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HomeMy Public PortalAbout20100609 - Resolution - Board of Directors (BOD) I Cover Sheet For Scanning By ECS ©rieinatine Department General Manager Laserfiche Template Board Of Directors Template Fields Document Date: 6/9/2010 Document Type: Resolution Preserve Name: Keywords(No More Than 4): Chen Purchase Project Name: Project Number: Vendor Or Other Party: Y (First ): :) Name (Last): Address: APN Number: Document No. 10-20 Additional Field: Additional Field: Additional Field: Additional Field: RESOLUTION 10-20 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT,AUTHORIZING GENERAL MANAGER OR OTHER OFFICER TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT TO DISTRICT,AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION SIERRA AZUL OPEN SPACE PRESERVE - LANDS OF CHEN) The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: 1. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement between the Tom Teng Chen and Nancy Pei- Shing Chen and the Midpeninsula Regional Open Space District, a copy of which purchase a art hereof, and authorizes the President or agreement is attached hereto and b reference made p , a y g other appropriate officer to execute the Agreement on behalf of the District to acquire the real property described therein("the Chen Property"). 2. 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. 3. 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. 4. The General Manager is authorized to expend up to $2,500.00 to cover the cost of title insurance, escrow fees, and other miscellaneous costs related to this transaction. 5. 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. 6. 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 needed for operating and other workin capital needs of funds are g p general funds. These general fu p g 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$800,000 and to use a portion of the proceeds of the obligations for reimbursement of District expenditures for acquisition of the Chen Property that are paid before the date of issuance of the obligation. RESOLUTION NO. 10-20 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on June 09, 2010 at a Regular Meeting thereof, by the following vote: AYES: RIFFLE HARRIS CYR HASSETT SIEMENS AND DAVEY NOES: NONE ABSTAIN: NONE ABSENT: HANKO ATTEST: APPROVED: W GZJt�.y ecretary President Board of Directors Board of Directors I I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct copy of a resolution duly adopted by the Board of Directors of the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. Y District Clerk i } Page 1 PURCHASE AGREEMENT (Chen Property) This Agreement is made and entered into by and between Tom Tong Chen and Nancy Pei-Shing Chen, husband and wife as joint tenants, 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 YbY 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 at 21680 Aldercrest Heights Road within an unincorporated area of the County of Santa Clara, State of California, containing approximately One Hundred Twenty One and Fifty Seven Hundredths (121.57) acres, more or less, and commonly referred to as Santa Clara County Assessor's Parcel Number 558-30-010. Said property is further described in the Legal Description attached to Preliminary Report number 98310098 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". 2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be Eight Hundred Thousand and No/100 Dollars ($800,000.00), which shall be paid in cash at the "Closing" as defined in Section 3 hereof Purchase Agreement Page 2 3. Escrow. Promptly upon execution of this Agreement, in accordance with Section 12 herein, an escrow shall be opened at Chicago Title Company, 5671 Santa Teresa Blvd., Suite 206, San Jose, CA 95123 (408) 972-7016 (Escrow number 98310098) 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 June 30, 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 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 Seven Hundred Ninety Five Thousand and No/100 Dollars ($795,000.00) which is the balance of the Purchase Price of$800,000.00 as specified in Section 2. The balance of$5,000.00 is paid into escrow in accordance with Section 12 of this Agreement. 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 Purchase Agreement Page 3 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, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of $800,000.00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, (ii) exceptions 4 and 10 as listed in the Preliminary Report dated April 1, 2010 (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, 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. 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. 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 Purchase Agreement Page 4 representations and 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. 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 1 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 parry 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. As-Is Purchase and Sale. This sale is made without representation or warranty by Seller, except as expressly set forth in this Agreement. District represents, warrants, acknowledges and agrees that it has had full and ample opportunity prior to the execution of this Agreement to investigate the Property including, but not limited to, the physical condition thereof; the presence, absence or condition of improvements thereon; and that District shall P Property purchase the Pro e AS-IS WITH ALL FAULTS. 9. 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. f Purchase Agreement 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. C. Indemnity. Seller shall indemnify, defend and hold harmless District from and against and all claims, liabilities, losses, damages, and costs incurred or suffered by District, includingwithout limitation attorney, engineering and other professional or expert fees to the � Y, g g p P , extent arising from any breach of the warranties or representations contained herein. 10. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agreemay that Seller be entitled to receive certain relocation Y en f b e its and the fair market value of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. '4601 et seq.), and the 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, Purchase Agreement Page 6 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. 11. 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 "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. 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 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 Purchase Agreement Page 7 I 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: Tom Tong Chen and Nancy Pei-Shing Chen c/o Gary Beck, John Motter Real Estate 7172 Anjou Creek Circle San Jose, CA 95120 (408) 268-4062 FAX (408) 927-0225 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. Purchase Agreement Page 8 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. 1. 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. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. v v v L. Survival of Covenants. All covenants of District or Seller which are r expressly intended hereunder to be performed in whole or in art after the Closing, and all p Y p p g� 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. Purchase Agreement Page 9 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 Doc uments 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 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 j Mediation Services, Inc. in accordance with the rules thereof If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE ARBITRATION Purchase Agreement Page 10 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 j 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 <1 DISTRICT INITIAL I CCj ICI-Q-y 12. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before May 19, 2010, District shall have until midnight June 9, 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 offer shall remain irrevocable during this period without the necessity of execution and acceptance of this Purchase Agreement by District. As consideration for said irrevocable 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 material breach of this Agreement by District, Seller may retain the Option Consideration. Provided that this Agreement is accepted b District this transaction shall close as g p y , soon as practicable in accordance with the terms and conditions set forth herein. w I Purchase Agreement 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 1 District in accordance with the terms hereof. DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT APPROVED AND ACCEPTED: President, Boarddf Directors Tom Tong Chen Date Date ATTEST: District Clerk ancy P -Shing Chen Date: Date ACCEPTED FOR RECOMMENDATION Michael C. Williams, Real Property Manager APPROVED AS TO FORM: i Susan M. Schectman, General Counsel RECOMMENDED FOR APPROVAL: eph E. Abbors, General Manager EXHIBIT A 141sit Us on our Website: ww.ctic.com , Chicago Title Company ISSUING OFFICE. 675 N.First Street,Suite 400•San Jose,CA 95112 FOR SEMEMENTINQUMIES,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.: 10-98310098-A-RP Escrow Officer: Laura Higgins Locate No.: CACT17743-7743-2983-0098310098 Escrow No.: 10-98310098-LH TO: John Molter Real Estate 7172 Anjou Creek Circle San Jose, CA 95120 ATTN: Gary Beck SHORT TERM RATE: No PROPERTY ADDRESS: 21680 Aldercrest Heights Road, Los Gatos, California EFFECTIVE DATE: April 1, 2010, 07:30 A.M. The form of policy or policies of title insurance contemplated by this report is: 1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: A FEE as to Parcels) One; AN EASEMENT more fully described below as to Parcel(s)Two 2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: Tom Tong Chen and Nancy Pei-Shing Chen, husband and wife, as joint tenants 3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS: SEE EXHIBIT"A"ATTACHED HERETO AND MADE A PART HEREOF RK\RG 02/01/2010 CLTA Preliminary Report Form-Modified(11/17/06) Title No. 10-98310098-A-RP Locate No. CACT17743-7743-2983-0098310098 LEGAL DESCRIPTION EXHIBIT"A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA,COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Parcel One: That certain 145.43 acre of land,part of the Southwest quarter of Section 10 and part of the Northwest 1/4 of the Northwest 1/4 of Section 15,Township 9 South Range, 1 West, being the same property conveyed by San Jose Water Company,a Corporation to Josephine Mineo by deed dated August 21, 1897 and recorded in Book 200 of Deeds, page 572, in the office of the County Recorder of Santa Clara County, California. Excepting therefrom that certain triangular piece of land across the county road from the above described property, which triangular piece contains about three (3) acre, more or less this being all the land located South and lying between the Los Gatos and Wrights Road and the railroad track. Also excepting therefrom that portion granted to San Jose Water Works, by deed recorded June 18, 1963 in Book 6068, page 257 and being more particularly described as follows: Beginning at a 4"x 4"white post marked WPS S. 10 S. 15.T.9 S. R. 1 W.and set in the southern edge of the travelled track of the wrights Station Road at a point North 10 West 1.29 chains from the corner to Section 9, 10, 16, 15,Township 9 South Range 1 West,Mount Diablo Meridian and from which corner a live oak 3 inches in diameter marked B.TS 9 bears South 23 1/21 West 17 links,and a live oak 3 inches in diameter marked BTS 10 bears South 75 1/41 West 441/2 links and running thence along the centerline of said Wrights Station Road as at present travelled and as shown on a Map of Surveys made in Sections 10 and 15 Township 9 South, Range 1 West for the San Jose water Company, in August 1897 by Herrmann Bros., Suveyors ad C.E. San Jose, California and recorded in Volume F1 of Maps, page 12, in the office of the County Recorder of Santa Clara County, California withthe following courses and distances: North84° 54 East 0.69 chains to statio n; South 31011' East 1.20 chains to station, South 73041' East 1.64 chains to station SL264, as shown on said map at the point of intersection of said centerline of said road with the south line of said Section 10, from which point a Madrone 5 inches in diameter bears South 11 3/4°West 241/2 links and a live Oak 15 inches in diameter bears South 41 1/20 West 31 links;thence along said section line South 8805' East 12.46 chains to a 4" x 4" white post marked S 10 S 15 S.J.W. Co. and standing on brushy point in the South line of section 10 and distant North 8805' West 4.22 1/2 chains from the established 1/8 Section corner in the south line of the Southwest 1/4 of said Section 10;thence leaving said section line and running along the northern edge of that part marked on said map as "reservoir site" with the following courses and distances; North 210East 0.95 chains to stake WR6, North 250 West 0.95 chains to stake WR7,North 52 1/20 West 1.85 chains to stake WR8 from which a live oak 4 inches in diameter marked BT WR8 bears South 89 3/40 East 54 links, North 570 East 0.80 chains to stake WR9, North 19 1/20 East 1.34 chains to stake WR10, South 370 east 1.47 chains to stake WR11, South 54 3/40 East 0.80 chains to stake WR12, South 74030' East 2.07 chains to stake WR13, form which alive oak 8 inches in diameter marked BTWR 13 bears South 49 1/40 West 24 links North 38 1/20 East 1.17 chains to stake WR14, North 9 1/20 East 1.66 chains to stake WR15, North 50 East 1.34 chains to stake WR16,from which a sycamore 23 inches in diameter marked BTWR16 bears South 44 1/20 East 54 1/4 links, North 790 East 0.34 chains to stake WR17, South 31 1/20 East 0.86 chains to stake WR18,South 28 1/20 East 0.96 chains to stake WR19,from which a live oak 12 inches in diameter marked BTWR19 bears North 79 1/20 West 50 links, South 520 East 0.77 chains to stake WR20,South 90 east 1.13 chains to stake WR21, North 740 East 1.71 chains to stake WR22, North 45 1/20 East 1.12 chains to stake WR23, North 381 East 1.80 chains to stake WR24, North 27 1/20 East 1.60 chains to stake WR25, North 62 3/40 East 0.50 chains to stake WR26,at a redwood 16 inches in diameter marked WR26, and being the most northern redwood of the group of redwoods now growing and standing in the gulch that passes to the west of the Combatalada House,South 36 3/40 East 0.98 chains to stake WR27, South 42 1/20 East 1.67 chains to stake WR28, South 751 east 1.05 chains to stake WR29, North 79 3/40 East 6.64 chains to stake WR30,South 84 3/4 East 2.81 chains to stake WR31, as shown on said map and standing at the northeastern most corner of said "reservoir site"in the 1/4 section line running North and South through said section 10 at a point distant North 0013' East 7.89 chains from the established 1/4 section corner in the South line of said Section 10,and from which stake WR31 a live oak 16 inches in diameter bears North 250 West 141/2 links and a live oak 17 inches in diameter bears South 830 East 8 2/10 links,both being marked BTWR31;thence along said 1/4 section line running North and South through said Section 10, North 0013'east 300 feet, more or less to a point which bears North 10 West along 2 CLTA Preliminary Report Form-Modified(11/17/06) I EXHIBIT"A"(continued) Title No. 10-98310098-A-RP j Locate No. CACT17743-7743-2983-0098310098 I the dividing line between said Sections 9 and 10 for a distance of 269.00 feet, South 83005' East and parallel with the dividing line between said Sections 10 and 15 for a distance of 990.00 feet,North 10 West and parallel with the dividing line between said Sections 9 and 10 for a distance of 495.00 feet and South 88005'East and parallel with the said dividing line between Sections 10 and 15 for a distance of 1650.00 feet from the said point of beginning;thence North 88005'West and parallel with the said dividing line between Sections 10 and 15 for a distance of 1650 feet, South 10 East and parallel with the said dividing line between Sections 9 and 10 for a distance of 495.00 feet, North 88005'West and parallel with the said dividing line between Sections 10 and 15 for a distance of 990.00 feet to a point in the said dividing line between Sections 9 and 10 and South 10 East along said last mentioned line 260.00 feet to the point of beginning. Also excepting therefrom that portion granted to George J. Sullwold, Jr. by deed recorded May 15, 1967 in Book 7721, page 215 and being more particularly described as follows: Beginning at the southeasterly corner of the Lot 126 as said lot is shown upon that certain Map entitled,"Map of Stewart's Addition No.3 to Aldercrofts Heights",which map was filed for record in the office of the Recorder of the County of Santa Clara, state of California on April 15, 1929 in Book X of Maps, at pages 34 and 35; thence from said point of beginning South 79013' East 15.0 feet; thence North 25000'20" East 159.50 feet; thence North 510 15 West 107.92 feet to the easterlyline of said map; souther) along said easterly line p, Y 9 IY South 0033 East 209.3 feet to the paint of beginning. Parcel Two: The right to use the existing road over the 23.60 acre parcel of land granted to San Jose Water Works for access to and from the remaining property of Harold Chase Adair and Valora Adair, as reserved in the Deed from Harold Chase Adair; et ux to San Jose Water Works recorded June 18, 1963 in Book 6068, page 257, Official Records. NOTE: Parcel Two herein described is being included so as to avoid Chicago Title being the cause of excluding it from conveyances.Said parcel is not insured even though it may be included as part of the legal description of the land described in any policy. APN: 558-30-010 3 CLTA Preliminary Report Form-Modified(11/17J06) _ —I \ __, ^ Tide No. � Locate No. CmCTI 1OO9V / AT THE DATE HEREOF,ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION � TO THE _ ______ EXCEPTIONS AND ~~^CL~SI_,~S IN SAID POLICY , ~R, ,,~~~~ BE AS FOLLOWS: 1. Property taxes, which are a lien not yet due and payable,including any assessments collected with | taxes tnbe levied for the fiscal year 2O1O-2O11. | 2. Special Tax for Santa Clara County Library District Joint Powers Authority Community Facilities District � No.Z0O5-1,under the Mello-Roos Community Facilities Act of1982 as disclosed bya Notice ofSpecial Tax Lien Recorded June J4, 3005, Instrument No. 18438576,Officia| Records, payable in continuing installments collected with the real property taxes. 3. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter3.5 � (Commencing with Section 75) of the Revenue and Taxation code of the State of California. 4. Rights of the public as to any portion of the land lying within any and existing roads. S. The requirement that the parties to be insured herein acknowledge in writing thay they understand � that nwinsurance will be issued herein as to Parcel Two of the legal description, notwithstanding the � fact that said parcel may be included in the legal description of the policy to be isyued � . 6. Any consequence of claims or allegations that the location and dimensions of the land herein described cannot bm determined with certainty. � 7. Notwithstanding the text of the description of the land described in Schedule"A"herein,this company � makes no representation and give no assurance as to the acreage referred to therein. � � S. Any rights wfthe parties in possession ofa portion of, or all of, said land, which rights are not � disclosed by the public record. � � This Company will require, for review, a full and complete copy ofany unrecorded agreement, � � contract, license and/or lease,together with all supplements,assignments and amendments thereto, � � before issuing any policy of title insurance without excepting this item from coverage.The Company reserves the right to except additional items and/or make additional requirements after reviewing said documents. 9. Any easements not disclosed by those public records which impart constructive notice as to matters affecting title to naa/ property and which are not visible and apparent from an inspection of the surface of said land. � 10. Water rights,claims wntitle to water, whether or not disclosed by the public records . � 11. The herein referred to property appears to be free and clear of any Deedsof Trust or Mortgages. � Please confirm ifthis is the case. ` co^Preliminary Report Form'Modified(1z»r/06) ITEMS: (continued) Title No. 10-98310098-A-RP Locate No. CACT17743-7743-2983-0098310098 12. "If an Alta Policy is requested, this Company will require an Inspection prior to the Close of Escrow." 13. We find various Liens and Judgments,that are of record against persons with similar orthe same name as that of our vestee(s)shown herein. In order to complete this report,this Company requires a Statement of Information to be provided for the following vestee(s),which may allow and assist elimination of some or all of said Liens and Judgments.After review of the requested Statement(s)of Information, the Company reserves the right to add additional items or make further requirements prior to the issuance of any Policy of Title Insurance. Vestee(s): Thomas Chen 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. Note 3. There are NO deeds affecting said land, recorded within twenty-four(24) months of the date of this report. Note 4. Effective March 1, 1979,there will be an additional$10.00 fee for recording a deed with a legal description other than an entire lot in a recorded final map. If there are any questions, please call your escrow officer or title officer. 5 CLTA Preliminary Report Form-Modified(11/17/06) NOTES: (continued) Title No. 10-98310098-A-RP Locate No. 10098 Note S. If 1970 ALTA Owner's or Lender's or 1975AL7A Leasehold Owner's or Lender's policy form has been requested,the policy,when approved for issuance,will be endorsed to add the following 1u 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 of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or (ii)the subordination of the interest of the insured mortgagee as a result of the application of the / / doctrine of equitable subordination; or (|ii)the transaction creating the interest ofthe insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: | (a)totimely record the instrument of transfer; 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 or interest | insured by this policy, by reason of the operation of federal banhruptcy, state insolvency, or ! similar creditors' rights laws, that is based on: (i) the transaction creating the estate or interest by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a i preferential transfer except where the preferential transfer results from the failure: | � (n)botimely record the instrument of transfer; or ' � � (b)of such recordation to impart notice to a purchaser for value or a Judgment or lien creditor. | � � Nctm�� Property taxes for the fiscal year shown below .ow are PAID For proration purposes the � amounts are: � Tax Identification No.: 558-30-010 | � Fiscal Year: 2009 - 3010 � � 1st Installment: $958.03 2ndInstaUnxent: $958.03 � Note 7. NOTE: If exception No. 6 shown herein is to be eliminated this company will require a legal � description prepared by a civil engineerwhich is acceptable and approved by this companytobe � added to the legal description shown in Exhibit 'Y\^of this report. � b cox Preliminary Report Form'Modified(zvoxm NOTES: (continued) Title No. 10-98310098-A-RP Locate No. CACr17743-7743-2983-0098310098 Note S. If a county recorder, title insurance company, escrow company, real estate broker, real estate agent or association provides a copy of a declaration, governing document or deed to any person, California law requires that the document provided shall include a statement regarding any unlawful restrictions. Said statement is to be in at 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 to this transaction request a copy of any document reported herein that fits this category,the statement is to be included in the manner described. Note 9. Wiring instructions for Chicago Title Company, San Jose, CA, are as follows: Receiving Bank: Bank of America 275 Valencia Blvd, 2nd Floor Brea, CA 92823-6340 ABA Routing No.: 026009593 Credit Account Name: Chicago Title Company- San Jose Almaden 5671 Santa Teresa Blvd., Suite 206, San Jose, CA 95123 Credit Account No.: 12353-81969 Escrow No.: 10-98310098-LH These wiring instructions are for this specific transaction involving the Title Department of the 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 tent be exactly as indicated. Any extraneous information may cause unnecessary delays in confirming the receipt of funds. Note 10. 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 met, please call the company at the number provided in this report. END OF NOTES 7 Ili CLTA Preliminary Report Form-Modified(11/17/06) III 0 F F I CE OF C 0 U N TY A S S E S S 0 R S AN TA C L A R A C 0 U N TY, CALIF0RN1 A 51► � PACE 0:1 1 I 4 3 9 to AC 40 AC 4f 650 K 5500 AC 40 K -�s roo- n sas. arw�.s so. W—I}-E— I —�I p F 9 12 FJ PIQ 23 =P 9U 77ais is not a mme,of the Lmd aad is inserted —a-Wff of information only,and while she same is compiLrd fmm infortr{ofion we behove to be coffer;no lia3ility is rimmed by lvidciig National Tftle Croft'as to the �— 10 corfwctnacr of said infonna tioa. — G Op -ersse-I s. ,. nc w. im 'Ies w.ateesr wpovrs Iq 4 STEWARTS ADDiTi[Yi ., rso PCL. a 23-6s ac.an. sso _J v n f A W M bf Sy T f 1. tll K 10T {15.n K. 25 tsigid n mdamaia.A1 ac lTl d ue R A T.code. Fa cat ,arfaaes air E11xtlw F.11oM Yw 1999-2000 IAWRENCE L STONE-ASSESSOR