16' East 72.51
feet, North 510 08' East 98.50 feet, North 720 15' East 83.75 feet, North 80 55' East 81.68 feet and thence
North 200 15' East 38 feet more or less to the most Southerly point of Parcel No. 4 as shown on that certain
Record of Survey filed for record in Book 300 at Page 44 Official Records of Santa Clara County.
PARCEL SEVEN:
A 40 foot Right of Way, the centerline of which is more particularly described as follows:
Beginning at a point on a line which bears S. 0* 13' 59' W. 38.73 feet from the North West corner of that
10.779 acre parcel of land shown on that certain Record of Survey filed for record in Book 389 of Maps, Page
18 Official Records of Santa Clara County, said point also being the beginning point of a 40 foot Right of Way
as described in Book E120, Page 528, Official Records of Santa Clara County, and thence running the following
courses and distances; N. 540 53' W. 57.11 feet, N. 69* 35' W. 86.97 feet and S. 840 51' W. 132.56 feet to
the True Point of Beginning of this description; thence N. 830 45W. 89.81 feet, N. 530 29' W. 73.28 feet, N.
200 20' W. 153.23 feet more or less to the point of termination on the centerline of the 40 foot Right of Way
described in Book E120, Page 528 of Official Records, Santa Clara County. The termination point is also
defined in the above described 40 foot Right of Way as bearing the following courses and distances from the
most Southerly point of Parcel No. 4 as shown in that certain Record of Survey filed for record in Book 300 at
Page 44 of Official Records of Santa Clara County; S. 200 15' W. 38.00 feet more or less, S. 081 55' W. 81.68
feet, S. 720 15' W. 83.75 feet, S. 5 1* 08' W. 98.50 feet, S. 230 16' W. 72.51 feet, and S. 130 19' E. 214.67
feet.
PARCEL EIGHT:
A 10 foot wide power pole and electric line easement, the centerline described as follows:
Beginning at a point lying S. 01 13' 59" W. 115 feet and West 113 feet from the Northwest corner of that
10.779 acre parcel shown on that Record of Survey Map recorded in Book 389 of Maps at Page 18 Santa Clara
County, and proceeding South 862.93 feet more or less to a point on the North line of lands of Tucker as
described in Deed recorded December 31, 1986 in Book 3989 of Official Records Pages 774 and 775, Santa
Clara County.
PARCEL NINE:
Those certain prescriptive right over the present existing private extension of the dedicated portion of
Reynolds Road, as set forth in the Judgment, Case No. 225233, Superior Court, County of Santa Clara, filed
March 24, 1971 and recorded June 10, 1971 in Book 9367, Page 643.
Page 4 of 9 Pages
nRT 31 SR-8
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
NOTE: Parcel Nine herein described is only being included so as to avoid the Company being
the cause of excluding it from deeds or encumbrances, but NO INSURANCE is to be provided
as to said parcel.
Anything to the contrary in the policy or endorsements thereto notwithstanding, said parcel
is NOT INSURED even though it may be included as part of the description of the land
described or referred to in the policy.
The Company requires that the insured(s) acknowledge in writing that they understand this.
Should a request, however, be made for insurance in this regard, it must be referred to the
Title Department for an appropriate response.
575-07-008
80 002
SH/Cl/KH
A575-07-003.02
At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows:
1. Taxes and assessments, general and special, for the fiscal year 2006 - 2007, as follows:
Assessor's Parcel No 575-07-008
Code No. 80-002
1st Installment $229.12 NOT Marked Paid
2nd Installment $229.12 NOT Marked Paid
Land $2,492.00
Imp. Value $0.00
Exemption $0.00
Page 5 of 9 Pages
(ART 315R-R
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
2. Any special tax which is now a lien and that may be levied within the Santa Clara County
Library District, a notice of which was recorded as follows:
Instrument Entitled Notice of Special Tax Lien
BY Santa Clara County
Recorded June 24, 2005 under Recorder's Serial
Number 18438576
NOTE: Among other things, there are provisions in said Notice for a special tax to be levied
annually, the amounts of which are to be added to and collected with the property taxes.
NOTE: The current annual amount levied against this land is not available at this time.
Further information may be obtained by contacting:
Name Fiscal Agent of the Santa Clara County
Library District Joint Powers Authority
Address 14600 Winchester Blvd., Los Gatos, CA
95032
Phone 408 293-2326 ext. 3004
3. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et
seq., of the Revenue and Taxation Code of the State of California.
4. An easement affecting that portion of said land and for the purposes stated herein and
incidental purposes as provided in the following instrument:
Granted to The Pacific Telephone and Telegraph Company and Pacific Gas and
Electric Company, California corporations
For pole lines and incidental purposes
Recorded May 14th, 1948 in Book 1615 of Official Records, Page 220
Affects the exact location of said easement is not defined of record
5. An easement affecting that portion of said land and for the purposes stated herein and
incidental purposes as provided in the following instrument:
Granted to Pacific Gas and Electric Company and Pacific Telephone and
Telegraph Company, California corporations
For pole lines, wires and incidental purposes
Recorded February 27th, 1968 in Book 8037 of Official Records, Page 312
Affects The exact location of said easement is not defined of record
Page 6 of 9 Pages
ORT 31 9;8-B
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
6. The terms and provisions of that certain Land Conservation Agreement (commonly known as
Agricultural Preserve executed pursuant to Section 51200, et seq., California Government
Code (Williamson Act) dated November 27, 1972, executed by County of Santa Clara and
Francis H. Tucker and Nellie Tucker, recorded February 26, 1973 in Book 250 Official
Records, page 44.
7. An easement five feet wide for the installation and maintenance of a water line, the Easterly
line of which is described as follows:
Beginning at the Southeast corner of that 10.779 acre parcel of land shown on that certain
Record of Survey filed for record on February 18, 1977 in Book 389 of Maps, page 18,
Official Records of Santa Clara County; thence running S. 00 13' 59" W. 1085 feet along the
Easterly line of that certain 209.00 acre tract of land conveyed to Nellie A. Tucker by deed
recorded March 2, 1940 in Book 977, page 55 of Official Records Santa Clara County,
California, to a point on said Easterly line, as conveyed by Deed recorded December 31,
1986 in Book 3989 Official Records, page 771.
I
8. An easement twenty feet wide for the installation and maintenance of a water line, the
center line of which is described as follows:
Beginning at a point on the Easterly line of that certain 209.00 acre tract of land conveyed to
Nellie S. Tucker by deed recorded March 2, 1940 in Book 977, page 55 Official Records of
Santa Clara County, California which bears S. 00 13' 59" W. 1085.00 feet from the Southeast
corner of the 10.799 acre parcel of land shown on that certain Record of Survey filed for
record on February 18, 1977 in Book 389 of Maps, page 18, Official Records of Santa Clara
County, and thence running the following courses and distances: S. 510 40' 37" W. 106.55
feet; S. 811 43' 00" W. 308.69 feet; N. 690 25' 50" W. 189.59 feet; N. 21° 31' W. 183.15
feet; S. 11" 04' 34" W. 191.77 feet; S. 740 30' W. 57.90 feet; N. 690 30' W. 76.10 feet; S.
350 20' 02" W. 92.96 feet; N. 670 30' W. 100.42 feet; S. 170 22' 29" E. 166.96 feet to Point
A; thence continuing S. 171 22' 29" E. 160.46 feet; S. 330 30' E. 176.90 feet to Point "C"
together with a forty foot wide easement for the use and maintenance of an existing spring.
The center line of which begins at the hereinabove described Point C in the description of
above; thence S. 48° 30' W. 40 feet, and an easement twenty feet wide for the installation
and maintenance of a water line, the center line of which is described as follows:
Beginning at Point A as described above in the description of Parcel B, on the center line of
the aforementioned Parcel B; thence running S. 90 27' 04" W. 182.12 feet to Point"E",
together with a forty foot easement for the use and maintenance of an existing spring.
The center line of which begins at the hereinabove described Point "E" in the description of
Parcel D; thence S. 91 27' 04" W. 40 feet, as conveyed in a deed recorded December 31,
1986 in Book 3989, page 771 Official Records.
Page 7 of 9 Pages
'I
(ART 315R-R
I
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
9. Certificate of Compliance pursuant to Section 66499. 35 of the Government Code of State of
California, recorded February 8, 1988 in Book K441 Official Records, page 198.
10. NOTE: Parcel Nine herein described is only being included so as to avoid the Company being
the cause of excluding it from deeds or encumbrances, but NO INSURANCE is to be provided
as to said parcel.
Anything to the contrary in the policy or endorsements thereto notwithstanding, said parcel
is NOT INSURED even though it may be included as part of the description of the land
described or referred to in the policy.
The Company requires that the insured(s) acknowledge in writing that they understand this.
Should a request, however, be made for insurance in this regard, it must be referred to the
Title Department for an appropriate response.
11. NOTE: Office of the Secretary of State
Corporate Filing
1500 - 11th, 3rd Floor
Sacramento, CA 95814
(916) 657-5448
Reports that BDS Capital, Inc. is presently in good standing.
12. The requirement that a certified copy of a resolution of the board of directors be furnished to
this company authorizing or ratifying the proposed conveyance or encumbrance of said
premises.
13. Any unrecorded and subsisting leases.
14. The requirement that this Company be provided with an opportunity to inspect the land. The
Company reserves the right to make additional exceptions and/or requirements upon
completion of its inspection.
Page 8 of 9 Pages
ORT 31 SIR-11
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0616002736-SR
-------------------- Informational Notes-------------------
A. NOTE: According to the public records, there have been no deeds conveying the property
described in this report except as follows:
An Amended Trustee's Deed Upon Sale Deed executed by WT Capital Lender Services to BDS
Capital, Inc., a California Corporation, as agent recorded May 18, 2006 in Official Records
under Recorder's Serial Number 18939351.
The last conveyance affecting said land recorded within the last two years, prior to the date
of this report are: SEE ABOVE
B. County Recorder will charge an additional $10.00"Monument User Fee"to record a Grant
Deed using the legal description in this report.
C. The mailing address of the vestee as shown in the records is:
15700 Winchester Blvd., Los Gatos, CA 95030
D. In addition to existing requirements pertaining to sellers who are non-residents of California,
as a result of recent changes to Section 18662 of the Revenue and Taxation Code, in
transactions closing after January 1, 2003 the buyer may then be responsible to withhold 3
1/3% of the sales price (as defined therein) from any seller, if this property is not the seller's
principal residence. The statute, as modified, also provides for certain exemptions to the
buyer's responsibility to withhold, which may apply.
it
Page 9 of 9 Pages
ORT31 SR-9