HomeMy Public PortalAbout20091210 - Resolution - Board of Directors (BOD) Cover Sheet for Scanning by ECS
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Document Date: 12/10/2009
Document Type: Resolution
Preserve Name:
Keywords(no more than 4): Mendez Purchase
Project Name:
Project Number:
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APN Number:
Document No, 09-35
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RESOLUTION 04-35
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
AUTHOR
IZING GENERAL MANAGER TO EXECUTE ANY AND ALL OT
HER
DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE
TRANSACTION (SIERRA AZUL OPEN SPACE PRESERVE - LANDS OF MENDEZ)
I
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 Heirs or Devisees
of Eudocia Mendez, Deceased 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 Mendez Property").
Section Two. The General Manager, President of the Board of Directors or other appropriate
officer is 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 $2,500 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$100,000 and to use a
portion of the proceeds of the obligations for reimbursement of District expenditures for
acquisition of the Maas Property that are paid before the date of issuance of the obligation.
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RESOLUTION No.09-35
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on December 16, 2009 at a Special Meeting thereof,by the following vote:
AYES: MARY DAVEY,JED CYR,LARRY HASSETT,NONETTE HANKO,PETE SIEMENS,
CECILY HARRIS,AND CURT RIFFLE
NOES: NONE
ABSTAIN:
ABSENT: NONE
ATTEST: APPROVED:
9d J
�/retary 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.
Purchase Agreement Page I
PURCHASE AGREEMENT
This Agreement is made and entered into by and between the Heirs or Devisees of
Eudosia O. Mendez, Deceased, their Interest being subject to the Administration of the Estate of
said Decedent, hereinafter called "Seller," and the MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT, a Public District formed pursuant to Article 3 of Chapter 3 of Division 5 of
the California Public Resources Code,hereinafter called "District."
RECITALS
WHEREAS, Seller is the owner of certain real property which has open space and
recreational value, located within an unincorporated area of the County of Santa Clara and being
more particularly described within the body of this Agreement; and
WHEREAS, District was formed by voter initiative to solicit and receive
conveyances of real property by purchase, exchange, gift, or bargain purchase for public park,
recreation, scenic and open space purposes; and
WHEREAS, District desires to purchase said property for open space preservation
and as part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and
WHEREAS, Seller wishes to sell and convey the entirety of said property to
District, and District wishes to purchase said property upon the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants herein contained,the parties hereto agree as follows:
1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from
Seller, Seller's real property located within an unincorporated area of the County of Santa Clara,
State of California, containing approximately 10 acres, more or less, and commonly referred to as
Santa Clara,County Assessor's Parcel Number 562-20-02 1. Said property is further described in
the Legal Description attached to Preliminary Report number from Old Republic Title Company.
A copy of said Preliminary Report is attached hereto as Exhibit "A" and incorporated herein by
this reference. Said property is to be conveyed together with any easements, rights of way, or
rights of use which may be appurtenant or attributable to the aforesaid lands, and any and all
improvements attached or affixed thereto. All of said real property and appurtenances shall
hereinafter be called the "Subject Property" or the "Property".
Purchase Agreement Page 2
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be One
Hundred Thousand and No/100 Dollars ($100,000.00), which shall be paid in cash at the
"Closing" as defined in Section 3 hereof.
3. Escrow. Promptly upon execution of this Agreement, in accordance with Section 11
herein, an escrow shall be opened at Old Republic Title Company(hereinafter "Escrow Holder"),
2110 South Bascom Avenue, Suite 102, Campbell, CA 95008, (408) 371-9950 (Escrow number
063101433 1) or other title company acceptable to District and Seller through which the purchase
and sale of the Property shall be consummated. A fully executed copy of this Agreement shall be
deposited with Escrow Holder to serve as escrow instructions to Escrow Holder, provided that
the parties shall execute such additional supplementary or customary escrow instructions as
Escrow Holder may reasonably require. This Agreement may be amended or supplemented by
explicit additional escrow instructions signed by the parties, but the printed portion of such
escrow instructions shall not supersede any inconsistent provisions contained herein. Escrow
Holder is hereby appointed and instructed to deliver, pursuant to the terms of this Agreement, the
documents and monies to be deposited into the escrow as herein provided, with the following
terms and conditions to apply to said escrow:
A.The time provided for in the escrow for the close thereof shall be on or before December
31, 2009 provided, however, that the parties may, by written agreement, extend the time
for Closing. The term "Closing" as used herein shall be deemed to be the date when
Escrow Holder causes the Grant Deed (as defined below)to be recorded in the Office of
the County Recorder of Santa Clara County.
B. Seller and District shall, during the escrow period, execute any and all documents and
perform any and all acts reasonably necessary or appropriate to consummate the purchase
and sale pursuant to the terms of this Agreement.
C. Seller shall deposit into the escrow on or before the Closing an executed and recordable
Grant Deed, covering the Property as described in said Exhibit "A".
D.District shall deposit into the escrow, on or before the Closing:
i. The required Certificate of Acceptance for the Grant Deed, duly executed by
District and to be dated as of the Closing;
ii. District's check payable to Escrow Holder in the amount of Ninety-Five Thousand
and No/l 00 Dollars ($95,000.00) which is the balance of the Purchase Price of$100,000
as specified in Section 2. The balance of$5,000.00 is paid into escrow in accordance with
Section 12 of this Agreement.
E. 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
Purchase Agreement Page 3
provided for in this Agreement shall be apportioned or allocated between District and
Seller in the manner customary in Santa Clara County. All current property taxes on the
Property shall be pro-rated through escrow between District and Seller as of the Closing
based upon the latest available tax information using the customary escrow procedures.
F. Seller shall cause Old Republic Title Company, or other title company acceptable to
District and Seller, to be prepared and committed to deliver to District, a CLTA Standard
Policy of Title Insurance, dated as of the Closing, insuring District in the amount of
$100,000 for the Property showing title to the Property vested in fee simple in District,
subject only to: (i) current real property taxes, (ii) title exception 4 as listed in Preliminary
Report No. 0631014331 dated September 25, 2009 (Exhibit A), 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.
G.Escrow Holder shall, when all required funds and instruments have been deposited into the
escrow by the appropriate parties and when all other conditions to Closing have been
fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded in
the Office of the County Recorder of Santa Clara County. Upon the Closing, Escrow
Holder shall cause to be delivered to District the original of the policy of title insurance
required herein, and to Seller Escrow Holder's check for the full purchase price of the
Subject Property(less Seller's portion of the expenses described in Section 3.E.), and to
District or Seller, as the case may be, all other documents or instruments which are to be
delivered to them. In the event the escrow terminates as provided herein, Escrow Holder
shall return all monies, documents or other things of value deposited in the escrow to the
party depositing the same.
4. Rights and Liabilities of the Parties in the Event of Termination. In the event this
Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from
any further obligations hereunder, except as otherwise provided herein. Upon any such
termination of escrow, District shall be responsible for payment of title and escrow cancellation
charges, if any.
5. Leases or Occupancy of Premises. Seller warrants that there exist no oral or written
leases or rental agreements affecting all or any portion of the Subject Property. Seller further
warrants and agrees to hold District free and harmless and to reimburse District for any and all
costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason
of any such lease or rental agreement of the Property being acquired by District, including, but
not limited to, claims for relocation benefits and/or payments pursuant to California Government
Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph
shall survive the close of escrow and recordation of any Grant Deed(s).
6. Seller's Representations and Warranties. For the purpose of consummating the sale and
purchase of the Property in accordance herewith, Seller makes the following representations and
Purchase Agreement Page 4
warranties to District, which shall survive close of escrow, each of which is material and is being
relied upon by District.
A.Authority. Seller has the full right, power and authority to enter into this Agreement and
to perform the transactions contemplated hereunder.
p p
ed e eunder.
B. Valid and Binding Agreements. This Agreement and all other documents delivered by
Seller to District now or at the Closing have been or will be duly authorized and executed
and delivered by Seller and are legal, valid and binding obligations of Seller sufficient to
convey to District the Subject Property described therein, and are enforceable in
accordance with their respective terms and do not violate any provisions of any agreement
to which Seller is a party or by which Seller may be bound or any articles, bylaws or
corporate resolutions of Seller.
C. Good Title. Seller has and at the Closing date shall have good, marketable and
indefeasible fee simple title to the Subject Property and the interests therein to be
conveyed to District hereunder, free and clear of all liens and encumbrances of any type
whatsoever and free and clear of any recorded or unrecorded option rights or purchase
rights or any other right, title or interest held by any third party except for the exceptions
permitted under the express terms hereof, and Seller shall forever indemnify and defend
District from and against any claims made by any third party which are based upon any
inaccuracy in the foregoing representations.
7. Integrity of Property. Except as otherwise provided herein or by express written
permission granted by District, Seller shall not, between the time of Seller's execution hereof and
the close of escrow, cause or allow any physical changes on the Property. Such changes shall
include but not be limited to grading, excavating or other earthmoving activities, cutting or
removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements
or structures on the Property.
8. "Purchase of Property"As Is". District is to purchase the Property"as is," that is, in its
present condition, and Seller makes no warranties or representations regarding the condition of
the Property. District represents, warrants, acknowledges and agrees that it has had full and
ample opportunity prior to the execution of this Agreement to investigate the Property including,
but not limited to, its physical condition thereof; the presence, absence or condition of
improvements thereon; and that District shall purchase the Property AS-IS WITH ALL FAULTS.
9. Waiver of Relocation Benefits and Statutory Compensation. Seller and District
understand and agree that Seller may be entitled to receive certain relocation benefits and the fair
market value of the Property described in Exhibit "A", as provided for by the Federal Uniform
Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the
Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42
Purchase Agreement Page 5
U.S.C. §4601 et seq.), and the California Relocation Assistance Act, Government Code Section
7260 et seq. Seller hereby waives any and all existing and/or future claims or rights Seller may
have to any relocation assistance, benefits, procedures, or policies as provided in said laws or
regulations adopted there under and to any other compensation, except as provided in this
Agreement. Seller has been advised as to the extent and availability of such benefits, procedures,
notice periods, and assistance, and freely and knowingly waives such claims, rights and notice
periods except as set forth in this Agreement, including the fair market value of said Property, as
provided for by said Federal Law and any similar California Law.
10. Miscellaneous Provisions.
A.Access for Investigations. From the date Seller delivers an executed copy of this Purchase
Agreement to District and until the Closing, District and District0s agents, lender,
contractors, engineers, consultants, employees, subcontractors and other representatives
the District Parties")
( ark es ) may, upon the giving of reasonable advance written notice to
Seller, enter upon the Property for the purpose of inspecting, testing and evaluating the
same;provided, however, that District may not perform any work on the Property without
Seiler0s prior written consent, which shall not be unreasonably withheld or delayed and
further provided that District shall give Seller at least 24 hours prior notice of each
proposed entry by District. District shall indemnify, protect, defend and hold Seller free
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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. District's inspections shall be at District's sole expense.
District shall repair any damage to the Property that may be caused by the District Parties
while on the Property performing its inspections.
B. Choice of Law. The internal laws of the State of California, regardless of any choice of
law principles, shall govern the validity of this Agreement, the construction of its terms
and the interpretation of the rights and duties of the parties.
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C.Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys'
fees, in connection with any action, proceeding or arbitration instituted by reason of any
default or alleged default of the other party hereunder, the party prevailing in such action
or proceeding shall be entitled to recover from the other party reasonable expenses and
attorneys' fees in the amount determined by the Court, whether or not such action,
proceeding or arbitration goes to final judgment. In the event of a settlement or final
judgment in which neither party is awarded all of the relief prayed for, the prevailing party
as determined by the Court shall be entitled to recover from the other party reasonable
expenses and attorneys' fees.
D.Amendment and Waiver. The parties hereto may by mutual written agreement amend this
Agreement in any respect. Any party hereto may in writing: (i) extend the time for the
Purchase Agreement Page 6
performance of any of the obligations of the other party; (ii) waive any inaccuracies in
representations and warranties made by the other party contained in this Agreement or in
any documents delivered pursuant hereto; (iii) waive compliance by the other party with
any of the covenants contained in this Agreement or the performance of any obligations of
the other party; or(iv)waive the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this Agreement. The General
Manager is authorized to agree to an extension of the time for the performance of any
obligations on the part of District or Seller pursuant to this Agreement, and to take any
actions and execute any documents necessary or appropriate to closing escrow and
completing this conveyance, including execution of any documents which may allow
Seller to accomplish a tax deferred exchange of property as permitted by law; provided,
however that the District shall not take title to any third party property other than the
Subject Property. Any agreement on the part of any party for any such amendment,
extension or waiver must be in writing.
E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties
shall be considered to be cumulative with and in addition to any other rights, powers and
remedies which the parties may have at law or in equity in the event of the breach of any
of the terms of this Agreement. The exercise or partial exercise of any right, power or
remedy shall neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or
request with respect to this Agreement(or any Exhibit hereto), each such communication
shall be in writing and shall be deemed to have been validly served, given or delivered at
the time stated below if deposited in the United States mail, registered or certified and
return receipt requested, with proper postage prepaid, or if delivered by Federal Express or
other private messenger, courier or other delivery service or sent by facsimile transmission
by telex, telecopy, telegraph or cable or other similar electronic medium, addressed as
indicated as follows:
Seller: Estate of Eudosia O. Mendez
Jennifer Cunningham, Esq.
1335 1 sT Street, Suite C
Gilroy, CA 95020
(408) 847-1555
cc: Estate of Eudosia O. Mendez Michael Gill
Charles E. Mendez Eagle Home Group
Estate Administrator 1975 Hamilton Avenue
727 Eschenburg Drive San Jose, CA 95125
Gilroy, CA 95020
Purchase Agreement Page 7
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Steve Abbors, General Manager
Telephone: (650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic,
facsimile or cabled notice shall promptly be sent by mail (in the manner provided above)
to the addressee. Service of any such communication made only by mail shall be deemed
complete on the date of actual delivery as indicated by the addressee's registry or
certification receipt or at the expiration of the third (3rd)business day after the date of
mailing, whichever is earlier in time. Either party 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.
G.Severability. If any of the provisions of this Agreement are held to be void or
unenforceable by or as a result of a determination of any court of competent jurisdiction,
the decision of which is binding upon the parties, the parties agree that such determination
shall not result in the nullity or unenforceability of the remaining portions of this
Agreement. The parties further agree to replace such void or unenforceable provisions
which will achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provisions.
H.Counterparts. This Agreement may be executed in separate counterparts, each of which
shall be deemed as an original, and when executed, separately or together, shall constitute
a single original instrument, effective in the same manner as if the parties had executed
one and the same instrument.
I. Waiver. No waiver of any term, provision or condition of this Agreement,whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed
as, a further or continuing waiver of any such term, provision or condition or as a waiver
of any other term, provision or condition of this Agreement.
J. Entire Agreement. This Agreement is intended by the parties to be the final expression of
their agreement; it embodies the entire agreement and understanding between the parties
hereto; it constitutes a complete and exclusive statement of the terms and conditions
thereof, and it supersedes any and all prior correspondence, conversations, negotiations,
agreements or understandings relating to the same subject matter.
Purchase Agreement Page 8
K.Time of Essence. Time is of the essence of each provision of this Agreement in which
time is an element.
L. Survival of Covenants. All covenants of District or Seller which are expressly intended
hereunder to be performed in whole or in part after the Closing, and all representations and
warranties by either party to the other, shall survive the Closing and be binding upon and
inure to the benefit of the respective parties hereto and their respective heirs, successors
and permitted assigns.
M. Assignment. Except as expressly permitted herein, neither party to this Agreement shall
assign its rights or obligations under this Agreement to any third party without the prior
written approval of the other party.
N.Further Documents and Acts. Each of the parties hereto agrees to execute and deliver such
further documents and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions described and
contemplated under this Agreement.
O.Binding on Successors and Assigns. This Agreement and all of its terms, conditions and
covenants are intended to be fully effective and binding, to the extent permitted by law, on
the successors and permitted assigns of the parties hereto.
P. Broker's Commission. District shall not be responsible for any real estate commission or
other related costs or fees in this transaction. Seller agrees to and does hereby indemnify
and hold District harmless from and against any and all costs, liabilities, losses, damages,
claims, causes of action or proceedings which may result from any broker, agent or finder,
licensed or otherwise, claiming through, under or by reason of the conduct of Seller in
connection with this transaction.
Q.Captions. Captions are provided herein for convenience only and they form no part of this
Agreement and are not to serve as a basis for interpretation or construction of this
Agreement, nor as evidence of the intention of the parties hereto.
R.Pronoun References. In this Agreement, if it be appropriate,the use of the singular shall
include the plural, and the plural shall include the singular, and the use of any gender shall
include all other genders as appropriate.
S. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the
performance or breach thereof, the parties agree first to participate in non-binding
mediation in order to resolve their dispute. If the parties are unable to resolve their dispute
through non-binding mediation, then the parties may pursue any and all legal and equitable
remedies available as to any remaining unresolved controversy or claim.
Purchase Agreement Page 9
11. Acceptance. Provided that this Agreement is executed by Seller and delivered to District
on or before December 2, 2009, District shall have until midnight December 16, 2009 to accept
and execute this Agreement, and during said period this instrument shall constitute an option and
irrevocable offer by Seller to sell and convey the Property to District for the consideration and
under the terms and conditions herein set forth. Said offer shall remain irrevocable during this
period without the necessity of execution and acceptance of this Purchase Agreement by District.
Said option shall expire at midnight P.S.T. on December 16, 2009. As consideration for said
irrevocable option, District has paid into escrow and Seller acknowledges deposit into escrow of
the sum of Five Thousand Dollars and No/100 ($5,000.00), ("Option Consideration")which shall
be applied upon the close of escrow to the Purchase Price as set forth in Section 2 hereof. If
escrow fails to close due to any act or material breach of this Agreement by District, Seller may
retain the Option Consideration.
Provided that this Agreement is accepted by District, this transaction shall close as set
forth in Section 3.A.of this Agreement and in accordance with the terms and conditions as
otherwise set forth herein.
HI
//I
Purchase Agreement Page 10
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.
i DISTRICT: SE iv
MIDPENINSULA REGIONAL OPEN (� P "n j
SPACE DISTRICT Charles E. Mendez, Administrator for the
Estate of Eudosia O. Mendez
APPROVED AND ACCEPTED:
Date J
Pre ent, Board of Directors
A10����//,- X"9
Date
ATTEST:
:;�uKOL
District Clerk
ACCEPTED FOR RE�CO)MMENDATION
C
Michael C. Williams, Real Property Ma
APPROVED AS TO FORM:
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
Steve bors,General Manager
Exhibit A
Legal Description
The following property is located in the unincorporated area of the County of Santa
Clara, State of California and is more particularly described as follows;
NW '/4 of NE '/4 of NW '/4 of Sec. 28 Twp. 9 S., Mg. 1 E., 10 Acres
I
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