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HomeMy Public PortalAbout20101208 - Resolution - Board of Directors (BOD) (2) Cover Sheet For Scanning By ECS, Orixinating Department General Manager Laserfiche Template Board Of Directors Template Fields 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: Name (First): Name(Last): Address: APN Number: Document No. 10-48 Additional Field: Additional Field: Additional Field: Additional Field: 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. i 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. /// I I 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 i 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. H H H H H H H 6 POST AND DISTRICT, by their execution below, indicate their consent to the terms of this License and Management Agreement. For POST: PENINSULA OPEN SPACE TRUST, a California non-profit public benefit corporation By: —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 7 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