HomeMy Public PortalAbout20080325 - Resolution - Board of Directors (BOD) (2) Cover Sheet for Scanning by ECS
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Document Date: 3/25/2008
Document Type: Resolution
Preserve Name:
Keywords(no more than 4): MND Mindego Ranch Purchase
Project Name:
Project Number:
I
Vendor or Other Party:
Name (First):
Name (Last):
Address:
APN Number:
Document No. 08-15
Additional Field:
Additional n I Field:
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i
RESOLUTION NO.08-__15
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
ADOPTING THE MITIGATED NEGATIVE DECLARATION,THE MITIGATION
MONITORING PROGRAM,AND MAKING THE CEQA FINDINGS IN CONNECTION WITH
THE PROPOSED PURCHASE OF THE PENINSULA OPEN SPACE TRUST(MINDEGO
RANCH)PROPERTY
AS AN ADDITION TO RUSSIAN RIDGE OPEN SPACE PRESERVE
WHEREAS The Board of Directors of the Midpeninsula Regional Open Space District
("District") has reviewed the proposed purchase of the Peninsula Open Space Trust(Mindego Ranch)
Property and all associated actions("the Project")and has reviewed the Mitigated Negative Declaration
("MND")analyzing the environmental effects of the Project;
NOW, THEREFORE, BE IT RESOLVED by the District Board of Directors that, based upon the
Initial Study, Mitigated Negative Declaration, Mitigation Monitoring Program, all comments received,
and all substantial evidence in light of the whole record presented,the Board of Directors finds that:
I. Notice of the availability of the Initial Study and Mitigated Negative Declaration and all hearings on
the MND was given as required by law and the actions were conducted pursuant to California
Environmental Quality Act(CEQA)and the CEQA Guidelines.
2. All interested parties desiring to comment on the MND were given the opportunity to submit oral and
written comments on the adequacy of the MND prior to this action by the Board of Directors and all
comments raised during the public comment period and at the public hearings on the MND were
responded to adequately.
3. Prior to approving the Project that is the subject of the MND, the Boa
rd has considered the MND,
along with all comments received during the public review process.
4. The Project is being carried out pursuant to Service Plan for the San Mateo County Coastal
Annexation Area. The impacts of the Service Plan were evaluated in the Program Environmental
Impact Report for the Service Plan for the San Mateo County Coastal,Annexation Area certified by
the District Board of Directors on June 6, 2003 ("EIR"). The MND describes the Project impacts that
are addressed in the EIR and identifies additional potential impacts that are not addressed in the EIR.
5. The Board finds that, on the basis of the whole record before it, including the MND and all comments
received, that there is no substantial evidence that the Project will have a significant effect on the
environment in that, although the proposed Project could have significant effect on the environment,
there will not be a significant effect in this case since Mitigation Measures have been made a part of
the Project to avoid such effects.
6. The Board adopts the MND and determines that the MND reflects the District's independent
judgment and analysis.
7. The Board adopts the attached Mitigation Monitoring Program, which it requires to be implemented
as part of the Project.
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8. The location and custodian of the documents or other material which constitute the record of
proceedings upon which this decision is based are located at the offices of the Midpeninsula Regional
Open Space District, 330 Distel Circle, Los Altos,California 94022.
9. The Board determines to add new mitigation measures or revisions not required by CEQA that will
not create new significant environmental impacts and are not necessary to mitigate significant
environmental impacts. These measures are added to reduce further potential Project impacts that are
insignificant without the addition of these new mitigation measures:
(Additions shown underlined)
Mitigation HAZ-lb: Preparation of a Site Management Plan
Prior to the remediation of property contamination, prepare of a Site Management Plan
(SMP)for any proposed construction activities in areas identified as containing hazardous
materials. The SMP shall provide site-specific information for contractors(and others)to
improve their management of environmental and health and safety contingencies. Topics covered
by the SNIP shall include, but not be limited to:
• Land use history, including known hazardous material use, storage, disposal, and spillage, for
specific areas within the Project site.
• The nature and extent of previous environmental investigation and remediation at the Project
site.
• The nature and extent of ongoing remedial activities and the nature and extent of
unremediated areas of the Project site.
• A listing and description of institutional controls, such as the County grading ordinance and
other local, State, and Federal laws and regulations,that will apply to development of the
Project site.
• Requirements for site-specific Health and Safety Plans(HASPS)to be prepared by all
contractors at the Project site. The HASPs should be prepared by a Certified Industrial
Hygienist and would protect construction workers and interim site users adjacent to
construction activities by including engineering controls, monitoring, and security measures
to prevent unauthorized entry to the construction site and to reduce hazards outside the
construction site. The HASPS would address the possibility of encountering subsurface
hazards and include procedures to protect workers and the public. If prescribed exposure
levels were exceeded,personal protective equipment would be required for workers in
accordance with applicable regulations.
• A description of protocols for the investigation and evaluation of previously unidentified
hazardous materials that may potentially be encountered, including engineering controls that
may be required to reduce exposure to construction workers and future users of the Project
site.
• Assessment of health impacts associated with remediation,construction, or excavation
activities in the contaminated areas.
• Assessment of off-site transportation impacts.
• Assessment of risk of public upset should there be an accident at the site.
Mitigation B10-1: Conduct pre-demolition surveys of building structures proposed
for removal, and if special-status bats are present, safely exclude the bats from the
building before proceeding with the work, and time the demolition to avoid the
maternity season.
The following measures are incorporated into the project to prevent impacts to special-
status bat species:
• A bat survey will be conducted before any performing work involving demolition of
building structures suitable for bat occupancy. This survey will determine presence or
absence of a roost supporting either a maternity colony (a groups of all females and
their young) or a group of non-reproductive bats. If no special-status bats are found,
demolition work must be conducted within one month of the survey.
• The pre-demolition surveys shall include an assessment of whether, if bats are
present, replacement bat habitation structures are necessary to avoid impacting the
bats.
• If non-reproductive bats are present, safely exclude the bats from the building before
proceeding with the work.
• If a maternity colony is observed during the surveys, the demolition of the bat-
occupied building shall not be conducted during the maternity season. Demolition
shall occur between October 15 and February I to avoid impacts to maternity
colonies.
RESOLUTION No. 08- 15
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on March 25, 2008 at a Special Meeting thereof, by the following vote:
AYES: Jed Cyr, Mary Davey, Larry Hassett, Curt Riffle, Kenneth Nitz,
Nonette Hanko, Pete Siemens
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST: APPROVED:
III
Secretary esi
Board of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
District
MINDEGO PURCHASE AGREEMENT
This Agreement(hereinafter called "Agreement") is made and entered into, effective as of the
date of the District's signature below, by and between PENINSULA OPEN SPACE TRUST, a
California non-profit public benefit corporation (hereinafter called "POST"), 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,POST was organized as a non-profit, charitable corporation to solicit, receive
and hold gifts, legacies, devises and conveyances of real and personal property for public park,
conservation and open space purposes, all in a manner complementary to activities of District; and
14 WHEREAS,the property and assets of POST are irrevocably dedicated to said purposes and
no part of the property and assets of POST shall ever incur to the benefit of any individual; and
WHEREAS,POST is the owner of certain real property formerly known as the"Mindego
Ranch" which has open space, agricultural, and recreational value located within an unincorporated
area of the County of San Mateo, 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 preservation,public park, recreation,
scenic and open space purposes; and
WHEREAS, District desires to purchase said property for open space and agricultural
preservation and as part of the ecological, recreational, aesthetic, and natural resources of the
midpeninsula area; and
WHEREAS,POST out of desire to promote public welfare, and share the natural and scenic
beauty and enjoyment of their property with the citizens of the midpeninsula area, hereby agrees 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. _Agreement of Sale.
A. Purchase and Sale. POST agrees to sell to District and District agrees to purchase
from POST,the Property (as further defined in Section 13)which includes the real property located
within an unincorporated area of the County of San Mateo, State of California, containing
ousand forty seven (1,047)acres, more or less (without representation or
approximately one th
Page I
Purchase Agreement
warranty, as to exact area), and commonly referred to as San Mateo County Assessor's Parcel
Numbers 080-320-060, 080-340-010 and 083-310-060. Said real property is further described in the
Legal Description attached to Preliminary Report Number 0360006933 Old Republic Title Company
dated February 19, 2008 ("the Preliminary Report"). A copy of said Preliminary Report is attached
hereto as Exhibit and incorporated herein by this reference.
B. Description of the Property.
The Property to be sold and purchased under this
Agreement consists of all of POST's right,title and interest in the following, all of which shall
hereinafter be called the "Property":
(i) Land. The land described in Section I.A.
(ii) Ap
purtenances. Any and all privileges, rights of way, rights of use, licenses,
easements, all development rights, and all water rights appurtenant to the Property.
(iii) Improvements. Any and all improvements and fixtures attached to the
Property, including, without limitation, all buildings, structures, barns, fences, utility systems, and
water tanks,troughs, pipelines, and systems.
(iv) Personal Property. Any and all personal property ("Personal Property") and
intangible property owned by POST located on or in or used in connection with the Property.
Personal Property shall include,without limitation,the following:
(a) All rights under the Leases defined in Section 3.C;
(b) All licenses and permits related to the property.
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be Twenty
Two Million Five Hundred Thousand and No/I 00 Dollars ($22,500,000-00),which shall be paid in
cash at the"Closing" as defined in Section 5.0 hereof. District under this Agreement are subject to
3. District's Closing,Conditions. All obligations of Dist "District's Closing
the fulfillment, before or at the Closing, of each of the following conditions(
Conditions"). District's Closing Conditions are solely for District's benefit and any or all of the
District's Closing Conditions may be waived in writing by District in whole or in part without prior
notice.
A. Title. it is the District's Closing Condition that, on the Closing Date,POST convey to
District marketable fee simple title to the Property by execution and delivery of a Grant Deed
including,without limitation, any easements,rights of way, or rights of use which may be
appurtenant or attributable to the aforesaid lands in form and substance acceptable to the District and
cause to be delivered to District from Old Republic Title Company, 796 El Camino Real, Suite B,
San Carlos, CA 94070, Escrow Officer Susan Goulet(650) 591-6782, Escrow Number 0360006933,
or other title company acceptable to District and POST(the"Title Company"),a CLTA Standard
Policy of Title Insurance ("Title Policy"), dated as of the Closing, insuring District in the full amount
of the Purchase Price, insuring title to the Property vested in fee simple in District, subject only to
(i) Current real property taxes;
Page 2
Purchase Agreement
Exceptions Numbers 5, 6, 7, 8, 9, 10 and I I listed in the Preliminary Report;
and
(iii) Such additional title exceptions as may be approved in writing by District prior
to the Closing as determined by the District in its sole discretion (the"Permitted Exceptions").
The Title Policy must also include such endorsements or guaranties as District may request. POST
must deliver to the Title Company such instruments, documents, releases, and agreements and
perform such other acts as Title Company may reasonably require in order to issue the Title Policy.
B. Assignment of Leases and Security POST shall deliver to District an
executed Assignment of Leases and Security Deposits for that certain Lease Agreement dated
October 10, 2007 between POST("Landlord") and A. CHRISTOPHER TRUE ("Tenant")(hereafter
the "True Lease") in substantially the same form set out in Exhibit C, attached hereto and
incorporated by this reference.
C. Leases Subleases and Licenses. To the best of POST's knowledge,POST shall have
delivered to District accurate and complete copies of the True Lease and any other leases, subleases,
and licenses if any exist(i) between POST and any tenants or occupants of the Property, and (ii) any
other leases, subleases or licenses concerning the Property that are in the possession of POST
(collectively "the Leases")together with a list of all tenants, including all persons holding occupancy
under the True Lease ("the True tenants"), subtenants, occupants, and licensees of the Property of
which POST has knowledge (collectively"Tenants"). The list of such Tenants shall be set out in
Exhibit D,attached hereto and incorporated by this reference. If any Leases, in addition to the True
Lease, exist,POST shall deliver to District an executed Assignment of Lease and Security Deposits
in substantially the same form as set out on Exhibit C.
D. Tenant Estoppel Certificates. POST shall have delivered to District an Estoppel
Certificate from A. Christopher True in substantially the same the form set out in Exhibit attached
hereto and incorporated by this reference, or such other form as is acceptable to District.
l Agreement and Fqrr Agreement. POST shall
E. Assignment of Landfill Removal -
deliver to District a fully executed Assignment of Landfill Removal Agreement and Escrow
Agreement for that certain Landfill Removal Agreement and Escrow Agreement, both dated October
10, 2007 between RAMON R. TRUE AND A. CHRISTOPHER TRUE, SUCCESSOR CO-
TRUSTEES OF THE TRUE MARITAL TRUST U/T/A DATED AUGUST 15, 1976, RAMON R.
TRUE, individually and not in his capacity as a Trustee, and A. CHRISTOPHER TRUE, individually
and not in his capacity as a Trustee(collectively referred to as"Seller") and POST. The Assignment
of Landfill Removal Agreement and Escrow Agreement shall be in the form set out in_Exhibit F,
attached hereto and incorporated by this reference. POST shall obtain the written consent by Seller to
the Assignment of Landfill Removal Agreement to the District and consent by POST, Seller and
Escrow Holder to the Assignment of the Escrow Agreement to the District.
F. Delivery of Documents. POST shall have delivered, or made available,to District all
documents in its possession concerning the Property, including, in addition to the foregoing and
without limitation, surveys, reports,tests, agreements, contracts, licenses,permits,plans,tax bills,
Page 3
Purchase Agreement
due diligence documents with all attachments,transactional documents with all attachments and any
documents related to the physical, geotechnical,environmental, and legal condition of the Property.
G. California Coastal Conservancy Grant LFunds Deposited into Escrow. POST and
District agree and understand that a condition precedent to completing the purchase and sale of the
Property is the deposit into escrow of purchase grant funds in the amount of Seven Million Five
Hundred Thousand and No/100s Dollars ($7,500,000-00) ("Grant Funds") from the California
Coastal Conservancy on or before the Closing.
H. Representations True as of Closing and No Default. All of POST's representations set
forth in Section 7 are true in all material respects as of the Closing, and POST is not in material
default of any of its obligations under this Agreement as of the Closing.
4. POST's_Closin g,Conditiom- POST's obligation to sell the Property is expressly conditioned
on the fulfillment of each of the following conditions precedent at or before the Closing"(POST's
Closing Conditions"). POST's Closing Conditions are solely for POST's benefit and any of POST's
Closing Conditions may be waived in writing by POST in whole or in part without prior notice.
A. Approval of District's Closing Conditions. District must have acknowledged the
satisfaction or waiver of all District's Closing Conditions as required under Section 3.
B. Delivery of Closing Documents and Funds. District must have delivered to Escrow
the documents and funds specified in Section S.E.
C. Assignment of Landfill Removal AgreementAgreement. Seller shall
Landfill Removal Agreement and Escrow
have given its written consent to the Assignment of Landfi
Agreement, and Escrow Holder shall have consented as to the Assignment of the Escrow Agreement,
in the form set out in_Exhibit F attached hereto, and District shall have executed and delivered to
POST the Assignment of Landfill Removal Agreement and Escrow Agreement at Closing.
D. Public Access Schedule. POST's review and reasonable approval of the schedule for
public access prepared by the District prior to Close pursuant to Section 6.E.
E. Representations True as of Closiniz and No Material Default. All of the Seller's
representations are true in all material respects as of the Closing, and Seller is not in material default
of its obligations under this Agreement as of the Closing.
5. Closing.
A. Escrow. Promptly upon execution of this Agreement, in accordance with Section 13.A
herein, an escrow shall be opened at the Title Company (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
Page 4
Purchase Agreement
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.
B. Consummation of Purchase and Sale. POST 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. Closing Definitions.
(i) Definition. The"Closing" means the exchange of money and documents as
described in this Section 5, and shall be deemed to have occurred when POST's Grant Deed to
District has been recorded,the Escrow Holder holds and can record and deliver the remaining
documents described in this Section 5, the Title Company is irrevocably and unconditionally
committed to issue the Title Policy, and District has delivered the Purchase Price in immediately
available funds to Escrow Holder, and the California Coastal Conservancy has deposited the Grant
Funds to Escrow Holder
(ii) Closing Date. POST and District agree that the Closing shall occur on the
"Closing Date." The Closing Date shall be on or before the close of business thirty days (30)days
following the satisfaction or waiver of the District's Closing Conditions as set forth in Section 3 and
POST's Closing Conditions as set forth in Section 4,but no later than June 27, 2008, provided,
however,that the parties shall, by written agreement, extend the time for Closing until such time as
the Grant Funds are deposited into escrow in accordance with Section 3.G,but not beyond August 29,
2008. The parties may for other reasons,by written agreement, extend the time for Closing.
D. POST's Deposit of Documents and Funds. POST must deposit into Escrow the
following documents duly executed by POST in form and substance reasonably satisfactory to
District:
(i) Grant Deed. The duly executed and acknowledged Grant Deed conveying the
Property to District.
(ii) Bill of Sale.
A duly executed bill of sale, in the form attached to this
Agreement as Exhibit B conveying the Personal Property to District free and clear of liens,
encumbrances, and restrictions of every kind and description ("Bill of Sale").
(iii) Assignment of Leases and Security Deposits. A duly executed Assignment of
Leases and Security Deposits, in the form attached to this Agreement as Ex
hibit C, assigning to
District,POST's interest as Landlord in the True Lease, and other Leases, if any, identified on
Exhibit C. and attached to Exhibit
(iv) Leases. The original Leases as set out in Section 3.0
C.
(v) Tenant Estoppel Certificates. Duly executed Tenant Estoppel Certificates as
set out in Section 3.13 for A. Christopher True in the form attached as Exhibit E.
Purchase Agreement Page 5
i F
(vi) Assignment of Landfill Removal Agreement and Escrow Agreement. Duly
and fully executed Assignment of Landfill Removal Agreement and Escrow Agreement, in the form
attached to this Agreement as Exhibit F.
(vii) Additional Documents. Such additional documents, including written Escrow
_wditjonal Q
instructions consistent with this Agreement, as may be necessary or desirable to convey the Property
in accordance with this Agreement.
E. District's Deposit of Documents and Funds. District shall deposit into the escrow on
or before the Closing:
(i) Certificate of Acceptance. The required Certificate of Acceptance for the Grant
Deed duly executed by District and to be dated as of the Closing.
(ii) Purchase Price. Immediately available funds transferred by District to Escrow
Holder in the amount of Fourteen Million Nine Hundred Ninety-Nine Thousand and No/100 Dollars
($14'999,000.00)together with the Grant Funds in the amount of Seven Million Five Hundred
Thousand and No/100 Dollars ($7,500,000.00) as set forth in Section 3.G of the Agreement, which is
the balance of the Purchase Price of Twenty Two Million Five Hundred Thousand and No/I 00
Dollars ($22,500,000.00) as specified in Section 2. The balance of$1,000 is paid into escrow in
accordance with Section 13 of this Agreement.
(iii) Reimbursement of.POST'S Escrow Funds for Landfill Removal Agreement.
Immediately available funds transferred by District to Escrow Holder in the amount of One Million
Forty-five Thousand and No/I 00s Dollars ($1,045,000-00)to reimburse POST for the Escrow Funds
deposited by POST in accordance with the Escrow Agreement dated October 10, 2007 entered into
between POST, Seller, and Escrow Agent Old Republic Title Company ("the Escrow Reimbursement
Funds").
(iv) Assignment of Landfill Removal Agreement and Escrow Agreement The
Assignment of Landfill Removal Agreement and Escrow Agreement'in the form attached hereto as
Exhibit F, executed by the District.
(v) Conveyance Documents. Such documents, including written Escrow
instructions consistent with this Agreement, as may be necessary or desirable for conveyance of the
Property in accordance with this Agreement.
F. Closing. When the Escrow Holder receives all required documents and funds
identified in Sections 5.13 and 5.E, Title Company is ready, willing, and able to issue the Title Policy,
then, and only then,the Escrow Holder shall close Escrow by:
(i) Recording the Grant Deed and Certificate of Acceptance.
(ii) Issuing the Title Policy to District.
(iii) Delivering to District the Assignment of Leases and Security Deposits,
Assignment of Landfill Removal Agreement and Escrow Agreement,the Bill of Sale,the original
Purchase Agreement Page 6
Leases,the Tenant Estoppel Certificates, copies of all recorded documents related to the transfer or
encumbering of the Property, and a copy of POST's Escrow Instructions.
(iv) Paying the Purchase Price and the Escrow Reimbursement Funds to POST
minus prorations under Section 5.E and delivering to POST the Assignment of Landfill Removal
Agreement and Escrow Agreement.
(v) Thereafter, Escrow Holder shall deliver signed closing statements showing all
receipts and disbursements to District and POST.
G. Deliveries Outside Escrow. POST agrees to deliver the following to District outside
Escrow within ten(10) business days after Closing:
Letters in form and substance satisfactory to District, signed, and stamped by POST and addressed to
the Tenants at the Property, stating that the Property has been sold to District and that all rents should
be paid to District after the Closing Date("Tenant Notices").
H. -Prorations. District 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
POST in the manner customary in San Mateo County. All current property taxes of the Property shall
be pro-rated through escrow between District and POST as of the Closing based up on the latest
available tax information using the customary escrow procedures.
1. Riahts and Liabilities of the Parties in the Event of Termination. In the event this
Agreement is terminated and escrow is canceled for any reason, including without limitation the
failure of a District Closing Condition or a POST Closing Condition to be satisfied or waived by the
last day for the Closing Date to occur pursuant to Section 5.C.(ii), 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. Escrow Holder shall return all monies, documents, or other materials deposited into
escrow to the party depositing the same.
6. Covenant Regarding Donor Recognition Site of Significant Supporters, and POST's Access to
the Property.
A. POST reserves the right to specially recognize"Significant Supporters"with a Donor
Recognition Site to be located on the Property as identified on Exhibit G attached hereto.
B. POST also reserves the right to name in a manner desired by POST to honor a
Significant Supporter(s) and acceptable to the District a specific location, land formation,trail,
natural and physical feature, staging area or other area of significance within the Property. POST
may exercise the reservation of the rights set out in this Section 6.13 by stating in writing to District
its request for such Recognition Site and/or naming rights on or before five (5)years following the
Purchase Agreement Page 7
Closing. Such Recognition Site and/or naming rights shall be identified in an unobtrusive manner
consistent with the purpose for which District is acquiring the Property including the preservation of
public open space, agriculture, and natural habitat. Any and all costs associated with the
construction, installation, repair and maintenance of such Recognition Site or naming plaques, shall
be borne by POST. This covenant shall automatically terminate five (5)years from the date of
Closing; except that POST's duty to repair and maintain such Site or plaques shall survive the
termination of this covenant.
C. Upon request, POST (including staff, board, and their invitees) may obtain a license or
permit to enter the Property on a limited basis in non-sensitive areas for passive recreational purposes
such as hiking and donor recognition purposes_POST will use reasonable efforts to provide District
at least 48 hours' notice when possible for such a request. District will use reasonable efforts to
inform POST on a regular basis of any activities that might interfere with a POST planned entrance to
the Property.
D. Prior to Close, District will provide a schedule for opening the Property for public
access.
7. POST's Representations and Warranties. POST hereby represents and warrants,to the best of
its knowledge,that each of the following is true as of the Effective Date, all of which shall survive
Close of Escrow and each of which is material and is being relied upon by District:
A. Compliance with Laws. POST has not received written notice that either the Property
or its operation violates any applicable laws, ordinances,rules, or regulations, or that POST modify
or terminate any use of the Property.This representation excludes the disclosures set out in Sections
7. M. herein.
B. Documents. All Documents delivered or made available to District under Section 3,
and all other documents delivered to District by or on behalf of POST, are true,correct, and complete
copies of what they purport to be. POST makes no representation or warranty regarding the accuracy
or completeness of the information contained in any of such documents. The documents delivered or
made available by POST to District are all the material documents concerning the Property in
POST's possession or under its control.
C. Leases. POST has delivered to District true, accurate, and complete copies of all
Leases, and there are no known written or oral leases, subleases, occupancies, or tenancies in effect
to the Property except as stated in the Leases. Other than the Tenants or occupants set out
in P ain Y ert P
pertaining of
on the Tenant List set out in Exhibit D herein,there are no other tenants, subtenants, or licensees
all or any portion of the Property known to POST. The Leases are in full force and effect; no party to
the Leases is in default under the Leases; and the Leases are subject to no defenses, setoffs, or
counterclaims for the benefit of the tenants under the Leases; and no rent has been prepaid nor i
concessions given to the tenants under the Leases except as disclosed in the Leases. No tenant of the
Property is the subject of a bankruptcy or insolvency proceeding. POST may not modify,cancel,
amend, or extend any Lease or waive any rights under the Leases or enter into any new tenant lease
between the Effective Date and the Closing Date without District's prior written approval,which
Page 8
Purchase Agreement
approval shall not be unreasonably withheld. POST is in full compliance with all of the landlord's
obligations under the Leases.
D. Litigation. There is no pending or threatened private or governmental litigation by
any governmental authority or person against POST relating to the Property.
E. Other Proceedings. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or
threatened against POST or POST's interest in the Property, nor are any such proceedings
contemplated by POST.
F. Government Action. POST has not received written notice of any plan, study, or
effort by any government agency or party that in any way would materially affect the use of the
Property or any portion of it for its current use or of any intended public improvements that would
result in any charge being levied against, or any lien assessed on,the Property.
G. Development Rights. Neither POST nor any previous owner of the Property, except
by operation of law, sold,transferred,conveyed, or entered into any agreement regarding"air rights,"
"excess floor area ratio," or other development rights or restrictions relating to the Property, except as
otherwise expressly set forth in the Preliminary Report.
H. Due Authorization. This Agreement and the performance of POST's obligations
under it and all documents executed by POST that are to be delivered to District at the Closing are, or
on the Closing Date shall be, duly authorized, executed, and delivered by POST and are, or at the
Closing Date shall be, legal,valid, and binding obligations of POST, and do not, and on the Closing
Date shall not,violate any provision of any agreement, articles, bylaws,or corporate resolutions to
which POST is a party or to which POST or the Property is subject. No consent of any partner,
shareholder, creditor, investor,judicial or administrative body, government agency, or other party is
required for POST to enter into and/or to perform POST's obligations under this Agreement,except
as has already been obtained, except for the consent of Seller to the Assignment of Landfill Removal
Agreement and Escrow Agreement. POST is a non-profit public benefit corporation organized,
validly existing, and in good standing under the laws of the State of California.
I. Title to the Property. POST has good and marketable title to the Property. There is no
unrecorded or undisclosed legal or equitable interest in the Property owned or claimed by anyone
other than POST, and no person or entity will, at the Closing, have any right to possession of the
Property except Tenants pursuant to the Leases (and the subtenants who exist under the Leases) and,
except as disclosed by the Agreement or otherwise in writing to District. There are no unsatisfied
mechanics' or materialmen's lien rights on the Property. No assessment lien or bond encumbers the
Property, and no governmental authority has undertaken any action that could give rise to an
assessment lien affecting the Property.
J. Personal Property. No person or entity will, at the Closing, have any right to
possession of the Personal Property included in the Purchase Price nor any liens or encumbrances
affecting such Personal Property, except as disclosed by this Agreement or otherwise in writing to
District.
Purchase Agreement Page 9
K. Hazardous Waste.
(i) 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.
(ii) Environmental Investigations. Two environmental investigations of the
Property have been conducted by Erler&Kalinowsky Inc. ("EKI"); a Phase I Environmental Site
Assessment dated August 1, 2001, and a Phase 11 Environmental Site Assessment dated October 25,
2005, and, in addition, specific area assessments were performed by EKI in conjunction with the
preparation of the Landfill Removal Agreement(all of which are collectively referred to herein as the
"Site Assessments"). The Site Assessments have been provided to District. The Site Assessments
conclude that certain Hazardous Waste is present on or in certain areas of the Property.
(iii) All of POST's representations and warranties made in this Section 7.K.(iii)are
made subject to and specifically exclude the presence of the Hazardous Materials described in the
Site Assessments,which are known to District. Subject to the information contained in the Site
Assessments:
(a) To the best of POST'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 POST undertaken, permitted, authorized or suffered any of the foregoing; and
(b) POST has not received any notice and no 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
POST received any communication from any such person or governmental agency or authority
concerning any such matters.
L. Indemnity. POST 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, and claims for
relocation payments or benefits pursuant to Government Code Section 7260 et seq. tot, he extent
arising from any breach of the warranties or representations contained in this Section 7. POST's
obligation to indemnify, defend and hold harmless pursuant to this Section 7.1, shall not apply
where, based on its own inspections,testing, evaluations and knowledge of the Property, District
Purchase Agreement Page 10
knew of the existence of any Hazardous Waste or underground storage tanks on, under, or about
the Property prior to the Closing, including the information set out in the Site Assessments, or
knew prior to Closing of the existence of any fact or condition that rendered any of POST's
representations or warranties incorrect.
8. District's Representations and Warranties.
A. Due Authorization. This Agreement and the performance of District's obligations
under it and all documents executed by District that are to be delivered to POST at the Closing are, or
on the Closing Date shall be, duly authorized, executed, and delivered by District and are, or at the
Closing Date shall be, legal, valid, and binding obligations of District, and do not,and on the Closing
Date shall not,violate any provision of any agreement, articles,bylaws, or corporate resolutions to
which District is a party or to which District or the Property is subject. No consent of any official,
officer, partner, shareholder, creditor, investor,judicial or administrative body, government agency,
or other party is required for District to enter into and/or to perform District's obligations under this
Agreement, except as has already been obtained.
B. Effect of Representations and Warranties. Each representation and warranty in this
Section 8 (a) is material and is being relied on by POST, (b) is true in all respects as of the Effective
! Date, (c) shall be true in all respects on the Closing Date, and(d) shall survive the Closing,except as
otherwise provided in this Agreement.
9. POST's Preclosing Covenants
A. No Amendment or Agtreements. On or after the Effective Date, POST shall not(a)
amend or waive any right under any Document delivered to District under Section 3 or(b)enter into
any lease or other agreement or any type affecting the Property that would survive the Closing Date,
without District's prior written consent.
B. Insurance. Through the Closing Date, POST shall maintain or cause to be maintained
in full force and effect comprehensive general liability casualty insurance, as well as other insurance
on the Property in an amount equal to the full replacement cost of the Improvements, or such other
amount as is acceptable to District
C. Maintenance and Operation. POST, at its sole cost and expense,must operate the
Property in substantially the same manner as it has operated the Property before the Effective Date
and must maintain and keep the Property such that on the Closing Date the Property is in at least as
good condition and repair as on the effective Date,reasonable wear and tear excepted. POST may
not make any material alterations to the Property without District's prior written consent.
D. Mechanics' Liens. Except for materials, supplies, or work provided or ordered for the
Property at the request of or for the account of District, on or before the Closing,POST must(a)pay
for all materials, supplies, and work provided or ordered for the Property for which a labor,
materialman's, or mechanics' lien may be claimed under applicable law and (b) if required by the I
prov
ide the Title Company with such indemnifications or security as it may require
an Y
Title Company, P
P Y P
to insure title to the Property at the Closing without exception for any unrecorded labor,
materialman's, or mechanics' claim of lien.
Paget 1
Purchase Agreement
Ih
E. Licenses and Permits. POST shall use due diligence and its best efforts to keep in full
force and effect, and shall renew, when necessary, all licenses and permits for the Property, if any
exist.
F. Notification. POST shall promptly notify District of any material change in any
condition with respect to the Property or of any material event or circumstance that makes any
representation or warranty of POST under this Agreement untrue or misleading.
G. Estoppel Certificates. POST agrees to use its best efforts to obtain the estoppel
certificates described in Section 3.13.
H. Service Contracts. POST covenants and agrees that before the Closing Date it shall
terminate all service contracts related to the Property except any that District has specifically elected
to assume or continue.
I
10. "As Is" Purchase. Subject to POST's Closing Conditions under Section 4,the District's
Closing Conditions in Section 3, and as a material inducement to POST's execution and delivery of
this Agreement and performance of its duties under this Agreement, and EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, DISTRICT HAS AGREED TO ACCEPT POSSESSION OF
THE PROPERTY ON THE CLOSING DATE ON AN"AS IS" BASIS. POST AND DISTRICT
AGREE THAT THE PROPERTY SHALL BE SOLD"AS IS, WHERE IS, WITH ALL FAULTS"
WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE, AND, EXCEPT
AS SET FORTH IN SECTION 7 OF THIS AGREEMENT, SUCH SALE SHALL BE WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING,
WITHOUT LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES,
USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND DISTRICT
DISCLAIMS AND RENOUNCES ANY SUCH REPRESENTATION OR WARRANTY.
DISTRICT HEREBY ASSUMES THE RISK THAT ADVERSE PHYSICAL, ENVIRONMENTAL,
LEGAL AND ECONOMIC CONDITIONS MAY NOT HAVE BEEN REVEALED BY THE DUE
DILIGENCE INVESTIGATIONS AND INSPECTIONS OF DISTRICT.
11. Waiver of Relocation Benefits and Statutory Compensation. POST and District understand
and agree that POST may be entitled to receive certain relocation benefits and the fair market value
of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation
Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646),the Uniform Relocation
Act Amendments of 1987 (Public Law 100-17,Title IV of the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. § 4601 et seq.), and the
t Government Code Section 7260 et se . POST hereby waives
Relocat
ion Assistance Act, q
California Re ,
any and all existing and/or future claims or rights POST may have to any relocation assistance,
,benefits procedures, or policies as provided in said laws or regulations adopted there under and to
�
any other compensation, except as provided in this Agreement. POST 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
i
Purchase Agreement Page 12
12. Miscellaneous Provisions
A. Access for Investigations. From the date POST 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 ("District
Parties") may, upon the giving of reasonable advance written notice to POST, 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 POST's prior written consent,which shall not be
unreasonably withheld or delayed and further provided that District shall give POST at least 24
hours' prior notice of each proposed entry by District. District shall indemnify,protect, defend and
hold POST 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
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. Amendment and Waiver. The parties hereto may by mutual written agreement amend
this Agreement in any respect. Any party hereto may: (i)waive any inaccuracies in representations
and warranties made by the other party contained in this Agreement or in any documents delivered
pursuant hereto; (ii) 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(iii) waive the fulfillment of
any condition that is precedent to the performance by such party of any of its obligations under this
Agreement. The General Manager is authorized to take any actions and execute any documents
necessary or appropriate to closing escrow and completing this conveyance. Any agreement on the
part of any party for any such amendment, extension or waiver must be in writing.
D. 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 parry.
E. Notices. Whenever any party hereto desires or is required to give any notice, demand,
or request with respect to this Agreement(or any Exhibit hereto), each such communication shall be
in writing and shall be deemed to have been validly served, given or delivered at the time stated
below if deposited in the United States mail, registered or certified and return receipt requested, with
proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or
other delivery service or sent by facsimile transmission by telex,telecopy,telegraph or cable or other
similar electronic medium, addressed as indicated as follows:
Purchase Agreement Page 13
POST: Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
Attn: Audrey Rust, President
Telephone: (650) 854-7696
Facsimile: (650) 854-7703
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: General Manager&Real Property Manager
Telephone: (650) 691-1200
Facsimile: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or
cabled notice shall promptly be sent by mail (in the manner provided above)to the addressee.
Service of any such communication made only by mail shall be deemed complete on the date of
actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of
the third(3rd) business day after the date of mailing, whichever is earlier in time. Either party
hereto may from time to time,by notice in writing served upon the other as aforesaid, designate a
different mailing address or a different person to which such notices or demands are thereafter to be
addressed or delivered. Nothing contained in this Agreement shall excuse either party from giving
oral notice to the other when prompt notification is appropriate, but any oral notice given shall not
satisfy the requirement of written notice as provided in this Section.
F. 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.
G. 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.
H. 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.
1. Entire Agreement. This Agreement and its Exhibits are 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
Purchase Agreement Page 14
thereof, and it supersedes any and all prior correspondence, conversations, negotiations, agreements
or understandings relating to the same subject matter.
J. Time of Essence. Time is of the essence of each provision of this Agreement in which
time is an element.
K. Survival of Covenants. All covenants of District or POST 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 according to their terms and
conditions and be binding upon and inure to the benefit of the respective parties hereto and their
respective heirs, successors and permitted assigns.
L. 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.
M. Further Documents and Acts and Compliance with Applicable Laws. 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 transaction
described and contemplated under this Agreement. The parties agree that the District's obligation to
complete the transaction contemplated in this Agreement,and to close the escrow, is conditioned
upon District's compliance with any laws applicable to the District's acquisition of the Property.
N. 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.
O. Broker's Commission. Neither District nor POST has used or employed a real estate
broker or agent in entering into this transaction. The parties mutually agree to indemnify, defend, and
hold the other party harmless against any and all costs, liabilities, loss, damages, claims or causes of
action which may result from any broker, agent or finder, licensed or otherwise, claiming through or
by reason of the conduct of the other party in connection with this transaction.
P. 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.
Q. 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.
R. 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 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
Purchase Agreement Page 15
et seq. including the right to discovery. Hearings shall be held in Santa Clara or San Mateo County,
California. If the parties are unable to agree upon an arbitrator,the arbitration shall be conducted by
Judicial Arbitration and Mediation Services, Inc. in accordance with the rules thereof. If arbitration
is required to resolve a dispute, it shall in all cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW,YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION
OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS
TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING
IN THE SPACE BELOW,YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL
UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION,YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
POST INITIAL DISTRICT INITIAL CV
13. Offer and Acceptance
A. Acceptance. Provided that this Agreement is executed by POST and delivered to
District on or before March 19, 2008, District shall have until midnight March 27, 2008 to accept and
execute this Agreement, and during said period this instrument shall constitute an irrevocable offer by
POST 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 POST 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.
B. Exhibits. The following Exhibits are attached to this Agreement and made a part
hereof by reference:
Exhibit A: Preliminary Report
Exhibit B: Bill of Sale
Exhibit C: Assignment of Leases and Security Deposits
Exhibit D: List of Tenants, Subtenants, Occupants and Licensees
Exhibit E: Tenant Estoppel Certificate and Waiver of Relocation Benefits
Exhibit F: Assignment of Landfill Removal Agreement and Escrow Agreement
Exhibit G: Map of Donor Recognition Site Agreement
Purchase Agreement Page 16
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: POST:
MIDPENINSULA REGIONAL OPEN PENINSULA OPEN SPACE TRUST
SPACE DISTRICT a California non-profit public benefit
corporation
AFfAOVED AND ACCEPTED:
By:
resident, Board of Directors Audrey C. RusCoesident
Date: 3 c ���' Date: 62 jF •
ATTEST:
District Cle v
Date:
ACCEPTED FOR RECOMMENDATION:
C - ('j Vt_�� -
Michael C. Williams, Real Property Manager
I
APPROVED AS TO FORM:
bUA�&&Wt*�
Susan M. Schectman, General Counsel
!DED FOR APPROVAL:
L. er CraigBritton General Manager
� g
Purchase Agreement Page 17
i
E
EXHIBIT /A
796 El Camino Real, Suite B
OLD REPUBLIC San Carlos, CA 94070
TITLE COMPANY (650) 591-6782 Fax: (650)591-6789
PRELIMINARY REPORT
Issued for the sole use of: FIRST AMENDED REPORT
MIDPENINSULA REGIONAL OPEN SPACE Our Order Number 0360006933-SG
DISTRICT
330 DISTEL CIRCLE
LOS ALTOS, CA 94022
When Replying Please Contact:
Susan Goulet
Buyer: (650) 591-6782
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
Property Address:
, CA
[Unincorporated area of San Mateo 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 Policies are set forth in
Exhibit A attached. Limitations on Covered Risks applicable to the Homeowners 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 February 19, 2008, at 7:30 AM
OLD REPUBLIC TITLE COMPANY
For Exceptions Shown or Referred to, See Attached
Page 1 of 5 Pages
('1PT11CR-A(P" 11/17/041
A
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360006933-SG
FIRST AMENDED REPORT
The form of policy of title insurance contemplated by this report is:
CLTA Standard Coverage Policy - 1990. 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
Title to said estate or interest at the date hereof is vested in:
Peninsula Open Space Trust, a California non-profit public benefit corporation
The land referred to in this Report is situated in the unincorporated area of the County of San Mateo, State of California,
and is described as follows:
PARCEL ONE:
All of Section 19 and all of that portion of the South 1/2 of Section 18 lying South of the center line of Mindego
Creek, all in Township 7 South, Range 3 West, Mount Diablo Base and Meridian; and the Northeast 1/4 of
Section 24, Township 7 South, Range 4 West, Mount Diablo Base and Meridian.
PARCEL TWO:
A right of way for road purposes over that portion of the Northwest 1/4 of Section 21, now traversed by the
road leading from Alpine Road in the Southwest 1/4 of said Section 21, in a general Northwesterly direction,
across the Southwest 1/4 and the Northwest 1/4 of said Section 21 to Section 20 and continuing over and across
said Section 20 to said Section 19. (Said Sections 19, 20 and 21 being in Township 7 South, Range 3 West,
Mount Diablo Base and Meridian.
APN :080-320-060
080-340-010
083-310-060
JPN :080-032-320-06 A
080-034-340-01 A
083-031-310-06 A
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 2008 - 2009, a lien, but not
yet due or payable.
Page 2 of 5 Pages
nPT 41 SR-R
FXP11 1T A
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360006933-SG
FIRST AMENDED REPORT
2. Taxes and assessments, general and special, for the fiscal year 2007 - 2008, as follows:
Assessor's Parcel No 080-320-060
Code No. 66-005
1st Installment $794.02 Marked Paid
2nd Installment $794.02 NOT Marked Paid
Land $38,775.00
Imp. Value $100,337.00
3. Taxes and assessments, general and special, for the fiscal year 2007 - 2008, as follows:
Assessor's Parcel No 080-340-010
Code No. 66-005
1st Installment $718.12 Marked Paid
2nd Installment $718.12 NOT Marked Paid
Land $97,776.00
Imp. Value $36,000.00
Exemption $7,000.00 Homeowner
i
4. Taxes and assessments, general and special, for the fiscal year 2007 - 2008, as follows:
Assessor's Parcel No 083-310-060
Code No. 66-005
1st Installment $160.33 Marked Paid
2nd Installment $160.33 NOT Marked Paid
Land $18,466.00
5. Any easement for water course over that portion of said land lying within the banks of
Mindego Creek and any changes in the boundary lines of said land that have occurred or
may hereafter occur from natural causes.
6. Any right, title, claims, or other interest, and such rights as may be incidental thereto,
whether or not shown by the public records to the waters of Alpine Creek.
7. Terms and provisions as contained in an instrument,
Entitled Mineral Deed
Executed By R. A. Isenberg and Gerda Isenberg
Dated June 9, 1950
Recorded June 15, 1950 in Book 1878 of Official Records, Page 43
Page 3 of 5 Pages
nGT'At SR-R
EXHIBIT
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360006933-SG
FIRST AMENDED REPORT
8. Terms and provisions as contained in an instrument,
Entitled Mineral Deed
Executed By R. A. Isenberg and Gerda Isenberg
Recorded August 2, 1951 in Book 2109 of Official Records, Page 412
9. Agreement for maintaining real property within the provisions of the Williamson Act
and its Amendments dated June 23, 1966
Executed By County of san Mateo, a political subdivision of the State of California
and Between Arnold E. True and Corinne A. True
On the terms, covenants and conditions contained therein,
Recorded June 24, 1966 in Book 5180 of Official Records, Page 532
10. An easement affecting that portion of said land and for the purposes stated herein and
incidental purposes as provided in the following
Instrument Easement
Granted To Pacific Telephone and Telegraph Company
For Public utilities
Recorded November 17, 1976 in Book 7301 of Official Records, Page 567
Affects a portion of said property
11. Decree of Determination of the Rights of the various claimants to the water of San Gregorio
Creek Stream System in San Mateo County; recorded February 18, 1993 as Document No.
93026619, of Official Records of San Mateo County, California,
Stipulation and Order correction Decree recorded April 6, 1993 as Document No. 93053614
of Official Records of San Mateo County, California.
Order Modifying Decree Re: Publication Requirements recorded June 10, 1993 as Document
No. 93095377 of Official Records of san Mateo County, California.
For more information, please contact:
Barbara Katz
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95801
Page 4 of 5 Pages
nPT 41 SR-R
HMff A
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360006933-SG
FIRST AMENDED REPORT
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, and that there be annexed
to the conveyance a certificate of compliance and approval meeting the requisites of Section
7912 Corporations Code.
13. Any unrecorded and subsisting leases.
14. Rights and claims of parties in possession.
-------------------- Informational Notes-------------------
A. The applicable rate(s) for the policy(s) being offered by this report or commitment appears
to be section(s) 1.1.
B. NOTE: According to the public records, there have been no deeds conveying the property
described in this report recorded within a period of 36 months prior to the date hereof
except as follows:
Trust Transfer Deed executed by Ramon R. True and A. Christopher True, successor
co-trustees of the True Family Trust UfT/A dated August 15, 1976, as to an
undivided fifty percent (50%) interest to Ramon R. True, a married man, as his sole
and separate property, as to an undivided twenty-five percent (25%) interest and
A. Christopher True, a married man, as his sole and separate property, as to an
undivided twenty-five percent (25%) interest recorded June 28, 2007 in Official
Records under Recorder's Serial Number 2007-098670.
Grant Deed executed by Ramon R. True and A. Christopher True, successor co-
trustees of the True Marital Trust UfT/A dated August 15, 1976, as to an undivided
fifty percent(50%) interest and Ramon R. True, an individual, as to an undivided
twenty five percent (25%) interest and A. Christopher True, an individual, as to an
undivided twenty-five percent (25%) interest to Peninsula Open Space Trust, a
California non-profit public benefit corporation recorded October 10, 2007 in Official
Records under Recorder's Serial Number 2007-147266.
O.N.
JE/sej
Page 5 of 5 Pages
nPT'A 1 SR-R
EXHIBIT A
Exhibit A
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE POLICY-1990
EXCLUSIONS FROM COVERAGE
The following matters are 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:
i
1. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations)
restricting, regulating, prohibiting or relating(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; (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 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 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) whether or not recorded in the public records at Date of Polity,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 disdosed 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
(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. Unenforceability 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 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 daim 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 daim, which arises out of the transaction vesting in the insured the estate of interest insured by this policy or the transaction creating 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,attorneys'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
such agency or by the public records.
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 area, encroachments, or any other facts which a correct survey would disdose,and which
are not shown by the public records.
5. (a)Unpatented mining daims;(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.
Page 1 of 1
16. Tenant makes the foregoing statements, declarations,representations and warranties to
District with the understanding that District may take certain actions based on the District's
material reliance on this Estoppel Certificate, including but not limited to District's purchase of
the Premises. Tenant understands that if any of the statements made by Tenant in this Estoppel
Certificate are materially false or misleading, or omit to state a material fact, as a result of any
circumstances known to Tenant,that Tenant may be prevented from taking a position that is
inconsistent with the statements set forth above in this Estoppel Certificate.
A. Christopher True
By:
Name:
Its:
Dated: 92008
Subtenants or Licensees
Dated: 2008
Veroncia True
Dated: 2008 Natalie Haubrich
Dated: 92008 Paloma Gomez
Dated: 52008 Greg Rivas
Dated: 52008
David Rivas
Dated: 2008
David Williams
EXHIBIT E page 3
EXHIBIT F
ASSIGNMENT OF LANDFILL.REMOVAL AGREEMENT AND ESCROW AGREEMENT
This Assignment of Landfill Removal Agreement and Escrow Agreement("Assignment") is
entered into as of 2008 between Peninsula Open Space Trust, a California non-
profit public benefit corporation ("Assignor"or"POST") and Midpeninsula Regional Open
Space District, a California special district("Assignee" or"District").
RECITALS
A. Assignor and Assignee have entered into a Purchase Agreement("Agreement") dated
, 2008 in which Assignee has agreed to acquire real property known as Mindego
Ranch, located in an unincorporated area of the County of San Mateo, State of California
("Property"),Assessor's Parcel Numbers 080-320-060, 080-340-010, and 083-310-060,
and more particularly described in Exhibit of the Agreement.
B. Assignor has previously entered the following agreements concerning the Property,
copies of which are attached hereto marked Exhibit I and 11, and incorporated in this
Assignment:
Exhibit 1: Landfill Removal Agreement between POST and RAMON R. TRUE AND A.
CHRISTOPHER TRUE, SUCCESSOR CO-TRUSTEES OF THE TRUE
MARITAL TRUST UITIA DATED AUGUST 15, 1976,RAMON R. TRUE,
individually and not in his capacity as a Trustee, and A. CHRISTOPHER TRUE,
individually and not in his capacity as a Trustee (collectively referred to as
"Trues") dated October 10,2007.
Exhibit 11: Escrow Agreement between the Trues, POST, and Old Republic Title Company,
dated October 10, 2007
These agreements are hereafter collectively referred to as the"Assigned Agreements"
C. Pursuant to the Agreement,Assignor has agreed to assign to Assignee all right,title, and
interest in the Assigned Agreements, and Assignee has agreed to assume all Assignor's
rights and obligations under the Assigned Agreements.
For good and valuable consideration received, Assignor and Assignee agree as follows:
SECTION 1. ASSIGNMENT
Assignor assigns all right, title, and interest in, and delegates all duties, responsibilities and
obligations created by or arising pursuant to,the Assigned Agreements to Assignee effective
upon the date of Close of Escrow for the purchase of the Property from Assignor by Assignee,
which shall be the effective date of this Assignment, including without limitation Assignor's
rights to all funds held in escrow pursuant to the Escrow Agreement.
EXHIBIT F page
SECTION 2. ASSUMPTION AND INDEMNITY
Assignee assumes all of Assignor's rights,obligations, duties, and responsibilities under the
Assigned Agreements, and Assignee agrees to perform (for the benefit of Assignor and the
Trues, as third party beneficiaries of this Assignment) all of the Assignor's obligations, duties
and responsibilities under the Assigned Agreements, regardless of whether such obligation,duty
or responsibility arose before or arises after the effective date of this Agreement. Assignor shall
indemnify and defend Assignee against and hold Assignee harmless from all claims, demands,
liabilities, losses, damages, costs and expenses, including,without limitation, reasonable
attorneys' fees and disbursements, caused by any failure by Assignor to perform any of the
obligations, duties, or responsibilities under the Assigned Agreements assumed by it.
SECTION 3. SUCCESSORS
This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs,
executors, administrators, successors in interest, and assigns.
SECTION 4. SEVERABILITY
If any term or provision of this Assignment shall be held invalid or unenforceable,the remainder
of this Assignment shall not be affected.
SECTION,5. WAIVERS
No waiver or breach of any covenant or provision shall be deemed a waiver of any other
covenant or provision, and no waiver shall be valid unless in writing and executed by the
waiving party.
SECTION 6.. CONSTRUCTION
Headings are solely for the parties' convenience,and are not a part of this Assignment, and shall
not be used to interpret this Assignment. The singular form shall include plural and vice versa.
This Assignment shall not be construed as if it had been prepared by one of the parties,but rather
as if both parties have prepared it. Unless otherwise indicated, all references to sections are to
this Assignment.
SECTION 7. COUNTERPARTS
This Assignment may be executed in one or more counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one and the same instrument.
This Assignment may not be amended or altered except by a written instrument executed by
Assignor and Assignee.
EXHIBIT F page 2
SECTION 8. FURTHER ASSURANCES
Whenever requested to do so by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, Assignments, confirmations, satisfactions, releases, powers of
attorney, instruments of further assurance, approvals, consents, and any further instruments or
documents that are necessary, expedient, or proper to complete any conveyances,transfers, or
assignments contemplated by this Assignment. In addition, each party shall do any other acts
and execute, acknowledge, and deliver any requested documents in order to carry out the intent
and purpose of this Assignment.
SECTION 9. THIRD-PARTY RIGHTS
Nothing in this Assignment, express or implied, is intended to confer any rights or remedies
upon any person, other than the Assignor,Assignee, and the Trues, and their respective
}
successors and assigns.
SECTION 10. GOVERNING LAW
This Assignment shall be governed and construed in accordance with California law.
SECTION 11. NO RELEASE
The Trues are executing this Assignment solely for the purpose of consenting to this Assignment
as required pursuant to Section 8.5 entitled"Assignment" of the Landfill Removal Agreement
and Section 12 entitled "Amendment; Assignments"of the Escrow Agreement. Escrow Agent is
executing this Assignment solely for the purpose of consenting to this Assignment as required
pursuant to Section 12 entitled"Amendment; Assignments"of the Escrow Agreement. Assignor
and Assignee acknowledge that the assignment and/or delegation by Assignor pursuant to this
Assignment shall not relieve Assignor from any of its obligations under the Assigned
Agreements (including, without limitation, all indemnification, defense and hold harmless
obligations of Assignor under the Assigned Agreements), as to which Assignor shall remain
jointly and severally liable with Assignee.
I
I
I
EXHIBIT F page 3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
ASSIGNOR: The TRUES:
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit Ramon R. True, individually
corporation
By: A. Christopher True, individually
Audrey C. Rust
Its: President RAMON R. TRUE, SUCCESSOR CO-
TRUSTEE OF THE TRUE MARITAL
TRUST U/T/A DATED AUGUST 15, 1976
ASSIGNEE: A. CHRISTOPHER TRUE, SUCCESSOR
CO-TRUSTEE OF THE TRUE MARITAL
MIDPENINSULA REGIONAL TRUST U/T/A DATED AUGUST 15, 1976
OPEN SPACE DISTRICT
By:
Its:
CONSENT TO ASSIGNMENT OF ESCROW AGREEMENT
ESCROW HOLDER, Old Republic Title Company
By:
Its:
EXHIBIT F page 4
EXHIBIT G
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EXHIBIT A
Old Republic Title Company
Privacy Policy Notice
PURPOSE OF THIS NOTICE
Title V of the Gramm-Leach-Bliley Act (GLBA) generally prohibits any financial institution, directly or
through its affiliates, from sharing nonpublic personal information about you with a nonaffiliated third
party unless the institution provides you with a notice of its privacy policies and practices, such as the
type of information that it collects about you and the categories of persons or entities to whom it may
be disclosed. In compliance with the GLBA, we are providing you with this document, which notifies
you of the privacy policies and practices of Old Republic Title Company
We may collect nonpublic personal information about you from the following sources:
Information we receive from you such as on applications or other forms.
Information about your transactions we secure from our flies, or from [our affiliates or] others.
Information we receive from a consumer reporting agency.
Information that we receive from others involved in your transaction, such as the real estate
agent or lender.
Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic
personal information will be collected about you.
We may disclose any of the above information that we collect about our customers or former
customers to our affiliates or to nonaffiliated third parties as permitted by law.
We also may disclose this information about our customers or former customers to the following
types of nonaffiliated companies that perform marketing services on our behalf or with whom we
have joint marketing agreements:
Financial service providers such as companies engaged in banking, consumer finance,
securities and insurance.
Non-financial companies such as envelope stuffers and other fulfillment service
providers.
WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR
ANY PURPOSE THAT IS NOT SPECIFICALLY 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 to guard your nonpublic
personal information.
ORT 287-C 5/07/01
EXHIBIT A
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EXHIBIT B
BILL OF SALE FOR PERSONAL PROPERTY
For valuable consideration, receipt of which is hereby acknowledged, Peninsula Open Space
Trust("POST"), a California, non-profit public benefit corporation, hereby assigns, sells, and
transfers to Midpeninsula Regional Open Space District("District"), a Public District formed
pursuant to Article 3 of Chapter 3 of Division 5 of the California Public Resources Code, all of
POST's right, title and interest to all the Personal Property owned by POST and located in and
upon, and used in connection with,the Property, as such term is defined in that certain "Purchase
Agreement"dated 2008 between POST and DISTRICT. Such personal
property shall include, without limitation, all water use, delivery and storage systems, tanks,
troughs and pipelines located on the property. Such Personal Property shall exclude the
"Removable Property"as defined in Exhibit B to that certain Lease Agreement dated October
10, 2007 between POST("Landlord") and A. CHRISTOPHER TRUE("Tenant").
IN WITNESS WHEREOF, POST has executed this Bill of Sale as of
2008.
Peninsula Open Space Trust,
a California nonprofit public benefit
corporation
By:
Audrey C. Rust, President
Date
EXHIBIT B
EXHIBIT C
ASSIGNMENT OF LEASES AND SECURITY DEPOSITS
This Assignment of Leases and Security Deposits("Assignment") is entered into as of
5 2008 between Peninsula Open Space Trust("POST"'), a California non-profit
public benefit corporation ("Assignor")and Midpeninsula Regional Open Space District
("District"), a California special district("Assignee").
RECITALS
A. Assignor and Assignee have entered into a Purchase Agreement("Agreement")dated
-5 2008 in which Assignee has agreed to acquire real property known as Mindego Ranch,
located in an unincorporated area of the County of San Mateo, State of California("Property"),
Assessor's Parcel Numbers 080-320-060, 080-340-010, and 083-310-060, and more particularly
described in Exhibit A of the Agreement.
B. Assignor has previously entered the following leases of the Property ("Leases"),copies
of which are attached, hereto marked Exhibit I, and incorporated in this Assignment:
1. Lease Agreement between POST and A. Christopher True ("Tenant"), dated October
10, 2007.
2. Other Lease Agreements if any exist:
C. Assignor has accepted and retained any required security deposits(collectively "Security
Deposits")from tenants under the Leases in the amounts set forth in attached Exhibit I and
incorporated in this Assignment.
D. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all right, title, and
interest in the Leases and the Security Deposits, and Assignee has agreed to assume all
Assignor's obligations under the Leases.
For good and valuable consideration received, Assignor and Assignee agree as follows:
SECTION 1. ASSIGNMENT
Assignor assigns all right, title, interest, and obligations in the Leases and the Security Deposits
to Assignee effective upon the date of Close of Escrow for the purchase of the Property from
Assignor by Assignee,which shall be the effective date of this Assignment.
EXHIBIT C page 1
SECTION 2. NOTICE TO TENANTS
Following the execution of the Agreement, Assignor shall give notice to the tenants under the
Leases that Assignee has entered into the Agreement to purchase the Property and has been
assigned the landlord's interest in the Leases.
SECTION 3. ASSUMPTIONS
Assignee assumes and agrees to perform (for the benefit of Assignee and Tenants, who are third
party beneficiaries of this Assignment) all the landlord's obligations, duties, responsibilities, and
liabilities under the Leases which arise or are to be performed after the effective date of this
Assignment(i.e.,those obligations which do not arise out of conduct, acts or failures to act,
circumstances or events taking place prior to the effective date of this Assignment).
SECTION 4. ASSIGNOR'S COVENANTS
Assignor covenants to the best of its knowledge that the Leases are in full force and effect.
Assignor further covenants to the best of its knowledge that there are no defaults under the
Leases.
SECTION 5. INDEMNITY
A. Assignor shall indemnify and defend Assignee against and hold Assignee harmless from
all claims, demands, liabilities, losses, damages, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements (collectively "Claims") caused by any
failure by Assignor to perform any of its obligations under the Lease(as landlord)prior to the
date of this Assignment or any breach of the Lease occurring prior to the effective date of this
Assignment.
B. Except as set forth in the preceding paragraph,Assignee shall indemnify and defend
Assignor against and hold Assignor harmless from any Claims caused by Assignee's failure to
perform any of its obligations under the Lease (as landlord)on or after the effective date of this
Assignment(i.e., do not arise out of conduct, acts or failures to act, circumstances or events
taking place prior to the effective date of this Assignment)and during the period of Assignee's
ownership of the real property subject to the Lease.
SECTION 6. SUCCESSORS
This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs,
executors, administrators, successors in interest, and assigns.
SECTION 7. SEVERABILITY
If any term or provision of this Assignment shall be held invalid or unenforceable, the remainder
of this Assignment shall not be affected.
EXHIBIT C page 2
SECTION 8. WAIVERS
No waiver or breach of any covenant or provision shall be deemed a waiver of any other
covenant or provision, and no waiver shall be valid unless in writing and executed by the
waiving party.
SECTION 9. CONSTRUCTION
Headings are solely for the parties' convenience, and are not a part of this Assignment, and shall
not be used to interpret this Assignment. The singular form shall include plural and vice versa.
This Assignment shall not be construed as if it had been prepared by one of the parties,but rather
as if both parties have prepared it. Unless otherwise indicated, all references to sections are to
this Assignment.
SECTION .10. COUNTERPARTS
This Assignment may be executed in one or more counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one and the same instrument.
This Assignment may not be amended or altered except by a written instrument executed by
Assignor and Assignee.
SECTION 11. FURTHER ASSURANCES
Whenever requested to do so by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, assignments, confirmations, satisfactions, releases,powers of
attorney, instruments of further assurance, approvals, consents, and any further instruments or
documents that are necessary, expedient, or proper to complete any conveyances,transfers, or
assignments contemplated by this Assignment. In addition, each party shall do any other acts
and execute, acknowledge, and deliver any requested documents in order to carry out the intent
and purpose of this Assignment.
SECTION 12. THIRD-PARTY RIGHTS
Nothing in this Assignment, express or implied, is intended to confer upon any person, other
than the parties,the Tenants under the Leases, and their respective successors and assigns, any
rights or remedies.
SECTION 13. GOVERNING LAW
This Assignment shall be governed and construed in accordance with California law.
HI
HI
page 3
EXHIBIT C
POST and DISTRICT,by their execution below, indicate their consent to the terms of this
Assignment.
POST:
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation
I
By:
Audrey C. Rust,President
Date:
DISTRICT:
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT
APPROVED AND ACCEPTED:
By:
L. Craig Britton, General Manager
Date:
APPROVED AS TO FORM:
By:
Susan M. Schectman, General Counsel
ATTEST:
By:
Greg Sam,District Clerk
Date:
EXHIBIT C page 4
I
EXHIBIT D
LIST OF TENANTS SUBTENANTS OCCUPANTS AND LICENSEES
l. A. Christopher True
2. Veronica True
3. Natalie Haubrich
4. Paloma Gomez
5. Greg Rivas
6. David Rivas
7. David Williams
8. (If Applicable)
9. (If Applicable)
10. (If Applicable)
� I
EXHIBIT D
J
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE AND WAIVER OF RELOCATION BENEFITS
Tenant Name and Address:
Christopher True
P.O. Box 35
La Honda, CA94020
The undersigned, as tenant, subtenant, licensee or occupant(hereafter collectively
referred to as"Tenant") of the Mindego Ranch Property,the description of which is attached
hereto as Exhibit I and hereafter referred to as "the Premises". Peninsula Open Space Trust
("POST"), as landlord hereinafter referred to as ("Landlord")by the Lease Agreement dated
October 10, 2007 has leased the Premises to A. Christopher True and the Lease Agreement has
been assigned to MIDPENINSULA REGIONAL OPEN SPACE DISTRICT("District"). The
undersigned represents to the District, for its benefit and reliance, as follows:
1. A complete,true and correct copy of the Lease (inclusive of all addenda, exhibits and
riders thereto and all amendments and modifications thereof to date), is concurrently herewith
certified and delivered by Tenant to District and attached hereto as Exhibit 11.
2. The Lease as attached hereto is the only agreement between Landlord and Tenant with
respect to the Premises, and there are no modifications, amendments, supplements or
understandings, oral or written, amending, supplementing or changing the terms of the Lease
except as so attached hereto.
3. The Lease is in full force and effect, having been duly executed and delivered by Tenant
and is a valid binding obligation of Tenant.
4. Tenant has accepted possession of the Premises and any improvements required by the
terms of the Lease to be made by Landlord have been completed to the satisfaction of Tenant.
5. Rental and other amounts due and payable under the Lease to be made by Landlord have
been paid to the date of Tenant's execution of this Estoppel Certificate.
6. Landlord is not in default under any of the terms, conditions or covenants of the Lease,
and Tenant does not possess or assert any claims against the Landlord for failure to perform any
of the terms of the Lease. Landlord has fulfilled all of its duties and obligations under the Lease.
7. No notice has been received or given by Tenant of any default under the Lease by
Landlord or Tenant that has not been cured,and there are no circumstances that, with the passage
of time or giving of notice, or both,would constitute a default by Landlord or Tenant.
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8. The address for notices to Tenant is as follows:
9. Tenant has no charge, lien, or claim of offset under the Lease or against rent or other
charges due under the Lease, and Tenant has no outstanding claim for credit or reimbursement
on account of Tenant's improvements to the Premises.
10. Tenant has no right or option to purchase the Premises or any part or all of the building of
which they are a part, or to renew or extend the Lease, or to expand the Premises.
11. Tenant has not received notice of any assignment, hypothecation, mortgage or pledge of
Landlord's interest in the Lease or the rents or other amounts payable under the Lease.
12. The amount of any security or other deposit returnable to Tenant pursuant to the Lease is
set forth in the Lease and the amount of any rental and other amounts paid more than thirty (30)
days prior to the date on which they are due under the Lease are also set forth in the Lease.
13. Tenant has not assigned or entered into any subleases or licenses, whether oral or written,
of the Premises, except as follows:
1. Veronica True
2.Natalie Haubrich
3. Paloma Gomez
4. Greg Rivas
5. David Rivas
6. David Williams
14. On Landlord's notice to Tenant of the Closing of District's acquisition of the Premises,
Tenant shall attorn to, be liable to, and recognize District as the Landlord under the Lease and
shall be bound by and perform all of the obligations imposed by the Lease on Tenant, and
District shall succeed to all of the rights of the Landlord under the Lease. Tenant acknowledges
and agrees that District shall not be liable for any act or omission of any person or party who
may have been a Landlord under the Lease before District's acquisition of the Premises and
District shall not be subject to any defenses or offsets or claims Tenant may have against POST
or any prior Landlord.
15. Waiver of Relocation Benefits. Tenant understands and agrees that Tenant may be
entitled to receive certain relocation benefits as provided for by the Federal Uniform Relocation
Assistance and Real Property Acquisition Act of 1970 (Public Law 100-17, Title IV)of the
Surface Transportation and Uniform Relocation Assistance Act of 1987 (42 U.S.C. § 4601 et
seq). Tenant hereby waives any and all existing and/or future claims or rights Tenant may have
against District for any relocation assistance,benefits, procedures, or policies as provided in said
laws or regulations adopted thereunder and to any other compensation.
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