HomeMy Public PortalAbout20100310 - Resolution - Board of Directors (BOD) Cover Sheet For Scanning By ECS
Orieinatlne Department General Manager
Laserfiche Template Board Of Directors
Template Fields
Document Date: 3/10/2010
Document Type: Resolution
Preserve Name:
Keywords (No More Than
4): Horstmeyer Purchase j
Project Name:
i
i
Project Number:
Vendor Or Other Party:
i
Name (First):
Name (last):
i
Address:
APN Number:
i
Document No. 10-09
Additional Field:
Additional Field:
Additional Field:
Additional Field:
i
I
RESOLUTION 10-09
RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT AUTHORIZING APPROVAL OF PURCHASE
AGREEMENT, AUTHORIZING GENERAL MANAGER OR OTHER OFFICER TO
EXECUTE , ASSIGNMENT AGREEMENT, AND LICENSE AND MANAGEMENT
AGREEMENT, AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY
AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF
THE TRANSACTION (SIERRA AZUL OPEN SPACE PRESERVE - LANDS OF
HORSTMEYER)
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 approve and accept the offer contained in that certain Purchase Agreement between
William Edward Horstmeyer and Lynn Ann Horstmeyer, as Successor Co-Trustees of The Arend
Louis Horstmeyer and Lucille Helen Horstmeyer Revocable Living Trust Dated June 15, 1993 as j
amended March 26, 1998 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 Horstmeyer Property").
Section Two. The General Manager is authorized to execute the Assignment Agreement and
License and Management Agreement with Peninsula Open Space Trust 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 any
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.
RESOLUTION NO. 10-09
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on March 10, 2010 at a Regular Meeting thereof, by the following vote:
AYES: CURT RIFFLE,CECILY HARRIS,NONETTE HANKO,JED CYR,LARRY HASSETT,
MARY DAVEY,PETE SIEMENS
NOES: NONE
ABSTAIN: NONE
ABSENT:
ATTEST: APPROVED:
Zary 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.
uVa
Interim District Clerk
LICENSE AND MANAGEMENT AGREEMENT
POST (HORSTMEYER) PROPERTY
THIS LICENSE AND MANAGEMENT AGREEMENT ("License"), dated for reference
purposes only as of March 10, 2010, is by and between PENINSULA OPEN SPACE TRUST, a
California non-profit public benefit corporation ("POST"), and MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT, a Public District formed pursuant to Section 3 of Chapter 3 of
Division 5 of the California Public Resources Code ("District").
RECITALS
A. POST is the owner of a certain parcel of real property ("Property"), located adjacent to
the District's Sierra Azul Open Space Preserve within the unincorporated area of the County of
Santa Clara, State of California, and more particularly described in Exhibit "A", attached hereto
and incorporated herein by this reference.
B. The Property is adjacent to District land. POST desires that District manage the Property
for the benefit of POST. In return for such services, District will receive the benefit of the ability
to use the Property for purposes consistent with its mission.
C. POST is willing to license the Property to District, and District desires to license the
Property from POST, upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, POST and District (collective)y, the "Parties") hereby agree as
follows:
I License. For and in consideration of the mutual covenants and agreements by the Parties
contained in this License, POST does hereby license to District, and District does hereby license
from POST, all of the Property.
2. License Tenn.
2.1 Initial License Term. POST shall license the Property to District for a term of two
(2) years commencing on the Effective Date hereof and ending two (2) years from the Effective
Date (the "License Term"). As used herein, the term "Effective Date" shall be the date this
License is executed by both POST and District. POST may terminate this License upon thirty
(30) days' prior written notice to District.
2.2 Extension of License Term. District may, at least 30 days prior to the expiration
date of the License Term, give POST written notice of its desire to extend the License Term. In
that event, District and POST agree to meet and negotiate in good faith in an effort to reach
mutual agreement upon the terms and conditions of such a License Term extension, including the
length of the extended License Term. The District's General Manager shall have the authority to
execute such a License extension for a term not to exceed two (2) additional years.
3. Consideration. POST and District agree that the District's performance of its covenants
and agreements contained herein (including, without limitation,those regarding indemnification,
maintenance, insurance and operation of the Property as protected open space) is fair and
reasonable consideration for POST's License of the Property to District.
4. POST's Representations, Warranties and Covenants. POST represents, warrants and
covenants as follows:
4.1. Organization. POST is duly organized and validly existing under the laws of the
State of California.
4.2. Requisite Action. All requisite corporate action has been taken by POST in
connection with POST's execution of this License, and has been taken or will be taken in
connection with the agreements, instruments or other documents to be executed by POST
pursuant to this License in order to lawfully consummate the transactions contemplated here.
4.3. Title. To POST's knowledge, POST owns fee simple title to the Property.
5. Use. During the term of this License and any extension thereof, District agrees to use
the Property for the purpose of open space preservation as part of the ecological, recreational and
scenic resource f i resources Serra Azul Space
Open
p p ce Preserve, and for any other related legal use that
is consistent with the purposes for which District was formed. Without limiting the generality of
the foregoing, District shall specifically have the right to maintain any existing trails and
improvements incidental thereto on the Property for any purpose consistent with the purposes set
forth in Article 3 of Chapter 3 of Division 5 of the California Public Resources Code and to
manage the Property in conformity with the Preliminary Use and Management Plan adopted by
the District on February 24, 2010.. Notwithstanding anything herein to the contrary, District
shall not without POST's prior writ
ten consent which co
nsent may be ranted r w'
p ( Y g
o withheld in
POST's discretion), make or permit to be made any physical alterations or changes to the
Property other than as may be reasonably necessary for the purpose of preventing unauthorized
access to the Property or to comply with the terms of this License.
6. Management. During the term of this License and any extension thereof, District agrees
to manage the Property for the purpose of open space preservation as part of the ecological,
recreational and scenic resources of the Sierra Azul Open Space Preserve. District shall be solely
responsible for management of the Property during the License Term. District may install gates
and appropriate signage and fencing as District determines is necessary and appropriate, and may
undertake such other steps as District deems necessary or appropriate for the proper and safe
management of the Property.
7. Patrol. District will patrol and manage the Property in a manner consistent with adjacent
District holdings to ensure that the Property is kept in a safe and sanitary condition and that
deleterious or incompatible uses of the Property are discouraged. Should any trespass or other
unauthorized use or activity occur upon the Property, District may exercise its authority to
correct these matters including, where necessary, enforcing District regulations and ordinances
on the Property. The Property shall be deemed to be property under the control and management
of District for purposes of Public Resource Code Section 5558 and shall be deemed to be
"District Lands" as defined in District Ordinance No. 04-1.
2
8. Real Property Taxes and Assessments. POST hereby promises to pay, prior to
delinquency, all Impositions. For the purpose of this Lease, "Impositions" means all taxes,
assessments, rates, charges, license fees, municipal liens, levies, excises or imposts, whether
general or special, or ordinary or extraordinary, of every name, nature and kind whatsoever, if
any, lawfully imposed by any governmental authority or entity (other than District), that may be
levied, assessed, charged or imposed or may be or become a lien or charge upon the Property or
any part thereof, or upon the Rent, or upon the income of POST. Impositions also include, but
are not limited to, the payment of installments on any bonds or periodic charges imposed or
required by any governmental authority or entity (other than District). POST acknowledges that
it may be entitled to certain exemptions from real property taxes that otherwise would be
imposed on the Property. POST will use its best efforts and file all necessary documents and
applications to obtain such tax exemption. If POST's application for real property tax exemption
is disapproved, and during the term of the Lease POST pays real property taxes assessed against
the Property, District shall reimburse POST for such payment.
9. Legal Responsibility and Indemnification. During the License Term, District shall
assume full legal responsibility for the management, control and operation of the Property, the
conditions thereof and for all activities conducted by District thereon. Except as otherwise agreed
herein, District shall indemnify and hold POST harmless from, and defend POST and its officers,
directors, employees and agents against, any and all claims or liabilities for injury or damage to
any persons or property whatsoever occurring during the life of this License in, on, or about the
Property arising out of any condition of the Property or of any neglect, fault or omission by the
District with respect to District responsibilities as set out in this License. POST likewise agrees
to indemnify, defend and hold harmless District and its agents, officers, officials, and employees
against any and all claims or liabilities for injury or damage to persons or property arising out of
or resulting from the negligent acts or fault of POST, or its agents, employees, officers, or
servants, in connection with the Property. In the event of concurrent negligence, each party will
bear responsibility for its acts in proportion to its fault under the doctrine of comparative
negligence.
10. Insurance. During the License Term, the District shall maintain in full force and effect a
comprehensive general liability insurance policy applicable to the Property and the District's
activities under this License with limits of liability of at least Two Million Dollars ($2,000,000)
aggregate combined single limit for bodily injury and property damage liability; and One Million
Dollars ($1,000,000) combined single limit per occurrence. The District may satisfy the
obligations set out in this Section by participation in a government self-insurance risk pool
authorized under state law, including but not limited to the California Joint Powers Insurance
Authority ("CJPIA").
11. Real Property Taxes and Assessments. POST hereby promises to pay, prior to
delinquency, all Impositions. For the purpose of this License, "Impositions" means all taxes,
assessments, rates, charges, license fees, municipal liens, levies, excises or imposts, whether
general or special, or ordinary or extraordinary, of every name, nature and kind whatsoever, if
any, lawfully imposed by any governmental authority or entity (other than District), that may be
levied, assessed, charged or imposed or may be or become a lien or charge upon the Property or
any part thereof, or upon the income of POST. Impositions also include, but are not limited to,
the payment of installments on any bonds or periodic charges imposed or required by any
governmental authority or entity (other than District).
12. Compliance with Laws. District sha11 comply with any and all federal, state, and local
laws, statutes, codes, ordinances, regulations, rules, orders, permits, licenses, approvals and
requirements applicable to the use and occupancy of the Property by District and District shall
not commit and shall not knowingly permit others to commit waste upon the Property.
i
13. Surrender of Property. Except as otherwise provided in this License, and subject to acts
of God, upon the expiration or earlier termination of the License Term, to the maximum extent
the same is reasonably within the control of District, District shall surrender the Property in
substantially the same condition as it was in upon the Effective Date, except for any changes to
j such condition made or caused to be made by POST or any of POST's agents, lenders,
contractors, engineers, consultants, employees, subcontractors, licensees, invitees and
representatives.
14. Maintenance and Utilities. During the License Term, District shall not use the Property
for any purpose except as expressly provided in this License. District shall be solely responsible
for the cost of providing any utilities or other services necessary for District's use and occupancy
of the Property and District shall promptly pay and/or discharge any liens that may be recorded
against the Property or District's License interest therein resulting from any work performed or
materials ordered by or on behalf of District. During the License Term, District shall maintain
and repair the Property in such manner as reasonably necessary to preserve its existing character;
provided, however, that District shall not be obligated to make any material capital
improvements to the Property.
15. Assignment. District may not assign this License to any other party without the prior
written consent of POST, which consent shall not be unreasonably withheld or delayed with
respect to an assignment to a party that expressly assumes in writing all of District's obligations
and liabilities hereunder; provided, however, that under no circumstances will POST withhold its
consent to an assignment to another governmental entity or to a non-profit organization whose
principal purpose is environmental conservation and/or habitat preservation so long as such
entity or organization expressly assumes in writing all of District's obligations and liabilities
hereunder. In the event of an assignment, District shall remain liable for the payment of all fees
and the performance of all of District's obligations under this License, except if and to the extent
such obligations are released in writing by POST.
16. Miscellaneous Provisions.
16.1 Invalidity. If any term or provision of this License or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
License, or the application of such term or provision to persons whose circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected.
16.2 Successors and Assigns. Subject to the limitations set forth above, the terms,
conditions and covenants of this License shall be binding upon and shall inure to the benefit
of each of the Parties, their heirs, personal representatives, successors or assigns, and shall
run with the land.
i
16.3 Writing. No waivers, amendments, alterations or modifications of this License, or
any agreements in connection with this License, shall be valid unless in writing and duly
executed by both POST and District or their respective successors-in-interest.
4
I
16.4 Construction. The captions appearing in this License are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or intent of such
paragraphs of this License or in any way affect this License. Any gender used shall be
deemed to refer to any other gender more grammatically applicable to the party to whom
such use of gender relates. The use of singular shall be deemed to include the plural and,
conversely, the plural shall be deemed to include the singular.
16.5 Notices. Any notice, demand, or request required hereunder shall be given in
writing at the addresses set forth below by any of the following means: (a) personal service;
(b) telephonic facsimile transmission; (c) nationally recognized overnight commercial mail
service; or (d) registered or certified, first class U.S. mail, return receipt requested.
If intended for District, addressed as follows:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Real Property Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If intended for POST, addressed as follows:
Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
Attn: Audrey Rust, President
TEL: (650) 854-7696
FAX: (650) 854-7703
Such addresses may be changed by notice to the other party given in the same manner as
above provided. Any notice, demand or request sent pursuant to either clause (a) or(b),
above, shall be deemed received upon such personal service or upon dispatch by electronic
means (provided, however, that a dispatch by facsimile transmission that occurs on any day
other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until
9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent
pursuant to clause (c), above, shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause (d), above,
shall be deemed received forty-eight (48) hours following deposit in the U.S. mail.
16.6 Authority to Sign. The parties executing this License on behalf of POST and
District represent that they have authority and power to sign this License on behalf of POST
and District, respectively.
16.7 Conflict of Laws. This License shall be governed by and construed pursuant to
the laws of the State of California.
5
16.8 Attorneys' Fees. If either party should bring suit or seek arbitration under this
License, because of the breach of any provision of this License, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein shall be paid by
the other party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action or arbitration and shall be
enforceable whether or not the action is prosecuted to judgment.
16.9 Waiver. The waiver by either party 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 nor shall any custom or
practice that may arise between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of POST or District to insist upon the
performance by District or POST in accordance with said terms.
16.10 Time. Time is of the essence with respect to the performance of every provision
of this License in which time of performance is a factor.
16.11 Prior Agreements. This License contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this License, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
16.12 Applicable Law, Severability. As used herein the term "all Applicable Laws"
shall mean and refer to all state, federal and local ordinances, statutes and laws. Any
provision of this License that shall prove to be invalid, void or illegal in no way affects,
impairs or invalidates any other provisions hereof, and all other provisions shall remain in
full force and effect.
6
POST AND DISTRICT, by their execution below, indicate their consent to the terms of
this License and Management Agreement.
For POST: PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation
By:
Audrey Rust, P dent
Date: _
For DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT,
a Public District formed pursuant to Section 3 of Chapter 3 of
Division 5 of the California Public Resources Code
APPROVED AS TO FORM:
By: i
Susan M. Schectman, General Counsel
APPROVED AND ACCEPTED:
By:
St hen E. Abbors, General Manager
Date: C$•/0 /'�q
ATTEST:
By:
Ewa 1jjL4_00w�
-AH'^0. D'"' I -�� �`�"^ District Clerk
Print name
7
i
LEGAL DESCRIPTION
EXHIBIT "A"
i
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED
AREA, COUNIY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Lots numbered(2) Two, (3) three, (8) eight, and (9) Nine in Section 15, Township 9 South,
Range I East, Mount Diablo Meridian.
APN: 562-23-004
I
I
8
ASSIGNMENT AGREEMENT
(Horstmeyer Property)
This Assignment Agreement (the "Assignment") is made and entered into by and
between the Peninsula Open Space Trust, a California non-profit, public benefit corporation
(hereinafter "POST" or "Assignee") 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 "District" or "Assignor".)
WHEREAS, District approved a Purchase Agreement on March 10, 2010 with William
Edward Horstmeyer and Lynn Ann Horstmeyer, as Successor Trustees of the Arend Louis
Horstmeyer and Lucille Helen Horstmeyer Revocable Living Trust Dated June 15, 1993 as
amended March 26, 1998 and April 6, 2004 ("Seller") to purchase certain real property (the
"Property") located within an unincorporated area of the County of Santa Clara on certain
terms and conditions as contained in that certain document entitled "Purchase Agreement,"
attached hereto and incorporated herein by this reference; and
WHEREAS, POST is a California non-profit, public benefit corporation formed for
the purpose of acquiring real property for the preservation of open space, scenic, recreational,
ecological and aesthetic values; and
WHEREAS, District desires to assign to POST all District's rights, title and
interests under the Purchase Agreement in order to enable POST to take fee title to the
Property as specifically authorized by Section 9.M of the Purchase Agreement which
permits such assignment without further approval of Seller; and
WHEREAS, POST desires to accept such assignment of all District's rights, title and
interests in the Purchase Agreement on the terms and conditions set forth herein;
NOW, THIEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants herein contained, the parties hereto agree as follows:
1) Assignmen . District agrees to assign, and POST agrees to accept, all of District's rights,
title, interest, and obligations in and under the Purchase Agreement.
2) Acquisition. POST agrees to execute the Purchase Agreement and accept and execute the
Assignment on or before March 12, 2010 and further agrees to timely take all actions and
deposit all funds and documents as necessary to close escrow for the purchase of the
Property by POST on the terms and conditions set forth in the Purchase Agreement.
3) Management. District agrees to manage the Property pursuant to that certain License and
Management Agreement approved by District on March 10, 2010 or such other property
management agreement as the parties may hereafter execute.
4) Miscellaneous Provisions.
a) Choice of Law. The internal laws of the State of California, regardless of any choice of
law principles, shall govern the validity of this Assignment, the construction of its terms
and the interpretation of the rights and duties of the parties hereto.
b) Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys'
fees, in connection with any action or proceeding instituted by reason of any default or
alleged default of the other party hereunder, the party prevailing in such action or
proceeding shall be entitled to recover from the other party reasonable expenses and
attorneys' fees in the amount determined by the court, whether or not such action or
proceeding goes to final judgment. In the event of a settlement or final judgment in which
neither party is awarded all of the relief prayed for, the prevailing party as determined by
the Court shall be entitled to recover from the other party reasonable expenses and
attorneys' fees.
c) Amendment and Waiver. The parties hereto may by mutual written agreement amend
this Assignment in any respect.
d)Notices. Whenever any party hereto desires or is required to give any notice, demand, or
request with respect to this Assignment, 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 private messenger, courier or other
delivery service or sent by facsimile transmission, addressed as follows:
District: Midpeninsula Regional Open Space District
330 Distel Circle Los Altos, CA 94022
Attn: Stephen E. Abbors, General Manager
Telephone: (650) 691-1200
Facsimile: (650) 691-0485
POST: Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
Attn: Audrey Rust, President
Telephone (650) 854-7696
Facsimile: (650) 854-7703
If sent by facsimile, a confirmed copy of such facsimile notice shall promptly be sent by
mail (as provided above) to the addressee. Service of any such communication made
only by mail shall be deemed complete on the actual date of delivery as indicated by the
addressee's registry or certification receipt or at the expiration of the third (3rd) business
day following the date of mailing, whichever is earlier in time. Either party hereto may
from time to time, by notice in writing as herein specified, designate a different address
or a different person to which such notices are thereafter to be addressed. .
2
e) Severabilit . If any provisions of this Assignment are held to be void or unenforceable by
or as a result of a determination of a court of competent jurisdiction, the decision of which
is binding on the parties, the parties agree that such determination shall not result in the
nullification or unenforceability of the remaining portions of this Agreement.
t) Counterparts. This Assignment may be executed in separate counterparts, each of which
shall be deemed to be 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.
g) Waiver. No waiver of any term, provision or condition of this Assignment, whether by
conduct or otherwise, in anyone or more instances, shall be deemed to be, or 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.
h) Entire Agreement. Except as otherwise specifically set forth herein, this Assignment is
intended by the parties to be the final expression of their agreement; it embodies the entire
agreement and understanding between the par-ties 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 and understandings between the
parties relating to the same subject matter.
i) Time of the Essence. Time is expressly declared to be of the essence of each and every
provision of this Assignment in which time is an element.
j) Assignment. Neither party shall assign its rights or obligations under this Assignment
without the express written consent of the other party which may consent or withhold
consent in its sole discretion.
k) Captions. Captions are provided herein for convenience only and they form no part oft his
Agreement and are not to serve as a basis for interpretation, inference or construction of this
Assignment, nor as evidence of the intention of the parties hereto.
1) Pronoun References. In this Assignment, 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 the other gender.
in) 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
Assignment.
3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment 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 and ASSIGNOR: POST and ASSIGNEE:
MIDPENINSULA REGIONAL PENINSULA OPEN SPACE TRUST
OPEN SPACE DISTRICT a California non-profit, public benefit corporation
APPROVED AS TO FORM:
S� BY
Susan M. S-cYe—ctman Audrey C Ru
General Counsel President
RECOMMENDED FOR APPROVAL: Date: z�' _
Stephe . Abbors
General Manager
ATTEST:
By: �NVL� Yet p I
-AM I& Dwnj -_1%-}cni4A District Clerk
Print Name
Date: C.�j 10,
4
Page I
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter called "Agreement") is made and entered into by
and between William Edward Horstmeyer and Lynn Ann Horstmeyer, as Successor Trustees of
the Arend Louis Horstmeyer and Lucille Helen Horstmeyer Revocable Living Trust Dated June
15, 1993 as amended March 26, 1998 and April 6, 2004 (hereinafter called "Seller") and the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT a Public District formed pursuant to
Article 3 of Chapter 3 of Division 5 of the California Public Resources Code, (hereinafter called
"District").
RECITALS
WHEREAS, Seller is the owner of certain real property which has open space and
recreational value, located within an unincorporated area of the County of Santa Clara, and being
more particularly described within the body of this Agreement; and
WHEREAS, District was formed by voter initiative to solicit and receive conveyances of
real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic
and open space purposes; and
WHEREAS, District desires to purchase said property for open space preservation and as
part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and
WHEREAS, Seller wishes to sell and convey the entirety of said property to District, and
District wishes to purchase said property upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants herein contained, the parties hereto agree as follows:
1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase
from Seller, Seller's real property located within an unincorporated area of the County of Santa
Clara, State of California, containing approximately One Hundred Fifty Eight and Fifty One
Hundredths (158.51) acres, more or less, and commonly referred to as Santa Clara County
Assessor's Parcel Number 562-23-004. Said property is further described in the Legal
Description attached to Preliminary Report Number 98309595 from Chicago 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".
Page 2
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be
Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), 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 10
herein, an escrow shall be opened at Chicago Title Company, 5671 Santa Teresa Blvd. #206, San
Jose, CA 95123 (408) 972-7016, escrow number 98309595 or other title company acceptable to
District and Seller(hereinafter "Escrow Holder") through which the purchase and sale of the
Property shall be consummated. A fully executed copy of this Agreement shall be deposited with
Escrow Holder to serve as escrow instructions to Escrow Holder; provided that the parties shall
execute such additional supplementary or customary escrow instructions as Escrow Holder may
reasonably require. This Agreement may be amended or supplemented by explicit additional
escrow instructions signed by the parties, but the printed portion of such escrow instructions shall
not supersede any inconsistent provisions contained herein. Escrow Holder is hereby appointed
and instructed to deliver, pursuant to the terms of this Agreement, the documents and monies to
be deposited into the escrow as herein provided, with the following terms and conditions to apply
to said escrow:
A. The time provided for in the escrow for the close thereof shall be on or before
March 31, 2010, 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
A fully executed and recordable Grant Deed, conveying the Property as described in said Exhibit
"A" to either the District or to its designated Assignee as directed by District in its escrow
instructions to Escrow Holder;
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 or District's Assignee's check payable to Escrow Holder in the
amount of Two Hundred and Forty Five Thousand and No/100 Dollars ($245,000.00) which is
the balance of the Purchase Price of Two Hundred Fifty Thousand and No/100 Dollars as
specified in Section 2. The balance of$5,000.00 is paid into escrow in accordance with Section
10 of this Agreement.
Page 3
E. Seller shall pay the escrow fees, the CLTA Standard Policy of Title Insurance, if
required by District, and all recording costs and fees. All other costs or expenses not otherwise
provided for in this Agreement shall be apportioned or allocated between District and 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 Chicago Title Company, or other title company acceptable to
District and Seller, to be prepared and committed to deliver to District or to its designated
Assignee, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District
or its designated Assignee in the amount of$250,000.00 for the Property showing title to the
Property vested in fee simple in District or its designated Assignee, subject only to: (i) current
real property taxes; (ii) title exceptions 5, 6 and 7 as shown in Preliminary Report Number
98309595 dated January 27, 2010 (Exhibit "A"); and (iii) such additional title exceptions as may
be approved in writing by District or its designated Assignee prior to the Closing 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, all parties hereto shall be jointly and severally liable to Escrow Holder for
payment of its title and escrow cancellation charges (subject to rights of subrogation against any
party whose fault may have caused such termination of escrow), and each party expressly
reserves any other rights and remedies which it may have against any other party by reason of a
wrongful termination or failure to close escrow.
5. Seller's Representations and Warranties. For the purpose of consummating the sale
and purchase of the Property in accordance herewith, Seller makes the following representations
and warranties to District, which shall survive close of escrow, each of which is material and is
being relied upon by District.
Page 4
A. Authoritv. Seller has the full right, power and authority to enter into this
Agreement and to perform the transactions contemplated hereunder.
B. Valid and Binding Agreements. This Agreement and all other documents
delivered by Seiler to District now or at the Closing have been or will be duly authorized and
executed and delivered by Seller, are legal, valid and binding obligations of Seller sufficient to
convey to District all of the interest of Seller in the Subject Property described therein, 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.
I
C. Leases or Occupancy of Premises. Seller warrants that there exist no oral or
written leases, licenses, or rental agreements affecting all or any portion of the Subject Property.
Seller further warrants and agrees to hold District free and harmless and to reimburse District for
any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned
by reason of any such lease, license, 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 Section shall survive the close of escrow and recordation of the Grant Deed.
D. 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.
6. Integrity of Property. Except as otherwise provided herein or by express written
permission granted by District, Seller shall not, between the time of Seller's execution hereof and
the 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.
7. Hazardous Waste.
A. Definitions. The term "Hazardous Waste," as used herein, means any substance,
material or other thing regulated by or pursuant to any federal, state or local environmental law
by reason of its potential for harm to human health or the environment because of its
flammability, toxicity, reactivity, corrosiveness or carcinogenicity. The term "Hazardous Waste"
also includes without limitation, polychlorinated biphenyls, benzene, asbestos, petroleum,
petroleum by-products, gas, gas liquids and lead.
I
Page 5
The term "Environmental Law" as used herein includes, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.)
B. Representations and Warranties. For the purpose of consummating the sale and
purchase of the Property, Seller makes the following representations and warranties to District,
which shall survive close of escrow, each of which is material and is being relied upon by
District:
(i) To Seller's knowledge the Property does not contain and has not
previously contained any Hazardous Waste or underground storage tanks, and no Hazardous
Waste has been or is being used, manufactured, handled, generated, stored, treated, discharged,
present, buried or disposed of on, under or about the Property, or transported to or from the
Property, nor has Seller undertaken, permitted, authorized or suffered any of the foregoing.
(ii) Seller has not received any notice and Seller has no actual knowledge that
any private person or governmental authority or administrative agency or any employee or agent
thereof has determined, alleged or commenced or threatened to commence any litigation, or other
proceedings, to determine that there is a presence, release, threat of release, placement on, under
or about the Property, or the use, manufacture, handling, generation, storage, treatment,
discharge, burial or disposal on, under or about the Property, or the transportation to or from the
Property, of any Hazardous Waste, nor has Seller received any communication from any such
person or governmental agency or authority concerning any such matters.
8. 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
U.S.C. '4601 el 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 thereunder 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.
9. 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 District's agents, lender,
contractors, engineers, consultants, employees, subcontractors and other representatives (the
Page 6
"District Parties") may, upon the giving of reasonable advance written notice to Seller, enter
upon the Property for the purpose of inspecting, testing and evaluating the same; provided,
however, that District may not perform any work on the Property without Seller's prior written
consent, which shall not be unreasonably withheld 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 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 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.
C. 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 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.
D. Rights Cumulative. Each and all of the various rights, powers and remedies of the
parties shall be considered to be cumulative with and in addition to any other rights, powers and
remedies which the parties may have at law or in equity in the event of the breach of any of the
terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other right, power or
remedy available to such party.
E. Notices. Whenever any party hereto desires or is required to give any notice,
demand, or request with respect to this Agreement (or any Exhibit hereto), each such
communication shall be in writing and shall be deemed to have been validly served, given or
Page 7
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: William Edward Horstmeyer&
Lynn Ann Horstmeyer
c/o Gary Beck—Land Broker
John Motter Real Estate
7172 Anjou Creek Circle
San Jose, CA 95120
Telephone: (408) 268-4062
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: 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 party as aforesaid,
designate a different mailing address or a different person to which such notices or demands are
thereafter to be addressed or delivered. Nothing contained in this Agreement shall excuse either
party from giving oral notice to the other when prompt notification is appropriate, but any oral
notice given shall not satisfy the requirement of written notice as provided in this Section.
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
Page 8
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 sub�ject matter.
K. Time of Essence. Time is of the essence of each provision of this Agreement in
which time is an element.
L. Survival of Covenants. All covenants of District or Seller 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. Right to Assignment of Purchase Agreement. Seller and District understand and
agree that District has the express right in its sole discretion to assign all of the District's right,
title, interest, and obligations of whatever kind or nature under this Agreement to a governmental
entity, or bonafide non-profit corporation, whose principal purpose is the preservation of open
space, including, but not limited to Peninsula Open Space Trust or Santa Clara Valley Open
Space Authority. Such right to assignment shall include, but not be limited to, the right to assign
the District's above-described purchase rights in Escrow to its designated Assignee so that fee
title to the Property shall be conveyed at Closing to such Assignee. 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.
Page 9
Q. Qqptions. 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
mediation, or if there is any remaining unresolved controversy or claim subsequent to mediation,
any remaining unresolved controversy or claim shall be settled by binding arbitration. The
parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior
Court of California. The arbitration shall be conducted in accordance with the rules set forth in
California Code of Civil Procedure Sections 1280 et. seq. including the right of discovery.
Hearings shall be held in Santa Clara County, California. If the parties are unable to agree upon
an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation Services,
Inc. ("JAMS") in accordance with the rules thereof or, if JAMS ceases to exist, its successor, or if
none, a similar arbitration service. If arbitration is required to resolve a dispute, it shall in all
cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP
ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
SELLER INITIAL 1411')4- DISTRICT INITIAL
�A
Page 10
10. Acceptance. Provided that this Agreement is executed by Seller and delivered to
District on or before March 1, 2010, District shall have until midnight March 10, 2010 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 option shall remain irrevocable during this
period without the necessity of execution and acceptance of this Purchase Agreement by District.
As consideration for said irrevocable option, District or its designated Assignee has paid into
escrow and Seller acknowledges deposit into escrow of the sum of Five Thousand Dollars and
No/]00 ($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 soon
as practicable in accordance with the terms and conditions set forth herein.
1H
HI
Page 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized officers to be effective as of the date of final execution by District in accordance
with the terms hereof.
DISTRICT: SELLER:
MIDPENINSULA REGIONAL OPEN �cy�ly
SPACE DISTRICT
William Edward Horstmeyer, Successor Trustee
APPROVED AND ACCEPTED: of the Arend Louis Horstmeyer, Jr. and Lucille
Helen Horstmeyer Revocable Living Trust dated
June 15, 1993 as amended March 26, 1998 and
April 6, 2004
President, Board of Directors
Date Date
ATTEST:
EL Qrmp
District Clerk Lynn Ann Horstmeyer, Successor Trustee of the
Arend Louis Horstmeyer,Jr. and Lucille Helen
110'10 Horstmeyer Revocable Living Trust dated June 15,
Date 1993 as amended March 26, 1998 and April 6,
2004
ACCEPTED FOR RECOMMENDATION
CCJ �la� l to
Michael C. Williams, Real Property Manager Date
APPROVED AS TO FORM:
. "1411 ��
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
r-4= c elyl—A556'
Stephe . Abbors, General Manager
EXHIBIT A
Visit Us on our Website: www.ctic.com
.A
Chicago Title Company
ISSUING OFFICE. 675 N.First Street,Suite 400-San lose,CA 95112
FOR sETTLEMENTrNQUrRIES,CONTACT- Chicago Title Company-San Jose Almaden
5671 Santa Teresa Blvd.,Suite 206-San Jose,CA 95123
408 972-7016-FAX 408 365-9325
PRELIMINARY REPORT
Amended
Title Officer: Ruben Pinzon Title No.: 09-98309595-A-R,DD
Escrow Officer: Laura Higgins Locate No.: CACT17743-7743-2983-0098309595
Escrow No.: 09-98309595-LH
TO: John Motter Real Estate
7172 Anjou Creek Circle
San lose, CA 95120
ATTN: Gary Beck SHORT TERM RATE: No
PROPERTY ADDRESS: APN # 562-23-004, San Jose, California (Bare Land)
EFFECTIVE DATE: January 27, 2010, 07:30 A.M.
The form of policy or policies of title insurance contemplated by this report is:
CLTA Standard Coverage Policy - 1990
1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY
THIS REPORT IS:
A Fee
2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
William Edward Horstmeyer and Lynn Ann Horstmeyer,as Successor Trustees of The Arend
Louis Horstmeyer and Lucille Helen Horstmeyer Revocable Living Trust Dated June 15,
1993 as amended March 26, 1998 and April 6, 2004
3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS:
SEE EXHIBIT"A"ATTACHED HERETO AND MADE A PART HEREOF
RK\RL 12/14/2009
CLTA Preliminary Report Form-Modified(11/17/06)
i
Title No. 09-98309595-A-RP
Locate No. CACT17743-7743-2983-0098309595
LEGAL DESCRIPTION
EXHIBIT"A"
j
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA,COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
I
Lots numbered (2) Two, (3) three, (8) eight, and (9) Nine in Section 15,Township 9 South, Range 1 East,
Mount Diablo Meridian.
APN: 562-23-004
i
I
2
CCTA Preliminary Report Form-Modified(I I/P/06)
Title No, 09-98309595-A-RP
Locate No. CACT17743-7743-2983-0098309595
AT THE DATE HEREOF,ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION
TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS
FOLLOWS:
I including
1. Property taxes, which are a lien not yet due and payable, any assessments collected with
taxes to be levied for the fiscal year 2010-2011.
2. Property taxes, including any personal
I property Ytaxes and an assessments collected with taxes,for
the fiscal year 2009
-2010, Assessors Parcel Number
tuber 562 23 004.
Code Area Number: 72-007
1st Installment: $172.53 Paid
2nd Installment: $172.53 Payable, but not yet due
Land: $7,315.00
Improvements: $0.00
Exemption: None Shown
Personal Property: $0.00
3. Special Tax for Santa Clara County Library District Joint Powers Authority Community Facilities District
No.2005-1, under the Mello-Roos Community Facilities Act of 1982 as disclosed by a Notice of Special
Tax Lien Recorded June 24, 2005, Instrument No. 18438576, Official Records, payable in continuing
installments collected with the real property taxes.
i
4. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5 i
(Commencing with Section 75) of the Revenue and Taxation code of the State of California.
5. The lack of a legal right of access to and from a public street or highway.
i
6. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document.
Granted to: The Pacific Telephone and Telegraph Company
Purpose: The right from time to time to construct, place, inspect, maintain, replace
and remove communication facilities
Recorded: October 23, 1970,Instrument No. 3893611,Book 9098, Page 391,of Official
Records
Affects: As follows:
The Westerly 112 of Lot 3 and 8 of Section 15 in T9S, R1E, M.D.M.
Said facilities shall be placed within that certain fire breach approximately 15 feet wide, as said fire
break is now established, which extends across said real property in a general Northerly,
Northwesterly and Northeasterly direction from the Southerly boundary line of said Lot 8 to the
Westerly boundary line of said Lot 8 and from the Westerly boundary line of said Lot 3 to the
Northerly boundary line of said Lot 3.
I
CLTA Preliminary Report Form-Modified(11/17/06)
li
I,
I
ITEMS: (continued) Title No. 09-98309595-A-RP
Locate No. CACTI 7743-7743-2983-0098309595
7. Covenants and restrictions imposed by a Land Conservation Contract executed pursuant to Section
� 51200 et seq. California Government Code.
Dated: February 24, 1971
Executed by: County of Santa Clara and Marie Louise Winter
Recorded: February 25, 1971,Instrument No. 3959861, Book 9232, Page 388,of Official
Records
Said contract is subject to the following:
The effect of a document captioned "Notice of NonRenewal of Land Conservation Contract"
Recorded: October 10, 2008, Instrument No. 20011441, of Official Records
r
E3. Any invalidity or defect in the title of the vestees in the event that the trust referred to herein is
invalid or fails to grant sufficient powers to the trustee(s)or in the event there is a lack of compliance
with the terms and provisions of the trust instrument.
If title is to be insured in the trustee(s)of a trust, (or if their act is to be insured),this Company will
require a Trust Certification pursuant to California Probate Code Section 18100.5. The
Company reserves the right to except additional items and/or make additional requirements after
reviewing said documents.
9. The requirement that the death of Lucille Helen Horstmeyer be established of record prior to or at
close of escrow.
10. The herein referred to property appears to be free and clear of any Deeds of Trust or Mortgages.
Please confirm if this is the case.
END OF ITEMS
Note 1. The current owner does NOT qualify for the $20.00 discount pursuant to the coordinated
stipulated judgments entered in actions filed by both the Attorney General and private class
action plaintiffs for the herein described property.
Note 2. The application for title insurance was placed by reference to only a street address or tax
identification number.
Based on our records, we believe that the description in this report covers the parcel requested,
however, if the legal description is incorrect a new report must be prepared.
If the legal description is incorrect, in order to prevent delays, the seller/buyer/borrower must
provide the Company and/or the settlement agent with the correct legal description intended to
be the subject of this transaction.
4
CLTA Preliminary Report Form Modified(11/17/06)
J
|
� NOTES: (continued) Title No. 09'9830=595--.. �
Locate No. |
! Note 3. There are NO deeds affecting said land, recorded within twenty-four(24)months of the date of
this report.
| Note4. Da197OALTA Owner's or Lender's o/1975ALTA Leasehold Owner's orLender's policy form has
been requested,the policy,when approved for issuance,will be endorsed to add the following to
the Exclusions From Coverage contained therein:
| Loan Policy Exclusion: |
Any claim, which arises out of the transaction creating the interest of the mortgage insured by
this policy, by reason of the operation of federal bankruptcy,state insolvency,or similar creditors'
rights laws, that is based on: i
(i) the transaction creating the interest ofthe insured mortgagee being deemed o fraudulent
conveyance or fraudulent transfer; or �
(ii)the subordination of the interest of the insured mortgagee asa result nf the application ofthe �
doctrine of equitable subordination; or �
(iii)the transaction creating the interest of the insured mortgagee being deemed a preferential �
transfer except where the preferential transfer results from the failure:
(a)totimdy record the instrument oftransfer; or
(b)of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
Owners Policy Exclusion:
� Any claim, which arises out of the transaction vesting in the insured, the estate orinterest
insured by this policy, by ncoyon of theopaoatinn of federal bankruptcy, state insolvency, or
� similar creditors' rights laws, that is based on:
�
� (|) the transaction creating the estate or interest by this policy being deemed afraudulent
� conveyance orfraudulent transfer; or
�
� (ii) the transaction creating the estate or interest insured by this policy being deemed o
� preferential transfer except where the preferential transfer results from the failure:
�
(a)Uatimely record the instrument of transfer; or
� (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
� Note S. �a county recorder, title insumn��m�ny escrow company, r�|e�� brokerbroker, ms|e�� |
� ^ agent or association provides a copy of a company,
governing document or deed to any �
person, California law requires that the document provided shall include a statement regarding
any unlawful restrictions. Said statement ishobeinat least 14-point bold face type and may be
stamped on the first page of any document provided or included as a cover page attached to
� the requested document. Should a party Uo this transaction request copy of any document �
reported herein that fits this category, the statement istobeincluded in the manner described.
|5 |
coxna=njr�Report Form ModifiedUv1m06> '
' ---- ---�^
_
� � ^
`
. .
� Title No. U' 9�m3�5���
� NOTES: (continued) Locate No. CACTI 774J-73-Z983-00q83OgS95
| Note 6. Wiring instructions for Chicago Title Company, San Jose, CA, are asfollows:
Receiving Bank: Bank ofAmerica �
275 Valencia Blvd, 2ndFloor �
�
Brea, CA92823-5340
� ABA Routing No.: 026009593
Credit Account Name: Chicago Title Company ' San Jose Almaden
5671 Santa Teresa B|vd., Suite ZO6, San lose, CAg5123 |
Credit Account No.: 12353-81969
Escrow No.: 09-90309595-LH
These wiring instructions are for this specific transaction involving the Title Department nfthe
San Jose office of Chicago Title Company. These instructions therefore should not be used in
other transactions without first verifying the information with our accounting department. It is
imperative that the wire text be exactly as indicated. Any extraneous information may cause
unnecessary delays in confirming the receipt offunds.
Nmtm7. Any documents being executed in conjunction with this transaction must be signed in the
presence of an authorized Company employee, an authorized employee of an agent, an �
authorized employee of the insured lender, or by using Bancsery or other approved third-party
service. If the above requirements cannot be mat, please call the company at the number
provided in this report.
END OF NOTES
�
�
�
�
�
�
�
�
�
�
�
� 8
�
�
�
I
0 F F I C E O F C 0 U N T Y A S S S S 0 R S A N T A C!AIR A C O U N T Y, C A L I F O R N I A _8
562 t.x�•
wee•r. n
n rtn _
o
3
o
PIQ --
I
NOTE. FRACTIONAL SEC.IC PER RO.5.
158.23 AC. p •, d 4
ACREAGES SHOWN FROM U.S.G.S. At ) tN
SURVEY 151.75 AC.
Li
t y i 27.6]AC.! `�� S1UE LME,.:..•- uD -•�.i
Q, ,f i� �`` 1641.15 156]97
, IIr 673�=6 x1\O INSULA REGIONAL OPEN $.
OPEN SPACE DISTRICT ci R: / '0
5 Jt0\°.ry MIDPENINSULA REGIONAL
R3.40 Ac TOTAL Y-� ��OPEN SPACE DISTRICT
-
O W
y�e � 9
o
� (49.59 AC.) � '� 24
CF
u 12.as__i� A 3
264013
121639
This is not a survey of the land and is insetted
% MIDPENINSULA REGIONAL 'd �, as a matter ofiaformationonly,and while the
j I same is compiled fivm information we believe
OPEN SPACE DISTRICT to be correct,ao Lability is assumed by
_ 1 2 r Ift Chicago Title Company as to the corr¢ctness
/ 0
e. o of said information.
6' MIDPENINSULA REGIONAL' \�
• .'` ,� OPEN SPACE DISTRICT
c•'.t01't o, � -�f! \ � N LAWRENCE E STONE-ASSESSOR
Ce6.*d reap tr�t prpm-4
Cattpled carder F.t T.C°k Sec 377.
ENrcIM Rap 71er 1f107-]Lsl!