HomeMy Public PortalAboutResolution - 88-36- 19880810 - Lands of Brennan Sierra AfilasN
RESOLUTION NO. 88-36
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING ACCEPTANCE OF PURCHASE AGREEMENT,
AUTHORIZING 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
BRENNAN ET AL.)
The Board of Directors of the Midpeninsula Regional
Open Space District does resolve as follows:
Section One. The Board of Directors of the Midpenin-
sula Regional Open Space District does hereby accept the offer
contained in that certain Purchase Agreement between Ralph P.
Brennan, Jr. et al., and the Midpeninsula Regional Open Space
District, a copy of which is attached hereto and by reference
made a part hereof, and authorizes the President or appropriate
officers to execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors
or other appropriate officer is authorized to execute a Certifi-
cate of Acceptance on behalf of the District.
Section Three. The General Manager of the District
shall cause to be given appropriate notice of acceptance to the
seller. The General Manager further is authorized to execute any
and all other documents in escrow necessary or appropriate to the
closing of the transaction.
Section Four. The General Manager of the District is
authorized to expend up to $1000 to cover the cost of title
insurance, escrow fees, survey, and other miscellaneous costs
related to this transaction.
Section Five. It is intended and hereby authorized
that the District's General Fund will be reimbursed in the amount
of $168,000 from the proceeds of the next long term District note
issue.
* * * * * * * * * * *
RESOLUTION NO. 88-36
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula
Regional Open Space District on
August 10 ,1988 at a
regular meeting thereof, by the following vote:
AYES: Katherine Duffy, Edward Shelley, Robert McKibbin, and
Gerry Andeen.
NOES: None.
ABSTAIN: None.
ABSENT: Ernestine Renshaw, Richard Bishop, and Nonette Hanko.
ATTEST: APPROVED:
,11,,5)e -,454e /64•6(Q41A
Secretar , Board of Directors President, Board ofDiectors
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 date.
ruAA-1 . 41\itcCcA)
Di/trict Clerk
PURCHASE AGREEMENT
This Agreement is made and entered into by and between -RALPH P. BRENNAN,
JR., RITA M. LEITNER and LORRAINE R. BRENNAN, hereinafter called "Seller"
and the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a Public District
forged pursuant to Article 3 of Chapter 3 of Division 5 of the California
Public Resources Code, hereinafter called "District."
WITNESSETH
WHEREAS, Seller is the owner of certain real property which has open space
and recreational value, located within an unincorporated area of the
County of Santa Clara, and being more particularly described within the
body of this Agreement, and
WHEREAS, Seller entered into that certain "Exclusive Authorization and
Right to Sell" agreement with Joe Beatty Real Estate on June 10, 1988,
thereby offering said real property for sale to the general public; 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 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.
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED 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 Santa Clara, State of
California, containing approximately one hundred twelve (112) acres, more
or less, and com=monly referred to as Santa Clara County Assessor's Parcel
No. 562-06-007. Said property being further described as: Lots 2, 3 and 7
of Section 20, T.9.S., R.1.W., M.D.B.& M. Said property 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 hereinafter called the "Subject Property" or the "Property."
2. Purchase Price. The total purchase price ("Purchase Price") for
the Property shall be One Hundred Sixty -Eight Thousand and No/100 Dollars
($168,000.00), which shall be paid in cash at the Closing (as defined in
Section 3 hereof) .
Purchase Agreement - Brennan et al Page 2
3. Escrow. Promptly upon execution of this Agreement, in
accordance with Section 9 herein, an escrow shall be opened at First
American Title Guaranty Company, 1731 Technology Drive, Suite 175, San
Jose, CA 95110, phone number (408) 288-6191, 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 the 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 November 30, 1988, provided, however, that Seller
may, in its sole discretion, in order to effect the requirements of any
exchange transaction of Seller in accordance with Section 11.18 herein,
require that District close escrow within fifteen (15) days written notice
of such requirement from Seller to District and further provided 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
caul -mss 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.
(d) District shall deposit into the escrow, on or before the
Closing:.
(i) The required Certificate of Acceptance for the Grant
Deed, duly executed by District and to be dated as of the Closing.
(ii) District's check payable to Escrow Holder in the
Lar::)uf_t of One Hundred Sixty -Eight Thousand and No/100 Dollars
j$268,000.00).
(e) Seller shall pay for 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
Purchase Agreement - Brennan et al Page 3
this Agreement shall be apportioned or allocated between District and
Seller in the manner customary in Santa Clara County. All current
property taxes on the Property shall be handled in accordance with Section
936 of the Revenue and Taxation Code of the State of California.
(f) Seller shall cause First American Title Guaranty Company,
or other title company acceptable to District and Seller, to be prepared
and committed to deliver to District a CLTA standard coverage Policy of
Title Insurance, dated as of the Closing, insuring District in the amount
of $168,000.00 for the Property showing title to the Property vested in
fee simple in District, subject only to: (i) current real property taxes,
and sii) such additional title exceptions as may be acceptable to
District. In the event District disapproves of any additional title
exceptions and Seller is unable to remove any District disapproved excep-
tions before the time set forth for the Closing, District shall have the
right either: (i) to terminate the escrow provided for herein (after
giving written notice to Seller of such disapproved exceptions and
affording Seller at least twenty (20) days to remove such exceptions) and
then Escrow Holder and Seller shall, upon District's direction, return to
the parties depositing the same, all monies and documents theretofore
delivered to Escrow Holder or; (ii) to close the escrow and consummate the
purchase of the Property.
(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
po==_n, of the title insurance if required herein, and to Seller Escrow
Eider's check for the full purchase price of the Subject Property (less
Seller's portion of the expenses described in Section 3(e)), and to
District or Seller, as the case may be, all other documents or instruments
• ^_ch 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.
Rights and Liabilities of the Parties in the Event of
Ter-ination. In the event this Agreement is terminated and escrow is
cancelled for any reason, all parties shall be excused from any further
obligations hereunder, except as otherwise provided herein. Upon any such
termination of escrow, allparties hereto shall be jointly and severally
lia ie to Escrow Holder for payment of its title and escrow cancellation
:charges (subject to rights of subrogation against any party whose fault
"7.7:Sy have caused such termination of escrow) , and each party expressly
.-reserves any other rights and remedies which it may have against any other
_part_- by reason of a wrongful termination or failure to close escrow.
Purchase Agreement - Brennan et al Page 4
5. Leases or Occupancy of Premises. Seller warrants that there
exist no oral or written leases or rental agreements affecting all or any
portion of the Subject Property. Seller further warrants and agrees to
hold District free and harmless and to reimburse District for any and all
costs, liability, loss, damage or expense, including costs for legal
services, occasioned by reason of any such lease or rental agreement of
the Property being acquired by District, including, but not limited to,
claims for relocation benefits and/or payments pursuant to California
Government Code Section 7260 et seq. Seller understands and agrees that
the provisions of this paragraph shall survive the close of escrow and
recordation of any Grant Deed(s).
6. Seller's Representations and Warranties. For the purpose of
consummating the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to District that as of the date this
Agreement is fully executed and as of the date of Closing:
6.01 Authority. Seller has the full right, power and authority
to enter into this Agreement and to perform the transactions contemplated
hereunder.
6.02 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.
6.03 Good Title. Seller has and at the Closing date shall have
good, marketable and indefeasible fee simple title to the Subject Property
and the interests therein to be conveyed to District hereunder, free and
clear of all liens and encumbrances of any type whatsoever and free and
clear of any recorded or unrecorded option rights or purchase rights or
any other right, title or interest held by any third party except for the
exceptions permitted under the express terms hereof, and Seller
shall forever indemnify and defend District from and against any claims
made by any third party which are based upon any inaccuracy in the
foregoing representations.
7. Waiver of Statutory Compensation. Seller and District
understand and agree that Seller may be entitled to receive 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
1937 (Public Law 100-17) , Title IV of. the Surface Transportation and
Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256, and
California Government Code Section 7267, and following. Seller hereby
waives any and all existing and/or future rights Seller may have to the
Purchase Agreement - Brennan et al
Page 5
fair market value of said Property, appraisals, etc., as provided for by
said Federal Law and any corresponding California Government Code
Sections.
8. Miscellaneous Provisions.
8.01 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.
8.02 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.
8.03 Amendment and Waiver. The parties hereto may by mutual
written agreement amend this Agreement in any respect. Any party hereto
may: (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 perfor-
mance 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. Any agreement on the part of any
party for any such amendment, extension or waiver must be in writing.
8.04 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.
8.05 Notices. All notices, consents, waivers or demands of
any kind which either party to this Agreement may be required or may
desire to serve on the other party in connection with this Agreement shall
be in writing and may be delivered by personal service or sent by
telegraph or cable or sent by registered or certified mail, return receipt
requested, with postage thereon fully prepaid. All such communications
shall be addressed as follows:
Purchase Agreement - Brennan et al Page 6
Seller: Ralph P. Brennan, Jr., Rita M. Leitner and
Lorraine R. Brennan
c/o Joe Beatty Real Estate
7172 Anjou Creek Circle
San Jose, CA 95120
(408) 268-4062
District: Midpeninsula Regional Open Space District
Old Mill Office Center
Building C, Suite 135
201 San Antonio Circle
Mountain. View, CA 94040
Attn: Herbert Grench, General Manager
(415) 949-5500
Copy To: Stanley R. Norton, Esq.
407 Sherman Avenue
Palo Alto, CA 94306
(415) 324-1366
If sent by telegraph or cable, a conformed copy of such telegraphic 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 shown by
the addressees'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.
8.06 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.
8.07 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.
Purchase Agreement - Brennan et al Page 7
8.08 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.
8.09 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, conversa-
tions., negotiations, agreements or understandings relating to the same
subject matter.
8.10 Time of Essence. Time is of the essence of . each
provision of this Agreement in which time is an element.
8.11 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.
8.12 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.
8.13 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.
8.14 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.
8.15 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.
8.16 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.
Purchase Agreement Brennan et al Page 8
8.17 Broker's Commission. No real estate or broker's
co m scion is due or payable by District and Seller agrees to and does
hereby indemnity and hold District harmless from and against any and all
costs, liabilities, losses, damages, claims, causes of action or pro-
ceedings 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.
8.18 Like Kind Exchange. District understands that Seller
intends to effect a like kind exchange (including the possibility of a
delayed "Starker" exchange), pursuant to Section 1031 of the Internal
Revenue Code, of the Property for other property to be designated by
Seiler. District agrees to cooperate with Seller to effect such exchange
by performing all acts necessary therefor, including, without limitation,
taking title to the exchange property; provided, however, that District
shall not be obligated to incur any additional expense in connection with
the performance of its obligations under this section 11.18.
9. Acceptance. Provided that this Agreement is signed by Seller
and returned to District on or before July 29, 1988 District shall have
until midnight August 25, 1988 to accept and execute this Agreement and
during said period this instrument shall constitute an irrevocable offer
by Seller to sell and convey the Property to District for the
consideration and under the terms and conditions herein set forth. As
consideration for the tender of said offer, District has paid and Seller
acknowledges receipt of the sum of Ten Dollars ($10.00) . 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 - Brennan et al
Page 9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement tq 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.
MIDPENINSULA REGIONAL OPEN SPACE SELLER
DISTRICT
APPROVED AS TO FORM:
Ralph P. Brennan,
Stanley Nbrton, District Counsel
ACCEPT. FOR RECOMMENDATION:
g Britton,
Lan i Acquisition Manager
APPROVED AND ACCEPTED:
Date:
Pr_sident, Board tors
4-iefoltd
Dis/Lri ct Clerk
J
Date:
Lorraine R. Brennan