HomeMy Public PortalAbout19930714 - Agendas Packet - Board of Directors (BOD) - 93-13 Open Space
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MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
Meeting 93-13
REGULAR MEETING
BOARD OF DIRECTORS
AGENDA
7:30 P.M. 330 Distel Circle
Wednesday Los Altos, California
July 14, 1993
(7:30) * ROLL CALL
** ORAL COMMUNICATIONS -- Public
ADOPTION OF AGENDA
*** ADOPTION OF CONSENT CALENDAR -- B. Crowder
*** WRITTEN COMMUNICATIONS (Consent Item)
BOARD BUSINESS
............
(7:45) 1. Issuance of 1993 Certificates of Participation -- M. Foster
Resolution Authorizing the Execution and Delivery of a Site Lease, a
Project Lease, a Trust Agreement and a Certificates of Participation
Purchase Contract Relating to the Midpeninsula Regional Open Space
District Certificates of Participation (1993 Open Space Project),
Approving a Preliminary Official Statement and an Official Statement
for Such Certificates of Participation and Approving Certain Other
Matters in Connection Therewith
(7:55) 2. Proposed Option for Addition of Acronico Property to Long Ridge
Open Space Preserve -- C. Britton
Resolution Approving and Authorizing Execution of Option Agreement,
Authorizing Officer to Execute Memorandum of Agreement, and
Authorizing Acting General Manager to Execute Any and All Other
Documents Necessary or Appropriate to Closing of the Transaction
(Long Ridge Open Space Preserve - Lands of Acronico)
(8:05) 3. Volunteer Trail Patrol Program -- J. Young
Open Space . . for room to breathe 20th Anniversary • 1972-1992
330 Distel"Circle • Los Altos, California 94022-1404 Phone: 415-691-1200 • FAX:415-691-0485
General Manager:Herbert Grench Board of Directors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wim de Wit
*** 4. Solicitation of Bids for Rancho San Antonio Field Office Expansion --
R. Anderson
*** 5. Endorsement of San Francisco Bay Trail Awareness Week -- D. Woods
Resolution Supporting Bay Trail Awareness Week
*** 6. Revisions to District Benefit Plan -- J. Fiddes
(8:25) INFORMATIONAL REPORTS -- Directors and Staff
*** REVISED CLAIMS (Consent Item)'
CLOSED SESSION (Litigation, Land Negotiations, Labor Negotiations, and
Personnel Matters)
ADJOURNMENT
*NOTE: Times are estimated and items may appear earlier or later than listed. Agenda
is subject to change of order.
** TO ADDRESS THE BOARD: The Chair will invite public comment on agenda items at
the time each item is considered by the Board of Directors. You may address the Board
concerning other matters during oral communications. Each speaker will ordinarily be
limited to 3 minutes. When recognized, please begin by stating your name and address.
Please fill out the speaker's form so your name and address can be accurately included in the
minutes.
Alternately, you may comment to the Board by a written communication, which the Board
appreciates.
*** All items on the consent calendar shall be approved without discussion by one motion
unless a Board member removes an item from the consent calendar for separate discussion.
A member of the public may request under oral communications that an item be removed
from the consent calendar.
{
NOTICE OF PUBLIC MEETINGS
The Gifts Policy Committee will meet on Wednesday, July 14, 1993 beginning at 6:30 p.m. at
the District office. The purpose of the meeting will be to review and revise the District's gift
policy.
The Budget Committee will meet on Wednesday, July 21, 1993 beginning at 5:00 p.m. at the
District office. The purpose of the meeting will be to review the 1993-1994 District budget.
I
II RESPONSE ACTION PROPOSED BY STAFF
G RAN D U R Y �! Board President Acknowledge/Re ",iiR�L V 1 �993
c AN I A ('I A RA 1 1111 N 1 1 V'✓
Director Acknowledge, pond
Staff Acknowledge/Respond
` I
Draft Response Attached
Staff to be Directed to Prepare Draft
Response for Board Consideration per
Board Directive(s)
No Response Necessary
June 23 , 1993
Ms. Betsy Crowder, President
Board of Directors
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Dear Ms. Crowder:
Acting under Penal Code Section 925a, the 1992-93
Santa Clara County Grand Jury is transmitting its final report
on Investigation of the Midpeninsula Regional Open Space
District to you.
Penal Code Section 933 requires the head of (dept. or
agency) to comment within 60 days to the Presiding Judge of the
Superior Court on the findings and recommendations pertaining
to matters under control of the (dept. or agency) . Copies of
responses to the Grand Jury's report must also be submitted to
the Board of Supervisors. '
Penal Code Section 933 requires that the governing
body of the public agency which has been the subject of a Grand
Jury final report shall comment within 90 days to the Presiding
Judge of the Superior Court on the findings and recommendations
pertaining to matters under control of the governing body.
Your comments are due in the office of the Honorable
Robert M. Foley, 191 North First Street, San Jose, CA 95113,
on or before September 27 1993 .
Copies of all responses shall be laced on file with
Co i p
P P
the clerk of the public agency and t o fice of the County
Clerk.
S nc ely, �..
l
obert C. Gin er
oreman
RCG:bh
SUrURIOR COURT BUILDING 191 NORTH FIRST SIRL[T, SAN JOSC,CALIFORNIA 95113 (408)299-2731
1992-93 Santa Clara County Grand Jury
FINAL REPORT
1 . INVESTIGATION OF THE MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
Comolete text of 1992-93 Santa Clara County Grand Jury
Final Report available at District office for public
review.
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INVESTIGATION OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
INTRODUCTION
By a two to one vote in 1972 Santa Clara County's electorate approved
Measure R: "Shall the Mid-Peninsula Regional Park District be created and
established?" In its impartial analysis, the Local Agency Formation Commission
informed the voters that "The proponents of the proposed district have stated that
the purpose of the district is to acquire land primarily in the foothills and baylands
area of the district for open space and recreational uses." The District's name
was later changed from "Park" to "Open Space." In 1976, residents of southern
San Mateo County joined the District. With a current portfolio of some 35,000
acres, the District is a major landholder. It employs approximately fifty people,
about evenly divided between field and office personnel.
In accordance with its civil oversight responsibilities, the Grand Jury
inquired into the operation of the Midpeninsula Regional Open Space District. The
Grand Jury's purpose is to stimulate analysis and action by the District's Board of
Directors.
ACQUISITION OF THE NEARY/VIDOVICH PROPERTY
Background. In the mid-1970s, portions of George Neary's 800-acre
property above the town of Los Altos Hills were of decided interest to the District.
The ridge area above the quarry' provided connective paths between the Rogue
Valley and the Duveneck Windmill Pasture areas of the popular and widely used
San Antonio Open Space Preserve. This upper quarry area was also important in
containing urban expansion and in protecting the view from Rancho San Antonio,
from 1-280, and from large residential areas around Los Altos Hills.2
Warning Signals. The District had approached Mr. Neary in the mid-1 970s
about acquiring part of his property but had been rebuffed, and had not made any
concerted effort to pursue the matter, possibly because it had perceived no
imminent danger of development. This benign situation ended in 1978 when Mr.
Neary sold approximately 450 acres while retaining the quarry area of
approximately 358 acres. The new owners, SEM Developers, Inc., tried to
proceed with development but ran into financial problems and lost the property in
This area is also known as the "upper quarry area," a designation which will be used in this report.
The quarry proper--the "lower quarry area"--is not of open space interest.
2 Ref. 1, p. 7.
foreclosure proceedings in 1980.' Mr. Neary still owned the upper and lower
quarry areas. The Grand Jury believes that at this point the District should have
seen the handwriting on the wall and should have reacted to the threat of
development.
Threat to the Upper Quarry. The inevitable happened in July 1986; the 358
acres of upper and lower quarry property were sold. John T. Vidovich, a well-
known real estate developer and member of the Santa Clara County Planning
Commission, paid $5.0 million (M) for the property.' He proceeded to plan
extensive development of the area but was forced to scale down his plans in the
face of opposition from the community, including the passage in June 1989 of Los
Altos Hills Measure B, which restricted the lot density in case the quarry property
should be annexed. During these first three years of Mr. Vidovich's ownership,
the District does not appear to have taken any action beyond ascertaining that Mr.
Vidovich was not interested in selling the upper quarry lands. Finally, in the
summer of 1989 the District was ready to move. The situation is best presented
by quoting from a summary report written by the District staff for the Board of
Directors two years after the event:5
The district wanted to proceed with an appraisal of the
property at that time (mid-1989); however, staff felt it
was important for Mr. Vidovich to participate somehow
in the appraisal process. Mr. Vidovich objected to the
appraisal process selected by the District, and although
a draft appraisal was completed, no offer was made by
the District.
The staff report failed to mention that there had in fact been a full-fledged
appraisal by Clevenger Realty Appraisal Corp of Santa Clara.' It had estimated
the fair market value (as of September 14, 1989) of the upper quarry property as
$1 .2 M. The Grand Jury was told by District management that this valuation was
unacceptably low and that it could, therefore, not be used as the basis for any
legal action. The reluctance to use an unreasonably low estimate is
understandable 7; what is less comprehensible is the District's failure to obtain
3 375 of the 450 acres were acquired by the District in 1984 for $1.5 M; 75 acres remained
in private hands.
4 Ref. 2, p. 3.
5 Ref. 1, p. 11.
6 Ref. 3.
A public entity can be held liable for all legal expenses if it bases an eminent domain
proceeding on an unrealistically low appraisal.
other estimates before proceeding to negotiate with Mr. Vidovich. Instead, it
allowed another year to go by, during which time Mr. Vidovich let it be known
that he had potential buyers for the property and was anxious to proceed with the
development. What happened during that year is outlined in the previously
referenced staff report:
After many additional meetings with Mr. Vidovich
during the ensuing months, it was finally agreed on
November 7, 1990 to complete an appraisal of the
property on a cooperative basis. . . . As part of the
appraisal process, Mr. Vidovich agreed to not sell any
of the upper portion of the property. This was a very
important part of the agreement to the District, as Mr.
Vidovich had claimed that he had offers from highly
qualified buyers. . .
The agreement3 designated Robert C. Reese as the appraiser. Its payment
provisions made it highly probable that the District would bear the cost, which is
what in fact happened. Another provision is worth highlighting: Mr. Vidovich was
authorized to condition his acceptance of any District offer for the upper quarry
lands upon receiving permission from Santa Clara County to develop
approximately twenty-three single-family homesites in the lower quarry area, a
concession which would require a deviation from the County General Plan. It is
the Grand Jury's understanding that the agreement was written by Mr. Vidovich.
Since the passage of Los Altos Hills Measure B in June 1989, the District
staff had estimated the true market value of the upper quarry to be between four
and six million dollars. The Reese appraisal,' submitted in April 1991, was for
$10.27 M and came as a shock. Years of delay and faulty strategy had created
a problem for the District: it did not feel justified in offering Mr. Vidovich the
appraised value; it was concerned that the $10.27 M estimate would provide Mr.
Vidovich with a powerful argument in any condemnation proceedings; and it did
not dare to delay action and thereby allow Mr. Vidovich to sell p2irts of the
property. The District's solution was to initiate condemnation proceedings by
filing a "Statement of Just Compensation" on June 10, 1991." This document
stated that the market value of the property was $3.357 M, and that this estimate
was based ". . upon engineering studies as to probable lot yield under county
jurisdiction and comparable sales analysis." There does not appear to be any
documentation to substantiate this claim; the Grand Jury was told that it was
based on a verbal update of Mr. Clevenger's original $1 .2 M estimate. However,
Ref. 4.
Ref. 5. Mr. Reese is with Carneghi-Bautovich & Partners, San Francisco and San Jose.
Ref. 2.
it does not appear that the District's Board or its executives believed the $3.357
M to be realistic, a situation which appears to be contrary to the requirements of
the California Government Code." Mr. Vidovich's reply was not long in coming;
a cross-complaint was filed two months later.12
Compromise. The District had to compromise on terms substantially
favorable to Mr. Vidovich. By an agreement signed in October 1991,t3 the
District acquired the upper quarry property for $8.5 M, including an immediate
$2.0 M downpayment. The $1 .77 M (tfie difference between the estimate of
$10.27 M and the $8.5 M) was to be a gift from Mr. Vidovich to the District upon
closing. The 8.5 M$ is a nominal figure; the District was obligated to pay interest
on the unpaid balance of the purchase price from June 13, 1991 to closing, and
it had to pay $65,000 of Mr. Vidovich's legal costs. The effective cost of the
upper quarry thus amounted to $9.317 M.
The agreement contains several astonishing provisions; among them are the
following:14
o $50,000 of the $1 .77 M gift money was to be paid ". . .to an official
political action group dedicated solely to encouraging voter
acceptance. . .[of a]. . .District-wide ballot measure to finance
purchases of Open-Space Property and other potential open space
acquisitions." If no such group were formed, the $50,000 was to
remain part of the $1 .77 M gift.
o The sale could, at Mr. Vidovich's option, be conditional upon his
receiving permission from Santa Clara County to develop 25 single-
family homesites in the 78-acre lower quarry area. This permission
would take the form of a General Plan amendment or equivalent
action.
o The District agreed to ". . .support the development proposed for the
[lower] Quarry Property in a manner acceptable to District and
consistent with District policy objectives."
Fortunately, neither of the first two provisions was implemented. The third
was carried out by the District in the form of a letter to Santa Clara County
" Par. 7267.2 of the Government Code requires that prior to adopting a resolution of necessity, a
public entity ". . .shall establish an amount which it believes to be just compensation. . .
12 Ref. 6.
t3 Ref. 7.
14 Ibid., pars. 3(a), 5, and 6.
Advance Planning.15 It appears to the Grand Jury that these contractual
provisions were not in the public interest.
Assessment District. The upper Neary quarry was the most expensive
property ever to be acquired by the District. . ." and left it in the position of having
paid roughly 54 M more than the amount of $5.5 M that had been budgeted.'s
In November 1991, the staff arranged to have a team of specialists present to the
District Board the option of creating a special assessment district in the Los Altos
Hills area adjacent to the former Vidovich property.'' On May 13, 1992, the
Board was presented with the results of a preliminary survey of 100 voters, both
within and outside of the probable boundaries of the assessment district, which
indicated that a majority of voters might approve an assessment of close to $1 M.
At that same meeting, a bond counsel and an engineer-of-work were selected. In
an effort to et the assessment district established in time for collecting FY 1992-
9 9
93 revenue, the entire process was pushed forward rapidly. The preliminary
engineering study was presented on May 27, 1992,18 and on May 28, letters
were sent to the property owners including an invitation to attend a n p p y g June 9
meeting. The minutes of the June 10 board meeting's indicate that some of the
Board members had misgivings about these moves; however, matters were
allowed to proceed, and the "hearing of protest"--a statutory requirement20--was
set for July 8. At that meeting, the District was presented with signed protests
from 527 of the 924 property owners of the proposed assessment district, and the
Board terminated all further consideration of the assessment district.21
Conclusions. During a sharp economic downturn and in a stagnant real
estate market, the District acquired 280 acres of "hillside"-zoned (HS) land for
$33,275 per acre. In the process, it had antagonized many members of its
constituency. It is difficult to avoid the conclusion that the District's taxpayers
were poorly served.
In the course of interviewing individuals associated with the District, talking
is Ref. 8.
i6 Ref. 11, p. 2.
17 Ref. 9. The assessment district idea had apparently been mentioned during the hearings on
the Vidovich purchase. It is not clear how much prominence it had been given. There was certainly
no general understanding that it was to be an inevitable part of the purchase.
" Ref. 12.
19 Ref. 13.
20 Ref. 14.
2i Ref. 15.
to other concerned citizens and reviewing voluminous files, the Grand Jury
concluded that the Vidovich matter is indicative of several deep-rooted problems
in the management of the District. It is hoped that the following analyses of the
causes will contribute to the solution of these problems:
* Leadership. The Board condoned inaction by the staff since the mid-
1970s, despite the recognized importance of the upper quarry property. Members
of the public had urged the Board to take action," but as late as 1989 the Board
went along with staff-recommended tactics that produced delays and resulted in
the District's subsequent difficulties.23The Board's acceptance of the previously
discussed provisions in the Vidovich agreement is similarly disappointing. When
the staff embarked on the assessment district venture to a greatly accelerated
time schedule, the Board suppressed its misgivings and fell in line. These actions
are not indicative of the type of leadership that should have been exercised, and
more importantly, that will need to be marshalled in the difficult times of the
1990s.
Community Relations. The District does not appear to have an effective
program for ascertaining the sentiments and needs of its constituency or of
conducting dialogues (as opposed to propaganda efforts). This lack may have
been a factor in the unexpected rejection of the assessment district. Another
factor, expressed by a number of persons, was the perception that they were
treated cavalierly by the management staff; "arrogant" and "uncooperative" were
frequently heard adjectives.
Cost Trade-Offs. Acquisition of the upper quarry property was apparently
regarded by the District as a must; one Board member was quoted as saying that
"...Price was not an issue."24 Financial realities should move the District to
adopt more flexible attitudes in the future, with over-all community benefit
becoming a more prominent trade-off criterion. The Vidovich purchase conferred
benefits upon local property owners that greatly exceed general ones; residents
of the northern or southern parts of the District might not agree with the sacrifices
that the purchase entailed if future financial consequences were well understood.
22 One board member stated in 1992 that "...in the past five years he had been urged by
residents of his ward to acquire the Vidovich property, maintain only neighborhood accesses to
preserves, and establish an assessment district in the area" (Ref. 13, p. 3).
Similarly, the Grand Jury was informed that residents of Los Altos Hills had approached District
management over a period of almost a decade with requests for public domain action, only to be turned
down.
23 See footnote 5.
24 Ref. 16.
MT. UMUNHUM
Background. Mt. Umunhum, known as a sacred mountain of Native
Americans, lies fourteen miles south of downtown San Jose. Part of the Sierra
Azul range, it and nearby Mt. Thayer are the second and third highest peaks of the
Santa Cruz Mountains. At 3,486 feet, its summit ". . .offers a magnificent 3600
view, which on a clear day, can range all the way from Monterey Bay and the
Pacific Ocean to the Sierra Nevada." The area is ". . .high and rugged, supporting
a near wilderness environment. . .[which ranges]. . .from cool, shaded canyons
to rugged summit rock outcrops.""
By the early 1980s, the District had acquired property in the area, including
parcels close to the summits of both Mt. Umunhum and Mt. Thayer, but the peak
areas of both mountains were owned and used by the U.S. Air Force's Almaden
Air Force Station.
26
Acquisition of Mts. Umunhum and Thayer. The Air Force (AF) deactivated
Almaden station, and after a lengthy series of administrative maneuvers the entire
property was transferred to the District. For $260,000, the District had acquired
12 hilltop acres on Mt. Thayer and 36 acres on the summit of Mt. Umunhum, plus
all the facilities of the former AF Station. These included 45 work and recreation
buildings (about 72,000 sq. ft.), 12 housing buildings that contain 27 family living
units (some equipped with appliances), roads, sidewalks, and parking areas. Also
included were nine acres of lesser interests, including a perpetual owner's access
easement on Mt. Umunhum Road, a private, two-lane paved connection between
Hicks Road and the summit that had been constructed by the Air Force across
private property.
The District could be well pleased with its acquisition although it was clear
that some obstacles had to be overcome. Environmental clean-up of the former
AF Station would have to be completed under the Defense Environmental
Restoration Program by the U.S. Army Corps of Engineers. Passage between Mt.
Umunhum and Mt. Thayer would have to be secured through privately held land,
and certain legal questions concerning public access would have to be resolved
in connection with the District's,perpetual easement on Mt. Umunhum Road.
San Jose State University had previously declined the U.S. Government's
offer of the Almaden AF Station. At the request of the U.S. General Services
Administration, the District and SJSU had reached an agreement whereby the
University was to conduct a six-months study to determine the feasibility of using
25 The quotes are from ref. 17, pp. 2, 6 respectively.
26 The Ground Air Transmit Receive (GATR) facility was located on Mt.Thayer. Mt. Umunhum
had the radar installation (whose massive tower is easily visible from the valley), the main base, and
the family housing area.
all or part of the site for a retreat and seminar facility. This study was to be
followed by an eighteen-months inquiry, to be conducted by the District, ". . on
any and all proposed or contemplated public recreational or educational uses or
commercial (e.g., antennas) uses of the existing buildings and facilities."27
Within the District, there had been some who saw the magnificent potential
of the area and the role that the former AF station could play:
Because of the well-graded access road and central
elevated location, this site would be an excellent access
point and potential hub for a hiking and equestrian trail
system in the area. . . . The Santa Clara County Trails
Plan recognizes this fact. A superb vista point and
developed picnicking, area could eventually be built
there, and study may uncover recreational use potential
for some of the existing structures. There are lovely
sweeping views of south Santa Clara County and
Monterey Bay over the Sierra Azul from this 3,500 foot
peak.
The [Mt. Thayer] parking lot could be reduced in size,
and converted to a summit picnic area and trailhead. .
. . The Cantonment Area would,be good location for a
visitor center. . . . Some uses [of the family housing
area] which could be compatible with the adjacent open
space include: . . Environmental Study Center. . .
School Science Camp. . University Research Center. .
Training Program Site. . .Conference Center."
Today, seven years later, the District's Mt. Umunhum area has grown to
over 6,000 acres but is largely closed to the public. Few trails are maintained by
the District. Mts. Umunhum and Thayer can only be visited on official business.
Mt. Umunhum Road is in poor condition. The buildings of the former AF station
are sliding into increasing disrepair, and no significant effort is being made to
preserve them for possible later use. Toxic clean-up is being studied at a glacial
pace by the U.S. Army Corps of Engineers. Pending completion of the cleanup,
the District has suspended all serious planning aCtiVity29 but has not made a
convincing effort to accelerate the clean-up process.
27 Ref. 19, p. 3 and Exhibit B.
28 Ref. 17, pp. 1, 7-8.
29 This suspension may be required as a practical result of a 1988 Court of Appeals decision
(ref. 20), which directs the District to conduct an environmental review before implementing a use and
management plan.
During the first year after the acquisition, there appears to have been an
effort by the District's executives to accelerate the Army's clean-up studies.
Assistance was obtained from the Board of Supervisors, and attempts were made
to enlist the help of members of the California congressional delegation. However,
the Grand Jury has found only three letters from District executives to the Corps
of Engineers that were dated after April 1987; copies were sent to Congressman
Norman Mineta, apparently without explanatory material or specific requests for
action. No evidence was found in the files that the District's Board became
actively involved. Even allowing for the possible incompleteness of the material
available to the Grand Jury, this record does not indicate a strong desire for
progress.
Observations and Conclusions. The Grand Jury's impression is that the
District would be only too happy to see the buildings and other improvements
deteriorate, thus forcing their eventual removal. This impression is reinforced by
reading the District's January 1993 "Plan for Relative Emphasis of District Sites":
the Mt. Umunhum area (next to the last in the relative order of sites) has two
anticipated budget items, both for the beyond-1994 period: $50,000 for the
master plan, and $500,000 for "Demolition/Air Base."
Air Force documents" appear to indicate that it incurred about $5.5 M in
contractual costs, mostly in the 1960s and 1970s, to build the station. It would
seem only reasonable to determine whether an appropriate use can be found. If
the current policy of neglect is continued, the decision will be made by default.
The 1990-91 Grand Jury recommended that the District obtain, without
delay, a definitive legal opinion on the entire issue surrounding the easement on
Mt. Umunhum Road."" in its response, the District stated that "Preparation of
a legal opinion regarding the public's right to cross the existing paved road on the
way to the top of Mt. Umunhum is in process and is expected to be completed
within six months. ,32 A recent letter indicated that the District had been
unsuccessful in obtaining this legal opinion on a pro bono basis, and had therefore
abandoned the effort. The District now feels that solving the public access
problem to the Air Force base by acquisition [of parcels adjacent to the road] is
the most cost effective way to resolve this problem."" This proposed solution
may not be consistent with anticipated budget constraints, nor does it seem to
take account of the deteriorating condition of the road and the need to resolve the
problem of its maintenance. A more incisive approach appears to be desirable.
30 Refs. 21 and 22.
" Ref. 23.
12 Ref. 24.
Ref. 25
ACQUISITION AND USE 34
Past and Current Emphasis. From its inception, the District has pursued the
goal of completing a greenbelt that would stretch from Highway 92 to the
Almaden region. Of the roughly 50,000 acres that this plan projects, 35,000
acres have been acquired. Use of this land has been a secondary goal; thus,
.it was the District's policy to allocate the vast majority of its funds during the
first years of its existence to the acquisition of open space, rather than to the
development and maintenance of facilities."" An analysis of the current (FY
1993-94) budget311 indicates that this orientation remains substantially
unchanged. As shown in Appendix A, roughly 88 percent of the budget is
allocated to acquisition-related activities.
The emphasis on greenbelt acquisition appears to have had an interesting
by-product. The Grand Jury received the impression that some of the District's
personnel regard users of open space as necessary nuisances. For example, the
District's Public Affairs Plan states:31
A balance must be struck between publicizing the
District's facilities and maintaining visitor use at a
manageable level. Increased awareness of the District
and its facilities will lead to increased usage and land
management costs. It is nonetheless necessary to raise
the overall level of awareness among the general
population, if the District's goals are to be achieved.
There is an obvious risk involved; however, the rewards
may be deemed well worth the possible -land
management impacts.
Lack of Public Involvement. It is not the Grand Jury's intent to debate the
relative emphasis that the District should place on acquisition and use. The point
to be made is that there appears to be a lack of meaningful public involvement and
debate. The District's Strategic Plan states:38
The District will educate and make clearly visible to the
34 The word "use" as employed in this report, should be understood as "use in accordance with
open space orientation," i.e., primarily trails plus minimal ancillary facilities.
" Ref. 26, p. 11.
36 As presented to the Board on March 10, 1993 (Ref. 27).
37 Ref. 28, p. 2.
3' Ref. 29, p. 5.
public the purposes and actions of the District, and will
actively encourage public communication and
involvement in District activities.
The Public Affairs Plan amplifies this statement by declaring the
"communications objective" to be:"
Generate additional public support for completing the
greenbelt by increasing the positive public perception
and awareness of the District's mission, objectives. . .
Reading these documents,one gets the impression that communication with
the public is viewed as primarily a one-way transmission whose goal is to foster
acceptance of and support for the District's predetermined aims.
The Board appears to lack the means of obtaining representative input about
the public's needs and desires. It thus places itself in the position of being overly
influenced by its management staff and by small but vocal pressure groups. The
Grand Jury's general impression is reinforced by the results of a December 1991
management study40 in which Board members and members of the District's
management and nonmanagement staffs were asked to respond to a series of
statements. The statement "The Board is too easily influenced by management"
elicited agreement from 71 percent of Board members and from 52 percent of
nonmanagement staff, with no member of the management staff agreeing. 43
percent of Board members, 1,00 percent of the management staff, and 75 percent
of nonmanagement staff agreed with the statement "The Board is too easily
swayed by individual members of the public."
The Board's relative isolation from the general public tends to be reinforced
by its practice of pre-screening candidates.41 The Board thus deprives itself of
the opportunity to receive input from diverse public elements.
Possible Need for Reevaluation. The District's buy-now-use-later policy has
had some obvious successes, as evidenced by the 35,000 acres of open space
preserve. However, changing demographic factors, shrinking budgets, and
increasing demands for recreational opportunities may indicate the need for re-
39 Ref. 28, p. 2.
ao Ref. 30.
al One of its seven members has served on the Board since the District's inception. Four
members were appointed to the Board prior to standing for election. One was recently (November
1992) appointed by the Board after it screened a number of applicants. The seventh member ran
unopposed in the recent election. The Grand Jury was told that he had been requested to run by Board
members.
thinking the acquisition/use balance: twenty years have passed since Prop. R.
Results of the previously quoted management study indicate that people who are
close to the problem agree with the need for reevaluation. The statement "The
goals and objectives of the District should be reevaluated" drew positive
responses from 57 percent of the Board and 57 percent of nonmanagement staff,
with management staff either disagreeing or abstaining. "More funds should be
allocated to land management" was agreed with by 71 percent of the Board, 40
percent of management staff, and 75 percent of nonmanagement staff members.
Use of the District's preserves has increased significantly in recent years,
indicating public demand for more trails and support facilities. During its meeting
on March 10, 1993, the Board was informed 42 that a statewide survey prepared
by the California Department of Parks and Recreation indicated that respondents
want better and more recreation facilities, but are largely unwilling to pay
additional general taxes. At the same time, more than 90 percent feel that
environmental protection is an important component of outdoor recreation.
RECOMMENDATIONS
The Grand Jury recommends that the District's Board of Directors take the
following actions:
Recommendation 1: Public Affairs
A. Develop a plan for obtaining input from, and engaging in
discussions with, a wide range of community organizations and
individuals to ascertain the community's needs and sentiments with
respect to open space acquisition and use.
Substantial progress should be made by the end of 1993.
B. Modify the Public Affairs Plan to reflect (A.) above.
The initial revision should be made by September 1993.
Recommendation 2: Protective Maintenance of Mt. Umunhurn Facilities
A. Determine which buildings have the greatest use potential and establish
a minimum maintenance program to prevent further deterioration. Housing
buildings, commander's office, club building, blockhouse, and several of the
work buildings would be expected to be on that list.
B. Revise the FY 1993-94 budget to allocate funds for this program.
42 Ref. 31, p. 5.
Items (A.) and (B.) should be completed by October 1993.
Recommendation 3: Mt. Umunhum Road Maintenance
Develop a plan for preventing further deterioration of the road since it will
be required in any future use of the area. If possible, consider cooperative
action with local landowners.
This item should be completed by October 1993.
Recommendation 4: Toxic Cleanup of the Former Almaden AF Station
Develop and pursue an aggressive political action plan (presumably
involving the Santa Clara County Board of Supervisors and the California
congressional delegation) to accelerate progress on the toxic cleanup of the
former AF station, currently being planned under the Defense Environmental
Restoration Program Project No. J09CA099900.
The initial plan should be completed by September 1993.
REFERENCES
(Midpeninsula Regional Open Space District is abbreviated as MROSD.)
1 . MROSD. Report R-91-68. June 5, 1991 .
2. MROSD. Statement of Just Compensation. June 10, 1991 .
3. Clevenger Realty Appraisal Corp. Appraisal Report, Job No. 2774-89.
September 29, 1989.
4. John T. Vidovich and MROSD. Agreement. November 7, 1990.
5. Carneghi-Bautovich & Partners, Inc. Limited Scope Real Estate Valuation
of the Lands of the Upper Portion of the Neary Quarry. April 1991 .
6. Superior Court, Santa Clara County. Cross-complaint, MROSD v. John T.
Vidovich et al. August 12, 1991 .
7. John T. Vidovich et al. and MROSD. Contingent Purchase Agreement--Gift
Sale. October 9, 1991 .
8. MROSD letter to Janet Cochrane, Santa Clara County Advance Planning.
Response to the Draft Environmental Impact Report on the Proposed
Vidovich General Plan Amendment. October 26, 1993.
9. MROSD. Minutes of Board Meeting 91-36. November 20, 1991 . Par. V
(B) summarizes the presentation given by members of the law firm
of Jones Hall Hill & White.
10. MROSD. Minutes of Board Meeting 92-12. May 13, 1992.
11 . MROSD. Report R-92-51. May 13, 1992.
12. MROSD. Report R-92-63. May 27, 1992. Attachment: Leptien-Cronin-
Cooper, Inc. Preliminary Study on the Formation of MROSD
Assessment District No. 1992-1 . May 22, 1992.
13. MROSD. Minutes of Board Meeting 92-14. June 10, 1992.
14. State of California. Landscaping and Lighting Act of 1972. Codified as
Part 2, Division 15 of the California Streets and Highway Code.
15. MROSD. Minutes of Board Meeting 92-17. July 8, 1992.
16. "High Price of Open Space," San Jose Mercury News, February 28, 1993,
sec. B, pp. 1, 5.
17. MROSD. Report R-82-8. January 22, 1982.
18. MROSD. Memorandum M-86-41. April 10, 1986. -
19. MROSD. Report R-86-19. March 3, 1986.
20. California Court of Appeals, Sixth District. Loren McQueen v. Board of
Directors. Case No. H003297. July 18, 1988.
21 . United States General Services Administration. Report of Excess Real
Property. GSA Control No. D-CA-1 122-B. July 22, 1981.
22. United States General Services Administration. 'Report of Excess Real
Property. GSA Control No. 9-DCA-1 122-A. December 31, 1981 .
23. Santa Clara County 1990-91 Grand Jury. Final Report. Pp. 39-47.
24. MROSD. Letter to the Hon. Daniel Creed, Santa Clara County Superior
Court. July 25, 1991 .
25. MROSD. Letter to Mr. Robert Gingery, Foreman, Santa Clara County Grand
Jury. March 9, 1993.
26. MROSD. Master Plan. 1992.
27. MROSD. Report R-93-39. March 10, 1993.
28. MROSD. Public Affairs Plan. January 27, 1992.
29. MROSD. Strategic Plan for the Nineties. January 27, 1993.
30. George Sipel Associates. Final Report, MROSD Organizational
Improvement Program. December 15, 1991 .
31 . MROSD. Report R-93-41. March 10, 1993.
APPENDIX A
ANALYSIS OF THE FY 1993-94 BUDGET
The information shown in the first two columns was taken from the budget
presentation of Reference 27. Amounts were rounded off. The last two columns
were obtained by classifying each item as acquisition or use-related. The first two
items are clearly related to land acquisition. Each of the other items was divided
equally between acquisition and use. The last item was below the round-off level.
PROGRAM $M ACQUISITION- USE-
RELATED RELATED
Acquisition 7.4 7.4 0.0
Debt Service 5.9 5.9 0.0
Planning 1 .2 0.6 0.6
Operations 2.1 1 .05 1 .05
Public Affairs 0,3 0.15 0.15
General Management 0*7 0*35 0,35
Salary Incentives ----- ------ ------
TOTALS 17.6 15.45 2.15
100% 88% 12%
PASSED AND ADOPTED y the Grand Jury of Santa
Clara County this tenth day of Jun 1 93.
obert C. Gingery
oreperson
Agic,
us B. Bruneman
Forrson Pro Tern
Helen Mineta
Secretary
i
r nGJrViYDC ^lL1VN rnvr VJ cU 1), S1AtE
I
Board President Acknowledge/Respond
"cur, 0 4M, 91, Director Acknowledge/Respond
Ni Staff Acknowledge/Respond
Draft Response Attached
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! To: Board of Directors staff to be Directed to Prepare Draft
Response for Board Consideration per '..
Midpeninsula Regional Open Space District Board Directive(s)
From: Mike Weston
No Response Necessary
Date: June 30, 1993
Subject: Draft Regulations for Use of Midpeninsula Regional Open Space District Lands
This letter is a supplement to the ones I wrote to John Escobar on June 9, 1993, and to you on June 22, 1993.
With regard to section 500.1 (Trail Use Speed Limit, previously numbered 600,1), I would like to make the
following points:
• The accident reports at the June 22, 1993 board meeting indicated 3 bicycling accidents and 2 pedestrian
accidents. On the basis of surveys done at Trail Education Stations on Midpeninsula Regional Open
Space District(MROSD) trails I,this indicates per copita accident rates for pedestrians and bicyclists
within 8%of the same rate. This difference is statistically insignificant given the small number of
accidents, so at current speeds,bicycling is as safe as hiking.
• There has been some concern that the accidents that do occur are taking money away from more legitimate
MROSD concerns. I would suggest that accident victims be charged for the costs associated with their
rescue. This concept is becoming increasingly common with other public agencies.
• Fifteen miles per hour(MPH) has been proposed as the speed limit only because others have chosen the
same speed, and is not based on any actual information about observed or safe speeds. The Marin
Municipal Water District data, Y
which shows that virtual) all cited violations are at 22 MPH or faster,
P
points toward a more appropriate limit of 20 MPf1. A speed limit that makes all bicyclists violators will
reduce the impact of all of the other regulations.
• My suggestion to prohibit headphone use to improve communication on the trails was rejected too quickly.
If the lack of available data on bicycle speed is not a factor in conside(ing a trail speed limit,then the lack
of data on problems caused by headphones should similarly not be a factor. The 'overtaking rule"
proposed by Pete Siemens is a good one,but would be inappropriate if the person being passed was
wearing headphones.
The exception in section 502.3 (Helmets) for Deer Hollow Farm should be reconsidered and removed. The
young children who make up the majority of trail users in this.area are the best possible audience for
education!
Lastly,I would like to look forward. While there have been words spoken to the contrary, the language of the
regulations and the stated intention to use radar sadly means that the history in Marin is likely to be repeated
here. I plan to give you the benefit of the doubt, and hope to be proved wrong. However, most bicyclists will
likely assume the worst. Therefore, if you pass section 500.1 as written, it is essential that you simultaneously
and genuinely reach out to the bicycling community.
Thank you,
Michael S. Weston
1323 Bess Ct.
San Jose, CA 95128
1641 bicyclists,431 hikers,30 runners,and 30 equestrians(Peter Fournier,draft article for the Responsible Organized
Mountain Pedalers(ROMP)newsletter).
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1992-93 Santa Clara County Grand Jury
FINAL REPORT
1 . INVESTIGATION OF THE MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
,
Complete text of 1992-93 Santa Clara County Grand Jury
Final Report available at District office for public
review.
RESPONSE ACTION PROPOSEDBY STAFF
G R A N D R Y Board President Acknowledge/Rep d
I'A N T A I I A It A 011993
Director Acknowledge ,ond
Staff Acknowledge/Respond
Draft Response Attached
Staff to be Directed to Prepare Draft
Response for Board Consideration per
Board Directive(s)
No Response Necessary
June 23 , 1993
MS. Betsy Crowder, President
Board of Directors
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Dear Ms. Crowder:
Acting under Penal Code Section 925a, the 1992-93
Santa Clara County Grand Jury is transmitting its final report
on Investigation of the Midpeninsula Regional open space
District to you.
Penal Code Section 933 requires the head of (dept. or
agency) to comment within 60 days to the Presiding Judge of the
Superior Court on the findings and recommendations pertaining
to matters under control of the (dept. or agency) . Copies of
responses to the Grand Jury's report must also be submitted to
the Board of Supervisors. a
Penal Code Section 933 requires that the governing
body of the public agency which has been the subject of a Grand
Jury final report shall comment within 90 days to the Presiding
Judge of the Superior Court on the findings and recommendations
pertaining to matters under control of the governing body.
Your comments are due in the office of the Honorable
Robert M. Foley, 191 North First Street, San Jose, CA 95113 ,
on or before September 27, 1993 .
Copies of all responses shall be placed on file with
the clerk of the public agency and t o fice of the county
Clerk.
S n
tc ely,of,
obert C. Gin er
R oreman
CG:bh
SUPERIOR COURT BUILDING 191 NORTH FIRST SiRTE1, SAN JO.%E,CALTIORNIA _95113_(408),299-2731
Open Space
R-93-74
Meeting 93-13 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
July 14, 1993
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AGENDA ITEM
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Issuance of 1993 Certificates of Participation
CONTROLLER'S RECOMMENDATION
Approve the following attached resolution required to complete the issuance and sale of
$17.2 million of 1993 Certificates of Participation
Resolution of the Board of Directors of the Midpeninsula
Regional Open Space District Authorizing the Execution and
Delivery of a Site Lease, a Project Lease, a Trust Agreement
and a Certificates of Participation Purchase Contract Relating to
P g
the Mid peninsula Regional Open Space District Certificates of
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Participation (1993 Open Space Project), Approving a
Preliminary Official. Statement and an Official Statement for
Such Certificates of Participation and Approving Certain Other
Matters in Connection Therewith
(Completed copies of the resolution and all of the documentation are available for public
review at the District office.)
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DISCUSSION:
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The 1993-1994 budget you adopted on March 24, 1993 included the issuance of $14.6
million of certificates of participation (COP) for the purposes of (1) refinancing the 1990
COP to achieve interest and cash flow savings and (2) obtaining $3 million additional land
acquisition funds necessary for the District to be in position to meet 1993-1994 land
acquisition commitments.
With the resolution of this year's state budget crisis favorable to the District, it is prudent to
increase the issue to yield $5 million of new land acquisition funds. Because long-term
interest rates have declined, the District can accomplish both increased land acquisition
funding and interest
to est saving objectives while incurring only a $160,000 increase in debt ,
service payments over the next four fiscal years.' The present value of the interest savings on
the refinancing portion of the issue exceeds $500,000.
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Sources and uses for the proposed 1993 COP:
Sources:
Par Amount of COP $17,190,000
Existing Reserve Funds 1,022,901
Total Sources $18,212,901
Open Space . . .for room to breathe 20th Anniversary 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 • Phone: 415-691-1200 FAX: 415-691-0485
General Manager:Herbert Grench Board of Directors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wim de Wit
R-93-74 Page 2
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Uses:
New Land Acquisition Funds $ 5,000,000
Deposit to Defease 1990 COP 11,579,841
New Reserve Fund 1,342,312
Underwriter's Discount (1.2%) 206,280
Other Costs of Issuance 84,468
Total Uses $18,212,901
It is possible that it will become more economical to sell these certificates on the basis of an
"original issue discount." If bond market conditions change such that it is advantageous to
sell at a discount, the par amount of the bonds could be increased by some $1 million,
without impacting annual debt service. The fact that this possibility exists is the reason why
the issue amount in the resolution is stated as a maximum limit and why the draft
Preliminary Official Statement was printed with an $18.3 million par amount.
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Preparation for this planned issue is now complete and ready for your review and approval.
Representatives from the lead underwriter and bond counsel will be at the meeting to answer
any questions you may have.
1. Amount: Approximately $17,190,000
2. Term: Thirty years from initial issue date, September 2020
3. Purposes: (1) Refinance 1990 COP to achieve cash flow and interest savings, and (2)
Provide $5 million of new land acquisition funds
4. Principal Repayment: Annually beginning September 1997 (41/2 years interest-only)
5. Interest Rate: To be priced July 20. Estimated yield of 5.7%
6. Interest Payments: Twice a year, in March and September
7. Pre-payment: Not allowed prior to 2003; redeemable at a premium 2003-2007;
redeemable without premium 2007-2020
8. Reserve Fund: Equal to highest annual debt service (approximately 8% of issue).
District receives interest earned from fund
9. Cost of Issuance: Estimated at $290,750 including underwriter's discount of
$206,280 (1.2% of issue), bond counsel fees, rating fees from Moody's and Standard
& Poors, and other costs
Parties to the Transaction
1. Issuer: Midpeninsula Regional Open Space District
2. Underwriters: Kidder, Peabody & Co. and Prudential Securities
3. Bond Counsel: Orrick, Herrington and Sutcliffe
4. Nominal Lessor: California Special Districts Association
5. Trustee: First Interstate Bank
The District's investment banker since 1987, Doug Charchenko, recently moved from
Prudential Securities to Kidder, Peabody & Co. Two underwriters are being employed (at
no increase in cost) in order to retain the services of Mr. Charchenko and his prior firm on
this transaction. The overall proposed team have worked on many successful District
financings and have each quoted fees which I consider to be reasonable and competitive.
R-93-74 Page 3
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Duties of the Parties
1. Issuer: Issues COP, receives net proceeds, makes principal and interest payments as
required
2. Underwriters: Purchase COP from District and sell to buyers
3. Bond Counsel: Prepares and certifies COP documents
4. Nominal Lessor: Officially, holds project properties and leases them to the District.
CSDA charges an initial fee of some $5,000 and then ceases to have any meaningful
role in the transaction
5. Trustee: Administers lease for benefit of the COP holders; collects principal and
interest from District and makes payments to holders; holds reserve fund
The Agreements
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Note: These documents are substantially correct but not meant to be in final form at this
time.
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1. Official Statement: Describes COP to potential buyers
2. Purchase Contract: Defines terms under which the underwriters will buy the COP
from the District
3. Site Lease (between District and Nominal Lessor): Nominal Lessor agrees to assist in
the financing of the purchase of specified properties. District leases these properties
to the Nominal Lessor for $1
4. Project Legs (between District and Nominal Lessor): District leases back the
specified properties from the Nominal Lessor and agrees to make principal and
interest payments to the Nominal Lessor. The Nominal Lessor does not acquire a
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forecloseable interest in any District property
5. Assignment Agreement (between Nominal Lessor and Trustee): Nominal Lessor
assigns to the Trustee all of its rights under the Project Lease
6. Trust Agreement: (between District, Trustee and Nominal Lessor): Defines and
creates the COPs and lays out all the details of how the COPS will be administered
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The Schedule
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July 14: Board approves all documents
July 20: Price issue
August 2: Pre-closing
August 3: Close sale and receive net proceeds
Prepared by:
Michael Foster, Controller
Contact person:
Same as above
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MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
RESOLUTION NO. 93-
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING THE EXECUTION AND DELIVERY OF A SITE LEASE,
A PROJECT LEASE, A TRUST AGREEMENT AND A
CERTIFICATES OF PARTICIPATION PURCHASE CONTRACT
RELATING TO THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
CERTIFICATES OF PARTICIPATION
(1993 OPEN SPACE PROJECT) ,
APPROVING A PRELIMINARY OFFICIAL STATEMENT
AND AN OFFICIAL STATEMENT FOR SUCH
CERTIFICATES OF PARTICIPATION
AND APPROVING CERTAIN OTHER MATTERS
IN CONNECTION THEREWITH
I
WHEREAS, the Midpeninsula Regional Open Space District
(the "District") is authorized by law to lease real property for
open space for the District; and
WHEREAS, the District has determined that it is in the
best interests of the District and its citizens and is necessary
and proper for District purposes that certain real property for
open space for the District described in the Amended and Restated
Project Lease (the "Project Lease") proposed „to be executed and
entered into as of August 1, 1993 , by and between the California
Special Districts Association Finance Corporation (the
"Corporation") and the District, in substantially the form
presented to this meeting, be leased by the Corporation to the
District in the manner and for the purposes described in the
Project Lease; and
WHEREAS, in order to implement the Project Lease, it is
necessary for the District to enter into an Amended and Restated
Site Lease (the "Site Lease") proposed to be executed and entered
into as of August 1, 1993, by and between the District and the
Corporation; and
WHEREAS, under the Project Lease, the District will be
obligated to make rental payments to the Corporation to pay for
such real property leased to it; and
I
WHEREAS, the Corporation desires to assign without
recourse all its rights to receive such rental payments to
Seattle-First National Bank, as Trustee (the "Trustee") , for the
benefit of the registered owners of certificates of participation
(the "Certificates") to be executed and delivered by the Trustee
under a Trust Agreement (the "Trust Agreement") proposed to be
executed and entered into as of August 1, 1993, by and among the
SF2-1$434.1
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Trustee, the Corporation and the District, in substantially the
form presented to this meeting; and
WHEREAS, in consideration of such assignment and the
execution and entering into of the Trust Agreement, the Trustee
has agreed to execute and deliver the Certificates in the
aggregate principal amount of the principal components of such
rental payments, each evidencing and representing a
proportionate, undivided interest in such rental payments; and
WHEREAS, Kidder, Peabody & Co. and Prudential
Securities, Incorporated (the "Underwriters") have offered to
purchase the Certificates pursuant to a Certificates of
Participation Purchase Contract (the "Certificates of
Participation Purchase Contract") in substantially the form
presented to this meeting; and
WHEREAS, in connection with the initial public offering
of the Certificates, the Underwriters will distribute a
Preliminary Official Statement for the Certificates (the
"Preliminary Official Statement") in substantially the form
presented to this meeting, and after the sale and award of the
i Certificates will distribute a final Official Statement for the
i Certificates (the "Official Statement") in substantially the form
of the Preliminary Official Statement; and
I
WHEREAS, all acts, conditions and things required by
law to exist, to have happened and to have been performed
precedent to and in connection with the authorization of the
execution and delivery of the Site Lease, the Project Lease, the
Trust Agreement and the Certificates of Participation Purchase
Contract do exist, have happened and have been performed in
regular and due time, form and manner as required by law, and the
District is now duly authorized to execute and deliver the Site
Lease, the Project Lease, the Trust Agreement and the
Certificates of Participation Purchase Contract and to approve
the Preliminary Official Statement and the Official Statement and
the distribution thereof;
NOW, THEREFORE, BE IT RESOLVED by the Board of
Directors of the Midpeninsula Regional Open Space District, as
follows:
t All
of the foregoing recitals are true and
Section ]. g g
correct, and this Board of Directors so finds and determines.
I
Section 2. The District is authorized to execute and
deliver the Site Lease, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Site Lease for and on behalf of the District and the
Secretary of the Board of Directors of the District is hereby
authorized and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Site Lease. As
M-18434.1 2
II
executed and delivered, the Site Lease shall be in substantially
the form presented to this meeting, with such additions thereto
or changes therein as the officers executing the Site Lease shall
require or approve.
Section 3. The District is authorized to execute and
deliver the Project Lease, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Project Lease for and on behalf of the District and
the Secretary of the Board of Directors of the District is hereby
authorized and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Project Lease.
As executed and delivered, the Project Lease shall be in
substantially the form presented to this meeting, with such
additions thereto or changes therein as the officers executing
the Project Lease shall require or approve, including those
relating to the total rental payments due under the Project Lease
and the amount and schedule of the payments thereunder, such
approval to be conclusively evidenced by the execution and
delivery thereof.
Section 4. The District is authorized to execute and
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deliver the Trust Agreement, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Trust Agreement for and on behalf of the District and
the Secretary of the Board of Directors of the District is hereby
authorized and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Trust Agreement.
As executed and delivered, the Trust Agreement shall be in
substantially the form presented to this meeting, with such
additions thereto or changes therein as the officers executing
the Trust Agreement shall require or approve, including those
relating to the total principal amount of the Certificates and
the amount and schedule of payments of principal and interest
thereunder, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 5. The District is authorized to execute and
deliver the Certificates of Participation Purchase Contract, and
the Acting General Manager of the District is hereby authorized
and directed to execute the Certificates of Participation
Purchase Contract for and on behalf of the District; provided,
that the total principal amount of the Certificates shall not
exceed eighteen million five hundred thousand dollars
($18,500, 000) , the term of the Certificates shall not exceed i
thirty (30 ears and the net interest cost of the obligation
) Y
evidenced and represented by the Certificates
shall not exceed
per cent ( %) per annum and
the underwriter's discount for the purchase thereof shall not
exceed per cent ( %) . As
executed and delivered, the Cert f Cates of Parti is pation
Purchase Contract shall be in substantially the form presented to
this meeting, with such additions thereto or changes therein as
SF2-18434.1 3
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the officer executing the Certificates of Participation Purchase
Contract (subject to the above limitations) shall require or
approve, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 6. The Preliminary Official Statement in the
form now on file with the Secretary of the Board of Directors of
the District is hereby approved, and the Acting General Manager
of the District is hereby authorized to approve the distribution
of the Preliminary Official Statement in substantially said form
and to certify to the Underwriters on behalf of the District that
the Preliminary Official Statement is, as of its date, "deemed
final" by the District, within the meaning of Rule 15c2-12
promulgated under the Securities and Exchange Act of 1934 (except
for the omission of certain final pricing, rating and related
information as permitted by such rule) , and the President of the
Board of Directors of the District and the Acting General Manager
of the District are hereby authorized and directed, for and in
the name and on behalf of the District, to execute and deliver to
the Underwriters the Official Statement, which shall be in
substantially the form of the Preliminary Official Statement with
such additions thereto or changes therein as such officers shall
require or approve, such approval to be conclusively evidenced by
the execution and delivery thereof, and the Underwriters are
hereby authorized to distribute copies of the Official Statement
to persons who may be interested in the purchase of the
Certificates and the Underwriters are directed to deliver such
copies to all actual purchasers of the Certificates.
I
Section 7. The President of the Board of Directors of
the District, the Secretary of the Board of Directors of the
District, the Acting General Manager of the District and the
Controller of the District are hereby each authorized and
directed, in the name and on behalf of the District, to take any
and all steps and to execute and deliver any and all
certificates, contracts and other documents which they might deem
necessary or appropriate in order to consummate the delivery of
the Certificates and otherwise to effectuate the purposes of this
resolution; and such actions previously taken by the officers of
the District are hereby ratified and confirmed.
Section 8. This resolution shall take effect from and
after its passage, approval and adoption.
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sP2-18434.1 4
PASSED AND ADOPTED on July 14, 1993, by the following
vote:
AYES: Directors
NOES:
ABSENT:
Approved:
President of the Board of Directors
of the Midpeninsula Regional
Open Space District
(SEAL)
Attest:
Secretary of the Board of Directors
of the Midpeninsula Regional
Open space District
W2-19434.1 5
MARKED TO SHOW CHANGES
FROM 6/29/93 DRAFT.
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
ACERTIFICATES OF PARTICIPATION
( 1993 Open Space Project)
PURCHASE CONTRACT
&LuLy 1993
Board of Directors
Midpeninsula Regional Open Space District
Los Altos, California 94022
Ladies and Gentlemen:
The undersigned, Kidder, Peabody & Co. (the
"Representative" ) and Prudential Securities Incorporated
(collectively, the "Underwriter" ) , hereby offer to enter into
this Purchase Contract (the "Purchase Contract, ) with you, the
Midpeninsula Regional Open Space District (the "District" ) , for
the purchase by the Underwriter of the Certificates of
Participation which will be executed and delivered under the
Trust Agreement, dated as Of A July 1, 1993, (the "Trust
Agreement" ) among the District, A First Interstate Bank of
California, San Francisco, California, as trustee (the
"Trustee-" ) and the -C—al—ifornia Special Districts Association
Finance Corporation (the "Corporation" ) This offer is made
prior to 11:59 o 'clock P.M. ,
subject to acceptance by you
California time, on the date hereof . If this offer is not so
accepted, this offer will be subject to withdrawal by the
Underwriter upon notice delivered to you at any time prior to
acceptance. Upon acceptance, this Purchase Contract shall be
in full force and effect in accordance with its terms and shall
be binding upon the District and the Underwriter.
1 . Purchase, Sale and Delivery of the Certificates .
(a) Subject to the terms and conditions and in
reliance upon the representations , warranties and
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LA2/BAA:1111-07/08/93
agreements set forth herein, the Underwriter hereby agrees
to purchase and the District agrees to cause the Trustee to
execute and deliver to the Underwriter all (but not less
than all) of the Midpeninsula Regional Open Space District
A
Certificates of Participation ( 1993 Open Space Project)
(the "Certificates " ) in the aggregate principal amount of
$18, 300, 000 dated Ajy�ll, 1993 each evidencing undivided
proportionate interests of the owners thereof in certain
rental payments ( "Rental Payments " ) , to be made by the
District pursuant to the Amended and Restated Project Lease
entered into as ofAluly 1, 1993 (the "P o 'ect Lease" ) ,
between the District and the Corporation, ental for
the Project (as defined below) .
The proceeds of the Certificates will provide funds
(i) to finance the acquisition of one parcel of additional
open space lands consisting of approximately 280 acres (the
"Project" ) , (ii) to advance refund all of the Midpeninsula
Regional Open Space District 1990 Certificates of
Participation (Administration Building and Open Space
Project) (the "Prior Certificates " ) , (iii) to pay certain
costs and expenses incurred in connection with the issuance
of the Certificates, and (iv) to fund a debt service
reserve fund. A portion of the proceeds of the
Certificates shall be used to purchase federal securities
which will be held pursuant to an Escrow Agreement dated as
of July 1, 1993 (the "Escrow Agreement" ) by and between the
District and Seattle-First National Bar6k as Escrow Agent
(the "Escrow Agent" ) .
The Corporation will assign certain of its interests
in the Project Lease, including the right to receive Rental
Payments with respect to the Certificates, to the Trustee
for the benefit of the owners of the Certificates pursuant
to the Assignment Agreement (the "Assignment Agreement" ) ,
entered into as of Jul 1, 1993 between the Corporation and
the Trustee. The Corporation and the District have entered
into an Amended and Restated Site Lease, dated as of
Jul 1, 1993 (the "Site Lease" ) , pursuant to which the
District will lease the sites on which the Project is
located. The aggregate purchase price for the Certificates
shall be $18, 30-0, 000 plus accrued interest on the
Certificates
to the Closing Date (as hereinafter defined) .
The Certificates shall be substantially in the form
described in, and shall be executed, delivered and secured
under and pursuant to, and shall be payable and subject to
prepayment as provided in, the Trust Agreement.
2 .
LA2/BAA:1111-07/08/93
A Preliminary Official Statement (as hereafter
defined) has been delivered to us in connection with the
Certificates . The Certificates will mature on the dates
and in the amounts and bear interest at the rates set forth
on the cover of the Official Statement (as hereinafter
defined) .
The Certificates, the Trust Agreement, the Assignment
Agreement and the Escrow Agreement shall be collectively
referred to herein as the "Financing Documents, " and the
Financing Documents together with the Project Lease and the
Site Lease shall be collectively referred to herein as the
"Legal Documents " .
(b) At 8 : 00 A.M. , California time, on August 1993
or at such other time or on such other date as we mutually
agree upon (the "Closing Date" ) , the District will deliver
to the Underwriter, at a location or locations to be
designated by the Underwriters in New York, New York, the
Certificates in the form of a separate single fully
registered Certificate (which may be typewritten) for each
of the maturities (all of the Certificates to bear CUSIP
numbers) , duly executed, together with the other documents
mentioned herein. The Underwriter will accept such
delivery and pay the purchase price of the Certificates as
set forth in subparagraph (a) above in immediately
available funds (such delivery and payment being herein
referred to as the "Closing" ) payable to the order of the
Trustee in an amount equal to the purchase price. The
Certificates will be made available to the Underwriter for
inspection and packaging, at an office which we may
mutually agree upon, not less than two business days prior
to the Closing. Upon initial issuance, the ownership of
such Certificates shall be registered in the registration
books kept by the Trustee in the name of CEDE & Co. , as the
nominee of The Depository Trust Company.
(c) The Underwriter agrees to make a bona fide public
offering of the Certificates at the initial offering prices
set for in the official Statement, which prices may be
Chan
ged from time to time by the Underwriter after such
offering.
2 . Representations, Warranties and Agreements of the District.
The District hereby represents, warrants and agrees with
the Underwriter as follows :
(a) both at the date hereof and at the date of
Closing, the statements and information contained in the
LA2/BAA:1111-07/08/93
Official Statement pertaining to the District contain no
misstatement of a material fact and the Official Statement
does not and will not omit any statement or information
pertaining to the District which is necessary to make the
statements and information therein, in the light of the
circumstances under which they were made, not misleading in
any material respect;
(b) the District is and will be on the Closing Date a
regional open space district of the State of California
organized and operating pursuant to the Constitution and
laws of the State of California with the full power and
authority to execute and deliver the Official Statement,
and to enter into this Purchase Contract and the Legal
Documents to be executed by it;
(c) by official action of the District prior to or
concurrently with the acceptance hereof, the District has
duly approved, ratified and confirmed the distribution of
the Preliminary Official Statement and the execution,
delivery and distribution of the official Statement, and
has duly authorized and approved the execution and delivery
of, and the performance by the District of the obligations
on its part contained in, the Legal Documents and the
consummation by it of all other transactions contemplated
by the Official Statement and this Purchase Contract;
(d) the execution and delivery of -the Legal Documents
to be executed by the District, this Purchase Contract and
the Official Statement, and compliance with the provisions
on the District ' s part contained herein and therein, will
not in any material respect conflict with or constitute a
breach of or default under any law, administrative
regulation, judgment, decree, loan agreement, indenture,
bond, note, resolution, agreement nor other instrument to
which the District is a party or is otherwise subject, nor
will any such execution, delivery, adoption or compliance
result in the creation or imposition of any lien, charge or
other security interest or encumbrance of any nature
whatsoever upon any of the properties or assets of the
District under the terms of any such law, administrative
regulation, judgment, decree, loan agreement, indenture,
bond, note, resolution, agreement or other instrument,
except as provided in the Legal Documents;
(e) the District is not in any material respect in
breach of or default under any applicable law or
administrative regulation of the State of California or the
United States of America or any applicable judgment or
decree or any loan agreement, indenture, bond, note,
4 .
LA2/BAA:1111-07/08/93
resolution, agreement or other instrument to which the
District is a party or is otherwise subject, and no event
has occurred and is continuing which, with the passage of
time or the giving of notice or both, would constitute a
default or an event of default under any such instrument;
( f) there is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
governmental agency, public board or body, pending or
threatened against the District in any material respect
affecting the existence of the District or the titles of
its officers to their respective offices or seeking to
prohibit, restrain or enjoin the sale, execution or
delivery of the Certificates or the payment of Rental
Payments or in any way contesting or affecting the validity
or enforceability of the Legal Documents or this Purchase
Contract or contesting the powers of the District or its
authority to enter into, adopt or perform its obligations
under any of the foregoing, or contesting in any way the
completeness or accuracy of the Preliminary official
Statement or the official Statement, or any amendment or
supplement thereto, wherein an unfavorable decision, ruling
or finding would materially adversely affect the validity
or enforceability of the Legal Documents or this Purchase
Contract;
(g) the District will furnish such information,
execute such instruments and take such other action in
cooperation with the Underwriter as the Underwriter may
reasonably request in order ( i) to qualify the Certificates
for offer and sale under the Blue Sky or other securities
laws and regulations of such states and other jurisdictions
of the United States as the Underwriter may designate and
(ii) to determine the eligibility of the Certificates for
investment under the laws of such states and other
jurisdictions, and will use its best efforts to continue
such qualification in effect so long as required for
distribution of the Certificates; provided, however, that
in no event shall the District be required to take any
i
action which would subject it to general or unlimited
service of process in any jurisdiction in which it is not
now so subject;
(h) if between the date hereof and the date of the
Closing an event occurs, of which the District has
knowledge, which might or would cause the information
contained in the Official Statement, as then supplemented
or amended, to contain an untrue statement of a material
fact or to omit to state a material fact required to be
stated therein or necessary to make such information
5 .
LA2/BAA:1111-07/08/93
- - - - - - - --- --- --
therein, in light of the circumstances under which it was
presented, not misleading, the District will notify the
Trustee, the Underwriter and the Corporation, and, if in
the opinion of the District, the Trustee, Underwriter or
the Corporation, or their respective counsel, such event
requires the preparation and publication of a supplement or
amendment to the official Statement, the District will
cooperate in the preparation of an amendment or supplement
to the official Statement in a form and manner approved by
the Underwriter, and shall pay all expenses thereby
incurred; and
(i) if the information contained in the Official
Statement is amended or supplemented pursuant to paragraph
(h) hereof, at the time of each supplement or amendment
thereto and (unless subsequently again supplemented or
amended pursuant to such subparagraph) at all times
subsequent thereto up to and including the Closing Date,
the portions of the Official Statement so supplemented or
amended (including any financial and statistical data
contained therein) will not contain any untrue statement of
a material fact or omit to state a material fact required
to be stated therein or necessary to make such information
therein, in the light of the circumstances under which it
was presented, not misleading.
The District hereby ratifies, confirms and approves of the
use and distribution by the Underwriter *prior to the date
hereof of the preliminary official statement relating to the
Certificates dated/k2yly 1, 1993 (including the cover page, the
summary statement and all appendices thereto, the "Preliminary
Official Statement" ) . The District has delivered or caused to
be delivered to the Underwriter on the date hereof a form of
the official statement relating to the Certificates dated the
date hereof which the District deems final for purposes of Rule
15c2-12 promulgated under the Securities Exchange Act of 1934
( "Rule 15c2-12 " ) , except for information permitted to be
omitted therefrom by Rule 15c2-12 . The District hereby agrees
to deliver or cause to be delivered to the Underwriter, within
seven (7 ) business days of the date hereof, copies of the final
Official Statement, dated the date hereof, relating to the
Certificates ( including all information previously permitted to
have been omitted by Rule 15c2-12 and any amendments or
supplements as have been approved by the District and the
Underwriter) (the "Official Statement" ) in such quantity as the
Underwriter shall request. The District hereby approves of the
use and distribution by the Underwriter of the Official
Statement in connection with the offer and sale of the
Certificates .
6 .
LA2/BAA:1111-07/08/93
3, Conditions tothe Obligations of the Underwriter.
The Underwriter hereby enters into this Purchase Contract
in reliance upon the representations and warranties of the
District contained herein and the representations and
warranties to be contained in the documents and instruments to
be delivered at the Closing and upon the performance by the
District, the Corporation and the Trustee of their obligations
both on and as of the date hereof and as of the Closing Date.
Accordingly, the Underwriter' s obligations under this Purchase
Contract to purchase, to accept delivery of and to pay for the
Certificates shall be subject, at the option of the
Underwriter, to the accuracy in all material respects of the
representations and warranties of the District contained herein
as of the date hereof and as of the Closing Date, to the
accuracy in all material respects of the statements of the
officers and other officials of the Trustee and the District
made in any certificate or other document furnished pursuant to
the provisions hereof, to the performance by the District, the
Corporation and the Trustee of their respective obligations to
be performed hereunder and under the Legal Documents at or
prior to the Closing Date, and also shall be subject to the
following additional conditions:
(a) The representations and warranties of the
District contained herein shall be true and correct on the
date hereof and on the Closing Date, as if made on and at
the Closing;
(b) At the Closing, the Legal Documents shall have
been duly authorized, executed and delivered by the
respective parties thereto, and the Official Statement
shall have been duly authorized, executed and delivered by
the District, all in substantially the forms heretofore
submitted to the Underwriter, with only such changes as
shall have been agreed to in writing by the Underwriter,
and shall be in full force and effect; and there shall be
in full force and effect such resolution or resolutions of
the Board of Directors of the District as, in the opinion
of Orrick, Herrington & Sutcliffe ( "Special Counsel" ) ,
shall be necessary or appropriate in connection with the
transactions contemplated hereby;
(c) The Underwriter shall have received, within seven
( 7) business days of the date hereof, copies of the final
Official Statement relating to the Certificates dated
hereof ( including all information previously permitted to
have been omitted by Rule 15c2-12 and any amendments or
supplements as have been approved by the District and the
Underwriter) , in such quantity as the Underwriter shall
have requested.
7 .
LA2/BAA:1111-07/08/93
(d) Between the date hereof and the Closing Date, the
market price or marketability, at the initial offering
price set forth in the Official Statement, of the
Certificates shall not have been materially adversely
affected, in the reasonable judgment of the Underwriter
(evidenced by a written notice to the District and the
Trustee terminating the obligation of the Underwriter to
accept delivery of and make any payment for the
Certificates) , by reason of any of the following:
( 1) legislation enacted (or resolution passed)
by or introduced or pending legislation amended in the
Congress or recommended for passage by the President
of the United States, the Speaker of the House of
Representatives, the President Pro Tempore of the
Senate, the Chairman or ranking minority member of the
Committee of Ways and Means of the House of
Representatives or the Chairman or ranking minority
member of the Committee on Finance of the Senate, or a
decision rendered by a court the
under Article
III of the Constitution of the United States or by the
Tax Court of the United States, or an order, ruling,
regulation ( final, temporary or proposed) or press
release issued or made by or on behalf of the Treasury
Department of the United States or the Internal
Revenue Service, with the purpose or effect, directly
or indirectly, of imposing federal income taxation
upon moneys that would be received -by the District or
rental payments that would be received by the Trustee
under the Trust Agreement or upon such interest as
would be received by the Certificate Owners;
(2 ) the declaration of war or engagement in
major military hostilities by the United States or the
occurrences of any other national emergency or
calamity relating to the effective operation of the
government of or the financial community in the United
States;
( 3) the declaration of a general banking
moratorium by federal, New York or California
authorities, or the general suspension of trading on
any national securities exchange;
(4) the imposition by the New York Stock
Exchange or other national securities exchange, or any
governmental authority, of any material restrictions
not now in force with respect to the Certificates or
obligations of the general character of the
Certificates or securities generally, or the material
8 .
LA2/BAA:1111-07/08/93
increase of any such restrictions now in force,
including those relating to the extension of credit
by, or the charge to the net capital requirements of,
the Underwriter;
(5) legislation enacted (or resolution passed)
by or introduced or pending legislation amended in the
Congress or recommended for passage by the President
of the United States, or an order, decree or
injunction issued by any court of competent
jurisdiction, or an order, ruling, regulation ( final,
temporary or proposed) or press release issued or made
by or on behalf of the Securities and Exchange
Commission, or any other governmental agency having
jurisdiction of the subject matter, to the effect that
obligations of the general character of the
Certificates, or the Certificates, including any or
all underlying arrangements, are not exempt from
registration under the Securities Act of 1933, as
amended, or that the Trust Agreement is not exempt
from qualification under the Trust Indenture Act of
1939 , as amended, or that the execution, offering or
sale of obligations of the general character of the
Certificates, or of the Certificates, including any or
all underlying arrangements, as contemplated hereby or
by the Official Statement, otherwise is or would be in
violation of the federal securities laws as amended
and then in effect;
( 6 ) the withdrawal or downgrading of any rating
of the Certificates by a national rating agency; or
( 7 ) any event occurring, or information becoming
known which, in the judgment of the Underwriter, makes
untrue in any material respect any statement or
information contained in the official Statement, or
has the effect that the Official Statement contains
any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; and
(e) At or prior to the Closing Date, the Underwriter
shall have received the following documents, in each case
satisfactory in form and substance to the Underwriter:
( 1) Two copies of the Legal Documents, each duly
executed and delivered by the respective parties
thereto;
9 .
LA2/BAA:1111-07/08/93
(2) The approving opinion, dated the Closing
Date and addressed to the District, of Special Counsel
in substantially the form attached to the Official
Statement as Appendix C, and a letter of such counsel,
dated the Closing Date and addressed to the
Underwriter to the effect that such opinion may be
relied upon by the Underwriter to the same extent as
if such opinion were addressed to it;
( 3) The supplemental opinion, dated the Closing'
Date and addressed to the Underwriter, of Special
Counsel, substantially to the effect that (i) this
Purchase Contract has been duly authorized, executed
and delivered by the District and (assuming due
authorization, execution and delivery by and validity
with respect to the Underwriter) constitutes a valid,
legal and binding obligation of the District
enforceable in accordance with its terms, except as
such enforceability (A) may be limited by bankruptcy
or other laws affecting creditors ' rights, and (B) may
be subject to the application of equitable principles
if equitable remedies are sought; (ii) the
Certificates may be offered and sold without
registration under the Securities Act of 1933, as
amended, and the Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939 , as
amended; (iii) the statements contained in the
Official Statement, under the captions "Introduction" ,
"The Certificates" , "Security and Sources of Payment
for the Certificates" , "Tax Exempt Status" ,
"APPENDIX C - Form of Special Counsel Opinion" and
"APPENDIX D - Summary of Principal Legal Documents " ,
insofar as such statements purport to summarize
certain provisions of the Certificates, the Project
Lease, the Site Lease, the Trust Agreement, the
Assignment Agreement and the Escrow Agreement, certain
matters of California or federal law and Special
Counsel ' s opinion concerning certain federal and State
tax matters relating to the Certificates, are accurate
in all material respects; and (iv) the Prior
Certificates have been defeased and the lien of the
Prior Trust Agreement has been discharged with respect
to the Prior Certificates;
(4 ) The opinion of the District Counsel for the
District, dated the Closing Date and addressed to the
Underwriter, to the effect that (i) the District is a
regional open space district of the State of
California; (ii) the resolution or resolutions of the
District approving and authorizing the execution and
10.
LA2/BAA:1111-07/08/93
delivery by the District of the Legal Documents to
which the District is a party, the Purchase Contract
and the Official Statement (the "Resolutions " ) were
duly adopted at meetings of the Board of Directors of
the District which were called and held pursuant to
law and with all public notice required by law and at
which a quorum was present and acting throughout;
(iii) there is no action, suit, proceeding or
investigation at law or in equity before or by any
court, public board or body, pending or threatened
against or affecting the District, to restrain or
enjoin payment of the Rental Payments under the
Project Lease, or in any way contesting or affecting
the vaiidity of the Legal Documents or the Purchase
Contract; (iv) the execution and delivery of the Legal
Documents to which the District is a party, the
Purchase Contract and the official Statement, the
adoption of the Resolutions, and compliance by the
District with the provisions of the foregoing, under
the circumstances contemplated thereby, do not and
will not in any material respect conflict with or
constitute on the part of the District a breach or
default under any agreement or other instrument to
which the District is a party and of which such
counsel is aware after reasonable investigation) or by
which it is bound (and of which such counsel is aware
after reasonable investigation) or any existing law,
regulation, court order or consent decree to which the
III District is subject; (v) the official Statement has
been duly authorized, executed and approved for use by
the Underwriter, and the Legal Documents to which the
District is a party and the Purchase Contract have
been duly authorized, executed and delivered by the
District and, assuming due authorization, execution
and delivery by the other parties thereto, constitute
legal, valid and binding agreements of the District
enforceable in accordance with their respective terms,
subject to laws relating to bankruptcy, insolvency or
other laws affecting the enforcement of creditors '
rights generally and the application of equitable
principles if equitable remedies are sought; (vi)
except as described in the Official Statement, no
authorization, approval, consent, or other order of
the State of California or any other governmental
authority or agency within the State of California
having jurisdiction over the District is required for
the valid authorization, execution, delivery and
performance by the District of the Legal Documents to
which the District is a party, the official Statement
or the Purchase Contract or for the adoption of the
11.
LA2/8AA:1111-07/08/93
Resolutions which has not been obtained; and (vii) the
information contained in the official Statement under
the captions "The Project" , "The District" , "Estimated
Tax Revenues and Debt Retirement" and "District
Financial Information" (excluding therefrom financial
statements and statistical data, as to which no
opinion need be expressed) does not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstance under which they were made, not
misleading, together with a statement in such opinion
that the same may be relied upon by the Trustee, the
Corporation and their respective counsel to the same
extent as if such opinion were addressed to them; and
a separate opinion of the District Counsel for the
District, dated the Closing Date, addressed to the
Underwriter, and in form and substance satisfactory to
counsel to the Underwriter, to the effect that (i) the
District has good and marketable title to the real
property described in Exhibit A to the Project Lease
and ( ii) there is no action, suit, proceeding or
investigation at law or in equity before or by any
court, public board or body, pending or threatened
against or affecting the District contesting or
affecting the District ' s title to the real property
described in Exhibit A to the Project Lease;
V
(5) The opinion of counsel to the Trustee and
the Escrow Agent, dated the Closing Date and addressed
to the Underwriter, to the effect that (i) the Trustee
and the Escrow Agent have duly authorized, executed
and delivered the Trust Agreement, the Assignment
Agreement and the Escrow Agreement; ( ii) the Trust
Agreement, the Assignment Agreement and the Escrow
Agreement constitute legally valid and binding
agreements of the Trustee, enforceable against the
Trustee and Escrow Agent in accordance with their
terms, subject to laws relating to bankruptcy,
insolvency or other laws affecting the enforcement of
creditors , rights generally and the application of
equitable principles if equitable remedies are sought;
and (iii) the Certificates have been validly
authorized, executed and delivered by the Trustee and
are legally valid and binding obligations, enforceable
in accordance with their terms, subject to laws
relating to bankruptcy, insolvency or other laws
affecting the enforcement of creditors ' rights
generally and the application of equitable principles
if equitable remedies are sought, together with an
12 .
LA2/BAA:1111-07/08/93
opinion of such counsel, dated the Closing Date and
addressed to the District and the Corporation, to the
effect that such opinion may be relied upon by the
District and the Corporation to the same extent as if
such opinion were addressed to the District and the
Corporation;
( 6 ) The opinion of counsel to the Corporation,
dated the Closing Date and addressed to the District
and the Underwriter, to the effect that (i) the
Corporation is a nonprofit corporation duly organized
and validly existing pursuant to the laws of the State
of California; (ii) the Legal Documents to which the
Corporation is a party have been duly authorized,
executed and delivered by the Corporation and,
assuming due authorization, execution and delivery by
the other parties thereto, constitute legal, valid and
binding agreements of the Corporation enforceable in
accordance with their respective terms, subject to
laws relating to bankruptcy, insolvency or other laws
affecting the enforcement of creditors , rights
generally and the application of equitable principles
if equitable remedies are sought; and (iii) assuming
due execution and delivery thereof by the Trustee, the
execution and delivery of the Assignment Agreement by
the Corporation are effective and sufficient to
transfer all right, title and interest of the
Corporation in the Project and the Project Lease as
are purported to be transferred thereby (including the
right to receive and collect Rental Payments, but
excluding the Corporation' s rights to certain
indemnification and excluding the Corporation' s
obligati'ons to acquire and/or improve the Project) to
the Trustee;
( 7 ) The opinion, dated the Closing Date and
addressed to the Underwriter, of Nossaman, Guthner,
Knox & Elliott, Los Angeles, California, counsel for
the Underwriter ( "Underwriter' s Counsel" ) to the
effect that (a) the Certificates are exempt from
registration under the Securities Act of 1933, as
amended, and the Trust Agreement is exempt from
qualification under the Trust Indenture Act of 1939,
as amended; and (b) without passing upon or assuming
any responsibility for the accuracy, completeness or
fairness of the statements contained in the Official
Statement and making no representation that they have
independently verified the accuracy, completeness or
fairness of any such statements, based upon the
information made available to them in the course of
13 .
LA2/BAA:1111-07/08/93
their participation in the preparation of the Official
Statement as counsel for the Underwriter, nothing has
come to their attention which would lead them to
believe that the Official Statement (excluding
therefrom financial statements and the statistical
data included in the Official Statement, as to which
no opinion need be expressed) contains an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
( 8) A certificate or certificates, dated the
Closing Date, signed by a duly authorized official of
the District satisfactory to the Underwriter, in form
and substance satisfactory to the Underwriter, to the
effect that (a) the representations and warranties of
the District contained in the Purchase Contract are
true and correct in all material respects on and as of
the Closing Date with the same effect as if made on
the Closing Date; (b) no litigation is pending or
threatened (i) to restrain or enjoin the execution,
sale or delivery of. any of the Certificates or the
payment of Rental Payments under the Pro4ct Lease,
( ii) in any way contesting or affecting the validity
of the Certificates, the Purchase Contract, or the
Legal Documents to which the District is a party, or
(iii) in any way contesting the existence or powers of
the District, (iv) in any way contesting or affecting
the District ' s title to the real property described in
Exhibit A to the Project Lease; and (c) no event
affecting the District has occurred since the date of
the Official Statement which either makes untrue or
incorrect in any material respect as of the Closing
Date any statement or information contained in the
Official Statement relating to the District or is not
reflected in the Official Statement but should be
reflected therein in order to make the statements and
information therein relating to the District not
misleading in any material respect;
( 9 ) A certificate or certificates, dated the
Closing Date, signed by a duly authorized official of
the Corporation satisfactory to the Underwriter, in
form and substance satisfactory to the Underwriter, to
the effect that (a) no litigation is pending or
threatened in any way contesting or affecting the
validity of the Legal Documents to which the
Corporation is a party, (b) no event affecting the
14 .
LA2/BAA:1111-07/08/93
Corporation has occurred since the date of the
Official Statement which either makes untrue or
incorrect in any material respect as of the Closing
Date any statement or information contained in the
Official Statement relating to the Corporation or is
not reflected in the Official Statement but should be
reflected therein in order to make the statements and
information therein relating to the Corporation not
misleading in any material respect; and (c) the
execution and delivery of the Assignment Agreement by
the Corporation is effective and sufficient to
transfer, for the benefit of the Certificate Owners,
the Corporation' s right (i) to receive and collect
Rental Payments, (ii) to receive and collect proceeds
of and insurance on the Project, and (iii) to enforce
payment of amounts due under the Project Lease upon
default by the District, and such transfer is
perfected against and is not subject to the claims of
any person claiming by or through the Corporation or
of present or future creditors of the Corporation;
( 10 ) a certificate, dated the date of Closing,
signed by a duly authorized official of the Trustee
and the Escrow Agent, satisfactory in form and
substance to the Underwriter, to the effect that:
(a) the Trustee is a national bank organized and
existing under and by virtue of the laws of the United
States, having the full power and being qualified to
enter into and perform its duties under the Trust
Agreement, the Assignment Agreement and the Escrow
Agreement and to execute and deliver the Certificates
to the Underwriter; (b) the Trustee and the Escrow
Agent are duly authorized to enter into the Trust
Agreement, the Assignment Agreement and the Escrow
Agreement and to execute and deliver the Certificates
to the Underwriter pursuant to the Trust Agreement;
(c) when delivered to and paid for by the Underwriter
at the Closing, the Certificates will have been duly
executed and delivered by the Trustee; (d) the
execution and delivery of the Financing Documents and
compliance with the provisions on the Trustee ' s part
contained therein, will not conflict with or
constitute a breach of or default under any law,
administrative regulation, judgment, decree, loan
agreement, indenture, bond, note, resolution,
agreement or other instrument to which the Trustee is
a party or is otherwise subject (except that no
representation, warranty or agreement is made with
respect to any federal or state securities or blue sky
laws or regulations) , nor will any such execution,
15 .
LA2/BAA:1111-07/08/93
delivery, adoption or compliance result in the
creation or imposition of any lien, charge or other
security interest or encumbrance of any nature
whatsoever upon any of the properties or assets held
by the Trustee or the Escrow Agent pursuant to the
lien created by the Trust Agreement under the terms of
any such law, administrative regulation, judgment,
decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument, except as
provided by the Trust Agreement; (e) neither the
Trustee nor the Escrow Agent has been served with any
action,
suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, governmental
agency, public board or body, nor is any such action
or other proceeding threatened against the Trustee or
the Escrow Agent, as such but not in its individual
capacity, affecting the existence of the Trustee or
the Escrow Agent, or the titles of its officers to
their respective offices or seeking to prohibit,
restrain or enjoin the execution and delivery of the
Certificates or the collection of taxes to be applied
to pay the principal, premium, if any, and interest
with respect to the Certificates, or the pledge
thereof, or in any way contesting or affecting the
validity or enforceability of the Financing Documents ,
or contesting the powers of the Trustee or its
authority to enter into, adopt or perform its
obligations under any of the foregoing, wherein an
unfavorable decision, ruling or finding would
materially adversely affect the validity or
enforceability of the Financing Documents; and
( f) subject to the provisions of the Trust Agreement
and applicable law, the Trustee or the Escrow Agent
will apply the proceeds from the Certificates to the
purposes specified in the Trust Agreement;
( 11) Two copies of the official Statement,
executed on behalf of the District by an authorized
representative of the District;
( 12 ) Two certified copies of the general
resolutions of the Trustee and the Escrow Agent,
respectively, authorizing the execution and delivery
of the Legal Documents to which the Trustee or Escrow
Agent are a party;
( 13) Two certified copies of the Resolutions of
the District;
II
LA2/BAA:1111-07/08/93 16 .
( 14) Two certified copies of the resolutions of
the Corporation authorizing the execution and delivery
of the Legal Documents to which the Corporation is a
party;
( 15) Evidence that any ratings described in the
official Statement are in full force and effect as of
the Closing Date;
( 16 ) A verification report prepared by Ernst &—
Young, Tuscon, Arizona, with respect to the
sufficiency of the securities and funds deposited
under the Escrow Agreement to pay the principal and
premium of and interest on the Prior Certificates to
be advance refunded on regularly scheduled principal
and interest payment dates and the date of redemption;
( 17 ) Two copies of the title policies on the real
property described in Exhibit A to the Project Lease;
and
( 18) Such additional legal opinions,
certificates, proceedings, instruments, title
insurance, other insurance policies or evidences
thereof and other documents as the Underwriter,
Underwriter' s Counsel or Special Counsel may
reasonably request to evidence the truth and accuracy,
as of the date hereof and as of the Closing Date, of
the representations of the District and the
Corporation herein and of the statements and
information contained in the official Statement, and
the due performance or satisfaction by the Trustee,
the District and the Corporation at or prior to the
Closing of all agreements then to be performed and all
conditions then to be satisfied by any of them in
connection with the transactions contemplated hereby
and by the Legal Documents .
If the District, the Corporation, the Trustee or the Escrow
Agent shall be unable to satisfy the conditions to the
Underwriter' s obligations contained in this Purchase Contract
or if the Underwriter ' s obligations shall be terminated for any
reason permitted ' herein, all obligations of the Underwriter
hereunder may be terminated by the Underwriter at, or at any
time prior • to, the Closing Date by written notice to the
Trustee, the Escrow Agent, the Corporation and the District and
neither the Underwriter nor the District or Corporation shall
have any further obligations hereunder. In the event that the
Underwriter fails (other than for a reason permitted by this
Purchase Contract) to accept and pay for the Certificates at
17 .
LA2/BAA:1111-07/08/93
the Closing, the amount of one percent ( 1%) of the aggregate
principal amount of the Certificates shall be payable by as and
for full liquidated damages for such failure and for any and
all defaults hereunder on the part of the Underwriter and the
acceptance of such amount shall constitute a full release and
discharge of all claims and rights of the District or
Corporation against the Underwriter.
4. Expenses .
All expenses and costs incident to the authorization,
execution, delivery and sale of the Certificates to the
Underwriter, including the costs of printing of the
Certificates, the Preliminary Official Statement, the Official
Statement, the cost of duplicating the Legal Documents, word
processing fees of the Underwriter' s Counsel in connection with
the preparation and printing of the Preliminary Official
Statement, Official Statement and Escrow Agreement, or any
supplements thereto, the fees for obtaining CUSIP numbers,
expenses relating to the qualification or sale of the
Certificates under any state blue sky law, the fees of
accountants, consultants and rating agencies, the initial fees
of the Trustee and the Escrow Agent and their counsel in
connection with the execution and delivery of the Certificates
and the fees and expenses of Special Counsel shall be paid from
the proceeds of the Certificates . In the event that the
Certificates for any reason are not executed and delivered, or
to the extent proceeds of the Certificates 4re insufficient or
unavailable therefor, any fees, costs and expenses owed by the
District to the Trustee, which otherwise would have been paid
from the proceeds of the Certificates, shall be paid by the
District.
All out-of-pocket expenses of the Underwriter, including
traveling and other expenses, including those associated with
the California Debt Advisory Commission fee and the fees and
expenses of Underwriter' s Counsel (except as otherwise provided
above) , shall be paid by the Underwriter.
5. Obligation to ProvideAUpdated Information.
After the Closing, the District will (a) not participate in
the issuance of any amendment of or supplement to the Official
Statement to which, after being furnished with a copy, the
Underwriter shall reasonably object in writing or which shall
be disapproved by Special Counsel and (b) for so long as the
Underwriter is obligated by Rule 15c2-12 to deliver final
Official Statements to prospective purchasers if any event
relating to or affecting the District or the Project shall
occur as a result of which it is necessary, in the opinion of
18 .
LA2/BAA:1111-07/08/93
counsel for the Underwriter, to amend or supplement the
Official Statement in order to make the Official Statement not
misleading in the light of the circumstances existing at the
time it is delivered to a prospective purchaser, forthwith
prepare and furnish to the Underwriter (at the expense of the
District for 90 days from the date of Closing, and thereafter
at the expense of the Underwriter) a reasonable number of
copies of an amendment of or supplement to the Official
Statement ( in form and substance satisfactory to counsel for
the Underwriter) which will amend or supplement the Official
Statement so that it will not contain an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances existing at the time the official Statement is
delivered to a prospective purchaser, not misleading. For the
purposes of this subsection, the District will furnish such
information with respect to itself as the Underwriter may from
time to time reasonably request.
6 . Notices .
Any notice or other communication to be given to the
District under this Purchase Contract may be given by
delivering the same in writing in care of the District at the
address set forth below; and any notice or other communication
to be given to the Underwriter may be given by delivering the
same in writing to the Underwriter at the following address :
District: Midpeninsula Regional Open Space District
333 Distel Circle
Los Altos, California 94022
Underwriter: Kidder, Peabody & Co.
Government Finance Department
555 California Street, Suite 3200
San Francisco, California 94104
7 . Survival of Representations and Warranties .
The representations and warranties of the District set
forth in or made pursuant to this Purchase Contract shall not
be deemed to have been discharged, satisfied or otherwise
rendered void by reason of the Closing or termination of this
Purchase Contract and regardless of any investigations or
statements as to the results thereof made by or on behalf of
the Underwriter and regardless of delivery of and payment for
the Certificates .
19 .
LA2/BAA:1111-07/08/93
8. Ef
fective.ve.
This Purchase Contract shall become effective and binding
upon the respective parties hereto upon the execution of the
acceptance hereof by the duly authorized officer of the
District and shall be valid and enforceable as of the time of
such acceptance.
Very truly yours,
KIDDER, PEABODY & CO.
By:
ACCEPTED:
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
By:
L. Craig Britton
Acting General Manager
20 .
LA2/BAA:1111-07/08/93
[Draft of 30 June 19931
I
AMENDED AND RESTATED SITE LEASE
by and between the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT_
and the
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION
FINANCE CORPORATION
RELATING TO THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
1993 OPEN SPACE PROJECT
Executed and Entered Into as of August 1, 1993
i
SF2-2S33".4(2S17932.1 to 2S17932.2 redlined)
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1. Leased Premises . . . . . . . . . . . . . . . . 2
SECTION 2. Term . . . . . . . . . . . . . . . . . . . . .
SECTION 3 . Rental . . . . . . . . . . . . . . . . . . . . 3
SECTION 4 . Purpose . . . . . . . . . . . . . . . . . . . . 3
SECTION 5 . Owner in Fee . . . . . . . . . . . . . . . . . 3
SECTION 6. Assignments and Subleases . . . . . . . . . . . 3
SECTION 7. Right of Entry . . . . . . . . . . . . . . . . 3
SECTION 8 . Termination . . . . . . . . . . . . . . . . . . 3
SECTION 9 . Default . . . . . . . . . . . . . . . . . . . . 3
SECTION 10 . Quiet Enjoyment . . . . . . . : . . . . . .
SECTION 11. Waiver of Personal Liability . . . . . . . . . 4
SECTION 12 . Eminent Domain . . . . . . . . . . . . . . . . 4
SECTION 13 . Amendment . . . . . . . . . . . . . . . . . . 4
SECTION 14. Partial Invalidity . . . . . . . . . . . . . . 4
SECTION 15 . Notices . . . . . . . . . . . . . . . . . . .
5
SECTION 16. California Law . . . . . . . . . . . . . . . . 5
SECTION 17. Section Headings . . . . . . . . . . . . . . . 5
SECTION 18. Severability . . . . .. . . . . . . . . . . . . 5
SECTION 19 . Execution
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . 6
EXHIBITA . . . . . . . . . . . . . . . . . . . . . . .
SF2-2M399.4(2S17932.1 to 2517932.2 re4fined)
AMENDED AND RESTATED SITE LEASE
This Amended and Restated Site Lease (the "Site
Lease") , executed and entered into as of August 1, 1993, by and
between the Midpeninsula Regional Open Space District, a regional
open space district duly organized and existing under and by
virtue of the laws of the State of California (the "District") ,
and the California Special Districts Association Finance
Corporation, a nonprofit corporation duly organized and existing
under and by virtue of the laws of the State of California (the
"Corporation") ;
WITNESSETH:
WHEREAS, the District and the Corporation executed and
entered into a Site Lease (the "1990 Site Lease") as of
September 1, 1990, twhereby the District leased certain real
property described therein to the Corporation, and the
Corporation leased such real property from the District, all in
the manner described therein, and the Corporation and the
District thereafter executed and entered into a Project Lease
(the "1990 Project Lease") as of September 1, 1990, i. when gh the
Corporation leased such real property to the Distric , and the
District leased such real property from the Corporation, all in
the manner described therein, in connection with the execution
and delivery of certificates of participatio2 (the "1990
Certificates") in the base rental payments due under the 1990
Project Lease; and
WHEREAS, the Corporation assigned its rights to receive
the base rental payments due under the 1990 Project Lease to
Seattle-First National Bank, as trustee (the "Trustee") , and in
consideration of such assignment the Trustee executed and
delivered the 1990 Certificates; and
WHEREAS, the Corporation and the District have
determined that it would be in the best interest of the District
and the residents of the District to refund the base rental
payments due under the 1990 Project Lease, as such rental
payments are evidenced and represented by the 1990 Certificates..
and tonrovide for the accruisition of additional o2en siDace for
the District; and
WHEREAS.- in order to implement such refunding and such
acquisition, the Corporation and the District have determined to
execute and enter into anAmended and Restated Protect Lease (the
"Project Lease") as of August 1, 1993, whereby the Corporation
will lease certain real property described therein (the
"Project") to the District, and the District will lease the
Project from the Corporation, and the Corporation will aSKII to
refund the base rentalpayments due under the 1990 Project Lease
hereinafter defined and to provide for the acquisition of
SP2-2S3399.4(2S17932.1 to 2S17932.2 rtdlined)
additional open space for the District, and the District proposes
to enter into the Site—Lease with the Corporation as a material
consideration for the Corporation' s — eement to proceed with
such refunding and such acquisition by leasing theProject to the
District; and
WHEREAS, in order to t proceed with the Project Lease.
the Corporation and the District have determined to amend and
restate the 1990 Site Lease by the Site Lease, and the
Corporation has determined to assign the base rental payments due
under the Project Lease to the Trustee so that the Trustee can
issue and deliver t certificates of participation in such base
rental payments (twe "Certificates") and the Corporation and the
District can use the proceeds thereof for such refunding and such
acMaisition; and
WHEREAS, the proceeds of the sale of the Certificates
will be deposited with the Trustee to be held in trust by the
Trustee and applied solely to the refunding of the 1990
Certificates and the acquisition of such open space and the
payment of the expenses incidental thereto; and
WHEREAS, the parties under the 1990 Site Lease desire
to incorporate their obligations as above described in the Site
Lease; and ...
WHEREAS, the District and the Corporation certify that
all acts, conditions and things required by law to exist, to have
happened and to have been performed precedent to and in
connection with the execution and entering into of the Site Lease
do exist, have happened and have been performed in regular and
due time, form and manner as required by law, and the parties
hereto are now duly authorized to amend and restate the 1-20 Site
Lease and to, execute and enter into the Site Lease;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE
THAT THE SITE LEASE EXECUTED AND ENTERED INTO AS OF SEPTEMBER 1,
1990, IS AMENDED AND RESTATED AS FOLLOWS:
SECTION 1. Leased Premises. The District hereby
leases to the Corporation and the Corporation hereby hires from
the District, on the terms and conditions hereinafter set forth,
those certain parcels of real property situated in the State of
California, Counties of San Mateo and Santa Clara, more
particularly described in Exhibit A attached hereto and made a
part hereof (the "Site" ) .
SECTION 2 . Term. The term hereof shall commence on
August 1, 1993, or the date the Site Lease is recorded, whichever
is later, and shall end on August 1, 2020, unless such term is
sooner terminated as hereinafter provided. If prior to August 1,
2020, all certificates of participation in the base rental
SP2-=399.4(2S17932.1 to 2S17932.2 rt4fined) 2
i
payments allocable to the Project as provided under and pursuant
to the Project Lease shall have been paid, or provision therefor
made, the term hereof shall end ten (10) days thereafter or ten
(10) days after written notice by the District to the Corporation
in accordance with Section 15 hereof, whichever is earlier.
SECTION 3 . Rental . The Corporation shall pay to the
District as and for the total rental payable hereunder the sum of
One Dollar ($1. 00) on or before the date of commencement hereof.
SECTION 4. Purpose. The Corporation shall use the
Site solely for the purpose of leasing the Project to the
District pursuant to the Project Lease; provided, that in the
eve
nt of default by the District under the Project Lease the
Corporation ma exer i exercise the
e remedies provided Y es o ided in the Project
Lease.
P 7
SECTION 5 . Owner in Fee. The District covenants that
it is the owner in fee of the Site.
SECTION 6. Assignments and Subleases. Unless the
District shall be in default under the Project Lease, the
Corporation may not, without the prior written consent of the
District, assign its rights hereunder or sublet the Site except
to the Trustee.
SECTION 7. Right of Entry. The District reserves the
right for any of its duly authorized represeptatives to enter
upon the Site at any reasonable time to inspect the same or to
make any repairs, improvements or changes necessary for the
preservation thereof.
SECTION 8 . Termination. The Corporation agrees, upon
the termination hereof, to quit and surrender the Site in the
same good order and condition as the same was in at the time of
commencement of the term hereunder, reasonable wear and tear
excepted, and agrees that any permanent improvements existing
upon the Site at the time of the termination hereof shall remain
thereon and title thereto shall vest in the District.
SECTION 9 . Default. In the event the Corporation
shall be in default in the performance of any obligation on its
part to be performed under the terms hereof, which default
continues for thirty (30) days following notice and demand for
correction thereof to the Corporation, the District may exercise
any and all remedies granted by law, except that no merger of the
Site Lease and of the Project Lease shall be deemed to occur as a
result thereof; provided, that the District shall have no power
to terminate the Site Lease by reason of any default on the part
of the Corporation if such termination would affect or impair any
assignment of the Project Lease then in effect between the
Corporation and the Trustee.
SF2-20399.4(2517932.1 to 2S17932.2 mdlined) 3
SECTION 10. Quiet Enjoyment. The Corporation at all
times during the term hereof shall peaceably and quietly have,
hold and enjoy the Site.
SECTION 11. Waiver of Personal Liability. All
liabilities hereunder on the part of the Corporation shall be
solely corporate liabilities of the Corporation, and the District
hereby releases each and every director, officer and employee of
the Corporation of and from any personal or individual liability
hereunder. No director, officer or employee of the Corporation
shall at any time or under any circumstances be individually or
personally liable hereunder for anything done or omitted to be
done by the Corporation hereunder.
SECTION 12 . Eminent Domain. In the event the whole or
any portion of the Site or the improvements thereon (including
the Project) is taken by eminent domain proceedings, the interest
of the Corporation shall be recognized and is hereby determined
III to be the amount of the then unpaid principal components of base
rental for the Project due under the Project Lease, including all
accrued interest thereon, and the amount of the unpaid additional
rental due under the Project Lease, and the balance of the award,
if any, shall be paid to the District.
SECTION 13 . Amendment. The Site Lease may be amended
by the parties hereto at any time to substitute another parcel or
parcels of real property for any one or more of the parcels of
real property constituting the Site, as long-as the substituted
parcel or parcels of real property are used for open space for
the District; 'provided, that before any such substitution is
approved by the District it shall have first prepared and filed
with the Corporation and the Trustee an M.A.I. appraisal by an
independent real estate appraiser that the parcel or parcels of
real property that are proposed to be so substituted have a fair
market value at least equal to the parcel or parcels of real
property that are proposed to be released from the terms of the
Site Lease by virtue of such substitution, except that if the
parcel or parcels of real property that are proposed to be so
substituted have been purchased by the District within twelve
(12) months of the amendment of the Site Lease, the District may
use the purchase price thereof in determining the fair market
value thereof; and provided further, that any parcel or parcels
of real property that are proposed to be so substituted shall
have no prior liens against them that would impair their use for
the purpose intended by the District and shall have a useful life
at least as long as the parcel or parcels being substituted out
of the Site Lease. Following any such substitution, the
Corporation shall execute appropriate quitclaim deeds to the
District for the parcel or parcels so substituted out of the Site
Lease.
SECTION 14 . Partial Invalidity. If any one or more of
the agreements, conditions, covenants or terms hereof shall to
any extent be declared invalid, unenforceable, void or voidable
M-WMA(2S17932.1 to 2SI7932.2 redlined) 4
r
for any reason whatsoever by a court of competent jurisdiction,
the finding or order or decree of which becomes final, none of
the remaining agreements, conditions, covenants or terms hereof
shall be affected thereby, and each provision of the Site Lease
shall be valid and enforceable to the fullest extent permitted by
law.
SECTION 15 . Notices. All approvals, authorizations,
consents, demands, designations, notices, offers, requests,
statements or other communications hereunder by either party to
the other shall be in writing and shall be sufficiently given and
served upon the other party if delivered personally or if mailed
by United States registered or certified mail, return receipt
requested, postage prepaid, and, if to the District, addressed to
the Midpeninsula Regional Open Space District, 330 Distel Circle,
Los Altos, California 94022, or, if to the Corporation, addressed
to the California Special Districts Association Finance
Corporation, c/o McMurchie, Foley, Brandenburger, Weill &
Reeling, 1030 15th Street, Suite 300, Sacramento, California
95814, with a copy to the Trustee, or to such other addresses
as the respective parties may from time to time designate by
notice in writing.
SECTION 16. California Law. The Site Lease shall be
governed by and construed and interpreted in accordance with the
laws of the State of California.
SECTION 17. Section Headings. All section headings
contained herein are for convenience of reference only and are
not intended to define or limit the scope of any provision
hereof.
SECTION 18 . Severability. If any agreement,
condition, covenant or term hereof or any application hereof
should
be held
by a court of competent jurisdiction to be
invalid, void or unenforceable, in whole or in part, all
agreements, conditions, covenants or terms hereof and all
applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
i
i
SECTION 19 . Execution. The Site Lease may be executed
and entered into in several counterparts, each of which shall be
deemed an original, and all of which shall constitute but one and
the same instrument.
l
i
SF2-233399.4{2SIM2.1 to 2517932.2 mdlined} 5
IN WITNESS WHEREOF, the parties hereto have executed
and entered into the Site Lease by their officers thereunto duly
authorized as of the day and year first above written.
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
B
(SEAL) President of the Board of Directors
Attest:
Secretary of the Board of Directors
CALIFORNIA SPECIAL DISTRICTS
ASSOCIATION FINANCE CORPORATION
By
President
(SEAL)
Attest:
Secretary
M-=3"A(2517932.1 to 2517932.2 mdfinod) 6
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
All those certain parcels of real property situated in
the State of California,
of San Mateo and Santa Clara,
more particularly described below•
Imo- COME]
SF2-2M399.4(2S17932.1 to 2S17932.2 rcdfinM) A-1
[Draft of 30 June 19931
AMENDED AND RESTATED PROJECT LEASE
by and between the
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION
FINANCE CORPORATION
and the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
FOR THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
1993 OPEN SPACE PROJECT
Executed and Entered Into as of August 1, 1993
SF2-2S3399.4{2S17930.1 to 2S17930.2 rcdlincd}
TABLE OF CONTENTS
Pacre
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . I
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
SECTION 1. 01. Definitions . . . . . . . . . . . . . . . . 2
ARTICLE II
THE PROJECT
SECTION 2 . 01. Lease of the Project . . . . . . . . . . . 7
SECTION 2 . 02 . Quiet Enjoyment . . . . . . . . . . . . . . ....
SECTION 2 . 03 . Right of Entry and Inspection . . . . . . 7
SECTION 2 .04. Prohibition Against Encumbrance or Sale * 7
SECTION 2 . 05 . Liens . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
TERM OF THE PROJECT LEASE
SECTION 3 .01. Tenn of the Project Lease . . . . . . . . . 8
ARTICLE IV
USE OF PROCEEDS
SECTION 4 . 01.,. Use of Proceeds . . . . . . . . . . . . . . 8
ARTICLE V
RENTAL PAYMENTS
SECTION 5 . 01. Rental Payments . . . . . . . . . . . . . . 8
(a) Base Rental Payments . . . . . . . . . 8
(b) Additional Rental Payments . . . . . . 9
SECTION 5. 02 . Annual Budgets; Reporting Requirements . . . 10
SECTION 5. 03 . Application of Rental Payments . . . . . . . 10
SECTION 5 . 04. Rental Abatement . . . . . . . . . . . . . . 11
SECTION 5 .05 . Prepayment of Base Rental Payments . . . . . 11
SECTION 5.06. Obligation ,to Make Rental Payments . . . . . 12
SECTION 5 .07. Tax Covenants . . . . . . . . . . . . . . . 12
ARTICLE VI
TITLE TO THE PROJECT
SECTION 6.01. Title to the Project . . . . . . . . . . . . 13
ARTICLE VII
MAINTENANCE; TAXES AND OTHER CHARGES; INSURANCE
SECTION 7.01. Maintenance of the Project by the District 13
SF2-2S3399.4(2S17930.1 to 25I7930.2 mdfined) i
Page
SECTION 7. 02 . Taxes, Governmental Charges and Utility
Charges . . . . . . . . . . . . . . . . . 13
SECTION 7. 03 . Insurance . . . . . . . . . . . . . . . . . 14
SECTION
C ION 7. 04 . Adva
nces 15
ARTICLE VIII
CONDEMNATION
SEC
TION 8 . 0
1. Condemnation 16
ARTICLE IX
DISCLAIMER OF WARRANTIES;': USE OF THE PROJECT;
ENVIRONMENTAL MATTERS
SECTION 9 . 01. Disclaimer of Warranties . . . . . . . . . . 16
SECTION 2 . 02 . Use of the Project . . . . . . . . . . ^ 16
SECTION ' .03 . Environmental Matters . . . . . . . . . . 17
ARTICLE X
ASSIGNMENT AND INDEMNIFICATION
rxw
SECTION 10.01. Assignment by Corporation >::::; 17
SECTION 10. 02 . Assignment by Lessee . . . . . . . . . . . 8
SECTION 10 .03 . Indemnification . . . . . . . . . . . . . . 18
ARTICLE XI =
DEFAULT
SECTION 11. 01. Default . . . . . . . . . . . . 18
ARTICLE XII
MISCELLANEOUS
SECTION 12 . 01. Notices
SECTION 12 . 02 .
. 0 Binding Effect . . . . . . . . . . 20
SECTION 12 .03 . Trustee A Third Party Beneficiary . . . . . 20
SECTION 12 . 04. Net Lease . . . . . . . . . . . . . . . . . 20
SECTION 12 . 05 . Amendments . . . . . . . . . . . . . . . 20
SECTION 12 . 06. Partial Invalidity . . . . . . . . . . . 21
SECTION 12 .07. California Law . . . . . . . . . . . . . .w 21
SECTION 12 . 08. Section Headings . . . . . . . . . . . . . 21
SECTION 12 . 09 . Severability . . . . . . . . . . . . . . . Y` 22
SECTION 12 .10 . Execution in Counterparts . . . . . . . . . 22
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C . . . . . . . . . . . . . . . . . . . . . . . C-1
l
SF2-=399.4(2S17930.1 to 2S17930.2 redlined) i i
AMENDED AND RESTATED PROJECT LEASE
This Amended and Restated Project Lease (the "Project
Lease") , executed and entered into as of August 1, 1993, by and
between the California Special Districts Association Finance
Corporation, a nonprofit corporation duly organized and existing
under and by virtue of the laws of the State of California (the
"Corporation") , and the Midpeninsula Regional Open Space
District, a regional open space district duly organized and
existing under and by virtue of the laws of the State of
California (the "District") ;
W I T N E S S E T H:
WHEREAS, the Corporation and the District executed and
entered into a Project Lease (the 111990 Project Lease") as of
September 1, 1990, whereby the Corporation leased certain
real property described therein to the Distric.t, and the District
leased such real property from the Corporation, all in the manner
described therein, in connection with the execution and delivery
of certificates of participation (the 111990 Certificates") in the
base rental payments due under the 1990 Project Lease; and
WHEREAS, the Corporation assigned its rights to receive
the base rental payments due under the 1990 Project Lease to
Seattle-First National Bank, as trustee (the "Trustee") , and in
consideration of such assignment the Trusteesexecuted and
delivered the 1990 Certificates; and
WHEREAS, the Corporation and the District have
determined that it would be in the best interest of the District
and the residents of the District to refund the base rental
payments due under the 1990 Pro ect Lease, as such rental
payments are evidenced and represented by the 1990 CertificatesA.
and to provide for the acquisition of additional oven space for
the District; and
WHEREAS, in order to implement such refunding and such
acquisition, the Corporation and the District have determined to
execute and enter into the Project Lease whereby the'n'M
Corporation will lease. certain ,real property described therein
(the "Protect") to the District, and the District will lease the
Protect from the Corporation, and the Corporation : will agree to
refund the base rental payments due under the 199'0 Project
Lease and to provide for the acquisition of additional oven space
for the District, and the Corporation has determined to assign
the base rental paymentsdue under the Project Lease to the
Trustee so that the Trustee can issue and deliver certificates
of participation in such base rental payments (the.`."
"Certificates") and the Corporation and the District can use the
proceeds thereof for such refunding and such acquisition; and
SF2-2S3399.4(2S17930.1 to 2S17930.2 mdfincd)
WHEREAS, the proceeds of the sale of the Certificates
will be deposited with the Trustee to be held in trust by the
Trustee and applied solely to the refunding of the 1990
Certificates and the ag-cj:uisition of such open space and the
payment of the expenses incidental thereto; and
WHEREAS, the parties under the 1990 Pro ect Lease ..
desire to incorporate their obligations as above described in
the Project Lease; and
WHEREAS, the Corporation and the District hereby
certify that all acts, conditions and things required by law to
exist, to have happened and to have been performed precedent to
and in connection with the execution and entering into of the
Project Lease do exist, have happened and have been performed in
regular and due time, form and manner as required by law, and the
parties hereto are now duly authorized to amend and restate the
1990 Pro P iect Lease and execute and enter into the Project Lease;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE
MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER
VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE THAT
THE PROJECT LEASE EXECUTED AND ENTERED INTO AS OF SEPTEMBER 1,
1990, IS AMENDED AND RESTATED AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1. 01. Definitions. Unless the context
otherwise requires, the terms defined in this section shall for
all purposes hereof and of any amendment hereof have the meanings
defined herein, the following definitions to be equally
applicable to both the singular and plural forms of any of the
terms defined herein:
Applicable Environmental Laws.
The term "Applicable Environmental Laws" means and
shall include, but shall not be limited to, CERCLA, RCRA, the
Federal Water Pollution Control Act, 33 USC Section 1251 et sea. ,
the Clean Air Act, 42 USC Section 7401 et sea. , HWCL, HSAA, the
Porter-Cologne Act, the Air Resources Act, Cal. Health & Safety
Code Section 3900 et sea. , the Safe Drinking Water & Toxic
Enforcement Act, Cal . Health & Safety Code Section 25249 .5, and
the regulations thereunder, and any other local, state and/or
federal laws or regulations, whether currently in existence or
hereafter enacted, that govern
(i) the existence, cleanup and/or remedy of
contamination on property;
3F2-2S3399.4(2S17930.1 to 2S17930.2 mdlined) 2
(ii) the protection of the environment from spilled,
deposited or otherwise emplaced contamination;
(iii) the control of hazardous wastes; or
(iv) the use, generation, transport, treatment, removal
or recovery of Hazardous Substances, including building
materials.
Assignment Agreement
The term "Assignment Agreement" means that certain
Assignment Agreement executed and entered into as of August 1,
1993, by and between the Corporation and the Trustee.
Business Day
The term "Business Day" means any day (other than a
Saturday or Sunday) on which the corporate trust department of
the Trustee is open for business at its corporate trust office in
Seattle, Washington.
Certificates
The term "Certificates" means the ft certificates of
participation executed and delivered by the :Trustee under and
pursuant to the Trust Agreement to be used as the source of funds
for the payment of the costs of the .1. refundinc f of the ^ 1990
Certificates and the acquisition of 'such omen space and the
payment of the expenses incidental thereto.
1990 Certificates
The term 111990 Certificates" means the Midpeninsula
Regional Open Space District 1990 Certificates of Participation
(Administration Building and Open Space Project) executed and
delivered by the Trustee under and pursuant to the 1990 Trust
Agreement.
Code
The term "Code" means the Internal Revenue Code of
1986, as amended, and the regulations of the United States
Department of the Treasury issued thereunder, and in this regard
reference to any particular section of the Code shall include
reference to all successor sections of the Code.
Corporation
The term "Corporation" means the California Special
Districts Association Finance Corporation, a nonprofit
corporation duly organized and existing under and by virtue of
the laws of the State of California.
SP2-2M399.4(25I7930.1 to 2S17930.2 rtdfined) 3
i
Defeased Base Rental Payments
The term "Defeased Base Rental Payments" means the
principal components of base rental payments due under the 1990
Project Lease payable on and after September 1, 1994, to and
includingSeptember p 1 1999, and the interest components related
thereto, payable from the investment of money initially deposited
in the Refunding Fund.
District
The term "District" means the Midpeninsula Regional
Open Space District, a regional open space district duly
organized and existing under and by virtue of the laws of the
State of California.
Event of Default
The term "Event of Default" means an event described as
such in Section 11. 01.
Hazardous Substance
The term "Hazardous Substance" means any substance
which shall, at any time, be listed as "hazardous" or "toxic" or
in the regulations implementing the Comprehensive Environmental
Response, Compensation and Liability Act ( "CERCLA") , 42 USC
Section 9601 et sea. , the Resource Conservation and Recovery Act
( "RCRA") , 42 USC Section 6901 et sea. , the California Hazardous
Waste Control Law ( "HWCL") , Cal. Health and Safety Code Section
25100 et sea. , the Hazardous Substance Account Act ("HSAA") , Cal.
Health & Safety Code Section 25300 et sea. , or the Porter-Cologne
Water Quality Control Act (the "Porter-Cologne Act") , Cal. Water
Code Section 1300 et sea. , or which has been or shall be
determined at any time by any agency or court to be a hazardous
or toxic substance regulated under Applicable Environmental Laws,
and shall also include, without limitation, raw materials,
building components, the products of any manufacturing or other
activities on the subject property, wastes, petroleum, and
source, special nuclear or by-product material as defined by the
Atomic Energy Act of 1954, as amended (42 USC Section 3011, et
sea. , as amended) .
Insurance Consultant
The term "Insurance Consultant" means an individual or
firm employed by the District as an independent insurance
consultant, experienced in the field of risk management.
Interest Payment Date
The term "Interest Payment Date" means Mar h 1 and
September 1 of each year, commencing on March 1.. 1994.
SF2-2S3399.4(2S17930.1to 2S17930.2 redlined) 4
Opinion of Counsel
The term "Opinion of Counsel" means a written opinion
of counsel of recognized national standing in the field of law
relating to municipal bonds, appointed and paid by the District.
Owner
The term "Owner" means the registered owner of any of
the Certificates.
Permitted Encumbrances
The term "Permitted Encumbrances" means, as of any
particular time: (i) liens for general ad valorem taxes and
assessments, if any, not then delinquent, or which the District
may, pursuant to Section 7. 02, permit to remain unpaid; (ii) the
Assignment Agreement; (iii) the Project Lease; (iv) any right or
claim of any mechanic, laborer, materialman, supplier or vendor
not filed or perfected in the manner prescribed by law;
(v) easements, rights of way, mineral rights, drilling rights and
other rights, reservations, covenants, conditions or restrictions
which exist of record as of the date of initial delivery of the
Certificates and which an independent third party certifies in
writing will not materially impair the use of the Project for the
purpose intended by the District; and (vi) easements, rights of
way, mineral rights, drilling rights and other rights,
reservations, covenants, conditions or restrictions established
following the date of recordation of the Project Lease and to
which the Corporation, the District and the Trustee consent in
writing.
Principal Payment Date
The term "Principal Payment Date" means geRtember 1
of each year, commencing on September 1, 1994.
Prolec
The term "Project" means the real property comprising
the Site constituting open space for the District that is to be
leased hereunder by the Corporation to the District.
Project Lease
The term "Project Lease" means this Amended and
Restated Project Lease executed and entered into as of August 1,
1993, by and between the Corporation and the District, as
originally executed and entered into and as it may from time to
time be amended in accordance herewith.
SF2-2S3399.4(2SI7930.1 to 2S17930.2 rtdtined) 5
1990 Project Lease
The term 111990 Project Lease" means that certain
Project Lease executed and entered into as of September 1, 1990,
by and between the Corporation and the County.
Refunding Fund
The term "Refunding Fund" means the fund by that name
established pursuant to the Trust Agreement.
Reserve Fund
The term "Reserve Fund" means the fund referred to by
that name maintained pursuant to Section 5. 03 of the Trust
Agreement.
Site
The term "Site" means those certain parcels of real
property situated in the State of California Countiep gf San
Mateo and Santa Clara, more raarticularly described in Exhibit A
attached hereto and made a part hereof::;:;'.
Trust Agreement
The term "Trust Agreement" means that certain Trust
Agreement to be executed and entered into as-of August 1, 1993,
by and among the Trustee, the Corporation and the District, as
originally executed and entered into and as it may from time to
time be amended or supplemented in accordance therewith, under
and pursuant to which the Trustee has executed and delivered the
Certificates.
1990 Trust Agreement
The term 111990 Trust Agreement" means that certain
Trust Agreement executed and entered into as of September 1,
1990, by and among the Trustee, the Corporation and the District
under and pursuant to which the Trustee executed and delivered
the 1990 Certificates.
Trustee
The term "Trustee" means Seattle-First National Bank, a
national banking association duly organized and existing under
and by virtue of the laws of the United States of America and
having a corporate trust office in Seattle, Washington, and its
successors or assigns, or any other bank or trust company which
may at any time be substituted in its place as provided in the
Trust Agreement.
M-2s3MA(2S17930.1 to 2S17930.2 mdhned) 6
ARTICLE II
THE PROJECT
SECTION 2 . 01. as of the Project. The Corporation
hereby leases the Project to the District, and the District
hereby rents and hires the Project from the Corporation, on the
conditions and terms hereinafter set forth. The District hereby
agrees and covenants that during the term hereof, except as
hereinafter provided, it will use the Project consistent with all
restrictions on the use thereof for public purposes so as to
afford the public the benefits contemplated hereby and so as to
permit the Corporation to carry out its agreements and covenants
contained herein and in the Trust Agreement, and the District
hereby further agrees and covenants that during the term hereof
it will not abandon or vacate the Project.
SECTION 2 . 02 . Quiet Enjoyment. The parties hereto
mutually covenant that the District, so long as it observes and
performs the agreements, conditions, covenants and terms
contained herein required to be observed or performed by it and
is not in default hereunder, shall at all times during the term
hereof peaceably and quietly have, hold and enjoy the Project
without suit, trouble or hindrance from the Corporation.
SECTION 2 . 03 . Right of Entry and Inspection. The
Corporation shall have the right (but not the duty) to enter the
Project and inspect the Project during reasonable business hours
(and in emergencies at all times) for any purpose connected with
the Corporation' s rights or obligations hereunder and for all
other lawful purposes.
SECTION 2 .04 . Prohibition Against Encumbrance or Sale.
The District and the Corporation will not create or suffer to be
created any mortgage, pledge, lien, charge or encumbrance upon
the Project, or upon any real or personal property essential to
the operation of the Project, except Permitted Encumbrances. The
District and the Corporation will not sell or otherwise dispose
of the Project or any property essential to the proper operation
of the Project.
SECTION 2 .05 . Liens. In the event the District shall
at any time during the term hereof cause any improvements to the
Project to be constructed or materials to be supplied in or upon
or attached to the Project, the District shall pay or cause to be
paid when due all sums of money that may become due or purporting
to be due for any labor, services, materials, supplies or
equipment furnished or alleged to have been furnished to or for
the District in, upon, about or relating to the Project and
shall keep the Project free of any and all liens against the
Project orthe .Corporationls interest therein. In the event any
such lien attaches to or is filed against the Project or the
Corporation' s interest therein, the District shall cause each
such lien to be fully discharged and released at the time the
SF2-2M399.4(2S17930.1 to 2S17930.2 mdlined) 7
performance of any obligation secured by any such lien matures or
becomes due, except that if the District desires to contest any
such lien it may do so. If any such lien shall be reduced to
final judgment and such judgment or any process as may be issued
for the enforcement thereof is not promptly stayed, or if so
stayed and such stay thereafter expires, the District shall
forthwith pay and discharge or cause to be paid and discharged
such judgment. The District shall, to the maximum extent
permitted by law, indemnify and hold the Corporation and its
directors, officers and employees harmless from, and defend each
of them against, any claim, demand, loss, damage, liability or
expense (including attorneys, fees) as a result of any such lien
or claim of lien against the Project or the Corporation's
interest therein.
ARTICLE III
TERM OF THE PROJECT LEASE
SECTION 3 . 01. Term of the Project Lease. The term
hereof shall commence on August 1, 1993, or the date the Project
Lease is recorded, whichever is later, and shall end on
August 31, 2020, unless such term is sooner terminated as
hereinafter provided.
ARTICLE IV
USE OF PROCEEDS
SECTION 4.01.. Use of Proceeds. The parties hereto
agree that the proceeds of the Certificates will be used to
refund the base rental payments due under the 1990 Project Lease
and to acquire o2en space for the District, to fund the Reserve
Fund, to fund a portion of the interest evidenced and represented
by the Certificates and to pay the costs of executing and
delivering the Certificates and the expenses incidental " thereto
ARTICLE V
RENTAL PAYMENTS
SECTION 5 .01. Rental Payments. The District agrees to
pay to the Corporation, without deduction or offset of any kind,
as rental for the use and occupancy of the Project, the following
amounts at the following times:
(a) Base Rental Payments. The District shall pay to
the Corporation as base rental hereunder rental payments with
interest and principal components in accordance with the due
dates set forth in the Base Rental Payment Schedule set forth in
SF2-2S3399.4(2S17930.1 to 2S17930.2 mdlinod) 8
Exhibit B attached hereto and made a part hereof, each of which
such payments shall be payable on the fifteenth (15th) Business
Day of the month immediately preceding its due date, and any
interest or other income with respect thereto accruing prior to
such due date shall belong to the District and shall be returned
by the Corporation to the District; provided, that the ff9,ke_du1e!d
base rental payments are subiect to reduction i manner
providedAgreement.in Section 4. 01 (c) of the Trust U_the The interest
components of the base rental payments payable By the District
hereunder shall be paid by the District as and shall constitute
interest paid on the principal components of the base rental
payments payable by the District hereunder. The payment of base
rental during each rental payment period shall be for the use
and/or occupancy of the Project by the District for the six-month
period ending on the last day of the month in which the base
rental payment for such period is due.
The District shall provide written notice to the
Trustee at least thirty (30) Business Days prior to any Interest
Payment Date upon which the District expects to be unable to
appropriate and pay the base rental payment due on such Interest
Payment Date, informing the Trustee of such inability to
appropriate and pay such rental payment.
(b) Additional Rental Payments. The District shall
pay to the Corporation as additional rental hereunder such
amounts in each year as shall be required by the Corporation for
the payment in full of all costs and expenses incurred by the
Corporation or the Trustee in connection with the execution,
performance or enforcement hereof or any assignment hereof, of
the Trust Agreement, of the ownership of the Project and the
lease of the Project to the District, including but not limited
to payment of all fees, costs and expenses and all administrative
costs of the Corporation in connection with the Project, the
Project Lease, the Assignment Agreement and the Trust Agreement
and all taxes, assessments and governmental charges of any nature
whatsoever hereafter levied or imposed by any governmental
authority against the Corporation, the Trustee or the rentals
and the other payments required to be made by the District
hereunder. Such additional rental shall be billed to the
District by the Corporation from time to time, together with a
statement certifying that the amount so billed has been paid by
the Corporation for one or more of the items above described, or
that such amount is then payable by the Corporation for one or
more of such items, and all amounts so billed shall be due and
payable by the District within thirty (30) days after receipt of
each bill therefor by the District.
Payment of base rental and additional rental for each
rental payment period during the term hereof shall constitute the
total rental for such rental payment period, and shall be paid by
the District in each rental payment period for and in
consideration of the right to the use and occupancy, and the
continued quiet enjoyment, of the Project during the rental
SF2-2S3399.4(2S17930.1 to 2S17930.2 mdlined) 9
payment period for which such rental is paid. The parties hereto
have agreed and determined that the fair rental value is at least
equal to the base rental payments shown in the Base Rental
Payment Schedule set forth in such Exhibit B. In making such
determination, consideration has been given to the costs of the
acquisition of the Project, the other obligations of the
parties here:dhder, the uses and purposes which may be served by
the Project and the benefits therefrom which will accrue to the
District, its residents and the general public.
Each installment of base rental and additional rental
payable hereunder shall be paid in lawful money of the United
States of America to or upon the order of the Corporation. Any
such installment of base rental or additional rental accruing
. hereunder which shall not be paid when due shall bear interest at
the rate of twelve per cent (12t) per annum, or the maximum
interest rate then permitted by law. All such delinquent
installments of base rental and interest thereon shall be
deposited in the Reserve Fund, and all such delinquent
installments of additional rental and interest thereon shall be
paid to or upon the order of the Corporation. Notwithstanding
any dispute between the Corporation and the District, the
District shall make all rental payments when due hereunder
without deduction or offset of any kind and shall not withhold
any rental payments pending the final resolution of such dispute.
(c) Defeased RentalPayments. The Defeased Base
Rental payments set forth in the Defeased Base Rental Payment
Schedule attached as Exhibit C hereto constitute the Defeased
Base Rental Payments, and in consideration of the execution of
the Project Lease, the District shall receive from the proceeds
of the Certificates an amount that when deposited with the
Trustee and invested pursuant to the 1990 Trust Agreement will
produce funds sufficient to pay the Defeased Base Rental Payments
when due t. The District shall remain liable for such Defeased
Base Rent-al Payments, but only out of such moneys or securities
deposited with the Trustee and invested as aforesaid for such
payment. The Defeased Base Rental Payments shall not be subject
to abatement or to the other provisions of Section 8 hereof or to
any termination of the Project Lease but shall be special
obligations of the District limited to the amounts deposited with
the Trustee and invested as aforesaid.
SECTION 5 . 02 . Annual Budgets,• Reporting Requirements.
The District covenants, subject to Section 5 . 06, to take action
as may be necessary to include all such rental payments due
hereunder in its annual budgets and to make the necessary annual
appropriations for all such rental payments. The District will
furnish to the Corporation and the Trustee on July I of each
year a certification that the annual proposed budget of the
District for the fiscal year of the District beginning on such
date contains such necessary annual appropriations.
SF2-2S3399.4(2SI7930.1 to 2SI7930.2 redlined) 10
SECTION 5 . 03 . Application of Rental Payments. All
rental payments received shall be applied first to the interest
components of the base rental due hereunder, then to the
principal components (including any prepayment premium
components) of the base rental due hereunder and thereafter to
all additional rental due hereunder, but no such application of
any payments which are less than the total rental due and owing
shall be deemed a waiver of an Event of Default hereunder.
SECTION 5 . 04 . Rental Abatement. During any period in
which, by reason of I eminent domain ProceedingLs (as described in
Section 8 . 01) there is substantial interference with the use and
possession by the District of any portion of the Project, rental
payments due hereunder with respect to such portion of the
Project shall be abated proportionately by the fractional amount
that the cost of the portion of the Project so condemned bears to
the entire cost of the Project, as calculated by the District and
set forth in writing to the Corporation and the Trustee; and the
District waives the benefits of Civil Code Sections 1932 (2) and
1933 (4) and any and all other rights to terminate the Project
Lease by virtue of any such interference and the Project Lease
shall continue in full force and effect. Such abatement shall
continue for the period commencing with the date of such
interference and ending with the termination thereof.
SECTION 5 . 05 . Prepayment of Base Rental Payments.
(a) The District may prepay, fromseminent domain
proceeds received by it pursuant to Section 8 . 01, all or any
portion of the principal components of base rental payments
evidenced and represented by the Certificates then unpaid in
whole on any date, or in part on any Interest Payment Date in
integral multiples of five thousand dollars ($5, 000) so that the
aggregate annual amounts of principal components of base rental
payments represented by Certificates t which shall be payable
after such prepayment date shall each."'be in an integral multiple
of five thousand dollars ($5, 000) and shall be as nearly
proportional as practicable to the aggregate annual amounts of
principal components of base rental payments represented by such
Certificates so prepaid, at a prepayment price equal to the sum
of the principal components prepaid plus accrued interest thereon
to the date of prepayment.
(b) The District may prepay on any Interest Payment
Date on or afte,r, September 1, 2003 from any source of available
funds, the principal components of base rental payments
evidenced and represented by Certificates I! payable on And after
geRt2gber 1, 2004, in whole or in part in .i W,ntegr.al multiples of
five thousand dollars ($5, 000) principal amount � in inverse
order of Principal Payment Dates (and by lot within any one
Principal Payment Date) , at a prepayment price equal to the sum
of the principal components prepaid plus accrued interest thereon
to the date of prepayment plus a prepayment premium equal to a
SF2-2M399.4(25I7930.1 to 2S17930.2 redfined)
percentage of the principal amount thereof, in accordance with
the following schedule:
Prepayment
Date Prepayment Premium
' September 1, 2003, or " March 1, 2004 2
a ember 1 2004 or M arch 1 2005
.S e member 1, 2005, or ::; March 1, 2006 1
Se t ember 1 20
06. or March 1 2007 1/2 of 1
On or after "' September 1, '" 2007, and prior
to their scheduled payment date 0
(c) Before making any prepayment pursuant to this
section, the District shall, within five (5) Business Days
following the event creating such right or obligation to prepay,
give written notice to the Corporation and the Trustee
describing such event and specifying the date on which the
prepayment will be made, which date shall be not less than sixty
(60) days from the date such notice is given.
SECTION 5 . 06. Obligation to Make Rental Payments.
The agreements and covenants on the part of the District
contained herein shall be deemed to be and shall be construed to
be duties imposed by law and it shall be the duty of each and
every public official of the District to take such action and
do such things as are required by law in the performance of the
official duty of such officials to enable the District to carry
out and perform the agreements and covenants contained herein
agreed to be carried out and performed by the District;
,provided, that the obligation of the District to make rental
payments hereunder is subject to the prior obligation of the
District to apply the Limited Taxes (as that term is defined in
Resolution No. 90-38 adopted by the Board of Directors of the
District on August 22, 1990) to the payment of the District' s
outstanding 1987 Promissory No
tes and 1988 Promissory
ssorY Notes and
1990 Promissory Notes and 1992 Promissory Notes and certain land
acquisition contracts, and any other parity debt thereto as
authorized in said Resolution No. 90-38 .
SECTION 5. 07. Tax Covenants. The District will not
directly or indirectly use or permit the use of the proceeds of
the obligation provided herein or any other funds of the
District or take or omit to take any action which would cause
such obligation to be an "arbitrage bond" within the meaning of
Section 148 of the Code, or a "federally guaranteed obligation"
under Section 149 (b) of the Code, or a "private activity bond"
as described in Section 141 of the Code; and to that end, so
long as any rental payments due hereunder are unpaid, the
SF2-233399.4(2S17930.1 to 2517930.2 redlined) 12
District will comply with all requirements of such sections of
the Code to the extent applicable to the obligation provided
herein.
The District will at all times do and perform all acts
and things permitted by law which are necessary or desirable in
order to assure that the interest installments of such rental
payments will not be included in the gross income of the owners
of the Certificates for federal income tax purposes under the
Code and will take no action that would result in such interest
being so included.
ARTICLE VI
TITLE TO THE PROJECT
SECTION 6. 01. Title to the Project. Title to the
Project shall remain in the Corporation during the term of the
Project Lease, and title to all property that is placed in or
about the Project by the District during the term of the Project
Lease and that can be removed without damage to the Project or
which is not integrally related to the Project shall remain in
the District during the term of the Project Lease. Upon
termination or expiration of the Project Lease title to the
Project shall vest in the District, and upon such termination
on or
expiration or vesting, the Corporation shall execute and deliver
such conveyances, deeds, bills of sale, registration documents
and other instruments as may be necessary to effect such vesting
of record.
ARTICLE VII
MAINTENANCE; TAXES AND OTHER CHARGES; INSURANCE
SECTION 7.01. Maintenance of the Project by the
District. The District agrees that, at all times during the
term hereof, it will, at its own cost and expense, maintain,
preserve and keep the Project and every portion thereof in good
repair, working order and condition and that it will from time
to time make or cause to be made all necessary and proper
repairs, replacements and renewals. The Corporation shall have
no responsibility in any of these matters or for the making of
additions or improvements to the Project.
SECTION 7.02 . Taxes, Governmental Charges and Utility
Charges. The parties hereto contemplate that the Project will -
be used for public purposes by the District and, therefore, that
the Project will be exempt from all taxes presently assessed and
levied with respect to real and personal property, respectively.
In the event that the use, possession or acquisition by the
District of any portion of the Project is found to be subject to
taxation in any form, the District will pay or cause to be paid
3F2-2W399.4(2S17930.1 to 2S17930.2 mdfincd) 13
during the term hereof, as the same respectively become due, all
taxes and governmental charges of any kind whatsoever that may
at any time be lawfully assessed or levied against or with
respect to any portion of the Project and any other property
acquired by the District in substitution for, as a renewal or
replacement of, or a modification, improvement or addition to
any portion of the Project, as well as all A utility charges
incurred in the operation, maintenance, use, occupancy and
upkeep of any portion of the Project; provided, that with
respect to any governmental charges or taxes that may lawfully
be paid in installments over a period of years, the District
shall be obligated to pay only such installments as are accrued
during such time as the Project Lease is in effect.
SECTION 7. 03 . Insurance. The District shall procure
or cause to be procured and maintain or cause to be maintained
throughout the term hereof for the Project policies of insurance
against the following risks in the following respective amounts:
(1) workers' compensation insurance covering all
employees working in or on the Project, in the same amount
and type as other workers' compensation insurance
maintained by the District for similar employees doing
similar work; and the District shall also require any other
person or entity working in or on the Project to carry the
foregoing amount of workers, compensation insurance; and
(2) a standard comprehensive public entity liability
insurance policy or policies in protection of the District,
the Corporation and the Trustee and its directors, officers
and employees, indemnifying and defending such parties
against all direct or contingent loss or liability for
damages for personal injury, death or property damage
occasioned by reason of the possession, operation or use of
the Project, with minimum liability limits of one million
dollars ($1, 000, 000) for personal injury or death of each
person and three million dollars ($3, 000, 000) for personal
injury or deaths of two or more persons in each accident or
event, and in a minimum amount of two hundred thousand
dollars ($200, 000) (subject to a deductible clause of not
to exceed one hundred thousand dollars ($100, 000) ) for
damage to property resulting from each accident or event;
Provided, that such public liability and property damage
insurance may be in the form of a single limit policy in
the amount of three million dollars ($3, 000, 000) covering
all such risks and may be maintained as part of or in
conjunction with any other liability insurance carried by
the District.
Each insurance policy provided for in this section
shall contain a provision to the effect that the insurance
company shall not cancel the policy or modify it materially and
adversely to the interests of the Corporation or the Trustee
without first giving written notice thereof to the Corporation
SF2-2S3399.4(2S17930.1 to 2S17930.2 redfincd) 14
and the Trustee at least sixty (60) days in advance of such
intended cancellation or modification; provided, that the
Trustee shall not be responsible for the sufficiency of any
insurance herein required and shall be fully protected in
accepting payment on account of such insurance or any
adjustments, compromise or settlement of any loss agreed to by
it.
Notwithstanding the above provisions, as an
alternative to providing the foregoing policies of insurance,
the District may provide a self-insurance method or plan of
protection, which such self-insurance maintained by the District
shall comply with the following terms:
U) the self-insurance program shall be approved by
an Insurance Consultant;
(ii) the self-insurance program shall include an
actuarially sound claims reserve fund out of
which each self-insured claim shall be paid, the
adequacy of each such fund shall be evaluated on
an annual basis by the Insurance Consultant, and
any deficiencies in any self-insurance claims
fund shall be remedied in accordance with the
recommendation of the Insurance Consultant;
(iii) the self-insurance claims fund shall be held in a
separate fund by the District;
(iv) in the event the self-insurance program shall be
discontinued, the actuarial soundness of its
claim reserve fund, as determined by the
Insurance Consultant, shall be maintained.
The District shall file a certificate with the Trustee
not later than April 1 of each year certifying that the
insurance required by this section is in full force and effect
for the ensuing year and that the Trustee is named as a loss
payee on each policy of insurance which the Project Lease
requires to be so endorsed.
SECTION 7. 04. Advances. In the event the District
shall fail to maintain the full insurance coverage required
hereby or shall fail to keep the Project in good repair and
operating condition, the Corporation may (but shall be under no
obligation to) purchase the required policies of insurance and
pay the premiums on the same or may make such repairs or
replacements as are necessary and provide for payment thereof;
and all amounts so advanced therefor by the Corporation shall
become additional rental, which amounts the District agrees to
pay within thirty (30) days of a written request therefor,
together with interest thereon at the rate of twelve per cent
(12t) per annum.
M-=3"A(2S17930.1 to 2S17930.2 mdhncd)
ARTICLE VIII
CONDEMNATION
SECTION 8 . 01. Condemnation. If prior to the
termination of the term hereof title to, or the temporary use
of, the Project or any portion thereof or the estate of the
District or the Corporation in the Project or any portion
thereof shall be taken under the exercise of the power of
eminent domain by any governmental body or by any person or firm
or corporation acting under governmental authority then then the
District and the Corporation will cause the net proceeds of any
condemnation award to be applied to the prompt replacement of
the condemned portion of the Project, and any balance of the net
proceeds remaining after such work has been completed shall be
paid to the District; provided, that the District, at its option
and provided the proceeds of such condemnation award together
with any other moneys then available for the purpose are at
least sufficient to prepay an aggregate principal amount
represented by outstanding Certificates equal to the amount of
outstanding Certificates attributable to the portion of the
Project so condemned (determined by reference to the proportion
which the cost of the condemned portion of the Project bears to
the cost of the entire Project) , may elect not to repair,
reconstruct or replace the condemned portion of the Project and
thereupon shall cause said proceeds to be used for the
prepayment of outstanding Certificates pursuant to the
provisions of Section 5.05 (a) hereof and Section 4. 01 (a) of the
Trust Agreement.
ARTICLE IX
DISCLAIMER OF WARRANTIES- ` USE OF THE PROJECT;
ENVIRONMENTAL' MATTERS
SECTION 9 .01. Disclaimer of Warranties. THE
CORPORATION DOES NOT MAKE ANY AGREEMENT, WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE OR FITNESS FOR USE OF THE PROJECT, OR WARRANTY WITH
RESPECT THERETO. THE DISTRICT ACKNOWLEDGES THAT THE CORPORATION
IS NOT A MANUFACTURER OF ANY PORTION OF THE PROJECT OR A DEALER
THEREIN AND THAT THE CORPORATION LEASES THE PROJECT TO THE
DISTRICT AS-IS, IT BEING AGREED THAT ALL OF THE AFOREMENTIONED
RISKS ARE TO BE BORNE BY THE DISTRICT. In no event shall the
Corporation be liable for any incidental, indirect, special or
consequential damage in connection with or arising out of the
Project Lease or the existence, furnishing, functioning or the
District' s use of the Project as provided hereby.
sae-2W3".4(2SI7930.1 to 2SI7930.2 mWincd) 16
SECTION 2. 02 . Use of the Project. The District
will not use, opera.te or maintain the Project improperly,
carelessly, in violation of any applicable law or in a manner
contrary to that contemplated hereby. The District will provide
all permits and licenses, if any, necessary for the use of the
Project. In addition, the District agrees to comply in all
respects with all laws of the jurisdictions in which its
operations involving any portion of the Project may extend and
any legislative, executive, administrative or judicial body
exercising any power or jurisdiction over the Project; provided,
that the District may contest in good faith the validity or
application of any such law or rule in any reasonable manner
which does not, in the opinion of the Trustee, adversely affect
the estate of the Corporation in and to the Project or its
interest or rights hereunder.
SECTION 12 .03 . Environmental Matters.
(a) The District and the Corporation will comply with
all Applicable Environmental Laws and will not use, store,
generate, treat, transport or dispose of any Hazardous Substance
on, or in a manner that would cause it to later flow, migrate,
leak, leach or otherwise come to rest on or in the Project.
(b) The District and the Corporation will transmit
copies of all records concerning the contact with any local,
state or federal agency concerning any violation of any
Applicable Environmental Laws involving the Rroject, and all
notices, orders or statements received from any governmental
entity concerning violations of Applicable Environmental Laws
with respect to the Project and any operations conducted thereon
or any conditions existing thereon to the Trustee. The District
and the Corporation will notify the Trustee in writing
immediately of any release, discharge, spill, or deposit of any
Hazardous Substance that has occurred or is occurring which in
any way affects or threatens to affect the Project or the
people, structures, or other property thereon.
(c) The District and the Corporation will permit the
Trustee, its agents or any experts designated by the Trustee to
have full access to the Project during reasonable business hours
for purposes of such independent investigation of compliance
with all Applicable Environmental Laws.
ARTICLE X
ASSIGNMENT AND INDEMNIFICATION
SECTION 10. 01. Assignment by Corporation. The
parties understand that the Project Lease and certain of the
rights of the Corporation hereunder will be assigned by the
Corporation to the Trustee pursuant to the Assignment Agreement,
and accordingly the District agrees to make all payments of base
SF2-2M399.4(2S17930.1 to 2S17930.2 mdlined) 17
I
rental due hereunder to the Trustee notwithstanding Y an claim
defense, setoff or counterclaim whatsoever (whether arising from
a breach hereof or otherwise) that the District may from time to
time have against the Corporation. The District agrees to
execute all documents, including notices of assignment and
chattel mortgages or financing statements, which may be
reasonably requested by the Corporation or the Trustee or any
Owner to protect their interests in the Project during the term
hereof.
SECTION 10 .02 . Assignment by Lessee. The Project
Lease and the interest of the District in the Project may not be
assigned or encumbered by the District.
SECTION 10.03 . Indemnification. The District will,
to the full extent then permitted by law, indemnify, protect,
hold harmless, save and keep harmless the Corporation and the
Trustee and its directors officers and employees from and
against any and all liability, obligations, losses, claims and
damages whatsoever, regardless of the cause thereof, and
expenses in connection therewith, including, without limitation,
counsel fees and expenses, penalties and interest arising out of
or as the result of the entering into of the Project Lease, the
Assignment Agreement or the Trust Agreement, the acquisition,
improvement and use of the Project and each portion thereof or
any accident in connection with the operation, use, condition or
possession of the Project or any portion thereof resulting in
damage to property or injury to or death to any person
including, without limitation, any claim alleging latent and
other defects, whether or not discoverable by the District or
the Corporation; and any claim arising out of strict liability
in tort. The indemnification arising under this section shall
continue in full force and effect notwithstanding the full
payment of all obligations hereunder or the termination hereof
for any reason or the resignation or removal of the Trustee.
The District agrees not to withhold or abate any portion of the
payments required pursuant hereto by reason of any defects,
malfunctions, breakdowns or infirmities of the Project. The
District and the Corporation mutually agree to promptly give
notice to each other of any claim or liability hereby
indemnified against following either's learning thereof.
ARTICLE XI
DEFAULT
SECTION 11.01. Default. (a) If default shall be made
by the District in the observance or performance of any
agreement, condition, covenant or term contained herein required
to be observed .or performed by it (including without limitation
the payment of any base rental payments or additional rental
payments due hereunder) , or upon the happening of any of the
events specified in subsection (b) of this section (in either
M-zs MA(2s17930.1to 2S17930.2 naunca) 18
case, an Event of Default hereunder) , then, subject to the
provisions of subsection (c) , the Corporation shall (with or
without notice and demand and without limiting any other rights
or remedies the Corporation may have) maintain the Project Lease
in full force and effect and recover rent and other monetary
charges as they become due without terminating the District' s
right to possession of the Project, regardless of whether or not
the District has abandoned the Project.
(b) In addition to any Event of Default resulting
from breach by the District of any agreement, condition,
covenant of term hereof, if (1) the District's interest herein
or any part thereof be assigned, sublet or transferred without
the written consent of the Corporation, either voluntarily or by
operation of law; or (2) the District shall file any petition or
institute any proceedings under any act or acts, state or
federal, dealing with or relating to the subject of bankruptcy
or insolvency or under any amendment of such act or acts, either
as a bankrupt or as an insolvent or as a debtor or in any
similar capacity, wherein or whereby the District asks or seeks
or prays to be adjudicated a bankrupt, or is to be discharged
from any or all of its debts or obligations, or offers to its
creditors to effect a composition or extension of time to pay
its debts, or asks, seeks or prays for a reorganization or to
effect a plan of reorganization or for a readjustment of its
debts or for any other similar relief, or if the District shall
make a general or any assignment for the benefit of its
creditors; or (3) the District shall abandon*or vacate the
Project or any portion thereof; then in each and every such
case the District shall be deemed to be in default hereunder.
(c) Neither the District nor the Corporation shall be
in default in the performance of any of its obligations
hereunder (except for the obligation to pay base rental pursuant
to Section 5 .01) unless and until it shall have failed to
perform such obligation within thirty (30) days after written
notice by the District or the Corporation, as the case may be,
to the other party properly specifying wherein it has failed to
perform such obligation.
ARTICLE XII
MISCELLANEOUS
SECTION 12 . 01. Notices. All written notices to be
given hereunder shall be given by first class mail to the party
entitled thereto at its address set forth below, or at such
other address as such party may provide to the other parties in
writing from time to time, namely:
SF2-2S3399.4(25I7930.1 to 2S17930.2 rtdlined) 19
If to the Corporation:
California Special Districts Association
Finance Corporation
C/o McMurchie, Foley, Brandenburger,
Weill & Keeling
1030 15th Street, Suite 300
Sacramento, California , 95814
If to the District:
Midpeninsula Regional open Space District
Attention: General Manager
330 Distel Circle
Los Altos, California 94022
If to the Trustee:
Seattle-First National Bank
Bond Trustee Services
1001 Fourth Avenue, 11th Floor
Seattle, Washington 98154
SECTION 12 .02 . Binding Effect. The Project Lease
shall inure to the benefit of and shall be binding upon the
Corporation and the District and their respective successors and
assigns.
SECTION 12 . 03 . Trustee A Third Party Beneficiary.
The Trustee is hereby designated a third party beneficiary
hereunder for the purpose of enforcing any of its rights or any
of the rights assigned to the Trustee under the Assignment
Agreement.
SECTION 12 . 04 . Net Lease. It is the purpose and
intent of the Corporation and the District that lease payments
hereunder shall be absolutely net to the Corporation so that the
Project Lease shall yield to the Corporation the lease payments,
free of any charges, assessments or impositions of any kind
charged, assessed or imposed on or against the Project, and
without counterclaim, deduction, defense, deferment or set-off
by the District except as herein specifically otherwise
provided. The Corporation shall not be expected or required to
pay any such charge, assessment or imposition, or be under any
obligation or liability hereunder except as herein expressly set
forth, and all costs, expenses and obligations of any kind
relating to the maintenance and operation of the Project which
may arise or become due during the term of the Project Lease
shall be paid by the District.
SECTION 12 . 05 . Amendments. The Project Lease may be
amended in writing as may be mutually agreed by the Corporation
and the District, subject to the written approval of the
Trustee; provided, that no such amendment which adversely
SF2-2M399.4(2SM0.1 to 25I7930.2 mdlined) 20
affects the rights of the Owners shall be effective unless it
shall have been consented to by the Owners of a majority of
Certificates; and provided further, that no such amendment shall
(a) extend the payment date of any base rental payment, or
reduce the interest, principal or prepayment premium component
of any base rental payment, without the prior written consent of
the Owner of each Certificate so affected, or (b) reduce the
percentage of Certificates the consent of the Owners of which is
required for the execution of any amendment hereof; and provided
further, that no such amendment shall substitute another parcel
or parcels of real property for t any one or more of the parcels
of real property leased hereunder unless the substituted
parcel or parcels of real property are used for open space for
the District; and provided further, that before any such
substitution is approved by the District it shall have first
prepared and filed with the Corporation and the Trustee an
M.A. I. appraisal by an independent real estate appraiser that
the parcel or parcels of real property that are proposed to be
so substituted have a fair market value at least equal to the
parcel or parcels of real property that are proposed to be
released from the terms of the Project Lease by virtue of such
substitution, except that if the parcel or parcels of real
property that are proposed to be so substituted have been
purchased by the District within twelve (12) months of the
amendment of the Project Lease, the District may use the
purchase price thereof in determining the fair market value
thereof; and provided further, that any parcel or parcels of
real property that are proposed to be so substituted shall have
no prio
r liens
against them that would impair their use for the
purpose intended by the District and shall have a useful life at
least as long as the parcel or parcels being substituted out of
the Project Lease. Following any such substitution, the
Corporation shall execute appropriate quitclaim deeds to the
District for the parcel or parcels so substituted out of the
Project Lease.
SECTION 12 . 06. Partial Invalidity. If any one or
more of the agreements, conditions, covenants or terms hereof
shall to any extent be declared invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent
jurisdiction, the finding or order or decree of which becomes� co es
g
final, none of the remaining agreements, conditions, covenants
or terms hereof shall be affected thereby, and each provision of
the Project Lease shall be valid and enforceable to the fullest
extent permitted by law.
SECTION 12 . 07. California Law. The Project Lease
shall be governed by and construed and interpreted in accordance
with the laws of the State of California.
ISECTI.ON 12 . 08 . Section Headings. All section
headings contained herein are for convenience of reference only
and are not intended to define or limit the scope of any
provision hereof.
SF2-2S3399.4(2S17930.1 to 2S17930.2 redlined) 21
i
SECTION 12 . 09 . aeverability. If any agreement,
condition, covenant or term hereof or anyapplication hereof
should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, in whole or in part, all
agreements, conditions, covenants or terms hereof and all
applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
SECTION 12 .10 . Execution in Counterparts. The
Project Lease may be executed and entered into in several
counterparts, each of which shall be deemed an original, and all
of which shall constitute but one and the same instrument.
SF2-2S3399.4(2S17930.1 to 2S17930.2 md1ined) 22
i
i
t
IN WITNESS WHEREOF, the parties hereto have executed
and entered into the Project Lease by their officers thereunto
duly authorized as of the day and year first written above.
CALIFORNIA SPECIAL DISTRICTS
ASSOCIATION FINANCE CORPORATION
By
President
(SEAL)
Attest:
Secretary
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
By
(SEAL) President of the Board of Directors
Attest:
Secretary of the Board of Directors
M-=3"A(2S17930.1 to 2S17930.2 maimed) 23
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
All those certain parcels of real property situated in
the _State of California, Counties of San Mateo and Santa Clara.
more particularly described below:
o
ITO COME]
SF2-2S3399.4(2517930.1 to 2S17930.2 m4 inul) A-1
EXHIBIT B
BASE RENTAL PAYMENT SCHEDULE
_[TO COME]
i
sa2-2S33".4{2817930.1 to 2s17930.2 natinea} B-1
EXHIBIT C
DEFEASED BASE RENTAL PAYMENT SCHEDULE
_[TO COME)
sF2-2W399.4{2S17930.1co 2sF7930.2 maunea} C—1
r
[Draft of ,�0 June 19931
ASSIGNMENT AGREEMENT
by and between the
CALIFORNIA SPECIAL DISTRICTS t ASSOCIATION
FINANCE CORPORATION
and
SEATTLE-FIRST NATIONAL BANK,
as Trustee
RELATING TO THE AMENDED AND RESTATED PROJECT LEASE
FOR THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
1993 OPEN SPACE PROJECT
Executed and Entered Into as of August 1, 1993
I
SF2-2S3399.4{2517931.1 to 2S17931.2 mdlined}
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Assignment . . . . . . . . . . . . . . . . . . . 2
SECTION 2 . Acceptance * * * , * , * * , , * * * * * * * * * 2
SECTION 3 . Conditions . . . . . . . . . . . . . . . . . . . 2
SECTION 4 . California Law . . . . . . . . . . . . . . . . . 2
SECTION 5 . Severability . . . . . . . . . . . . . . . . . . 2
SECTION 6. Execution in Counterparts . . . . . . . . . . . 3
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . 3
SF2-203"A(2S17931.1 to 2S17931.2 rtdfincd)
ASSIGNMENT AGREEMENT
This Assignment Agreement (the "Assignment Agreement") ,
executed and entered into as of August 1, 1993, by and between
the California Special Districts Association Finance Corporation,
a nonprofit corporation duly organized and existing under and by
virtue of the laws of the State of California (the
"Corporation") , and Seattle-First National Bank, a national
banking association duly organized and existing under and by
virtue of the laws of the United States of America, as Trustee
(the "Trustee") ;
W I T N E S S E T H:
WHEREAS, the Corporation and the Midpeninsula Regional
Open Space District, a regional open space district duly
organized and existing under and by virtue of the laws of the
State of California (the "District") , executed and entered into
an Amended and Restated Project Lease (the "Project Lease") as of
August 1, 1993, ft whereby the Corporation leased certain real
property described therein (the "Project") to the District, and
the District leased the Project from the Corporation, all in the
manner described therein; and
WHEREAS, under and pursuant to the Project Lease, the
District is obligated to make rental payments to the Corporation
for the lease of the Project to it; and
WHEREAS, the Corporation desires to assign without
recourse all its rights to receive such rental payments and
certain other rights to the Trustee for the benefit of the
registered owners of certain ?,'i certificates of participation (the
"Certificates") to be executed and delivered by the Trustee under
and pursuant to a Trust Agreement to be executed and entered into
as of August 1, 1993, by and among the Trustee, the Corporation
and the District (the "Trust Agreement") ; and
WHEREAS, in consideration of such assignment and the
execution and entering into of the Trust Agreement, the Trustee
has agreed to execute and deliver the Certificates in the
aggregate principal amount of such rental payments, each
evidencing and representing a proportionate, undivided interest
in such rental payments; and
WHEREAS, the Corporation certifies that all acts,
conditions and things required by law to exist, to have happened
and to have been performed precedent to and in connection with
the execution and entering into of the Assignment Agreement do
exist, have happened and have been performed in regular and due
time, form and manner as required by law, and the parties hereto
are now duly authorized to execute and enter into the Assignment
Agreement;
SF2-2M399.4(2S17931.1 to 2S17931.2 rtdhncd)
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE
AS FOLLOWS:
SECTION 1. Assignment.
The Corporation, for one dollar ($1. 00) and for other
good and valuable consideration in hand received, does hereby
sell, assign and transfer to the TrusteeA. for the benefit of the
registered owners of the Certificates, without recourse, (i) all
right, title and interest of the Corporation in, to and under the
Project Lease (excepting only the Corporation's rights to
indemnification and payment or reimbursement of its costs and
expenses) , including, without limitation, all rental payments due
thereunder, all insurance proceeds received thereunder and any
other payments of any kind to which the Corporation is or may be
entitled I thereunder, (ii) all rights of the Corporation to make
any decision or determination or to exercise any option or to
give any approval, consent, declaration of default, notice or
waiver under the Project Lease, and (iii) all rights of the
Corporation to enforce the observance and performance of all
agreements, conditions, covenants and terms contained in the
Project Lease required to be observed or performed by the
District.
SECTION 2 . Acceptance.
The Trustee hereby accepts the for4going assignment for
the benefit of the registered owners of the Certificates, subject
to the agreements, conditions, covenants and terms of the Trust
Agreement, and all such rental payments made by the District
under the Project Lease shall be applied and the rights so
assigned shall be exercised by the Trustee under and pursuant to
the Trust Agreement.
SECTION 3 . Conditions.
The Assignment Agreement shall confer no rights or
impose no obligations upon the Trustee beyond those expressly
provided in the Trust Agreement.
SECTION 4. California Law.
The Assignment Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of California.
SECTION 5. Severability.
If any agreement, condition, covenant or term hereof or
any application hereof should be held by a court of competent
jurisdiction to be invalid, void or unenforceable, in whole or in
part, all agreements, conditions, covenants and terms hereof and
SF2-2S3399.4(2S17931.1 to 2S17931.2 rtdlinM) 2
all applications thereof not held invalid, void or unenforceable
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
SECTION 6. Execution in Counterparts.
The Assignment Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
Assignment Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
and attested the Assignment Agreement by their officers thereunto
duly authorized as of the day and year first written above.
CALIFORNIA SPECIAL DISTRICTS
ASSOCIATION FINANCE CORPORATION
(SEAL) By
Attest: President
Secretary
SEATTLE-FIRST NATIONAL BANK,
as Trustee
B
Assistant Vice President
SF2-2M399.4(2S17931.1 to 2SI7931.2 n4fined) 3
[Draft of ' 20 June 19931
TRUST AGREEMENT
by and among
SEATTLE-FIRST NATIONAL BANK,
as Trustee
and
the
CALIFORNIA SPECIAL DISTRICTS
ASSOCIATION FINANCE CORPORATION
and the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
RELATING TO
CERTIFICATES OF PARTICIPATION
FOR THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
1993 OPEN SPACE PROJECT
Executed and Entered Into as of August 1, 1993
SF2-2S3399.4{2517929.1 to 2S17929.2 redlincd}
TABLE OF CONTENTS
Pacre
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01. Definitions . . . . . . . . 2
SECTION 1. 02 . Equal Security . . . . . . . . . . . . . 10
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 .01. Preparation of Certificates • • 10
SECTION 2 . 02 . Denominations, Medium, Method andPlaceof -
Pa
yment
yment and Dating of Certificates 10
SECTION 2 . 03 . Payment Dates :*es of ..Certificates r Ym icates 12
SECTION <>_ �-
2 .04 . Forms of Certificates 12
SEC
TION 2 . 05. Ex
ecution
ution of Certificates . 12
SECTION 2 . 06. Transfer and Exchange of g Certificates 12
SECTION 2 .07. Certificate Registration
g anon Books
� . . . .;tt:►;;. .
13SECTION 2 . 08 . Temporary Certificates ' ' 13
or Stolen14SECTION 2 . 09 . Certificates Mutilated Lost Destroyed
SECTION 2 .10
Use of Devasitory 1S
ARTICLE III
DELIVERY OF CERTIFICATES
SECTION 3 . 01. Delivery of Certificates . . . . 16
SECTION 3 . 02 . Deposit . . . . ' 7 p t of Proceeds of Certificates ...
• 17
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4. 01. Terms of Prepayment . . . . . . . . . . . "` 18
SECTION 4 . 02.
:1 `�0 . Sel
ection of Certificates for Pre a en ..
P ym :�; 20
SECTION 4. 03 . Notice of Prepayment . . . . . . . . . . .
E S CTION 4 . 04. Partial Prepayment of Certificates ^ 21
SECTION 4. 05. Effect of Prepayment . . . . . . . . . . . . . a....
21
ARTICLE V
RENTAL PAYMENTS
SECTION 5 .01. Use of Rental Payments . . . . . . . . . 22
SECTION 5 .02 . Deposit of Money in the Rental Payment Fund 22
SECTION 5 03 . Reserve Fund . . . . . . . . . . . .
SF2-2S3399.4(2517929.1 to 2517929.2 redlmed) i
ARTICLE VI
COVENANTS
SECTION 6.01. Compliance with Trust Agreement . . . . . . . . 24
SECTION 6 . 02 . Compliance with Project Lease 24
SECTION 6 . 03 . Observance of Laws and Regulations . . . . . "' 24
SECTION 6.04 . Other Liens . . . . . . . . . . . • . 25
SECTION 6. 05 . Prosecution and Defense of Suits . . 25
SECTION 6. 06 . Accounting Records and Statements . . . . .
SECTION 6.07. Recordation and Filing . . . . . . . . . . . . "`' 26
SECTION 6. 08 . Tax Covenants . . . . . . . . . . . . . .
SECTION 6. 09 . Further Assurances . . . . . . . . . . . . . . . 27
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7.01. Action on Default . . . . . . 27
SECTION 7. 02 . Other Remedies of the Trustee . . . . . . . . 27
SECTION 7. 03 . Non-Waiver . . . . . . . . . . . . . . . . . . . 28
SECTION 7.04 . Application of Funds . . . . . . . . . . . . . . 28
SECTION 7. 05 . Remedies Not Exclusive . . . . . . . . . 29
SECTION 7. 06. No Liability by the Corporation to the Owners 29
SECTION 7.07. No Liability by the District to the Owners • • 29
SECTION 7. 08 . No Liability by the Trustee to the Owners 29
SECTION 7.09 . Actions by Trustee as Attorney-in-Fact . . . . . 30
SECTION 7.10. Power of Trustee to Control Proceedings . . . . 30
ARTICLE VIII
THE TRUSTEE
SECTION 8 . 01. Employment of the Trustee . . . . . . . . 30
SECTION 8. 02 . Removal and ,Resignation of the Trustee . . . . . 31
SECTION 8 .03 . Compensation and Indemnification of the Trustee "` 31
SECTION 8 .04. Protection of the Trustee . . . . . . . . . . . 32
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO THE TRUST AGREEMENT
SECTION 9 . 01. Procedure for Amendment of or Supplement
to the '" Trust Agreement . . . . . . . . . . . . 34
SECTION 9 . 02 . Disqualified Certificates . . . 32
SECTION 9 . 03 . Endorsement or Replacement of Certificates
After Amendment or Supplement . . . . . . . . . 36
SECTION 9 . 04. Amendment by Mutual Consent . . . . . . . . . . 36
SECTION 9 . 05. Opinion to Trustee . . . . . . . . . . . . . . . 36
ARTICLE X
DEFEASANCE
SECTION 10. 01. Discharge of Certificates and Trust Agreement
SECTION 10. 02 . Unclaimed Moneys . . . . . . . . . . . . . . . .7.1 38
SF2-2S3399.4(2S17929.1 to 2S17929.2 redtined) i i
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Benefits of Trust Agreement Limited to Parties ` 38
SECTION 11. 02 . Successor Deemed Included in all References
_to Predecessor • , , , 39
SECTION 11. 03 . Execution of Documents by Owners . . . . . . . 39
SECTION 11. 04 . Waiver of Personal Liability . , , . .
SECTION 11.05 . Acquisition of Certificates by District 40
SECTION 11. 06. Content of Certificates • . . • • • . 40
SECTION 11.07. Notice by Mail . . . . . • • . • 40
SECTION 11.08. Funds • •
SECTION 11. 09 . Deposits and Investments . . . 41
SECTION 11.10. Article and Section Headings, Gender•and
•
References . . . . . . . 41
SECTION 11.11. Partial Invalidity . . . . . , . . . . . . 42
. • • .
SECTION 11.12 . California Law . . . , ,
SECTION 11. 13 . Notices . . . . . . . . . . . . . . . . . . 42
42
SECTION 11.14. Effective Date . . . . . 43
SECTION 11.15 . Execution in Counterparts . . . . . . . . . . . 43
EXECUTION . . . . . . . . . . . '"' 45
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
SF2-203"A(2S17929.1 to 2S17929.2 redlincd) 111
TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement") , executed
and entered into as of August 1, 1993, by and among Seattle-First
National Bank, a national banking association duly organized and
existing under and by virtue of the laws of the United States of
America, as Trustee (the "Trustee") , the California Special
Districts Association Finance Corporation, a nonprofit
corporation duly organized and existing under and by virtue of
the laws of the State of California (the "Corporation") , and the
Midpeninsula Regional Open Space District, a regional open space
district duly organized and existing under and by virtue of the
laws of the State of California (the "District") ;
W I T N E S S E T H:
WHEREAS, the Corporation and the District executed and
entered into a Project Lease (the "1990 Project Lease") as of
September 1, 1990 wher
eby the Corporation leased certain real
property described .herein to the District, and the District
leased such real property from the Corporation, all in the manner
described therein; and
WHEREAS, the Corporation and the District amended and
restated the 1990 Project Lease by executing and entering into an
Amended and Restated Project Lease (the "Project Lease") as of
August 1, 1993, }" whereby the Corporation leased certain real
property described therein (the "Project") to the District, and
the District leased the Project from the Corporation, all in the
manner described therein;
WHEREAS, under and pursuant to the Project Lease, the
District is obligated to make rental payments to the Corporation
for the lease of the Project to it; and
WHEREAS, the Corporation has assigned without recourse
all its rights to receive the base rental payments (the "Base
Rental Payments") scheduled to be paid by the District under and
pursuant to the Project Lease to the Trustee pursuant to an
Assignment Agreement (the "Assignment Agreement") executed and
entered into as of August 1, 1993; and
WHEREAS, in consideration of such assignment and the
execution and entering into of the Trust Agreement, the Trustee
has agreed to execute and deliver . certificates of participation
(the "Certificates") in an aggrega e principal amount equal to
the aggregate principal components of the Base Rental Payments,
each evidencing and representing a proportionate interest in the
principal components of the Base Rental Payments; and
WHEREAS, the Corporation previously assigned the base
rental payments payable pursuant to the 1990 Protect Lease to
Seattle-First National Bank, as Trustee and the Trustee executed
SM2S M.4(2S17929.1 to 2SI7929.2 mdlincd)
and delivered certificates of participation (the . 11990
Certificates") in the aggregate principal amount of million
dollars ($10, 000, 000) evidencing and representing proportionate
interests in such base rental payments; and
WHEREAS, a portion of the proceeds of the Certificates
will be used by the Trustee to defease the rental obligation
evidenced and represented by the 1990 Certificates and thereby
retire the 1990 Certificates, and all agreements and covenants of
the Corporation and the District to the registered owners of the
1990 Certificates shall thereupon cease, terminate and become
void and shall be discharged and satisfied; and
WHEREAS, the Corporation and the District hereby
certify that all acts, conditions and things required by law to
exist, to have happened and to have been performed precedent to
and in connection with the execution and entering into of the
Trust Agreement do exist, have happened and have been performed
in regular and due time, form and manner as required by law, and
the parties hereto are now duly authorized to executed and enter
into the Trust Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE
AS FOLLOWS:
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1 . 01. Definitions. Unless the context
otherwise requires, the terms defined in this section shall for
all purposes hereof and of any amendment hereof or supplement
hereto and of the Certificates and of any certificate, opinion,
request or other document mentioned herein or therein have the
meanings defined herein, the following definitions to be equally
applicable to both the singular and plural forms of any of the
terms defined herein:
Acquisition Fund
The term "Acquisition Fund" means the fund by that name
established Dursuant to Section 5.01.
Assignment Agreement
The term "Assignment Agreement" means that certain
Assignment Agreement executed and entered into as of August 1,
1993, by and between the Corporation and the Trustee.
Sn-=399.4(2S17929.1 to 2S17929.2=d1ined) 2
Board of Directors
The term "Board of Directors" means the Board of
Directors of the District. ,
Business Day
The term "Business Day" means any day (other than a
Saturday or a Sunday) on which the corporate trust department of
the Trustee is open for business at its corporate trust office in
San Francisco, California, or Seattle, Washington.
Certificate of the District
The term "Certificate of the District" means an
instrument in writing signed by the General Manager or the
Controller, or by any other officer of the District duly
authorized by the Board of Directors for that purpose, and by the
Secretary, with the seal of the District affixed.
Certificate Payment
The term "Certificate Payment Date" means, with respect
to any Certificate, the August 1 that is the Certificate Payment
Date designated therein.
Certificates of Participation Purchase Contract
The term "Certificates of Participation Purchase
Contract" means that certain Certificates of Participation
Purchase Contract by and between the Purchasers and the
District relating to the Certificates.
Certificates
The term "Certificates" means the t certificates of
participation authorized hereby and at any time Outstanding
hereunder that are executed and delivered by the Trustee pursuant
hereto.
1990 Certificates
The term "1990 Certificates" means the certificates of
participation executed and delivered by the Trustee pursuant to
the 1990 Trust Agreement.
Code
The term "Code" means the Internal Revenue Code of
1986, as amended, and the regulations of the United States
Department of the Treasury issued thereunder, and in this regard
reference to any particular section of the Code shall include
reference to all successor sections of the Code.
SF2-2S3399.4(2S17929.1 to 2S17929.2 md1ined) 3
Controller
District. The term "Controller" means the Controller of the
Corporation
The term "Corporations, means the California Special
Districts Association Finance Corporation, a nonprofit
corporation duly organized and existing under and by virtue of
the laws of the State of California.
Costs of Issuance
The term "Costs of Issuance" means all costs and
expenses directly or indirectly payable by or reimbursable to the
District related to the authorization, execution and delivery of
the Project Lease and the Trust Agreement and the Certificates,
including, but not limited to, costs of preparation and
reproduction of documents, filing and recording fees and title
insurance fees, initial fees and charges of the Trustee, rating
agency fees, legal fees and charges and fees and charges of
other consultants and professionals, together with all fees and
charges for preparation, execution and safekeeping of the
Certificates, and any other charge, cost, expense or fee in
connection with the original execution and delivery of the
Certificates.
Costs of IssuanceFund
The term "Costs of Issuance Fund" means the fund by
that name established pursuant to Section 3 .02.
District
The term "District" means the Midpeninsula Regional
Open Space District, a regional open space district duly
organized and existing under and by virtue of the laws of the
State of California.
Federal Securities
The term "Federal Securities" means United States of
America Treasury bills, notes, bonds or certificates of
indebtedness, or obligations for which the full faith and credit
of the United States of America are pledged for the payment of
interest and principal, or securities evidencing direct ownership
interests in such obligations or in specified portions of the
interest on or principal of such obligations that are held by a
custodian in safekeeping on behalf of the owners of such
securities, . ,
SF2-2S3399.4(25I7929.1 to 2S17929.2 rtdhnW) 4
General Manager
The term " General Manager" means the General Manager
of the District.
Interest Fund
The term "Interest Fund" means the fund by that name
established pursuant to Section 5 . 02 .
Interest Payment Date
The term "Interest Payment Date" means a date on which
interest components evidenced and represented by the Certificates
become due and payable, being Mar I and September 1 of eac
h
year to which reference is made, commencing o.ri 1994.
Moody' s
The term "Moody's" means Moody's Investors Service, a
corporation duly organized and existing under and by virtue of
the laws of the State of Delaware, and its successors or assigns,
except that if such corporation shall be dissolved or liquidated
or shall no longer perform the functions of a securities rating
agency, then the term "Moody's" shall be deemed to refer to any
other nationally recognized securities rating agency selected by
the District.
opinion of Counsel
The term "Opinion of Counsel" means a written opinion
of counsel of recognized national standing in the field of law
relating to municipal bonds, appointed and paid by the District
and satisfactory to and approved by the Trustee (who shall be
under no liability by reason of such approval) .
Outstanding
The term "Outstanding, " when used as of any particular
time with reference to Certificates, means (subject to the
provisions of Section 9 . 02) all Certificates except
(1) Certificates cancelled by the
Trustee or delivered to the Trustee for
cancellation;
(2) Certificates paid or deemed to have
been paid within the meaning of Section
10. 01; and
(3) Certificates in lieu of or in
substitution for which other Certificates
shall have been executed and delivered by the
Trustee pursuant to Section 2 . 09 .
SP2-2S3399.4(2517929.1 to 2S17929.2=d1hxcd) 5
Owner
The term "Owner" means the registered owner of any
Outstanding Certificate as shown on the registration books
maintained by the Trustee.
Permitted Investments
The term "Permitted Investments" means any of the
following to the extent then permitted by law:
(1) United States of America Treasury bills, notes,
bonds or certificates of indebtedness, or obligations for
which the full faith and credit of the United States of
America are pledged for the payment of interest and
principal;
(2) obligations issued by banks for cooperatives,
federal intermediate credit banks, the Federal Home Loan
Bank Board, the Federal Land Bank, the Farmers Home
Administration, the Federal National Mortgage Association
and the Government National Mortgage Association;
(3) certificates of deposit issued by a bank or
financial institution rated "A-1n or higher by Moody's and
"A+" or higher by S&P;
(4) bankers, acceptances which are issued by a bank or
financial institution rated "A-1" or higher by Moody' s and
"A+" or higher by S&P and that is among the top M fifty (M I
banks in the world or a qualified depository in the State of
California with at least a 4 .5%- equity to asset ratio and
which are eligible for purchase by the Federal Reserve
System; provided, that such bankers, acceptances may not
exceed -P' two hundred seventy (2701 days' maturity;
(5) commercial paper of "prime" quality of the highest
ranking or of the highest letter and numerical rating as
provided for by Moody' s and by S&P; provided, that such
paper is further limited to issuing corporations that are
organized and operating within the United States of America
and having total assets in excess of five hundred million
dollars ($500, 000, 000) , having an "A" or higher rating for
the issuer' s debentures, other than commercial paper, as
provided for by Moody' s and by S&P; and provided further,
that such commercial paper may not exceed one hundred
eighty (1801 days' maturity;
(6) any repurchase agreement, the maturity of which is
less than thirty (30) days and is marked-to-market daily,
entered into with financial institutions such as banks or
trust companies organized under state law or national
banking associations, insurance companies, or government
bond dealers reporting to, trading with, and recognized as a
SP2-2M399.4(25I7929.1 to 2517929.2 redlined) 6
primary dealer by the Federal Reserve Bank of New York and a
member of the Security Investors Protection Corporation or
with a dealer or parent holding company that is rated
investment grade by Moody' s and by S&P, which repurchase
agreement is secured by securities described in (1) and (2)
above that (i) have a fair market value, exclusive of
accrued interest, at least equal to the percentage of the
amount invested in the repurchase agreement then required by
Moody' s and by S&P, (ii) are in the possession of the
Trustee or a third party acting solely as agent for the
Trustee who holds a perfected first lien therein, and
(iii) are free from all third party claims; provided, that
the Trustee shall be required to liquidate the securities
securing any such repurchase agreement if such securities do
not fulfill the requirements of (i) above;
(7) medium term corporate notes of a maximum of two
years, maturity issued by a corporation operating within the
United States of America that are rated in the top two,
rating categories by Moody' s and by S&P; and
(8) units of a taxable money-market fund portfolio
composed of obligations guaranteed by the full faith and
credit of the United States of America and rated in the
highest rating category by Moody' s and by S&P.
Prepayment Fund
The term "Prepayment Fund" means the fund by that name
established pursuant to Section 5 . 02 .
Principal Fund
The term "Principal Fund" means the fund by that name
established pursuant to Section 5 .02 .
Principal Payment Date
The term "Principal Payment Date" means a date on which
principal components evidenced and represented by the
Certificates become due and payable, being September 1 of each
year to which reference is made (commencing on ember 1,
1994) .
Project
The term "Project" means the open space leased to the
District M more particularly provided in the Project
oject Lease.
Project Lease
The term "Project Lease" means that certain Amended and
Restated Project Lease executed and entered into as of August 1,
1993, by and between the District and the Corporation, as
SF2-2S33".4(2SI7929.1 to 2SI7929.2 mdtiwj) 7
originally executed and entered into and as it may from time to
time be amended in accordance therewith and herewith.
Purchasers
The term "Purcha_sers" means Kidder Peabody & Co. ,
and Prudential Securities Incorporated, as purchasers of the
Certificates pursuant to the Certificates of Participation
Purchase Contract.
Rebate Fund
The term "Rebate Fund" means the fund by that name
established pursuant to Section 6. 08 .
Rebate Instructions
The term "Rebate Instructions" means those calculations
and
directions required to be delivered ered b the Distric
t under r and
pursuant to the Tax Certificate. y
h
Rebate Requirement
The term "Rebate Requirement" means the Rebate
Requirement as that term is defined in the Tax Certificate.
Refunding Fund
The term "Refunding Fund" means the fund by that name
established pursuant to Section 3 . 02 .
Rental Payment Fund
The term "Rental Payment Fund" means the fund by that
name established pursuant to Section 5 .01.
Rental Payments
The term "Rental Payments" means the rental payments of
interest and principal components and the prepayment premiums, if
any, scheduled to be paid by the District under and pursuant to
the Project Lease.
Reserve Fund
The term "Reserve Fund" means the fund by that name
established pursuant to Section 5 . 03 .
Reserve Fund Requirement
The term "Reserve Fund Requirement" means `s as of anv
date of calculation, the least of (a) ten per cent (10�) of the
initial offering price to the public of the Certificates nder
the Code, or (b) the maximum annual Base Rental u
Payments un!fter
SF2-2S3399.4(2S17929.1 to 2S17929.2 mdlined) 8
in the then current or any future one-year period ending on
h9gptember 1 under the Project Lease, or (c) one hundred twenty-
five per cent the average annual Base Rental Payments
payable in the then current or anv future one-year period ending
on SeRtember 1 under the Project Lease, all as computed by the
District, provided, that such requirement (or anv portion
thereof)mav be provided, but only upon prior written notification
to Moody's and to S&P as loncr as each such rating[ saenev
maintains a rating on the Certificates, '- one or more policies
Qf municipal bond insurance or surety bonds issued by a municipal
bond insurer or by a letter of credit issued by a bank, the
obligations insured by which insurer or issued by which bank, as
the case may be, have ratings of such policy or surety bond or
letter of credit equal to "Aaa" or higher assigned by Moodv's and
"AAA" or higher assigned by S&P.
Secretary
The term "Secretary" means the Secretary of the Board
of Directors.
&P
The term "S&P" means Standard & Poor' s Corporation, a
corporation duly organized and existing under and by virtue of
the laws of the State of New York, and its successors or assigns,
except that if such corporation shall be dissolved or liquidated
or shall no longer perform the functions of a securities rating
agency, then the term "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency selected by the
District.
Tax Certificate
The term "Tax Certificate" means that certificate
executed by the District at the time of the original issuance and
delivery of the Certificates relating to the requirements of
Section 148 of the Code, as originally executed and as it may
from time to time be amended or supplemented.
Trust A r m ru g ee ent
The term "Trust Agreement" means this Trust Agreement
executed and entere
d into as f Au
gust ugust 1, 1993, by and among the
Trustee, the Corporation and the District, as originally executed
and as it may from time to time be amended or supplemented in
accordance herewith.
1990 Trust Agreement
The term 111990 Trust Agreement" means that certain
Trust Agreement executed and entered into as of September 1,
1990, by and among the Trustee, the Corporation and the District.
SF2-2S3399.4(2S17929.1to 2S17929.2 mdhned) 9
Trustee
The term "Trustee" means Seattle-First National Bank, a
national banking association duly organized and existing under
and by virtue of the laws of the United States of America and
having its corporate trust office in Seattle, Washington, and its
successors or assigns, or any other bank or trust company which
may at any time be substituted in its place as provided by
Section 8 . 02 .
Written Request of the District
The term "Written Request of the District" means an
instrument in writing signed by the General Manager or the
Controller, or by any other officer of the District duly
authorized by the Board of Directors for that purpose, and by the
Secretary, with the seal of the District affixed.
SECTION 1. 02 . Equal Security. In consideration of the
acceptance of the Certificates by the Owners thereof, the Trust
Agreement shall be deemed to be and shall constitute a contract
between the Trustee and the Owners from time to time to secure
the full and final payment of the interest and principal and the
prepayment premiums, if any, evidenced and represented by the
Certificates, subject to the agreements, conditions, covenants
and terms contained herein; and all agreements, conditions,
covenants and terms contained herein required to be observed or
performed by or on behalf of the Trustee shall be for the equal
and proportionate benefit, protection and security of all Owners
without distinction, preference or priority as to security or
otherwise of any Certificates over any other Certificates by
reason of the number of date thereof or the time of execution or
delivery thereof or for any cause whatsoever, except as expressly
provided herein or therein.
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 . 01. Preparation of Certificates. The
Trustee is hereby authorized and directed, upon receipt of a
Written Request of the District, to execute and deliver the
Certificates in the aggregate principal amount of
dollars ($ ) , evidencing and representing the aggregate
principal -amount of the Rental Payments and each evidencing and
representing a proportionate, undivided interest in the Rental
Payments.
SECTION 2 . 02 . Denominations . Medium. Method and Place
of Payment and Dating of Certificates. The Certificates shall be
prepared in the form of fully registered certificates in
denominations of five thousand dollars ($5, 000) or any integral
multiple thereof, except that no Certificate shall have more than
SF2-2W399.4(2517929.1 to 2S17929.2 mdfina) 10
one Certificate Payment Date. The interest and principal and
prepayment premiums, if any, evidenced and represented by the
Certificates shall be payable in lawful money of the United
States of America. The interest evidenced and represented by the
Certificates prior to their respective Certificate Payment Dates
or on prepayment prior thereto shall be payable on their
respective Interest Payment Dates by check mailed by first class
mail by the Trustee on the date such interest is due to the
respective Owners thereof as shown in the books required to be
kept by the Trustee pursuant to the provisions of Section 2 .07 at
the close of business as of the fifteenth (15th) day of the month
next preceding each Interest Payment Date (except that in the
case of an Owner of one million dollars ($1, 000, 000) or greater
in aggregate principal amount of Outstanding Certificates, such
payment shall, at such Owner' s written request provided by such
Owner prior to the fifteenth (15th) day of the month preceding
such Interest Payment Date, be made by wire transfer of
immediately available funds in accordance with written
instructions provided by such owner) , and the interest evidenced
and represented by the Certificates on their respective
Certificate Payment Dates or on prepayment prior thereto and the
principal and prepayment premiums, if any, evidenced and
represented by the Certificates shall be payable on their
respective Certificate Payment Dates or on prepayment prior
thereto upon surrender thereof by the respective Owners thereof
at the corporate trust office of the Trustee in Seattle,
Washington. The Trustee may treat the Owner of any Certificate
as the absolute owner of such Certificate for all purposes,
whether or not such Certificate shall be overdue, and the Trustee
shall not be affected by any knowledge or notice to the contrary;
and payment of the interest and principal and prepayment premium,
if any, evidenced and represented by such Certificate shall be
made only to such Owner as above provided, which payments shall
be valid and effectual to satisfy and discharge the liability
evidenced and represented by such Certificate to the extent of
the sum or sums so paid. All Certificates paid pursuant to the
provisions of this section shall be cancelled and destroyed by
the Trustee and shall not be redelivered.
The Certificates shall be dated August 1, 1993, and
shall evidence and represent interest from the Interest Payment
Date next preceding the date of execution thereof by the Trustee,
unless such date of execution is on or after the sixteenth (16th)
day of the month next preceding an Interest Payment Date, in
which case they shall evidence and represent interest from such
Interest Payment Date, or unless such date of execution is on or
prior to Februa 15, 1994, in which case they shall evidence
and represent interest from August 1, 1993; provided, that if, at
the time of execution by the Trustee of any Certificate, interest
evidenced and represented by any Outstanding Certificate is in
default, such Certificate shall evidence and represent interest
from the last date for which interest has been paid.
SF2-=399.4(25I7929.1 to 25I7929.2 redEned) 11
SECTION 2 . 03 . Payment Dates of Certificates. The
Certificates shall have Certificate Payment Dates of September I
in the years and shall be in such principal amounts, with
interest installments thereon (computed on the basis of a 360-day
year of twelve 30-day months) at the rates, as follows:
Certificate
Payment Date Principal Interest
:)tember 1) Amount —Rate
1994 $
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2010
2020
The interest evidenced and represented by the
Certificates shall become due and payable on their respective
Interest Payment Dates, beginning on the Interest Payment Date
following their date and continuing to and including their
Certificate Payment Dates or on prepayment prior thereto.
The principal and prepayment premiums, if any,
evidenced and represented by the Certificates shall become due
and payable on their respective Certificate Payment Dates or on
prepayment prior thereto, and shall evidence and represent in sum
the portions of the Rental Payments constituting the principal
components and the prepayment premiums, if any, thereon becoming
due and payable on the Principal Payment Dates in each year.
SECTION 2 . 04. Forms of Certificates. The Certificates
(and the assignment to appear thereon) shall be in substantially
the forms set forth in Exhibit A attached hereto and incorporated
herein and made a part hereof, with appropriate or necessary
insertions, omissions and variations as permitted or required
thereby.
SECTION 2 . 05 . Execution of Certificates. The
Certificates shall be executed by the Trustee by the manual
signature of an authorized officer or signatory of the Trustee.
SECTION 2 . 06. Transfer andExchange of Certificates.
All Certificates are transferable or exchangeable by the Owner
thereof, in person or by an agent duly authorized in writing by
the Owner, at the corporate trust office of the Trustee in
Seattle, Washington, in the registration books required to be
SP2-253399.4(25I7929.1 to 25I7929.2 mdfincd) 12
kept by the Trustee pursuant to the provisions of Section 2 . 07,
upon surrender of such Certificates accompanied by delivery of a
duly executed written instrument of transfer or exchange in a
form approved by the Trustee. Whenever any Certificate or
Certificates shall be surrendered for transfer or exchange, the
Trustee shall execute and deliver a new Certificate or
Certificates of authorized denominations of the same Certificate
Payment Date evidencing and representing the same aggregate
principal amount without charge to the Owner, except that the
Trustee shall require the payment by any Owner requesting such
transfer or exchange of any tax, governmental charge or transfer
fee that may be imposed with respect to such transfer or
exchange. All Certificates surrendered pursuant to the
provisions of this section shall be cancelled and destroyed by
the Trustee and shall not be redelivered.
The Trustee shall not be required (i) to transfer or
exchange any Certificates during the fifteen-day period prior to
the selection of any Certificates for prepayment in whole or in
part under Article IV, or (ii) to transfer or exchange any
Certificate selected for prepayment in whole or in part from and
after the date that such Certificate has been selected for
prepayment in whole or in part under Article IV.
The cost of printing the Certificates and of any
services rendered or expenses incurred by the Trustee in
connection with any exchange or transfer shall be paid by the
District.
SECTION 2 .07. Certificate Registration Books. The
Trustee will keep at its corporate trust office in Seattle,
Washington, sufficient books for the registration of the
ownership, transfer or exchange of the Certificates, which books
shall be available for inspection by the District, the
Corporation or any Owner or his agent duly authorized in writing
at reasonable hours and under reasonable conditions and upon
reasonable written request during regular business hours of the
Trustee on any Business Day; and upon presentation for such
purpose the Trustee shall, under such reasonable regulations as
it may prescribe, register the ownership, transfer or exchange of
the Certificates in such books as hereinabove provided. The
ownership of any Certificates shall be proved by the books
required to be kept by the Trustee pursuant to the provisions of ,
this section.
SECTION 2 . 08 . Temporary Certificates. The
Certificates may be initially delivered in temporary form
exchangeable for definitive Certificates when ready for delivery,
which temporary Certificates shall be printed, lithographed or
typewritten, shall be of such denominations as may be determined
by the Trustee, shall be in fully registered form and shall
contain such reference to any of the provisions hereof as may be
appropriate. Every temporary Certificate shall be executed and
delivered by the Trustee upon the same conditions and terms and
SF2-2s3399.4(2517929.1 to 2S17929.2 rtdlincd) 13
in substantially the same manner as definitive Certificates. If
the Trustee executes and delivers temporary Certificates, it will
execute and deliver definitive Certificates without delay, and in
that case, upon demand of the Owner of any temporary
Certificates, such definitive Certificates shall be exchanged by
the Trustee at its corporate trust office in Seattle, Washington,
without cost to such Owner for temporary Certificates upon
surrender of such temporary Certificates, and until so exchanged
such temporary Certificates shall be entitled to the same
benefit, protection and security hereunder as the definitive
Certificates executed and delivered hereunder. All temporary
Certificates surrendered pursuant to the provisions of this
section shall be cancelled by the Trustee and shall not be
redelivered.
SECTION 2 . 09 . -Certificates Mutilated, Lost. Destroyed
gr Stolen. If any Certificate shall become mutilated, the
Trustee shall execute and deliver a new Certificate of like tenor
and Certificate Payment Date in exchange and substitution for the
Certificate so mutilated, but only upon surrender to the Trustee
of the Certificate so mutilated, and every mutilated Certificate
so surrendered to the Trustee shall be cancelled by it. If any
Certificate shall be lost, destroyed or stolen, evidence of such
loss, destruction or theft may be submitted to the Trustee, and
if such evidence is satisfactory to the Trustee and indemnity
satisfactory to the Trustee shall be given, the Trustee shall
execute and deliver a new Certificate of like tenor and
Certificate Payment Date in lieu of and in substitution for the
lost, destroyed or stolen Certificate. The Trustee may require
payment from the Owner of a sum not exceeding the actual cost of
preparing each new Certificate executed and delivered by it under
this section and of the expenses which may be incurred by it
under this section. Any replacement Certificate executed and
delivered under the provisions of this section in lieu of and in
substitution for any mutilated, lost, destroyed or stolen
Certificate shall be equally and proportionately entitled to the
benefit, protection and security hereof with all other
Certificates executed and delivered hereunder; and the Trustee
shall not be required to treat both the original Certificate and
any replacement Certificate as being Outstanding for the purpose
of determining the principal amount of Certificates which may be
executed and delivered hereunder or for the purpose of
determining any percentage of Certificates Outstanding hereunder,
but both the original and the replacement Certificate shall be
treated as one and the same instrument. Notwithstanding any
other provisions of this section" rather than executing and
delivering a new Certificate for a mutilated, lost, destroyed or
stolen Certificate which has been called for prepayment or the
Certificate Payment Date of which has occurred, the Trustee may
make payment of the principal evidenced and represented by such
mutilated, lost, destroyed or stolen Certificate directly to the
Owner thereof under such regulations as the Trustee may prescribe
upon receipt of the aforementioned indemnity.
SF2-2M399.4(2SI7929.I to 2S17929.2 redlinc4) 14
SECTION 2 .10. Use of Depository (a) Notwithstanding
any provision contained herein to the contrary, The Depository
Trust Com an New York New York is hereb a ointed deROsitOKY
for the
Certificat
es , and the Certificates shall be r e ist r e ed on
original issuance in N
N the name of e C de & Co as nominee of The
De osito Trus
t Ir and shall be evidenced b one
Certificate maturing on each of the Certificate Payment Dates set
forth in Section 2 . 03 each of which Certificates shall be in the
rinci al amount corres ondin to the total rinci al amount of
the Certificates to become payable on such Certificate Pa en
D ate and whi
ch shall be numbered in consecutive order from R 1
_upwards. Registered ownership of the Certificates or any
portion thereof, may not thereafter be transferred except:
i p
To any successor of The Deository Trust
Co an or nominee or to an=X substitute de osito
designated pursuant to clause (ii) of this subsection (a
"substitute depository") * provided that any successor of
The Depository Trust Company or any substitute depasitory
shall be crualified under any applicable laws to provide the
service proposed to be provided by its
To any substitute depository designated by
the District, upon (1) the resignation of The Depository
Trust Company or its successor (or any substitute depository
or its successor) from its functions as depository, or (2) a
determination by the District that The Depositary Trust
Company or its successor (or any substitute depository or
its successor is no loncrer able to ca,r= out its function
as depository; provided that any such substitute depositary
shall be crualified under any applicable laws to provide the
services proposed to be provided by it; or
To any person as provided below upon (1) the
resicrnatlion of The De osi a Trust om an or it uccessor
or an substitute depository or its successor) fro
m i
functions as de a sits u on a determination b the
District that no substitute depository can be obtained or
12) a determination by the District that it is is the best
interests of the District to remove The Depository Trust
Co an or its successor Aor any substitute deposit
its successor) from its functions as depository. aKX r
>� In the case of any transfer pursua
nt to Clause 1
or clause ii of subsection a u on recei t of all Out tandin
Certificates by the Trustee, together with a Written Request of
the Di stric t a n ew Certificate shall be executedd n eliv i
a d
r d
for each maturity of the Certificates then Outstanding,
registered in the name of such
ees
successor or such substit
ute
e asito or their nomin
as the case ma
y be all a
s cified in su h Written Re est of the Dis
trict.
ct IA the case
of aav transfer pursuant to clause (iii) of subsection (a) , upon
recei t of all Ou tstandin r Ce tiff cats s b the
T rust a to ether
with a Written Request of the District, new Certificates shall be
SF2-2S3399.4(2517929.1to 2S17929.2 mdiined) 1 5
I'
executed and delivered in_such denominations and registered in
the names of such ersons as are re ested in such Written
Request of the District, subiect to the limitations of Section
2 .02 ; provided, that the Trustee shall not be required to deliver
such new Certificates within a period less than sixty (60) days
from he date of recei t of such Written Re est of the Di rict-
n rovided further that subse ent to an transfer urs as to
clause iii of subsection a the Certificates shall be
ransferred as rovided in Section 2 . 66.
Ic
In the case of Dartial prepayment or an advance
refunding of the Certificates evidencing all or a portion of the
principal components of the Base Rental Payments becoming payable
in a particular Year, The Depository Trust Company shall make an
appropriate notation on the Certificates indicating the date and
amounts of such reduction in principal in form and acceptable to
the Trustee.
,�]d The District and the Trustee shall be entitled to
treat the person in whose name any Certificate is registered as
the Owner thereof for all purposes hereof and any applicable
laws, notwithstanding anv notice to the contrary received by the
District or the Trustee; and the District and the Trustee shall
have no responsibility for transmitting payments to
communication with, notifying or otherwise dealing with any
beneficial owners of the Cert
ificates,
ates and neither the• e District
nor the Trustee shall have anv responsibility or obligations,
legal or otherwise, to the beneficial owners or to anv other
Party including The De osito Trus t Co an or i is ouggepsor or
gaX substitute deRosito
ry or its
successor) , exce t s the
ZMer
of a C r e tifi sate.
e, go long as the Outstanding Certificates are
registered in the name of Cede & Co or its registered assigns
the District and the Trustee shall cooperate with Cede & Co , as
sole registered Owner, and its registered assigns in effecting
payment of the interest and principal and prepayment premiums, if
any, evidenced and represented by the Certificates by arranging
for navment in such manner that funds for such payments are
properly identified and are made immediately available on the
date they are due.
ARTICLE III
DELIVERY OF CERTIFICATES
SECTION 3 . 01. Delivery of Certificates. The Trustee
is hereby authorized to execute and deliver the Certificates to
the M Purchasers pursuant to the Certificates of Participation
Purchase Contract upon receipt of a Written Request of the
District and upon receipt of the proceeds of sale thereof.
SF2-2S3399.4(2S17929.1 to 2S17929.2 redlined) 16
SECTION 3 . 02 . Deposit of Proceeds of Certificates.
The proceeds received from the sale of the Certificates shall be
deposited in the Rental Payment Fund, the Reserve Fund, the
Refunding Fund the Acquisition Fund and the Costs of Issuance
Fund as follows:
(a) Rental Payment Fund. The Trustee shall deposit in
the Rental Payment Fund the amount of accrued interest
received with respect to the Certificates.
(b) Reserve Fund. The Trustee shall deposit in the
Reserve Fund the amount of the Reserve Fund Requirement.
(c) Refunding Fund. The Trustee shall deposit in the
Refunding Fund, which fund the Trustee hereby agrees to
establish and maintain until the defeasance of the 1990
Certificates as provided in the 1990 Trust Agreement, the
amount of $ --1 which, together with the sum of
$ deposited therein from other available funds of
the District, will be sufficient (in the determination of an
independent certified public accountant, who shall certify
such determination in writing to the Trustee) to purchase
Federal Securities that will be sufficient to provide for
the payment of all outstanding 1990 Certificates on their
respective payment dates on and prior to September 1, 2002,
together with accrued interest thereon, and the prepayment
of all outstanding 1990 Certificates on September 1, 2002,
together with accrued interest thereon, all as provided in
and subject to the 1990 Trust Agreement. All money in the
Refunding Fund shall be applied by the M Trustee to the
purchase of such Federal Securities, aria all money remaining
in the Refunding Fund after the making of such purchase
shall be applied and transferred as set forth in a Request
of the District.
Id I Acquisition Fund. The Trustee shall deposit in
the AcgMisition Fund, which fund the Trustee hereby agrees
to establish and maintain until the completion of the
acquisition of open space for the District to be funded from
such fund as Provided herein, the amount of g--
All money in the Acquisition Fund shall be used an
withdrawn by the Trustee to Pay the costs of acquisition of
open space for the District for to reimburse the District
for such costs) upon receipt of a ,Written Request of the
District filed with the Trustee, each of which shall be
sequentially numbered and shall state JUI_person to whom
payment -.-a to be made, the amount of money to be Paid, the
purpose for which the obligation ta_h1_paid was incurred and
that such 'Payment is a proper charge against the Acquisition
Fund and has not been the subject of a previous Written
Request of the District. After the completion of the
acquisition of open space for the District to be funded from
the Acquisition Fund, any remaining balance in the
SF2-2M3".4(25I7929.1 to 2S17929.2 rcdliwA) 17
&qMisition Fund shall be transferred by the Trustee to the
Base Rental Payment Fund.
Costs of IssuanceFund. The Trustee shall
depos'1"'t in the Costs of Issuance Fund, which fund the
Trustee hereby agrees to establish and maintain until
February 1, 1994, the remainder of the proceeds of sale of
the Certificates . All money in the Costs of Issuance Fund
shall be used and withdrawn by the Trustee to pay the Costs
of Issuance upon receipt of a Written Request of the
District filed with the Trustee, each of which shall be
sequentially numbered and shall state the person to whom
payment is to be made, the amount of money to be paid, the
purpose for which the obligation to be paid was incurred and
that such payment is a proper charge against "t� ,the Costs of
Issuance Fund and has not been the subject of-_a previous
Written Request of the District. On February 1, 1994, or
upon the earlier Written Request of the District stating
that all Costs of Issuance have been paid or provided for
(including the retention of such amounts for payment of
Costs of Issuance as shall have been incurred but not yet
billed) , any remaining balance in the Costs of Issuance Fund
(less any such retention) shall be transferred by the
Trustee to the Base Rental Payment Fund.
ARTICLE I
PREPAYMENT OF CERTIFICATES
SECTION 4 . 01. Terms of Prepayment.
(a) The Certificates are subject to prepayment prior
to their respective Certificate Payment Dates, upon notice as
hereinafter provided, as a whole on any date, or in part by lot
on any Interest Payment Date within each Certificate Payment Date
in integral multiples of five thousand dollars ($5, 000) principal
amount so that the aggregate annual amounts of principal
evidenced and represented by the Certificates which shall be
payable after such prepayment date shall be as nearly
proportional as practicable to the aggregate annual amounts of
principal evidenced and represented by the then 2MtMJgn!ding
Certificates, from prepaid Rental Payments madey the District
from funds received by the District due to a governmental taking
of the Project or portions thereof by eminent domain proceedings,
under the circumstances and upon the conditions and terms
prescribed herein and in the Project Lease, at a prepayment price
equal to the sum of the principal amount evidenced and
represented thereby plus accrued interest evidenced and
represented thereby to the date fixed for prepayment, without a
prepayment .premium.
(b) The Certificates with Certificate Payment Dates of
September 1, 2010, and ^ SeRtember 1, 2020, are subject to
SF2-2S3399.4(2S17929.1 to 2S17929.2 rcdhncd) 18
mandatory prepayment prior to their respective Certificate
Payment Dates, upon notice as hereinafter provided, in part by
lot on any September I on or after t'
September 1, 2005 (for the
Certificates" with a Certificate Payme Ht Date of . September 1,
2010) and in part by lot on any September 1 onso-r after
September 1, 2011 (for the Certificates with a Certificate
Payment Date of , 'later 1, 2020) , in each case in integral
multiples of five thousand dollars ($5, 000) principal amount,
solely from scheduled Rental Payments in accordance with the
schedule set forth below, at a prepayment price equal to the sum
of the principal amount or such part thereof evidenced and
represented by the Certificates to be prepaid plus accrued
interest evidenced and represented thereby to the date fixed for
prepayment, without a prepayment premium, namely:
Prepayment Date Principal
(SeRtember 1) Amount
2005 $
2006
2007
2008
2009
2010 (Maturity)
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020 (Maturity)
]2rovided, that if any of such Certificates shall have Prepaid in
accordance with the Provisions of -Section, 4.01 (c) , the tg&g1
unpaid Principal amount thereof shall be reduced by an AM9—un-t
equal to the amount of such prepayment, and the foreaoinq
schedulgo gf pr,epaXMe I nt (an!a the rental- DayMent du .., 2r the
Proleg_t-Lease)—shall be recomputed by the District (with a copy
of such rec2Mutation filed with the Trustee) so as to X"vide
for aRl2roximatelX equal annual-payments of interest and Principal
evidenced and represented by such Certificates after such
prepayment.
(c) The Certificates with Certificate Payment Dates on
or after September 1, J" 2004, are subject to optional
prepayment by the District prior to their respective Certificate
Payment Dates, upon notice as hereinafter provided, as a whole or
in part in integral multiples of five thousand dollars ($5, 000)
principal amount in inverse order of Certificate Payment Dates
(and by lot within any one Certificate Payment Date) , on any
Interest Payment Date on or after September 1,
2 0 03, from
SF2-2S3399.4(2SI7929.1 to 2S17929.2 repined) 19
prepaid Rental Payments, at a prepayment price equal to the sum
of the principal amount or such part thereof evidenced and
represented by the Certificates to be prepaid, plus the following
prepayment premiums (computed upon the principal amount or such
part thereof evidenced and represented by the Certificates to be
prepaid) plus accrued interest evidenced and represented thereby
to the date fixed for prepayment, namely:
Prepayment Prepayment
Date Premium
912L ember 1, 2003 , or March 1, 2004
_
1, 2004, or 1, 2005 1LIL2
September
Se
l2tember 1, 2005, or -t March 1, 2006 1
kqeRt2Mber 1, 2006, or arch 1, 2007 1/2 of 1
On or after September 1 2007, and prior
.
to their 8�irtificate Payr6 nt Date 0
SECTION 4 . 02 . Selection of Certificates for Prepayment
Whenever less than all the Outstanding Certificates of any one
Certificate Payment Date are to be prepaid on any one date, the
Trustee shall select the Certificates of such Certificate Payment
Date to be prepaid from the Outstanding Certificates of such
Certificate Payment Date by lot in any manner that the Trustee
deems fair, and the Trustee shall promptly notify the District
and the Corporation in writing of the numbers of the Certificates
so selected for prepayment on such date.
SECTION 4 .03 . Notice of Prepayment. Notice of
prepayment shall be given by mail on behalf of and at the expense
of the District in accordance with Section 11.07 to the
respective Owners of any Certificates designated for prepayment
in whole or in part prior to their prepayment date and to all
securities depositories and securities information services
selected by the District to comply with custom or the rules of
any securities and exchange commission or brokerage board or
otherwise as may be determined by it in its sole discretion.
Each notice of prepayment shall state the. date of notice, the
prepayment date, the prepayment place (including the name and
address of the Trustee) and the prepayment price, shall designate
the Certificate Payment Date, the CUSIP numbers, if any, and, if
less than all Certificates with any one Certificate Payment Date
are to be prepaid, the serial numbers of the Certificates to be
prepaid by giving the individual number of each Certificate or by
stating that all Certificates between two stated numbers, both
inclusive, have been called for prepayment, shall (in the case of
any Certificate called for prepayment in part only) state the
Portion of the principal amount evidenced and represented thereby
which is to be prepaid, and shall state that the interest
SF2-2M399.4(2S17929.1 to 2S17929.2 redlincd) 20
I
evidenced and represented by the Certificates or the portions
thereof designated for prepayment shall cease to accrue from and
after such prepayment date and that on such prepayment date
there will become due and payable on each of the Certificates or
portions thereof designated for prepayment the prepayment price
evidenced and represented thereby, and shall require that such
Certificates be surrendered at the address of the Trustee so
designated, and if any Certificate chosen for prepayment shall
not be prepayable in whole, such notice shall also state that
such Certificate is to be prepaid in part only and that upon
presentation of such Certificate for prepayment there will be
issued in lieu of the unprepaid principal amount evidenced and
represented thereby a new Certificate or Certificates of the same
Certificate Payment Date of authorized denominations equal in
aggregate principal amount to such unprepaid principal amount;
provided, that the Trustee shall have no responsibility for any
defect in the CUSIP number that appears on any Certificate or in
the prepayment notice thereof and such notice shall state that
the CUSIP numbers have been assigned by an independent service
and are included in such notice solely for the convenience of the
Owners and that the District and the Trustee are not liable for
any inaccuracies in such numbers.
The Trustee shall give notice of prepayment of any
Certificates to be prepaid upon receipt of a Written Request of
the District (which request shall be given' to the Trustee at
least forty five (45) days prior to the date fixed for
prepayment) , but only after the District shall have made a
prepaid Rental Payment to the Trustee and the Trustee shall have
deposited in the Prepayment Fund such prepaid Rental Payment in
an amount sufficient for the payment of the prepayment price
represented by all Certificates to be prepaid (or the Trustee
determines that a prepaid Rental Payment will be made available
to it in an amount sufficient and in time sufficient for such
purpose) , together with the estimated expense of giving such
notice.
SECTION 4. 04 . Partial Prepayment of Certificates.
Upon surrender of any fully registered Certificate prepaid in
part only, the Trustee shall execute and deliver to the Owner
thereof a new Certificate or Certificates representing the
unprepaid principal amount of the Certificate surrendered.
SECTION 4.05 . Effect of Prepayment. If notice of
prepayment has been duly given to the Owners as aforesaid and
money for the payment of the prepayment price of the Certificates
or portions or i t p thereof to be prepaid is held by the Trustee, then on
the prepayment date designated in such notice the Certificates or
such portions thereof so called for prepayment shall become
payable at the prepayment price evid
enced
and represented
esente d thereb
y
y
as specified in such notice; and from and after the date so
designated interest evidenced and represented by the Certificates
or such portions thereof so called for prepayment sha
ll cea
se to
accrue, such Certificates or such portions thereof shall cease to
SF2-2S3399.4(2517929.1 to 2S17929.2 redlined) 21
be entitled to such benefit, protection or security hereunder and
the Owners of such Certificates shall have no rights in respect
thereof except to receive payment of the prepayment price
evidenced and represented by the Certificates or such portions to
be prepaid. The Trustee shall, upon surrender for prepayment of
any of the Certificates to be prepaid in whole or in part on
their prepayment dates, pay such Certificates or such portions
thereof at the prepayment price evidenced and represented
thereby. All Certificates paid pursuant to the provisions of
this article shall be cancelled and destroyed by the Trustee and
shall not be redelivered. All moneys held by or on behalf of the
Trustee for the prepayment of any particular Certificates shall
be held in trust for the account of the Owners of the
Certificates to be prepaid and the Trustee shall not be liable
for any interest earned on the amounts so held by it.
ARTICLE
RENTAL PAYMENTS
SECTION 5 . 01. Use of Rental Payments. All Rental
Payments shall be paid directly by the District to the Trustee,
and if received by the Corporation at any time shall be deposited
by the Corporation with the Trustee within one (1) Business Day
after the receipt thereof. All Rental Payments shall be held in
trust by the Trustee in the Rental Payment Fund, which fund the
Trustee hereby agrees to establish and maintain so long as any
Certificates are Outstanding, for the benefit of the District
until deposited in the funds provided in Section 5.02, whereupon
they shall be held in trust by the Trustee in such funds for the
benefit of the Owners from time to time, and the District and the
Corporation hereby pledge and grant a lien on and a security
interest in the money in the Rental Payment Fund to the Trustee
for the benefit of the Owners.
SECTION 5.02 . Deposit of- money in the Rental Payment
Fund. The Trustee shall deposit the money contained in the
Rental Payment Fund at the following respective times in the
manner hereinafter provided in the following respective funds,
each of which the Trustee hereby agrees to establish and maintain
so long as any Certificates are Outstanding, and the moneys in
each of such funds shall be disbursed only for the purposes and
uses hereinafter authorized ) namely:
(a) Interest Fund. The. Trustee, on each Interest
Payment Date (commencing on March 1994) , shall deposit in
the Interest Fund that amount of money evidencing and
representing the portion of the Rental Payments designated
as interest coming due on such Interest Payment Date. All
money in the Interest Fund shall be used and withdrawn by
the Trustee solely for the purpose of paying the interest
evidenced and represented by the Certificates on their
respective Interest Payment Dates.
SF2-233399.4(2S17929.1 to 2S17929.2 mdlined) 22
(b) Principal Fund. The Trustee, on each Principal
Payment Date (commencing on ft gelptember 1, 1994) , shall
deposit in the Principal Fund that amount of money
evidencing and representing the portion of the Rental
Payment designated as principal coming due on such Principal
Payment Date. All money in the Principal Fund shall be used
and withdrawn by the Trustee solely for the purpose of
paying the principal evidenced and represented by the
Certificates on their respective Certificate Payment Dates
or on mandatory prepayment prior thereto pursuant to Section
4 .01 (b) .
(c) Prepayment Fund. The Trustee, on the prepayment
date specified in the Written Request of the District filed
with the Trustee at the time that any prepaid Rental
Payments is paid to the Trustee pursuant to the Project
Lease, shall deposit in the Prepayment Fund that amount of
money evidencing and representing the portion of the Rental
Payments designated as prepaid Rental Payments. All money
in the Prepayment Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest and
principal and prepayment premiums, if any, evidenced and
represented by the Certificates to be prepaid on their
respective prepayment dates.
All deposits made by the District with the Trustee
prior to each Interest Payment Date or Principal Payment Date
shall be invested by the Trustee in Federal Securities maturing
on or prior to such Interest Payment Date or Principal Payment
Date, as the case may be, and the Trustee shall pay to the
District all earnings on such investments.
SECTION 5. 03 . Reserve Fund. The Trustee shall deposit
in the Reserve Fund, which fund the Trustee hereby agrees to
establish and maintain so long as any Certificates are
Outstanding, a sum equal to the Reserve Fund Requirement. All
money on deposit in the Reserve Fund in excess of the Reserve
Fund Requirement shall be withdrawn from the Reserve Fund and
deposited by the Trustee in the Rental Payment Fundnd for
the purpose of determining the amount of any such d'e"'posit, all
investments in the Reserve Fund shall (beginning in 9.i March,
1994) be valued on the first (1st) Business Day of
March and
ge2tember of each year by the Trustee at the lesser of (a) the
original cost thereof (excluding any brokerage commissions and
excluding any accrued interest) or (b) the par amount thereof,
except that any investment having an investment maturity in
excess of six (6) months from the date of acquisition thereof
shall be valued by the Trustee at the market value thereof. The
District and the Corporation hereby pledge and grant a lien on
and a security interest in the Reserve Fund to the Trustee in
order to secure the obligation of the District to pay the Rental
Payments scheduled to be paid by it under the Project Lease, and
the Trustee is authorized to withdraw any money on deposit in the
Reserve Fund solely for the payment of Rental Payments due and
SF2-2S3399.4(2S17929.1 to 2S17929.2 redline!) 23
payable by the District under the Project Lease if and when the
District shall fail to make any such payment. At the termination
of the Trust Agreement, and after all of the Certificates have
been retired and the entire amount of principal, in and
prepayment premiums, if any, evidenced and represented by the
Certificates shall have been paid in full, or provision has been
made for such payment satisfactory to the Trustee, including the
payment of all amounts due the Trustee pursuant to Section 8. 03,
any balance of money remaining in the Reserve Fund shall be
released from the foregoing pledge, lien and security interest
and shall be transferred to such other fund or account of the
District or shall be otherwise used by the District for any
lawful purposes as the District may direct.
ARTICLE VI
COVENANTS
SECTION 6.01. Compliance with Trust Agreement. The
Trustee will not execute or deliver any Certificates in any
manner other than in accordance with the provisions hereof, and
neither the District nor the Corporation nor the Trustee will
suffer or permit any default by either of them to occur
hereunder, but all of them will faithfully comply with, keep,
observe and perform all the agreements, conditions, covenants
and terms contained herein required to be complied with, kept,
observed and performed by each of them.
SECTION 6. 02 . Compliance with Protect Lease. The
District and the Corporation will faithfully comply with, keep,
observe and perform all the agreements, conditions, covenants and
terms contained in the Project Lease required to be complied
with, kept, observed and performed by each of them, and together
with the Trustee, each of them will enforce the Project Lease
against the other party thereto in accordance with its erms.
The District and the Corporation will not amend the
Project Lease without the prior written consent of the Trustee,
which consent shall be given only W if, in the opinion of the
Trustee (which opinion may, in the discretion of the Trustee, be
based upon an Opinion of Counsel or a Certificate of the
District) , such amendments will not result in any material
impairment of the security given or intended to be given for the
payment of the Rental Payments, or (ii) if the Trustee first
obtains the written consents of the Owners of a majority in
principal amount of the then Outstanding Certificates to such
amendment.
SECTION 6.03 . Observance of Laws and Regulations. The
District and the Corporation and the Trustee will faithfully
comply with, keep, observe and perform all valid and lawful
obligations or regulations now or hereafter imposed on them by
contract, or prescribed by any law of the United States of
M-WMA(2S17929.1 to 25I7929.2 redlinM) 24
America or of the State of California, or by any officer, board
or commission having jurisdiction or control, as a condition of
the continued enjoyment of each and every franchise, right or
privilege now owned or hereafter acquired by them, including
their right to exist and carry on their respective businesses, to
the end that such franchises, rights and privileges shall be
maintained and preserved and shall not become abandoned,
forfeited or in any manner impaired.
SECTION 6 . 04. Other Liens. The District will keep the
Project and all portions thereof free from judgments and liens
and free from all claims, demands or encumbrances of whatever
nature or character, and free from any claim or liability which
might embarrass or hamper the District in conducting its business
or utilizing the Project or any portion thereof. The District
will notify the Trustee within five (5) days of receipt by the
District of notice of any lien, claim or liability encompassed by
this section. The Trustee at its option (after first giving the
District ten (10) days' written notice to comply therewith and
failure of the District to so comply within such period) may
defend against any and all actions or proceedings in which the
validity hereof is or might be questioned, or may pay or
compromise any claim or demand asserted in any such actions or
proceedings; provided, that in defending against any such actions
or proceedings or in paying or compromising any such claims or
demands, the Trustee shall not in any event be deemed to have
waived or released the District from liability for or on account
of its failure to observe or perform any of the agreements,
conditions, covenants or terms contained herein required to be
observed or performed by it, or from its liability hereunder to
defend the validity hereof and to observe and perform all such
agreements, conditions, covenants and terms.
So long as any Certificates are Outstanding, neither
the District nor the Corporation will create or suffer to be
created any pledge of or lien on the money in the Rental Payment
Fund or the Reserve Fund other than as provided in Article V.
SECTION 6 . 05. Prosecution and Defense of Suits. The
District will promptly, upon request of the Trustee or any Owner,
take such action from time to time as may be necessary or proper
to remedy or cure any cloud upon or defect in the title to the
Project or any part thereof, whether now existing or hereafter
developing, will prosecute all actions, suits or other
proceedings as may be appropriate for such purpose and will
indemnify and save the Trustee and every Owner harmless from all
cost, damage, expense or loss, including attorneys' fees, which
they or any of them may incur by reason of any such cloud,
defect, action, suit or other proceeding.
The District will defend against every action, suit or
other proceeding at any time brought against the Trustee or any
Owner upon any claim arising out of the receipt, deposit or
disbursement of any of the Rental Payments or involving the
M-=3"A(2SI7929.1 to 2S17929.2 redrmed) 25
rights of the Trustee or any Owner hereunder; provided, that the
Trustee or any Owner at its or his election may appear in and
defend any such action, suit or other proceeding. The District
will indemnify and hold harmless the Trustee and the Owners
against any and all liability claimed or asserted by any person
arising out of any such receipt, deposit or disbursement, and
will indemnify and hold harmless the Owners and the Trustee
against any attorneys, fees or other expenses which any of them
may incur in connection with any litigation or otherwise in
connection with the foregoing to which any of them may become a
party in order to enforce their rights hereunder or under the
Certificates, provided that such litigation as applicable to the
Owners only shall be concluded favorably to such Owners'
contentions therein.
SECTION 6 . 06 . Accounting Records and Statements. The
Trustee will keep proper accounting records in which complete and
correct entries shall be made of all transactions relating to
receipt, deposit and disbursement of the Rental Payments, and
such accounting records shall be available for inspection by the
Corporation, the District or any owner or his agent duly
authorized in writing at reasonable hours and under reasonable
conditions. Not later than July 15 in each year, commencing on
July 15, 1991, and continuing so long as any Certificates are
Outstanding, the Trustee will furnish to the Corporation, the
District and any Owner who may so request (at the expense of such
Owner) a complete statement covering the receipts, deposits and
disbursements of the Rental Payments for the twelve-month period
ending on the preceding June 30.
SECTION 6 . 07. Recordation and Filing. The Trustee
will file, record, register, renew, refile and-rerecord all such
documents, including financing statements (or continuation
statements in connection therewith) , as may be required by law in
order to maintain at all times a security interest in the money
in the Rental Payment Fund and in the Reserve Fund hereunder, all
in such manner, at such times and in such places as may be
required and to the extent permitted by law in order to fully
perfect, preserve and protect the security of the Owners and the
rights and security interests of the Trustee, and the Trustee
will do whatever else may be necessary or be reasonably required
in order to perfect and continue the lien of the moneys in the
Rental Payment Fund and in the Reserve Fund as provided herein.
SECTION 6. 08 . Tax Covenants. 't The Corporation and
the District will at all times do and perform 12, acts and things
permitted by law which are necessary or desirableassure that the interest evidenced and represented by the
Certificates will not be included in the arose income of the
Owners of the Certificates for federal income tax purposes -under
the Code and will take no action thatwould result in such
-interest beingL so- included. and withoutAnna-
th2 Corporation and the District will at all times comply_with
the requirements of the Certificate. covenant shall
SF2-2S3399.4(2S17929.1 to 25I7929.2 redtined) 26
purvive any defeasance or discharge of the Certificates vursuant
to Article X or any.prepa ent of the Certifica es hereunder.
SECTION 6. 09 . Further Assurances. Whenever and so
often as requested to do so by the Trustee or any Owner, the
Dis
trict an
d the Cor
poration will promptly execute and deliver or
cause to be exe
cuted
ted and delivered all such other
e and further
assurances, documents or instruments and promptly do or cause to
be done all such other and further things as may be necessary or
reasonably required in order to further and more fully vest in
the Trustee and the Owners all advantages, benefits, interests,
powers, privileges and rights conferred or intended to be
conferred upon them hereby.
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7. 01. Action on Default. If an Event of
Default (as that term is defined in the Project Lease) shall
happen, then such Event of Default shall constitute a default
hereunder, and in each and every such case during the continuance
of such Event of Default the Trustee may, and at the written
direction of the Owners of not less than a majority in principal
amount of the then Outstanding Certificates, and the Trustee
being indemnified to its satisfaction in accordance with Section
8 . 04, shall be entitled, upon notice in writing to the District
and the Corporation, to exercise the remedies provided to the
Corporation in the Project Lease; provided, that nothing
contained herein shall affect or impair the right of action of
any Owner to institute suit directly against the District to
enforce payment of the obligation evidenced and represented by
such Owner's Certificate.
SECTION 7.02 . Other Remedies of the Trustee. The
Trustee shall have the right - -
(a) by mandamus or other action or proceeding or suit
at law or in equity to enforce its rights against the
District or the Corporation, and to compel the District or
the Corporation to perform or carry out its duties under law
and the agreements- and covenants required to be performed by
it contained herein;
(b) by suit in equity to enjoin any acts or things
which are unlawful or violate the rights of the Trustee; or
(c) by suit in equity upon the happening of any
default hereunder to require the District and the
Corporation to account as the trustee of an express trust.
SECTION 7. 03 . Non-Waiver. A waiver of any default by
the Trustee hereunder shall not affect any subsequent default or
SF2-2S3399.4(2S17929.1 to 2S17929.2 red i=A) 27
impair any rights or remedies on any such subsequent default, and
no delay or omission by the Trustee to exercise any right or
remedy accruing upon any default hereunder shall impair any such
right or remedy or shall be construed to be a waiver of any such
default or an acquiescence therein, and every right or remedy
conferred upon the Trustee by law or by this article may be
enforced and exercised from time to time and as often as shall be
deemed expedient by the Trustee.
If any action, proceeding or suit to enforce any right
or to exercise any remedy is abandoned or determined adversely to
the Trustee, the Trustee and Corporation and the District shall
be restored to their former positions, rights and remedies as if
such action, proceeding or suit had not been brought or taken.
SECTION 7. 04 . Application of Funds. All moneys
received by the Trustee pursuant to any right given or action
taken under the provisions of this article or of Article V of the
Project Lease shall be deposited in a segregated account and
shall be applied by the Trustee in the following order and upon
presentation of the several Certificates, and the stamping
thereon of the payment if only partially paid, or upon the
surrender thereof if fully paid -
First, Costs and Expenses: to the payment of the costs
and expenses of the Trustee (including any outstanding fees and
expenses of the Trustee) and, after payment in full to the
Trustee, of the Owners in declaring such Event of Default,
including reasonable compensation to its or their agents,
accountants and counsel;
Second, Interest: to the payment to the persons
entitled thereto of all payments of interest evidenced and
represented by the Certificates then due, and, if the amount
available shall not be sufficient to pay in full any payment or
payments of interest becoming due on the same date, then to the
payment thereof ratably, according to the amounts due thereon, to
the persons entitled thereto, without any discrimination or
preference; and
Third, Principal : to the payment to the persons
entitled thereto of the unpaid principal evidenced and
represented by any Certificates which shall have become due, with
interest on the overdue principal evidenced and represented by
the Certificates to be paid at a rate equal to the rate or rates
of interest then applicable to the Certificates if paid in
accordance with their terms, and, if the amount available shall
not be sufficient to pay in full all the amounts due with respect
to the Certificates on any date, together with such interest,
then to the payment thereof ratably, according to the amounts of
principal due on such date to the persons entitled thereto,
without any discrimination or preference.
SM=399.4(25I7929.1 to 25I7929.2 redfined) 28
SECTION 7. 05 . Remedies Not Exclusive. No remedy
herein conferred upon or reserved to the Trustee is intended to
be exclusive of any other remedy, and each such remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing in law or in equity or by
statute or otherwise and may be exercised without exhausting and
without regard to any other remedy conferred by any law.
SECTION 7.06. No Liability by the Corporation to the
ers. Except as expressly provided herein, the Corporation
shall not have any obligation or liability to the Owners with
respect to the payment when due of the Rental Payments by the
District, or with respect to the observance or performance by the
District of the other agreements, conditions, covenants and terms
required to be observed or performed by it contained in the
Project Lease or herein, or with respect to the performance by
the Trustee of any right or obligation required to be observed or
performed by it contained herein.
SECTION 7. 07. No Liability by the District to the
Owners. Except for the payment when due of the Rental Payments
and the observance or performance of the other agreements,
conditions, covenants and terms required to be observed or
performed by it contained in the Project Lease or herein, the
District shall not have any obligation or liability to the Owners
with respect to the Trust Agreement or the preparation,
execution, delivery or transfer of the Certificates or the
disbursement of the Rental Payments by the Trustee to the Owners,
or with respect to the observance or performance by the Trustee
of any right or obligation required to be observed or performed
by it contained herein.
SECTION 7.08. No Liability by the Trustee to the
Owners. Except as expressly provided herein, the Trustee shall
not have any obligation or liability to the Owners with respect
to the payment when due of the Rental Payments by the District,
or with respect to the observance or performance by the District
of the other agreements, conditions, covenants and terms required
to be observed or performed by it contained in the Project Lease
or herein. The recitals of facts, covenants and agreements
contained herein and in the Certificates shall be taken as
statements, covenants and agreements of the District and the
Corporation, and the Trustee neither assumes any responsibility
for the accuracy of the same, nor makes any representations as to
the validity or sufficiency of the Trust Agreement or of the
Certificates nor shall incur any responsibility in respect
thereof, other than in connection with the duties or obligations
herein or in the Certificates assigned to or imposed upon the
Trustee.
SECTION 7. 09 . Actions by Trustee as Attorney-in-Fact.
Any suit, action or proceeding which any Owner shall have the
right to bring to enforce any right or remedy hereunder may be
brought by the Trustee for the equal benefit and protection of
SF7-2S3399.4(2517929.1 to 2S17929.2 rtdlined) 29
all Owners similarly situated and the Trustee is hereby
appointed (and the successive respective Owners, by taking and
holding the same, shall be conclusively deemed so to have
appointed the Trustee) the true and lawful attorney-in-fact of
the respective Owners for P o the
purpose bringing Y
ose of brin in an such suit
action, or proceeding and to do and perform any and all acts and
things for and on behalf of the respective Owners as a class or
classes as may be necessary or advisable in the opinion of the
Trustee as such attorney-in-fact.
SECTION 7. 10 . Power of Trustee to Control Proceedings.
In the event that the Trustee, upon the occurrence of an Event of
Default, shall have taken any action, by judicial proceedings or
otherwise, pursuant to its duties hereunder, whether upon its own
discretion or upon the request of the Owners of not less than ten
per cent (10k) in principal amount of the then Outstanding
Certificates, it shall have full power, in the exercise of its
discretion for the best interests of the Owners, with respect to
the continuance, discontinuance, withdrawal, compromise,
settlement or other disposal of such action; provided, that the
Trustee shall not, unless there no longer continues an Event of
Default hereunder, discontinue, withdraw, compromise, settle or
otherwise dispose of any litigation pending at law or in equity,
if at the time there has been filed with the Trustee a written
request signed by the Owners of not less than a majority in
principal amount of the Certificates then Outstanding hereunder
together with indemnification satisfactory to the Trustee
opposing such discontinuance, withdrawal, compromise, settlement
or other disposal of such litigation.
ARTICLE VIII
THE TRUSTEE
SECTION 8. 01. Employment of the Trustee. The District
and the Corporation hereby appoint and employ the Trustee to
receive, deposit and disburse the Rental Payments, to prepare,
execute, deliver and transfer the Certificates and to perform the
other functions
o s contained he
rein; all in the manner provided
herein and subject to the conditions and terms hereof. By
executing and delivering the Trust Agreement, the Trustee accepts
the appointment and employment herein above referred to and
accepts the rights and obligations of the Trustee provided
herein, subject to the conditions and terms hereof, and
undertakes to perform such obligations (and only such
obligations) as are specifically
y set forth herein, and no implied
obligations shall be read herein against the Trustee.
Prior to any resignation by the Trustee pursuant to
Section 8.02, the Trustee will faithfully observe and perform all
lawful and valid obligations or regulations now or hereafter
imposed on it by contract, or prescribed by any state or federal
law, or by any officer, board or commission having jurisdiction
SF2-2S3399.4(2S17929.1 to 2S17929.2 mdliwd) 30
or control over the Trustee, as a condition of the continued
enjoyment of each and every franchise, right or privilege now
owned or hereafter acquired by it, including its right to exist
and carry on its business, to the end that such franchises,
rights and privileges shall be maintained and preserved and shall
not be abandoned, forfeited or in any manner impaired.
Whenever provision is made herein for the surrender to
or cancellation by the Trustee and the delivery thereof to the
District of any Certificates, the Trustee shall destroy such
Certificates and deliver a certificate of such destruction to the
District.
SECTION 8 . 02 . Removal and Resignation of the Trustee.
The District and the Corporation, or the Owners of not less than
a majority in aggregate principal amount of the then Outstanding
Certificates, may by an instrument in writing remove the Trustee
initially a party hereto and any successor thereto and may
appoint a successor Trustee, but any such successor Trustee shall
be a bank or trust company organized and doing business and
having a corporate trust office in San Francisco, California, or
Seattle, Washington, having a combined capital (exclusive of
borrowed capital) and surplus of at least fifty million dollars
($50, 000, 00) and subject to supervision or examination by federal
or state authorities. If such bank or trust company publishes a
report of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority above
referred to, then for the purposes of this section the combined
capital and surplus of such bank or trust company shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Trustee may at any time resign by giving written
notice of such resignation to the District and the Corporation
and by giving notice by mail in accordance with Section 11.07 of
such resignation to the Owners. Upon receiving such notice of
resignation, the District shall promptly appoint a successor
Trustee by an instrument in writing; provided, that in the event
the District does not appoint a successor Trustee within thirty
(30) days following receipt of such notice of resignation, the
resigning Trustee may petition the appropriate court having
jurisdiction to appoint a successor Trustee. Any resignation or
removal of a Trustee and appointment of a successor Trustee shall
become effective only upon acceptance of appointment by the
successor Trustee.
SECTION 8 . 03 . Compensation and indemnification of the
Trustee. The District shall from time to time, subject to any
agreement then in effect with the Trustee, pay the Trustee
compensation for its services and reimburse the Trustee for all
its advances and expenditures hereunder, including but not
limited to advances to and fees and expenses of accountants,
agents, appraisers, consultants, counsel or other experts
employed by it in the exercise and performance of its rights and
SF2-2S3399.4(25I7929.1 to 25I7929.2 mdhncd) 31
obligations hereunder; provided, that the Trustee shall not have
any lien for such compensation or reimbursement against any
moneys held by it in any of the funds established hereunder,
although it may take whatever legal actions are lawfully
available to it directly against the District.
The District shall, to the extent permitted by law,
indemnify and hold harmless the Trustee to the extent and in the
amounts provided by the laws of the State of California from and
against all claims, damages and losses, including legal fees and
expenses, arising out of (i) the condition, management,
maintenance or use of or from any work or thing done in
connection with the Project by the District, (ii) any act of
negligence of the District or of any of its agents, contractors,
employees, invitees, licensees, officers or servants in
connection with the Project, (iii) the authorization of payment
of any costs of the acquisition of the Project, or (iv) the
acceptance or administration of the trust hereunder or the
exercise or performance of any of its powers or duties hereunder;
provided, that no indemnification will be made for willful
misconduct, negligence or breach of an obligation hereunder by
the Trustee.
SECTION 8 . 04. Protection of the Trustee. The Trustee
shall be protected and shall incur no liability in acting or
proceeding in good faith upon any affidavit, bond, certificate,
consent, notice, request, requisition, resolution, statement,
telegram, voucher, waiver or other paper or document which it
shall in good faith believe to be genuine and to have been
adopted, executed or delivered by the proper party or pursuant to
any of the provisions hereof, and the Trustee shall be under no
duty to make any investigation or inquiry as to any statements
contained or matters referred to in any such instrument, but may
accept and rely upon the same as conclusive evidence of the truth
and accuracy of such statements. The Trustee shall not be bound
to recognize any person as an Owner of any Certificate or to take
any action at the request of any such person unless such
Certificate shall be deposited with the Trustee or satisfactory
evidence of the ownership of such Certificate shall be furnished
to the Trustee. The Trustee may consult with counsel, who may be
counsel to the District or the Corporation, with regard to legal
questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered by it hereunder in good faith in accordance
therewith.
The Trustee shall not be responsible for the
sufficiency of the Project Lease, or of the assignment made to it
by the Assignment Agreement of all rights to receive the Rental
Payments thereunder, or of the title to or value of the Project.
Whenever in the administration of its rights and
obligations hereunder the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking
M-MMA(2S17929.1 to 2SI7929.2 redlined) 32
or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a
Certificate of the District, and such certificate shall be full
warrant to the Trustee for any action taken or suffered under the
provisions hereof upon the faith thereof, but in its discretion
the Trustee may, in lieu thereof, accept other evidence of such
matter or may require such additional evidence as to it may seem
reasonable.
The Trustee may buy, sell, own, hold and deal in any of
the Certificates and may join in any action which any Owner may
be entitled to take with like effect as if the Trustee were not a
party hereto. The Trustee, either as principal or agent, may
also engage in or be interested in any financial or other
transaction with the District or the Corporation, and may act as
agent, depositary or trustee for any committee or body of Owners
or of owners of obligations of the District or the Corporation as
freely as if it were not the Trustee hereunder.
The Trustee shall not be answerable for the exercise of
any trusts or powers hereunder or for anything whatsoever in
connection with the funds established hereunder, except only for
its own willful misconduct, negligence or breach of an obligation
hereunder.
The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, and shall have no
responsibility or liability with respect to any information,
statement or recital in any offering memorandum or other
disclosure material prepared or distributed with respect to the
issuance of the Certificates.
The Trustee's rights to immunities and protection from
liability hereunder and its rights to payment of its fees and
expenses shall survive its resignation or removal and the final
payment or the defeasance of the Certificates.
All indemnifications and releases from liability
granted herein to the Trustee shall extend to its directors,
officers, employees and agents.
Any company into which the Trustee may be merged or
converted or with which it may be consolidated or any company
resulting from any merger, conversion or consolidation to which
it shall be a party or any company to which the Trustee may sell
or transfer all or substantially all of its corporate trust
business shall (so long as it is eligible under Section 8. 02) be
the successor to the Trustee without the execution or filing of
any paper or further act, anything herein to the contrary
notwithstanding.
M-WMA(25I7929.1 to 2S17929.2 redlined) 33
The Trustee shall not be deemed to have knowledge of
any Event of Default hereunder unless and until it
shall have
actual knowledge thereo
f,g or shall have received written notice
thereof from the Owners of at least
twenty-five per cent (25•k) in
aggregate principal amount of Certifica
tes then Outstanding, at
its principal corporate trust office in Seattle, Washington.
Except as otherwise expressly provided herein, the Trustee shall
not be bound to ascertain or inquire as to the performance or
observance of any of the agreements, conditions, covenants or
terms hereof or of any of the documents executed in connection
with the Certificates or as to the existence of an Event of
Default thereunder.
Before taking any action under Article VII or this
section at the request or direction of any Owners, the Trustee
may require that an indemnity bond satisfactory to it be
furnished by such Owners for reimbursement of all expenses to
which it may be put and to protect it against all liability,
except liability which is adjudicated to have resulted from its
neg
ligence or its willful misconduct in connection with any
action so taken.
ARTICLE IX
I
AMENDMENT OF OR SUPPLEMENT TO THE TRUST AGREEMENT
SECTION 9 . 01. Procedure for Amendment of or Supplement
to the Trust Agreement.
(a) Amendment or Supplement--by Consent of Owners. The
Trust Agreement and the rights and obligations of the District
and the Corporation and the Owners and the Trustee hereunder may
be amended or supplemented at any time by an amendment hereof or
supplement hereto which shall become binding when the written
consents of the Owners of not less than a majority in principal
amount of the then Outstanding Certificates, exclusive of
Certificates disqualified as provided in Section 9 .02 P are filed
with the Trustee. No such amendment or supplement sha
ll
(1) reduce the rate of interest evidenced and represented by any
Certificate or extend the time of payment of such interest or
reduce the amount of principal and prepayment premium, if any,
evidenced and represented by any Certificate or extend the
Certificate Payment Date of any Certificate or otherwise alter or
impair the obligation of the District to pay the interest and
principal and prepayment premium, if any, evidenced and
represented by any Certificate at the time and place and at the
interest rate and in the currency provided herein, without the
prior written consent of the Owner of the Certificate so
affected, or (2) reduce the percentage of Owners whose consent
is required for the execution of certain amendments hereof or
supplements hereto, or (3) modify any of the rights or
obligations of the Trustee without its prior written consent
thereto.
SF2-2S3399.4(2517929.1 to 2S17929.2 redlined) 34
(b) Amendment or Supplement Without Consent of Owners.
The Trust Agreement and the rights and obligations of the
District and the Corporation and the Owners and the Trustee
hereunder may also be amended or supplemented at any time by an
amendment hereof or supplement hereto which shall become binding
upon execution without the written consents of any Owners, but
only to the extent permitted by law and after receipt of an
approving Opinion of Counsel and only for any one or more of the
following purposes - -
(i) to add to the agreements, conditions, covenants
and terms required by the District or the Corporation to be
observed or performed herein other agreements, conditions,
covenants and terms thereafter to be observed or performed
by the District or the Corporation, or to surrender any
right or power reserved herein to or conferred herein on the
District or the Corporation, and which in either case shall
not adversely affect the interests of the Owners;
(ii) to make such provisions for the purpose of curing
any ambiguity or of correcting, curing or supplementing any
defective provision contained herein or in regard to
questions arising hereunder which the District or the
Corporation may deem desirable or necessary and not
inconsistent herewith, and which shall not adversely affect
the interests of the Owners;
(iii) to modify, amend or supplement the Trust Agreement
in such manner as to preserve the exemption of the
Certificates from the registration requirements of the
Securities Act of 1933 or any similar federal statute
hereafter in effect or to permit the qualification of the
Trust Agreement under the Trust Indenture Act of 1939 or any
similar federal statute hereinafter in effect;
(iv) if and to the extent specified in an Opinion of
Counsel filed with the District, the Corporation and the
Trustee, to make such additions, deletions or modifications
as may be necessary or appropriate to maintain any then
current rating on the Certificates DX either Moody's or &P;
or
M to maintain the exclusion under the Code of
interest evidenced and represented by the Certificates from
gross income for federal income tax purposes.
SECTION 9 . 02 . Disqualified Certificates. Certificates
owned or held by or for the account of the District (but
excluding Certificates held in any pension or retirement fund of
the District) shall not be deemed Outstanding for the purpose of
any consent or other action or any calculation of Outstanding
Certificates provided in this article, and shall not be entitled
to consent or to take any other action provided in this article,
and the Trustee may adopt appropriate regulations to require each
SF2-2S3399.4(2SI7929.1 to 2S17929.2 md1ined) 35
Owner, before his consent provided for herein shall be deemed
effective, to reveal if the Certificates as to which consent is
given are disqualified as provided in this section.
SECTION 9 . 03 . Endorsement or Replacement of
Certificates After Amendment or Supplement. After the effective
date of any action taken as herein above provided, the Trustee
may determine that the Certificates may bear a notation by
endorsement in form approved by the Trustee as to such action,
and in that case upon demand of the Owner of any Outstanding
Certificate and presentation of his Certificate for such purpose
at the corporate trust office of the Trustee in Seattle,
Washington, a suitable notation as to such action shall be made
on each Certificate. If the Trustee shall so determine, new
Certificates so modified as in the opinion of the Trustee shall
be necessary to conform to such action shall be prepared, and in
that case upon demand of the Owner of any Outstanding
Certificates such new Certificates shall be exchanged at the
corporate trust office of the Trustee in Seattle, Washington,
without cost to each Owner for Certificates then Outstanding upon
surrender of such Outstanding Certificates.
SECTION 9 . 04. Amendment by Mutual Consent. The
provisions of this article shall not prevent any Owner from
accepting any amendment as to the particular Certificates held by
him, provided that due notation thereof is made on such
Certificates.
SECTION 9 . 05. Opinion to Trustee. The Trustee may
obtain an Opinion of Counsel that any amendment or supplement
amending or supplementing the Trust Agreement entered into by the
Trustee and the Corporation and the District complies with the
provisions of this article, and the Trustee may conclusively rely
upon any such opinion.
ARTICLE X
DEFEASANCE
SECTION 10 . 01. Discharge of Certificates and Trust
Agreement.
(a) If the Trustee shall pay or cause to be paid or
there shall otherwise be paid to the Owners of all Outstanding
Certificates the interest and principal and the prepayment
premiums, if any, evidenced and represented thereby at the times
and in the manner stipulated herein and therein, then such Owners
shall cease to be entitled to the pledge of and lien on the money
in the Rental Payment Fund and in the Reserve Fund as provided
herein, and all agreements and covenants of the District, the
Corporation and the Trustee to such Owners hereunder shall
thereupon cease, terminate and become void and shall be
discharged and satisfied.
M-MMA(2S17929.1 to 2S17929.2 mdfined) 36
(b) Any Outstanding Certificate shall on the payment
date or the date of prepayment prior thereto be deemed to have
been paid within the meaning of and with the effect expressed in
subsection (a) of this section if there shall be on deposit with
the Trustee moneys which are sufficient to pay the interest and
principal and the prepayment premiums, if any, evidenced and
represented by such Certificates payable on such date.
(c) Any Outstanding Certificates shall prior to their
Certificate Payment Dates or their dates of prepayment prior
thereto be deemed to have been paid within the meaning of and
with the effect expressed in subsection (a) of this section if
(1) in case any of such Certificates are to be prepaid on any
date prior to their Certificate Payment Dates, the District shall
have given to the Trustee in form satisfactory to it irrevocable
instructions to give notice by mail in accordance with Section
11. 07 to the Owners of such Certificates of the prepayment of
such Certificates on such prepayment dates, (2) there shall have
been deposited with the Trustee or other fiduciary either money
in an amount which shall be sufficient, or Federal Securities
which are not subject to redemption except by the holder thereof
prior to maturity (including any such securities issued or held
in book-entry form) , or tax-exempt obligations of a state or a
political subdivision thereof which have been defeased under
irrevocable escrow instructions with Federal Securities and which
are rated in the highest rating category by Moody's and by S&P,
the interest on and principal of which when paid will provide
money which, together with money, if any, deposited with the
Trustee or such other fiduciary at the same time, shall be
sufficient (as evidenced by a report of an independent certified
public accountant regarding such sufficiency) to pay when due the
interest evidenced and represented by such Certificates on and
prior to their Certificate Payment Dates or their dates of
prepayment prior thereto, as the case may be, and the principal
and prepayment premiums, if any, evidenced and represented by
such Certificates, and (3) in the event such Certificates are not
by their terms subject to prepayment within the next succeeding
sixty (60) days, the District shall have given the Trustee in
form satisfactory to it irrevocable instructions to give notice
by mail in accordance with Section 11.07 to the Owners of such
Certificates that the deposit required by clause (2) above has
been made with the Trustee or such other fiduciary and that such
Certificates are deemed to have been paid in accordance with this
section and stating the Certificate Payment Dates or the dates of
prepayment prior thereto upon which money is to be available for
the payment of the interest and principal and prepayment
premiums, if any, evidenced and represented by such Certificates.
(d) After the payment of all the interest and
principal and the prepayment premiums, if any, evidenced and
represented by all Outstanding Certificates as provided in this
section and the payment of any outstanding fees and expenses of
the Trustee, the Trustee shall execute and deliver to the
District and the Corporation all such instruments as may be
SF2-2M399.4(2S17929.1 to 25I7929.2 rcAlined) 37
necessary or desirable to evidence the discharge and satisfaction
of the Trust Agreement, and the Trustee shall pay over or deliver
to the District all moneys or securities held by it pursuant
hereto which are not required for the payment of the interest and
principal and the prepayment premiums, if any, evidenced and
represented by such Certificates.
SECTION 10.02 . Unclaimed Moneys. Anything contained
herein to the contrary notwithstanding, any moneys held by the
Trustee in trust for the payment and discharge of the interest or
principal or prepayment premiums, if any, evidenced and
represented by any of the Certificates which remain unclaimed for
two (2) years after the date when the payments represented by
such Certificates have become payable, if such moneys were held
by the Trustee at such date, or for two (2) years after the date
of deposit of such moneys if deposited with the Trustee after the
date when the interest and principal and the prepayment premiums,
if any, evidenced and represented by such Certificates have
become payable, shall be repaid by the Trustee to the District as
its absolute property free from trust, and the Trustee shall
thereupon be released and discharged with respect thereto and the
Owners shall look only to the District for the payment of the
interest and principal and prepayment premiums, if any, evidenced
and represented by such Certificates; provided, that before being
required to make any such payment to the District, the Trustee
shall, at the expense of the District, cause to be mailed to all
Owners and to those securities depositories and securities
information services selected by it pursuant to Section 4 .03 a
notice that such moneys remain unclaimed and that after a date
named in such notice, which date shall not be less than thirty'
(30) days after the date of the mailing of such notice, the
balance of such moneys then unclaimed will be returned to the
District.
ARTICLE XI
MISCELLANEOUS
SECTION 11. 01. Benefits of Trust Agreement Limited to
Parties. Nothing contained herein, expressed or implied, is
intended to give to any person other than the District, the
Corporation, the Trustee and the Owners any claim, remedy or
right under or pursuant hereto, and any agreement, condition,
covenant or term contained herein required to be observed or
performed by or on behalf of the District or the Corporation
shall be for the sole and exclusive benefit of the Trustee and
the Owners.
SECTION 11.02 . Successor Deemed Included in all
References to Predecessor. Whenever either the District, the
Corporation or the Trustee or any officer thereof is named or
referred to herein, such reference shall be deemed to include the
SF2,2M3".4(2517929.1 to 25I7929.2 mdlined) 38
successor to the powers, duties and functions that are presently
vested in the District, the Corporation or the Trustee or such
officer, and all agreements, conditions, covenants and terms
contained herein required to be observed or performed by or on
behalf of the District, the Corporation or the Trustee or any
officer thereof shall bind and inure to the benefit of the
respective successors thereof whether so expressed or not.
SECTION 11. 03 . Execution of Documents by Owners. Any
declaration, request or other instrument which is permitted or
required herein to be executed by Owners may be in one or more
instruments of similar tenor and may be executed by Owners in
person or by their attorneys appointed in writing. The fact and
date of the execution by any Owner or his attorney of any
declaration, request or other instrument or of any writing
appointing such attorney may be proved by the certificate of any
notary public or other officer authorized to make acknowledgments
of deeds to be recorded in the state or territory in which he
purports to act that the person signing such declaration, request
or other instrument or writing acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution duly
sworn to before such notary public or other officer, or by such
other proof as the Trustee may accept which it may deem
sufficient.
The ownership of any Certificate and the amount,
payment date, number and date of owning the same may be proved by
the books required to be kept by the Trustee pursuant to the
provisions of Section 2 .07.
Any declaration, request or other instrument in writing
of the Owner of any Certificate shall bind all future Owners of
such Certificate with respect to anything done or suffered to be
done by the District or the Corporation or the Trustee in good
faith and in accordance therewith.
SECTION 11.04. Waiver of Personal Liability. No
member of the Board of Directors, officer or employee of the
District shall be individually or personally liable for the
payment of the interest or the principal or the prepayment
premiums, if any, evidenced and represented by the Certificates,
but nothing contained herein shall relieve any member of the
Board of Directors, officer or employee of the -District from the
performance of any official duty provided by any applicable
provisions of law or by the Project Lease or hereby.
SECTION 11. 05. Acquisition of Certificates by District
All Certificates acquired by the District, whether by purchase
or gift or otherwise, shall be surrendered to the Trustee for
cancellation and destruction.
SECTION 11.06 . Content of Certificates. Every
Certificate of the District with respect to compliance with any
agreement, condition, covenant or term contained herein shall
SF2-2s3399.4(23I7929.1 to 2S17929.2 rcAlined) 39
include (a) a statement that the person or persons making or
giving such certificate have read such agreement, condition,
covenant or term and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained
in such certificate are based; (c) a statement that, in the
opinion of the signers, they have made or caused to be made such
examination of investigation as is necessary to enable them to
express an informed opinion as to whether or not such agreement,
condition, covenant or term has been complied with; and (d) a
statement as to whether, in the opinion of the signers, such
agreement, condition, covenant or term has been complied with.
Any Certificate of the District may be based, insofar
as it relates to legal matters, upon an opinion of Counsel unless
the person making or giving such certificate knows that the
Opinion of Counsel with respect to the matters upon which his
certificate may be based, as aforesaid, is erroneous, or in the
exercise of reasonable case should have known that the same was
erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters information with respect to which is
in the possession of the District, upon a representation by an
officer or officers of the District unless the counsel executing
such Opinion of Counsel knows that the representation with
respect to the matters upon which his opinion may be based, as
aforesaid, is erroneous, or in the exercise of reasonable care
should have known that the same was erroneous.
SECTION 11.07. Notice by Mail . Any notice required to
be given hereunder by mail to any Owners of Certificates shall be
given by mailing a copy of such notice, first class postage
prepaid, to the Owners of such Certificates at their addresses
appearing in the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 not less than thirty
(30) days nor more than sixty (60) days following the action or
prior to the event concerning which notice thereof is required to
be given; provided, that receipt of any such notice shall not be
a condition precedent to the effect of such notice and neither
failure to receive any such notice nor any immaterial defect
contained therein shall affect the validity of the proceedings
taken in connection with the action or the event concerning which
such notice was given.
SECTION 11.08. Funds. Any fund required to be
established and maintained herein by the Trustee may be
established and maintained in the accounting records of the
Trustee either as an account or as a fund, and may, for the
purposes of such accounting records, any audits thereof and any
reports or statements with respect thereto, be treated either as
an account or a fund; but all such records with respect to all
such funds shall at all times be maintained in accordance with
sound accounting practice and with due regard for the protection
of the security of the Certificates and the rights of the Owners.
SF2-2S3399.4(2SI7929.1 to 2S17929.2 rtdlined) 40
SECTION 11- 09 . Deposits and Investments. Any moneys
held by the Trustee, the District or the Corporation in any of
the funds Provided herein or in the Project Lease may be invested
as directed by the District in Permitted Investments which will,
as nearly as practicable, mature on or before the dates on which
such moneys are anticipated to be needed for disbursement
hereunder, except that any moneys held in the Reserve Fund may be
invested as directed by the District in Federal Securities
maturing not later than six (6) months after their purchase or
the final due date of any then unpaid Rental Payments, whichever
is earlier; provided, that if the District fails to direct the
Trustee to invest any such moneys, they shall be invested by the
Trustee in Permitted Investments of the type described in
paragraph (8) of the definition thereof.
The Trustee may act as principal or agent in the
acquisition or disposition of any such deposit or investment and
may, but only in its sole discretion for the purpose of any such
deposit or investment, commingle any of the moneys held by it
hereunder or under the Project Lease, and the Trustee shall not
be liable or responsible for any loss suffered in connection with
any such deposit or investment made by it under the terms of and
in accordance with this section. The Trustee may present for
redemption or sell any such deposit or investment whenever it
shall be necessary in order to provide moneys to meet any payment
of the moneys so deposited or invested, and the Trustee shall not
be liable or responsible for any losses resulting from any such
deposit or investment presented for redemption or sold.
Any interest or profits on such deposits and
investments received by the Trustee shall, as and when received,
be deposited in the Rental Payment Fund; provided, that any
interest or profits resulting from such deposits or investments
of money in the Reserve Fund shall be retained in the Reserve
Fund so long as the balance therein is less than the Reserve Fund
Requirement.
SECTION 11-10. Article and Section Headings, Gender
and References. The headings or titles of the several articles
and sections hereof and the table of contents appended hereto
shall be solely for convenience of reference and shall not affect
the meaning, construction or effect hereof, and words of any
gender shall be deemed and construed to in all genders. All
references herein to "Articles, " "Sections" and other
subdivisions or clauses are to the corresponding articles,
sections, subdivisions or clauses hereof; and the words "hereby, "
"herein, " "hereto, " "herewith, " "hereunder" and other words of
similar import refer to the Trust Agreement as a whole and not to
any particular article, section, subdivision or clause hereof.
SECTION 11.11. Partial Invalidity. If any one or more
of the agreements, conditions, covenants or terms contained
herein required to be observed or performed by or on the part of
the District, the Corporation or the Trustee shall be contrary to
M-=3"A(25I7929.1 to 2S17929.2 rodlhwd) 41
law, then such agreement or agreements, such condition or
conditions, such covenant or covenants or such term or terms
shall be null and void and shall be deemed se arable from the
remaining agreements, conditions, covenants and terms hereof and
shall in no way affect the validity hereof or of the
Certificates, and the Owners shall retain all the benefit,
protection and security afforded to them under any applicable
provisions of law. The District, the Corporation and the Trustee
hereby declare that they would have executed and entered into the
Trust Agreement, and each and every other article, section,
paragraph, subdivision, sentence, clause and phrase hereof and
would have authorized the execution and delivery of the
Certificates pursuant hereto irrespective of the fact that any
one or more articles, sections, paragraphs, subdivisions,
sentences, clauses or phrases hereof or the application thereof
to any person or circumstance may be held to be unconstitutional,
unenforceable or invalid.
SECTION 11.12 . California Law. The Trust Agreement
shall be construed and governed in accordance with the laws of
the State of California.
SECTION 11. 13 . Notices. All written notices to be
given hereunder shall be given by mail to the party entitled
thereto at its address set forth below, or at such other address
as such party may provide to the other parties in writing from
time to time, namely:
If to the Trustee:
Seattle-First National Bank
Bond Trustee Services
1001 Fourth Avenue, 11th Floor
Seattle, Washington 98154
If to the Corporation:
California Special Districts Association
Finance Corporation
c/o McMurchie, Foley, Brandenburger,
Weill & Keeling
1030 15th Street, Suite 300
Sacramento, California 95814
If to the District:
Midpeninsula Regional Open Space District
Attention: General Manager
330 Distel Circle
Los Altos, California 94022
SECTION 11. 14. Effective Date. The Trust Agreement
shall become effective upon its execution and delivery.
SF2-2s3399.4(2S17929.1 to 2S17929.2 redfined) 42
SECTION 11.15 . Execution in Counterparts . The Trust
Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of which shall constitute
but one and the same instrument.
SM2M399.4(2S17929.1 to 2S17929.2 rcdlincd) 43
IN WITNESS WHEREOF, the parties hereto have executed
and entered into the Trust Agreement by their officers duly
authorized as of the day and year first written above
SEATTLE-FIRST NATIONAL BANK,
as Trustee
By
Assistant Vice President
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION
FINANCE CORPORATION
(SEAL) B
President
Attest:
Secretary
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
B
President of the Board of Directors
(SEAL)
Attest:
Secretary of the Board of Directors
SF2-2M399.4(2S17929.1 to 2S17929.2 rc4fined) 44
EXHIBIT A
[FORM OF CERTIFICATE OF PARTICIPATION]
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTIES OF SANTA CLAR.A AND SAN MATEO
No. $
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
CERTIFICATE OF PARTICIPATION
Evidencing and Representing a Proportionate,
Undivided Interest of the Owner Hereof
in Rental Payments to Be Made
by the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
to the
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION
FINANCE CORPORATION
under and pursuant to the
AP.MMED AND RESTATED PROJECT LEASE
for the
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
1993 OPEN SPACE PROJECT
Interest Certificate
Rate Payment Date Dated as of CUSIP
Seutember 11 August 1, 1993
RE
GISTERED OWNER:
PRINCIPAL SUM: DOLLARS
THIS IS TO CERTIFY that the registered owner set forth
above of this �` Certificate of Participation (the "Certificate") is
the owner of a`_proportionate, undivided interest in the right to
receive the Rental Payments (as that term is defined in the Trust
Agreement hereinafter mentioned) under and pursuant to that certain
Project Lease (the "Project Lease") for the Midpeninsula Regional
Open Space District 1993 Open Space Project (the "Project") executed
SF2-2S3399.4(2S17929.1 to 2S17929.2 mdhncd) A-1.
and entered into as of August 1, 1993, by and between the California
Special Districts Association Finance Corporation, a nonprofit
corporation duly organized and existing under and by virtue of the
laws of the State of California (the "Corporation") , and the
Midpeninsula Regional Open Space District, a regional open space
district duly or and existing under and by virtue of the laws
of the State of California (the "District") , all of which rights to
receive such Rental Payments have been assigned without recourse by
the Corporation to Seattle-First National Bank, a national banking
association duly organized and existing under and by virtue of the
laws of the United States of America, at its corporate trust office
in Seattle, Washington, as Trustee, or any other bank or trust
company at its corporate trust office which may at any time be
substituted in place of the original trustee as provided in the
Trust Agreement hereinafter mentioned (the "Trustee") .
The registered owner of this Certificate is entitled to
receive, subject to the terms of the Project Lease and any right of
prepayment prior thereto hereinafter provided for, on the
Certificate Payment Date (as that term is defined in the Trust
Agreement hereinafter mentioned, and herein a "Certificate Payment
Date") set forth above, upon surrender of this Certificate on such
Certificate Payment Date or on the date of prepayment prior thereto
at the corporate trust office of the Trustee, the principal sum set
forth above, together with any prepayment premium thereon,
evidencing and representing the registered owner' s proportionate
share of the Rental Payments constituting principal and prepayment
premium components, if any, becoming due and payable on such
Certificate Payment Date or on the date of prepayment prior thereto,
and the registered owner of this Certificate as shown in the
registration books maintained by the Trustee as of the close of
business on the fifteenth (15th) day of the month next preceding
each March 1 and September 1, commencing on ' March 1, 1994
(each an "Interest Payment Date") , is entitled to receive on each
Interest Payment Date such registered owner' s proportionate share of
the Rental Payments evidencing and representing interest components
accruing from the Interest Payment Date next preceding the date of
execution hereof by the Trustee (unless such date of execution is on
or after the sixteenth (16th) day of the month next preceding an
Interest Payment Date, in which case from such Interest Payment
Date, or unless such date of execution is on or prior to February
15, 1994, in which case from August 1, 1993) to such Certificate
tificate
Payment Date or the date of prepayment prior thereto, whichever is
earlier, which interest components (except for the interest
component payable on the Certificate Payment Date hereof or on the
date of prepayment prior thereto, which is payable on the surrender
hereof on such date) are payable by check mailed on each Interest
Payment Date to such registered owner (except that in the case of a
registered owner of one million dollars ($1, 000, 000) or greater in
principal amount of outstanding Certificates, such payment may, at
such regis�ered. ownerls option, be made by wire transfer of
immediately available funds in accordance with written instructions
provided by such registered owner to the Trustee prior to the
fifteenth (15th) day of the month preceding such Interest Payment
SF2-2S3399.4(25I7929.1 to 2517929.2 rtdlinc4J) A-2
I
Date) , which such proportionate share is determined by the
multiplication of the aforesaid portion of the Rental Payments
constituting principal components becoming due and payable on such
Certificate Payment Date by the interest rate per annum set forth
above, computed on the basis of a 360-day year of twelve (12) 30-day
months. All such amounts are payable in lawful money of the United
States of Ame
rica.a.
This Certificate is
one of the duly authorized
certificates of participation entitled "P tled M
. . P "Mid peninsula Regional Open
P g
Space District t Certificates of Participation (1993 Open Spacep
Project) " aggregating dollars ($ ) (the
"Certificates") which have been executed by the Trustee under and
pursuant to the terms of a Trust Agreement (the "Trust Agreement")
executed and entered into as of August 1, 1993, by and among the
Trustee, the Corporation and the District. Copies of the Trust
Agreement are on file at the corporate trust office of the Trustee,
and reference is hereby made to the Trust Agreement and to any and
all amendments thereof and supplements thereto for a description of
the agreements, conditions, covenants and terms securing the
Certificates, for the nature, extent and manner of enforcement of
such agreements, conditions, covenants and terms, for the rights and
remedies of the registered owners of the Certificates with respect
thereto and for the other agreements, conditions, covenants and
terms upon which the Certificates are executed and delivered
thereunder.
To the extent and in the manner permitted by the terms of
the Trust Agreement, the provisions of the Trust Agreement may be
amended or supplemented by the parties thereto, but no such
amendment or supplement shall (1) reduce the rate of interest
evidenced and represented hereby or extend the time of payment
thereof or reduce the amount of principal and prepayment premium, if
any, evidenced and represented hereby or extend the Certificate
Payment Date hereof or otherwise alter or impair the obligation of
the District to pay the interest and principal and prepayment
premium, if any, evidenced and represented hereby at the time and
place and at the interest rate and in the currency provided herein
without the prior written consent of the registered owner hereof, or
(2) reduce the percentage of registered owners of Certificates whose
consent is required for the execution of certain amendments of or
supplements to the Trust Agreement, or (3) modify any rights or
obligations of the Trustee without its prior written consent
thereto.
The Certificates are authorized to be executed and
delivered by the Trustee in the form of fully registered
certificates in denominations of five thousand dollars ($5, 000) or
any integral multiple thereof, except that no Certificate shall have
more than one Certificate Payment Date.
This Certificate is transferable or exchangeable by the
registered owner hereof, in person or by his attorney duly
authorized in writing, at the corporate trust office of the Trustee,
SF2-2s3399.4(2S17929.1 to 2S17929.2 m&iwd) A-3
but only in the manner, subject to the limitations and upon payment
of the charges provided in the Trust Agreement; and upon surrender
of this Certificate for cancellation, accompanied by delivery of a
duly executed written instrument of transfer or exchange, a new
Certificate or Certificates of authorized denominations of the same
Certificate Payment Date equal to the principal amount evidenced and
represented hereby will be executed and delivered by the Trustee to
the registered owner thereof in exchange or transfer herefor. The
Trustee may treat the registered owner hereof as the absolute owner
hereof for all purposes, whether or not this Certificate shall be
overdue, and the Trustee shall not be affected by any knowledge or
notice to the contrary; and payment of the interest and principal
and prepayment premium, if any, evidenced and represented by this
Certificate shall be made only to such registered owner as above
provided, which payments shall be valid and effectual to satisfy and
discharge the liability evidenced and represented by this
Certificate to the extent of the sum or sums so paid.
The Certificates are subject to prepayment prior to their
respective Certificate Payment Dates, upon notice as hereinafter
provided, as a whole on any date, or in part by lot on any Interest
Payment Date within each Certificate Payment Date in integral
multiples of five thousand dollars ($5, 000) principal amount so that
the aggregate annual amounts of principal evidenced and represented
by the Certificates which shall be payable after such prepayment
date shall be as nearly proportional as practicable to the aggregate
annual amounts of principal evidenced and represented by the then
Outstanding (as that term is defined in the Trust &argement)
Certificates, from prepaid Rental Payments made by the District from
funds received by the District due to a governmental taking of the
Project or portions thereof by eminent domain proceedings, under the
circumstances and upon the conditions and terms prescribed in the
Trust Agreement and in the Project Lease, at a prepayment price
equal to the sum of the principal amount evidenced and represented
thereby plus accrued interest evidenced and represented thereby to
the date fixed for prepayment, without a prepayment premium.
The Certificates with Certificate Payment Dates of
September 1, 2010 and SAp tember 1, 2020, are subject to mandatory
prepayment prior �o their respective Certificate Payment Dates, upon
y
notice as hereinafter provided, in part by lot on a September I
on or after MISeRtentber 1, 2005 (for the Certificates with a
Certificate 'Payment Date of September 1, 2010) and in part by lot
ge]2tember 1 on r
on any o September 1, 2011 (for the
Certificates with a Certificate Pa.1 yment Date of �'-." September i,
2020) , in each case in integral multiples of five thousand dollars
($5, 000) principal amount, solely from scheduled Rental Payments (as
provided in the Project Lease and in the Trust Agreement) , at a
prepayment price equal to the sum of the principal amount or such
part thereof evidenced and represented by the Certificates to be
prepaid plus accrued interest evidenced and represented thereby to
the date fixed for prepayment, without a prepayment premium.
M-WMA(2S17929.1 to 25I7929.2 mdhncd) A-4
The Certificates with Certificate Payment Dates on or
after iit September 1=m 2004, are subject to optional prepayment by
the District prior to their respective Certificate Payment Dates,
upon notice as hereinafter provided, as a whole or in part in
integral multiples of five thousand dollars ($5, 000) principal
amount in inverse order of Certificate Payment Dates (and by lot
within any one Certificate Payment Date) , on any Interest Payment
Date on or after Seer 1 2003, solely from prepaid Rental
Payments, at a pre payment price' 'equal to the sum of the principal
amount or such part thereof evidenced and represented by the
Certificates to be prepaid, plus the following prepayment premiums
(computed upon the principal amount or such part thereof evidenced
and represented by the Certificates to be prepaid) plus accrued
interest evidenced and represented thereby to the date fixed for
prepayment, namely:
Prepayment Date Prepayment Premium
September 1, 2003, or 2
1, 2004
September 1, 2004, or March 1, 2005 ILIZ2
September 1, 2005, or March 1, 2006
September 1, 2006,.... or March 1 2007 1/2 of I
on or after I,! September 1, 2007,. and
prior to their Certificate* Payment Date 0
As provided in the Trust Agreement, notice of prepayment
hereof or of any part hereof shall be mailed, first class postage
prepaid, not less than thirty (30) nor more than sixty (60) days
before the prepayment date, to the registered owner of this
Certificate at his address as it appears in the registration books
maintained by the Trustee and to those securities depositories and
securities information services selected by the District in
accordance with the Trust Agreement; provided, that receipt of any
such notice shall not be a condition precedent to the effect of such
notice and neither failure to receive any such notice nor any
immaterial defect contained therein shall affect the sufficiency or
validity of the proceedings for the prepayment her or of any such
part hereof. If this Certificate or any part hereof is called for
prepayment and notice of such prepayment is duly given as aforesaid
and payment is duly provided therefor as specified in the Trust
Agreement, the interest evidenced and represented hereby or by such
part shall cease to accrue from and after the date fixed for such
prepayment.
The Certificates each evidence and represent a
proportionate, undivided interest in the Rental Payments and enjoy
the benefits of a security interest in certain of the moneys held in
the funds established pursuant to the Trust Agreement, subject to
the provisions of the Trust Agreement permitting the disbursement
thereof for or to the purposes and on the conditions and terms set
SF2-2S3399.4(2SI7929.1 to 2S17929.2 redlined) A-5
forth therein. The obligation of the District to make the Rental
Payments is subject to abatement during any period in which, by
reason of Meminent domain n?-ncee
dinas, there is substantial
interferen'c'e with the use and possession by the District of the
Project or portions thereof, all as more particularly provided in
the Project Lease to which reference is hereby made; and such
obligation does not constitute a debt of the District or the State
of California or any political subdivision thereof within the
meaning of any constitutional or statutory debt limitation or
restriction, and does not constitute an obligation for which the
District is obligated to levy or pledge any form of taxation or for
which the District has levied or pledged any form of taxation.
The Trustee has no obligation or liability to the
registered owners of the Certificates for the payment of the
interest or principal or prepayment premiums, if any, evidenced and
represented by the Certificates except from amounts on deposit
therefor with the Trustee; but rather the Trustee' s sole obligations
and liabilities are those stated in the Trust Agreement. The
Corporation has no obligation or liability whatsoever to the
registered owners of the Certificates.
IN WITNESS WHEREOF, this Certificate has been dated as of
August 1, 1993, and has been executed by the manual signature of an
authorized officer of the Trustee as of the date set forth below.
Date of Execution:
SEATTLE-FIRST NATIONAL BANK,
as Trustee
B
Authorized Officer
SF2-2M399.4(2SI7929.1 to 2S17929.2 mined} A-6
[FORM OF ASSIGNMENT]
For value received, the undersigned do (es) hereby sell,
assign and transfer unto the within
Certificate and do (es) hereby irrevocably constitute and appoint
attorney to transfer such Certificate on the
register of the Trustee, with full power of substitution in the
premises.
Dated:
SIGNATURE GUARANTEED BY:
Note: The signature (s) to this Assignment must correspond with the
name (s) as written on the face of the within Certificate in
every particular, without alteration or enlargement or any
change whatsoever, and the signature (s) must be guaranteed by
a member firm of the New York Stock Exchange or a commercial
bank or trust company.
Social Security Number, Taxpayer Identification Number or
other Identifying Number of Assignee:
SP2-2W399.4(2S17929.1 to 2S17929.2 md1ined) A-7
�14 Wit.
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
RESOLUTION NO. 93-
A RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
AUTHORIZING THE EXECUTION AND DELIVERY OF A SITE LEASE,
A PROJECT LEASE, A TRUST AGREEMENT AND A
CERTIFICATES OF PARTICIPATION PURCHASE CONTRACT
RELATING TO THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
CERTIFICATES OF PARTICIPATION
(1993 OPEN SPACE PROJECT) ,
APPROVING A PRELIMINARY OFFICIAL STATEMENT
AND AN OFFICIAL STATEMENT FOR SUCH
CERTIFICATES OF PARTICIPATION
AND APPROVING CERTAIN OTHER MATTERS
IN CONNECTION THEREWITH
WHEREAS, the Midpeninsula Regional Open Space District
(the "District") is authorized by law to lease real property for
open space for the District; and
WHEREAS, the District has determined that it is in the
best interests of the District and its citizens and is necessary
and proper for District purposes that certain real property for
open space for the District described in the Amended and Restated
Project Lease (the "Project Lease") proposed to be executed and
entered into as of July 1, 1993, by and between the California
Special Districts Association Finance Corporation (the
"Corporation") and the District, in substantially the form
presented to this meeting, be leased by the Corporation to the
District in the manner and for the purposes described in the
Project Lease; and
WHEREAS, in order to implement the Project Lease, it is
necessary for the District to enter into an Amended and Restated
Site Lease (the "Site Lease") proposed to be executed and entered
into as of July 1, 1993, by and between the District and the
Corporation; and
WHEREAS, under the Project Lease, the District will be
obligated to make rental payments to the Corporation to pay for
such real leased to it; and
property
WHEREAS, the Corporation desires to assign without
recourse all its rights to receive such rental payments to First
Interstate Bank of California, a California corporation, as
Trustee (the "Trustee") , for the benefit of the registered owners
of certificates of participation (the "Certificates") to be
executed and delivered by the Trustee under a Trust Agreement
(the "Trust Agreement") proposed to be executed and entered into
as of July 1, 1993, by and among the Trustee, the Corporation and
M-184341
the District, in substantially the form presented to this
meeting; and
WHEREAS, in consideration of such assignment and the
execution and entering into of the Trust Agreement, the Trustee
has agreed to execute and deliver the Certificates in the
aggregate principal amount of the principal components of such
rental payments, each evidencing and representing a
proportionate, undivided interest in such rental payments; and
WHEREAS, Kidder, Peabody & Co. Incorporated and
Prudential Securities Incorporated (the "Underwriters") have
offered to purchase the Certificates pursuant to a Certificates
of Participation Purchase Contract (the "Certificates of
Participation Purchase Contract") in substantially the form
presented to this meeting; and
WHEREAS, in connection with the initial public offering
of the Certificates, the Underwriters will distribute a
Preliminary Official Statement for the Certificates (the
"Preliminary Official Statement") in substantially the form
presented to this meeting, and after the sale and award of the
Certificates will distribute a final Official Statement for the
Certificates (the "Official Statement") in substantially the form
Of the Preliminary Official Statement; and
WHEREAS, all acts, conditions and things required by
law to exist, to have happened and to have been performed
precedent to and in connection with the authorization of the
execution and delivery of the Site Lease, the Project Lease, the
Trust Agreement and the Certificates of Participation Purchase
Contract do exist, have happened and have been performed in
regular and due time, form and manner as required by law, and the
District is now duly authorized to execute and deliver the Site
Lease, the Project Lease, the Trust Agreement and the
Certificates of Participation Purchase Contract and to approve
the Preliminary Official Statement and the Official Statement and
the distribution thereof;
NOW, THEREFORE, BE IT RESOLVED by the Board of
Directors of the Midpeninsula Regional Open Space District, as
follows:
Section 1. All of the foregoing recitals are true and
correct, and this Board of Directors so finds and determines.
Section 2. The District is authorized to execute and
deliver the Site Lease, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Site Lease for and on behalf of the District and the
Secretaryof the Board of Directors of the District is hereby
Y
� authorized
and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Site Lease. As
SF2-18434.2 2
executed and delivered, the Site Lease shall be in substantially
the form presented to this meeting, with such additions thereto
or changes therein as the officers executing the Site Lease shall
require or approve.
Section 3. The District is authorized to execute and
deliver the Project Lease, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Project Lease for and on behalf of the District and
the Secretary of the Board of Directors of the District is hereby
authorized and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Project Lease.
As executed and delivered, the Project Lease shall be in
substantially the form presented to this meeting, with such
additions thereto or changes therein as the officers executing
the Project Lease shall require or approve, including those
relating to the total rental payments due under the Project Lease
and the amount and schedule of the payments thereunder, such
approval to be conclusively evidenced by the execution and
delivery thereof.
Section 4. The District is authorized to execute and
deliver the Trust Agreement, and the President of the Board of
Directors of the District is hereby authorized and directed to
execute the Trust Agreement for and on behalf of the District and
the Secretary of the Board of Directors of the District is hereby
authorized and directed to attest such execution and to affix the
seal of the District thereto and to deliver the Trust Agreement.
As executed and delivered, the Trust Agreement shall be in
substantially the form presented to this meeting, with such
additions thereto or changes therein as _the officers executing
the Trust Agreement shall require or approve, including those
relating to the total principal amount of the Certificates and
the amount and schedule of payments of principal and interest
thereunder, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 5. The District is authorized to execute and
deliver the Certificates of Participation Purchase Contract, and
the Acting General Manager of the District is hereby authorized
and directed to execute the Certificates of Participation
Purchase Contract for and on behalf of the District; provided,
that the total principal amount of the Certificates shall not
exceed eighteen million five hundred thousand dollars
($18,500, 000) , the term of the Certificates shall not exceed
thirty (30) years and the net interest cost of the obligation
evidenced and represented by the Certificates shall not exceed
seven per cent (7. 0%) per annum and the underwriter's discount
for the purchase thereof shall not exceed one and two-tenths per
cent (1.2%) . As executed and delivered, the Certificates of
Participation Purchase Contract shall be in substantially the
form presented to this meeting, with such additions thereto or
changes therein as the officer executing the Certificates of
sF2-18434.2 3
Participation Purchase Contract (subject to the above
limitations) shall require or approve, such approval to be
conclusively evidenced by the execution and delivery thereof.
Section E. The Preliminary Official Statement in the
form now on file with the Secretary of the Board of Directors of
the District is hereby approved, and the Acting General Manager
of the District is hereby authorized to approve the distribution
of the Preliminary Official Statement in substantially said form
and to certify to the Underwriters on behalf of the District that
the Preliminary Official Statement is, as of its date, "deemed
final" by the District, within the meaning of Rule 15c2-12
promulgated under the Securities and Exchange Act of 1934 (except
for the omission of certain final pricing, rating and related
information as permitted by such rule) , and the President of the
Board of Directors of the District and the Acting General Manager
of the District are hereby authorized and directed, for and in
the name and on behalf of the District, to execute and deliver to
the Underwriters the Official Statement, which shall be in
substantially the form of the Preliminary Official Statement with
such additions thereto or changes therein as such officers shall
require or approve, such approval to be conclusively evidenced by
the execution and delivery thereof, and the Underwriters are
hereby authorized to distribute copies of the Official Statement
to persons who may be interested in the purchase of the
Certificates and the Underwriters are directed to deliver such
copies to all actual purchasers of the Certificates.
Section 7. The President of the Board of Directors of
the District, the Secretary of the Board of Directors of the
District, the Acting General Manager of the District and the
Controller of the District are hereby each authorized and
directed, in the name and on behalf of the District, to take any
and all steps and to execute and deliver any and all
certificates, contracts and other documents which they might deem
necessary or appropriate in order to consummate the delivery of
the Certificates and otherwise to effectuate the purposes of this
resolution; and such actions previously taken by the officers of
the District are hereby ratified and confirmed.
Section 8. This resolution shall take effect from and
after its passage, approval and adoption.
SF2-18434.2 4
PASSED AND ADOPTED on July 14, 1993, by the following
vote:
AYES: Directors
NOES:
ABSENT:
Approved:
President of the Board of Directors
of the Midpeninsula Regional
open Space District
(SEAL)
Attest:
Secretary of the Board of Directors
of the Midpeninsula Regional
Open Space District
sa2-18434.2 5
r
Open Space
R-93-77 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
Meeting 93-13
July 14, 1993
AGENDA ITEM
Proposed Option for Addition of Acronico Property to Long Ridg Open Space Preserve
ACTING GENERAL MANAGER'S RECOMMEND
1. Adopt the attached resolution authorizing acceptance and execution of the Option
Agreement for the Acronico property.
2. Review the Preliminary Use and Management Plan recommendations contained in this
report. The recommendations will be returned for tentative adoption should the
District exercise its option to acquire this property.
DISCUSSION (see attached map)
The Acronico property being considered for acquisition would be an addition to the Long
Ridge Open Space Preserve. The property lies between Long Ridge and Skyline Ridge Open
Space Preserves and is a integral part of the continuous ridgeline originating on Long Ridge
Preserve. The property encompasses the upper reach of Peters Creek and includes pristine
watershed, views, and wildlife habitat. A dramatic portion of Devils Canyon is located at
the convergence of two tributaries of Peters 'Creek. There are magnificent sandstone
boulders, waterfalls, and forest at this promontory. Over the past few years, the property
has received great public attention and support to acquire it for open space.
DESCRIPTION (parcel being proposed for option)
The 179-acre Acronico property is comprised of two parcels. Together, they are
rectangularly shaped and bounded by District land to the east, northeast, and northwest.
Private properties adjoin the parcels to the north, west, and south. The property is located
approximately one-quarter mile south of Skyline Boulevard and can be accessed from an
unimproved driveway that connects to Portola Heights Road and an adjacent public bypass
trail. Both the road and trail parallel the property's east boundary.
The topography of the property is generally characterized by extremely steep slopes that
face south, north, and west. The bowl-shaped terrain includes two tributaries of Peters
Creek that converge in the northwest corner of the property. One tributary originates above
7ikoji Pond and enters the property from the north. It drops steeply with waterfalls
cascading over sandstone boulders to the bottom of Devils Canyon. This is where it joins
the second tributary and the headwaters that originate within the property. Sandstone
outcroppings and boulders are predominate over most of the southwest facing slopes and
represent some of the most rugged terrain found in the Santa Cruz Mountains. A relatively
Open Space . . . for room to breathe 20th Anniversary • 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 Phone:415-691-1200 • FAX: 415-691-0485
General Manager:Herbert Grench Board ofOirectors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Winn de Wit
R-93-77 Page 2
level and prominent ridgetop ascends above the sandstone outcroppings to the northeast
corner of the property. This area represents one of the most spectacular geological
formations in San Mateo County.
The sandstone boulders are derived from Vaqueros Sandstone the same sandstone found at
El Corte De Madera Open Space Preserve and Castle Rock State Park. Many of the
boulders are in excess of 30 feet in diameter and are highly eroded with cavities and cavelike
depressions. The cavities result from cavernous weathering and are referred to as tafoni.
Unlike the tafoni at El Corte de Madera Open Space Preserve, these are sculptured and
smooth rather than honeycombed. There are some signs of vandalism such as carvings and
spray paint.
The vegetation is primarily evergreen forest. Douglas fir, madrone, and bay are most
common and in many places the understory is sparse enough to provide spacious views. On
the steepest south-facing slopes, there is a mixture of evergreens and chaparral. Along the
northeast ridge, there are many places along the trail that offer panoramic views of Devils
Canyon and coastal scenery. Lush riparian plant communities are found along the two
tributaries of Peters Creek and ferns are abundant along the creekside trails.
Portola Heights Road enters the preserve along the property boundary. It is mostly paved
and connects Skyline Boulevard with private residences to the south and west of the property.
Portola Heights Road parallels the east boundary of the property, lying within the existing
preserve but corning within several feet of the property near the northeast corner. Here, there
is an unimproved driveway that extends west along the prominent ridge. The driveway fades
into a trail that descends the ridge through the sandstone boulders to Peters Creek and an
overlook above Devils Canyon. From the overlook, there is a creekside trail that follows the
Y �
north branch of Peters Creek towards Portola Heights Road below its junction with Skyline
Boulevard. A second unpaved road bisects the property and connects from Portola Heights
Road to private and District lands to the west of the property.
USE AND MANAGEMENT PLAN
Planning Considerations
The property is in the County of San Mateo and is zoned TPZ (Timber Management Zone)
and has a residential development density of seven sites. A portion of the property is within
the Skyline Scenic Corridor. Portola Heights Road is adjacent to the property and is a
private road maintained under a road maintenance agreement whereby the District
participates in proportion to the length of the road that passes through the Preserve. The
addition of the Acronico property will not increase the District's share of road maintenance
costs because the Acronico property lacks road frontage and is not a part of the maintenance
agreement.
R-93-77 Page 3
The road that extends west through the property and connects Portola Heights Road to
private properties and District lands to the west, is currently used by residents and District
staff. Legal interests and rights to the road are unclear and need to be clarified with Portola
Heights residents.
Historically, Devils Canyon has been an attractive point of interest for preserve visitors.
Under its current ownership, there has been little attempt to discourage trespass. There have
been numerous problems associated with illegal parties, vandalism, litter, and accidents. The
area near the waterfalls is a popular climbing area where District field staff have participated
in several emergency rescues.
Careful attention to these problems will be required if the property is eventually acquired and
when updating the Comprehensive Use and Management Plan for Long Ridge Open Space
Preserve. In the meantime, the Preliminary Use and Management Plan below focuses on
status quo, permitting trail access, but emphasizing the need to develop an overall signing
program specific to this particular area.
Preliminary Use and Management Plan Recommendations (when and if the property is
acquired)
Dedication: Indicate your intention to dedicate the property as public open space
Name: Name the property as an addition to Long Ridge Open Space Preserve
Signs: Install private property and preserve boundary signs where appropriate; develop an
overall sign program with legal assistance
Brochure: Update the brochure map to include the property and existing trails
Roads: Resolve road easement issues with Portola Heights residents to clarify access rights
that will mutually benefit residents and the District
TERMS
The Acronico property was sold in the open market in May, 1989 at a price of $1,000,000.
District staff believed that the property lacked legal access through the adjacent Long Ridge
Open Space Preserve and so advised the listing realtor and property owners at that time.
Unfortunately, District correspondence was ignored (except that the price was apparently
reduced to $900,000) and the prospective purchaser began bulldozing District land. The
District responded immediately by filing suit and obtaining a Temporary Restraining Order
and eventually a Preliminary Injunction to stop all land destruction. Since November, 1989,
District staff has been anticipating a trial on the matter of legal access to the Acronico
property. In parallel, District staff continued to meet with representatives of the parties in an
R-93-77 Page 4
attempt to settle the matter.
As a result of detailed research, with assistance from title companies and field survey
investigation, it was determined that a partial right of way across District lands did exist,
with a distinct possibility that at least a portion of the Acronico property could be
development with access across the Long Ridge Preserve.
An additional aspect of settlement discussion centered around the state budget crisis and its
potential effect on the District. It was anticipated that the settlement would involve District
acquisition of the property with grant funding assistance highly desirable. The greatest
potential for additional funding is the proposed "CALPAW '94" park bond act initiative
sponsored by the Planning and Conservation League in Sacramento. If placed on the ballot
in June 1994 and approved by the voters, the District would receive over $30 million for
land acquisition. With this in mind, staff has negotiated the proposed Option Agreement
which requires the payment of $40,000 in cash upon execution, but gives the District until
December 31, 1994 to acquire the property for $690,000. The option payment would be
credited against the purchase price. In this way, the District will have a recorded right to
acquire the property, but if funds are not available, there is no obligation to go forward with
the acquisition. Staff assumes that the property would be developed with residential
homesites if not acquired by the District.
Additionally, a payment of $25,000 would be made to Mark Budart, the former purchaser of
the property. Of this amount, $5,000 would be recovered from insurance companies and
$20,000 would come from District funds. This payment settles the main disputed claim and
the insurance companies participation settles the remaining claims under the current lawsuit,
save one minor cross-complaint that staff anticipates will go away over time.
Assuming that the District is able to complete the acquisition as specified in the Option
Agreement, the total purchase, including net settlement costs, would be $710,000. The
g P g
transaction as proposed is the best available result that the District could have anticipated
from this legal action.
Prepared by:
Del Woods, Senior Open Space Planner
Contact person:
L. Craig Britton, Acting General Manager
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RESOLUTION NO.
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
APPROVING AND AUTHORIZING EXECUTION OF
OPTION AGREEMENT, AUTHORIZING OFFICER TO
EXECUTE MEMORANDUM OF AGREEMENT, AND
AUTHORIZING ACTING GENERAL MANAGER TO
EXECUTE ANY AND ALL OTHER DOCUMENTS
NECESSARY OR APPROPRIATE TO CLOSING OF THE
TRANSACTION (LONG RIDGE OPEN SPACE PRESERVE -
LANDS OF ACRONICO)
The Board of Directors of the Midpeninsula Regional Open Space District does
resolve as follows:
Section One. The Board of Directors of the Midpeninsula Regional Open
Space District does hereby approve of an Option Agreement between the Midpeninsula
Regional Open Space District (as Optionee) and Eugene A. Acronico and Rose C. Acronico
(as Optionor), a copy of which is attached hereto and by reference made a part hereof, and
authorizes the President or other appropriate officer to execute said Agreement and
Memorandum of Option on behalf of the District.
Section Two. The Acting General Manager of the District shall cause to be
given appropriate notice of acceptance to the Optionors. The Acting General Manager
further is authorized to execute any and all other documents necessary or appropriate to the
closing of the transaction.
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement" or "Option") is made and
entered into this day of 11 1993 , by and
, between EUGENE A. ACRONICO and ROSE C. ACRONICO (hereinafter
collectively referred to as "Optionor") and MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT, a Public District (hereinafter referred to
as "Optionee") .
RECITALS
A. Optionor is the owner of two adjoining parcels of real
property which are approximately 179 acres in size (the
"Property") , situated in an unincorporated area of San Mateo
County, State of California, and legally described in Exhibit A
to the Agreement to Purchase Real Property which is attached as
Exhibit I hereto (the "Purchase Agreement") .
B. There is currently pending in San Mateo County Superior
Court, a legal action (MROSD vs. Acronico) wherein Optionee is
plaintiff and Optionor is defendant and the parties hereto desire
to settle and dismiss portions of said lawsuit as further defined
herein as a part of the consideration for entering into this
Option Agreement.
C. Optionee desires to acquire the exclusive right to
purchase, without becoming obligated to purchase the Property,
and Optionor desires to grant to Optionee such exclusive right to
purchase, at an agreed price as specified herein and under the
terms and conditions stated herein.
NOW, THEREFORE, the parties agree as follows:
1 . Grant of Option. Optionor hereby grants to Optionee
the exclusive right to purchase the Property at the price and
under the terms and conditions set forth in the Agreement to
Purchase Real Property attached to hereto as Exhibit I.
2 . Option Period. The term of this Option shall commence
upon the date of this Agreement, as above written, and terminate
at 11: 59 P.M. , December 31, 1994 , unless, extended, sooner
exercised, or terminated as further provided herein.
3 . Option Consideration. In order for Optionee to
maintain the purchase rights under this Option, Optionee shall be
required to pay to Optionor on or before July 30, 1993 , the sum
of Forty Thousand and no/100 Dollars ($40, 000. 00) in cash.
The amount payable as specified in this Section 3 shall
be applicable to the cash purchase price for the Property, if
this option is exercised. In the event that Optionee does not
exercise this Option, Optionor shall retain said payment which is
made pursuant to this section 3 .
OPTION AGREEMENT - Acronico Page 2
4 . Exercise of Option. Upon execution of this Agreement,
Optionor shall execute and deliver to Optionee three (3)
counterparts of an Agreement to Purchase Real Property in the
form of Exhibit I. Provided Optionee is not in breach of this
Agreement, Optionee may exercise this Option at any time during
the "Option Period" by execution and tender to Optionor of one
counterpart of said Agreement to Purchase Real Property.
5. Automatic Termination. Unless the parties agree
otherwise in writing, this option and the rights of Optionee
hereunder shall automatically and immediately terminate without
notice:
(a) If Optionee fails to make the payment as required
in Section 3 ; or
(b) At 11: 59 p.m. on December 31, 1994 .
Thereafter, Optionee shall execute, acknowledge and deliver
to Optionor, within ten (10) days of request therefor, a release,
Quitclaim Deed or other appropriate document required by Optionor
or a title insurance company to verify the termination of this
Option Agreement.
6. Use of Property Prior to Exercise of Option.
6. 01 Protection of Resources. Optionor covenants and
agrees, on behalf of Optionor, its agents, employees and assigns,
that during the Option Period, Optionor, its agents, employees
and assigns at all times shall preserve and protect the Property
and any and all resources thereof.
6. 02 Title. The Property is presently encumbered by
those items listed in the Preliminary Title Report which is
attached as Exhibit A to the Agreement to Purchase Real Property
(Exhibit I hereto) .
Optionor covenants that there are no exceptions
to title to the Property other than those listed in said
Preliminary Title Reports and that Optionor will neither take any
action nor permit any action to be taken (including, without
limitation, the granting of easements or timber or mineral
rights) that would prevent Optionor from delivering title to the
Property to Optionee in the manner required by Section 3 (f) of
the Agreement to Purchase Real Property (Exhibit I hereto) .
7 . Delivery of Property. In the event this Option is
exercised, Optionor shall deliver the Property to Optionee free
and vacant of all persons and personal property at the close of
escrow, and Optionor, on behalf of itself,
its heirs, successors
and assigns, hereby specifically waives and releases Optionee
OPTION AGREEMENT - Acronico Page 3
from any and all claims, by whatever name known, including, but
not limited to claims for relocation benefits and/or payments
pursuant to California Government Code Section 7260 and
following; and Optionor agrees to hold Optionee harmless and
reimburse Optionee for any and all liability, losses and expenses
occasioned by reason of any and all such claims.
8 . Assignability of Option. Optionee may assign this
Agreement to another public agency of similar nature and function
as Optionee or to a non-profit land trust or association having
an Internal Revenue Code Section 501(c) (3) designation as a tax-
exempt charitable non-profit foundation; provided that any such
assignment shall be null and void without the prior written
consent of Optionor, which shall not be unreasonably withheld.
9 . Memorandum of Option. The parties shall execute a
Memorandum of Option in the form attached hereto as Exhibit II,
which shall be recorded in the official records of the Recorder's
Office of San Mateo County, California.
10. Dismissal of Court Action. Following execution of this
Option Agreement, but in no event later than July 30, 1993 , the
parties will dismiss their respective causes of actions, filed in
the Superior Court of California, County of San Mateo, No.
346363 , as follows: Optionor will execute and deliver a
dismissal of all causes of action without prejudice. District
will execute and deliver a dismissal, as to Optionor, for the
causes of action for trespass, slander of title and civil
conspiracy, with prejudice and as to the entire action against
all remaining parties, with prejudice. District will also
execute and deliver a Release of Lis Pendens, which Optionor may
record to clear title to the Subject Property. As a condition of
the effectiveness of this option, Optionee will secure a
dismissal of cross-complainant Marc Boudart on or before July 30,
1993 . Optionor and Optionee shall be responsible for, and pay
their own costs and attorney's fees in association with said
court action and cross-complaint(s) .
11. Miscellaneous Provisions.
11- 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.
11. 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
OPTION AGREEMENT - Acronico Page 4
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.
11. 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
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. Any agreement on the part of an art for
y party any such
amendment, extension or waiver must be in writing.
11. 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.
11. 05 Notices. Whenever any party hereto desires or is
required to give any notice, demand or request with respect. , q ect to
P
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:
Optionor: Eugene A. Acronico and Rose C. Acronico
c/o Robert L. Pasquinelli, Esq.
841 Malone Road
San Jose, CA 95125-2640
(408) 723-7300
FAX: (408) 266-1238
OPTION AGREEMENT - Acronico Page 5
Optionee: Mid peninsula Regional gional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton,
Acting General Manager
(415) 691-1200
FAX: (415) 691-0485
Copy To: Stanley R. Norton, Esq.
407 Sherman Avenue
Palo Alto, CA 94306
(415) 324-1366
FAX: (415) 327-9151
If sent by telegraph, cable, telecopy and other facsimile
transmission, a confirmed copy of such notice shall 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. Any party may change its address for such
communications by giving notice thereof to the other parties in
conformity with this Section. Nothing contained in this Section
or otherwise in this Agreement shall excuse any party from giving
oral nic notice telephonic p when
prompt
notification
on is appropriate,butanYoral telephonic notice which
is so given shall not
satisfy the requirement of written notice as specified in this
Section. The foregoing provisions regarding the giving of notice
by any party shall be applicable to all notices given hereunder
or under any of the Exhibits hereto.
11. 06 Severabilitv. 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 unenforce-
able provisions.
11. 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 instru-
ment.
OPTION AGREEMENT - Acronico Page 6
11- 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 condi-
tion of this Agreement.
11- 09 Exhibits; Entire Agreement. Each of the
Exhibits attached hereto is incorporated herein by this
reference. This Agreement, including said Exhibits, 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.
11- 10 Time of Essence. Time is of the essence of each
provision of this Agreement in which time is an element.
11- 11 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, which approval
shall not be unreasonably withheld.
11. 12 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.
11. 13 Bindinq 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.
11. 14 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.
11. 15 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.
OPTION AGREEMENT - Acronico Page 7
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers to be
effective as of the day and year first above written.
2Rtjonee Optionor
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
APPROVED AS TO FORM:
Eugene A. Acronico
Date:
Stanley Norton, District Counsel
RECOMMENDED FOR APPROVAL:
Rose C. Acronico
L. Craig Britton, Date:
Acting General Manager
APPROVED AND ACCEPTED:
President, Board of Directors
ATTEST:
District Clerk
Date:
AGREEMENT TO PURCHASE REAL PROPERTY
This Agreement is made and entered into by and between EUGENE A.
ACRONICO and ROSE C. ACRONICOI hereinafter 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. "
WITNESSETH
WHEREAS, Seller is the owner of certain real
Property which has
open space and recreational value, located within an unincor-
porated 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 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
San Mateo, State of California, containing approximately one
Hundred Seventy-Nine (179) acres, more or less, and commonly
referred to as San Mateo County Assessor' s Parcel Nos. 080-410-
190 and 085-130-010; said property being further described in
the legal description attached to Preliminary Title Report Number
342294, dated August 25, 1992 , from First American Title
Insurance Company; said title report attached hereto as Exhibit
"All and incorporated herein by this reference. 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 Six Hundred Ninety Thousand
Dollars ($690, 000 . 00) , less the Forty Thousand and no/100 Dollars
($40, 000. 00) credit toward the purchase price for the option
payment made pursuant to Section 3 of the Option Agreement
EXHIBIT
Pa _,___of
At.:
Purchase Agreement - Acronico Page 2
between Seller (as Optionor) and District (as Optionee) , 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 11 herein, an escrow shall be opened at
First American Title Insurance Company, 555 Marshall Street.,
Redwood City, CA 94063 , phone number (415) 367-9050, 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 sixty (60) days following
District' s execution and delivery of this Agreement to Seller,
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.
(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 amount of Six Hundred Fifty Thousand and No/100 Dollars
EXHIBIT
Page
Purchase Agreement - Acronico Page 3
($650, 000. 00) . The purchase price of Six Hundred Ninety Thousand
and
no/100 Doll
ars lars ($690, 000. 00) less the option paymentm ent of Forty and no/100 Dollars
(e) District 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 this Agreement shall be apportioned or
allocated between District and Seller in the manner customary in
Sa
n Ma
teo Coun
ty.y. All current property taxes
on the Property
i
shall be handled in accordance with Section 4986 of the Revenue
and Taxation Code of the State of California.
(f) Seller shall cause First American Title Insur
ance
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 $650, 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 3, 4, 5, and 7 shown in said Preliminary Title
Report (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, absolute and unfettered
discretion.
(g) Escrow Holder shall, when all required funds and
instruments have been deposited into the escrow by the appro-
priate 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.
Up
onon the Closing,� Es
crow
w Holder shall cause tobe delivered the original
of the policy of the title
insurance if required herein, and to Seller Escrow Hol
der's
r s chec
k k
for the full purchase price of the Subject Property
IISeller's b t less
portion of the expenses described in Section 3 (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 mon
ies, docum
ents
is or ot
her thin
gs of value deposited in the
escrow to the party depositing the same.
i
4 . Riahts 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 part whose fault
t
may have caused such termination of esc
row) ,
and ea
ch party
Y
EXHIBIT .,.
9 0#
Purchase Agreement - Acronico Page 4
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.
5 . Leases or Occupancy of Premises. Seller warrants that
there exis
t no oral or writte
n leases or rental agreements
affectingal or 1 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 excep-
tions 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 . Integrity of Property. Except as otherwise provided
herein or by express written permission granted by District,
�ad�,
Purchase Agreement - Acronico Page 5
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.
8 . Hazardous Substances. "Hazardous substance" as used
herein means and includes polychlorinated biphenyls (PCBs) ,
benzene, asbestos or any other substance the placement, storage
or removal of which is prohibited or regulated by federal, state
or local law.
(a) Seller warrants and represents that:
(i) During Seller ' s ownership of the Property
Seller has not placed or stored or allowed to be placed or stored
any hazardous substance on the Property.
(ii) Seller has no knowledge of the presence on
the Property of any hazardous substance, whenever or however
placed or stored.
(b) If hazardous substances are subsequently found to
exist on the Property, District may exercise its right to bring
an action if necessary to recover cleanup costs from Seller or
any other person or persons who are ultimately determined to have
responsibility for the hazardous substances on the Property.
However, under no circumstances shall Seller be held liable for
costs other than those incurred in the cleanup of the hazardous
substances resulting from Seller's ownership and operation of the
Property.
9 . 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 1987 (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 fair market value of said Property, appraisals, etc. , as
provided for by said Federal Law and any corresponding California
Government Code Sections.
10. Miscellaneous Provisions.
10. 01 Choice of Law. The internal laws of the State
of California, regardless of any choice of law principles, shall
EXHIBIT--T
Purchase Agreement - Acronico Page 6
govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the
parties.
10. 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.
10. 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.
10. 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.
10. 05 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
EXHIBIT
Page 6 of
Purchase Agreement - Acronico Page 7
medium, addressed as indicated as follows:
Seller: Eugene A. Acronico and Rose C. Acronico
c/o Robert L. Pasquinelli, Esq.
841 Malone Road
San Jose, CA 95125-2640
(408) 723-7300
FAX: (408) 266-1238
District: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton,
Acting General Manager
(415) 691-1200
FAX: (415) 691-0485
Copy To: Stanley R. Norton, Esq.
407 Sherman Avenue
Palo Alto, CA 94306
(415) 324-1366
FAX: (415) 327-9151
If sent by telegraph, cable, telecopy and other facsimile
transmission, a confirmed copy of such notice shall 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. Any party may change its address for such
communications by giving notice 'thereof to the other parties in
conformity with this Section. Nothing contained in this Section
or otherwise in this Agreement shall excuse any party from giving
oral telephonic notice when prompt notification is appropriate,
but an oral tele
phonic honic notic
e lce which h is so given shall not
sa
tisfy the requirement y q rement of written notice as specified in this
Section. The foregoing provisions regarding the giving of notice
by any party shall be applicable to all notices given hereunder
or under any of the Exhibits hereto.
10. 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
shal
l not result in the nullity
or
unenforceability of the remainingportions of this Agreement.
t g ment.
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 unenforce-
able provisions.
EXHIBI 0
Page o
Purchase Agreement - Acronico Page 8
10. 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 in
stru-
ment.
executed one and the same instru
ment.
10. 08 Waiver. No waiver of any term, provision or
condition of this Agreement, whether b conduct o g y r 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 condi-
tion of this Agreement.
10 . 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, conversations, negotiations, agreements
or un
derstandings relating to the same subject matter.
10. 10 Time of Essence. Time is of the essence of each
provision of this Agreement in which time is an elemen
t.
10. 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. repre-
sentations all re re-
sentations 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.
10. 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.
10. 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.
10. 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
li permitted by law, on the successors and permitted assigns of the
parties hereto.
10. 15 Broker's Commission. District shall not be
EXHIBIT .�
Page
Purchase Agreement - Acronico Page 9
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.
10. 16 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.
10. 17 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.
11. Acceptance and Execution. Seller has executed this
Agreement pursuant to the terms and conditions of that certain
Option Agreement between Seller (as Optionor) and District (as
Optionee) which provides for, among other things, that District
execute and deliver this Agreement to Seller on or before
December 31, 1994 . 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.
EXHIBIT-Z
Page-of�
I
Purchase Agreement - Acronico Page 10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by Y 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:
Eugene A. Acronico
Date:
Stanley Norton, District Counsel
RECOMMENDED FOR APPROVAL:
Rose C. Acronico
Date:
L. Craig Britton,
Assistant General Manager
APPROVED AND ACCEPTED:
President, Board of Directors
ATTEST:
District Clerk
Date:
EXHIBIT
Page�of--
Order No. 342294
SUPPLEMENTAL PRELllVIINARY REPORT �
0
a
FIRST AMEERICAN TITLE INSURANCE COMPANY
x
N
555 Marshall Street
Redwood City, CA 94063 a
(415) 367-9050 F
ESCROW FAX (415) 364-1519
v
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C CA
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MMPENINSULA REGIONAL OPEN SPACE DISTRICT F
Attn: Craig Brittan w a
330 Distel Circle
Los Altos, CA 94022
Customer's Reference:
Form of Policy Coverage Requested: ALTA LOAN POLICY - 1990
In response to the above referenced application for a policy of title insurance, this Company
hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy
or Policies of Title Insurance, describing the land and the estate or interest therein hereinafter
set forth, insuring against loss which may be sustained by reason of any defect, lien or
encumbrance not shown or referred to as an Exception below or not excluded from coverage
pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth
in Exhibit A attached. Copies of the Policy forms should be read. They are available from the
office which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of
facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is
desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or
Commitment should be requested.
Dated as of August 25, 1992 at 7:30 a.m.
JAMES NORRIS
ESCROW OFFICER
Title of said estate or interest at the date hereof is vested in:
EUGENE A. ACRONICO AND ROSE C. ACRONICO
Page 1 EXHIBIT
Pass oft
SUPPLEMENTAL 1U RT Order No. 342294
The estate or interest in the land hereinafter described or referred to covered by this Report is: a
A FEE as to Parcels I and II; AN EASE 17,NT as to Parcels III and IV.
a
N
The land referred to in this Report is situated in the State of California, County of San Mateo,
and is described as follows: a
a
F
PARCEL I:
� o
The South 1/2 of the Southwest 1/4 of Section 26, Township 7 South, Range 3 West, Mount Q o
Diablo Base and Meridian. °' N
G� Fc
PARCEL II:
The Northwest quarter of Section 35, Township 7 South, Range 3 West, Mount Diablo Base and
Meridian.
EXCEPTING THEREFROM that portion conveyed to Rose Acronico, a widow, also known as
Rosa Acronico, to William McLaughlin, by Deed recorded July 10, 1937 in Book 747 of
Official Records at page 254, Records of San Mateo County, California.
PARCEL III:
A non-exclusive easement for ingress and egress of pedestrians and vehicles and for commercial
purposes and for the installation and maintenance of public utilities including sewer, gas, water,
electrical and telephone lines over the following described parcel:
BEGINNING at the Northwest corner of Parcel "B" as shown on that certain map entitled
"PARCEL MAP OF THE LANDS OF JESSE H. BROOKS AS RECORDED IN DEED 513
O.R. 600 (FILE NO. 52699-AA), OFFICIAL RECORDS OF SAN MATEO COUNTY AND
BEING A PORTION OF SECTION 26, TOWNSHIP 7 SOUTH, RANGE 3 WEST, M. D. M.,
ALSO RECORDED IN DEED 7737 O.R. 485, RECORDS OF SANTA CLARA COUNTY,
SAN MATEO COUNTY AND SANTA CLARA COUNTY, CALIFORNIA", filed in the office
of the County Recorder of San Mateo County, State of California on June 10, 1970 in Book 10
of Parcel Maps at page 22 and running thence along the Southerly boundary of Parcel "A" of
said Parcel Map North 810 37' 25" East 529.47 feet and North 52° 15' East 38.31 feet to the
Southwesterly line of Skyline Boulevard; thence Southeasterly along said Southwesterly line of
Skyline Boulevard on the arc of a curve to the left having a radius of 550 feet and a central
angle of 9° 16' 51" for an arc distance of 89.09 feet; thence leaving said Southwesterly line of
Skyline Boulevard on a radial line to said last mentioned curve South 41° 00' West 60 feet;
thence Northwesterly along the arc of a curve to the right, concentric with the Southwesterly line
of Skyline Boulevard having a radius of 610 feet and a central angle of 3* 53' 06" for an arc
distance of 41.36 feet to the most Easterly corner of said above mentioned Parcel "B"; thence
South 81° 37' 25 West 552.52 feet to the Westerly boundary of said Parcel "B"; thence along
said Westerly boundary North 0° 03' 57" West 60.63 feet to the point of beginning.
Page 2
EXHIBIT.—
Page, of
SUPPLE IENTAL R` 7RT Order No. 342294
U
Said easement is appurtenant to Parcel I above and created by Deed from Jesse H. Brooks and a
Helen Brooks, his wife, to Jack H. Lipian, Trustee, recorded April 2, 1971 in Book 5919 of
Official Records at page 579 (File No. 94837-AD), Records of San Mateo County, California.
U
t.
PARCEL IV: a
0
A non-exclusive easement for ingress and egress of pedestrians, vehicles and for commercial
purposes and for the installation and maintenance of public utility lines including gas, water, F
electrical and telephone lines and sewer lines over a strip of land 60 feet in width lying Q °°
eP P Y g
a
a N
M
contiguous to and measured at right angles to or concentric to and Westerly and Northwesterly
H
from the following described line: a
BEGINNING at a point on the Easterly line of the Northwest 1/4 of the Southwest 1/4 of
Section 26, Township 7 South, Range 3 West, M. D. M. distant thereon South 0° 03' 57" East
26.81 feet from the Northeasterly corner of said Northwest 1/4 of the Southwest 1/4 of Section
26; thence from said point of beginning along said Easterly line South 0° 03' 57" East 166.19
feet to a point; thence leaving said Easterly line running Southwesterly along the arc of a curve
to the right, having a radius of 340 feet and the center of which bears North 54° 13' West from
the last mentioned point through a central of 38° 19' for an arc distance of 227.38 feet; thence
continuing Southwesterly along the arc of a tangent curve to the left having a radius of 200 feet
and a central angle of 56° 06' for an arc distance of 195.83 feet; thence continuing along the
arc of a tangent curve to the right having a radius of 80 feet and a central angle of 111° 49' 14"
for an arc distance of 156.13 feet to the terminal point of this easement.
The Northerly terminus of said easement shall be the Southwesterly prolongation of the
Northerly line of Parcel "B" as shown on "Parcel Map" filed in the office of the County
Recorder of San Mateo County, State of California on June 10, 1970 in Book 10 of Parcel Maps
at page 22 and the Southwesterly terminus of said easement shall be a radial line bearing North
39° 49' 14" East through the terminal point of said easement.
Said easement is appurtenant to Parcels I, H herein, and was created by Reservations from the
following documents:
(a) Deed to Lewis Goldklang and Arlene Goldklang, his wife, recorded July 7, 1971 in Book
5974 of Official Records at page 657 (File No, 24388-AE), Records of San Mateo County,
California.
(b) Deed from Lennox Sweeney, single man, recorded July 7, 1971 in Book 5974 of Official
Records at page 664 (File No. 24391-AE), Records of San Mateo County, California.
Page 3 EXHIBIT
Page I-�k °f�
SUPPLEMENTAL F ORT Order No. 342294
v
a
(c) Partial Reconveyance from Jack H. Lipian, Trustee to Eugene A. Acronico and Rose C. a
Acronico recorded July 16, 1971 in Book 5980 of Official Records at page 93, San Mateo
County,Records (File No. 27221-AE). N
U
A.P. No.: 080-410-190 JPN 080 041 410 19 A a�
080-130-010 085 013 130 01 A H
C
U
� C
OA"
C
At the date hereof exceptions to coverag
e e in addition to the tinted exceptions and
. g P P - F
exclusions n x
co tamed in said policy form would be as follows:
1. General and Special Taxes for the fiscal year 1992-93, now a lien, amount not yet
ascertainable.
2. General and Special Taxes for the fiscal year 1991-1992, in the amount of$35.70, each
installment has been paid in full.
Code Area: 066-022 A.P. No.: 08 -41 -0 0 190
General and Special Taxes for the fiscal year 1991-1992, in the amount of$56.00, each
installment has been paid in full,
Code Area: 066-022 A.P. No.: 085-130-010
3. The Lien of Supplemental Taxes assessed pursuant to Chapter 3.5, commencing with
Section 75 of the California Revenue and Taxation Code.
4. EASEMENT for drainage within any creek or stream traversing the herein described
property, together with the rights of the public in and to the waters and the use of such creeks
or streams, to the high water mark.
5. EASEMENT for roadway and utility purposes over that portion of the herein described
property lying within any public or private road or highway.
Page 4 EXH1QIT
Pale 144- °fO
SUPPLEMENTAL RJWRT Order No. 342294
6. DEED OF TRUST to secure an indebtedness in the original amount of$50,000.00 and
any other amounts and/or obligations secured thereby, a
Trustor: Arvia Hosking and Jack H. Lipian, Trustee
Trustee: Security Title Insurance Company, a California corporation y
Beneficiary: Y Company,Bayside Timber Com an , Inc.
Dated: April 25, 1969 a
Recorded: April 25, 1969
Document No.: 31178-AC
n M
1717 Records of San Mateo Count
f Official Records atpage/image
Book/Reel 5630 o O cal
Y o
California. d
y
N
Beneficiary1 sAddress - Not shown
Loan No. - Not shown F a
ASSIGNMENT
From: Bayside Timber Company, Inc.
To: Dant & Russell, Inc.
Dated: April 25, 1969
Recorded: April 25, 1969
Document No.: 31179-AC
Book/Reel 5630 of Official Records at page/image 177, Records of San Mateo County,
California.
Assigns all interest in Deed of Trust recorded in Book/Reel 5630 of Official Records at
page/image 171.
Assignee's Address: Not shown
ASSIGNMENT
From: Dant & Russell Inc.
To: Bayside Timber Company, Inc.
Dated: October 7, 1971
Recorded: October 18, 1971
Document No.: 55244-AE
Book/Reel 6031 of Official Records at page/image 103, Records of San Mateo County,
California.
Assigns all interest in Deed of Trust recorded in Book/Reel 5630 of Official Records at
page/image 171.
Assignee's Address: Not shown
Page 5 EXHIBIT
Page of
I
SUPPLEMENTAL F 7RT Order No. 342294
h
ti
G.
4
4.
ASSIGNMENT
From: County of San Mateo, a political subdivision of the State of California
To: Jesse H. Brooks and Helen Brooks his wife and Jack H. LiP ian Trustee
Dated: May 4 1971
a
Recorded: May 5, 1971 F
Document No.: 4 2 -0 6 AE
'U
Book/Reel 5936 of Official Records at page/image 386, Records of San Mateo County, y
California.
w ,
Owners agree to dedication and improvement of 60 foot road in accordance with County v
of San Mateo standards, etc. u
Affects Parcel III.
7. EASEMENT over the herein described property, as granted in Instrument:
From: Jesse H. Brooks and Helen Brooks, his wife
To: Eugene A. Acronico and Rose C. Acronico
Dated: January 14, 1971
Recorded: July 7, 1971
Document No.: 24387-AE
Book/Reel 5974 of Official Records at page/image 655, Records of San Mateo County,
California.
Grants non-exclusive easement for ingress and egress of pedestrians and vehicles and for
commercial purposes and for the installation and maintenance of public utilities including sewer,
gas, water, electrical and telephone lines.
Affects Parcel III.
RIGHTS as reserved in the Deed of Partial Reconveyance
From: Security Title Insurance Company, a corporation, as Trustee
To: Jack H. Lipian, Trustee
Dated: July 13, 1971
Recorded: July 16 1971
Document No.: 27221-AE
Book/Reel 5980 of Official Records at page/image 93, Records of San Mateo County,
California, includes a reservation described as follows:
"The parties hereto anticipate that hereafter, the dominant parcel of real property may
P � P P P Y Y
be subdivided and re-subdivided and intend that upon such subdivision or re-subdivision the
resulting increased uses for increased traffic of pedestrians and vehicles ingress and and a
P� � g g
other commercial uses and increased use for installation and maintenance of public utility lines
shall not be deemed to cause or result in an overburdening or misuse of the within easement."
Page 6 EXH1 T
Pagefbof
SUPPLEMENTAL RT `RT Order No. 342294
8. PROCEEDINGS pending in the Superior Court of the State of California in and for the o
County of San Mateo, Case No. 346363, entitled, "Midpeninsula Regional Open Space District, a
a public district, Plaintiff(s), vs Eugene A. Acronico, Rose C. Acronico, et a1, Defendant(s)." a
The object of which is to enjoin defendant's trespass across plaintiffs land and to determine,
pursuant to Section 760.020 of the Code of Civil Procedure, any and all adverse claims to and
clouds on title to the real property described herein as well as to quiet the title of plaintiffs land a
against defendant's claim of any interest in plaintiff's land including title to any easement. F
Attorneys: David B. Fisher, 407 Sherman Avenue, Palo Alto, CA 94306
Telephone: (415) 327-54M � o
Q
LIS PENDENS recorded February 2, 1992 under Document No. 90016604 of Official ^ F v
Records of San Mateo County, California. "°
INFORMATION NOTES:
A. Notwithstanding the exclusions from coverage as set forth under "Exclusions" any ALTA Residential
Owner's Policy issued by First American Title on the herein described land shall contain in Schedule B,
Part I, the following exclusion from coverage:
Any rights, interest, or claims of parties in possession of the land not shown by the public records.
Any easement or liens not shown by the public records. This does not limit the lien coverage in item 8
of covered title risks.
Any facts about the land which a correct survey would disclose and which are not shown by the public
records. This eliminates the forced removal coverage in item 12 of covered title risks.
B. The City of San Mateo imposes a property transfer tax of 1h of 1% of total consideration.
C. Order Date: September 6, 1988
Short term rate date: None
D. LENDER'S SPECIAL INFORMATION
There have been no deeds recorded within the last two years prior to the date of this report, affecting the
herein described property.
Effective January 1, 1992 all notarial acknowledgment forms must comply substantially with the language
contained in California Civil Code Section 1189 entitled "General form of certificate of acknowledgment"
pursuant to Senate Bill 2251, Chapter 1070 of Statutes of 1990. any documents executed on or after
January 1, 1992 and acknowledged in the State of California by a notary public containing other notarial
forms of acknowledgments may not be acceptable for recordation. First American Title will make the form
available upon request.
Page 7 EXHIBIT r
Noe p�
SUPPLEMENTAL R -)RT Order No. 342294
WARNING
"THE MAP ATTACHED HERETO MAY OR MAY NOT BE A SURVEY OF THE LAND DEPICTED
THEREON. YOU SHOULD NOT RELY UPON IT FOR ANY PURPOSE OTHER THAN ORIENTATION TO
THE GENERAL LOCATION OF THE PARCEL OR PARCELS DEPICTED. FIRST AMERICAN EXPRESSLY
DISCLAIMS ANY LIABILITY FOR ALLEGED LOSS OR DAMAGE WHICH MAY RESULT FROM
RELIANCE UPON THIS MAP". ci
NOTICE E
Section 12413.1 of the California Insurance Code effective January 1, 1990, requires that any Title Insurance 5 00
Company, underwritten Title Company, or controlled Escrow Company handling funds in an escrow or sub-escrow P
capacity, wait a specified number of days after depositing funds,before recording any documents in connection with
the transaction or disbursing funds. This statute allows for funds deposited by wire transfer to be disbursed the
same day as deposit. In the case of cashier's checks or certified checks, funds may be disbursed the next day after
deposit. In order to avoid unnecessary delays of three to seven days, or more, please use wire transfer, cashier's
checks, or certified checks whenever possible.
If you have any questions about the effect of this new law, please contact your local First American Office for more
details.
NOTE: This report is subject to a cancellation charge as required by Sections 12404,et seq.,of the Insurance Code
of the State of California and Rule No. 2 of Department of Insurance Bulletin No. Ns. 35 E.
N.O.
RG/ac/p
Page 8 EXHIBIT
Page
TAX CODE AREA___^
3/
/ ZON/NG____ SO- 4I
I ' I
/ My,•G��y PTN P4R/
15
a7 s�ti .q
PARCEL 2 3 y I
A.. PARCEL B/
si d PARCEL J a a
�°' \ -\ i t i.7♦ ���n ,�oti / PrN PAR /
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PARCEL 2
� PARCEL I
k
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(DEVILS CANYON)��� �_ \ 1 \ a—C,
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W 9KB5 PARCEL MAP V0L. 23�
PARCEL MAP VOL. 36/39-4/ I
//�� PARCEL MAP VOL J715-46
� L'1PARCEL MAP VOL. 46�6-57
D•V. 0 S NAP COUNTY QR JAM AIATEO)CAL/F.
LA HONDA-PESCADERO UIW Exhibit A
IN To The Agreement To Purchase Real Property
Page 9 of 10
14 TAX CODE AREA
ZONING - _ _ _ _ _ S 5 - 13
1
ICiO•: SI'i1i2•M IJtlQ• /))/.2J3' NO'J '-h7-S 1))1SOS
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`~ PARCEL MAP VOL. 34147
1
° Exhibit A
NORM- -� • • -•-•� ._ . _ •
AJJQJJO�•S MAP COfINrr oP JAly MAr[o C4. •LAHONDA- PESCADEFTo The Agreement To Purchase Real Property_
Paee10of10
WHEN RECORDED RETURN TO:
Midpeninsula Regional Open
Space District
330 Distel Circle
Los Altos, CA 94022
Attn: C. Britton
MEMORANDUM OF OPTION
THIS MEMORANDUM of Option is notice to all concerned that an
Option Ag
reement greement was executed b Eugene A. Acronico
y ene g o and Rose C.
Acronico, as Optionor, and Midpeninsula Regional Open Space
District, a public district, as Optionee, on the day of
, 1993 , wherein Optionor agreed to offer to Optionee
an exclusive right to purchase and Optionee agreed to accept the
exclusive right to purchase from Optionor that certain real
property owned b Optionor, described as follows:
Y P
Being more particularly described in Exhibit "A" and
made a part of this Memorandum of Option as referenced
herein.
Assessor' s Parcel Numbers: 080-410-190 & 080-130-010
IN WITNESS WHEREOF, the parties have caused this Memorandum
of Option to be executed as of the date of final execution
hereof.
Optionee Optionor
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
By By
President Date� Eugene A. Acronico Date
Board of Directors
ATTEST By
Rose C. Acronico Date
By
District Clerk Date
EXHIBIT
Page I of
EXHIBIT A To Memorandum of Option
Page 1 of 2
The following described real property is situated in the State of California, County of San
Mateo:
PARCEL I:
The South 1/2 of the Southwest 1/4 of Section 26, Township 7 South, Range 3 West, Mount
Diablo Base and Meridian.
PARCEL LI:
The Northwest quarter of Section 35, Township 7 South, Range 3 West, Mount Diablo Base and
Meridian.
EXCEPTING THEREFROM that portion conveyed to Rose Acronico, a widow, also known as
P Y
Rosa Acronico, to William McLaughlin, by Deed recorded July 10, 1937 in Book 747 of
Official Records at page 254, Records of San Mateo County, California.
PARCEL III:
A non-exclusive easement for ingress and egress of pedestrians and vehicles and for commercial
purposes and for the histallation and maintenance of public utilities including sewer, gas, water,
electrical and telephone lines over the following described parcel:
BEGINNING at the Northwest corner of Parcel "B" as shown on that certain map entitled
"PARCEL MAP OF THE LANDS OF JESSE 11. BROOKS AS RECORDED IN DEED 513
O.R. 600 (FILE NO. 52699-AA), OFFICIAL RECORDS OF SAN MATEO COUNTY AND
BEING A PORTION OF SECTION 26, TOWNSHIP 7 SOUTH, RANGE 3 WEST, M. D. M.,
ALSO RECORDED IN DEED 7737 U.R. 485, RECORDS OF SANTA CLARA COUNTY,
SAN MATEO COUNTY AND SANTA CLARA COUNTY, CALIFORNIA", filed in the office
of the County Recorder of San Mateo County, State of California on June 10, 1970 in Book 10
of Parcel Maps at page 22 and running thence along the Southerly boundary of Parcel "A" of
said Parcel Map North 81° 37' 25" East 529.47 feet and North 52° 15' East 38.31 feet to the
Southwesterly line of Skyline Boulevard; thence Southeasterly along said Southwesterly line of
Skyline Boulevard on the arc of a curve to the left having a radius of 550 feet and a central
angle of 9° 16' 51" for an arc distance of 89.09 feet; thence leaving said Southwesterly line of
Skyline Boulevard on a radial line to said last mentioned curve South 41° 00' West 60 feet;
thence Northwesterly along the arc of a curve to the right, concentric with the Southwesterly line
of Skyline Boulevard having a radius of 610 feet and a central angle of 3° 53' 06" for an arc
distance.of 41.36 feet to the most Easterly corner of said above mentioned Parcel 'B"; thence
South 81° 37' 25 West 552.52 feet to the Westerly boundary of said Parcel "B"; thence along
said Westerly boundary North 0° 03'.57" West 60.63 feet to the point of beginning.
Said easement is appurtenant to Parcel I above and created by Deed from Jesse H. Brooks and
Helen Brooks, his wife, to Jack H. Lillian, Trustee, recorded April 2, 1971 in Book 5919 of
Official Records at page 579 (File No. 94837-AD), Records of San Mateo County, California.
EXHIBIT 11
Page�2ef�
EXHIBIT A To Memorandum of Option
Page 2 of 2
PARCEL IV:
A non-exclusive easement for ingress and egress of pedestrians, vehicles and for commercial
purposes and for the installation and maintenance of public utility Ines including gas, water,
electrical and telephone lines and sewer lines over a strip of land 60 feet in width lying
contiguous to and measured at right angles to or concentric to and Westerly and Northwesterly
from the followhig described line:
BEGINNING at a point on the Easterly line of the Northwest 1/4 of the Southwest 114 of
Section 26, Township 7 South, Range 3 `Vest, M. D. M. distant thereon South 00 03' 57" East
26.81 feet from the Nouiheasterly corner of said Northwest 1/4 of the Southwest 1/4 of Section
26; thence from said point of beginning along said Easterly line South 0" 03' 57" East 166.19
feet to a point; thence leaving said Easterly line running Southwesterly along the arc of a curve
to the right, having a radius of 340 feet and the center of which bears North 54° 13' West from
the last mentioned point through a central of 38' 19' for an arc distance of 227.38 feet; thence
continuing Southwesterly along the are of a tangent curve to the Ieft having a radius of 200 feet
and a central angle of 56' 06' for an arc distance of 195.83 feet; thence continuing along the
arc of a tangent curve to the right having a radius of 80 feet and a central angle of 111° 49' 14"
for an arc distance of 156.13 feet to the tenninal point of this easement.
The Northerly terminus of said easement shall be the Southwesterly prolongation of the
Northerly line of Parcel "B" as shown on "Parcel Map" filed in the office of the County
Recorder of San Mateo County, State of California on June 10, 1970 in Book 10 of Parcel Maps
at page 22 and the Southwesterly terminus of said easement ;hall be a radial line bearing North
39' 49' 14" East through the tenninal point of said easement.
Said easement is appurtenant to Parcels I, II herein, and was created by Reservations from the
following documents:
(a) Deed to Lewis Goldklang and Arlene Goldklang, his wife, recorded July 7, 1971 in Book
5974 of Official Records at page 657 (File No. 24388-AE), Records of San Mateo County,
California.
(b) Deed from Lennox Sweeney, single man, recorded July 7, 1971 in Book 5974 of Official
Records at page 664 (File No. 24391-AE), Records of San Mateo County, California.
(e) Partial Reconveyance from Jack H. Lipian, Trustee to Eugene A. Acronico and Rose C.
Acronico recorded July 16, 1971 in Book 5980 of Official Records at page 93, San Mateo
County Records (File No. 27221-AE A.P. No.: 080-410-190 JPN 080 041 410 19 A
080-130-010 085 013 130 01 A
EXHIBIT
Page Of
Open Space
--------------------
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
R-93-71
Meeting 93-13
July 14, 1993
AGENDA ITEM
Volunteer Trail Patrol Program
4'
ACTING GENERAL MANAGERS RECOMMENDA111111
No action is required. Staff is presenting this as an informational report.
DISCUSSION
On January 27, 1993, the Board adopted the Trail Use Guidelines and Mitigation Measures.
The guidelines include volunteer trail patrol as an educational mitigation measure to help
alleviate trail use conflicts. In the analysis included in the report, it was noted that a
volunteer trail patrol offers a needed presence and surveillance, and can convey valuable
information on maintenance problems as well as trail use related issues.
During the past few months, staff has gathered and reviewed information about other
agencies' volunteer trail patrol programs. This report is to inform you of our progress in
developing a program for the District. Staff intends to work with the initial group of
volunteers to finalize the program.
The purposes of the volunteer trail patrol are to:
1) provide information and distribute brochures and maps to preserve visitors,
2) educate visitors about proper trail use and safety while on the preserves,
3) provide staff with information on trail use patterns, trail conditions and hazards,
and
4) assist with special events.
Volunteers will not have law enforcement authority and will not be involved in law
enforcement activity.
Membership
Membership will include bicyclists, equestrians, and hikers. Initially, the size of each group
will be limited to ten people per user group for a total of 30 members. Staff will keep a
waiting list and use it to fill any vacancies that may occur. Recruitment began this month
with an announcement in the volunteer newsletter. We will notify other interested groups as
well. After one year, the program will be evaluated and the number of members may be
increased, if appropriate.
R-93-71 Page 2
Members will be asked to sign an agreement with the District for a one-year commitment to
the program. Each membership is at the discretion of the District and can be ended if the
volunteer does not follow the program guidelines. Membership meetings will be held
quarterly, or more often as necessary.
When volunteering, members will wear special clothing that identifies them as District trail
patrol volunteers. Staff intends to charge a nominal membership fee ($20 to $30) to help
cover the cost of these items.
Qualifications
Volunteers must be at least 18 years old and in good health. They will be required to attend
all orientation and training sessions given by the District. To remain active, volunteers
should patrol at least once a month and spend a minimum of two hours on each patrol, for an
average of 20 hours per year. To avoid trail damage and erosion, bicyclists and equestrians
will not be patrolling during wet weather.
Bicyclists will be expected to keep their equipment in good condition. Equestrians must own
or have regular access to a horse. Horses must be at least four years old and well-broken.
Staff is considering working with local equestrian groups to develop and administer a test to
insure competent equestrian skills among members and the suitability of the horse involved.
All members must follow District regulations and observe area closures.
Training
Training will be conducted by District personnel, and is intended to include District
philosophy, rules and regulations, trail etiquette and safety, environmental aspects of trail
use, communications, reporting procedures, and visitor contacts.
Personnel or volunteers from other agencies may be involved in training volunteers in areas
of expertise outside the realm of District staff. For example, a member of an existing horse
patrol unit may conduct a training session on visitor contacts while on horseback.
At least one field training session will be included. However, volunteers will be expected to
become familiar with District preserves and trails that they wish to patrol.
It is recommended, but not required, that volunteers receive training in first aid and CPR
and, if so, that they maintain current certificates. Because of public health concerns
associated with blood-borne pathogens, the District will not require volunteers to administer
first aid. Staff will fully inform them of the risks involved in providing first aid. Use of
first aid skills will be at the discretion of each volunteer.
Operational Procedures
A staff member from each field office will serve as liaison to the volunteer trail patrol.
These positions could rotate among staff. Volunteers may choose the trails they wish
R-93-71 Page 3
to patrol unless the District has a special need or request. They will notify the ranger office
by phone, preferably 24 hours in advance, to advise staff of the trail they will patrol. A
field staff member will be asked to keep a written log of volunteer patrols being conducted.
Staff will encourage volunteers to patrol in pairs whenever possible. Upon completion of the
patrol, volunteers will notify the ranger office by phone and send in a written report to the
volunteer coordinator. The use of radios while on volunteer trail patrol is currently being
reviewed since there are a number of logistical problems to overcome.
Before implementing the volunteer trail patrol program, the following tasks need to be
accomplished:
1) continue to meet with staff and seek comment from specific trail use groups,
2) develop recruitment and screening process,
3) develop a training course for the classroom and field,
4) create a volunteer trail patrol guide or manual,
5) research and make recommendation on providing Workers' Compensation
coverage for the volunteers,
6) design and order clothing items (T-shirts, and/or vests),
7) create new forms (logs, reports) necessary for operation of the program.
Staff will return to Youwi hstatus report after the program has been implemented and
enough time has passed for an initial evaluation.
Prepared b :
P Y
Joan Young, Volunteer Coordinator
Contact person:
Same as above
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
R-93-76
Meeting 93-13
July 14, 1993
AGENDA ITEM
Solicitation of Bids for Rancho San Antonio Field Office Expansion
ACTING GENERAL MANAGER'S RECOMMENDATION
Authorize staff to solicit competitive bids from independent contractors for expansion of the field
office at Rancho San Antonio Open Space Preserve.
DISCUSSION
At your November 8, 1989 meeting, you tentatively adopted the Structures and Improvements
Element of the Comprehensive Use and Management Plan for Rancho San Antonio Open Space
Preserve (see report R-89-151 dated November 2, 1989). Final adoption of the plan occurred
at your April 25, 1990 meeting (see report R-90-57 dated April 13, 1990). The plan discussed
the need for additional office, storage, and workshop space at the Rancho ranger facility and
recommended that staff proceed with preparation of construction drawings and cost estimates for
expansion of the facility. Since your review of the use and management plan, staff also
determined that the exisiting facility does not meet CAL-OSHA (California Occupational Safety
and Health Administration) requirements for separate male and female restroom and shower
facilities.
Plans and specifications for expansion of the facility have been prepared by Dennis Kobza and
Associates Inc. of Mountain View. The project entails construction of a 2,232 square foot
P J office addition to the existing building. This addition will provide office space, a kitchen,
meetingroom, and separate shower facilities for male and female staff. A co of the plans and
P copy
specifications will be available for your review at your July 14, 1993 meeting.
The construction cost is estimated at $300,000. The 1993-1994 budget includes $315,000 for
the construction phase of this project. Although this project was included in the "reduced level"
budget for 1993-1994, the Budget Committee instructed staff to hold this project until after the
State budget ws enacted and its affects on the District were known. The State budget was signed
by the Governor on June 30, 1993 and the District can now safely proceed with the project.
Expenditure of these funds was confirmed by the Budget Committee at its meeting of July 8,
1993.
f
R-93-76 Page 2
The project includes$15,000 for construction administration. Huettig &Schromm, Inc. of Palo
Alto has been hired as construction administrator for the project. They will assist in the
solicitation of bids and oversee the actual construction. The construction period will last four
to six months.
Staff is waiting for final plan approval from Santa Clara County. Staff will return to you with
bid results and a recommendation for an award of contract in August 1993.
Prepared by:
Sheryl Marioni Cochran, Open Space Planner
Contact person:
Same as Above
I
f
Open Space
1
R-9 3-7 2 MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
Meeting 92-13
July 14 , 1993
AGENDA ITEM
Endorsement of San Francisco Bay Trail Awa7rJ Week
ACTING GENERAL MANAGER'S RECOMMENDATION
Adopt the attached resolution supporting San Francisco Bay Trail
Awareness Week.
DISCUSSION
The San Francisco Bay Trail project is coordinating a series of
special events around the Bay Area during the first week of
August. The purpose of these events is to increase public
awareness of the Bay Trail project. Midpeninsula Regional Open
Space District is sponsoring one such event at Stevens Creek
Shoreline Nature Study Area on August 1, 1993 .
The San Francisco Bay Trail project has been in existence for
five years. It is an organization comprised of environmental
organizations and local, regional, and state agencies dedicated
to developing a 300 mile trail around San Francisco Bay. The
District plays a vital role in implementing segments of the trail
in San Mateo and Santa Clara counties. Staff has been
particularly instrumental in the planning and implementation of
Bay Trail segments near the Ravenswood Open Space Preserve and
between Mountain View Shoreline and Sunnyvale Baylands Park.
For the past few years, the Bay Trail project has sponsored the
Bay Cycle event at Lake Merritt. This event, which includes
professional bicycle races, has brought regional as well as
national support and recognition to the Bay Trail. This year,
additional events have been scheduled during the week following
Bay Cycle in an effort to increase local public awareness of the
existing sections of Bay Trail and the planning efforts underway
to complete the trail.
The District is assisting the Bay Trail project by conducting a
docent-led hike along Stevens Creek shoreline to the edge of San
Francisco Bay during Bay Trail Awareness Week. The focus of the
hike will be to acquaint visitors with the valuable resources of
the bay and the plans to connect the Bay Trail between Mountain
View Shoreline and Sunnyvale Baylands Park.
Prepared by: Del Woods, Senior Planner
Contact person: Same as above
Open Space . . . for room to breathe 20th Anniversary 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 Phone: 415-691-1200 • FAX: 415-691-0485
Genera!Manager:Herbert'Grench Board of Directors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginn Babbitt,.Nonette Han ko,Betsy Crowder,Wim de Wit
RESOLUTION NO.
RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT SUPPORTING BAY TRAIL AWARENESS
WEEK
WHEREAS, the San Francisco Bay Trail has been mandated by the State
Legislature and planned by the Association of Bay Area Governments as a regional
hiking and bicycling trail around San Francisco and San Pablo Bays; and
WHEREAS, the San Francisco Bay Trail project has been in existence for five
years and approximately 160 miles of the 400-mile-long Bay Trail is in place; and
WHEREAS, there is a continuing need to promote awareness of the San
Francisco Bay Trail and to involve citizens and public agencies in the process of
creating new sections of the Bay Trail; and
WHEREAS, opportunities exist along the developed sections of the trail for the
people of the San Francisco Bay Area to enjoy access to the Bay's shoreline and
appreciate the creation of the San Francisco Bay Trail through recreational and
educational activities; and
WHEREAS, Senator Bill Lockyer, the Association of Bay Area Governments,
and the San Francisco Bay Trail Board of Directors have declared July 29 to August
8, 1993 as San Francisco Bay Trail Awareness Week.
NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the
Midpeninsula Regional Open Space District hereby declares its recognition of July 29
to August 8, 1993 as San Francisco Bay Trail Awareness Week; and
BE IT FURTHER RESOLVED that the Midpeninsula Regional Open Space District
agrees to sponsor and participate in the Shoreline Walk at Stevens Creek Nature Study
Area event during this week.
Home Phone: 408-269-6843
Work Phone: Extension:
Joined (Year) : 1985 Activity Dates: 90: 9/1, 10/13, 12/16. 91: 10/6, 11/3
Available Weekends: y
Available Weekdays: n
Short notice ok: n Likes to co-lead: y
Twilight/evening: p Short in depth: y Long/vigorous: n
Birds: n Flowers/Plants: y
Children: n Geology: n
Fault Trail: y Mamals: n
OTHER (Docent offered comments) : history
Coal Creek: y Saint Joseph's Hill: y
Edgewood: y Saratoga Gap: y
Corte de Madera: y Sierra Azul: y
El Sereno: y Skyline Ridge: y
Foothill: y Stevens Creek Shoreline: y
Fremont Older: p Teague Hill: y
Fremont Older - house: y Thornewood: p
La Honda Creek: y TW - House: y
Long Ridge: y Windy Hill: y
Los Trancos: p
Monte Bello: p
MB - Picchetti: p
Pulgas Ridge: y
Purisima Creek: y
Rancho San Antonio: y
RSA - Duvenek: y
Ravenswood: y
Russian Ridge: y
Data entered by: K. Hart Date of entry: 11/91
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
R-93-73
Meeting 93-1.3
July 14, 1993
AGENDA ITEM
Revisions to District Benefit Plan
ACTING GENERAL MANAGER'S RECOMMENDATION
Approve the attached revisions to the District benefit plan, including the addition of post-
retirement health care coverage for nonrepresented employees, with monthly premiums fully
PY employee.aid b the to ee.
P Y
DISCUSSION
Post-Retirement Medical Plan Coveraee
At your October 14, 1992 meeting (see report R-92-108), you directed staff to review and
present to the Board for consideration the addition of post-retirement medical plan coverage
for nonrepresented employees, with monthly premiums fully paid by the employee.
The addition of post-retirement medical plan coverage would enable employees who retire
from the District to continue, at their own expense, the medical plan coverage they received
as an active employee. There is no cost to the District to provide this coverage, except for
minimal administrative time to process the monthly premium payments.
As noted at the October 14, 1992 meeting, the Ralph Andersen & Associates comparative
benefit study showed that all of the survey agencies provide the option for continued health
benefits after retirement with a contribution of up to 100% by the employee. The District is
the only agency that does not currently provide the option of post-retirement health care
coverage. In addition, in a recent employee steering committee survey of nonrepresented
employees to determine benefit priorities, post-retirement health care coverage was rated as
the most important benefit.
An employee must be eligible to retire under the District's Public Employees Retirement
System (PERS) to be eligible for post-retirement medical coverage. This means an employee
must have at least five years of service and be at least 50 years of age. (If the retirement is
due to disability, the employee must meet the service requirement but there is no minimum
age requirement.) Post-retirement medical coverage may continue for as long as the retired
employee lives.
R-93-73 Page 2
Other Revisions
Other revisions to the District benefit plan for nonrepresented employees include the addition
of District-paid long term disability insurance and an employee assistance program, which
you approved at your meeting of October 14, 1992 (see report R-92-108). Also, the
paragraph describing the proration of benefits for part-time employees contained an error and
has been corrected.
The final revision is deleting the term "fringe" from "District benefit plan." This change
reflects the importance of these benefits as an intrinsic part of the District's employment
package.
Prepared by:
Deirdre Dolan, Administrative Analyst
Contact person:
Jean Fiddes, Administrative Services Manager
Adopted by Board of Directors
July 8, 1987
Revised June 26, 1991
DISTRICT FWNGE BENEFIT PLAN
Each regular full-time District employee* shall be entitled to receive the following 4in a benefits:
Basic Medical Insurance Coverage
Choice of plans provided by the District. The District will provide basic medical insurance coverage
for all employees and dependents at the District's expense; the Board of Directors shall set a base
single premium rate and a base family premium rate for medical plan coverage each year as part of
the budget approval process.
If the premiums for the medical plan selected by the employee exceed the base premium rates
adopted by the Board, the employee shall be responsible for paying the difference in the cost of the
premiums through bi-weekly payroll deductions.
If an employee can prove that he or she is currently covered under a private or a spouse's medical
plan, basically equivalent to that provided by the District, the employee is eligible to apply one-half
of the base single medical premium amount, as approved by the Board of Directors, to 1) optional
benefit costs and premiums and 2) the District's deferred compensation program in his or her name.
r:;, : ><:.;.:i ...:,;, ;;s::;?r .::. ..:.: ;.:... .,_ ...
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Basic Dental Coverage
Choice of plan(s) provided by the District. The District will provide basic dental insurance coverage
for all employees and their dependents, and the base premium, as approved by the Board of
Directors, will be paid by the District.
If an employee can prove that he or she is currently covered under a private or a spouse's dental
plan, basically equivalent to that provided by the District, the employee is eligible to apply one-half
of the base dental premium amount, as approved by the Board of Directors, to 1) optional benefit
costs and premiums and 2) the District's deferred compensation program in his or her name.
Vision Care
Choice of plan( j provided by the District. The District will provide basic vision care coverage for all
employees and their dependents, and the base premium, as approved by the Board of Directors, will
be paid by the District.
Basic Life Insurance
Choice of plan(s) provided by the District and premiums to be paid by the District.
tr ;:: trrrr c ..fr .. f he r EUM
L? trr/t prxau�c� n+ tp1o)t�Wtt� prgrm fc elf erpfir end trr:drpeders:paid
Honorable
0 orable John Vasconcellos
Member, State Assembly
Room 6026, State Capitol
Sacramento, CA 94249-0001
FAX (916) 323-9209
Assembly Member Vasconcellos
State Assembly Member John Vasconcellos
i
I'
II
Or)tional Benefits
Choice of optional benei zo be provided by the District. RnL ^ costs and premiums to be paid
by the erno|oyeo' District's optional benefits shall include
supplemental life insurance, leng teffn disabilityinsu and accidental death and dismemberment
insurance.
Medical, dental, and benefits for regular part-time (mne'ha|f time orgreater)
� employees shall be administered on pro-rato basis.
�
The District's #ineaebenefit plan shall be administered by the General Manager or his designee.
� The District's Board of Directors maintains the right, as governing authority, to modify the 4fip@e benefit plan
� at any time. Proposed changes shall be subject to review and comment by District employees prior to Board
� adoption.
�
�
�
�
�
�
� �_ |
Honorable Byron Sher
Member, State Assembly
Room 2136, State Capitol
Sacramento, CA 94249-0001
FAX (916) 324-6974
Assembly Member Sher
State Assembly Member Byron Sher
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
i
TO: Board of Directors
FROM: C. Britton, Assistant General Manager
DATE: July 14, 1993
SUBJECT: F. Y. I.
Open Space . . . for room to breathe 20th Anniversary • 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 Phone:415-691-1200 • FAX:415-691-0485
General Manager:Herbert Grench Board o{Directors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wien de Wit
I .
Open Space
---------------------
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
July 9, 1993
The Honorable Dominic Cortese
California State Assembly
P. O. Box 942829
Sacramento, CA 94249-0001
Dear Assembly Member Cortese:
On behalf of the Board of Directors of the Midpeninsula Regional Open Space District,
I would like to thank you for your letter supporting the District's grant application with the
California Transportation Commission for the Sierra Azul Staging Area project. By applying for
grants such as this, the District is making every attempt to leverage our property tax revenue
and maximize the efficient use of public funds. Your help in this is greatly appreciated.
Again, thank you for your assistance and your commitment to open space preservation.
I'll be sure to let you know the outcome of this grant application. Please feel free to share the
enclosed brochures with your staff and constituents.
Sincerely,
Identical letters were sent to:
Ginny Babbitt, Vice President
Board of Directors John Vascancellas
Midpeninsula Regional Open Space District Jackie S p e i e r
Charles Quackenbush
Byron Sher
Alfred Alquist
GB/mcs Rebecca Morgan
Henry Mello
Rod Diridon
Zoe Lofgren
Open Space . . . for room to breathe 20th Anniversary 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 Phone:415-691-1200 • FAX: 415-691-0485
Genera/Manager:Herbert Grench Board of Directors:Pete Siemens,Robert McKibbin,Teena Renshaw,Ginny Babbitt,Nonette Hanker,Betsy Crowder,AVim de Wit
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
July 13, 1993
James Geiger, Forest Legacy Program
Department of Forestry and Fire Protection
P.O. Box 944246
Sacramento, CA 94244-2460
Dear Mr. Geiger:
The Midpeninsula Regional Open Space District would like to express strong support
for California's participation in the Forest Legacy Program. The protection of our
remaining forests and rangelands from development is one of the most important
measures we can take for the overall protection of our environment. The cost of
services and environmental impact of leapfrogrr rural development is often far higher
than infill development in urban areas, and it is often difficult to adequately plan,
monitor and control development in rural areas.
This program should be very cost-effective because it purchases conservation
easements from willing sellers, limiting the use of the land to agricultural and forestry
purposes. This should be much less expensive and less disruptive to the local
economic and social patterns than outright purchase.
Though the current funding level at $10 million for potential participation by 32 states
is woefully inadequate for the task, we believe that California's participation in this
program is an important first step. Any effort and money spent in this regard will be
a valuable investment to the future residents of our state.
Si cerel
L. C ig Britton
Acting General Manager
LCB/RA/dmz
cc: MROSD Board of Directors
Open Space . . . for room to breathe 20th Anniversary 1972-1992
330 Distei Circle • Los Altos, California 94022-1404 - Phone: 415-691-1200 • FAX: 415-691-0485 0
General Manager I Icrberl(Irew h Board of Direr tors I'ele Siemens,Rnberl M,Kibbin,Teeny I lenslmw,Ginny Babbitt,Nonelle Hanko,Betsy Crowder,Wim do Wit
Open Space
= - --- -- .
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
TO: Board of Directors
FROM: C. Britton, Assistant General Manager
DATE: July 9, 1993
SUBJECT: F. Y. I.
Open Space . . . for room to breathe 20th Anniversary 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 Phone: 415-691-1200 • FAX: 415-691-0485
General Manager:Herbert Grench Board ofDirectors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wim de Wit
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Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
June 25, 1993
Mr. Stephen R. Henshaw
Senior Project Manager
Romic Chemical Corporation
2081 Bay Road
East Palo Alto, CA 94303
Re: Ravenswood Open Space Preserve, Groundwater Testing
Dear Mr. Henshaw:
I would like to take this opportunity to summarize my position regarding your recent proposal to
reduce Romic's compensation for a license to conduct toxic monitoring and clean-up on District
land. It is disconcerting to hear that you are offering less than one-half of the amount that has been
the basis of our negotiations over the past few months. The District has requested $25,000 which I
feel is a fair and equitable amount for Romic's potential long-term interest in public open space
land. I, therefore, do not consider your $10,000 offer reasonable and am discouraged that our
negotiations have apparently reached an impasse.
I, and other members of our staff, have been working with you for over two years to accommodate
Romic by providing access to monitor and clean-up contaminated groundwater at the Ravenswood
Open Space Preserve. The access is necessary to facilitate an E.P.A. mandated program that results
from toxic contamination of groundwater associated with historic practices at the adjacent Romic
chemical plant. To date, the District has given you permits to install a test well, multiple test
borings and taking of surface samples in an effort to assist your program while continuing to
negotiate long-term issues.
The District indicated, over two years ago, that if open space land was needed to construct and
maintain testing or reclamation wells, compensation would be requested for developing a wetland
restoration plan for the preserve. Staff and our consultant scaled down an existing planning
proposal and concluded that $55,000 was appropriate compensation for the impact resulting from
installation of permanent wells and the associated long-term monitoring and clean-up program (see
attached copy of Sept. 18, 1991 letter).
You subsequently commissioned a purported $25,000 study of the preserve which was not approved
or coordinated with our staff and consultant. This complicated negotiations because the value of the
unsanetioned study could not be determined, leaving the scope of remaining tasks unknown. Upon
deliberation, we agreed to reduce the requested compensation to $25,000 and you agreed to provide
the study to our consultant (based upon the letter of December 8, 1992, copy attached).
More recently, Romic's legal counsel, Keith Howard, called to determine if the proposed $25,000
payment would compensate the District for sub-surface environmental damage the District's property
Open Space . . . for room to breathe 0 20th Anniversary 1972-1992
3:30 Distel Circle • Los Altos, California 94022-1404 • Phone: 415-691-1200 • FAX: 415-691-0485 1
General Maneger;Herbert Gwnch Board of Oirecfot, Pete Siemens,Rohert Mc Kihhin,Teeny 1 Ien�lww,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wim de Wit
may have suffered as a result of contamination. We worked with you and Keith Howard over the
last several months to finalize the details of an agreement including a provision that the District
would waive any sub-surface damage claims in exchange for the $25,000 compensation. Based on
our phone conversations and written communications, I understood that we had reached agreement
and was preparing to take this agreement to the District's Board of Directors for ratification.
Since I had not heard from you for several weeks, I telephoned and you suggested payment
installments, which I indicated would probably be acceptable to the District. Shortly thereafter,
you surprisingly retracted your $25,000 offer and made a counter offer of $10,000. This position
contradicts earlier negotiations, whereupon, $25,000 seemed to be acceptable to your attorney under
the express condition that we waive compensation for sub-surface damages. Your argument
concluded that money spent by Romic for the previous study of District land should be considered
part of the overall compensation. This is unacceptable since consideration was already given to this
study when we agreed to reduce the initial $55,000 request to $25,000, giving you credit for a study
that was never requested and which has an undetermined value to the District.
Your additional comment that the junkyard next door allowed Romic to install a monitoring well at
no cost underscores the fact that Romic continues to ignore the reality that the District land was
acquired to preserve the natural habitat and provide appropriate public recreation use. I find
Romic's unwillingness to adequately compensate the District for long-term intrusion objectionable.
To say the least, I am concerned that District staff has spent a great deal of time on negotiations that
we, mistakenly, felt were mutually agreed upon. Unless I hear otherwise, I will assume that Romic
is no longer interested in securing access to the District preserve, and I will inform the Board of
Directors that this agreement is no longer pending.
j.Sierely,
raig Britton
Acting General Manager
LCB\dmz
cc: Board of Directors, MROSD
Nancy Nadel, EPA
Mark Johnson, RWQCB
Keith Howard - Romic Legal Counsel
Stan Norton - District Legal Counsel
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
December 8 , 1992
i
Mr. Stephen R. Henshaw
Senior Project Manager
Romic Chemical Corporation
2081 Bay Road
East Palo Alto, CA 94303
Subject: Ravenswood Open Space Preserve, Monitoring Well Proposal
Dear Mr. Henshaw:
Following up on phone conversations with you, I wanted to reiterate
our position on the installation of groundwater monitoring wells,
and access for monitoring purposes, on the District's Ravenswood
Open Space Preserve. You have proposed installation of the wells as
of mitigation efforts required b EPA for our adjacent plant.
'partg q Y Y 7
request that Romic fund 'the restoration We stand b our original r r oration
Yq
s c plan as originally scoped, in return for use of and access to the
site, and in compensation for the environmental damage that may
have occured.
This arrangement seems to us to be equitable in relation to the
impact. If Romic funds development of a plan that is to be
implemented
emented m the District or others there will be a need for
P by
review and coordination to assure all parties that their interests
will be met. We pledge to do our part to assist the necessary
communication and coordination between the private companies, and
the concerned government agencies.
I hope to hear from you soon so that we can confirm this
arrangement or discuss alternatives. I look forward to working out
a solution that will be beneficial to all parties.
Sin erel
L. C aig Britton, SR/WA
Assistant General Manager
LCB:ss
cc: Nancy Nadell, U. S. Environmental Protection Agency
Mark Johnson, Regional Water Quality Control Board
Open Space . . . for room to breathe 20th Anniversary • 1972-1992
330 Distel Circle Los Altos, California 94022-1404 • Phone: 415-691-1200 - FAX: 415-691-0485
General Manager:Herbert Grench Board of Directors:Katherine Duffy,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Richard Bishop
Open Space
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
September 18 , 1991
Steve Henshaw
Romic Chemical Corporation
2081 Bay Road
East Palo Alto, CA 94303
SUBJECT: Response to Request for Access to Ravenswood Open Space
Preserve
Dear Steve:
In light of our recent discussions , it appears there remains one
issue to be resolved before our Board considers the proposed
Permit-To-Enter agreement. This issue centers around determining
a specific approach to meeting our planning needs for the preserve.
Staff continues to consider Your contribution to the preserve' s
restoration plan a significant element of our agreement for
granting you interest in District lands to test and clean-up
pollutants originating from your facility.
We feel the suggestions you have made to date need significant
clarification. We are pleased that Romic is willing to assist our
planning needs by providing biological and hydrological information
that is being generated for your own studies . It is also
encouraging to find that your neighbor Rhone Poulec may be
interested in contributing to the project. We are not sure,
though, how beneficial any of this information will be to a
restoration consultant in developing a comprehensive plan.
Our preliminary discussions with Rhone Poulec indicated their
assistance may be limited to the implementation phase rather than
the planning phase . Here again, it is unclear how the assistance
will bring us closer to getting our restoration study underway.
It is unfortunate that our meeting last week did not transpie
. In
A
number of questions could have been answered at that timer.
summary the questions are:
1) As part of your studies required for developing a clean-
up plan, precisely what type and level of data can we
expect to obtain that will benefit our restoration plan?
Has Romic developed a scope of services that clearly
defines what is to be provided in the biological and
hydrological studies?
3) What biological and hydrological information is being
generated by Rhone Poulec and how will it.. benefit our
restoration plan?
201 San Antonio Circle, Suite C-135 * Mountain View, California 94040 - Phone: (415) 949-5500 - FAX: (415) 949-5679
General Manager:Herbert Grench Board of Directors:Richard Bishop,Betsy Crowder,Katherine Duffy,Nonette Hanko,Teena Henshaw,Robert McKibbin,Edward Shelley
4) Who will provide funds for the District' s planning
consultant to define what is needed for our restoration
plan and coordinate with Romic and/or Rhone Poulec to
ensure biological and hydrological information being
offered to the District has value in preparing the
restoration plan?
These are all points that were touched upon in my August 30 , 1991
letter. Your initial proposal requested the right to install wells
on District land for an indeterminate length of time until water
quality met EPA standards . This proposal can potentially interfere
with public use of the property if and when the wells were needed
for pumping and reclamation. In response to this request for a
long term interest in District land, we requested Romic to consider
a $55, 000 contribution to assist us in a plan for returning the
area to a more natural state in conjunction with Romic ' s
reclamation work.
The present modified proposal is to install testing wells on
District land for a period of two years , thereupon, returning the
area to its original condition. In return and at a minimum, we are
expecting you to contribute enough funds to bring a restoration
planning consultant onboard on a limited basis to define and
coordinate the data gathering phase as it relates to Romic and
Rhone-Poulenc clean-up studies and District needs .
If we can get the preceding questions answered and come to
agreement we may be able to agendize the item on our October 2
meeting. I will be out of the office until September 30 so please
contact Del Woods to continue these discussions .
Since-rveel l yo
urs ,
I L. Crad r i It t
Acting Land Manager
LCB:kh
MEMORANDUM
DATE: 7/2/93
TO: Craig
FROM: Malcolm
RE: FYI - Meeting with open space coalition
As you know, I met on Wednesday with several members (see below) of the open space
coalition which made a presentation to the Board recently.
Most of their questions dealt with formation of an assessment district, and other possible
funding mechanisms. Only a small portion of the time was spent discussing the District's
becoming the lead agency in a funding effort.
I provided them with a number of documents, including copies of my 2/17 memo to the
Board on funding options, "The Nuts & Bolts Of Special Assessments" and "Public Financing
for Open Space - Mission Impossible?" both provided by Jean, and "The Prop A Story" by
Esther Feldman.
I suggested that they get each relevant city involved, and see about forming some kind
of joint powers authority that could then levy assessments. While this would no doubt be a
monumental task, it may be the only way that they can gain funding for their purposes.
I agreed to be available to them for future meetings, should they desire additional
information on funding options.
Participants in 6/30 meeting:
Linda Wagner Coalition 323-1115
Charlie Cutten San Mateo County Greens 327-9983
Debby Mytels PCC 962-9876
Karie Nelson St. Pat's Preservation 326-1919
Committee
Danna Bortz Breen Portola Valley 851-2101
Conservation Committee
/ COMMITTEE ON SCIENCE,
1505 LONGWORTFI BUILDING TON W OFFICE I 3 SPACE,AND TECHNOLOGY
NGW
SUBCOMMITTEES:
WASHI (202) 5 20515-0514 TECHNOLOGY,ENVIRONMENT
(202)22 -8104 Xnna 0. Q��joo AND AVIATION
SPACE
DISTRICT OFFICE 14tb Motrttt, California SCIENCE
598 EMERSN STREET tongrem� of the Eniteb *tate COMMITTEE ON MERCHANT
ALTO, g
PALO ALTO,CA 94301 MARINE AND FISHERIES
(415)323-2984
(408)245-2339 SUBCOMMITT; ouge of Repreantatibeg ENVIRONMENT AND NATURAL RESOURCES
June 29 1993 Wam*ington, 30 20515-0514 OCEANOGRAPHY AND THE OUTER
� C CONTINENTAL SHELF
NORTHERN CALIFORNIA
REGIONAL WHIP
Mr. Betsy Crowder, President, Board of Directors
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, California 94022-1404
Dear Ms. Crowder:
Because you have demonstrated a commitment to the Phleger estate, I wanted to write to
you about a most significant action which took place in Congress on June 14th. The House
Interior Appropriation Subcommittee appropriated $5.25 million for the Phleger addition to
the Golden Gate National Recreation Area (GGNRA). This project is one of only two
National Park Service acquisitions that were funded in the State of California. As you
know, this acquisition has been one of my top priorities. As one of the Bay Area's last
great open spaces, it is essential for this property to be part of the GGNRA.
Your work and support strengthened the case I made to the Appropriations Subcommittee.
We still have several steps to take, but if we had not made it through this, our case would
have been scrapped. I will continue to keep you apprised of the situation. We are now
closer to adding a new jewel in the crown of GGNRA.
Sincerely,
Anna . Eshoo
r of Congress
AGE:mog
THIS STATIONERY PRINTED ON PAPER MADE OF RECYCLED FIBERS '...
Open Space
---------------------
1
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
July 9, 1993
City Council
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070
Subject: Proposed Sphere of Influence Expansion
Dear Council Members:
The Midpeninsula Regional Open Space District (MROSD) has carefully followed the
progress of Saratoga's proposed sphere of influence expansion in order to better
understand the reasoning, and to comment, as appropriate, on the proposal's relationship
to overall open space and environmental preservation goals. We understand that the
City's objective in expanding the sphere of influence is to exert more stringent control
over development. However, in general, it has been our experience that expansion of a
cty's sphere tends to be growth-inducing, and raises property values due to expectations
that the next logical steps will be extension of the urban service limits and annexation.
It also offers developers two alternative, and possibly competing, arenas in which to
pursue project approvals.
MROSD strongly supports the recommendations of the Planning Commission adopted at
the meeting of July 6, 1993, which we understand include:
1) retain and prezone the existing sphere of influence limits;
2) amend the General Plan to include specific statements regarding the City's open
space and environmental objectives for the adjoining unincorporated lands; and
3) pursue an agreement with Santa Clara County to formalize specific referral and
review arrangements and/or defer to the City on certain development standards that
are more stringent than the County's current ordinances.
Open Space . . . for room to breathe 0 20th Anniversary 1972-1992
330 Distel Circle • Los Altos, California 94022-1404 • Phone:415-691-1200 • FAX:415-691-0485
General Manager:Herbert Grench Board of Directors:Pete Siemens,Robert McKibbin,Teena Henshaw,Ginny Babbitt,Nonette Hanko,Betsy Crowder,Wim de Wit
These recommendations seem to be an appropriately conservative and focused approach
to achieving the City's overall objectives for the unincorporated area. They are also
apparently more consistent with the desires of the residents of the area in question, as
voiced in recent public hearings. We urge the Council to carefully consider these
Planning Commission recommendations in making its decisions on this matter.
Si ely,
L. g Britton
Acting General Manager
LCB/RA/dmz
cc: Saratoga Planning Commission
MROSD Board of Directors
1 Claims a,o. 93-11
Meeting 93-13
Date: July 14, 1993
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
Name Description'
----------------------------------------------------------------------------------------------------
4398 1,083-.42 Acme & Sons Sanitation, Inc. Sanitation Services
4399 40,000.00 Eugene A. and Rose C. Acronico Optionr-Acronico Property
4400 24.52 Altos Print and Copy Photocopying
4401 210.95 AT&T Telephone Service 1
J 4402 79.03 Bancroft-Whitney Resource Documents
4403 55.00 Baron Welding & Iron Works, Inca Equipment Repairs
4404 791.36 Big Creek Lumber Fence Posts
4405 844.24 Binkley Associates Consulting Services--Skyline Water System
1 4406 6,880.00 Louis Bordi Discing and Road Grading
4407 461.00 Mark Brent Electrical Service
4408 25,000.00 Mark Budart Option--Acronico Property
4409 500.00 California Municipal Statist$cs,Inc1992 Note Expense
4410 439.53 California Solvent Recycling Fuels Recycled
4411 50.60 California Water Service Company Water Service '
4412 73.61 Callo Sign Company Signs
4413 165.00 Campbell's Towing Vehicle Towing
1, 4414 171.43 Cascade Fire Company Equipment for Fire Pumper ,
4415 42.95 Central Stationers Office Supplies
4416 75.12 Sheryl Marioni Cochran Private Vehicle Expense
4417 45.00 Patrick Congdon Reimbursement--Training Expense
4418 23.42 Crest Copies, Inc. Bluelines
4419 117.01 Dyna Med First Aid Supplies
4420 31.78 Emergency Vehicle Systems Vehicle Part
j 4421 170.00 Evergreen Environmental Services Waste Oil Pickup f
4422 113.57 Foster Bros. Security Systems. Inc.Locks and Keys
`! 4423 44.22 G & K Services Shop Towel Service
4424 176.85 Robert M. Garcia Construction Management Services--Skyline
Field Office
4425 2,429.06 Geotechnical Management, Inc. Weeks Road Project
4426 575.46 Goodco Press, Inc. Printing of Fact Sheets
f 4427 327.94 Herbert Grench Legislative Consulting Expenses
4428 237.00 Mary Gundert Reimbursement--Building Permit and �
Private Vehicle Expense
4429 194.85 * Guitar Center Board Room Sound System Equipment
4430 93.30 Hencrehold Truck Rentals Vehicle Rental
4431 240.00 J. Thomas Jakaby Engineering Report--Skyline Ridge
'> 4432 74.74 Keeble & Shuchat Photography Film Processing
4433 274.80 Konica Business Machines Maintenance Agreement
4434 129.16 John Kowaleski Reimbursement--Blinds for Ranger Residence
4435 100.00 La Honda Vista Water Company Water Service
4436 42.90 Judy Law Private Vehicle Expense
4437 176.84 Lee & Associates Safety Equipment
4438 1,250.00 Levinson Associates Consulting Services--Teambuilding
4439 200.00 Lopez Gardening Service Gardening Services
4440 1,209.41 Los Altos Garbage Company Dumpster Recital
4441 600.00 Magana's Building Maintenance Janitorial Services
E 4442 1,040.11 Milstone Geotechnical Engineering Services--Sausal Spillway
` 4443 260.81 Minton's Lumber Company Field Supplies
4444 700.00 Mobil Radio Resources Radio Frequency Coordination
4445 25.00 Motorola Antenna Site Rental
*Urgent check Issued on June 28, 1993.
I
i
Claims No. 93-11
Meeting 93-13
,gate: July 14, 1993 j
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
# Name Description
------------ ------------------------------------------------------------------- -------------------
4446 1,751.95 City of Mountain View Dispatch Services
f4447 121.91 Mountain View Garden Center Ease Rock
4448 4,709.01 Murray & Murray Legal Services
4449 851.12 Noble Ford Tractor Inc. Tractor Repairs and Parts
f 4450 34.26 Northern Energy Company Propane Fuel
4451 207.80 Stanley Norton March Expenses
4452 349.12 Pacific Bell Telephone Service
4453 50.87 Peninsula Blueprint, Inc. Bluelines and Photocopying
4454 162.17 Warren Phillips Reimb ent--Training dense
4455 131.77 Pilarcitos Quarry Base Rack
4456 270.63 PIP Printing Printing of Volunteer Newsletter
4457 100.25 Patty Quillin Reimbursement--Printing of Docent
Connections
4458 372.24 Rabbit Copiers Equipment Maintenance and Repair
¢459 32.50 Rayne of Sari Jose Water Service
4460 1,062.96 Rich's Tires Service Vehicle Tires
4461 127.90 Roy's Repair Service Vehicle Maintenance and Repairs
4462 700.00 Sandis Hjjnber Jones Engineering.Services--Skyline Field Office"
4463 905.08 David Sanguinetti Reimbursement---Conference Expenses
4464 440.00 San Mateo County Building Permit Fee
4465 163.28 Shell Oil Company Fuel
{ 4466 106.98 Sign of the Times Sign
4467 110.55 Skyline County Water District Water Service
f 4468 124.33 Malcolm Smith Reimbursement--Sound System Equipment
and Private Vehicle Expense
4469 194.70 Standard Brands Paint Paint
4470 75.66 Summit Uniforms Uniform Expense
4471 8,300.00 ** Mike Tobar Excavation Building Demolition--Stables
4472 82.78 USRentals Equipment Rental d
I4473 5.41 University Art Center Drafting Supplies
4474 113.33 Unocal Fuel
4475 160.14 Vallen Safety Supply Company Uniform Expense
4476 1,875.16 Valley Oil Company Fuel
4477 33.83 Value Business Products Office Supplies
4478 1,294.15 Windward Construction Company, Inc.Repairs---D,istel Circle and Incerpi
4479 76.91 !VM Services: Port--o-let Sanitation Services
4480 774.97 The Workingman's Emporium Uniform Expense
4481 50.00 Joan Young Reimbursment--Professional Dues
{
** Urgent check issued on June 7, 1993.
i
i
Claims No. 03-11
i Meeting 93-13
Date: July 14, 1993
REVISED
MIDPENIMXA IOKAL OPEN SPACE DISTRICT
# Nam Description l
-----------------------------------------------------------------------------------------------------�->
4398 1,083.42 & Sons Sanitation, Inc. Sanitation Services
4399 40,000.00 Eugene A. and Rose C. Acronico; Option-Acronico Property
4400 24.52 Altos Print and Copy Photocopying
4401 210.95 AT&T Telephone Service
4402 79.03 Bancroft-Jitney Resource Documents
4403 55.00 Baron Welding & Iron Works, Inc. Equipment Repairs
4404 791.36 Big Creek Lumber Fence Pots
4405 844.24 Binkley Associates Consulting Services--skyline Water System1
4406 6,880.00 Louis Bordi Discing and Road Grading
4407 461.00 Mark Brent Electrical Service
4408 25,000.00 Mark Budart Option--Acronico Property
4409 500.00 California Municipal Statistic:s,Inc1992 Note Expense
4410 439.53 California Solvent Recycling Fuels Recycled
{ 4411 50.60 California Water service Company Water Service
4412 73.61 Callo Sign Company Signs
4413 165.00Campbell's Towing Vehicle Towing
4414 171.43 Cascade Fire Company Equipment for Fire Pumper
4415 42.95 Central Stationers Office Supplies
4416 75.12 Sheryl Maricni Cochran Private Vehicle Expense
4417 45.00 Patrick Congdon Reinbursement--Training Expense
4418 23.42 Crest Copies, Inc. Bluelines
4419 117.01 Dyna Mad First Aid Supplies
4420 31.78 Emergency Vehicle Systems Vehicle Part g
4421 170.00 Evergreen Environmental Services Waste Oil Pickup
4422 113.57 Foster Bros. Security systems. Inc.Locks and Keys
f 4423 44.22 G & K Services Shop Towel Service
4424 176.85 Robert M. Garcia Construction Management Services--Skyline
Field Office
4425 2,429.00 Geotechnical Management, Inc. Wbeks Road Project
4426 575.46 Goodco Press, Inc. Printing of Fact Sheets
4427 327.94 Herbert Grench Legislative Consulting Expenses
4428 237.00 Mary Gundert Reimbursement--Building Permit and
Private Vehicle Expense
4429 194.85 * Guitar Center Board Room Sound System Equipment
4430 93.30 Hengehold Truck Rentals Vehicle Rental
4431 240.00 J. Thomas Jakaby EngineeringReport--Skyline Ridge
4432 74.74 Keeble & Shuchat Photography Film Processing
4433 274.80 Konica Business Machines Maintenance Agreement
4434 129.16 John Kowaleski Reimbursemmt--Blinds for Ranger Residence
4435 100.00 La Honda Vista Water Company Water service
`} 4436 42.90 Judy Lave Private Vehicle Expense
4437 176.84 Lee & Associates Safety Equipment
4438 1,250.00 Levinson Associates Consulting Servicea--Teambuilding
4439 200.00 Lopez Gardening service Gardening Services
4440 1,209.41 Los Alto Garbage Company Dumpster Rental
4441 600.00 Ma 's Building Maintenance Janitorial Services
4442 1,040.11 Milstone Geotechnical Engineering Servi --sa Spillway
4443 260.81 Mintcn's Lumber Company Field Supplies
4444 700:00 Mobil Radio Resources Radio Frequency Coordination 7
4445 25.00 Motorola Antenna Site Rental
*Urgent check issued on June 28, 1993.
}
Claims No. 93-11
Meeting 9 -13
Date: July 14, 1993
REVISED1
MIDPENINSULA REGICVAL OPEN SPACE DISTRICT 1
# Name Description
--------------------------------------------------------------------------------------------------,_.
4446 1,751.95 City of Mountain View Dispatch Services
a 4447 121.91 Mountain View Garden Center Base Rock
4448 4,709.01 Murray & Murray Legal Services
4449 851.12 Noble Ford Tractor Inc. Tractor Repairs and Parts
4450 34.26 Northern Energy Ccmpany Propane Fuel
4451 207.80 Stanley Norte March Expenses
4452 349.12 Pacific Bell Telephone Service
4453 50.87 Peninsula Blueprint, Inc. Bluelines and Photocopying
4454 162.17 Warren Phillips Re t-- �
4455 131.77 Pilarcitos Quarry Base Rock
4456 270.63 PIP Printing Printing of Volunteer Newsletter
4457 100.25 Patty Quillin Reimbursement--Printing of Docent
Connections
4458 372.24 Rabbit Copiers Equipment Maintenance and Repair
4459 32.50 Rayne of San Jose Water Service
¢ 4460 1,062.96 Rich's Tires Service Vehicle Tires
4461 127.90 Roy's Repair Service Vehicle Maintenance and Repairs
4462 700.00 Sandis Humber Jones Engineering Services--Skyline Field Office,
4463 905.08 David Sanguinetti Reimbursement--Confer Ex es
4464 440.00 San Mateo County Building Permit Fee
4465 163.28 Shell Oil Company Fuel
4466 106.98 Signs of the Times Signs
4467 110.55 Skyline County Water District Water Services
4d68 124.33 Malcolm Smith Re t-- Equipment
and Private Vehicle Expense
4469 194.70 Standard Brands Paint Paint
4470 75.66 Summit Uniform Uniform Expense
i
4471 8,300.00 ** Mire Tobar Excavation Building Demolition--Stables
4472 82.78 US Wntals Equipment Rental
4473 5.41 University Art Center Drafting Supplies
4474 113.33 Unocal Fuel
4475 160.14 Vallen Safety Supply Company Uniform Expense
4476 1,875.76 Valley Oil Company Fuel
j 4477 33.83 Value Business Products Office Supplies
f "78 1,294.15 Win3ward Construction Company, Inc.Repairs--Distel Circle and Incerpi
4479 76.91 t*1I Services: Port-o-let Sanitation Services
4480 774.97 The Workir, 's Emporium Uniform Expense
4481 50.00 Joan Young Reimbu t---Prof icnal Dues
4482 15,374.47 MSaita Chevrolet Cleo & GMA,C Vehicle
4483 600.00 Postageby Phone Postage
4484 11,906.91 George Bianchi Construction, Inc. Piccchetti Blacksmith Shop Restoration
4485 296.04 Petty Cash Local and Out-of-Town Meeting Vie,
Office and Field Supplies, Film and
Developing, Docent and Volunteer
Expenses and Private Vehicle, use
�i ** Urgent check issued on June 7, 1993.
i'