HomeMy Public PortalAbout20101208 - Resolution - Board of Directors (BOD) (2) Cover Sheet For Scanning By ECS,
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Document Date: 12/8/2010
Document Type: Resolution
Preserve Name:
Keywords(No More Than
4): Silva Purchase
Project Name:
Project Number:
Vendor Or Other Party:
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Name(Last):
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APN Number:
Document No. 10-48
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RESOLUTION 10-48
RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT AUTHORIZING APPROVAL OF PURCHASE
AGREEMENT, AUTHORIZING GENERAL MANAGER OR OTHER OFFICER TO
EXECUTE ASSIGNMENT AGREEMENT AND LICENSE AND MANAGEMENT
AGREEMENT, AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY
AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF
THE TRANSACTION (RUSSIAN RIDGE OPEN SPACE PRESERVE - LANDS OF
SILVA)
The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of Midpeninsula Regional Open Space Distr
ict does
in that certain Purchase Agreement between Carol
v and accept the offer contained
hereby appro e pg
to an undivided 1/8 interest; Carol D. Silva as special administrator of the
Doreen Silva, as
Estate of Jack H. Silva, as to an undivided 1/8 interest; Judith Ann Silva, as to an undivided 1/8
interest; Jack Kenyon Silva, as to an undivided 1/8 interest, Carol Silva, as Trustee under that
certain Declaration of Trust dated September 29, 1995 as to an undivided 4/8 interest 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 Silva Property").
Section Two. The General Manager is authorized to execute the Assignment Agreement and
License and Management Agreement with Peninsula Open Space Trust on behalf of the District.
Section Three. The General Manager or the General Manager's designee shall cause to be given
appropriate notice of assignment to the seller and to extend escrow if necessary.
Section Four. The General Manager is authorized to expend up to $12,000 to cover site clean
up and any miscellaneous costs related to this transaction.
Section Five. The General Manager and General Counsel are further authorized to approve any
technical revisions to the attached Agreement and documents which do not involve any material
change to any term of the Agreement or documents, which are necessary or appropriate to the
closing or implementation of this transaction.
RESOLUTION NO. 10-48
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on December 8, 2010 at a Regular Meeting thereof,by the following vote:
AYES: RIFFLE,HARRIS,HANKO,KISHIMOTO,CYR,SIEMENS,AND HASSETT
NOES: NONE
ABSTAIN: NONE
1
ABSENT: NONE
ATTEST: APPROVED:
Qj >C
cretary Pre 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
Purchase Agreement Page I
PURCHASE AGREEMENT
This Purchase Agreement(hereinafter called"Agreement") is made and entered into by
and between Carol Doreen Silva, as to an undivided 1/8 interest; Judith Ann Silva,as to an
undivided 1/8 interest; Jack Kenyon Silva, as to an undivided 1/8 interest; Carol D as
special administrator of the Estate of Jack H. Silva, as to an undivided 1/8 interest; afid-Carol
Silva, as Trustee under that certain Declaration of Trust dated September 29, 1995, as to an
undivided 4/8 interest (hereinafter collectively 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 San Mateo, and being
more particularly described within the body of this Agreement; and
WHEREAS, District was formed by voter initiative to solicit and receive conveyances of
real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic
and open space purposes; and
WHEREAS, District desires to purchase said property for open space preservation and as
part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and
WHEREAS, Seller wishes to sell and convey the entirety of said property to District, and
District wishes to purchase said property upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants herein contained, the parties hereto agree as follows:
1. Purchase and Sale. Seller agrees to sell to District and District agrees to purchase
from Seller, Seller's real property located within an unincorporated area of the County of San
Mateo, State of California, containing approximately Ninety Seven and five tenths (97.5) acres,
more or less, and commonly referred to as San Mateo County Assessor's Parcel Number 080-
380-030. Said property is further described in the Legal Description attached to Preliminary
Report Number 0626013658 from Old Republic Title Company. A copy of said Preliminary
Report is attached hereto as Exhibit "A", and incorporated herein by this reference. Said
property is to be conveyed together with any easements, rights of way, or rights of use which
may be appurtenant or attributable to the aforesaid lands and any and all improvements attached
or affixed thereto. All of said real property and appurtenances shall hereinafter be called the
"Subject Property" or the "Property".
Purchase Agreement Page 2
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall
be Three Million and No/100 Dollars ($3,000,000.00), which shall be paid in cash at the
"Closing" as defined in Section 3 hereof
3. Escrow. Promptly upon execution of this Agreement, in accordance with Section
I I herein, an escrow shall be opened at Old Republic Title Company, 361 Lytton Avenue, Palo
Alto, CA 94301, (650) 321-5 10 (Escrow number 0626013658) 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 December 22, 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 San Mateo 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:
W 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 Two
Million Nine Hundred Seventy Five Thousand and No/100 Dollars ($2,975,000.00) which is the
balance of the Purchase Price of$3,000,000.00 as specified in Section 2. The balance of
$25,000.00 is paid into escrow in accordance with Section 11 of this Agreement.
(iii) District's check payable to Seller's Broker in the amount of
$90,000.00 as specified in Subsection I O.P of this Agreement.
E. District shall pay the escrow fees, the CLTA Standard Policy of Title
Insurance, if required by District, and all recording costs and fees. All other costs or expenses
not otherwise provided for in this Agreement shall be apportioned or allocated between District
Purchase Agreement Page 3
and Seller in the manner customary in San Mateo County. All current property taxes on the
Property shall be pro-rated through escrow between District and Seller as of the Closing based
upon the latest available tax information using the customary escrow procedures.
F. Seller shall cause Old Republic Title Company, or other title company
acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA
Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of
$3,000,000.00 for the Property showing title to the Property vested in fee simple in District,
subject only to: (i)current real property taxes, (ii) title exceptions 4, 5, 6, 8, and 9 as listed in
Preliminary Report No.0626013 65 8 ("Exhibit A") dated July 29, 2010 (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. The time for closing may also be extended pursuant to the provisions of
Section 5.D of this Agreement.
H. 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 San Mateo 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 Seller's Broker, Escrow
Holder's check in the amount of$90,000.00 for the Seller's Broker Commission as set forth in
Section I O.P, 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 that 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.. 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).
5. Seller's Representations and Warranties. For the purpose of consummating the
sale and purchase of the Property in accordance herewith, Seller makes the following
representations and warranties to District,which shall survive close of escrow, each of which is
material and is being relied upon by District.
A. Authority. Seller has the full right, power and authority to enter into this
Agreement and to perform the transactions contemplated hereunder.
Purchase Agreement Page 4
B. Valid and Binding Agreements. This Agreement and all other documents
delivered by Seller to District now or at the Closing have been or will be duly authorized and
executed and delivered by Seller and are legal,valid and binding obligations of Seller sufficient
to convey to District the Subject Property described therein, and are enforceable in accordance
with their respective terms and do not violate any provisions of any agreement to which Seller is
a party or by which Seller may be bound or any articles,bylaws or corporate resolutions of
Seller.
C. Leases or Occupancy of Premises. There exist no oral or written leases,
licenses, or rental agreements affecting all or any portion of the Subject Property. Seller further
warrants and agrees to hold District free and harmless and to reimburse District for any and all
costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason
of any such lease, license, or rental agreement of the Property being acquired by District,
including, but not limited to, claims for relocation benefits and/or payments pursuant to
California Government Code Section 7260 et seq. Seller understands and agrees that the
provisions of this Section shall survive the close of escrow and recordation of any Grant Deed(s).
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;
provided, however, that in the event that Seller, despite reasonable diligence and good faith
efforts, is unable to convey good and insurable title to the Subject Property as of the time for
Closing, the time for Closing shall be automatically extended for a period not to exceed 180
days, to provide sufficient time required for Seller to cure any defect in title or in the manner in
which it is held to the satisfaction of the District.
6. Integrity of Property. Except as otherwise provided herein or by express written
permission granted by District, Seller shall not,between the time of Seller's execution hereof and
the close of escrow, cause or allow any physical changes on the Property. Such changes shall
include but not be limited to grading, excavating or other earthmoving activities, cutting or
removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements
or structures on the Property.
7. As-Is Purchase and Sale. This sale is made without representation or warranty by
Seller, except as expressly set forth in this Agreement. Seller has provided District with copies
of all reports and documents in its possession regarding the improvements, physical, geologic
and environmental condition of the Property("Disclosure Documents") known to Seller for
District's inspection and review. District acknowledges that Seller has delivered to District the
reports and documents listed in this Section, and that this list does not relieve Seller of its
obligation to provide District with all Disclosure Documents in Seller's possession or under
Seller's control. Seller does not represent or warrant the accuracy of any information in the
Purchase Agreement Page 5
following reports, and is presenting them to the District merely as part of the Seller's disclosure
of reports Seller has in its possession as described above.
A. Reconnaissance Soil and Geologic Investigation for a Proposed
Subdivision of the Kenyon Ranch, San Mateo County, California prepared by Daniel J. Rhoades
&Associates
B. Building Plans prepared by Hubert I. McDaniel Associates (HIM)March
8, 1976
C. Correspondence from San Mateo County, Building Inspection Section
D. Steve Fischer, Licensed Land Surveyor, Parcel Map (Subdivision), and
Topo Maps, 1975
E. Miscellaneous Building Permit&Environmental Services from San
Mateo County
F. Builder's Contract between Jones Silva and Andre Construction Co. dated
June 6, 1976
G. Lease between Arnold Christopher True and Jim Silva dated April 13,
2005 expired April 13, 2010
H. Letter from Jack Silva to Chris True dated September 4, 2009 requesting
cleanup of lease area and owed rent
1. Filing of an Unlawful Detainer dated September 9, 2009
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, 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 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.
8. Hazardous Waste.
A. Defmitions. 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 Act of 1980 (42 U.S.C.
Purchase Agreement Page 6
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, and all of which are based solely upon Seller's best knowledge, information and
belief (i) The Property does not contain any Hazardous Waste or
underground storage tanks.
(ii) Seller and the Property are in compliance with all applicable
federal, state and local laws, statutes, ordinances, orders, guidelines, rules and regulations
pertaining to Hazardous Waste or underground storage tanks.
(iii) At the time Seller acquired the Property, Seller did not know and
had no reason to know that any Hazardous Waste was present, used, manufactured, handled,
generated, stored, treated, discharged, buried or disposed of on, under or about the Property, or
had been transported to or from the Property.
(iv) Seller has not undertaken,permitted, authorized or suffered, and
will not undertake,permit, authorize or suffer the presence,use, manufacture, handling,
generation, storage, treatment, discharge,release,burial or disposal on,under or about the
Property of any Hazardous Waste, or the transportation to or from the Property, of any
Hazardous Waste.
(v) There is no pending or, to Seller's knowledge, threatened litigation
or proceedings before any administrative agency in which any person or entity alleges the
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.
(vi) Seller has not received any notice and has no knowledge or reason
to know that any governmental authority or any employee or agent thereof has determined, or
threatens 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.
(vii) There have been no communications or agreements with any
governmental authority or agency(federal, state or local)or any private entity, including, but not
limited to, any prior owners of the Property, relating in any way to the 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.
Purchase Agreement Page 7
C. Indemnity. Seller shall indemnify, defend and hold harmless District from
and against any legal or administrative proceedings brought against District, and all claims,
liabilities losses, damages, and costs, foreseen and unforeseen, including without limitation,
attorney, engineering and other professional or expert fees, directly or indirectly arising from any
breach of the warranties or representations contained herein, or arising from related to or
connected with the existence of any Hazardous Waste of any kind on or in the property, except
when any Hazardous Waste contamination was caused solely by District. Seller shall be solely
and completely responsible for responding to and complying with any administrative notice,
order, request, or demand, or any third party claim or demand relating to potential or actual
Hazardous Waste contamination on or in the Property, including any and all costs of remediation
and cleanup, except when such contamination was caused solely by District. In addition to any
remedies provided in this subsection, in the event Hazardous Waste is found to exist on the
property, District may exercise its right to bring an action against Seller to recover any cleanup,
repair or remediation costs from Seller and/or any other person or persons determined to have
responsibility for the presence of Hazardous Waste on the Property.
9. Waiver of Relocation Benefits and Statutory Compensation. Seller and District
understand and agree that Seller may be entitled to receive certain relocation benefits and the fair
market value of the Property described in Exhibit "A", as provided for by the Federal Uniform
Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the
1 -17
Uniform Relocation Act Amendments of 1987 (Public Law 00 , 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, notice periods, and assistance, and freely and knowingly waives such claims, rights
and notice periods except as set forth in this Agreement, including the fair market value of said
Property, as provided for by said Federal Law and any similar California Law.
10. Miscellaneous Provisions.
A. Access for Investigations. From the date Seller delivers an executed copy
of this Purchase Agreement to District and until the Closing, District and 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
Purchase Agreement Page 8
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, 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 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 night,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
Purchase Agreement Page 9
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: Silva Family c/o
Tom Spilsbury
Meacham/Oppenheimer Inc
8 N San Pedro Street, Suite 300
San Jose, CA 95110
Telephone: (408) 892-5212
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Stephen E. Abhors, General Manager
Telephone: (650) 691-1200
FAX: (650) 691-0485
If sent by telegraph, facsimile copy or cable, a confirmed copy of such telegraphic, facsimile or
cabled notice shall promptly be sent by mail(in the manner provided above) to the addressee.
Service of any such communication made only by mail shall be deemed complete on the date of
actual delivery as indicated by the addressee's registry or certification receipt or at the expiration
of the third(3rd)business day after the date of mailing, whichever is earlier in time. Either party
hereto may from time to time, by notice in writing served upon the other party as aforesaid,
designate a different mailing address or a different person to which such notices or demands are
thereafter to be addressed or delivered. Nothing contained in this Agreement shall excuse either
party from giving oral notice to the other when prompt notification is appropriate, but any oral
notice given shall not satisfy the requirement of written notice as provided in this Section.
G. Severability. If any of the provisions of this Agreement are held to be
void or unenforceable by or as a result of a determination of any court of competent jurisdiction,
the decision of which is binding upon the parties, the parties agree that such determination shall
not result in the nullity or unenforceability of the remaining portions of this Agreement. The
parties further agree to replace such void or unenforceable provisions which will achieve, to the
extent possible, the economic,business and other purposes of the void or unenforceable
provisions.
H. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed as an original, and when executed, separately or together, shall
constitute a single original instrument, effective in the same manner as if the parties had
executed one and the same instrument.
I. Waiver. No waiver of any term,provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be
Purchase Agreement Page 10
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. Right to Assignment of Purchase Agreement. Seller and District understand and
agree that District has the express right in its sole discretion to assign all of the District's right,
title, interest, and obligations of whatever kind or nature under this Agreement to a governmental
entity, or bonafide non-profit corporation, whose principal purpose is the preservation of open
space, including, but not limited to Peninsula Open Space Trust. Such right to assignment shall
include, but not be limited to, the right to assign the District's above-described purchase rights in
Escrow to its designated Assignee so that fee title to the Subject Property shall be conveyed at
Closing to such Assignee. Except as expressly permitted herein, neither party to this Agreement
shall assign its rights or obligations under this Agreement to any third party without the prior
written approval of the other party.
N. Further Documents and Acts. Each of the parties hereto agrees to execute
and deliver such further documents and perform such other acts as may be reasonably necessary
or appropriate to consummate and carry into effect the transactions described and contemplated
under this Agreement.
O. Binding on Successors and Assigns. This Agreement and all of its terms,
conditions and covenants are intended to be fully effective and binding, to the extent permitted
by law, on the successors and permitted assigns of the parties hereto.
P. Broker's Commission. Seller has entered into a Listing Agreement
retaining Meacham/Oppenheimer, Inc. ("Seller's Broker") as its broker in connection with this
transaction. Notwithstanding anything to the contrary in the Listing Agreement, solely
conditioned upon the successful completion and consummation of this transaction, District shall
pay into escrow the sum of$90,000.00,which shall be payable to Seller's Broker at Closing as
compensation for Seller's Broker's services in connection with this transaction. No other
compensation or commission is due or payable by District to Seller's Broker or any other broker.
Seller is solely responsible for payment of any and all additional commission or compensation
due to Seller's Broker in connection with this transaction, if any. Seller represents and warrants
Purchase Agreement Page 11
that no other broker besides Seller's Broker, has been retained or consulted by Seller in
connection with this transaction. Seller agrees to defend, indemnify and hold District harmless
from any and all claims, expenses, costs or liabilities arising out of a breach of Seller's
representations and warranties herein, or arising from any broker, agent, finder or person,
licensed or otherwise, claiming through, under or any reason of the conduct of Seller in
connection with this transaction. Except as expressly set out in this Subsection, 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
Mediation Services, Inc. ("JAMS") in accordance with the rules thereof or, if JAMS ceases to
exist, its successor, or if none, a similar arbitration service. If arbitration is required to resolve a
dispute, it shall in all cases be final and binding.
NOTICE: BY INITIALING IN THE SPACE BELOW,YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE
"ARBITRATION OF DISPUTES"PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP
ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW,YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE"ARBITRATION OF DISPUTES" PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION,YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
Purchase Agreement Page 12
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
SELLER INITIAL DISTRICT INITIAL
11. Acceptance. Provided that this Agreement is executed by Seller and delivered to
District on or before November 16, 2010 District shall have until midnight December 8, 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 Twenty Five Thousand
Dollars and No/100 ($25,000.00), 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 shall be entitled to retain the Option Consideration.
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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.
///
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Purchase Agreement Page 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers to be effective as of the date of final execution by District in
accordance with the terms hereof.
DISTRICT:
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
APPROVED AND ACCEPTED:
President oar o irectors Date
ATT T:
District Clerk Date
ACCEPTED FOR RECOMMENDATION
W�
Michael C. Williams, Real Property Manager
APPROVED AS TO FORM:
Susan M. Schectman, General Counsel
RECOMMENDED FOR APPROVAL:
Stephen . Abbors, General Manager
Page 14
Purchase Agreement g
SELLER:
CAROL DOREEN SILVA AS TO AN UNDIVIDED 1/8 INTEREST: JUDITH ANN SILVA, AS TO
AN UNDIVIDED 1/8 INTEREST• CAROL D. SILVA AS A SPECIAL ADMINISTRATOR OF
THE ESTATE OF.TACK H. SILVA AS TO AN UNDIVIDED 1/8 INTEREST; JACK KENYON
SILVA AS TO AN UNDIVIDED 1/8 INTEREST; AND CAROL SILVA AS TRUSTEE UNDER
THAT CERTAIN DECLARATION OF TRUST DATED SEPTEMBER 29, 1995, AS TO
UNDIVIDED 4/8 INTEREST
Carol Silva, as Trustee under that certain Declaration of Trust Date
Dated September 29, 1995
Carol Doreen Silva Date
Judith Ann Silva Date
S zG�U
Jack Kenyon Silva"'7 Date
Carol D. Silva, As Special Administrator of The Estate of Date
.lack H. Silva
Purchase Agreement Page 14
SELLER:
CAROL DOREEN SILVA, AS TO AN UNDIVIDED 1/8 INTEREST: JUDITH ANN SILVA, AS TO
AN UNDIVIDED 1/8 INTEREST• CAROL D. SILVA AS A SPECIAL ADMINISTRATOR OF
THE ESTATE OF JACK H. SILVA AS TO AN UNDIVIDED 1/8 INTEREST• JACK KENYON
SILVA AS TO AN UNDIVIDED 1/8 INTEREST• AND CAROL SILVA AS TRUSTEE UNDER
THAT CERTAIN DECLARATION OF TRUST DATED SEPTEMBER 29, 1995, AS TO
UNDIVIDED 4/8 INTEREST
Carol Silva, as Trustee under that certain Declaration of Trust Date
Dated September 29, 1995
Carol Doreen Silva Date
JuVI Ann Silva Date
Jack Kenyon Silva Date
Carol D. Silva, As Special Administrator of The Estate of Date
Jack H. Silva
ASSIGNMENT AGREEMENT
(Silva Property)
This Assignment Agreement(the "Assignment") is made and entered into by and
between the Peninsula Open Space Trust,a California non-profit,public benefit corporation
(hereinafter "POST" or "Assignee") and the Midpeninsula Regional Open Space District,a
Public district formed pursuant to Article 3 of Chapter 3 of Division 5 of the California Public
Resources Code (hereinafter "District" or "Assignor").
WHEREAS, District approved a Purchase Agreement on December 8,2010 with Carol
Doreen Silva,as to an undivided 1/8 interest;Judith Ann Silva,as to an undivided 1/8 interest;
Jack Kenyon Silva,as to an undivided 1/8 interest; Carol D. Silva,as Special Administrator of
the Estate of Jack H. Silva,as to an undivided 1/8 interest; and Carol Silva,as Trustee under
that certain Declaration of Trust dated September 29, 1995 ("Seller") to purchase certain real
property (the "Property") located within an unincorporated area of the County of San Mateo on
certain terms and conditions as contained in that certain document entitled "Purchase
Agreement," attached hereto and incorporated herein by this reference; and
WHEREAS, POST is a California non-profit,public benefit corporation formed for
the purpose of acquiring real property for the preservation of open space,scenic,recreational,
ecological and aesthetic values; and
WHEREAS,District desires to assign to POST all District's rights,title and
interests under the Purchase Agreement in order to enable POST to take fee title to the
Property as specifically authorized by Section 10.M of the Purchase Agreement which
permits such assignment without further approval of Seller; and
WHEREAS, POST desires to accept such assignment of all District's rights,title and
interests in the Purchase Agreement on the terms and conditions set forth herein;
NOW,THEREFORE,in consideration of the foregoing recitals and the mutual
promises and covenants herein contained,the parties hereto agree as follows:
I) Assignment. District agrees to assign,and POST agrees to accept,all of District's
rights,title,interest,and obligations in and under the Purchase Agreement.
2) Acquisition. POST agrees to execute the Purchase Agreement and accept and execute
the Assignment on or before December 8,2010 and further agrees to timely take all actions and
deposit all funds and documents as necessary to close escrow for the purchase of the Property
by POST on the terms and conditions set forth in the Purchase Agreement.
3) Management. District agrees to manage the Property pursuant to that certain License and
Management Agreement approved by District on December 8,2010.
4) Miscellaneous Provisions.
a) Choice of Law.The internal laws of the State of California, regardless of any
choice of law principles,shall govern the validity of this Assignment,the construction of its
terms and the interpretation of the rights and duties of the parties hereto.
b) Attorneys' Fees. If either party hereto incurs any expense, including reasonable
attorneys' fees, in connection with any action or proceeding instituted by reason of any default or
alleged default of the other party hereunder,the party prevailing in such action or proceeding
shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the
amount determined by the court, whether or not such action or proceeding goes to final
judgment. In the event of a settlement or final judgment in which neither party is awarded all of
the relief prayed for,the prevailing party as determined by the Court shall be entitled to recover
from the other party reasonable expenses and attorneys'fees.
C) Amendment and Waiver.The parties hereto may by mutual written
agreement amend this Assignment in any respect.
d) Notices. Whenever any party hereto desires or is required to give any notice,
demand,or request with respect to this Assignment,each such communication shall be in writing
and shall be deemed to have been validly served,given or delivered at the time stated below if
deposited in the United States mail,registered or certified and return receipt requested,with
proper postage prepaid,or if delivered by private messenger,courier or other delivery service or
sent by facsimile transmission,addressed as follows:
District: Midpeninsula Regional Open Space District
330 Distel Circle Los Altos,CA 94022
Attn: Stephen E.Abbors,General Manager
Telephone: (650) 691-1200
Facsimile: (650)691-0485
POST: Peninsula Open Space Trust
222 High Street
Palo Alto,CA 94301
Attn: Walter T. Moore, Executive Vice President
Telephone (650) 854-7696
Facsimile: (650) 854-7703
If sent by facsimile,a confirmed copy of such facsimile notice shall promptly be sent by
mail (as provided above) to the addressee. Service of any such communication made
only by mail shall be deemed complete on the actual date of delivery as indicated by the
addressee's registry or certification receipt or at the expiration of the third (3rd) business
day following the date of mailing, whichever is earlier in time. Either party hereto may
from time to time, by notice in writing as herein specified,designate a different address
or a different person to which such notices are thereafter to be addressed. .
e) Severability. If any provisions of this Assignment are held to be void or
unenforceable by or as a result of a determination of a court of competent jurisdiction,the
decision of which is binding on the parties,the parties agree that such determination shall not
result in the nullification or unenforceability of the remaining portions of this Agreement.
f) Counterparts.This Assignment may be executed in separate counterparts,each
of which shall be deemed to be an original,and when executed, separately or together,shall
constitute a single original instrument,effective in the same manner as if the parties had
executed one and the same instrument.
g) Waiver. No waiver of any term, provision or condition of this Assignment,
whether by conduct or otherwise,in anyone or more instances, shall be deemed to be,or
construed as,a further or continuing waiver of any such term,provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
h) Entire Agreement. Except as otherwise specifically set forth herein,this
Assignment is intended by the parties to be the final expression of their agreement; it embodies
the entire agreement and understanding between the 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 and understandings between the
parties relating to the same subject matter.
i) Time of the Essence.Time is expressly declared to be of the essence of each and
every provision of this Assignment in which time is an element.
j) Assignment. Neither party shall assign its rights or obligations under this
Assignment without the express written consent of the other party which may consent or
withhold consent in its sole discretion.
k) Captions.Captions are provided herein for convenience only and they form no
part of this Agreement and are not to serve as a basis for interpretation, inference or construction
of this Assignment, nor as evidence of the intention of the parties hereto.
1) Pronoun References. In this Assignment, if it be appropriate,the use of the
singular shall include the plural,and the plural shall include the singular,and the use of any
gender shall include the other gender.
m) Further Documents and Acts: Each of the parties hereto agrees to execute and
deliver such further documents and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions described and contemplated
under this Assignment.
i
IN WITNESS WHEREOF,the parties hereto have caused this Assignment to be executed
by their duly authorized officers to be effective as of the date of final execution by District in
accordance with the terms hereof
DISTRICT and ASSIGNOR: POST and ASSIGNEE:
MIDPENINSULA REGIONAL PENINSULA OPEN SPACE TRUST
OPEN SPACE DISTRICT a California non-profit, public benefit corporation
APPROVED AND ACCEPTED
r _
Steph n E. Abbors,General Manager Walter T. Moore, Executive Vice President
Date: g AO/!o Date:
ATTEST:
District Clerk
Date: 2 (z�
APPROVED AS TO FORM:
Susan M. Schectman,General Counsel
i
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LICENSE AND MANAGEMENT AGREEMENT
POST (SILVA) PROPERTY
THIS LICENSE AND MANAGEMENT AGREEMENT ("License"), dated for reference
purposes only as of December 8, 2010, is by and between PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation("POST"), and MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT, a Public District formed pursuant to Section 3 of Chapter 3 of
Division 5 of the California Public Resources Code ("District").
RECITALS
A. POST is the owner of a certain parcel of real property ("Property"), located adjacent to
the District's Russian Ridge Open Space Preserve within the unincorporated area of the County
of San Mateo, State of California, and more particularly described in Exhibit "A", attached
hereto and incorporated herein by this reference.
B. The Property is adjacent to District land. POST desires that District manage the Property
for the benefit of POST. In return for such services, District will receive the benefit of the ability
to use the Property for purposes consistent with its mission.
C. POST is willing to license the Property to District, and District desires to license the
Property from POST, upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged, POST and District (collectively, the "Parties") hereby agree as
follows:
l. License. For and in consideration of the mutual covenants and agreements by the Parties
contained in this License, POST does hereby license to District, and District does hereby license
from POST, all of the Property.
2. License Term.
2.1 Initial License Term. POST shall license the Property to District for a term of one
(1) year commencing on the Effective Date hereof and ending one (1) year from the Effective
Date (the "License Term"). As used herein, the term "Effective Date" shall be the close of
escrow of POST's purchase of the Property. POST may terminate this License upon thirty (30)
days' prior written notice to District.
2.2 Extension of License Term. District may, at least 30 days prior to the expiration
date of the License Term, give POST written notice of its desire to extend the License Term. In
that event, District and POST agree to meet and negotiate in good faith in an effort to reach
mutual agreement upon the terms and conditions of such a License Term extension, including the
length of the extended License Term. The District's General Manager shall have the authority to
execute such a License extension for a term not to exceed one (1) additional year.
3. Consideration. District shall pay POST a consideration fee of$5,500 ("Fee"). The
l
r
District and POST agree that this amount is fair and reasonable in view of the District's
performance of its covenants and agreements contained herein(including, without limitation,
those regarding indemnification, maintenance, insurance and operation of the Property as
protected open space) as set out in this License.
4. POST's Representations, Warranties and Covenants. POST represents, warrants and
covenants as follows:
4.1. Organization. POST is duly organized and validly existing under the laws of the
State of California.
4.2. Requisite Action. All requisite corporate action has been taken by POST in
connection with POST's execution of this License, and has been taken or will be taken in
connection with the agreements, instruments or other documents to be executed by POST
pursuant to this License in order to lawfully consummate the transactions contemplated here.
4.3. Title. To POST's knowledge, POST owns fee simple title to the Property.
5. Use. During the term of this License and any extension thereof, District agrees to use
the Property for the purpose of open space preservation as part of the ecological, recreational and
scenic resources of the Russian Ridge Open Space Preserve, and for any other related legal use
that is consistent with the purposes for which District was formed. In addition, the District shall
have the right to lease the improvements located on the Property in accordance with Section 11
of this License. Without limiting the generality of the foregoing, District shall specifically have
the right to maintain any existing trails and improvements incidental thereto on the Property for
any purpose consistent with the purposes set forth in Article 3 of Chapter 3 of Division 5 of the
California Public Resources Code and to manage the Property in conformity with the
Preliminary Use and Management Plan adopted by the District on December 8, 2010.
Notwithstanding anything herein to the contrary, District shall not, without POST's prior written
consent(which consent may not be unreasonably withheld by POST), make or permit to be made
any physical alterations or changes to the Property other than as may be reasonably necessary for
the purpose of preventing unauthorized access to the Property or to comply with the terms of this
License.
6. Management. During the term of this License and any extension thereof, District agrees
to manage the Property for the purpose of open space preservation as part of the ecological,
recreational and scenic resources of the Russian p
Ridge Open Space Preserve. District shall be
p
solely responsible for management of the Property during the License Term. District may install
gates and appropriate signage and fencing as District determines is necessary and appropriate,
and may undertake such other steps as District deems necessary or appropriate for the proper and
safe management of the Property.
7. Patrol. District will patrol and manage the Property in a manner consistent with adjacent
District holdings to ensure that the Property is kept in a safe and sanitary condition and that
deleterious or incompatible uses of the Property are discouraged. Should any trespass or other
unauthorized use or activity occur upon the Property, District may exercise its authority to
correct these matters including, where necessary, enforcing District regulations and ordinances
on the Property. The Property shall be deemed to be property under the control and management
of District for purposes of Public Resource Code Section 5558 and shall be deemed to be
2
"District Lands" as defined in District Ordinance No. 04-1.
8. Real Property Taxes and Assessments. POST hereby promises to pay, prior to
delinquency, all Impositions. For the purpose of this Lease, "Impositions" means all taxes,
assessments, rates, charges, license fees, municipal liens, levies, excises or imposts, whether
general or special, or ordinary or extraordinary, of every name, nature and kind whatsoever, if
any, lawfully imposed by any governmental authority or entity (other than District), that may be
levied, assessed, charged or imposed or may be or become a lien or charge upon the Property or
any part thereof; or upon the Rent, or upon the income of POST. Impositions also include, but
are not limited to, the payment of installments on any bonds or periodic charges imposed or
required by any governmental authority or entity (other than District). POST acknowledges that
it may be entitled to certain exemptions from real property taxes that otherwise would be
imposed on the Property. POST will use its best efforts and file all necessary documents and
P
applications to obtain such tax exemption. If POST's application for real property tax exemption
is disapproved, and during the term of the Lease POST pays real property taxes assessed against
the Property, District shall reimburse POST for such payment.
9. Legal Responsibility and Indemnification. During the License Term, District shall
assume full legal responsibility for the management, control and operation of the Property, the
conditions thereof and for all activities conducted by District thereon. Except as otherwise agreed
herein, District shall indemnify and hold POST harmless from, and defend POST and its officers,
directors, employees and agents against, any and all claims or liabilities for injury or damage to
any persons or property whatsoever occurring during the life of this License in, on, or about the
Property arising out of any condition of the Property or of any neglect, fault or omission by the
District with respect to District responsibilities as set out in this License. POST likewise agrees
to indemnify, defend and hold harmless District and its agents, officers, officials, and employees
against any and all claims or liabilities for injury or damage to persons or property arising out of
or resulting from the negligent acts or fault of POST, or its agents, employees, officers, or
servants, in connection with the Property. In the event of concurrent negligence, each party will
bear responsibility for its acts in proportion to its fault under the doctrine of comparative
negligence.
10. Insurance. During the License Term, the District shall maintain in full force and effect a
comprehensive general liability insurance policy applicable to the Property and the District's
activities under this License with limits of liability of at least Two Million Dollars ($2,000,000)
aggregate combined single limit for bodily injury and property damage liability; and One Million
Dollars ($1,000,000) combined single limit per occurrence. The District may satisfy the
obligations set out in this Section by participation in a government self-insurance risk pool
authorized under state law, including but not limited to the California Joint Powers Insurance
Authority ("CJPIA").
11. Assignment of Lease Rights. POST assigns all right, title, interest and obligations to
District to lease or rent any or all improvements located on the Property, and collect rents and
security deposits associated with the Property. In the event District leases improvements,
District shall assume all rights and obligations as Landlord.
12. Compliance with Laws. District shall comply with any and all federal, state, and local
laws, statutes, codes, ordinances, regulations, rules, orders, permits, licenses, approvals and
requirements applicable to the use and occupancy of the Property by District and District shall
3
not commit and shall not knowingly permit others to commit waste upon the Property.
13. Surrender of Property. Except as otherwise provided in this License, and subject to acts
of God, upon the expiration or earlier termination of the License Term, to the maximum extent
the same is reasonably within the control of District, District shall surrender the Property in
substantially the same condition as it was in upon the Effective Date, except for any changes to
such condition made or caused to be made by POST or any of POST's agents, lenders,
contractors, engineers, consultants, employees, subcontractors, licensees, invitees and
representatives.
14. Maintenance and Utilities. During the License Term, District shall not use the Property
for any purpose except as expressly provided in this License. District shall be solely responsible
for the cost of providing any utilities or other services necessary for District's use and occupancy
of the Property and District shall promptly pay and/or discharge any liens that may be recorded
against the Property or District's License interest therein resulting from any work performed or
materials ordered by or on behalf of District. During the License Term, District shall maintain
and repair the Property in such manner as reasonably necessary to preserve its existing character;
provided, however, that District shall not be obligated to make any material capital
improvements to the Property.
15. Assignment. District may not assign this License to any other party without the prior
written consent of POST, which consent shall not be unreasonably withheld or delayed with
respect to an assignment to a party that expressly assumes in writing all of District's obligations
and liabilities hereunder; provided, however, that under no circumstances will POST withhold its
consent to an assignment to another governmental entity or to a non-profit organization whose
principal purpose is environmental conservation and/or habitat preservation so long as such
entity or organization expressly assumes in writing all of District's obligations and liabilities
hereunder. In the event of an assignment, District shall remain liable for the payment of all fees
and the performance of all of District's obligations under this License, except if and to the extent
such obligations are released in writing by POST.
16. Miscellaneous Provisions.
16.1 Invalidity. if any term or provision of this License or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
License, or the application of such term or provision to persons whose circumstances other
than those as to which it is held invalid or unenforceable shall not be affected.
16.2 Successors and Assigns. Subject to the limitations set forth above, the terms,
conditions and covenants of this License shall be binding upon and shall inure to the benefit
of each of the Parties, their heirs, personal representatives, successors or assigns, and shall
run with the land.
16.3 Writing. No waivers, amendments, alterations or modifications of this License, or
any agreements in connection with this License, shall be valid unless in writing and duly
executed by both POST and District or their respective successors-in-interest.
16.4 Construction. The captions appearing in this License are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or intent of such
4
paragraphs of this License or in any way affect this License. Any gender used shall be
deemed to refer to any other gender more grammatically applicable to the party to whom
such use of gender relates. The use of singular shall be deemed to include the plural and,
conversely, the plural shall be deemed to include the singular.
16.5 Notices. Any notice, demand, or request required hereunder shall be given in
writing at the addresses set forth below by any of the following means: (a) personal service;
(b) telephonic facsimile transmission; (c) nationally recognized overnight commercial mail
service; or(d) registered or certified, first class U.S. mail, return receipt requested.
If intended for District, addressed as follows:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: Real Property Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If intended for POST, addressed as follows:
Peninsula Open Space Trust
222 High Street
Palo Alto, CA 94301
Attn: Walter T. Moore, Executive Vice President
TEL: (650) 854-7696
FAX: (650) 854-7703
Such addresses may be changed by notice to the other party given in the same manner as
above provided. Any notice, demand or request sent pursuant to either clause (a) or(b),
above, shall be deemed received upon such personal service or upon dispatch by electronic
means (provided, however, that a dispatch by facsimile transmission that occurs on any day
other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until
9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent
pursuant to clause (c), above, shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause (d), above,
shall be deemed received forty-eight(48) hours following deposit in the U.S. mail.
16.6 Authori!y to Sign. The parties executing this License on behalf of POST and
District represent that they have authority and power to sign this License on behalf of POST
and District, respectively.
16.7 Conflict of Laws. This License shall be governed by and construed pursuant to
the laws of the State of California.
16.8 Attorneys' Fees. If either party should bring suit or seek arbitration under this
License, because of the breach of any provision of this License, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein shall be paid by
5
the other party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action or arbitration and shall be
enforceable whether or not the action is prosecuted to judgment.
16.9 Waiver. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained nor shall any custom or
practice that may arise between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of POST or District to insist upon the
performance by District or POST in accordance with said terms.
16.10 Time. Time is of the essence with respect to the performance of every provision
of this License in which time of performance is a factor.
16.11 Prior Agreements. This License contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this License, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
16.12 Applicable Law-, Severabilily. As used herein the term "all Applicable Laws"
shall mean and refer to all state, federal and local ordinances, statutes and laws. Any
provision of this License that shall prove to be invalid, void or illegal in no way affects,
impairs or invalidates any other provisions hereof, and all other provisions shall remain in
full force and effect.
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POST AND DISTRICT, by their execution below, indicate their consent to the terms of this
License and Management Agreement.
For POST: PENINSULA OPEN SPACE TRUST,
a California non-profit public benefit corporation
By: —I ,
Walter T. Moore, Executive Vice President
Date:
For DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT,
a Public District formed pursuant to Section 3 of Chapter 3 of
Division 5 of the California Public Resources Code
APPROVED AS TO FORM:
By: AZM4_✓7� � !✓
Susan M. Schectman, General Counsel
APPROVED AND ACCEPTED:
By: -
Ste en E. Abbors, General Manager
Dater
ATTEST:
By: � - �
Michelle Radcliffe, District Clerk
Date:
qg, �l
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LEGAL DESCRIPTION
EXHIBIT "All
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED
AREA, COUN I Y OF SAN MATEO, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Parcel "A", as delineated upon that certain Map entitled "Parcel Map for a Resubdivision of a
Portion of Section 21, Township 7 South, Range 3 West, M, D, B & M, described in Volume
4959, Official Records, Page 306", filed for record in the Office of the Recorder of the County of
San Mateo, State of California, on December 9, 1975 in Book 29 of Parcel Maps, at Pages 49
and 50 and as said Parcel Map was corrected by Certificate of Correction recorded on October
27, 1988 as Document No. 88145614, Official Records of San Mateo County, California.
APN: 080-380-030
8