HomeMy Public PortalAbout20090624 - Resolution - Board of Directors (BOD) (2) Cover Sheet for Scanning by ECS
Originating Department General Manager
laserfiche Template Board of Directors
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Document Date: 6/24/2009
Document Type: Resolution
Preserve Name:
Keywords (no more than 4): POST Purchase Mills Creek
Project Name:
Project Number:
Vendor or Other Party:
Name (First):
Name(last):
Address:
APN Number:
Document No. 09-20
Additional Field:
Additional Field:
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Additional Field:
RESOLUTION 09-20
RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT,
AUTHORIZING GENERAL MANAGER OR OTHER OFFICER TO EXECUTE CERTIFICATE
OF ACCEPTANCE OF GRANT TO DISTRICT,AND AUTHORIZING GENERAL MANAGER
TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO
CLOSING OF THE TRANSACTION(MILLS CREEK OPEN SPACE PRESERVE - LANDS OF
PENINSULA OPEN SPACE TRUST)
The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept
the offer contained in that certain Purchase Agreement between the Peninsula Open Space Trust and the
Midpeninsula Regional Open Space District,a copy of which purchase agreement is attached hereto and
by reference made a part hereof,and authorizes the President or other appropriate officer to execute the
Agreement on behalf of the District to acquire the real property described therein ("the POST Property").
Section Two. The General Manager, President of the Board of Directors or other appropriate officers
authorized to execute Certificate of Acceptance for the Grant Deed on behalf of the District.
Section Three. The General Manager or the General Manager's designee shall cause to be given
appropriate notice of acceptance to the seller and to extend escrow if necessary.
Section Four. The General Manager is authorized to expend up to$10,000 to cover the cost of title
insurance, escrow fees, site clean up and other miscellaneous costs related to this transaction.
Section Five. The General Manager and General Counsel are further authorized to approve any technical
revisions to the attached Agreement and documents which do not involve any material change to any term
of the Agreement or documents, which are necessary or appropriate to the closing or implementation of
this transaction.
Section Six. The purpose of this Section is to enable the District to reimburse its general fund for the cost
of certain land acquisitions. The District wishes to finance certain of these real property acquisitions and
expects to use tax-exempt debt, such as bonds, but a tax-exempt financing is not cost justified for the
District unless the principal amount of the financing is large enough to justify the related financing costs.
Consequently, it is the District's practice to buy property with its general funds and, when a tax-exempt
financing is cost justified based on the aggregate value of acquisitions,to issue tax-exempt obligations to
reimburse itself for previous expenditures of general funds. These general funds are needed for operating
and other working capital needs of the District and are not intended to be used to finance property
acquisitions on a long-term basis.
U.S. Income Tax Regulation Section 1.150-2 requires an issuer of tax-exempt debt to declare its intent to
use a portion of tax-exempt debt proceeds for reimbursement of expenditures prior to the payment of the
expenditures. Accordingly, the Board of Directors hereby declares its intent to issue tax-exempt
obligations in the maximum principal amount of$400,000 and to use a portion of the proceeds of the
obligations for reimbursement of District expenditures for acquisition of the POST Property that are paid
before the date of issuance of the obligation.
RESOLUTION NO.09-20
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on June 24, 2009 at a Regular Meeting thereof, by the following vote:
AYES: Mary Davey, Larry Hassett, Nonette Hanko, Pete Siemens,
Cecily Harris
NOES: None
ABSTAIN:
ABSENT: Jed Cyr, Curt Riffle
ATTEST: APPROVED:
Secreta President
Board of Directors Board of Directors
I, the Interim 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.
Interim District C e
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CERTIFICATE OF ACCEPTANCE
(GOVERNMENT CODE SEC. 27281)
This is to certify that the interest in real property conveyed by the foregoing deed, grant
or other instrument dated , from
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to the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a public district, is hereby
accepted by the undersigned on behalf of the District pursuant to authority conferred by j
resolution of the Board of Directors of the Midpeninsula Regional Open Space District bearing
No. 0 9—2 0 , adopted on June 24, 2009 , and said District consents to recordation
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thereof.
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Dated 2009
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
By
Pr ident, Board of Directors
A�, *ST:
h�u�
Dist ' lerk
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� PURCHASE AGREEMENT
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/ This Purchase Agreement(hereinafter called "& is made and entered into by
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� undb��n��np��D��UL� ()PB� �P��� ?�0�]� u(�u|if6mnionon-profit, pubhcbenc6tcorpoogion,
! (hereinafter called "POST"), and the MIDPENUNSOCA REGIONAL OPEN SPACE DISTRICT, upu6|ic
| district formed pursuant\o Article 3 of Chapter 3 of Division 5 of the California Public Resources Code,
(hcrcinuftcrcoUcd "Dipkiot")
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/ RECITALS
| WHEREAS, POST was organized uuunon-pno6\, charitable corporation to solicit, uzcinc �
� 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 �
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/ 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 |
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� WHEREAS, POST im the owner o/certain real property which has open space and /
� recreational value located within un unincorporated area of the County of San Mateo, and being more
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particularly described within the body o[this Agreement; and
WHEREAS, District was fbnncd by voter initiative to solicit and receive conveyances nf /
rcu| property bv purchase, exchange, gift, or bargain pu,rhoeu for preservation, public park, recreation, |
scenic and open space purposes; and |
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� VVBERE/\8, District desires 10 porohuac said property for open space preservation and as
� part ofthe ecological, recreational, aesthetic, and nu1uco| resources of the mmidpeninyu|u area; and |
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WHEREAS, POST Out ofdesire to promote public wu||brc, and share tile natural and |
scenic beauty and c joynocn�of�hcirpvopcU� witb �hcoibz�nso[thcmidp�ninxu|uan�u hcr�b�m�rccu�o., ` �
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
N()VV, THEREFORE, io consideration of the foregoing recitals and the mutual promises |
and covenants herein contained,the parties hereto agree u* follows: '
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|. Purchase and Sale. POST agrees W sell to District and District agrees to purchase from /
POST, P()gl`s vca| property located within an unincorporated area o[the County ofSan Mateo, State of |
California, containing approximately thirty one and nine tenths(31.9)acres, more or less, and commonly |
referred (uux Sun Mateo County Assessor's Parcel Number O64 3V0 02O Said r�u| property is further
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described in the Legal Description attached to Preliminary Report number 0360009068 from Old Republic '
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Title Company dated March 19, 2009. & copy of said Preliminary Report ia attached hereto uo"Exhibit
/\", and incorporated herein bv this rufbn:ncc. Said property imtobc conveyed together with any �
cnaemuu{u, rights ofway, or rights nf use which may be appurtenant or attributable tothe aforesaid |uoda |
and any and all improvements attached or affixed thereto. All of said real property and appurtenances shall |
hereinafter bo called the "Subject Property" nr the "Property."
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� 2. Purchase Price. The total i ("Purchase Price") for the Property shall hcFour
� Hundred Thousand and No/l0O Dollars($40O,0O0.0O) which shall be paid in cash ut tile "OnoiuQ" us
' defined in Section 3 hereof.
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]. Escrow. Promptly upon execution of this Agreement, in accordance with Section I �
herein, an escrow shall be opened at Old RepublicTitle Company, 796 El Carnino Real, Suite B, San �
Carlos, C& 9407O, (658) 5A|-G782 (Escrow number 036O0OA060). nr other title company acceptable(n �
District and POST(hereinafter "Escrow Holder")through which the purchase and sale ofthe Property shall �
� be consummated. & 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. ]'his �
� Agreement may be amended or supplemented by explicit additional escrow instructions signed by the |
parties, but the printed portion of such escrow instructions shall not supersede any inconsistent provisions �
contained herein. Escrow Holder is hereby appointed and instructed to deliver, pursuant to the terms of /
this Agreement,the documents and monies to be deposited into the escrow as herein provided, with the
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following terms and conditions to apply to said escrow:
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A. The time provided for in thc escrow for tile close thereof shall be on or before
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� June 30, 2009, provided however, that the parties may, by written agreement, extend tile tirne for Closing.
The term "C|using" um used herein shall bcdccmcd1ohe the date when Escrow Holder causes the Grant �
Deed (as defined below)to be recorded in the Office of the County Recorder of San Mateo County. '
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B. 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|*the terms of this Agreement. �
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� C. POST shall deposit into the escrow, on or before tile Closing, u duly executed and �
� recordable Grant Deed, covering the Property uadescribed in said Exhibit/t and a !
� duly executed Assignment o[Lcuyc !
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D. C)iu�ic1mbuU6cnuob b�od'���o,ow onurbc�v�|hc<���io8��
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0 [� nqub� ���� n���p�� �rt�Gm� ��. do���ui� �' ' �
� by District and k` he dated aaof the Closing;
(ii) Aduly executed Assignment of Lease, inthe form attached to this �
� Agreement usExhibit B, assigning to District, POST`s interest as lessor in the Lease Agreement between �
POST and John-Zhoo Roberts and (}uing Zhuo Roberts um identified in Subsection 5.Cbelow. �
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(iii) District's check payable {o Escrow Holder in the amount ofThrre �
Hundred Ninety nine Thousand and No/|00 Dollars($399,OOO.00). The $|,00O.0O balance o[the �
Purchase Price is paid into escrow us adepoait in accordance with Section | | of this Agreement. �
E. District shall pay the escrow fees, the CLTA Standard Policy of Title Insurance, if
required 6v 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
ouy0mnnuryin Santa Mateo County. All Current property taxes oil the Property shall be pro-rated through
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escrow between District and POST as of the Closing based upon the latest available tax information using
the customary escrow procedures. �
F. POST shall cause Old Republic Title Company, or other title company acceptable �
to District and POST, to be prepared and committed to deliver to District, uCCT& Standard Policy of Title �
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� Insurance, dated aaof the Closing, insuring District in the amount of8650,00 for the Property showing
� title twthe Property vested in fee simple in District, subject only to: (i) current real property taxes; (ii)
exception numbers 5 and 6uy listed io Preliminary Report No. 036O009O60 dated March |4, 20O9; and
(iii) Such additional title exceptions as may be approved in writing by District prior to the Closing as
determined by District in its sole and absolute discretion.
� O. Escrow Holder shall, when all required funds and instruments have been
deposited into the escrow by the appropriate parties and when all other conditions to Closing have been
fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded in the Office ofthe
� County Recorder o[San Mateo County. Upon the Closing, Swcn`vv Holder shall cause to be delivered to
� District the original of the policy oftitle insurance required herein, and k, POST Escrow Holder's check for
the ftill Purchase Price of the Subject Property(less POST's portion of tile expenses described in Section
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U.), and to District or POST, as the case may be, all other documents or instruments which are to be
delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all
monies, docurnents or other things of value deposited iii-the escrow to the party depositing the same. �
4. . District shall permit P0ST|n �
reserve the right to specially recognize "Significant Supporters"(as such term is defined in and in
compliance with the criteria set out in District's "Policies for Site Naming and Gift Recognition"omare in �
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effect as of the date of this Agreement and as such may hereinafter be amended from time to time) bvthe �
naming in a manner desired by a Significant Supporter(s)and acceptable to POST and District, District's �
consent not to be unreasonably withheld, ofaspecific location, land formation, trail, natural and physical
� feature, or other area uf significance within the Property. POST may exercise this reservation by stating in
writing to District its request for such recognition on or behmnr five(5)ycum following the Closing. Such
recognition shall be on plaques or small signs, which shall be unobtrusive and consistent with the purpose �
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for which District is acquiring the Property including the preservation of public open mpuuc and nyiunz|
habitat. Any and all costs associated with the installation, repair, and maintenance Of Such recognition
plaques or signs shall be borne by POST. This covenant shall automatically terminate five(5)years from �
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� the date of Closing, except that POST's duty to repair and maintain Such plaques or signs as have been
� installed whu|| survive the termination of this covenant. �
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5 Rights and Liabilities of the Parties in the Event of Termination. In the event this
� Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from any �
� further obligations hereunder, except aa otherwise provided herein. Upon any such termination o[escrow, �
� all parties hereto shall be oindyondmcvuru||y liable to Escrow Holder for payment of its title and escrow �
� cancellation churgcu(nuNmottu rights ofsubrogodon against any ponyvvhowcfault ruuyhave caused such
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� termination of escrow), and each party expressly reserves any other rights and remedies which it may have
� against any other party by reason o[a wrongful termination or failure toclose escrow.
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6. . For the purpose o[consummating the sale and
purchase of the Property in accordance herewith, POST makes the following representations and
warranties 1oDistrict, which shall survive close ofescrow, each of which is material and is being relied
upon hyDistrict:
A. Authority. POST has the hm|| right, power and authority to enter into this
Agreement and to perform tile transactions contemplated hereunder.
B. Valid and Bindinp,Agreements. This Agreement and all other documents
delivered by POST to District now or at the Closing have been or will be duly authorized and executed and
delivered by POST and are legal, valid and binding obligations of POSTsufficient to convey 0o District the
Subject Property described therein, and are enforceable in accordance with their respective terms and do
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� not violate any provisions of any agreement N which POST isa party orby which POST may be bound mr
| any articles, bylaws ur corporate resolutions ofPOST.
C. Leases. POST has delivered to District u true, accurate, and complete copy o[the �
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Lease Agreement between John-Zhao Roberts and Quing Zhao Roberts(Tenant)and POST dated �
December 23, 2008, attached hereto as Exhibit B of this Agreement, and incorporated by this reference.
� There are no other written or oral |eueca, suhirmaco, licenses, occupancies, or tenancies in effect pertaining �
{o the Property. The Lease Agreement imin full force and effect;the Tenant iu not in default under the
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� terms ofthe Lease Agreement nor is the Lease Agreement subject 0u ally defenses, me��Ms, or
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� counterclaims for the benefit u[any tenant; and no rent has been prepaid nor concessions given nzany �
tenant under the Lease Agreement except umdisclosed in tile document. To P()ST`m knowledge, the tenant �
of the Property iu not tile euhioutofu bankruptcy o/ insolvency proceeding. P()STnuuynot nnodi[v, cancel, �
amend, o t�nd1b� L�u� ' Agreement, i i hts d 1h i Agreement, �' into
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� , or Lease or under � �ua� �nr�rn�n , orrn �, �
any new tenant lease between the date POST executes this Agreement and the Closing Date without �
� District's prior written uppvovu| POST �
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the Lease Agreement. �
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7. Waiver of Relocation Benefits and Statutory Compensation. POST and District
understand and agree that POST may |e entitled Voreceive certain relocation benefits and tile fair market
value o[the Property described in Exhibit A, as provided for bythe Pedcnu1 Uniform Relocation
� Assistance and Real Property Acquisition Act o[|970(Public Law q|-646), the Uniform Relocation Act
� Amendments of)887 (Public Law l0O'l7), Title |Voftile Surface Transportation and Uniform Relocation
� Assistance Act o[|A87 (/0) Statutes, 246-256)(42D.S.C. '4601 c/sag.), and the California Relocation �
� Assistance Act, Government Code Section 726Oe/seq. POST hereby waives any and all existing and/or
future clairns or rights POST may have to any relocation assistance, benefits, procedures, or policies as �
� provided in said laws or regulations adopted thereunder and to any other compensation, except as provided �
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| in this Agreement. POST has been advised as to the extent and availability of such benefits, procedures, �
||| uoiicepedods, anduxmiotoncc, uudfrcelvaudknowing\yvaivcomuuhc|aimy, rightoouducxiceperiodm
except ma set forth in this Agreement, including the fair market value ofsaid Property, as provided for
by �
said Federal Law and any similar California Law. �
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0. This sale is nnodo without representation urwarranty by POST, �
except am expressly set forth in this Agreement. District represents, warrants, acknowledges and agrees �
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that it has had Um|| and ample opportunity prior to the execution of this Agreement to investigate the
Property including, but not limited to, the physical condition thcn:of-, the presence, absence or condition o[
improvements thereon; and that District shall purchase the Property . �
9. Hazardous Waste. �
A. Definitions. The term "Hazardous Wmste," uy used herein, means any substance, �
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material or other thing regulated by or pursuant to any federal, state or local environmentallaw hvreason �
of its potential for hunn to human bcu|(h or the environment because of its flammability, toxicity, �
reactivity, corrosiveness or carcinogenicity. The term "Buzuodmum Waste" also includes without limitation,
| polychlorinated biphenyls, benzene, asbestos, petroleum, petroleum by-products, gas, gas liquids and lead.
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| The term "Environmental Law" vm used herein includes, without limitation, the Comprehensive
| Environmental Response, Compensation and Liability Act of 1980(42 U.S.C. Section 9601 o/xeg.)and
| the Resource Conservation and Recovery Act(42 U.S.C. Section 690| m�uoy�) �
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B. Representations and Warranties. For the purpose of consummating the sale and �
' purchase of the Property, POSTmakes the following representations and warranties to District, which shall �
i survive close of escrow, each of which ia material arid iu being relied upon by �
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(i) To 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 oi-
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;
(i i) POST has not received any notice and POST has no actual knowledge
that any private person or governmental authority or administrative agency or any employee or agent
thereof has determined, alleged or commenced or threatened to commence any litigation, or other
proceedings,to determine that there is a presence, release,threat of release, placement on, under or about
the Property, or the use, manufacture, handling, generation, storage,treatment, discharge, burial or
disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous
Waste, nor has POST received any communication from any such person or governmental agency or
authority concerning any such matters.
C. *Indemnitv. 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, to the extent arising from
any breach of the warranties or representations contained herein. POST's obligation to indemnify, defend
and hold harmless pursuant to this Section 8 shall not apply where, based on its own inspections,testing,
evaluations and knowledge of the Property, District knew or had reason to know of the existence of any
Hazardous Waste or underground storage tanks on, under, or about the Property prior to the Closing.
10. 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.
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� The District's General Manager is authorized to take any actions and execute any docurnents necessary or
� appropriate to closing escrow and completing this conveyance. Any agreement on the part of any party for
any such amendment, extension orwuiver/nustheinvxhiog.
D. Rights Cumulative. Each and all of the various rights, powers and remedies o[the
parties shall be considered 1ohe cumulative with and in addition k`any other rights, powers and remedies
� which the puriicammayhave a1 law orinuqubvin the event ofthe breach o[any of the terms ofthis
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&grccnmcrd. The exercise or partial exercise of any right, power or remedy shall neither constitute tile
� exclusive election thereof nor the waiver of any other right, power or remedy available to such party.
E. Notices. Whenever any party hereto desires oris required 1m 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
� ifdcpoaited in the United States nouiL registered or certified and return receipt requested, with proper
postage prepaid, or if delivered by Federal Express or other private rneuyeogc,,courier or other delivery
service or sent by facsimile transmission by telex, tci000py, telegraph or cable or other similar electronic �
� medium, addressed ms indicated uofollows:
�
POST: Peninsula Open Space Trust
222 Bkd� �tn�u
� = �
Palo Alto, CA943O| �
Attn: Audrey Rust, President
TEL: U650854-7696
� FA){: (65CU0�4-77U� �
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� District: knsula Regional Open Space District
� 330Distc| Circle
Los Altos, C894O22 �
� Attn: General Manager �
TEL: (650) 691-1200 �
FA}{: (650) 691-0485 �
lf sent bv telegraph, facsimile copy or cable, u confirmed copy of such telegraphic, taxmimmi|cnrcab|cd
notice shall promptly be sent by mail (in the manner provided above)to the addressee. Service oFmnysuch
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 ora1the expiration ofthe third(3rd) business day after the
� date ofmailing, whichever imearlier in time. Either party hereto may from time tutime, by notice in
writing served upon the other uo aforesaid, designate u different mailing address oru different peruon|o
� 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
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appropriate, but any oral notice given shall not satisfy the requirement of written notice as provided in this
Section.
� F. Severabili1y. [f any of the provisions ofthis 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 deteoniva1ion shall not result in the nullity or
� unenfbrceahi|ityuf the remaining portions of this Agreement. The parties further agree to replace such
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void or unenforceable provisions which will achieve, tothe extent possible, the economic, business and
other purposes of the void o,unenforceable provisions.
� G. Counterparts. This Agreement may bcexecuted in separate counterparts, each of
which shall be deemed as an original, and when executed, separately or together, shall constitute a single
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� original instrument, effective in the same manner as if the parties had executed one and the same
� instrument.
H. Waiver. No waiver mf any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deerned 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.
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� [ Entire Agreement. This Agreement iu intended (y the parties tobc the final
� expression of their agreement; it embodies the entire agreement and understanding between the parties
hereto; it constitutes uoonmp|e1c and exclusive statement of the terms and conditions thereof, and it
� supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings
relating\o the mamc subject matter.
� J. Time of Essence. Time ixu[tile essence uf each provision of this Agreement ill
which time imunelement.
K. . 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
� wununhem bveitberpar��tu the other, shall survive the(�\osingaccording k)their teommand conditions,
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� 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 um expressly permitted herein, neither party Umthis
Agreement shall assign its rights or obligations under this Agreement to any third party without the prior
written approval of tile other party.
� M. Further Documents and Acts and Compliance with Applicable Laws. Each o[the
� parties hereto agrees to execute and deliver such further documents and perform such other actsum may hc
reasonably necessary orappropriate to consummate and carry into effect the transaction described and
contemplated under this /kgrcoomcmt.
N. Binding on Successors and Assign . 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 tile parties hereto.
(). Captions. Captions are provided herein for convenience only and they form no
part ofthis Agreement and are not to serve ouubasis for interpretation or construction of this Agreement,
nor ow evidence uf the intention of the parties hereto.
P. Pronoun References. ln this Agreement, ifi1be appropriate,the use ofthe
singular shall include the plural, and the plural uhuU include the singular, and the use of any gender shall
include all other genders as appropriate.
Q. . lfa dispute arises out ofor relates to this Agreement o,
the performance orbreach 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 uuurmo|vcd controversy
� or claim oba|1 be settled by arbitration. The pm1ico obu||jointly select one arbitrator who eba|| be retired
orfbnner 'udgeofthe Superior Court ofCalifornia. The arbitration shall bn conducted in accordance with
� the rules set forth in California Code uf Civil Procedure Sections 1280o/. seq. including the right 1u
� discovery. Hearings ubaU be bc|d in Santa Clara or Son Mateo County, California. If the parties are
�
7
�
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 DIS13UTE 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 44j�',� DISTRICT INITIAL I/f I
H. Acceptance. Provided that this Agreement is executed by POST and delivered to District
on or before May 22, 2009, District shall have until midnight,June 24, 2009 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/I 00($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.
8
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
APPROVED AND ACCEPTED:
No tte Hanko, President, Board of Directors Audrey C. Rus P�esident
Off- /*. 4Z
Date It I Date
AT T: 44
Anna fatczak, Dist 'ct erk
I
ACCEPTED FOR RECOMME ATION:
CC 91-1
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
itephodE. Abbors, General Manager
9
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: Our Order Number 0360009068-SG
When Replying Please Contact:
Susan Goulet
(650) 591-6782
Property Address:
Apn 064-390-020, , 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.The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than that set forth
in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive
remedy of the parties. Limitations on Covered Risks applicable to the Homeowner's Policy of Title Insurance which establish a
Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Exhibit A. Copies of the Policy
forms should be read.They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this
report carefully.The exceptions and exclusions are meant to provide you with notice of matters which are not covered
under the terms of the title insurance policy and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title and may
not list all liens,defects,and encumbrances affecting title to the land.
This report(and any supplements or amendments hereto)is issued solely for the purpose of facilitating the issuance of a policy of title
insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance,
a Binder or Commitment should be requested.
Dated as of March 19, 2009, at 7:30 AM
OLD REPUBLIC TITLE COMPANY
For Exceptions Shown or Referred to, See Attached
Page 1 of 5 Pages
nP-T 71 SR-A tp.,, nwn71nm
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360009068-SG
The form of policy of title insurance contemplated by this report is:
Homeowner's Policy of Title Insurance - 2008; AND ALTA Loan Policy - 2006. 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:
Commencing at the Southeast corner of a tract of land now or lately belonging to James Campbell and running
thence in an Easterly course, in a straight line with the Southerly line of the aforesaid James Campbell's Land
to the Eastern boundary of the Miramontes Rancho; thence Northerly along said line to the land now or
formerly belonging to John Jones; thence Westerly, along said Jones line to the Northeasterly corner of the
aforesaid James Campbell's Land and thence Southerly to the point of beginning.
Being portion of the Miramontes Rancho and containing 80 acres of land, more or less, and being the same
property described in the Deed from William Johnston to Conrad Stanter, dated December 20, 1871 and
recorded January 2, 1872 in Book 14 of Deeds at Page 11, Records of San Mateo County.
EXCEPTING THEREFROM that portion thereof described in the Deed from lean R. Sepz and Odette Sepz, his
wife to D. H. Thomason and Hila E. Thomason, his wife, dated August 18, 1960 and recorded August 30, 1960
in Book 3851 of Official Records of San Mateo County at Page 732 (85620-S).
APN: 064-390-020 JPN: 64-39-390-02
PARCEL TWO:
A non-exclusive easement for vehicular and pedestrian access as set out in Access Easement Agreement
recorded December 23, 2008, Series No. 2008-136760, San Mateo County Records.
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 2009 - 2010, a lien, but not
yet due or payable.
Page 2 of 5 Pages
nPT 11 F.R-R
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360009068-SG
2. Taxes and assessments, general and special, for the fiscal year 2008 - 2009, as follows:
Assessor's Parcel No 064-390-020-2
Code No. 87-029
1st Installment $2,787.70 Marked Paid
2nd Installment $2,787.70 NOT Marked Paid
Land Value $523,752.00
3. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et
seq., of the Revenue and Taxation Code of the State of California.
4. An easement affecting that portion of said land and for the purposes stated herein and
incidental purposes as provided in the following
Instrument Deed
Reserved By Heidi E. Olsen
For Road purposes
Dated December 19, 1997
Recorded December 31, 1997 in Official Records under Recorder's Serial
Number 97-173564
Affects The Westerly 60 feet of Parcel One
5. An easement affecting that portion of said land and for the purposes stated herein and
incidental purposes as provided in the following
Instrument Well, Pipeline and Access Easement
Granted To John-Zhao Roberts and Qing Zhao Roberts
For Well, pipeline and access
Recorded December 23, 2008 in Official Records under Recorder's Serial
Number 2008-136759
Affects As described and delineated in said instrument
6. Terms and provisions as contained in an instrument,
Entitled Well, Pipeline and Access Easement
Executed By Peninsula Open Space Trust, a California non-profit public benefit
corporation and John-Zhao Roberts and Qing Zhao Roberts
Recorded December 23, 2008 in Official Records under Recorder's Serial
Number 2008-136759
Returned to
Address John-Zhao and Qing Zhao Roberts, 1550 Miramontes Street, Half
Moon Bay, CA 94019
Page 3 of 5 Pages
0PT41c;R-R
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360009068-SG
Note: Reference is made to said instrument for full particulars.
7. Terms and provisions as contained in an instrument,
Entitled Access Easement
Executed By Peninsula Open Space Trust, a California nonprofit public benefit
corporation and John-Zhao Roberts and Qing Zhao Roberts
Dated December 23, 2008
Recorded December 23, 2008 in Official Records under Recorder's Serial
Number 2008-136760
Returned to
Address 222 High Street, Palo Alto, CA 94301, Attn: Walter Moore, Esq.
Note: Reference is made to said instrument for full particulars.
AFFECTS PARCEL TWO:
8. 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
5912 Corporations Code.
-------------------- 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 and 2.1.
Page 4 of 5 Pages
M-1 ZIrR.R
OLD REPUBLIC TITLE COMPANY
ORDER NO. 0360009068-SG
B. The above numbered report (including any supplements or amendments thereto) is hereby
modified and/or supplemented to reflect the following additional items relating to the
issuance of an American Land Title Association loan form policy:
NONE
NOTE: Our investigation has been completed and there is located on said land vacant land
known as APN 064-390-020, , CA.
The ALTA loan policy, when issued, will contain the CLTA 100 Endorsement and 116 series
Endorsement.
Unless shown elsewhere in the body of this report, there appear of record no transfers or
agreements to transfer the land described herein within the last three years prior to the date
hereof, except as follows:
Grant Deed executed by John-Zhao Roberts and Qing Zhao Roberts, husband and wife, as
Community Property to Peninsula Open Space Trust, a California non-profit public benefit
corporation recorded December 23, 2008 in Official Records Linder Recorder's Serial Number
2008-116718,
O.N.
KW/yh
Page 5 of 5 Pages
nPT 41 SR-R
ORDER NO. : 0360009068-SG
EXHIBIT A
The land referred to is situated in the unincorporated area of the County of San Mateo, State of
California, and is described as follows:
PARCEL ONE:
Commencing at the Southeast corner of a tract of land now or lately belonging to James
Campbell and running thence in an Easterly course, in a straight line with the Southerly line of
the aforesaid James Campbell's Land to the Eastern boundary of the Miramontes Rancho;
thence Northerly along said line to the land now or formerly belonging to John Jones; thence
Westerly, along said Jones line to the Northeasterly corner of the aforesaid James Campbell's
Land and thence Southerly to the point of beginning.
Being portion of the Miramontes Rancho and containing 80 acres of land, more or less, and
being the same property described in the Deed from William Johnston to Conrad Stanter, dated
December 20, 1871 and recorded January 2, 1872 in Book 14 of Deeds at Page 11, Records of
San Mateo County.
EXCEPTING THEREFROM that portion thereof described in the Deed from Jean R. Sepz and
Odette Sepz, his wife to D. H. Thomason and Hila E. Thomason, his wife, dated August 18,
1960 and recorded August 30, 1960 in Book 3851 of Official Records of San Mateo County at
Page 732 (85620-S).
APN: 064-390-020 JPN: 64-39-390-02
PARCEL TWO:
A non-exclusive easement for vehicular and pedestrian access as set out in Access Easement
Agreement recorded December 23, 2008, Series No. 2008-136760, San Mateo County Records.
Page 1 of 1
�II
Exhibit A
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE(01/01/08)
ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE
EXCLUSIONS
In addition to the Exceptions in Schedule B,You are not insured against loss,costs,attorneys'fees,and expenses resulting from:
1. Governmental police power,and the existence or violation of those portions of any law or government regulation concerning:
a. building;
b. zoning;
C. land use;
d. improvements on the Land;
e. land division; and
f. environmental protection.
This Exclusion does not limit the coverage described in Covered Risk 8.a., 14, 15, 16, 18, 19,20, 23 or 27.
2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion
does not limit the coverage described in Covered Risk 14 or 15.
3. The right to take the Land by condemning it.This Exclusion does not limit the coverage described in Covered Risk 17.
4. Risks:
a. that are created,allowed,or agreed to by You,whether or not they are recorded in the Public Records;
b. that are Known to You at the Policy Date, but not to Us,unless they are recorded in the Public Records at the Policy Date;
C that result in no loss to You; or
d. t hat first occur after the Policy Date-this does not limit the coverage described in Covered Risk 7,8.e.,25,26,27 or 28.
5. Failure to pay value for Your Title.
6. Lack of a right:
a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A;and
b, in streets,alleys,or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 21.
LIMITATIONS ON COVERED RISKS
Your insurance for the following Covered Risks is limited on the Owner's Coverage Statement as follows:
For Covered Risk 16, 18, 19,and 21 Your Deductible Amount on Our Maximum Dollar Limit of Liability shown in Schedule A.
The deductible amounts and maximum dollar limits shown on Schedule A are as follows:
Your Deductible Amount Our Maximum Dollar Limit of Liability
Covered Risk 16: 1.00%of Policy Amount or$5,000.00 $25,000.00
(whichever is less)
Covered Risk 18: 1.00%of Policy Amount or$5,000.00 $25,000.00
(whichever is less)
Covered Risk 19: 1.00%of Policy Amount or$5,000.00 $25,000.00
(whichever is less)
Covered Risk 21: 1.00%of Policy Amount or$5,000.00 $25,000.00
(whichever is less)
Page 1 of 2
Exhibit A
AMERICAN LAND TITLE ASSOCIATION
LOAN POLICY OF TITLE INSURANCE-2006
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 that arise by reason of:
1. (a) Any law,ordinance, permit,or governmental regulation(including those relating to building and zoning)restricting,regulating, prohibiting, or
relating to
(i) the occupancy,use,or enjoyment of the Land;
(ii) the character,dimensions,or location of any improvement erected on the Land;
(iii) the subdivision of land; or
(iv) environmental protection;or the effect of any violation of these laws,ordinances,or governmental regulations. This Exclusion
1(a)does not modify or limit the coverage provided under Covered Risk 5.
(b) Any governmental police power. This Exclusion i(b)does not modify or limit the coverage provided under Covered Risk 6.
I
2. Rights of eminent domain.This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects,liens,encumbrances,adverse claims,or other matters
(a) created,suffered,assumed,or agreed to by the Insured Claimant;
(b) not Known to the Company,not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in
writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy(however,this does not modify or limit the coverage provided under Covered Risk 11, 13,
or 14); or
(e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business laws
of the state where the Land is situated.
5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured
Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law.
6. Any claim, by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'rights laws,that the transaction creating the lien
of the Insured Mortgage, is
(a) a fraudulent conveyance or fraudulent transfer,or
(b) a preferential transfer for any reason not stated in Covered Risk 13(b)of this policy.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Data of Policy and
the data of recording of the Insured Mortgage in the Public Records.This Exclusion does not modify or limit the coverage provided under Covered
Risk 11(b).
EXCEPTIONS FROM COVERAGE—SCHEDULE B, PART 1,SECTION ONE
This policy does not insure against loss or damage(and the Company will not pay costs,attorneys'fees or expenses)that arise by reason of:
1. (a)Taxes or assessments that 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; (b)proceedings by a public agency that 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 that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that
may be asserted b persons in possession of the Land.
Y YP
3. Easements,liens or encumbrances,or claims thereof,not shown by the Public Records.
4. Any encroachment,encumbrance,violation,variation,or adverse circumstance affecting the Title that would be disclosed by an accurate and
complete land survey of the Land and not shown by the Public Records.
5. (a)Unpatented mining claims; (b)reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c)water rights,claims or title
to water,whether or not the matters excepted under(a),(b),or(c)are shown by the Public Records.
Page 2of2
� Old Republic Title Company
Privacy Policy Notice
PURPOSE OF THIS NOTICE �
Title Vofthe Gram m+Le8[h-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 �
� ' �
be disclosed. In compliance with theGLBA. 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 h]||Vvving sources:
| Information vve receive from you such a5OD applications Or other forms.
Information about your transactions we secure from our files, or from [our affiliates or] others.
Information vve receive from a consumer reporting agency.
Information that we receive from others involved in your transaction, such as the real estate
agent Orlender.
/ Unless itis specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic
personal information will b8 collected about you.
We may disclose any of the above information that we CO||eCt about our customers Or former
cuS{OrnerS to our affiliates or to nonaffiliated third parties as permitted by |8vv.
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 inSV[dO[8.
� 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 l5 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 oommp|yvvith federal regulations to guard your nonpublic
i
� -
� personal information.
ORT287-C 5/07/01 �
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EXHIBIT B
ASSIGNMENT OF LEASE
This Assignment of Lease("Assignment") is entered into as of. 2009 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
, 2009 in which Assignee has agreed to acquire real property located in an unincorporated
area of the County of San Mateo, State of California("Property"), Assessor's Parcel Number 064-390-020,
and more particularly described in Exhibit A of the Agreement.
B. Assignor has previously entered into a Lease Agreement dated December 23, 2008 (the"Lease")
with John-Zhao Roberts and Quing Zhao Roberts, a copy of which is attached, hereto as Exhibit B-1 for
use and access of a storage shed located on the Property,and incorporated in this Assignment:
C. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all right,title,and interest in
the Lease, and Assignee has agreed to assume all Assignor's obligations under the Lease.
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 Lease 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.
SECTION 2. NOTICE TO TENANTS
Following the execution of the Agreement, Assignor shall give notice to the tenants under the Lease that
Assignee has entered into the Agreement to purchase the Property and has been assigned the landlord's
interest in the Lease.
SECTION 3. ASSUMPTIONS
Assignee assumes all the landlord's obligations, duties, responsibilities, and liabilities under the Lease
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 Lease is in full force and effect. Assignor further
covenants to the best of its knowledge that there are no defaults under the Lease.
|
SECTION 5. INDEMNITY
A. Assignor shall indemnify and defend Assignee and hold Assignee harm less from a]|
obahnm demands, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements (collectively"Claims")caused by any failure by Assignor to perfbnn 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 ua set forth in the preceding paragraph, Assignee mhuU iodennuifvaod defend /\omi8no,
against and bold Assignor harmless from any Claims caused by Assignee's failure to perform any ofits
obligations under the Lease(as landlord)on or after the effective date of this Assignment(i.e., do not arise
out o[conduct, acts ur failures to act,circumstances or events taking place prior to the effective date ofthis �
�
Assignment) and during the periodofAmmiQnce"sovvoershi of the real property subject no the Lease.
SECTION 6. SUCCESSORS
This Assignment shall be binding on and inunctothe benefit ofthe pudica to it, their heirs, executors,
administrators, successors in interest, and assigns.
If any term or provision of this Assignment shall be held invalid or unenforceable,the remainder of this |
|
� Assignment shall not hcaffected. '
!
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 apart of this Assignment, and shall not be |
used to interpret this Assignment. The singular form shall include p|ona/ and vice versa. This Assignment
| shall not be construed osifb had been prepared by one of the parties, but rather umd,both parties have �
prepared it, lJn|cme ntbcmviac indicated, all references tosections are to this Assignment.
SECTION 10. COUNTERPARTS
This Assignment may heexecuted 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
� &naigocc.
SECTION 11. FURTHER ASSURANCES
�
Whenever requested todoaobv 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 docurnents 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 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.
POST and DISTRICT, by their execution below, indicate their consent to the terms of this Assignment.
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation
By:
Audrey C. Rust, President
Date:
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
APPROVED AND ACCEPTED:
By:
Stephen E. Abbors, General Manager
Date:
APPROVED AS TO FORM:
By:
Susan M. Schectman, General Counsel
ATTEST:
By: Anna Jatczak, District Clerk
3
EXHIBIT B- 1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into this 23 day of
December, 2008 (the "Effective Date'), by and between PENINSULA OPEN SPACE TRUST
("Landlord'), and JOHN-ZHAO ROBERTS AND QING ZHAO ROBERTS (collectively
"Tenant").
RECITALS
A- Landlord is the owner of that certain real property consisting of
approximately 32 acres of real property located in Half Moon Bay, California (the "Property"),
having purchased the Property from Tenant pursuant to that certain Agreement for the Purchase and
Sale of Real Property dated November 10,2008(the"Purchase Agreement").
B. The Purchase Agreement provides that Tenant, who has retained ownership
of a parcel of real property adjacent to the Property (referred to herein as the "Tenant Property"),
shall be entitled to lease and access a storage shed located on the Property (the "Shed") following
conveyance of the Property to Landlord. Accordingly, Landlord wishes to lease to Tenant, and
Tenant wishes to hire from Landlord, upon the terms and conditions set forth herein, that certain
portion of the Property on which the Shed is located, in the areas shown in Exhibit A, attached
hereto(the"Premises").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of which are
acknowledged,the parties agree as follows:
1. Premises. Landlord hereby leases the Premises to Tenant, and Tenant hereby hires
the Premises from Landlord, for the Term provided in Section 2, below, at the rental, and upon the
conditions set forth herein. Tenant shall also be entitled to access the Premises over and through an
access road located on the Property(the"Access Road'),in the area shown on Exhibit A.
2. Term, The term of this Lease (the "Term') shall commence as of the date hereof
(the "Commencement Date"), concurrently with the conveyance of the Property from Tenant to
Landlord,and shall expire at midnight on the second(2nd)anniversary of the Commencement Date,
subject to Options (defined below), unless sooner terminated in accordance with the provisions
hereof.
Tenant shall be entitled to extend the Tenn for two (2) periods of one (1) year each (each
such extension is referred to herein as an"Option'),subject to all of the terms and conditions of this
Lease,by providing written notice of such election to Landlord not less than sixty (60) days prior to
the expiration of the Term (or the first Option, as applicable); provided, however, that (i) Tenant
shall not be entitled to exercise an Option at any time Tenant is in default of its obligations
hereunder, and (ii) if Tenant fails to exercise the first Option, the second Option shall automatically
WESM1615550.1
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be deemed waived and relinquished by Tenant. Any Option(s) properly exercised by Tenant shall
be deemed included in the"Term"hereunder,
Notwithstanding anything to the contrary in this Lease, Tenant agrees that, in the event
Tenant sells the Tenant Property during the Term, this Lease shall automatically be terminated
concurrently with the closing of such sale. Tenant shall provide Landlord with not less than thirty
(30)days prior written notice of the anticipated closing date of any such sale of the Tenant Property
and shall discharge all of its surrender obligations set forth in Section 7 below at its sole expense
prior to such closing date.
3. Rental. Tenant shall not be required to pay any "base rental" for the occupancy of
the Premises, it be understood and agreed that the right to occupy the Premises during the Term
subject to the terms and conditions of this Lease is part of the agreed consideration paid for the
Property under the Purchase Agreement. Notwithstanding the foregoing, to the extent any
payments are required to be made by Tenant pursuant to the terms of this Lease, such amounts shall
be designated as "Additional Rent", and shall be paid timely to any third parties or reimbursed to
Landlord as required under this Lease. Additional Rent, if any, shall be paid when due by Tenant
without offset or deduction, in lawful money of the United States of America at Landlord's address
set forth in Paragraph 15 below, or to such other address as Landlord may from time to time
designate in writing to Tenant.
4. Utilities and Services. Tenant shall pay directly for any and all services and utilities
supplied to the Premises, including but not limited to water, gas, electricity, garbage removal and
telephone service, to the extent applicable. If Tenant fails to discharge its obligation provided in this
Section 4, Landlord may, but is not required to, make any such payment(s) on Tenant's account, in
which case all such amounts paid by Landlord shall be paid to Landlord as Additional Rent within
ten(10)days after Landlord's written demand for payment
5. Use. The Premises shall be used as a storage area for Tenant and for no other
purpose. Tenant shall not do or permit anything to be done in or about the Premises nor bring nor
keep anything therein which will in any way cause a cancellation of any Landlord's insurance
policy covering the Premises or any part thereof. Tenant shall not commit or allow any nuisance or
waste in or upon the Premises, nor shall Tenant's act or omission impair the "Conservation Values"
of the Property. As used in the preceding sentence, "Conservation Values" consist of the natural,
scenic, historical, open space and recreational value of the Property, and Tenant acknowledges that
Landlord has acquired the Property from Tenant under the terms of the Purchase Agreement for the
primary purpose of maintaining and preserving such Conservation Values. Tenant shall not use the
Premises or permit anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter
be promulgated, including without limitation all environmental laws, and all lam and regulations
respecting livestock kept on the Premises. Landlord acknowledges and agrees that the extent and
nature of Tenant's use of the Shed as of the Effective Date does not violate the foregoing provisions
of this Section 5.
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6. Condition of Premises,Maintenance and Repair; Alterations.
(a) Tenant accepts the Premises in their "AS-IS", "WHERE-IS" condition, and
agrees and acknowledges that Landlord has not made any representations or warranties with respect
to the Premises whatsoever. Tenant has owned and occupied the Premises prior to the Closing of
the Purchase Agreement, is familiar with its condition, and agrees and acknowledges that Landlord
shall not be required to make any repairs or other improvements to the Premises.
(b) During the Term,Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Premises or any-part thereof, without the prior written
consent of Landlord, which shall not be unreasonably withheld. Landlord, at its sole discretion,
may require that Tenant remove any such alterations and improvements upon expiration or prior
termination of this Lease. Except as otherwise expressly provided herein, as consideration for this
Lease Tenant shall perform the following obligations at Tenant's sole expense throughout the Term:
(i)to keep the Premises as clean and sanitary as their condition permits; (H)to dispose of all rubbish,
garbage, and other waste on the Premises and the Access Road in a clean and sanitary manner; (iii)
to maintain and repair the Shed, and all utility lines,pipes and equipment on the Premises; and(iv)
to maintain and repair the Access Road;provided, however, that(1)Landlord and Tenant agree and
acknowledge that a separate easement agreement between Landlord and Tenant of even date
herewith requires Landlord, as "grantor" thereunder, to maintain the Access Road, (2)
notwithstanding the terms and conditions of such easement, during the Term of this Leases Tenant
shall maintain the Access Road, and(3)Tenant's maintenance obligation with respect to the Access
Road shall terminate as of the expiration or earlier termination of this Lease.
7. Surrender of Premises. Not later than (30) days prior to the expiration of the Term
or any earlier termination of the Lease resulting from a sale of the Tenant Property, as provided in
Section 2 above (the "Removal Date"), at its sole expense Tenant shall remove the Shed and all
personal property located in or on the Premises, including additional improvements, alterations
and/or personal property placed on the Premises after the Effective Date hereof(collectively the
"Tenant Improvements"); provided, however, that Tenant shall not be required to remove the
existing foundation of the Shed. Tenant shall repair all damage to the Property occasioned by such
removal. Such removal shall be completed in accordance with any applicable local requirements of
San Mateo County. The provisions of this Section 7 shall survive the expiration of the Term or the
earlier termination of this Lease and Landlord reserves all rights and remedies hereunder for
Tenant's failure to fulfill its obligations under this Section 7. Notwithstanding any other provisions
of this Agreement, Tenant may, at any time during the term hereof remove the Tenant
Improvements, and upon such removal and Tenant's compliance with its repair obligations set forth
in this Section 7,this Agreement shall terminate.
8. Liens. Tenant shall keep the Premises free from any liens arising out of any work
performed,materials furnished or obligations incurred by Tenant.
9. Waiver of Claims. Landlord shall not be liable to Tenant,and Tenant hereby waives
any claims against Landlord for any injury or damage to any person or property in or about the
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III
Premises, unless proximately caused by Landlord's own willful or grossly negligent acts,by or from
any cause whatsoever.
10. Insurance and Indemnity. At all times during the Term, Tenant shall carry liability
insurance covering the Premises in amounts not less than$1,000,000 per occurrence and$2,000,000
in the aggregate. Such policy shall name Landlord as an additional insured, and Tenant shall
provide certificates of such insurance and evidence of payment of premiums therefore to Landlord
upon Landlord's written request. Tenant shall hold Landlord harmless from and will defend
Landlord against all claims of liability for damage to property or injury or death to any person if
such damage, injury or death is caused in part or in whole by (i)the use of the Premises by
Tenant or Tenant's invitees or agents, (ii)Tenant's or Tenant's invitees' or agents' acts or
omissions, (iii)the failure of Tenant to keep the Premises in good condition and repair, or (iv)
the breach by Tenant of any other provision of this Lease. This indemnity will not include
claims arising from Landlord's gross negligence or willful misconduct. This indemnity shall
survive the expiration or earlier termination of this Lease.
11. Assignment and Subletting. Tenant shall not assign this Lease or sublet the
Premises or any interest therein without the prior written consent of Landlord, which shall not be
unreasonably withheld. A consent by Landlord to one assignment or subletting shall not be deemed
to be a consent to any subsequent assignment or subletting. An assignment or subletting without the
prior written consent of the Landlord, or any assignment or subletting by operation of law, shall be
void and shall, at the option of Landlord, terminate this Lease.
12. Damage or Destruction. Landlord shall not be required to repair or replace any
property installed or maintained by Tenant in or about the Premises, which property is injured or
damaged by fire or other natural cause or by the act or negligence of Tenant or any other person.
Tenant hereby releases Landlord from any responsibility for damage to or loss of the Shed and/or
any personal property of Tenant.
13. Entry by Landlord. Upon at least twenty-four (24) hours' prior written notice to
Tenant, Landlord and/or its agents shall have the right to enter the Premises to inspect the same.
14. Default by Tenant.
(a) The occurrence of any of the following shall constitute a material default and
breach of this Lease by Tenant:
(i) Any failure by Tenant to make any payment of Additional Rent
required to be made by Tenant hereunder , if the failure continues for three (3) days after notice
thereof has been given to Tenant; or
(ii) A failure by Tenant to perform any other
provision of this Lease if the failure to perform is not cured within thirty(30) days after notice has
been given to Tenant. If the default cannot be reasonably be cured within thirty (30) days, Tenant
4
Wr-SM16155SO.1
000125-005094
shall not be in default of this Lease if Tenant commences to cure the default within said thirty (30)
day period and diligently and in good faith continues to cure the default.
(b) For any breach by Tenant of this Lease, Landlord may terminate Tenant's
right to possession of the Premises. Upon such termination, Landlord may recover from Tenant all
amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom. Landlord shall also have the right, upon termination of this
Lease, to reenter the Premises and remove all persons and property from the Premises. Such
property may be removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant. If this Lease is terminated prior to the expiration of the Term by reason of
Tenant's default, Tenant shall not be entitled to any compensation or credit for the unexpired
portion of the Term, notwithstanding that Tenant would have otherwise been entitled to remain on
the Premises through the expiration of the Term as partial consideration under the Purchase
Agreement.
15. Notices. All notices, demands, requests, or consents given hereunder by either party
to the other, shall be made in writing and shall either be personally delivered or be deemed
sufficiently given and served upon the other party three(3)days after the mailing date if sent by first
class mail,certified,return receipt requested,postage prepaid,or one(1)day after being sent via any
nationally-recognized overnight courier, shipping charges prepaid, and addressed to the parties as
follows:
Landlord: Peninsula Open Space Trust
222 High Street
Palo Alto,CA 94301
Tenant: John-Zhao Roberts and Qing Zhao Roberts
1550 Miramontes Street
Half Moon Bay,CA 94019
or to such address as either party may have furnished in writing to the other party as a place for the
service of notice.
16. Hazardous Substances
(a) Tenant will not cause or permit any Hazardous Substances to be brought
upon,produced,stored, used, discharged or disposed of in or about the Premises. Tenant will
indemnify, defend and hold Landlord harmless from and against any liabilities, losses,claims,
damages, penalties, fines,attorneys' fees and court costs, remediation costs, investigation costs
and any other expenses which result from or arise out of the use, storage, treatment,
transportation, release, or disposal of any Hazardous Substances on or about the Premises by
Tenant, its contractors or invitees.
W EST%21615550.)
000125-005094
(b) "Hazardous Substances"means any hazardous or toxic substances,materials,
or waste which are or become regulated by any local government authority, California or the
United States government, including those substances described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,as amended, 42 U.S.C.
Section 9601 et seq.,the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq.,any other applicable federal,state or local law, and the regulations adopted
under these laws.
17. Waiver. Waiver by Landlord of any breach of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition herein contained.
18. Attorneys' Fees. If any legal action shall be instituted to enforce this Lease, the
prevailing party shall be entitled to recover reasonable attorneys' fees as fixed by the court.
19. General.
(a) This Lease contains all of the terms, covenants, and conditions agreed to by
Landlord and it may not be modified orally or in any manner other than by an agreement in writing
signed by all of the parties to this Lease or their respective successors in interest
(b) Each term and each provision of this Lease to be performed by Tenant shall
be construed to be both a covenant and a condition.
(c) If any term, covenant,condition,or provision of this Lease is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions
hereof shall remain in MI force and effect and in no way shall be affected, impaired, or invalidated
thereby.
(d) The covenants and conditions hereof, subject to the provisions as to
subletting and assignment, shall apply to and bind the heirs, successors, executors, administrators,
subtenants,and assigns of the parties.
(e) The paragraph and subparagraph headings of this Lease are for convenience
only and are not a part of this Lease and do not in any way limit or amplify the terms and provisions
of this Lease.
(f) This Lease shalt be governed by and construed in accordance with the laws
of the State of California.
(g) Time is of the essence as to each and all of the provisions of this Lease.
6
WEST%21615550.1
OD0125.005094
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and year
first above written.
LANDLORD: TENANT:
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation By:
JOHN-ZHAO ROBERTS
By.
Audrey C. Rust(gr si en, By:
QfNG ZHAO ROBERTS
7
WESI 21615550,1
000125-005094
IN WITNESS WHEREOF, Landlord and Tenant bave executed this Lease the day and year
first above written.
LANDLORD: TENANT:
PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation BY.
TD HAO ROBERTS
By:
Audrey C.Rust,President By:
QING ZHAO ROBERTS
7
WEST QM5550.1
000125-005094
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WEST121615550.1
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� EXHIBIT A �
|
The land referred h} kS situated iMthe unincorporated area of the County Of San Mateo, State of
California, and |s described asfollows:
|
PARCEL ONE,
Commencing at the Southeast corner ofa tract ofland now ov lately belonging UoJames
/ Campbell and running thence in an Easterly course, in a straight line with the Southerly line of
the aforesaid James Campbell's Land bo the Eastern boundary of the Mirannontas Rancho-
thence Norther\ya|ongsa|d |ineho the land now ur formerly belonging ho John Jones; thence |
�
\ Westerly, along said Jones line to the Northeasterly corner of the aforesaid James Campbell's
Land and thence Southerly hn the point ofbeginning.
| Being portion of the Miramontes Rancho and containing 80 acres of land, more or less, and �
being the same property described |n the Deed from William Johnston hz Conrad Stanher,dated
December 20, 1871 and recorded January 2, 1872 in Book 14 of Deeds at page 111, Records of
� San Mateo County. �
/
EXCEPTING THEREFROM that portion thereof described in the Deed from Jean R. Sepz and |
| OdeUe Sepz/ his wife to [). H. Thomason and Hi|a E. Thomason, his wife, dated August 18, �
|
1960 and recorded August]O/ 196Oin Book 3851of Official Records of San Mateo County ai
Page 732 {856ZO-5\. - |
' ' |
/ RESERVING THEREFROM a non-exclusive Easement for road purposes over a strip of land 6O
feet|n width lying contiguous with the Westerly boundary line ofthe above described property.
� PARCEL TWO:
A non-exclusive Easement for road purposes as granted by Jean FL Sepz e±ux to Stanley !
� Schwartz, et uV, bx Deed dated April 27, 1963, in BoVh41g5 Official Records ofSan Mateo
County, Page 149 (651S8-U), and more particularly described asfollows: �
|
A portion Ofthe MiramontesRanrho and also a portion nf the lands described in Deed from
William Johnston to Conrad StanbBr, dated Decernber2O, 1871 and recorded January 2, 1872/ |
in Book 14 of Deeds at Page 111 Records of San Mateo County, more particularly described as |
follows: �
|
Beginning at the centerline intersection of San Benito Street and Miramontes Street, as said �
� streets are shown on that certain Map entitled, "Spanishbzvvn', which Map was filed in the Office
�
� �
of the Recorder nf the County of San y�ateo, State ofCaUfonl|a ��din Book'YY'of Maps at |
Page 53 and a copy entered in Book I of Maps at Page 60; thence from said point of beginning �
along the centerline Df San Benito Street, South 7o42' 44" West 1O feet; thence leaving the �
oenUedineof said San Benito Street, South Q2* 22' 23" East 351.98 feet; thence South 3Qv38` |
08" East 195.24 feet; thence South 54" 07' U8" East263.79 feet; thence South 400 21' 38" East |
Z2O �� hse�'' thence �
. . . . �
feet, thence North 720 27' 29" East 692.44 feet; thence North65= 48' 29" EasLBO1.62 feet;
Page 1 of i
�
�
�
�
thence North 8011 28' 44" East 1075.00 feet; thence South 670 32' 16" East 295.07 feet; thence
South 711 27' 46" East 511.26 feet; thence South 860 37' 08" East 254.98 feet; thence North
890 12' 44" East 170.99 feet; thence South 831 01' 24" East 105.01 feet; thence South 620 14'
24" East 81.80 feet; thence North 761 39' 29" East 84.84 feet; thence South 89° 10' 53" East
196.28 feet; thence South 570 12' 53" East 282.22 feet; thence North 840 46' 52" East 143.50
feet; thence North 601 58' 45" East 105.13 feet to a point, said point being in a fence line
purported to be the Easterly line of the land now or formerly of James Campbell; thence along
said Easterly line North 10 07' 52" East 103.03 feet to the true point of beginning of the lands to
be described, said true point of beginning being marked by a 3/4 inch iron pipe monument
(tagged L.S. 2917) located at the intersection of two fences, and purported to be the
Northeasterly corner of the lands now or formerly of James Campbell and said point being also
on the Southerly line of the lands now or formerly of John Jones; thence from said true point of
beginning along said line of lands of Jones, South 880 25' 08" East 1339.50 feet; thence leaving
said line South 10 07' 52" West 30 feet to a point marked by a stake; thence North 880 25' 08"
West 1339.50 feet to a point marked by a stake on the Easterly line of the lands now or
formerly of James Campbell; thence along said Easterly line North 10 07' 52" East 30 feet to the
true point of beginning.
APN: 064-390-020 JPN: 064-039-390-02 A
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