HomeMy Public PortalAbout20101013 - Resolution - Board of Directors (BOD) (2) Cover Sheet For Scanning By ECS,
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Document Date: 10/13/2010
Document Type: Resolution
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Keywords(No More Than
4): Powell Purchase
Project Name:
Project Number:
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APN Number:
Document No. 10-32
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RESOLUTION 10-32
RESOLUTION OF THE BOAR
D 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 DO
CUMENTS
NECESSARY OR APPROPRIAT
E TO CLOSING OF THE
TRANSACTION (MONTE BELLO OPEN SPA
CE PRESERVE - LANDS
OF POWELL)
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 K. Harmon Powell 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 "Powell 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 $35,000 to cover the District's share of
closing costs, site clean up and security costs and other miscellaneous costs associated with this
purchase.
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
general funds. These general funds are needed for operating and other working capital needs of
the District and are not intended to be used to finance property acquisitions on a long-term basis.
U.S. Income Tax Regulation Section 1.150-2 requires an issuer of tax-exempt debt to declare its
intent to use a portion of tax-exempt debt proceeds for reimbursement of expenditures prior to
the payment of the expenditures. Accordingly,the Board of Directors hereby declares its intent
to issue tax-exempt obligations in the maximum principal amount of$1,000,000 and to use a
portion of the proceeds of the obligations for reimbursement of District expenditures for
acquisition of the Powell Property that are paid before the date of issuance of the obligation.
RESOLUTION NO. 10-32
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on October 13, 2010 at a Regular Meeting thereof, by the following vote:
AYES: CYR,HANKO,HARRIS,HASSETT,RIFFLE,SIEMENS
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
ATTEST: APPROVED:
S/cretary Presi dent"'
Board of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
held and called on the above day.
District Clerk
t
Purchase Agreement Page 1
PURCHASE AGREEMENT
POWELL PROPERTY—PARCEL ONE
This Purchase Agreement ("Agreement") is made and entered into by and between K. HARMON
POWELL, also known as KERMIT H. POWELL, a married man ("Seller"), and the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a special district formed pursuant to
Article 3 of Chapter 3 of Division 5 of the California Public Resources Code ("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 fo District, and District
wishes to purchase said property upon the terms and conditions set forth herein.
1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from
Seller, Seller's real property("Property") located within an unincorporated area of the
County of Santa Clara, State of California, containing approximately 33.513 acres, more
or less, and commonly referred to as Santa Clara County Assessor's Parcel Number 351-
26-002, as further described in the Legal Description attached to Preliminary Report
Number 56007-1012273 from North American Title Company, dated June 3, 2010 and
attached hereto and incorporated herein as"Exhibit A". Said property is to be conveyed
together with any easements, rights of way, or rights of use appurtenant or attributable to
the aforesaid lands, and any and all improvements attached or affixed thereto.
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be One
Million Dollars ($1,000,000.00), which shall be paid in cash at the "Closing" as defined
in Section 3 hereof.
3. Escrow. Promptly upon execution of this Agreement, an escrow shall be opened at North
American Title Company, 497 N. Santa Cruz Avenue, Los Gatos, CA 95030, (408) 399-
4100 (Escrow Number 56007-1012273) or other title company acceptable to District and
Seller ("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
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Purchase Agreement Page 2
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.
The time provided for in the escrow for the close thereof shall be on or before October 29,
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 (defined below) to be recorded in the Office of the County
Recorder of Santa Clara County. 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. 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.
A. Seller shall deposit into the escrow, on or before the Closing:
i) A duly executed and recordable Grant Deed from Seller, in a form acceptable to
District, conveying to District the Property as described in said Exhibit A; and
ii) A duly executed and recordable Quitclaim Deed from Seller's wife Viet Su Thi La
(also known as Viet-Su T. La), in a form acceptable to District, quitclaiming to
Seller all of Viet Su Thi La's right, title and interest, if any, in the Property.
B. District shall deposit into the escrow, on or before the Closing:
i) Certificates of Acceptance for the Grant Deed from Seller and Quitclaim Deed
from Viet Su Thi La, duly executed by District and dated as of the Closing; and
ii) District's check payable to Escrow Holder in the amount of Nine Hundred Ninety
Thousand Dollars ($990,000.00), which is the balance of the Purchase Price of
One Million Dollars ($1,000,000.00), as specified in Section 2. The balance of
$10,000.00 is paid into escrow in accordance with Section 13 of this Agreement.
C. Seller shall pay the escrow fees, the CLTA Standard Policy of Title Insurance
("Policy"), and all recording costs and fees as is customary in Santa Clara County.
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
close of escrow between District and Seller as of the Closing based upon the latest
available tax information using the customary escrow procedures.
D. Seller shall cause North American Title Company, or other title company acceptable
to District and Seller, to be prepared and committed to deliver to District, a one
hundred ten percent (I 10%) binder for a CLTA standard policy of title insurance,
dated as of the Closing, insuring District in the amount of One Million Dollars
($1,000,000.00) for the Property, showing title to the Property vested in fee simple in
District, subject only to: (i) current real property taxes, (ii) exception numbers 5 and 9
as listed in Exhibit A hereof, and, and (iii) such additional title exceptions as may be
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approved in writing by District prior to the Closing as determined by District in its
sole and absolute discretion.
E. 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, the Quitclaim Deed, and the corresponding
Certificates 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 j
District the original Policy, 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.C., and less a withholding in the amount of$5,000.00 as set out in Section 5), 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 District notifies Escrow Holder that District's
Closing Condition set out in Section 4 herein has not been fulfilled to District's
satisfaction, Escrow Holder shall deduct an additional amount of$5,000.00 from the
Purchase Price for delivery to District at Closing as set out in Section 4. In the event
the escrow terminates without Closing as otherwise provided for herein, Escrow
Holder shall return all monies, documents or other things of value deposited in the
escrow to the party depositing the same.
4. District's Closing Condition Regarding Removal of Personal Property and Debris.
District and Seller understand and agree that Seller's obligation to complete the
transaction set out in this Agreement to sell the Subject Property to District is conditioned
upon Seller's responsibility and obligation to remove all personal property and debris
from the Subject Property, except as otherwise set forth in Paragraph 5. Seller shall fulfill
this obligation on or before Closing. In the event Seller does not fulfill this obligation to
District's reasonable satisfaction, District is authorized, in its sole discretion, to instruct
Escrow Holder to withhold the amount of Five Thousand Dollars ($5,000.00) from the
Purchase Price and to instruct Escrow Holder to deliver these funds to District at Closing.
5. Withhold from Purchase Price for Seller's Continued Use of Workshop. Seller and
District agree that, following Closing for the Subject Property, Seller may continue to
have access to and use of Seller's workshop located adjacent to the primary residence on
the Subject Property("Workshop"). Electrical power to the Workshop is provided by a
connection from the primary residence. The electrical service account will remain in
Seller's name, and Seller agrees to remain current in all payments due on the account.
District shall have no responsibility or liability for any such electrical service or account.
Permission and any rights to access or use of the Workshop by Seller shall terminate one
hundred eighty days (180 days) after the Closing for the Subject Property ("Use
Termination Date"). Seller agrees and covenants to vacate the Workshop and to remove
all personal property from the Workshop on or before the Use Termination Date. Both
parties agree and acknowledge that Escrow Holder is instructed to withhold the amount of
Five Thousand Dollars ($5,000.00) from the Purchase Price as a deposit against Seller's
covenant to vacate and remove all personal property from the Workshop. Escrow Holder
shall deliver these funds as follows:
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Purchase Agreement Page 4
A. to Seller upon written notice from District that Seller's covenant under this Paragraph
5 has been met to District's reasonable satisfaction; or
B. to District 180 days following Closing if District does not release its claim to the
withheld funds in writing due to Seller failing to vacate the Workshop to District's
reasonable satisfaction.
i
6. 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.
7. 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.
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
executed and delivered by Seller and are legal, valid and binding obligations of Seller
sufficient to convey to District the Subject Property described therein, and are
enforceable in accordance with their respective terms and do not violate any
provisions of any agreement to which Seller is a party or by which Seller may be
bound or any trust agreements, articles, bylaws or corporate resolutions of Seller.
C. Leases or Occupancy of Premises. Seller represents and warrants that, as of the date
this Agreement is executed by Seller, there exist no oral or written leases, subleases,
licenses, or rental agreements affecting all or any portion of the Property. Seller
further warrants and agrees to defend and indemnify District for and against any and
all costs, liabilities, losses, damages or expenses, including costs for legal services,
occasioned by reason of any lease, license, rental agreement, or occupancy of the
Property being acquired by District, including, but not limited to, claims for relocation
benefits and/or payments of any kind pursuant to California Government Code
Section 7260 et seq, or other applicable law, made by any tenant, licensee, or
occupant of the Subject Property. Seller understands and agrees that the provisions of
this Section shall survive Closing and recordation of any Grant Deed(s).
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Purchase Agreement Page 5
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.
8. 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.
9. As-Is Purchase and Sale. This sale is made without representation or warranty by Seller,
except as expressly set forth in this Agreement. Seller represents and warrants that no
reports and documents are in Seller's possession regarding the improvements, physical,
geologic and environmental condition of the Property ("Disclosure Documents"). This
does not relieve Seller of its obligation to provide District with all Disclosure Documents
known to Seller. District represents, warrants, acknowledges and agrees that it has had
full and ample opportunity prior to the Closing to investigate the Property, including but
not limited to the physical condition thereof,the presence, absence or condition of
improvements thereon, the'suitability of the Property for any purpose, the compliance of
the Property for any purpose,the compliance of the Property with applicable laws, the
condition of the soil, water, vegetation, any water courses or bodies of water in, on or
adjacent to the Property, and the surroundings of the Property, and that District shall
purchase the Property AS-IS WITH ALL FAULTS. Except as expressly set forth in this
Agreement, Seller expressly disclaims any representations or warranties concerning any
of the foregoing matters. District represents and warrants to Seller that, prior to the
Closing, District has made visual inspections of the Property and such geologic, soils and
other tests as District deems appropriate, and that District accepts the condition of the
Property as set forth above.
10. 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. The term "Environmental Law" as used herein includes, without
limitation,the Comprehensive Environmental Response, Compensation and Liability
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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,
including without limitation, attorney, engineering and other professional or expert
fees, to the extent arising from any breach of the warranties or representations
contained herein.
11. Waiver of Relocation Benefits and Statutory Compensation. 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 for in any laws or regulations and to any
other compensation, except as provided in this Agreement.
12. Miscellaneous Provisions.
A. Access for Due Diligence Investigations. From the date Seller delivers an executed
copy of this Purchase Agreement to District until the Closing, District, its employees,
agents, contractors, engineers, consultants, subcontractors and other representatives
may, upon the giving of reasonable advance written or verbal 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
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Seller's prior written or verbal consent, which shall not be unreasonably withheld or
delayed and further provided that District shall give Seller at least 24 hours' prior
p Y g
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 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 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,
or arbitrator, in the case of arbitration, 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, or arbitrator in the case of arbitration, 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 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
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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: With copy to:
Hannon Powell Dermer Law Firm
2157 Port Way 15720 Winchester Blvd.
San Jose, CA 95133 Los Gatos, CA 95030
Telephone: (408) 493-5937 Telephone: (408) 395-5111
FAX: (408) 354-2797
District:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Stephen E. Abbors, General Manager
Telephone: (650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic,
facsimile or cabled notice shall promptly be sent by mail (in the manner provided
above) to the addressee. Service of any such communication made only by mail shall
be deemed complete on the date of actual delivery as indicated by the addressee's
registry or certification receipt or at the expiration of the third (3rd) business day after
the date of mailing, whichever is earlier in time. Either party hereto may from time to
time, by notice in writing served upon the other 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
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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
I. Waiver. No waiver of any term, provision or condition of this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or be
construed as, a further or continuing waiver of any such term,provision or condition
or as a waiver of any other term, provision or condition of this Agreement.
J. Entire Agreement. This Agreement is intended by the parties to be the final
expression of their agreement; it embodies the entire agreement and understanding
between the parties hereto; it constitutes a complete and exclusive statement of the
terms and conditions thereof, and it supersedes any and all prior correspondence,
conversations, negotiations, agreements or understandings relating to the same subject
matter.
K. Time of Essence. Time is of the essence of each provision of this Agreement in
which time is an element.
L. Survival of Covenants. All covenants of District or Seller which are expressly
intended hereunder to be performed in whole or in part after the Closing, and all
representations and warranties by either party to the other, shall survive the Closing
and be binding upon and inure to the benefit of the respective parties hereto and their
respective heirs, successors and permitted assigns.
M. Assignment. Except as expressly permitted herein, neither party to this Agreement
shall assign its rights or obligations under this Agreement to any third party without
the prior written approval of the other party.
I
N. Further Documents and Acts. Each of the g
parties hereto agrees to execute and deliver
p
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.
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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. motions. 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.
13. Acceptance. Provided that this Agreement is executed by Seller and delivered to District
on or before August 6, 2010, District shall have until midnight, October 13, 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 the sum of Ten Thousand
Dollars and No/100 ($10,000.00) (the "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.
[Signatures on following page]
Powell Purchase Agreement—Parcel One-0805 I O—District revise [FINAL]
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 District in accordance
with the terms hereof.
j DISTRICT: SELLER:
MIDPENINSULA REGIONAL OPEN K. HARMON POWELL,
SPACE DISTRICT a married man, as his sole and separate property
APPROVED AND ACCEPTED:
K. Harmon Powell
r sident,Board of Directors
Date
Date
ATTEST:
Michelle Radcliffe, District Clerk
ACCEPTED FOR RECOMMENDATION:
cjQ C=::�"
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
l Sd-1--e�L—V
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
Stephe . Abbors, General Manager
Powell Purchase Agreement—Parcel One 080510 District revise FINAL
i
EXHIBIT A
TO
PURCHASE AGREEMENT
POWELL PROPERTY—PARCEL ONE
Preliminary Report No. 56007-1012273
[See following page]
r
N H 497 N. Santa Cruz Avenue
AMERICAN Los Gatos, CA 95030
(408)399-4100
ATITLE (408)354-3212
SCOI PANY
Like Clockwar*
Michael C. Williams
Midpeninsula Regional Open Space, District
330 Distel Circle
Los Altos, CA 94022-1404
DIRECT ALL INQUIRIES TO:
Escrow Officer: Susan Trovato
Phone: (408)399-4100
Fax No.: (408)354-3212
E-Mail: strovato@nat.com
E-Mail Loan Documents to: nocal.losgatos@natdocs.com
Property: 17281 Stevens Canyon Road
Cupertino, CA 95014
Buyer: Mid Peninsula
Owner: K. Harmon Powell
PRELIMINARY REPORT
IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE,
North American Title Insurance Company
Hereby reports that it is prepared to Issue,or cause to be issued,as of the date hereof,a Policy or Policies of Title Insurance describing the
land and the estate or interest therein hereinafter set forth,Insuring against loss which may be sustained by reason of any defect,lien or
encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules,Conditions
and Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage and limitations on covered risks of said Policy or Policies are set forth in Exhibit A
attached.The Policy to be issued may contain an Arbitration Clause. When the amount if insurance is less than that set forth in the
Arbitration Clause,all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of
the Parties. Urnitations on covered risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a
deductible amount and a maximum dollar limit of liability for certain coverages are also set forth in Exhibit A. Copies of the Policy forms
should be read.They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this
report carefully.The exceptions and exclusions are meant to provide you with notice of matters which are not covered
under the terms of the title Insurance policy and should be carefully considered.
It Is important to note that this preliminary report is not a written representation as to the condition of title and may not
list all liens,defects,and encumbrances affecting title to the land.
This report(and any supplements or amendments hereto)is issued solely for the purpose of facilitating the issuance of a policy of title
insurance and no liability Is assumed hereby.If it Is desired that liability be assumed prior to the issuance of a policy of title insurance,a
Binder or Commitment should be requested.
Dated as of June 03, 2010 at 7:30 A.M. Janet Williams, Title Officer
Page I
Order No.: 56007-1012273-10
. .
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The form mf Policy of title insurance contemplated by this report is:
America First Owners
ALTALomn �
� A specific request should be made if another form or additional coverage is desired. |
�
llUe to said estate or interest at the date hereof isvested in:
| K. HARMONPOVVELLA MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY
' The estate or interest in the land hereinafter described or referred to covered by this Report is:
`
A fee asboParce(s) ONE, an easement as0oParce(s)TWO AND THREE.
The Land referred to herein is described as follows:
(See attached Legal Description)
At the date hereof exceptions to coverage in addition bo the printed Exceptions and Exclusions insaid
policy form would beasfollows:
1. General and special taxes and assessments for the fiscal year 2010-2011, a lien not yet due or �
payable. /
2. The ken of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with
Section 75 of the California Revenue and Taxation Code '
. �
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3. Assessment liens, if applicable, collected with the general and special tames including but not
limited ho those disclosed bv the reflection of the following of the tax roll:
Community Facilities District COUNTY LIBRARY. |
4. An easement for POLE LINE and incidental purposes /n the document recorded]ULY 13, 1970
� es DOCUMENT NO. ]B]8O46, BOOK D984 PAGE38of0#lda| Koz�rds
� ' .
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5. Any and all offers of dedications, conditions, restrictions, easements notes and/or provisions
� shown or disclosed by the filed or recorded map referred to in the legal description.
� 6. THE RIGHT TO RECEIVE ONE-HALF(1/2) OF THE NET PROCEEDS OF ANY SALE OR SALES ON |
SAID PROPERTY, AS RESERVED 8YVVANDAl[ POVVELLlNDEED:
� RECORDED: APRIL14, 1993
� INSTRUMENT NO.: 1186O34U
BOON: M73O
PAGE: 764.
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� Order No.: 56007-1012273-10
| 7. A Deed of Trust to seLurean original Indebtedness of$715,100.00 .~-jrded FEBRUARY 26,
2UO7as DOCUMENT NO. 19316896of Official Records.
Dated: FEBRUAAY12, J087
Tiustor: K. HARMON POVVELL, A MARRIED MAN AS HIS SOLE AND
SEPARATE PROPERTY
Trustee: FIDELITY NATIONAL TITLE INSURANCE COMPANY
| Beneficiary: WELLS FARGO BANK, N.A. �
8. The effect wfa deed dated NCyJEMBER 13, 2008, executed byVVANDAT. POVVELL AN �
UNMARRIED WOMAN, as Grantor, to K. HARMON POVVELLAN UNMARRIED MAN, as Grantee,
| recorded]ANUARY 30, 2009, as DOCUMENT NO. 20116190 of Official Records.
i
The requirement that this office be furnished with evidence that the deed was an absolute
conveyance for value, and that there are no other agreements, oral or written, regarding the
�
ownership of the land described herein. �
! Q. Any easements and/or servitudes affecting easement parcel(s)TWO AND THREE herein
described.
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Order No.: 56007-1012273-10 /
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LEGAL DESCRIPTION
Real property in the unincorporated area of the County of Santa Clara, State of California,
I described as follows:
PARCEL ONE:
PARCEL A, AS SHOWN ON THAT CERTAIN MAP ENTITLED "PARCEL MAP," FILED FOR RECORD
IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
ON JULY 20, 1970, IN BOOK 270 OF MAPS PAGE 40.
PARCEL TWO:
AN EASEMENT FOR INGRESS AND EGRESS AND THE INSTALLATION AND MAINTENANCE OF
PUBLIC UTILITIES AND FOR THE INSTALLATION AND MAINTENANCE OF A WATER PIPE LINE
OVER ALL THAT PORTION THEREOF, AS LIES WITHIN A STRIP OF LAND 60.00 FEET IN WIDTH,
THE CENTERLINE OF WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF PARCEL B, ON THE CENTERLINE OF
STEVENS CANYON ROAD, AS SHOWN ON THE RECORDS OF SURVEY MAP, ABOVE REFERRED
TO; THENCE ALONG THE CENTERLINE OF SAID STEVENS CANYON ROAD, N. 59 DEGREES 58'
20" W. 134.44 FEET AND N. 83 DEGREES 39' 00"W. 50.56 FEET TO THE TRUE POINT OF
BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF BEGINNING AND
LEAVING THE CENTERLINE OF SAID STEVENS CANYON ROAD, N. 53 DEGREES 35' 30" W.
240.87 FEET TO A POINT; THENCE N. 33 DEGREES 48' 50"W. 362.04 FEET TO A POINT;
THENCE N. 77 DEGREES 32' 50"W. 122.63 FEET TO A POINT; THENCE N. 44 DEGREES 40' 30"
W. 194.27 FEET TO A POINT, THENCE N. 24 DEGREES 14' 20"W. 317.80 FEET TO A POINT,
THENCE S. 64 DEGREES 36' 40" E. 266.04 FEET TO A POINT; THENCE S. 84 DEGREES 33' 40' E.
488.09 FEET TO A POINT; THENCE N. 33 DEGREES 15' 20" W. 255.64 FEET TO A POINT;
THENCE N. 46 DEGREES 00' 30" W. 202.42 FEET"TO A POINT;THENCE N. 32 DEGREES 06' 50"
W. 255.66 FEET TO A POINT; THENCE N. 19 DEGREES 90' 00" W. 225.54 FEET TO A POINT;
THENCE N. 36 DEGREES 58' 30" W. 273.89 FEET TO A POINT; THENCE N. 63 DEGREES 51' 50"
W. 255.00 FEET TO A POINT; THENCE N. 38 DEGREES 55' 00"W. 155.40 FEET TO A POINT;
THENCE N. 24 DEGREES 52' 00" W. 433.44 FEET TO A POINT ON THE NORTHWESTERLY LINE
OF SAID PARCEL B AND THE TERMINUS OF THE LINE DESCRIBED HEREIN.
PARCEL THREE:
I
AN EASEMENT FOR INGRESS AND EGRESS AND THE INSTALLATION AND MAINTENANCE OF I
UNDERGROUND WATER STORAGE TANKS, IN, OVER, UNDER, UPON AND ACROSS A STRIP OF
LAND, 20.00 FEET IN WIDTH, THE SOUTHEASTERLY LINE OF WHICH IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF THE ABOVE DESCRIBED PARCEL OF LAND;
THENCE ALONG THE BOUNDARY LINE OF THE ABOVE DESCRIBED PARCEL OF LAND, S. 56
DEGREES 44' 40" W. 300.00 FEET AND THE TERMINUS OF THE LINE DESCRIBED THEREIN.
APN: 351-26-002-00
Page 4
Order No.: 56007-1012273-10
INFORMATIONAL NOTES
1. GOOD FUNDS LAW
Under Section 12413.1 of the California Insurance Code, North American Title Company, Inc.
may only make funds available for disbursement in accordance with the following rules:
I
Same day availability. Disbursement on the date of deposit is allowed only when funds are
deposited to North American Title Company, Inc. by Cash or Electronic Transfer(Wire). Cash will
be accepted only under special circumstances and upon approval by management.
Next business day availability. If funds are deposited to North American Title Company, Inc. by
cashier's checks, certified checks or teller's checks, disbursement may be on the next business
day following deposit. A"teller's check"is one drawn by an insured financial institution against
another insured financial institution (e.g., a savings and loan funding with a check drawn against
a FDIC insured bank).
Second business day availability. If the deposit is made by checks other than those described in
paragraphs 1 and 2 above, disbursement may occur on the day when funds must be made
available to depositors under Federal Reserve Regulation CC. In most cases, these checks will be
available on the second business day following deposit. (For further details, consult California
Insurance Code Section 12413,et seq. and Regulation CC).
These are the minimum periods before funds will be made available. North American Title
Company, Inc. may require additional time before disbursing on deposited funds.
North American Title Company will not be responsible for accruals of interest or other charges
resulting from compliance with the disbursement restrictions imposed by state law.
For Your Information, Our Wire Instructions Are:
Wire To: Credit the Account of:
Comerica Bank North American Title Company
2321 Rosecrans Ave, Ste 5000 Bank Account No.: 1893560076
El Segundo, CA 90245 Escrow No. 56007-1012273-10
Routing No.: 121137522 Branch/County No.: 56007
Attn: Susan Trovato
• ACH FUNDS -Automatic Clearing House
North American Title Company will not accept funds in the form of ACH transfers.
2. This report is preparatory to the issuance of an ALTA Loan Policy. We have no knowledge of any
fact which would preclude the issuance of the policy with CLTA endorsement forms 100 and 116
and if applicable, 115 and 116.2 attached.
When issued, the CLTA endorsement form 116 or 116.2, if applicable will reference a(n) Single
Family Residence known as 17281 Stevens Canyon Road, Cupertino, California, 95014.
3. General and special taxes and assessments for the fiscal year 2009-2010.
First Installment: $735.03, PAID
Page 5
Order No.: 56007-1012273-10
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Penalty: $0.00
Second Installment: $735.03 PAID
� Penalty: $lOO
� Tax Rate Area: 85-002
A. P. No.: 351-26-082-00 �
4. According to the public records, there has been no conveyance of the land within a period
of twenty four months prior to the date of this report, except asfollows:
A document recorded]ANUARY3U, 2009 as DOCUMENT NO. J0116189ofOfficial Records.
From: K. HARMON PDVVELL(AL5D KNOWN AS KERMITH. POVVELU AND VIET- �
SUT. LA, HUSBAND AND WIFE, WHO ACQUIRED TITLE AS K. HARMON �
. POVVELLA MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS
TD PARCEL ONE; AND N. HARMON POVVELL, TRUSTEE DF THE POVVELL
� 2007CHARITABLE REMAINDER UNlTRUSTDATED 3-15-3007, AND
! VIBFSU T. U\ WIFE OF K. HARMON POVVELL AS TO PARCELS TWO
AND THREE
�
To: K. HARMON POWELLA MARRIED MAN, AS HIS SOLE AND SEPARATE
PROPERTY
Adocument recorded]ANUARY 30, 2009 as DOCUMENT NO. 20116190 of Official Records.
From: VVANDA-[ POVVELL, AN UNMARRIED WOMAN
To: K. HARMON POVVELLAN UNMARRIED MAN
5. The map attached, if any, may or may not be a survey of the land depicted hereon. North
American expressly disclaims any liability for loss or damage which may result from reliance on
this map except bnthe extent coverage for such loss ur damage \s expressly provided bythe
terms and provisions of the title insurance policy, |f any, ho which this map is attached.
6. NorthAnnadcan-UdeCompanKInc'schangesfornecondingthe transaction documents include
charges for services performed by North American Title Company, Inc., in addition hoanestimate
of payments Uobe made ho governmental agencies.
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Order No.: 56007-1012273-10