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HomeMy Public PortalAboutResolution - 19-14- 20190612 - Woodruff Redwoods PurchaRESOLUTION 19-14 RESOLUTION OF THE BOARD OF DIRECTORS OF MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING ACCEPTANCE OF PURCHASE AND SALE AGREEMENT, AMENDING THE FISCAL YEAR 2018-19 GENERAL FUND CAPITAL BUDGET, AUTHORIZING GENERAL MANAGER OR OTHER APPROPRIATE OFFICER TO EXECUTE CERTIFICATE OF ACCEPTANCE AND GRANT TO DISTRICT, AUTHORIZING GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO CLOSING OF THE TRANSACTION (L A HONDA CREEK OPEN SPACE PRESERVE -LANDS OF FOLGER TRUST, AND AMEND THE BUDGET FOR FISCAL YEAR 2018-19. The Board of Directors ofMidpeninsula Regional Open Space District does hereby resolve as follows: SECTION ONE. The Board of Directors ofMidpeninsulaRegional Open Space District (District) does hereby accept the offer contained in that certain Purchase and Sale Agreement between Peter M. Folger and Barbara W. Folger, Co-Trustees of the Peter and Barbara Folger Revocable Trust dated April 8, 1992 as amended, and the Midpeninsula Regional Open Space District, a copy of which purchase agreement is attached hereto and by reference made a part hereof, and authorizes the President of the Board of Directors, General Manager, or other appropriate officer to execute the Agreement and all related transactional documents on behalf of the District to acquire the real property described therein (''the Folger Trust Property"). SECTION TWO. The Board of Directors ofMidpeninsula Regional Open Space District authorizes the expenditure of$2,150,000.00 covering the purchase of the Folger Trust Property, including a deposit of $10,000.00. SECTION THREE. The Board of Directors ofMidpeninsula Regional Open Space District authorizes amending the Budget and Action Plan for the Midpeninsula Regional Open Space District for Fiscal Year 2018-19 by increasing the Measure AA Fund Capital budget in the amount of$2,150,000.00. Except as herein modified, the FY 2018-19 Budget and Action Plan, ·Resolution No. 16-25 as amended, shall remain in full force and effect. SECTION FOUR. The General Manager, President of the Board of Directors, or other appropriate officer is authorized to execute a Certificate of Acceptance and the Grant Deed on behalf of the District. SECTION FIVE. The General Manager or the General Manager's designee is authorized to provide notice of acceptance to the seller and to extend escrow if necessary. SECTION SIX. The General Manager or the General Manager's designee is authorized to expend up to $20,000.00 to cover the cost of title insurance, escrow fees, survey and miscellaneous costs related to this transaction. SECTION SEVEN. The General Manager and General Counsel are further authorized to approve any technical revisions to the attached Agreement and documents, which do not involve any material change to any term of the Agreement or documents, which are necessary or appropriate to the closing or implementation of this transaction. Resolutions/2019/19-14_ WoodruffRedwoodsPurchase 1 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on June 12, 2019, at a regular meeting thereof, by the following vote: AYES: CYR, HASSETT, HOLMAN, KERSTEEN-TUCKER, KISHIMOTO, RIFFLE, SIEMENS NOES: NONE ABSTAIN: NONE ABSENT: NONE ATTEST: �//�C Secretary Board of Directors APPROVED AS TO FORM: General Counsel resident Board of Directors I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct copy of a resolution duly adopted by the Board of Directors of the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. Reso lutions/2019/19-14 _ WoodruffRedwoodsPurchase 2 Purchase Agreement Page 1 PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement (hereinafter called "Agreement") is made and entered into by and between Peter M. Folger and Barbara W. Folger, Co -Trustees of the Peter and Barbara Folger Revocable Trust dated April 8, 1992, as amended (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"). RECITALS WHEREAS, Seller is the owner of certain real property which has open space and recreational value, located within an unincorporated area of the County of San Mateo, and being more particularly described within the body of this Agreement; and WHEREAS, District was formed by voter initiative to solicit and receive conveyances of real property by purchase, exchange, gift, or bargain purchase for public park, recreation, scenic and open space purposes; and WHEREAS, District desires to purchase said property for open space preservation and as part of the ecological, recreational, and aesthetic resources of the midpeninsula area; and WHEREAS, Seller wishes to sell and convey the entirety of said property to District, and District wishes to purchase said property upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. :Purchase and Sale. Seller agrees to sell to District and District agrees to purchase from Seller, Seller's real property located within an unincorporated area of the County of San Mateo, State of California, containing approximately one hundred and ninety (190) acres, more or less, and commonly referred to as San Mateo County Assessor's Parcel Number 078-190-030. Said property is further described in the Legal Description attached to Preliminary Report Number 0626030621 -AC from Old Republic Title Company. A copy of said Preliminary Report is attached hereto as Exhibit "A", and incorporated herein by this reference. Said property is to be conveyed together with any easements, rights of way, or rights of use which may be appurtenant or attributable to the aforesaid lands, and any and all improvements attached or affixed thereto. All of said real property and appurtenances shall hereinafter be called the "Subject Property" or the "Property". 2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be Two Million One Hundred Fifty Thousand and No/100 Dollars ($2,150,000.00), which shall be paid in cash at the "Closing" as defined in Section 4 hereof. Purchase Agreement Page 2 3. Intention to Dedicate for Public Open Space Use. The District intends on dedicating the Property for public open space use in accordance with Section 5540 of the Public Resources Code of the State of California. 4. Escrow. Promptly upon execution of this Agreement, in accordance with Section 14 herein, an escrow shall be opened at Old Republic Title Company, 361 Lytton Avenue, Suite 100, Palo Alto, CA 94301 (650) 321-0510 (Escrow number 0626030621 -AC) 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. 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 June 28, 2019, provided however, that the parties may, by written agreement, extend the time for Closing. The term "Closing" as used herein shall be deemed to be the date when Escrow Holder causes the. Grant Deed (as defined below) to be recorded in the Office of the County Recorder of San Mateo County. B. Seller and District shall, during the escrow period, execute any and all documents and perform any and all acts reasonably necessary or appropriate to consummate the purchase and sale pursuant to the terms of this Agreement. C. Seller shall deposit into the escrow on or before the Closing an executed and recordable Grant Deed, covering the Property as described in said Exhibit "A". D. District shall deposit into the escrow, on or before the Closing: (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 payment to Escrow Holder in the amount of Two Million One Hundred Forty Thousand and No/100 Dollars ($2,140,000.00) which is the balance of the Purchase Price of Two Million One Hundred Fifty Thousand and No/100 Dollars ($2,150,000.00) as specified in Section 2. The balance of $10,000.00 is paid into escrow in accordance with Section 14 of this Agreement. In accordance with the provisions California Revenue and Taxation Code Section 11922, no Transfer Tax is due for a public agency, the District, acquiring title. E. Seller and District shall share (50/50) the escrow fees, the CLTA Standard Policy of Title Insurance, if required by District, and all recording costs and fees. All other costs Purchase Agreement Page 3 or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between District and Seller in the manner customary in San Mateo County. F. Property Taxes and any penalties and/or costs levied for prior tax years or for the current tax year that constitute a lien on the Property shall be paid by Seller through escrow at close of escrow. Taxes and any penalties and costs that are assessed for the current fiscal year shall be paid by Seller in accordance with the provisions of California Revenue and Taxation Code ("Code") Section 5086. The District shall have no responsibility to reimburse Seller for any taxes paid by Seller that are allocable to that part of the fiscal year which begins on the "date of apportionment," as defined in Code Section 5082. Seller shall be solely responsible for seeking any refund, for which Seller may be eligible, under Code Section 5096.7, provided that District shall cooperate with Seller in connection with any such refund request. After the close of escrow, the District will promptly cancel taxes with the County of San Mateo in accordance with the provisions of California Revenue and Taxation Code Sections 5081 and 5082. G. Seller shall cause Old Republic Title Company, or other title company acceptable to District and Seller, to be prepared and committed to deliver to District, a CLTA Standard Policy of Title Insurance, dated as of the Closing, insuring District in the amount of $2,150,000.00 for the Property showing title to the Property vested in fee simple in District, subject only to: (i) current real property taxes, ii) exceptions numbered 3, 4, 5, 6, 7, 8, 9 and 10 listed in preliminary report from Old Republic Title Company dated May 11, 2018 (Exhibit A) (iii) such additional title exceptions as may be approved in writing by District prior to the Closing as determined by District in its sole and absolute discretion. If District is unwilling to approve a title exception, and Old Republic is unwilling to remove it, then unless District and Seller agree otherwise, this Agreement shall be terminated. H. Escrow Holder shall, when all required funds and instruments have been deposited into the escrow by the appropriate parties and when all other conditions to Closing have been fulfilled, cause the Grant Deed and attendant Certificate of Acceptance to be recorded in the Office of the County Recorder of San Mateo County. Upon the Closing, Escrow Holder shall cause to be delivered to District the original of the policy of title insurance required herein, and to Seller Escrow Holder's check for the full purchase price of the Subject Property (less Seller's portion of the expenses described in Section 4.E. and 4.F.), and to District or Seller, as the case may be, all other documents or instruments which are to be delivered to them. In the event the escrow terminates as provided herein, Escrow Holder shall return all monies, documents or other things of value deposited in the escrow to the party depositing the same. 5. Permit to Enter. Grantor's immediate family members identified as follows: Peter M. Folger, Barbara Folger, Katharine F. Yeager, Alexandra F. Hogg, Sarah F. Kilmain, Abiah F. Karthauser, Peter Folger and James A. Folger may request a permit to visit the Property upon no less than seventy-two (72) hours prior written notice to District. Following District's receipt of such request, District will issue a permit, which will allow for pedestrian use of the Property limited to those immediate family members listed on Seller's request (plus accompanying Purchase Agreement Page 4 guests). Immediate family members should contact the Visitor Services Administrative Assistant at (650) 691-1200 to request the permit described in this Section. 6. Rights and Liabilities of the Parties in the Event of Termination. In the event this Agreement is terminated and escrow is canceled for any reason, all parties shall be excused from any further obligations hereunder, except as otherwise provided herein. Upon any such termination of escrow, all parties hereto shall be jointly and severally liable to Escrow Holder for payment of its title and escrow cancellation charges (subject to rights of subrogation against any party whose fault may have caused such termination of escrow), and each party expressly reserves any other rights and remedies which it may have against any other party by reason of a wrongful termination or failure to close escrow. If District terminates this Agreement (without good cause) following the exercise of the Option (as referenced in Section 14 below), then the Option Payment shall be disbursed to Seller. 7. Seller's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, Seller makes the following representations and warranties to District as of the Closing, which shall survive close of escrow for a period of three (3) years, each of which is material and is being relied upon by District. A. Authority. Seller has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. B. Valid and Binding Agreements. This Agreement and all other documents delivered by Seller to District now or at the Closing have been or will be duly authorized and executed and delivered by Seller and are legal, valid and binding obligations of Seller, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which Seller is a party or by which Seller may be bound or any articles, bylaws or corporate resolutions of Seller. C. Leases or Occupancy of Premises. There exist no oral or written leases, licenses, or rental agreements affecting all or any portion of the Subject Property. Seller further warrants and agrees to hold District free and harmless and to reimburse District for any and all costs, liability, loss, damage or expense, including fees and costs for legal services, occasioned by reason of any such lease, license, or rental agreement of the Property being acquired by District, including, but not limited to, claims for relocation benefits and/or payments pursuant to California Government Code Section 7260 et seq. Seller understands and agrees that the provisions of this Section shall survive the close of escrow and recordation of any Grant Deed(s). D. Good Title. Seller has and at the Closing date shall have good, marketable and indefeasible fee simple title to the Subject Property and the interests therein to be conveyed to District hereunder, free and clear of all liens and encumbrances of any type whatsoever and free and clear of any recorded or unrecorded option rights or purchase rights or any other right, title or interest held by any third party except for the exceptions permitted under the express terms hereof, and Seller shall forever indemnify and defend District from and against any claims made by any third party which are based upon any inaccuracy in the foregoing representations. Purchase Agreement Page 5 8. District's Representations and Warranties. For the purpose of consummating the sale and purchase of the Property in accordance herewith, District makes the following representations and warranties to Seller as of the Closing, which shall survive close of escrow for a period of three (3) years, each of which is material and is being relied upon by Seller. A. Authority. District has the full right, power and authority to enter into this Agreement and to perform the transactions contemplated hereunder. B. Valid and Binding Agreements. This Agreement and all other documents delivered by the District to Seller now or at the Closing have been or will be duly authorized and executed and delivered by District and are legal, valid and binding obligations of District, and are enforceable in accordance with their respective terms and do not violate any provisions of any agreement to which District is a party or by which District may be bound or any articles, bylaws or corporate resolutions of District. 9. Integrity of Property. Except as otherwise provided herein or by express written permission granted by District, Seller shall not, between the time of Seller's execution hereof and the close of escrow, cause or consent to any physical changes on the Property. Such changes shall include but not be limited to grading, excavating or other earthmoving activities, cutting or removing trees, shrubs, brush or other vegetation, and damaging or demolition of improvements or structures on the Property. 10. As -Is Purchase and Sale. This sale is made without representation or warranty by Seller, except as expressly set forth in this Agreement. Seller has provided District with copies of all reports and documents in its possession regarding the improvements, physical, geologic and environmental condition of the Property ("Disclosure Documents") known to Seller for District's inspection and review. District acknowledges that Seller has delivered to District the reports and documents listed in this Section, and that this list does not relieve Seller of its obligation to provide District with all Disclosure Documents known to it. Seller does not represent or warrant the accuracy of any information in the following reports, and is presenting them to the District merely as part of the Seller's disclosure of reports Seller has in its possession as described above. A. Appraisal prepared by Buena Vista Services dated October 31, 2018 B. Renewal for License for Diversion and Use of Water with State Water Resources Control Board District represents, warrants, acknowledges and agrees that it has had full and ample opportunity prior to the execution of this Agreement to investigate the Property, including but not limited to the physical condition thereof, the presence, absence or condition of improvements thereon, the suitability of the Property for any purpose, the compliance of the Property for any purpose, the compliance of the Property with applicable laws, the condition of the soil, water, vegetation, any water courses or bodies of water in, on or adjacent to the Property, and the surroundings of the Property, and that District shall purchase the Property AS -IS WITH ALL FAULTS. Except as Purchase Agreement Page 6 expressly set forth in this Agreement, Seller expressly disclaims any representations or warranties concerning any of the foregoing matters. District represents and warrants to Seller that District has made visual inspections of the Property and such geologic, soils and other tests as District deems appropriate, and that District accepts the condition of the Property as set forth above. Due to the undeveloped nature of the Property and its intended use by the District as public open space, the Parties hereby agree that no mandatory disclosure statements (including without limitation those set forth in California Civil Code Section 1102, et. Seq.) are required for this transaction. 11. Hazardous Waste. A. Definitions. The term "Hazardous Waste," as used herein, means any substance, material or other thing regulated by or pursuant to any federal, state or local environmental law by reason of its potential for harm to human health or the environment because of its flammability, toxicity, reactivity, corrosiveness or carcinogenicity. The term "Hazardous Waste" also includes without limitation, polychlorinated biphenyls, benzene, asbestos, petroleum, petroleum by-products, gas, gas liquids and lead. The term "Environmental Law" as used herein includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) B. Representations and Warranties. For the purpose of consummating the sale and purchase of the Property, Seller makes the following representations and warranties to District, which shall survive close of escrow, each of which is material and is being relied upon by District: (i) To Seller's actual knowledge the Property does not contain and has not previously contained any Hazardous Waste or underground storage tanks, and no Hazardous Waste has been or is being used,manufactured, handled, generated, stored, treated, discharged, present, buried or disposed of on, under or about the Property, or transported to or from the Property, nor has Seller undertaken, permitted, authorized or suffered any of the foregoing; (ii) Seller has not received any notice and Seller has no actual knowledge that any private person or governmental authority or administrative agency or any employee or agent thereof has determined, alleged or commenced or threatened to commence any litigation, or other proceedings, to determine that there is a presence, release, threat of release, placement on, under or about the Property, or the use, manufacture, handling, generation, storage, treatment, discharge, burial or disposal on, under or about the Property, or the transportation to or from the Property, of any Hazardous Waste, nor has Seller received any communication from any such person or governmental agency or authority concerning any such matters. C. Indemnity. Seller shall indemnify, defend and hold harmless District from and against and all claims, liabilities, losses, damages, and costs incurred or suffered by District, Purchase Agreement Page 7 including without limitation, attorney, engineering and other professional or expert fees, to the extent arising from any breach of the warranties or representations contained herein. 12. Waiver of Relocation Benefits and Statutory Compensation. Seller and District understand and agree that Seller is selling and the District is purchasing the Property for the purposes of protecting fish and wildlife habitat, providing recreational areas and preserving open space. As a result, Seller and tenants are not entitled to relocation benefits under the California Relocation Assistance Act, Government Code Section 7260 et seq. (Gov't Code section 7260(3)(E)). In the event Seller is entitled to receive certain relocation benefits and the fair market value of the Property described in Exhibit "A", as provided for by the Federal Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (Public Law 91-646), the Uniform Relocation Act Amendments of 1987 (Public Law 100-17, Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (101 Statutes, 246-256) (42 U.S.C. '4601 et seq.), or the California Relocation Assistance Act, Government Code Section 7260 et seq., Seller hereby waives any and all existing and/or future claims or rights Seller may have to any relocation assistance, benefits, procedures, or policies as provided in said laws or regulations adopted there under and to any other compensation, except as provided in this Agreement. Seller has been advised as to the extent and availability of such benefits, procedures, notice periods, and assistance, and freely and knowingly waives such claims, rights and notice periods except as set forth in this Agreement, including the fair market value of said Property, as provided for by said Federal Law and any similar California Law. 13. Miscellaneous Provisions. A. Access for Investigations. From the date Seller delivers an executed copy of this Purchase Agreement to District and until the Closing, District and District's agents, lender, contractors, engineers, consultants, employees, subcontractors and other representatives (the "District Parties") may, upon the giving of reasonable advance written notice to Seller, enter upon the Property for the purpose of inspecting, testing and evaluating the same; provided, however, that District may not perform any work on the Property without Seller's prior written consent, which shall not be unreasonably withheld or delayed and further provided that District shall give Seller at least 24 hours' prior notice of each proposed entry by District. District shall indemnify, protect, defend and hold Seller free and harmless from and against any and all claims, actions, causes of action, suits, proceedings, costs, expenses (including, without limitation, reasonable attorneys' fees and costs), liabilities, damages, and liens caused by the activities of District Parties while upon the Property prior to the Closing; provided, however, the foregoing indemnity shall not cover or include any claims, damages or liens resulting from District's discovery of any Hazardous Waste or other pre-existing adverse conditions pursuant to its inspections, testing or evaluation. District's inspections shall be at District's sole expense. District shall repair any damage to the Property that may be caused by the District Parties while on the Property performing its inspections. District acknowledges and agrees that its obligations under this Section shall apply regardless of whether District exercises the Option. Purchase Agreement Page 8 B. Choice of Law. The internal laws of the State of California, regardless of any choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. C. Attorneys' Fees. If either party hereto incurs any expense, including reasonable attorneys' fees, in connection with any action, proceeding or arbitration instituted by reason of any default or alleged default of the other party hereunder, the party prevailing in such action or proceeding shall be entitled to recover from the other party reasonable expenses and attorneys' fees in the amount determined by the Court, or arbitrator, in the case of arbitration, whether or not such action, proceeding or arbitration goes to final judgment. In the event of a settlement or final judgment in which neither party is awarded all of the relief prayed for, the prevailing party as determined by the Court, or arbitrator in the case of arbitration, shall be entitled to recover from the other party reasonable expenses and attorneys' fees. D. Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may in writing: (i) extend the time for the performance of any of the obligations of the other party; (ii) waive any inaccuracies in representations and warranties made by the other party contained in this Agreement or in any documents delivered pursuant hereto; (iii) waive compliance by the other party with any of the covenants contained in this Agreement or the performance of any obligations of the other party; or (iv) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. The General Manager or the General Manager's designee is authorized to agree to an extension of the time for the performance of any obligations on the part of District or Seller pursuant to this Agreement, and to take any actions and execute any documents necessary or appropriate to closing escrow and completing this conveyance, including execution of any documents which may allow Seller to accomplish a tax deferred exchange of property as permitted by law; provided, however that the District shall not take title to any third party property other than the Subject Property. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. E. Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which the parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. F. Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement (or any Exhibit hereto), each such communication shall be in writing and shall be deemed to have been validly served, given or delivered at the time stated below if deposited in the United States mail, registered or certified and return receipt requested, with proper postage prepaid, or if delivered by Federal Express or other private messenger, courier or other delivery service or sent by facsimile transmission or other similar electronic medium, addressed as indicated as follows: Purchase Agreement Page 9 Seller: Peter and Barbara Folger, Co -Trustees 3755 Jackson Street San Francisco, CA 94118-1608 Telephone: (415) 298-5006 District: Midpeninsula Regional Open Space District 330 Distel Circle Los Altos, CA 94022 Attn: Michael Williams, Real Property Manager Telephone: (650) 691-1200 FAX: (650) 691-0485 If sent by facsimile or other electronic medium a confirmed copy of such notice shall promptly be sent by mail (in the manner provided above) to the addressee. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as indicated by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. Either party hereto may from time to time, by notice in writing served upon the other party as aforesaid, designate a different mailing address or a different person to which such notices or demands are thereafter to be addressed or delivered. Nothing contained in this Agreement shall excuse either party from giving oral notice to the other when prompt notification is appropriate, but any oral notice given shall not satisfy the requirement of written notice as provided in this Section. G. Publicity. Except to the extent necessary to comply with applicable laws including the Ralph M. Brown Act (Government Code section 54950 et seq) which requires public posting of District Board's meeting agendas, and the Public Records Act (Government Code section 6250 et seq) which provides that public documents are subject to disclosure, District shall not refer to the name of Seller, or to Peter or Barbara Folger in any press reports or other publicity regarding the Property or its acquisition, without the prior written consent of Seller, which may be withheld in Seller's sole discretion. H. Severability. If any of the provisions of this Agreement are held to be void or unenforceable by or as a result of a determination of any court of competent jurisdiction, the decision of which is binding upon the parties, the parties agree that such determination shall not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions. I. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed as an original, and when executed, separately or together, shall constitute a single original instrument, effective in the same manner as if the parties had executed one and the same instrument. J. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be Purchase Agreement Page 10 construed as, a further or continuing waiver of any such tetimi, provision or condition or as a waiver of any other term, provision or condition of this Agreement. K. Entire Agreement. This Agreement is intended by the parties to be the final expression of their agreement; it embodies the entire agreement and understanding between the parties hereto; it constitutes a complete and exclusive statement of the terms and conditions thereof, and it supersedes any and all prior correspondence, conversations, negotiations, agreements or understandings relating to the same subject matter. L. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. M. Survival of Covenants. All covenants of District or Seller which are expressly intended hereunder to be performed in whole or in part after the Closing, and all representations and warranties by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, successors and permitted assigns. N. 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. 0. 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. P. Binding on Successors and Assigns. This Agreement and all of its terms, conditions and covenants are intended to be fully effective and binding; to the extent permitted by law, on the successors and permitted assigns of the parties hereto. Q. Broker's Commission. Each party represents and warrants to the other that no broker was instrumental in arranging or bringing about this transaction and that there are no claims or rights for brokerage commissions or finder's fees in connection with the transactions contemplated by this Agreement. R. 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. S. Pronoun References. In this Agreement, if it be appropriate, the use of the singular shall include the plural, and the plural shall include the singular, and the use of any gender shall include all other genders as appropriate. Purchase Agreement Page 11 T. Arbitration of Disputes. If a dispute arises out of or relates to this Agreement or the performance or breach thereof, the parties agree first to participate in non- binding mediation in order to resolve their dispute. If the parties are unable to resolve their dispute through mediation, or if there is any remaining unresolved controversy or claim subsequent to mediation, any remaining unresolved controversy or claim shall be settled by binding arbitration. The parties shall jointly select one arbitrator who shall be a retired or former judge of the Superior Court of California. The arbitration shall be conducted in accordance with the rules set forth in California Code of Civil Procedure Sections 1280 et. seq. including the right of discovery. Hearings shall be held in San Mateo County, California. If the parties are unable to agree upon an arbitrator, the arbitration shall be conducted by Judicial Arbitration and Mediation Services, Inc. ("JAMS") in accordance with the rules thereof or, if JAMS ceases to exist, its successor, or if none, a similar arbitration service. If arbitration is required to resolve a dispute, it shall in all cases be final and binding. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING FROM THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING FROM THE MATTER INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION. SELLER INITIAL 1' DISTRICT INITIAL NC CJ 14. Acceptance. Provided that this Agreement is executed by Seller and delivered to District on or before April 25, 2019, District shall have until midnight June 12, 2019_("Option Deadline") to accept and execute this Agreement, and during said period this instrument shall constitute an option and irrevocable offer by Seller to sell and convey the Property to District for the consideration and under the terms and conditions herein set forth. Said offer shall remain irrevocable during this period without the necessity of execution and acceptance of this Purchase Agreement by District. As consideration for said irrevocable option, District has paid into escrow and Seller acknowledges deposit into escrow of the sum of Ten Thousand Dollars and No/100 ($10,000.00) (the "Option Payment'), which, (i) if said irrevocable option is exercised by District, shall be applied upon the close of escrow to the Purchase Price as set forth in Section 2 hereof, or (ii) if District does not exercise, said Option Payment shall be disbursed directly to Seller upon expiration of the Option Deadline. Purchase Agreement Page 12 Provided that this Agreement is accepted by District, this transaction shall close as soon as practicable in accordance with the terms and conditions set forth herein. Purchase Agreement Page 13 ete Siemens, President, Board of Directors IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers to be effective as of the date of final execution by District in accordance with the terms hereof. DISTRICT: SELLER: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT OVED AND ACCEPTED: Date: (9 ,-1 I ACCEPTED FOR RECOMMENDATION rYV Llc. C, Michael C. Williams, Real Property Manager APPROVED AS TO FORM: Hilary Stevenson, General Counsel RECO ENDED FOR • 's' OVAL: uiz, Genera Ma : ger PETER M. FOLGER AND BARBARA W. FOLGER, CO -TRUSTEES OF THE PETER AND BARBARA FOLGER REVOCABLE TRUST DATED APRIL 8, 1992, AS AMENDED /21 /-t /cr e. Peter M. Folger, Co -Trustee Date Barbara W. Folger, -Trustee Date EXHIBIT A **** OLREPUBLICD * ( Ic ¥ TITLE COMPANY ** *fir Buyer: PRELIMINARY REPORT MIDPENINSULA REGIONAL OPEN SPACE DISTRICT 330 Distel Circle Los Altos, CA 94022 Midpeninsula Regional Open Space District Property Address: APN: 078-190-030, , CA [Unincorporated area of San Mateo County] 361 Lytton Avenue, Suite 100 Palo Alto, CA 94301 (650) 321-0510 Fax: (650) 321-2973 Our Order Number 0626030621 -AC When Replying Please Contact: Angie Civjan ACivjan@ortc.com (650) 321-0510 In response to the above referenced application for a policy of title insurance, OLD REPUBLIC TITLE COMPANY, as issuing Agent of Old Republic National Title Insurance 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 and Limitations on Covered Risks of said Policy or Policies are set forth in Exhibit I attached. The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. Limitations on Covered Risks applicable to the Homeowner's Policy of Title Insurance which establish a Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Exhibit I. Copies of the Policy forms should be read. They are available from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit I of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of 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 May 11, 2018, at 7:30 AM OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to, See Attached Page 1 of 8 Pages ORT 3158-A (Rev. 08/07/08) OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC The form of policy of title insurance contemplated by this report is: CLTA Standard Coverage Policy 4990; AND ALTA Loan Policy - 2006. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred or covered by this Report is: Fee as to Parcel(s) One and an Easement as to Parcel(s) Two, Three and Four Title to said estate or interest at the date hereof is vested in: Peter M. Folger and Barbara Waterman Folger, Co -Trustees of the Peter and Barbara Folger Revocable Trust dated April 8, 1992, as amended The land referred to in this Report is situated in the unincorporated area of the County of San Mateo, State of California, and is described as follows: Parcel One: The North half (North 1/2) of the Southeast quarter (Southeast 1/4) and the Southeast quarter of the Northeast quarter (Northeast 1/4) of Section 11 and the South half (South 1/2) of the Northwest quarter (Northwest 1/4) of Section 12, all in Township 7 South, Range 4 West, Mount Diablo Base and Meridian. Excepting therefrom 42-1/2% of all oil, gas and other hydrocarbon substances in and/or that may be produced from said property. And also excepting therefrom the North 1/2 of the North 1/2 of the Northwest 1/4 of the Southeast 1/4 of Section 11, Township 7 South, Range 4 West, Mount Diablo Base and Meridian. Parcel Two: A non-exclusive right of way over a certain roadway, the reference line of which is described as follows: Beginning at an iron spike driven in the centerline of the La Honda and Redwood City County Road, from which spike the North column of concrete wall on the West side of concrete bridge where said La Honda and Redwood City County Road crosses Woodruff Creek bears South 30° 04' West 43.4 feet, and the North column of concrete wall on the East side of said concrete bridge bears South 4° 18' East 38.5 feet; thence leaving said La Honda and Redwood City County Road and running along foot of hill on Northerly side of said Woodruff Creek the following courses and distances, North 82° 30' East 80.9 feet, South 89° 19' East 47.6 feet, North 48° 18' East 78.4 feet, North 89° 43' East 82.9 feet, North 53° 21' East 40.9 feet and North 31° 01' East 82.1 feet to the Northerly bank of said Woodruff Creek; thence along Northerly bank of said Woodruff Creek North 65° 29' East 80.6 feet; thence crossing said Woodruff Creek South 70° 44' East to foot of hill and until said courses and crosses the North line of the Northwest quarter of the Southeast quarter Section Eleven, Township 7 South, Range 4 West, M. D. M. and on the Southerly side of said Woodruff Creek; thence Northeasterly along the foot of hill on said Southerly side of said Creek the following courses and distances: North 12° 13' East 95 feet, North 19° 10' East 111.2 feet, North 16° 37' East 50.7 feet, North 6° 39' West 54.4 feet, North 37° 05' East 48.3 feet, North 60° 37' East 124.2 feet, North 43° 33' East 71.3 feet, North 55° East 80.1 feet, North 64° 20' East 188.2 feet, North 61° 40' East 146.77 feet, North 35° 38' East 77.8 feet, North 45° 22' East 117.9 feet, North 51° 24' East 119.5 feet, North 68° 09' East 54.4 feet to a point six feet Southeasterly from a redwood stump twelve feet in height and ten feet in diameter, standing on the Southerly Page 2 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC bank of the said Woodruff Creek; and North 83° 90' East to the Westerly line of the Southeast quarter of the Northeast quarter of Section II, Township 7 South Range 4 West, M. D. M (Mag. Var. 17° 30' East) excepting therefrom any portion thereof lying within the North 1/2 of the Northwest 1/4 of the Southeast 1/4 of Section II, Township 7 South, Range 4 West. The above describe right of way conveyed by B. D. Weeks and Mrs. E. L. Weeks, his wife to Jennie E. Knepper, by Deed dated January 27, 1912 and recorded February 8, 1912 in Book 208 of Deeds at Page 142, which provided that said roadway "shall have a uniform width of fifteen feet extending along said above described line on either side thereof, but at no place to exceed twenty-five feet in width". Said easement was created by Deed recorded February 8, 1912 in Book 208 of Deeds at Page 142, Records of San Mateo County, California. Parcel Three: A non-exclusive right of way and easement for ingress to and egress from Parcel I hereinabove described, for construction, paving, maintenance and repaid of a road suitable for motor vehicles and for public utilities (subject also to the terms of written agreement referred to in Deed to San Mateo County Title Company, a corporation, recorded September 19, 1956 in Book 3096 of Official Records at Page 407, Records of San Mateo County, California), over a fifty (50) foot wide strip of land lying twenty-five (25) feet on either side of a certain line, described as follows: Beginning at a point in the Southerly line of the North half of the Southeast quarter of said Section II, distant thereon 440 feet, more or less, East from the Southwest corner of the Northwest quarter of the Southeast quarter of said Section II; thence South 17° 50' West 420 feet, South 52° 50' West 200 feet, South 37° 50' West 100 feet, South 59° 50' West 400 feet, South 55° 10' East 500 feet, North 77° 50' East 150 feet, South 32° 10' East 150 feet, South 62° 10' East 400 feet, South 32° 10' East 200 feet, South 52° 10' East 100 feet, South 82° 50' West 500 feet, North 72° 10' West 400 feet and North 87° 10' West 375 feet, more or less, to a point on the Easterly line of La Honda Road where the land of grantors abuts on said road. (Mag. Var. 17° 50' East). Excepting however therefrom that portion lying within Lot 4, Section II, Township 7 South, Range 4 West, M. D. M. Said easement is appurtenant to Parcel I above and was created by Deed recorded September 19, 1956 in Book 3096 of Official Records at Page 407 (File No. 89002-N), Records of San Mateo County, California. Parcel Four: A non-exclusive easement for ingress and egress and public utilities as set fourth in Grant and Agreement dated September 27, 1966 and recorded October 7 1966, in Book 5224 of Official Records at Page 313 (File No. 1270 -AA), Records of San Mateo County, California. Parcel Five: A non-exclusive right of way and easement sufficient for the purpose of constructing, maintaining and repairing electric power lines as required to serve the land hereinabove granted, running from the most Westerly terminus of Pacific Gas & and Electric Co. facilities now existing in the Southwest quarter of said Section 12, in a Westerly direction to the nearest point on the land hereinabove granted. Page 3 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC Said easement is appurtenant to Parcel I above and was created by Deed recorded September 19, 1956 in Book 3096 of Official Records at Page 407 (File No. 89002-N), Records of San Mateo County, California. APN: 078-190-030 At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2018 - 2019, a lien, but not yet due or payable. 2. Taxes and assessments, general and special, for the fiscal year 2017 - 2018, as follows: Assessor's Parcel No Code No. 1st Installment 2nd Installment Land Value 078-190-030 66-004 $172.10 $172.10 $18,259.00 Marked Paid Marked Paid 3. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq., of the Revenue and Taxation Code of the State of California. 4. (1) Any adverse claim based upon the assertion that: (a) Some portion of said land has been created by artificial means, or has accreted to such portion so created. (b) Some portion of said land has been brought within the boundaries thereof by an avulsive movement of Woodruff Creek, or has been formed by accretion to any such portion. (2) Rights and easements for navigation and fishery which may exist over that portion of said land lying beneath the waters of Woodruff Creek. Page 4 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC 5. Terms and provisions as contained in an instrument, Entitled Executed By Dated Recorded Mineral Deed R. A. Isenberg and Gerda Isenberg, husband and wife June 9, 1950 June 15, 1950 in Vol 1878 of Official Records, Page 43 Which, among other things, provides: The interest hereby conveyed is chargeable with its proportionate share of all deductions for taxes and other costs incident to oil and gas rights withheld by the Lessee under said oil and gas leases and is also chargeable with its proportionate share of any oil and gas mineral rights taxes And dated July 27, 1951, recorded August 2, 1951 in Vol 2109 of Official Records, Page 412 under Recorder's Serial Number 51818J. Note: Reference is made to said instrument for full particulars. 6. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following Instrument Reserved By For Dated Recorded Affects Grant Deed R. A. Isenberg and Gerda Isenberg, formerly his wife Ingress to and egress from lands retained by grantors in said sections 11 and 12, for construction, paving, maintenance and repair of a road suitable for motor vehicles and for public utilities August 2, 1956 September 19, 1956 in Vol 3096 of Official Records, Page 407 under Recorder's Serial Number 89002-N Over a fifty (50) foot wide strip of land NOTE: The present ownership of said easement and other matters affecting the interests thereto, if any, are not shown herein 7. Terms and provisions as contained in an instrument, Entitled Executed By Dated Recorded Grant Deed R. A. Isenberg and Gerda Isenberg, formerly his wife August 2, 1956 September 19, 1956 in Book 3096 of Official Records, Page 407 under Recorder's Serial Number 89002-N Page 5 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC Note: Reference is made to said instrument for full particulars. 8. Covenants, Conditions and Restrictions, but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant (a) is exempt under Title 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons, as provided in an instrument. Entitled Executed by Dated Recorded Declaration of Covenant Running with the land San Mateo County Title Company, a corporation and Norman T. Reynolds and Diane Ann Reynolds, his wife, as joint tenants August 21, 1969 August 25, 1969 in Book 5681 of Official Records, Page 188 under Recorder's Serial Number 60638AC NOTE: "If this document contains any restriction based on race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income as defined in subdivision (p) of section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status." 9. Terms and provisions as contained in an instrument, Entitled Executed By Dated Recorded Returned to Address License for Diversion and Use of Water State Water Resources Control Board July 19, 1976 August 8, 1978 in Book 7208 of Official Records, Page 536 under Recorder's Serial Number 7404AK . Room 1015, Resources Building, Sacramento, CA 95814 Note: Reference is made to said instrument for full particulars. Page 6 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC 10. Terms and provisions as contained in an instrument, Entitled Executed By Dated Recorded Decree San Gregorio Creek Stream System January 29, 1993 February 18, 1993 in Official Records under Recorder's Serial Number 93026619 Note: Reference is made to said instrument for full particulars. And as modified by an instrument, executed by San Gregorio Creek Stream System, recorded April 6, 1993 in Official Records under Recorder's Serial Number 93053614. And as modified by an instrument, executed by San Gregorio Creek Stream System, recorded June 10, 1993 in Official Records under Recorder's Serial Number 93095377. 11. Terms and conditions contained in the Peter and Barbara Folger Revocable Trust dated April 8, 1992 as disclosed by Grant Deed Dated : July 7, 1997 Recorded : August 13, 1997 in Official Records under Recorder's Serial Number 97-098686 NOTE: The requirement that: A Certification of Trust be furnished in accordance with Probate Code Section 18100.5 The Company reserves the right to make additional exceptions and/or requirements. 12. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 13. Any unrecorded and subsisting leases. 14. The requirement that this Company be provided with a suitable Owner's Declaration (form ORT 174). The Company reserves the right to make additional exceptions and/or requirements upon review of the Owner's Declaration. Page 7 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 0626030621 -AC Informational Notes A. The applicable rate(s) for the policy(s) being offered by this report or commitment appears to be section(s) 1.1 and 2.1. B. NOTE: The last recorded transfer or agreement to transfer the land described herein is as follows: Instrument Entitled By/From To Dated Recorded O.N. CK/eb Grant Deed Peter M. Folger (also known as Peter Michael Folger) Peter M. Folger and Barbara Waterman Folger, Co -Trustees of the Peter and Barbara Folger Revocable Trust dated April 8, 1992, as amended July 7, 1997 August 13, 1997 in Official Records under Recorder's Serial Number 97-098686 C. NOTICE: FinCEN COMPLIANCE Closing the residential purchase and/or issuing title insurance contemplated by this Preliminary Report may be subject to compliance with the recently issued Confidential Geographic Targeting Order (GTO) from the US Treasury's Financial Crimes Enforcement Network (FinCEN). The GTO requires Old Republic National Title Insurance Company to report information about certain transactions involving residential property. FinCEN has the authority to compel this reporting under the USA PATRIOT Act. FinCEN prohibits Old Republic from disclosing the specific terms of the GTO. You may wish to contact the FinCEN Resource Center directly at (800) 767-2825 for more information. The failure and/or refusal of a party to provide information for a "covered transaction" will preclude Old Republic from closing the transaction and/or issuing title insurance. Page 8 of 8 Pages ORT 3158-B