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HomeMy Public PortalAbout20101208 - Resolution - Board of Directors (BOD) (3) i Cover Sheet For Scanning By ECS Originating Department General Manager Laserfiche Template Board Of Directors Template Fields Document Date: 12/8j2010 Document Type: Resolution Preserve Name: Keywords(No More Than 4): Eagle View Purchase Project Name: Project Number: i Vendor Or Other Party: Name (First): Name (Last): i Address: APN Number: Document No. 10-49 I i Additional Field: i Additional Field: Additional Field: Additional Field: l RESOLUTION 10-49 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT, AUTHORIZING GENERAL MANAGER OR OTHER OFFICER TO EXECUTE CERTIFICATE OF ACCEPTANCE OF GRANT TO DISTRICT, AND AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION (SIERRA AZUL OPEN SPACE PRESERVE - LANDS OF EAGLE VIEW LLC) The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby accept the offer contained in that certain Purchase Agreement with Eagle View LLC 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 Eagle View LLC Property"). Section Two. The General Manager, President of the Board of Directors or other appropriate officer is authorized to execute Certificate of Acceptance for the Grant Deed on behalf of the District. Section Three. The General Manager or the General Manager's designee shall cause to be given appropriate notice of acceptance to the seller and to extend escrow if necessary. Section Four. The General Manager is authorized to expend up to $2,500 to cover the cost of title insurance, escrow fees, site clean up and other 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. Section Six. The purpose of this Section is to enable the District to reimburse its general fund for the cost of certain land acquisitions. The District wishes to finance certain of these real property acquisitions and expects to use tax-exempt debt, such as bonds, but a tax-exempt financing is not cost justified for the District unless the principal amount of the financing is large enough to justify the related financing costs. Consequently, it is the District's practice to buy property with its general funds and, when a tax-exempt financing is cost justified based on the aggregate value of acquisitions, to issue tax-exempt obligations to reimburse itself for previous expenditures of general funds. These general funds are needed for operating and other working P capital needs of the District and are not intended to be used to finance property acquisitions on a long-term basis. U.S. Income Tax Regulation Section 1.150-2 requires an issuer of tax-exempt debt to declare its intent to use a portion of tax-exempt debt proceeds for reimbursement of expenditures prior to the payment of the expenditures. Accordingly, the Board of Directors hereby declares its intent to issue tax-exempt obligations in the maximum principal amount of$250,000 and to use a portion of the proceeds of the obligations for reimbursement of District expenditures for acquisition of the Eagle View LLC Property that are paid before the date of issuance of the obligation. RESOLUTION No. 10-49 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 ABSENT: NONE ATTEST: APPROVED: retary Presi ent 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—BARGAIN SALE This Agreement is made and entered into by and between C, a California Limited Liability Company, hereinafter called "Seller," and the MRIWA 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 unimproved real property which has open space and recreational value, located within an unincorporated area of the County of Santa Clara, and being more particularly described within the body of this Agreement; and WHEREAS, District was formed by voter initiative to solicit and receive conveyances of real property by purchase, exchange, gift,or bargain purchase for public park, recreation, scenic and open space purposes; and WHEREAS, District desires to purchase said property for open space preservation and as part of the ecological, recreational, and aesthetic resources of the mid-peninsula area; and WHEREAS, Seller wishes to convey the entirety of said property to District, in its"AS IS"condition, with all faults, at a bargain purchase price, substantially below its present fair market value, 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: I Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of Santa Clara, State of California, containing approximately eighty(80) acres, more or less, and commonly referred to as Santa Clara, County Assessor's Parcel Number(s) 558-26-005, in its "AS IS" condition, with all faults. Said property is further described in the Legal Description attached to Preliminary Report number 56007-1039523-10 from North American Title Company. A copy of said Preliminary Report is attached hereto as Exhibit "A" and incorporated herein by this reference. Said property is to be conveyed together with any easements, rights of way, or rights of use which may be appurtenant or attributable to the aforesaid lands, and any and all improvements attached or affixed thereto. All of said real property and appurtenances shall hereinafter be called the "Subject Property" or the "Property". 2. As Is. The District acknowledges and agrees that prior to the end of the Closing, it will have been afforded sufficient opportunity to make and complete a review of all publically available documents or other information pertaining to the property and surrounding area; to perform its own independent economic analysis of the Property; and to make and complete such Purchase Agreement Page 2 inspections and investigation of the Property and matters related thereto, without restriction by Seller, as District and its representatives desire, including, without limitation,governmental laws and regulations to which the Property is subject and the District shall accept the Property upon the basis of the District's own review and determination of all matters pertaining to the Property. The District acknowledges and agrees that the Property is to be sold and conveyed to and accepted by the District in an"AS IS"condition with all faults. The District further acknowledges that prior to the end of the Closing it will have reviewed and be fully knowledgeable of all matters set forth in any publically available documents and other information relating to the Property, and that the District will acquire the Property subject to all matters described in such documents and other information. Seller makes no representation or warranty whatsoever as to the accuracy or completeness of such documents or information. The District further acknowledges that it will make its own inspections and investigation relative to the Property and will rely solely on its own inspections and investigation in determining the suitability of the Property for its purchase and use. Without limiting the foregoing, the District shall be responsible for obtaining from the Escrow Holder or Title Company any and all documents relating to the title of the Property, for obtaining from all appropriate governmental entities all development, zoning or land use approvals, and for obtaining from applicable governmental and law enforcement agencies such information relative to law enforcement, criminal activity, safety and security, if it desires such information. Except as set forth in Section I O.B., below, Seller does not make any further representations or warranties of any kind whatsoever, either express or implied or arising by operation of law, with respect to the Property or any of such related matters, including any warranty of condition, habitability, merchantability, suitability or fitness for a particular purpose or otherwise, except as expressly set forth in this Agreement. In particular, but without limiting the foregoing, Seller makes no representations or warranties with respect to the use, condition, title, occupation or management of the Property,economic viability, value, safety or security issues relating to the Property, compliance with applicable statutes, laws,codes, ordinances, regulations or requirements relating to leasing, zoning, subdivision, planning,building, fire, safety, health or environmental matters, compliance with covenants, conditions and restrictions (whether or not of record), other local, municipal,regional, state or federal requirements, or other statutes, laws, codes, ordinances,regulations or requirements. The District acknowledges that it is entering into this Agreement on the basis of the District's own inspections and investigation of the physical and environmental conditions of the Property and all other matters affecting the Property, including without limitation subsurface or latent conditions, and the District assumes the risk that adverse physical and environmental conditions may not have been revealed by such inspections and investigation. 3. Purchase Price. The total purchase price("Purchase Price") for the Property shall be Two Hundred Fifty Thousand and No/100's Dollars($250,000.00), which shall be paid to Seller, net of all costs, to in cash at the "Closing" as defined in Section 4 hereof. 4. Escrow. Promptly upon execution of this Agreement, in accordance with Section 14 herein, an escrow shall be opened at North American Title Company,497 N. Santa Cruz Avenue, Los Gatos, CA, 95030 (408) 399-4 100 (Escrow number 56007-1039523-10)or other title company acceptable to District and Seller(hereinafter"Escrow Holder")through which the Purchase Agreement Page 3 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 15, 2010, provided, however, that the parties may,by written agreement, extend the time for Closing. The term"Closing" as used herein shall be deemed to be the date when Escrow Holder causes the Grant Deed(as defined below) to be recorded in the Office of the County Recorder of Santa Clara County. B. Seller and District shall, during the escrow period, execute any and all documents and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale pursuant to the terms of this Agreement. C. Seller shall deposit into the escrow on or before the Closing an executed and recordable Grant Deed, covering the Property as described in said Exhibit 1113". D. The District shall deposit into the escrow, on or before the Closing: (i) The required Certificate of Acceptance for the Grant Deed, duly executed by District and to be dated as of the Closing; (ii) The District's check payable to Escrow Holder in the amount of Two Hundred Forty Five Thousand and NO/100 Dollars($245,000.00) which is the balance of the Purchase Price of$250,000.00 as specified in Section 3. The balance of$5,000.00 is paid into escrow in accordance with Section 14 of this Agreement. E. The District and Seller shall share(50150)the escrow fees, the CLTA Standard Policy of Title Insurance, if required by the District, and all recording costs and fees. All other costs or expenses not otherwise provided for in this Agreement shall also be paid by the District, notwithstanding the apportionment and allocation of such costs and fees that might otherwise be customary in Santa Clara County. The parties acknowledge that the District is exempt from transfer tax on the purchase of the Property pursuant to California Revenue and Taxation Code Section 11922. However, 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. The District and Seller shall cause North American Title Company, or other title company acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District in Purchase Agreement Page 4 the amount of$250,000.00 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 2 as listed in preliminary report 56007-1039523 dated September 9, 2010 (Exhibit A), and(iii) such additional title exceptions as may be approved in writing by District prior to the Closing as determined by District in its sole and absolute discretion. G. Escrow Holder shall, when all required funds and instruments have been deposited into the escrow by the appropriate parties and when all other conditions to Closing have been fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded in the Office of the County Recorder of Santa Clara County. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property(less Seller's portion of the expenses described in Section 4.E.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 5. Charitable Contribution. The District and Seller acknowledge and agree that Seller may seek a tax benefit for the charitable contribution of the difference between the purchase price being paid by the District and the Property's fair market value being donated to the District as part of this transaction. The District expresses no opinion as to whether Seller will receive any deduction for federal or state income tax purposes as a result of this transaction. Seller acknowledges and agrees that Seller is relying solely upon the advice of its own attorneys, accountants and other professional advisors with respect to all such matters, and to the tax consequences of this Agreement in general. Without limitation of the foregoing, if such contribution is not deductible for federal and state income tax purposes, in whole or in part, such non-deductibility or non-treatment will not relieve Seller of any of its obligations under this Agreement or otherwise affect this Agreement in any way or require the payment of any additional or substitute consideration by the District for the purchase of the Property or entitle Seller to any remedies against the District as a result thereof. The District agrees to provide Seller with an executed IRS Form 8283 as evidence of the Bargain Sale price accepted by Seller thereunder. 6. Rights and Liabilities of the Parties in the Event of Termination. In the event this Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from any further obligations hereunder, except as otherwise provided herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for payment of its title and escrow cancellation charges(subject to rights of subrogation against any party whose fault may have caused such termination of escrow), and each party expressly reserves any other rights and remedies which it may have against any other party by reason of a wrongful termination or failure to close escrow. 7. Leases or Occupancy of Premises. Seller warrants that there exist no express oral or written leases or rental agreements affecting all or any portion of the Subject Property. However, Seller does not warrant or represent that some third party unknown to Seller may claim some adverse or prescriptive right to use of all or some portion of the property. Seller Purchase Agreement Page 5 further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including costs for legal services, occasioned by reason of any such lease or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this paragraph shall survive the close of escrow and recordation of any Grant Deed(s). 8. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District. A. Authority. Seller has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. B. Valid and Binding Agreements. This Agreement and all other documents delivered by Seller to District now or at the Closing have been or will be duly authorized and executed and delivered by Seller and are legal, valid and binding obligations of Seller sufficient to convey to District the Subject Property described therein, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws or corporate resolutions of Seller. C. Good Title. Subject to the claims of a third party claiming an adverse or prescriptive right to use some or all of the property(of which Seller has no actual knowledge), 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. 9. 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. 10. Hazardous Waste. A. Definitions. The term "Hazardous Waste," as used herein, means any substance, material or other thing regulated by or pursuant to any federal, state or local environmental law by reason of its potential for harm to human health or the environment Purchase Agreement Page 6 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. Section 9601 et seq.) and the Resource Conservation and Recovery Act(42 U.S.C. Section 6901 et seq.) B. Representations and Warranties. For the purpose of consummating the sale and purchase of the Property, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District: (i) To Seller's knowledge the Property does not contain and has not previously contained any Hazardous Waste or underground storage tanks, and no Hazardous Waste has been or is being used, manufactured, handled, generated, stored,treated, discharged, present, buried or disposed of on, under or about the Property, or transported to or from the Property, nor has Seller undertaken, permitted, authorized or suffered any of the foregoing; (ii) Seller has not received any notice and Seller has no actual knowledge that any private person or governmental authority or administrative agency or any employee or agent thereof has determined, alleged or commenced or threatened to commence any litigation, or other proceedings, to determine that there is a presence, release, threat of release, placement on, under or about the Property, or the use, manufacture, handling, generation, storage, treatment, discharge, burial or disposal on, under or about the Property, or the transportation to or from the Property,of any Hazardous Waste, nor has Seller received any communication from any such person or governmental agency or authority concerning any such matters. 11. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller may be entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646),the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. '4601 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. 12. Miscellaneous Provisions. Purchase Agreement Page 7 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, investigating, surveying,testing, drilling, sampling and evaluating the same; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed and further provided that District shall give Seller at least 24 hours prior notice of each proposed entry by District. District shall indemnify, protect, defend and hold Seller free and harmless from and against any and all claims, actions, causes of action, suits, proceedings, costs, expenses (including, without limitation,reasonable attorneys' fees and costs), liabilities, damages, and liens caused by the activities of District Parties while upon the Property prior to the Closing; provided, however,the foregoing indemnity shall not cover or include any claims, damages or liens resulting from District's discovery of any Hazardous Waste or other pre- existing adverse conditions pursuant to its inspections, testing or evaluation. District shall provide to Seller a copy of any report prepared by its contractors, engineers, consultants, employees, subcontractors, or other representatives relating to its inspection, investigation, surveying, testing, drilling, sampling, or evaluation of the property. District's inspections, investigating, surveying,testing, drilling, sampling, and evaluation shall be at District's sole expense. District shall repair any damage to the Property that may be caused by the District Parties while on the Property performing its inspections. B. Choice of Law. The internal laws of the State of California,regardless of any choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. C. Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action,proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court shall bee 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 District's 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 Purchase Agreement Page 8 or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. Rights Cumulative. Each and all of the various rights,powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights,powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement(or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served,given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission by telex,telecopy, telegraph or cable or other similar electronic medium, addressed as indicated as follows: Seller: Eagle View, LLC, a California Limited Liability Company Attn: Tyler and Linda Draa 17775 Vista Avenue Monte Sereno, CA 95030 (408) 395-9024 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 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. Purchase Agreement Page 9 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 construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. J. Entire Agreement. This Agreement is intended by the parties to be the final expression of their agreement; it embodies the entire agreement and understanding between the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it supersedes any and all prior correspondence,conversations,negotiations, agreements or understandings relating to the same subject matter. K. Time of Essence. Time is of the essence of each provision of this Agreement in which time Is an element. L. Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all representations and warranties by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. M. Assignment. Except as expressly permitted herein,neither party to this Agreement shall assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party. 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 Assigns and Transferees. 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, permitted assigns, and transferees of the parties hereto. Purchase Agreement Page 10 P. Broker's Commission. District shall not be responsible for any real estate commission or other related costs or fees in this transaction. Seller agrees to and does hereby indemnify and hold District harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of Seller in connection with this transaction. Q. Captions. Captions are provided herein for convenience only and they form no part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement, nor as evidence of the intention of the parties hereto. R. Pronoun References. In this Agreement, if it be appropriate, the use of the singular shall include the plural, and the plural shall include the singular, and the use of any gender shall include all other genders as appropriate. S. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof, the parties agree first to participate in non- binding mediation in order to resolve their dispute. If any party refuses mediation, it shall not be entitled to recover any attorney's fees or costs, as provided in paragraph 13 C. 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, and in strict accordance with California law. 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. in accordance with the rules thereof. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE ARBITRATION 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 11 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 INITIA ,\YP DISTRICT INITIAL 13. Deferred Exchange. The parties acknowledge and agree that either party may assign its interest in this Agreement to an exchange facilitator for the purpose of completing an exchange of the Property in a transaction which will qualify for treatment as a tax deferred exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code of 1986 and any applicable state revenue and taxation code sections(a"1031 Exchange"). The parties agree to cooperate with one another in implementing any such assignment and 1031 Exchange provided that such cooperation shall not entail any additional expense or cause any liability whatsoever beyond the cooperating party's existing obligations under this Agreement. An assignment to an exchange facilitator shall not relieve the assigning party from any of its obligations hereunder or entitle the assigning party to extend the Closing,nor shall the ability to consummate a 1031 Exchange be a condition to the performance of the obligations under this Agreement by the party seeking to achieve a 1031 Exchange. Any party requesting the cooperation of the other party in any such 1031 Exchange shall save, protect, defend, indemnify and hold the other party harmless from any and all costs, losses,claims, liabilities, causes of action, fines,penalties and other expenses(including, without limitation,reasonable attorneys' fees and court costs and fees of experts) incurred by such cooperating party as a result of such cooperation. 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before December 1, 2010, District shall have until midnight December 8, 2010 ("Option Deadline") to accept and execute this Agreement, and during said period this instrument shall constitute an option and irrevocable offer by Seller to sell and convey the Property to District for the consideration and under the terms and conditions herein set forth. Said offer shall remain irrevocable during this period without the necessity of execution and acceptance of this Purchase Agreement by District. As consideration for said irrevocable option, District has paid into escrow and Seller acknowledges deposit into escrow of the sum of Five Thousand Dollars and No/100 ($5,000.00), which, (i) if said irrevocable option is exercised by District, shall be applied upon the close of escrow to the Purchase Price as set forth in Section 3 hereof, or(1i) if District does not exercise said option, shall be disbursed directly to Seller upon expiration of the Option Deadline. 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. Purchase Agreement Page 12 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their P g duly authorized officers to be effective as of the date of final execution by District in accordance with the terms hereof. DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN EAGLE VIEW, LLC., A CALIFORNIA SPACE DISTRICT LIMITED LIABILITY COMPANY APPROVED AND ACCEPTED: President, oard of Directors Tyler a, Managing Member for Eagle n/ View Date Date ATTEST: District Clerk Linda Draa Date: ///3 a Ll o Date ACCEPTED FOR R-tCOMMENDATION C W ( S Michael C. Williams, Real Property Manager Howard May, D.D.S. u W I to APPROVED AS TO FORM: Date 67' Susan M. Schectman, General Counsel { RECOMMENDED FOR APPROV Jami ay �S �tfephedE. Abbors, General Manager Date Exhibit "A" VANORTH 497 N. Santa Cruz Avenue AMERICAN Los Gatos, 0 (408)39399-410-4100 II ATITLE (408)354-3212 COMPANY Like Clockwork� Michael C. Williams Midpeninsula Regional Open Space, District 330 Distel Circle Los Altos, CA 94022-1404 DIRECT ALL INQUIRIES TO: Escrow Officer: Susan Trovato Phone: (408)399-4100 Fax No.: (408)354-3212 E-Mail: strovato@nat.com E-Mail Loan Documents to: nocal.losgatos@natdocs.com Property: FIREMANS ROAD LOS GATOS, CA 95030 Buyer: MidPeninsula Owner: EAgle View LLC PRELIMINARY REPORT IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, North American Title Insurance Company I Hereby reports that it is prepared to issue,or cause to be Issued,as of the date hereof,a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth,insuring against loss which may be sustained by reason of any defect,lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules,Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage and limitations on covered risks of said Policy or Policies are set forth in Exhibit A attached.The Policy to be issued may contain an Arbitration Clause. When the amount if insurance is less than that set forth in the Arbitration Clause,all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the Parties. Limitations on covered risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a deductible amount and a maximum dollar limit of liability for certain coverages are also set forth in Exhibit A. Copies of the Policy forms should be read.They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully.The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens,defects,and encumbrances affecting title to the land. This report(and any supplements or amendments hereto)is issued solely for the purpose of facilitating the issuance of a policy of tide insurance and no liability is assumed hereby.If it is desired that liability be assumed prior to the issuance of a policy of title insurance,a Binder or Commitment should be requested. Dated as of September 09, 2010 at 7:30 A.M. Janet Williams, Title Officer Page 1 Order No.: 56007-1039523-10 . The form cf Policy of title insurance contemplated by this report is: � 1990CLTA ALTA LOAN 2UO6 A specific request should be made if another form or additional coverage is desired. Title tnsaid estate or interest at the date hereof isvested in: | EAGLE VIEW, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY The estate or interest in the land hereinafter described or referred to covered by this Report is: � | Afee. The Land referred to herein is described as follows: (See attached Legal Description) | | At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said � policy form would beasfollows: 1. General and special taxes and assessments for the fiscal year 2010-20U, a lien not yet due or | payable. 2. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 7Scf the California Revenue and Taxation Code. | � 3. The lien of special tax for the following community facilities district, which tax is collected with themunty�ms � . District: COUNTY LIBRARY � 4. The apparent lack of access to and from the subject property via apublic street, road or highway, ox via m privately granted easement; the effect of the apparent lack of access upon the marketability of the title ho the land. | 5. With respect to EAGLE VIEW, LU, a limited liability company: a. A copy of its operating agreement and any amendments thereto; b. If it is a California limited liability company, that certified copy of its articles of organization (LLC-1) and a ny certificate of correction (LLC-11), certificate of amendment(LLC-2), or | restatement of articles oforganization (LLC'10) be recorded in the public records; c. lfitiym foreign limited liability company, that certified copy of its application for registration � (LLC'5) be recorded in the public records; d. With respect to any deed, deed of trust, lease, subordination agreement or other document or instrument executed by such limited liability company and presented for recordation by the � � Company or upon which the Company is asked to rely, that such document or instrument be � executed in accordance with one of the following, as appropriate: � � | (i) If the limited liability company properly operates through officers appointed or elected � pursuant to the terms of a written operating agreement, such document must be executed by at � least two duly elected or appointed officers, as follows: the chairman of the board, the president | � or any vice president, and any secretary, assistant secretary, the chief financial officer or any � assistant treasurer; � (ii) If the limited liability company properly operates through a manager or managers identified in Page Order No.: 56007-1039523-10 the articles of organization and/or duly elected pursuant to the terms of a written operating agreement, such document must be executed by at least two such managers or by one manager if the limited liability company properly operates with the existence of only one manager. e. Other requirements which the Company may impose following its review of the material required herein and other information which the Company may require. Page 3 Order No.: 56007-1039523-10 I � LEGAL DESCRIPTION � Real property in the unincorporated area of the County ofSAN7ACLARA, State of �CALIFORNIA,_ described asfollows: | � THE WEST HALF OFTHE NORTHEAST QUARTER OFSECTION 14lN TOWNSHIP SOUTH, RANGE 1 WEST OF MOUNT DD\ LOMERIDD\N. EXCEPTING THEREFROM THE WATER RIGHTS AND MINING RIGHTS AS RESERVED IN UNITED � STATES PATENT RECORDED OC7T]BER8, 1804, BOOK FOF PATENTS, PAGE 175. APN: S58-26'OO5 � � Page Order No.: 56007-1039523-10 . ^ lk—FOiiiM—ATIONAC NOTES 1. GOOD FUNDS LAW Under Section 1I413.1of the California Insurance Code, North American Title Company, Inc. may only make funds available for disbursement in accordance with the following rules: � Same day availability. Disbursement on the date nf deposit is allowed only when funds are � deposited to North American Title Company, Inc. by Cash or Electronic Transfer(Wire). Cash will be accepted only under special circumstances and upon approval by management. Next business day availability. lf funds are deposited to North American Title Company, Inc. by cashier's checks, certified checks or teller's checks, disbursement may be on the next business day following deposit. A"he||e/s check"is one drawn byan insured financial institution against another insured financial institution (e.g., a savings and loan funding with a check drawn against a FDIC insured bank). � Second business day availability. [f the deposit is made by checks other than those described in paragraphs 1 and 2 above, disbursement may occur on the day when funds must be made available todepositors under Federal Reserve Regulation [Z. In most cases, these checks will be � � available on the second business day following deposit. (For further details, consult California Insurance Code Section 12413, et seq. and Regulation CC). These are the minimum periods before funds will be made available. North American Title | Company, Inc. is not obligated to disburse funds at the expiration of the time periods above, and � expressly reserves the right to require additional time before disbursing on deposited funds. � Close of escrow and final disbursement will not be made based on deposits in the form of � personal checks, corporate checks, credit union checks, money market checks, travelers checks � and official checks until confirmation nf final clearance of the funds. / � � North American Title Company will not be responsible for accruals of interest cv other charges � resulting from compliance with the disbursement restrictions imposed by state law.For Your Information, Our Wire Instructions Are: | � | � � Wire To: Credit the Account of: � � [omehcaBank North American Title Company 2321 Kosecr nsAve, Ste 5000 Bank Account No.: 1893560076 B Segundo, CAAD24S Escrow No. 56OO7-103Q523-1O | Routing No.: 121137532 8ranch/CountyNo.: 56007 Attn: 6usanTrovatu ° ACH FUNDS -AubomaticC|earingHouee North American Title Company will not accept funds in the form of ACH transfers. � 2. This report is preparatory to the issuance of an ALTA Loan Policy. We have no knowledge of any fact which would preclude the issuance of the policy with CLTAendorsement forms 1OO and 116 | and if applicable, 115 and 116.2 attached. When issued, the CLTA endorsement form 116 or 116.2, if applicable will neferencea(n)VACANT LAND known asFIREMANS ROAD, LOSGATOS, CALIFORNIA, QSO30. | Page Order No.: 56007-1039523-10 | / ]. According to the public records, there has been no conveyance of the land within a period of � twenty-four months prior to the date of this report, except asfollows: None | 4. Basic rate applies. S. General and special taxes for the fiscal year 2009-2010, First installment: $995.78, PAID | Penalty: $119.57 / Second installment: $995.78, PAID Penalty: $119,57 ' Code area: 80008 A^ P. No.: 558-26-005 Exemption: $0.00 � � Land: $137,220.00 Improvement: $0.00 Total Amount: $1,991.56 6. The map attached, if any, may or may not be a survey of the land depicted hereon. North | American expressly disclaims any liability for loss or damage which may result from reliance on this map except tuthe extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached. 7. North American Title Company, Inc's charges for recording the transaction documents include � charges for services performed by North American Title Company, Inc., in addition to an estimate � of payments hobe made to governmental agencies. | � . � � � � | | � � � � � � Page � Order No.: 56007-1039523-10 | ���� 11FFI CE OF COUNTY ASSESSOR S A N TA CL A R A COUNTY, C A L I FO R NIA _ 1514 �sw t t 3 L.. 58 26 r I 1 I I I T 9 S — R 1 W I MIDPENISULA REGIONAL OPEN SPACE DISTRICT. I 4 `ter' s I I I -1Ere Maurrs s�anow- I I I _ I n I -`.....•...�, 19MO AC. - 80.0 AC. 80.0 AC �p DI �� ———————————— -—-- ----=d1D------ 9 � I © I I MIDPENISULA REGIONAL OPEN SPACE DISTRICT 7 � -�xro neu-rs screw- i 'i O Qo (D Z � PWF I 4 I N I O I V (>o.o AG) (eo.o AG) I (teao AG) uAatNCE_ sTOHE-AsscssOR �> K IJ M 14k3 FA a 2 4 E%. IM a a t tees O t.t Q `I l E7FeW RM rr 400Y-t010 W I tt, N N W F+ O