RE: Written Comment and Document Submission — 5670 Camden Avenue Residential Project, File No. H23-040
I am a San José resident and constituent submitting this written comment and the enclosed documents for inclusion in the official public record prior to City Council consideration of the above-referenced project.
The project depends on the disposition of public school land by Union School District (“USD”) to Mana Investments under Education Code §17536. That transaction is defective on its face. The board cited §17536 as its sole authority, then approved a contract that removes the only requirement that makes §17536 legal — identification of both properties before the vote. No exchange property was ever identified. The contract defaults to cash. That is not a land exchange. That is a cash sale conducted under the wrong statute.
Additionally, USD’s own board adopted Resolution No. 19-20-11 in December 2019, finding significant environmental conditions at this exact address — 5670 Camden Avenue — including liquefaction, PM 2.5 exceedance above CEQA thresholds, and required mitigation measures for soil, air quality, and hydrology. At the March 25, 2026 Planning Commission hearing, USD’s real estate advisor Scott Sheldon testified that the Phase 1 environmental assessment found “really no issues” with the soil. USD’s own 2019 board resolution directly contradicts that statement.
Finally, I submitted a California Public Records Act request to USD prior to the Planning Commission hearing. Superintendent Andrews responded that she could not produce the documents in time. She did not inform me that every document I requested is publicly available online. I located them independently. They form the basis of this submission.
I respectfully request that Council:
1. Include all enclosed documents in the official public record.
2. Require USD to demonstrate compliance with Education Code §17536 and §17537 before any vote.
3. Require completion of the Phase II Subsurface Investigation before any grading permit is issued.
4. Ask USD to explain how Resolution No. 19-20-11 is consistent with Sheldon’s testimony before the Planning Commission.
Enclosed Documents:
1. USD/Mana Exchange Agreement (full contract)
2. Mirassou/Robson Exchange Agreement (full contract — comparative reference)
3. USD Board Resolution No. 19-20-11 — Mitigated Negative Declaration, 5670 Camden Avenue, December 2019
4. CPRA Request and USD Response — Superintendent Andrews
Respectfully submitted,
Thomas James Hislop
1 EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ( “Agreement”) is entered into this 25th day of August, 2023 (“Effective Date”) by and between the UNION SCHOOL DISTRICT, a public school district duly organized and validly existing under the Constitution and the laws of the State of California (“District”) and ROBSON HOMES, LLC, a California limited liability company (“Robson Homes ”). District and Robson Homes are sometimes hereinafter referred to individually as a "Party" and collectively as the “Parties.”
RECITALS
WHEREAS, the District is the owner in fee, of approximately 9.10 acres of land located at 220 Belgatos Road , Los Gatos CA 95032, commonly known as Assessor Parcel Number 527-25-005, and as more particularly described in the legal description attache d to this Agreement as Exhibit A incorporated herein by reference (“Mirassou Property”); WHEREAS, the District is proposing to divide the Mirassou Property into two parcels as illustrated on the attached EXHIBIT A-1, to be comprised of (1) an approximately 4.0 acre parcel, subject to Robson Homes’ right to expand up to an additional approximately 12,000 square feet (the “ Mirassou A Site” also hereinafter referred to as the “District Property”), and (2) an approximately 5.10 acre parcel, subject to a corresponding reduction in square feet in the event of the increase in the Mirassou A Site above (the “Mirassou B Site”). A legal description of the District Property shall be developed and shall be attached to this Agreement as set forth in Section 2.6, as EXHIBIT A-2, as more particularly set forth below;
WHEREAS, section 17536 of the Education Code authorizes the District’s Governing Board (“Board”) to exchange any of its real property for real property of another person or private business firm upon such terms and conditions as the Parties may agree, and in accordance with the procedural requirements of Education Code section 17536 et seq; WHEREAS, Robson Homes is a home development company organized in California and headquartered in San Jose, California, that desires to acquire the District Property for the development of a residential project (the “Residential Project”); WHEREAS, the District d esires to exchange the District Property for income producing real property to be selected by the District as set forth in this Agreement (the “Exchange Property”) in accordance with the terms and conditions of this Agreement. Upon selection of the Exchange Property , pursuant to the terms of this Agreement, a legal description of the Exchange Property shall be attached to this Agreement as EXHIBIT A- 3). The District Property and the Exchange Property are sometimes hereinafter referred to collectively as the "Properties" or each a “Property”; WHEREAS, on or about June 21, 2023 the District published a Notice of Solicitation of Qualifications and Proposals for the Exchange of District -Owned Real Property stating its desire to move forward with the exchange of the District Property, pursuant to sections 17536 and 17537 of the Education Code; and
WHEREAS, on July 21, 2023, Robson Homes submitted the Mirassou School Site “Mirassou A” Exchange Agreement & Development Opportunity Statement of Qualifications & Proposal (“Statement of Qualifications and Proposal”) attached hereto as Exhibit “A-4” and
2 incorporated herein by this reference, in response to the District’s solicitation.
WHEREAS, on August 14, 2023, the Board adopted Resolution 23 -24-01 by Board action at a duly called Board meeting declaring its intent to enter into an exchange agreement with Robson Homes, in accordance with the Statement of Qualifications and Proposal, wherein the District plans to exchange the Mirassou A Site for a fee interest in the Exchange Property by two -thirds vote of its members, in accordance with Education Code section 17537, declared the Mirassou Property as excess surplus land within the meaning of Government Code sections 54221(b)(1) and 54221(f)(1)(I), (the, “ Resolution of Intention”).
WHEREAS, the District recognizes and acknowledges the importance of traffic safety for the community located in the vicinity of the Residential Project and the District and Robson Homes hereby agree to work collaboratively together, and with the Town of Los Gatos, to address known traffic safety concerns in the area that may be i mpacted by vehicular traffic generated from the Residential Project.
AGREEMENT
NOW THEREFORE, in consideration of the covenants and agreements set forth in this Agreement, the Parties agree as follows:
ARTICLE 1
EXCHANGE OF DISTRICT PROPERTY AND EXCHANGE PROPERTY
1.1 Agreement to Exchange. Subject to all the terms, conditions, and provisions of this Agreement, and for the consideration herein set forth, District and Robson Homes agree to exchange the District Property and the Exchange Property, respectively, each including, without limitation, such party's interest in all mineral, oil, gas and other hydrocarbon substances on and under the properties as well as all development rig hts, air rights, water, water rights and water stock relating to the Properties and any other easements, rights -of- way or appurtenances, used in connection with the beneficial use and enjoyment of the Properties.
1.2 Identification of Exchange Property. During the term of this Agreement, the District shall use good faith efforts to identify the Exchange Property. Within thirty (30) days after the expiration of the Robson Homes Due Diligence Period, Robson Homes shall provide the names of three (3) real e state brokers with extensive experience in commercial/residential income producing properties and with whom Robson Homes has previously transacted business. The District, at its discretion, may utilize the services of all, some or none of the named brokers to identify potential exchange properties. Robson Homes may also identify one or more income producing properties currently owned by Robson Homes (the "Robson Homes Properties" or a “Robson Homes Property” ) for consideration by the District in accordance with Section 2 of this Agreement. Robson Homes shall provide the District with the Due Diligence Materials for the Robson Homes Properties, if any, and Robson Homes' valuation of the fair market value of the interest to be acquired by the District in the Robson Homes Properties, if any. Although Robson Homes agrees to cooperate with the District in the selection of the Exchange Property, it is the responsibility of t he District to identify the Exchange Property pursuant to this Agreement and to determine whether the fair market value of the Exchange Property (including the Robson Homes Properties) is of equal value to the District Property. If the Exchange Property u ltimately selected by the District is not a Robson Homes Property, the District, not Robson Homes, shall be solely responsible for contracting directly with the Property Owner of such Exchange Property. Robson Homes does
3 not intend to, and is not required by this Agreement to, ever take title to any Exchange Property. Therefore, Robson Homes shall not have any liability or obligation with respect to any circumstance or condition on any Exchange Property, whether before or after the Close of Escrow. Without limiting the foregoing, Robson Homes shall not have any liability for any act, condition or circumstance that the District or any of its employees, agents, representatives or contractors commits, creates or discovers on or at any Exchange Property, nor any obligation or liability to any Property Owner other than as expressly set forth in this Agreement.
1.3 Consideration. It is the intent of the Parties that the Exchange Property shall be of equal value to the District Property, and the District Property shall be conveyed in consideration for the Exchange Property. The value of the Exchange Property (the “ EP Exchange Value”) shall not exceed the DP Exchange Value, as defined in Section 1.3.1 below, unless the District determines, in its sole discretion, that it is willing to acquire a property worth more than the DP Exchange Value. In the event the Exchange Property is worth less than the DP Exchange Value, Robson Homes shall pay to the District in cash the difference between the DP Exchange Value and the EP Exchange Value (the "Additional Cash"). In the event the Exchange Property is worth more than the DP Exchange Value, the District shall be responsible for the payment of the difference between the EP Exchange Value and the DP Exchange Value . Notwithstanding the foregoing, in the event that the District has not identified the Exchange Property in sufficient time to permit the simultaneous closing of the Exchange Property with the closing of the District Property by the Outside Closing Date, Robson Homes shall have the right to acquire the District Property for the cash consideration of the DP Exchange Value ; provided, however, that the DP Exchange Value shall remain in Escrow after the Closing until such time as the District identifies and acquires the Exchange Property or the District determines, at its absolute sole discretion, that the DP Exchange Value shall be released to the District. Th e District shall not be subject to any penalty, fine, or additional charge for failure to identify the Exchange Property by the Outside Closing Date.
The District's failure to identify the Exchange Property shall not be construed as a breach of this Agreement or a condition to the District’s obligation to close on the transfer of the District Property to Robson Homes.
1.3.1 District Property Exchange Value; No Additional Consideration. Robson Homes and the District agree that there is sufficient consideration for the exchange of real property under the terms and conditions in this Agreement, and no further consideration or compensation is required by either Party. The District Property valuation (the “DP Exchange Value”) of Twenty-Two Million Dollars, ($ 22,000,000) assumes that Robson Homes ’ will receive approval from the Town for 30 residential lots including 24 market rate and 6 below market rate ( “BMR”) homes. However, if Robson Homes elects to purchase as part of the District Property all or a portion of the additional approximately 12,947 square feet of land illustrated on Exhibit A -1, the DP Exchange Value shall be increased by an amount equal to One Hundred Dollars ($100.00) per square foot of additional land, based on the survey referenced in Section 2.6 below. Therefore, if Robson Homes acquires all of the additional 12,947 square feet, the DP Exchange Value shall be increased by One Million, Two Hundred Ninety-Four Thousand Seven Hundred Dollars ($1,294,700) to a total of Twenty-Three Million Two Hundred Ninety Four Thousand Seven H undred Dollars ($23,294,700); provided, however, the actual final DP Exchange Value will be based upon the actual final additional square footage that Robson Homes elects to purchase.
1.3.2 District Property Exchange Value Includes School Impact Fees . The Exchange Value for the District Property includes statutory Level 1 Developer Fees in the amount of Three Dollars and Thirty -Five Cents ($3.35) per square feet for each of the thirty (30) residential lots Robson Homes plans to develop on the Exchange Property. The District will
4 not assess Level 2 or Level 3 Developer Fees for the residential development of the District Property.
1.4 Earnest Deposit Schedule.
1.4.1 Execution Consideration. In addition to the Deposits referenced below, within three (3) business days after the Opening of Escrow, Robson Homes shall deposit into Escrow the sum of One Thousand Dollars ($1,000) (the “Execution Consideration”). The Execution Consideration const itutes, in addition to the covenants and conditions contained in this Agreement, consideration for entering into this Agreement with Robson Homes and giving Robson Homes the opportunity to examine the feasibility of acquiring the District Property.
In the event of the Close of Escrow, the Parties agree that the Execution Consideration will not apply toward the DP Exchange Value. However, notwithstanding anything to the contrary contained in this Agreement, if this Agreement is terminated for any reason whatsoever, the District shall receive the Execution Consideration.
1.4.2 First Earnest Money Deposit. Within three (3) business days after the Opening of Escrow, Robson Homes shall deposit into Escrow the sum of One Hundred Thousand Dollars ($100,000) (the “Initial Deposit”).
1.4.3 Second Earnest Money Deposit. Within one (1) business day after the end of the Due Diligence Period, Robson Homes shall deposit into Escrow the sum of Three Hundred Fifty Thousand Dollars ($350,000).
1.4.4 Third Earnest Money Deposit. Within one (1) business day after the Entitlement Approval Date, Robson Homes shall deposit into Escrow the sum of Five Hundred Thousand Dollars ($500,000). The Entitlement Approval Date is the date that: (i) Robson has received any and all entitlement approvals, including approval of a Tentative Subdivision Map from the Town of Los Gatos (“Town”) for the redevelopment of the residential subdivision on the District Property, including a parcel map separating the Mirassou A Site from the Mirassou B Site if permitted by the Town ; which approvals do not contain any stipulations or conditions other than those approved in writing by Robson Homes and the District; and (ii) all referendum, objection and appeals period s with respect to the Town’s approvals have expired with no objections or appeals or referendums having been filed or served upon Robson Homes and/or the District, or if any objections or appeals or referendums are so filed and served, then all such objections and appeals and referendums shall have been dismissed with prejudice or rejected, so that such approvals are not subject to further appeal.
The earnest money deposits set forth in Section 1.4. 2, 1.4.3 and 1.4.4 above shall remain in Escrow until the Entitlement Approval Date (defined in Section 1.4. 4 above), at which time such earnest money will be transferred to the Escrow for the Exchange Prop erty as further explained in this Agreement. If the Entitlement Approvals are denied, Robson Homes shall have the right to terminate the Agreement and receive a refund of the above three earnest money deposits and any interest accrued thereon, if any.
ARTICLE 2
INSPECTIONS AND REVIEW
2.1 Delivery of Due Diligence Materials. Within ten (10) days of the Effective Date, the District shall deliver to Robson Homes, without representation or warranty as to the accuracy of the information contained therein, any and all documents, reports, agreements, or other items in its possessio n or control relating to the Mirassou Property or within its agents’ or representatives’ possession or control, including but not limited to (collectively, the "Due
5 Diligence Materials"): (i) all licenses, leases, and permits affecting or relating to the ownership, subdivision, possession or development of the Mirassou Property or the construction of improvements thereon, and all amendments and modifications thereto; (ii) applications and correspondence or other written communications to or from any governmental entity, department or agency other than District regarding any permit, approval, consent or authorization with respect to the development of the Mirassou Property or the construction of improvements thereon as well as community and neighborhoo d outreach; (iii) the most recent survey, if any, pertaining to the Mirassou Property or any portion thereof; (iv) soils reports, engineering data, environmental reports, development agreements, tract map conditions of approval, grading and engineering stu dies and plans, impact reports or negative declarations, traffic, noise, and drainage studies, improvements plans, improvement agreements and bonds, if any, and other data or studies pertaining to the Mirassou Property; (v) copies of all documents evidencing interests in or affecting the Mirassou Property that are not shown on a title report, if any; and (vi) all documents regarding the existence, use, application or removal of Hazardous Materials (as defined below) on, from, in and/or under the Mirassou Property. Within ten (10) days after Robson Homes has identified the Robson Homes Properties, Robson Homes shall deliver to the District , without representation or warranty as to the accuracy of the information contained therein, copies of the Due Diligence Materials relating to the Robson Homes Properties. Any Due Diligence Materials shall be provided to the other Party without any recourse or liability of any type or nature. Each Party assumes all risk of any kind with rega rd to the use of and reliance upon any of the Due Diligence Materials provided by the other Party. Neither Party is relying upon the other Party for any information related to, concerning, or involving the respective properties for this transaction, includ ing, without limitation, the fair market value of the Properties.
2.2 Inspections. The due diligence period shall begin on the date that all Parties have fully executed the Agreement and last until 5:00 pm Pacific Standard Time on the date seventy- five (75) days after the Effective Date (the "Robson Homes Due Diligence Period"). However, if District has not delivered to Robson Homes (a) a copy of the Resolution of Intention, and (b) the written notice of satisfaction of the contingency set forth in Section 4.1. 1 of this Agreement, the Due Diligence Period set forth in the first sentence above in this section shall extend day for day that either (a) or (b) above is not delivered, up to a maximum extension of thirty (30) additional days. During the term of the Agreement, including without limitation during the Robson Homes Due Diligence Pe riod, Robson Homes and its representatives, agents, engineers, consultants, contractors, and designees shall have the right to enter onto the District Property , for purposes of examining, inspecting and investigating the District Property and the feasibility of using the District Property for Robson Homes ’ intended purposes, including the site, soil, subsurface soils, drainage, seismic and other geological and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes, if any, and, at Robson Homes' sole and absolute discretion, determining whether the District Property is acceptable to Robson Homes. During the term of the Agreement, including without limitation during the Robson Homes Due Diligence Period, Robson Homes may, in Robson Homes' sole and absolute discretion and cost, perform without limitation: (i ) completion of environmental tests and studies, such as without limitation, a Phase I and Phase II environmental site assessments, and any additional tests, studies and assessments desired by Robson Homes; (ii) engineering evaluations, including geotechni cal evaluation, if needed or desired; (iii) compliance with the California Environmental Quality Act (“ CEQA”) if applicable; (iv) any other surveys, engineering and soils tests and other tests, studies or inspections deemed necessary by Robson Homes in its sole discretion and obtained at Robson Homes' expense; and (v) review of any information and materials provided by the District pursuant to Section 2.1 above or elsewhere in this Agreement. Robson Homes shall provide the District with copies of any third party inspection report prepared pursuant to this section.
6 If any report prepared on behalf of Robson Homes recommends that certain remedial measures be implemented as part of the land development work, including by way of example only, over-excavation of soils or installation of any type of vapor barrier (each, "Remedial Measures"), then Robson Homes shall notify the District of any such report demonstrating a need for Remedial Measures and provide any related documentation to the District for review.
Upon mutual written agreement by the Parties before the expiration of the Due Diligence Period, the Parties may agree th e DP Exchange Value shall be reduced by the estimated amount of the Remedial Measures which shall be based on the lowest of three qualified bids for such Remedial Measures. Should the Parties not mutually agree to reduce the DP Exchange Value for such Remedial Measures, Robson Homes shall have the right to terminate this Agreement.
The District shall have the same inspection rights, including a seventy-five (75) day due diligence period (the "District Due Diligence Period"), with respect to the Exchange Property(ies) (including the Properties). If the Exchange Property is Robson Homes Property, the District’s review of the physical condition and feasibility of the Exchange Property (ies), may at the District’s sole and absolute discretion and cost, include without limitation:
(i) completion of environmental tests and studies, such as without limitation, a Phase I and Phase II environmental site assessments, and any additional tests, studies and assessments desired by the District ; (ii) engineering evaluations, including geotechnical evaluation, if needed or desired; (iii) compliance w ith the CEQA if applicable; (iv) any other surveys, engineering and soils tests and other tests, studies or inspections deemed necessary by the District in its sole discretion and obtained at such the District’s expense; and (v) review of any information and materials provided by other Parties pursuant to Section 2.5 below or elsewhere in this Agreement. The District Due Diligence Period shall begin on the date the Exchange Property is identified by the District, as confirmed in writing to Robson Homes. The parties acknowledge and agree that the District may conduct due diligence for more than one potential Exchange Property and that the provisions set forth in this Section 2.2 shall apply to each such Exchange Property.
2.2.1 Conditions of Access to District Property and Exchange Property for Inspections.
Robson Homes and its agents, representatives and designees shall have the right with respect to the District Property, and the District and its agents, representatives and designees shall have the right with respect to the Exchange Property, if the Exchange Property is a Robson Homes Property, to access such property dur ing the term of this Agreement , including the Due Diligence Periods, in accordance with the following terms and conditions:
2.2.1.1 Such Party shall provide the Party that owns the applicable Property (“Property Owner ”) with written notice of the dates on which the noticing Party or its representatives or designees intend to access the property at least two (2) business days in advance of any access to the Property. Property Owner or its representative may be present for any inspections, tests or studies.
2.2.1.2 Each Party will permit only employees, agents, licensed contractors, consultants or other individuals who have a reasonable reason to be on the Property to enter upon the Property as a result of such Party’s actions.
2.2.1.3 Each Party will assume full responsibility for proper characterization, manifesting, storage and disposal of any materials or wastes gener ated as a result of any sampling conducted by or for such Party, and following written request will provide the Party that owns the Property a copy of documents evidencing these actions.
7 2.2.1.4 Each Party agrees to comply with all applicable laws, regulations, rules and permits pertaining to its investig ations and testing on and of a P roperty or any part thereof, including, but not limited to, the Occupational Health & Safety Act and all applicable environmental, health and safety laws and regulations, whether federal, state or local. Each inspecting Party shall obtain or cause its consultants to obtain, at inspecting Party's sole cost and expense prior to commencement of any investigative activities on the Property, a policy of commercial general liability insurance covering liability of said Party for claims of personal injury or property damage caused during any of inspecting Party's investigative activities.
Such policy of insurance shall be an occurrence policy and shall have liability limits of not less than Two Million Dollars ($2,000,000.00) combined single limit per occurrence for bodily injury, personal injury and property damage liability. Such insurance policy shall name Property Owner as an additional insured. Inspecting Party hereby agrees to indemnify, defend and hold harmless Property Owner from any and all damages, claims, losses, liabilities, causes of action, proceedings, costs and expenses of any kind whatsoever (including, without limitation, attorneys' fees and fees of expert witnesses) for physical damage or personal injury to the extent caused by inspecting Party or its agents, assignees, designees or representatives during their entry on the P roperty prior to the Close of Escrow; provided, however, the foregoing indemnity shall no t apply with respect to any claims arising out of the mere discovery of any adverse condition at the Property, any preexisting conditions at the Property or any acts or omissions of Property Owner, its officers, directors, owners, agents or employees. The foregoing indemnity shall survive the Close of Escrow or the earlier termination of this Agreement.
2.2.1.5 Upon a Party’s completion of any investig ations and testing on and of a Property, such Party shall promptly restore the Property to substantially the condition it was in prior to engaging in the work, including the repair or replacement of any and all physical damage to the Property to the extent caused by and during that Party’s access; provided, however, that in no event shall any Party have any obligation pursuant to this Section to remedy any pre-existing condition on or under another Party’s property. Each Party agrees to promptly pay before delinquency for any and all labor and materials expended or used by such Party or its agents, representa tives or designees in connection with a ny and all investigations on a P roperty. In the event any me chanics’ liens are placed on a P roperty resulting from work by a Party or its agents, representatives or designees, that Party will take prompt action to remove or bond over such liens at that Party’s sole expense and will indemnify, defend, protect and hold each other Party harmless from and against all such claims.
2.2.2 Extension of Due Diligence Periods. The Parties acknowledge that the activities contemplated during the Robson Homes and District Due Diligence Periods may extend beyond the Robson Homes and District Due Diligence Periods provided for in Section 2.1 above. Therefore, each Party, in its sole discretion, will have one (1) option to extend the Due Diligence Period by providing written notice, delivered on or before the last day of the Due Diligence Period, to the other Parties of its exercise of its option to extend the Due Diligence Period for thirty (30) days. Under no circumstances shall the Due Diligence Period, including all extension rights above, extend beyond one hundred twenty (120) days following their respective Effective Date(s).
2.3 As-Is. Based on the inspection rights set forth in the preceding paragraph s and in reliance on the due diligence of each Party, the District and Robson Homes acknowledge and agree that except for the limited warranties and representations expressly set forth in this Agreement, the exchange of the Properties is made solely on an AS IS WHE RE IS BASIS, WITH ABSOLUTELY NO REPRESENTATIONS OR WARRAN TIES, EXPRESSED OR IMPLIE D. But for the foregoing understanding and agreement, the Parties would not have entered into this
8 transaction. Each Party acknowledges that due to the expertise, experience and business acumen of both Parties and their respective consultants, each Party has the ability to conduct a complete and thorough due diligence of the respective Properties and would not close the transaction unless totally satisfied with the respective Property, and has otherwise conducted an exhaustive and complete due diligence which would enable the taking of the respective Property in an AS IS WHERE IS BASIS WITH ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.
2.4 Termination During Due Diligence Period. If, for any reason, Robson Homes, in its sole and absolute discretion is dissatisfied with the District Property, Robson Homes shall notify District and Escrow Holder in writing ("Robson Homes' Termination Notice") on or before the expiration of the Robson Homes Due Diligence Period of Robson Homes' desire to terminate this Agreement and cancel the Escrow . Robson Homes ' failure to deliver Robson Homes ' Termination Notice on or before the expiration of the Robson Homes Due Diligence Period shall be conclusively deemed Robson Homes' waiver of its right to terminate pursuant to this provision, provided Robson Homes fails to deliver Robson Homes' Due Diligence Notice within ten (10) days after Robson Homes' receipt of written notice by the District of said failure to deliver Robson Homes' Termination Notice on or before the expiration of the Due Diligence Period. Should Robson Homes elect to terminate the Agreement before or at the conclusion of Robson Homes’ Du e Diligence Period, then Escrow Holder shall immediately return the $100,000 Initial Deposit to Robson Homes.
District shall notify Robson Homes and Escrow Holder in writing ("District's Due Diligence Notice") on or before the expiration of the District Due Diligence Period of District's approval or disapproval of the Due Diligence Materials applicable to the Exchange Property, the condition of the Exchange Property and District's investigations with respect thereto. District's disapproval of any of said items shall constitute District's election to terminate the Exchange Property Agreement and cancel that Escrow. District's failure to deliver District's Due Diligence Notice on or before the expiration of the District Due Diligence Period shall be conclusively deemed District's approval thereof, provided District fails to deliver District's Due Diligence Notice within ten (10) days after District's receipt of written notice by Robson Homes of said failure to deliver District's Due Diligence Notice on or before the expiration of the Due Diligence Period. In the event the District disapproves of the Exchange Property, the District shall continue to use good faith efforts to identify the Exchange Property in sufficient time to permit the Closing to occur by the Outside Closing Date. However, if the District does not identify or is not prepared to close on the Exchange Property by the Outside Closing Date, the provisions of Section 1.3 of this Agreement shall control.
2.5 Title Review. During each Parties' respective Due Diligence Period, each Party shall obtain a preliminary title report for each respective Property, together with copies of all written instruments creating the exceptions specified therein, and plat maps plotting all easements specified therein (collectively, the "Title Reports"). Robson Homes shall notify District in writing (" Robson Homes ' Objection Notice") on or before the expiration of the Robson Homes Due Diligence Period of any objections Robson Homes may have to the title exceptions contained in the Title Report for the Distric t Property. Robson Homes' failure to provide District with a Robson Homes' Objection Notice within said period shall constitute Robson Homes' approval of all exceptions to title shown on the Title Report for the District Property, provided District provides Robson Homes ten (10) days written notice of said failure to deliver Robson Homes' Objection Notice within said period. District shall have a period of ten (10) days after receipt of Robson Homes ' Objection Notice in which to deliver written notice to Robson Homes ("District's Notice") of District's election to either (i) agree to remove or cure the objected to items prior to the Close of Escrow, or (ii) decline to remove or cure any such title exceptions. If the District is unable or unwilling to elimina te the Defect (or to
9 commit to do so by Close of Escrow) during such time period, then except with respect to Forbidden Defects, Robson Homes' sole remedy shall be to elect, by written notice to the District and Escrow Agent on or before the date ten (10) business days after the later of the expiration of such 10 -day period or the date the District gives Robson Homes and Escrow Agent written notice that the District will not eliminate the Defect on or before the Close of Escrow, to either (a) terminate this Agreement, or (b) waive the Defect. Furthermore, for the purpose of this paragraph, District's cure may include the acquisition by District, at District's expense, of a title insurance endorsement related to the objected to exception reasonably acceptable to Robson Homes. Any extension of the time to review the Title Report for the District Property shall only occur in strict accordance with the following paragraph.
Except as otherwise provided in this Agreement, if this Agreement is cancelled pursuant to this paragraph, the earnest money and any interest thereon shall be refunded to Robson Homes, this Agreement shall thereupon be null and void and of no force or effect and Robson Homes and the District shall have no further obligations or liabilities hereunder.
Notwithstanding the foregoing, District represents, warrants and agrees with respect to the District Property that as of the Close of Escrow the District Property shall not be subject to any of t he following (hereinafter referred to as “ Forbidden Defects ”): (a) any mortgages, deeds of trust, security agreements, judgments, liens, or claims of lien, except for the lien of current real property taxes not yet due and payable; (b) any options, rights of first refusal or other title matters customarily deemed in the County in which the District Property is located to render real property unmarketable, and (c) any Defects that the District has committed to eliminate on or before the Close of Escrow. In addition, District represents, warrants and agrees that as of the Close of Escrow, the District Property shall not be subject to any leases, rental agreements or other rights of occupancy of any kind, whether oral or written.
Upon the issuance of any amend ment or supplement to the Title Report for the District Property which adds additional exceptions, or adds any new requirement, the foregoing right of review and approval shall also apply to said amendment or supplement; provided, however, that Robson Homes' initial period of review and approval or disapproval of any such additional exceptions shall be limited to fifteen (15) business days following Robson Homes ' and its counsel's receipt of the instrument(s) creating such additional exceptions. The foregoi ng extension shall only be allowed for and pertain to the review of the new matter and Robson Homes shall not be entitled to object to any exception that was in a previous title report for which the time for objection has already come and passed.
If the Ex change Property (i.e., the property acquired by the District) is a Robson Property (within the meaning of Section 1.2) , then, i n reciprocal nature with the foregoing, District shall notify Robson Homes in writing ("District's Objection Notice") on or before the expiration of the Due Diligence Period of any objections District may have to the title exceptions contained in the Title Report for the Robson Property . District's failure to provide Robson Homes with a District's Objection Notice within said period shall constitute District's approval of all exceptions to title shown on the Title Report for the Robson Property, provided Robson Homes provides District ten (10) days written notice of said failure to deliver District's Objection Notice within said period. Robson Homes shall have a period of ten (10) days after receipt of District's Objection Notice in which to deliver written notice to District (" Robson Homes' Notice") of Robson Homes' election to either (i) agree to remove or cure the objected to items prior to the Close of Escrow, or (ii) decline to remove or cure any such title exceptions. If Robson Homes notifies District of its election to decline to remove and cure the objected to items, District shall have the right, by written notice delivered to Robson Homes within ten (10) days after District's receipt of Robson Homes' Notice, to agree to either (i) accept the Robson Property as the Exchange Property subject to the objected to items, in which event District shall take title at the Close of Escrow subject to the objected to items, without any adjustment to or credit against the EP Exchange Value or (ii) to continue to use
10 good faith efforts to identify other Exchange Property for which the con dition of title is acceptable to District in sufficient time to permit the Closing to occur by the Closing Date, then Robson Homes may acquire the District Property for cash in accordance with Section 1.3 of this Agreement. Furthermore, for the purpose of this paragraph, Robson Homes' cure may include the acquisition by Robson Homes at Robson Homes ' expense a title insurance endorsement related to the objected to exception reasonably acceptable to the District. Any extension of the time to review the Title Report for the Exchange Property shall only occur in strict accordance with the following paragraph.
Upon the issuance of any amendment or supplement to the Title Report for the Exchange Property which adds additional exceptions, or adds any new requirement, the foregoing right of review and approval shall also apply to said amendment or supplement; provided, however, that District's initial period of review and approval or disapproval of any such additional exceptions shall be limited to fifteen (15) business days following District's and its counsel's receipt of the instrument(s) creating such additional exceptions. The foregoing extension shall only be allowed for and pertain to the review of the new matter and District sha ll not be entitled to object to any previously known exception or requirement for which the time for objection has already come and passed.
2.6 Surveys. Robson Homes shall have the right with respect to the District Property, and the District shall have the right with respect to the Exchange Property, to cause an ALTA/ACSM survey of such Property to be performed by an engineer licensed in the State of California.
In addition, as discussed in Section 1.3.1 above, Robson Homes shall have the right to elect to expand the District Property to include all or any portion of the approximately 12,000 square feet illustrated on Exhibit A-1. The District shall review the survey and approve the legal description of the District Property within ten (10) business days of receipt from Robson Homes. Once the District has reviewed and given written approval of the legal description of the District Property as set forth in the survey prepared by Robson Homes’ engineer it shall then constitute the legal description of the District Property and shall be attached to this Agreement as Exhibit A -2; provided however, if during the course of Robson Homes processing the Governmental Permits and Approvals pursuant to Section 2.7, Robson Homes determines to expand the District Property to include all or any portion of the approximately 12,000 square feet illustrated on Exhibit A-1, Robson Homes shall have the right to revise the survey and legal description.
2.7 Governmental Permits and Approvals . The Parties understand and acknowledge that during the Escrow period and prior to the Close of Escrow, Robson Homes, at its expense, intends to obtain such governmental permits and approvals as Robson Homes deems necessary or appropriate in order to separate the District Property from the Mirassou Property as well as subdivide and develop the District Property in the manner desired by Robson Homes. Notwithstanding the foregoing, this District shall pay for the cost of the civil engineering to create the map separating Mirassou A Site from the Mirassou B Site. Without limiting the foregoing, the Parties understand and agree that Robson Homes shall hav e the right to, and following the Due Diligence Period intends to, seek such entitlements, permits and approvals from the Town as Robson Homes deems necessary or appropriate to permit the development of a residential subdivision on the District Property in the manner desired by Robson Homes, such as without limitation a tentative map (the “ Tentative Map”). The District agrees to cooperate fully in all such attempts by Robson Homes to obtain such governmental permits and approvals as are necessary for the development of the District Property in the manner desired by Robson Homes, including but not limited to the Tentative Map, and the District agrees to execute, both before and after the Close of Escrow, any and all applications and documents reasonably requested by Robson Homes in order to obtain such permits and approvals as well as support the project as reasonably requested by Robson
11 Homes; provided, however, that the District shall not, other than as stated above, be required to bear any expense for such subdivision, permits or approvals or take any action that it is not lawfully entitled to take. Immediately prior to the close of escrow on the District Property, Robson Homes shall have the right to record in the official records of the Santa Clara County the parcel map once it has been approved by the Town and the District. The District represents and warrants that there are no existing agreements and the District will not, during the term of this Agreement, enter into any such agreements that prohibit or interfere with the rights of Robson Homes as described in this Section or that require any third party consent to such rights.
2.8 Existing Leases or Contracts on the District Property. After the Effective Date and prior to the Close of Escrow, the District shall , at the District’s expense, terminate all leases and rights of o ccupancy and any other contract on the District Property and all tenants and occupants shall vacate the District Property on or before the date thirty (30) days prior to the date of the close of escrow.
ARTICLE 3
ESCROW
3.1 Opening of Escrow. Within two (2) business days following the execution of this Agreement by District and Robson Homes, the Parties shall open an escrow (the "Escrow") with Chicago Title Insurance Company , National Commercial Services ("Escrow Holder"), at its offices located at 675 First Street, Suite 900, San Jose, CA 95112; Attn: Kiley Demaree by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered t o Escrow Holder (the "Opening of Escrow"). Escrow Holder shall provide each of the Parties in Section 7.4 with written confirmation of the date of the Opening of Escrow. Chicago Title Insurance Company (the "Title Company") shall also provide title insuran ce services related to this Agreement.
3.2 Close of Escrow; Closing Date. Escrow shall close on or prior to the date ninety (90) days after the Entitlement Approval Date (the "Closing Date"), unless mutually extended by the Parties or extended by Robson Homes through the Closing Extensions, as defined below, provided that the conditions to Closing described in Section 4 below have been satisfied. The District at its sole discretion may extend the Clo sing Date for up to two (2) thirty (30) day periods by providing written notice of such extension to Robson Homes at least ten (10) days prior to the then Closing Date . Robson Homes at its sole discretion, may also extend the Closing Date for up to two (2 ) thirty (30) day periods by providing written notice of such extension to the District at least ten (1 0) days prior to the then Closing Date and by also making an additional deposit of Two Hundred Fifty Thousand Dollars ($ 250,000) for each extension (each a “Closing Date Extension Deposit”). Robson Homes may issue a total of two such Closing Date Extension Deposits to extend the Closing Date to a potential total of sixty (60) days. Any Closing Date Extension Deposit made by Robson Homes shall be applicab le to the DP Exchange Value and shall be nonrefundable except in the event of the District’s default or termination of the Agreement under Section 2.5. The terms the "Close of Escrow", and/or the "Closing" are used herein to mean the date the Grant Deeds (as the term is defined in Section 3.4 herein) are recorded in the Office of the County Recorder of the County(s) in which the Properties are located. Possession of the District Property shall be delivered to Robson Homes at the Close of Escrow free and clear of all tenancies, lessees, occupants, licensees, and all possessory rights of any kind or nature, except for any Permitted Exceptions, as set forth and defined in Section 4.1.5 herein. At the Close of Escrow, either (i) possession of the Exchange Property (and the Additional Cash Consideration, if applicable) shall be delivered to District free and clear of all tenancies, lessees, occupants, licensees, and all
12 possessory rights of any kind or nature, except for any Permitted Exceptions, as set forth and defined in Section 4.2.4 herein, or (ii) the DP Exchange Value shall be delivered to District or held in Escrow until an Exchange Property is identified and acquired, in the sole and absolute discretion of District, whic h shall be made evident by appropriate instructions to the Escrow Holder.
3.3 Escrow Instructions. This Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of District and Robson Homes to Escrow Holder as well as an agreement between District and Robson Homes. In the event of any conflict between the provisions of this Agreement and Escrow Holder's standard instructions, this Agreement shall prevail.
3.4 Deliveries by Robson Homes. No later than 1:00 p.m. on the business day preceding the Closing Date, Robson Homes shall deliver to Escrow Holder:
(a) If the Exchange Property is a Robson Property , a grant deed in the form of Exhibit "B -1" attached to this Agreement (the "Grant Deed") conveying to District fee simple title to the Exchange Property , duly executed and acknowledged by the Property Owner;
(b) If the Exchange Property is a Robson Property , a certificate of non -foreign status in the form attached hereto as Exhibit "D-1" and California Franchise Tax Board Form 590-RE, each executed by the Property Owner; (c) Any and all other sums and documents required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement, including Robson Homes ' portion of prorations, if any . Without limiting the foregoing, if the Exchange Property is not a Robson Property, the balance of the DP Exchange Value (i.e., less the Deposits) and if the Exchange Property is a Robson Property, the Deposits would be refunded to Robson Homes as the Closing.
3.5 Deliveries by District. No later than 1:00 p.m. on the business day preceding the Closing Date, District shall deliver to Escrow Holder:
(a) a grant deed in the form of Exhibit "B-1" attached to this Agreement (the "Grant Deed") conveying to Robson Homes District's fee simple title to the District Property, duly executed and acknowledged by District;
(b) a Public Agency Certificate of Acceptance for the Exchange Property Grant Deed in the form attached hereto as Exhibit "C";
(c) a certificate of non -foreign status in the form attached hereto as Exhibit "D" and California Franchise Tax Board Form 590 -RE, each executed by District; and
(d) all other sums and documents required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement, including the Escrow fees and District's portion of prorations, if any.
3.6 Closing, Recording and Disbursements. On or before the Closing Date, and when all of the conditions precedent to the Close of Escrow set forth in Section 4 of this Agreement have been satisfied o r waived in writing, Escrow Holder shall take the actions set forth in this Section 3.6.
13 3.6.1 Recording. Escrow Holder shall cause the Grant Deeds to be recorded in the Official Records of Santa Clara County, California.
3.6.2 Disbursement of Funds. Escrow Holder shall disburse or hold the DP Exchange Value, less prorations chargeable to District, if any, i n accordance with the District's instructions.
3.6.3 Title Policy. Escrow Holder shall deliver to both Parties a commitment to issue Title Policies for the respective Properties, as referred to in Section 4.1.5 of this Agreement.
3.6.4 Delivery of Documents to District and Robson Homes . Escrow Holder shall deliver to the respective Parties, a conformed copy of the respective Grant Deeds, and any other documents (or copies thereof) deposited by the other Party with Escrow Holder pursuant to this Agreement. The original of the Grant Deeds shall be returned to the respective Parties after recordation.
3.6.5 Real Property Taxes. All non-delinquent general and special real property taxes and assessments shall be prorated as of the Close of Escrow.
3.6.6 Non-Foreign Certificate. On or before Close of Escrow, each Party will deposit with Escrow Agent certificates in form reasonably satisfactory to Escrow Agent that provides the information required by Section 1445 of the Internal Revenue Code of 1986, as amended, and by Sections 18805 and 26131 of the California Revenue and Taxation Code, for an exemption to the withholding of taxes under those Sections, if and to the extent that such federal and/or state Sections are applicable. If a Party fail s to provide any such required certificate, funds may be withheld from it in accordance with those Sections.
3.7 Payment of Costs. Pursuant to Government Code section 27387, the Parties anticipate no recording fees will be payable with respect to the recording of the Exchange Property grant deed. If there are any fees associated with the recordation of the District Property , District agrees to pay the fees. District shall pay all title insurance premiums for the CLTA standard owner's form policy for the District Property, but Robson Homes shall pay all charges associated with the title insurance premium for any additional cost of obtaining any additional coverage requested by Robson Homes , including the difference between a CLTA standard owner's policy and an ALTA extended owner's policy. No documentary transfer tax will be payable for the Exchange Property , pursuant to California Reve nue and Taxation Code section 11922. However, Robson Homes shall pay all applicable documentary transfer taxes, including but not limited to, conveyance and transfer taxes , and costs associated with recording the Grant Deed for the District Property . To the extent agreed to by the Property Owner, the Property Owner shall pay all title insurance premiums for the CLTA standard owner's form policy for the Exchange Property, but District shall pay all charges associated with the title insurance premium for any additional cost of obtaining any additional coverage requested by District, including the difference between a CLTA standard owner's policy and an ALTA extended owner's pol icy. The Parties shall pay the Escrow fees or Escrow Holder's termination fees, in equal shares, unless one Party is solely in default and upon such default the defaulting Party shall be solely liable for all Escrow costs and fees. The Parties shall each be responsible for their respective attorneys' fees. All other costs of Escrow not specifically allocated in this Agreement shall be prorated as of the Close of Escrow, if applicable, and otherwise paid in equal amounts by the Parties.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSE OF ESCROW
14 4.1 Conditions to District's Obligations. District's obligation to exchange for the District Property, upon the Close of Escrow, shall be subject to the satisfaction or written waiver by District of each of the conditions precedent set forth in this Section 4.1.
4.1.1 Identity of Exchange Propert y. Subject to Section 1.2 of this Agreement, the District shall have identified the Exchange Property in sufficient time to permit the Closing to occur by the Closing Date; provided, however that i f the District has not identified the Exchange Property in sufficient time to permit the Closing to occur by the Closing Date, or if the condition set forth in Section 4.1. 4 is not satisfied by the Closing Date, Robson Homes may acquire the District Property for cash in accordance with Section 1.3 of this Agreemen t.
4.1.2 Robson Homes' Performance. Robson Homes shall have performed all of the obligations required by the terms of this Agreement to be performed by Robson Homes on or before the Close of Escrow . In the event District alleges that Robson Homes is in default, District shall notify Robson Homes in writing and describe in reasonable detail the alleged default in detail. Robson Homes shall have a reasonable time, but not more than fifteen (15) business days, to cure any alleged default.
4.1.3 Robson Homes Deliveries Made. Robson Homes has deposited with Escrow Holder all documents required of Robson Homes by this Agreement.
4.1.4 Title Policy. The Title Company has committed to issue to District a CLTA standard, or at District's choice, an ALTA extended coverage owner's policy of title insurance ("Title Policy"), with liability in the amount of the Exchange Amount, or greater if required in District's sole discretion, showing fee title to the Exchange Property vested in the District, subject only to:
(a) the standard printed exceptions and exclusions contained in the form of the Title Policy commonly used by Title Company;
(b) title exceptions approved by District pursuant to Section 2. 5 of this Agreement;
(c) title exceptions resulting from documents being recorded or delivered through Escrow pursuant to this Agreement; and
(d) any other exceptions approved in writing by District in its sole and absolute discretion.
The terms of sub -sections (a) through (d), inclusive, being herein collectively referred to as the "Permitted Exceptions".
4.1.5 Representations and Warranties. All representations and warranties made by Robson Homes in this Agreement are true and correct as of the Closing as though made at that time.
4.2 Conditions to Robson Homes' Obligations. Robson Homes' obligation to exchange for the District Property, upon the Close of Escrow, shall be subject to the satisfaction or written waiver by Robson Homes of each of the conditions precedent set forth in this Section 4.2.
4.2.1 District's Performance. The District shall have performed all of the obligations required by the terms of this Agreement to be performed by the District on or before the Close of Escrow. In the event Robson Homes alleges that District is in default, Robson Homes
15 shall notify District in writing and describe in reasonable detail the alleged default in detail.
District shall have a reasonable time, but not more than fifteen (15) business days, to cure any alleged default.
4.2.3 District Deliveries Made. District has deposited with Escrow Holder all documents required of District by this Agreement.
4.2.4 Title Policy. Title Company has committed to issue to Robson Homes a CLTA standard, or at Robson Homes ' choice, an ALTA extended coverage owner's policy of title insurance ("Title Policy"), with liability in the amount of the Exchange Amount, showing fee title to the District Property vested in Robson Homes, subject only to:
(a) the standard printed exceptions and exclusions contained in the form of the Title Policy commonly used by Title Company;
(b) title exceptions approved by Robson Homes pursuant to Section 2.5 of this Agreement;
(c) title exceptions resulting from documents being recorded or delivered through Escrow pursuant to this Agreement; and
(d) any other exceptions approved in writing by Robson Homes in its sole and absolute discretion.
The terms of sub -sections (a) through (d), inclusive, being herein collectively referred to as the "Permitted Exceptions".
4.2.5 Representations and Warranties. All representations and warranties made by District in this Agreement shall be true and correct as of the Closing as though made at that time. All such representations and warranties by the District shall survive the Close of Escrow and recording of the grant deed for a period equal to the statute of limitations that would be applicable to each such representation and warranty.
4.2.6 Existing Leases. On or before the date thirty (30) days prior to the Close of Escrow, the District shall vacate all portions of the District Property and shall terminate all leases, rental agreements and other rights of occupancy encumbering the District Property and shall be ready, willing and able to deliver the District Property to Robson Homes at Close of Escrow free and clear of all leases, agreements, occupancies and occupants.
4.2.7 Exchange Property Owner Obligations. If the Exchange Property has been identified, the Property Owner shall have performed all of the obligations to be performed by the Property Owner pursuant to or required by the te rms of this Agreement as well as any other agreement relating to the transfer of the Exchange Property.
4.2.8 Personal Property. Prior to the Close of Escrow, the District shall remove or cause to be removed from the District Property all personal property currently located on the District Property. However, if there is any personal property on the District Property as of the date scheduled for the Close of Escrow, then in addition to all other rights and remedies available to Robson Homes at law or in equity (a) if Robson Homes nevertheless elects to close Escrow, then upon the Close of Escrow, such personal property shall be deemed abandoned by the District and, at the election of Robson Homes, shall be the property of Robson Homes, and (b) upon written demand from Robson Homes, whether before or after the Close of Escrow, the District, at the District’s expense, immediately shall remove any such
16 personal property from the District Property.
4.3 Hazardous Materials; Environmental Compliance. As a result of the Parties' respective inspections pursuant to Section 2.2 herein, each Party intends to satisfy itself that the District Property and Exchange Property, as applicable, is not in violation of any federal, state, or local law, ordinance, or regulation relating to Hazardous Materials, industrial hygiene, or to the environmental conditions on, under, or about the respective District Property or Exchange Property, or any portion thereof, including, but not limited to, soil and groundwater conditions ("Environmental Laws"). If, at any time prior to the expiration of the Robson Homes Due Diligence Period, Robson Homes determines that the District Property, or any portion thereof, is in violation of said Environmental Laws, Robson Homes may elect t o terminate this Agreement and cancel the Escrow by delivering written notice to that effect to the District and Escrow Holder, thereby rendering this entire Agreement invalid, void, and unenforceable. If at any time prior to the expiration of the District Due Diligence Period, the District determines that the Exchange Property, or any portion thereof, is in violation of said Environmental Laws, the District shall have the right to continue to locate an alternative Exchange Property or, at the District's sole discretion, have the DP Exchange Value retained in escrow at the Closing pursuant to Section 1.3 , but in no event shall the District be permitted to terminate this Agreement. The term "Hazardous Materials" when used in this Agreement shall mean any hazardous waste, hazardous substance, hazardous materials or toxic substances as defined, as of the Closing Date, in any federal, state, or local statute, ordinance, rule, or regulation applicable to the Property, including, without limitation, the Comprehensi ve Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 United States Code sections 6901-6992k), the Carpenter-Presley-Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300 -25395), Hazardous Waste Control Law (Health and Safety Code section 25100 -25250.25); the Hazardous Materials Transportation Act, as amended (Title 49 United States Code sections 1801-1819); and any substance defined as "hazardous waste" in Health and Safety Code section 25117 or as a "hazardous substance" in Health and Safety Code section 25316, and in the regulations adopted and publications promulgated under these laws. "Hazardous Materials" shall also include asbestos or asbestos- containing materials, radon gas, and petroleum or petroleum fractions, whether or not defined as a hazardous waste or hazardous substance in any such statute, ordinance, rule, or regulation as of the Closing Date.
4.4 Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by District or Robson Homes, each Party shall use its diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing conditions requires the approval of a Party, such approval shall be in such Party's sole and absolute discretion.
4.5 Waiver. District may at any time or times, at its election, waive any of the conditions set forth in Section 4.1 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by Distr ict and delivered to Robson Homes .
Robson Homes may at any time or times, at its election, waive any of the conditions set forth in Section 4.2 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by Robson Homes and delivered to District.
4.6 Compliance with California Law . The Close of Escrow shall be conditioned upon compliance with all applicable California laws relating to the acquisition of property.
4.7 Failure of Contingency . No Party shall be obligated to close Escrow pursuant to this Agreement unless and until all contingencies in its favor set forth in this Agreement are
17 satisfied or waived. To the extent that the failure of a contingency in a Party’s favor is the result of a breach or default by another Party, the non -defaulting Party(ies) shall have all rights and remedies provided in this Agreement against the defaulting Party.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES-BROKERAGE COMMISSIONS
5.1 District's Representations and Warranties. District hereby makes the following representations and warranties to Robson Homes, each of which (i) is material and relied upon by Robson Homes in making its determination to enter into this Agreement, (ii) is to the actual knowledge of District true in all respects as of the Effective Date and shall be true in all respects on the Closing Date, and (iii) shall survive the Close of Escrow for eighteen (18) months:
(a) The District is a school district duly organized and validly existing under the laws of the State of California, and this Agreement and the execution and delivery thereof by the person designated below have been specifically authorized by the Board. District has full right, power, and authority to enter into this Agreement and to perform Distric t's obligations hereunder. This Agreement and all other documents delivered by District to Robson Homes now or at the Close of Escrow, have been or will be duly executed and delivered by District and are legal, valid, and binding obligations of District, sufficient to convey to Robson Homes good and marketable title to the District Property, are enforceable in accordance with their respective terms, and do not materially violate any provision of any agreement to which District is a party. (b) There are no pending or known threatened actions, suits, writs, injunctions, decrees, legal proceedings or governmental i nvestigations against or affecting the District Property or relating to the ownership, maintenance, use or operation of the District Property.
(c) The District has not received any written notices nor has any actual knowledge of any violation of any laws, ordi nances, rules, regulations or requirements of any governmental agency, body or subdivision affecting or relating to the District Property.
(d) There are no written leases, rights of first refusal, or other agreements relating to the right of possession and/or occupancy and/or use of or otherwise affecting the District Property by any person or entity, except for matters of record approved by Robson Homes pursuant to Section 2.5 above. (e) District is not actually aware that the District Property, or District, are in violation of any applicable Federal, State or local statute, ordinance, order, requirement, law, or regulation materially adversely affecting the District Property or construction of any improvement thereon. District has received no written notice of any such violation of applicable law. Robson Homes shall make its own independent determination of the feasibility of the use of the District Property for Robson Homes' intended use.
(f) District has not personally caused or knowingly permitted any contamination by Hazardous Materials (as defined in Section 4. 3 of this Agreement) to occur on, at, about, or within the District Property, or any portion thereof, or
18 otherwise knows of any such contamination of Hazardous Materials on, at, about, or within the District Property, or any portion thereof. (g) The District has not received any written notice from any governmental agency or entity of, and has no knowledge of, any pending, threatened or contemplated action of eminent domain or any other public or quasi-public taking in connection with the Mirassou Property.
(h) The District has no knowledge of any existing, pending, threatened or contemplated actions or circumstances that would materially interfere with the development of the District Property for residential purposes, other than as expressly stated in this Agreement.
If District becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by District hereunder, whether as of t he Effective Date or any time thereafter through the Closing Date, District will give immediate written notice of such changed fact or circumstance to Robson Homes, but such notice shall not release District of any liabilities or obligations with respect t hereto. For the purpose of the foregoing warranties and representations, the knowledge requirement shall be based on actual written notice to District's designated person in a form which would provide actual notice to a person without a duty of inquiry. Th e District's designated person is solely limited to Carrie Andrews personally and does not include her or any of District's agents, advisors or consultants.
5.2 Robson Homes' Representations and Warranties. Robson Homes hereby makes the following representations and warranties to District, each of which (i) is material and relied upon by District in making its determination to enter into this Agreement, (ii) is to the actual knowledge of Robson Homes true in all respects as of the Effective Date and shall be true in all respects on the Closing Date, and (iii) shall survive the Close of Escrow for eighteen (18) months. With respect to any warranty or representation set forth in Section 5.2(b) through (f), inclusive, related to the “Exchange Property” such representation and warranty shall only apply if the Exchange Property (i.e. , the property acquired by the District) is owned by Robson Homes (i.e., one of the Robson Homes Properties as defined in Section 1.2) :
(a) Robson Homes has full right, power, and authority to enter into this Agreement and to perform Robson Homes' obligations hereunder. This Agreement and all other documents delivered by Robson Homes to District now or at the Close of Escrow, have been or will be duly executed and delivered by Robson Homes and are legal, valid, and binding obligations of Robson Homes , sufficient to convey to District good and marketable title to the Exchange Property, if it is a Robson Homes Property, are enforceable in accordance with their respective terms, and do not materially violate any provision of any agreement to which Robson Homes is a Party.
(b) There are no pending or known threatened actions, suits, writs, inj unctions, decrees, legal proceedings or governmental investigations against or affecting the Exchange Property or relating to the ownership, maintenance, use or operation of the Exchange Property.
(c) Robson Homes has not received any written notices nor has a ny actual knowledge of any violation of any laws, ordinances, rules, regulations or requirements of any governmental agency, body or subdivision affecting or relating to the Exchange Property.
19 (d) There are no written leases, rights of first refusal, or other agreements relating to the right of possession and/or occupancy of the Exchange Property by any person or entity, except for matters of record approved by District pursuant to Section 2.5 above.
(e) Robson Homes is not actually aware that the Exchange Property , or Robson Homes, are in violation of any applicable Federal, State or local statute, ordinance, order, requirement, law, or regulation materially adversely affecting the Exchange Property or construction of any improvement thereon. Robson Homes has received no written notice of any such violation of applicable law.
District shall make its own independent determination of the feasibility of the use of the Exchange Property for District's intended use. (f) Robson Homes has not personally caused or knowingly permitted any contamination by Hazardous Materials (as defined in Section 4. 3 of this Agreement) to occur on, at, about, or within the Exchange Property, or any portion thereof, or otherwise knows of any such contami nation of Hazardous Materials on, at, about, or within the Exchange Property, or any portion thereof. (g) Robson Homes has not received any written notice from any governmental agency, or entity of, and has no knowledge of, any pending, threatened or contemplated action of eminent domain or any other public or quasi -public taking in connection with the Exchange Property, if the Exchange Property is owned by Robson Homes.
(h) Robson Homes has no knowledge of any existing, pending, threatened or contemplated actions or circumstances that would materially interfere with the District’s use of the Exchange Property, if the Exchange Property is owned by Robson Homes, other than as expressly stated in this Agreement.
If Robson Homes becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by Robson Homes hereunder, whether as of the Effective Date or any time thereafter through the Closing Date, Robson Homes will give immediate written notice of such changed fact or circumstance to District, but such notice shall not release Robson Homes of any liabilities or obligations with respect thereto. For the purpose of the foregoing warranties and representations , the knowledge requirement shall be based on actual written notice to Robson Homes' designated person in a form which would provide actual notice to a person without a duty of inquiry.
Robson Homes' designated person is solely limited to Mark Robson, personally, and does not include his/her or any of Robson Homes' agents, advisors or consultants.
5.3 Brokerage Commissions. Robson Homes and District, hereby each represent and acknowledge that Chris Twardus and Mark Kuiper of Colliers International have been engaged by Robson Homes as brokers or finders to represent them in connection with this Agreement and Robson Homes will bear the cost of any commission due to Chris Twardus and Mark Kuiper in accordance with the terms of a separate written agreement executed by the Robson Homes. Robson Homes and District hereby indemnify and hold the other free and harmless from and against any and all costs and liabilities including, without limitation attorneys' fees, for causes of action or proceedings which may be instituted by any other broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying Party in connection with this Agreement. The foregoing representation and indemnity shall survive the termination of this Agreement.
20 ARTICLE 6
DEFAULT
6.1 Liquidated Damages. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES
THE DISTRICT SHALL SUSTAIN AS A RESULT OF ANY SUCH A DEFAULT WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT
LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSITS TRANSFERRED TO THE ESCROW FOR THE EXCHANGE PROPERTY (AS SET FORTH IN SECTION 1.4) PLUS ANY INTEREST
THEREON, IF ANY, IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES THE DISTRICT WOULD SUFFER IN SUCH EVENT AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT.
ACCORDINGLY, IN THE EVENT OF ANY DEFAULT BY ROBSON HOMES AND PROVIDED THAT
THERE HAS BEEN NO FAILURE OF SATISFACTION OF A CONDITION PRECEDENT TO CLOSE
BENEFITING ROBSON HOMES UNDER THIS AGREEMENT AND R OBSON HOMES HAS FAILIED TO CURE ITS DEFAULT WITHIN THE 15 -DAY CURE PERIOD SET FORTH IN SECTION 4.1. 3,
DISTRICT SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT, AS ITS SOLE AND
EXCLUSIVE REMEDY , BY GIVING WRITTEN NOTICE TO ROBSON HOMES AND ESCROW HOLDER. IF THIS AGREEMENT IS TERMINATED AS SET FORTH HEREIN, THE PARTIES SHALL
BE RELIEVED OF THEIR OBLIGATIONS HEREUNDER EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE HEREIN, AND THE DEPOSITS TRANSFERRED TO THE ESCROW FOR THE EXCHANGE PROPERTY (AS SET FORTH IN SECTION 1. 4) PLUS ANY INTEREST THEREON, IF ANY SHALL BE RELEASED TO THE DISTRICT. ROBSON HOMES AND THE DISTRICT AGREE
THAT THE DISTRICT'S RIGHT TO RETAIN THE DEPOSITS THAT HAVE BEEN RELEASED TO THE DISTRICT (AS SET FORTH IN SECTION 1.4) PLUS ANY INTEREST THEREON, IF ANY,
SHALL BE THE SOLE REMEDY OF THE DISTRICT IN THE EVENT OF SUCH A DEFAULT UNDER THIS AGREEMENT BY ROBSON HOMES. THE PAYMENT OF SUCH AMOUNT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE §3275 OR §3369, BUT IS INT ENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE DISTRICT UNDER CALIFORNIA CIVIL CODE §§1671, 1676 AND 1677. THE DISTRICT WAIVES ANY RIGHT TO SPECIFICALLY ENFORCE ROBSON HOMES’ OBLIGATION TO PURCHASE THE
DISTRICT PROPERTY (INCLUDING WITHOUT LIMITATION THE PRO VISIONS OF CIVIL CODE SECTIONS 1680 AND 3389), AND WAIVES ANY RIGHT TO SEEK, CLAIM OR OBTAIN PUNITIVE
DAMAGES OR SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES OR REMEDY FOR SUCH A BREACH BY ROBSON HOMES. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT ROBSON HOMES’ LIABILITY TO THE DISTRICT UNDER THE INDEMNIFICATION IN SECTION 2.2 ABOVE OR FOR ATTORNEYS' FEES AND COSTS AS PROVIDED IN SECTION 7.3 BELOW. ANY AND ALL BREACHES OR DEFAULTS BY ROBSON
HOMES OF ANY NATURE OR KIND SHALL BE SUBJECT TO NO TICE AND RIGHT TO CURE WITHIN THE 15-DAY CURE PERIOD SET FORTH IN SECTION 4.1. 3.
DISTRICT’S INITIALS ____ ROBSON HOMES’ INITIALS ___
6.2 District's Default. In the event the District shall breach or default under any of the terms and provisions of this Agreement (after any applicable notice and 15 -day cure period set forth in Section 4.2. 1), Robson Homes shall have the right, but not the obligation, in addition to any other rights or remedies which it may have at law or in equity, to (a) terminate this Agreement and the Escrow created hereby , in which event the Deposits plus all interest thereon, and Robson Homes shall be entitled to the immediate refund of any funds deposited
21 by Robson Homes into Escrow or released to District for or related to the District Property, including all interest earned thereon; and thereafter neither Party will have any further rights or obligations hereunder except those which are expressly stated to survive such termination, or (b) pursue the right of specific performance to obtain the District Property. For clarification, Robson Homes shall have the right to terminate this Agreement and receive a return of the Deposits without prejudice to Robson Homes’ claims against the District for the District’s breach of this Agreement.
ARTICLE 7
MISCELLANEOUS
7.1 Costs of Inspections. All costs related to the Parties' due diligence inspections and testing, and production of and/or reproduction of the Due Diligence Materials shall be the sole responsibility of the Party expending such costs.
7.2 California Law. This Agreement shall be g overned by and the rights, duties and obligations of the parties shall be determined and enforced in accordance with the laws of the State of California.
7.3 Attorneys' Fees. If any Party files any action or brings any proceedings against the other(s) arising out of this Agreement, or is made a party to any action or proceeding brought by a third party in connection with this Agreement, then, as between the Parties, the prevailing party shall be entitled to recover, in addition to its costs of suit and dama ges, reasonable attorneys' fees to be fixed by the court. The “prevailing party” shall be the Party who is entitled to recover its costs of suit, whether or not suit proceeds to final judgment.
7.4 Notice. Any notice required or permitted to be given under this Agreement shall be deemed to have been given, served and received if given in writing and personally delivered or either deposited in the United States mail, registered or certified mail, postage pre paid, return receipt required, or sent by overnight delivery, or electronic mail addressed as follows:
To District: Union School District
5175 Union Avenue
San Jose, CA 95124
Attn: Carrie Andrews, Ph.D., Superintendent
With copy to: Dannis Woliver Kelley
200 California Street, Suite 400
San Francisco, CA 94111
Attn: Clarissa R. Canady, Esq.
To Robson: Robson Homes, LLC
2185 The Alameda, Suite 150
San Jose, CA 95126
Attn: Mark Robson
With copy to: Robson Homes, LLC
9532 E. Riggs Road
Sun Lakes, AZ 85284
Attn: Pamela Gulsvig, Legal Department
22 Any notice personally given shall be effective upon receipt. Any notice sent by overnight delivery service shall be effective the business day next following delivery thereof to the overnight delivery service. Any notice given by mail shall be effective three (3) business days after deposit in the United States mail. Copied recipients of notices may be provided their copies via email. If transmitted by email (with a PDF attachment), notice shall be given effective upon confirmation of transmission during normal business hours or, if transmission after normal business hours, then on the following business day.
7.5 Authority. The person(s) executing this Agreement warrant on behalf of the Parties hereto that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
7.6 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all Parties hereto, notwithstanding that all Parties are not signatories to the original or the same counterpart.
7.7 Assignment. No Party shall, voluntarily or by operation of law, assign, sublease, or otherwise transfer any of its rights or obligations under this Agreement, including, without limitation, transferring ownership of any Property to another Party (except as provided in this Agreement), without obtaining the prior written consent of the other Parties, which consent may be withheld by the other Parties in their sole discretion. The preceding sentence shall not apply to retaining agents, consultants or subcontractors to perform some of a Party’s obligations under this Agreement for and on behalf of such Party.
7.8 Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement.
7.9 Binding on Heirs. This Agreement shall be binding upon the Parties hereto and their respective heirs, representatives, transferees, successors, and assigns.
7.10 Time of the Essence. Time is of the essence for each provision of this Agreement in which time is an element.
7.11 Time. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or na tional holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act or notic e may be timely performed or given on the next succeeding day that is not a Saturday, Sunday or state or national holiday.
7.12 Cooperation with Further Documents. The Parties each acknowledge that it may be necessary to execute documents other than thos e specifically referred to in this Agreement to complete the transaction. All Parties hereby agree to cooperate with each other by executing such other documents or taking such other action as may be reasonably necessary to complete this transaction in ac cordance with the intent of the Parties as evidenced in this Agreement.
23 7.13 Condemnation. In the event the District Property is taken, in whole or in part, or designated to be taken by condemnation proceedings, or proceedings in lieu thereof, prior to the Close of Escrow, Robson Homes shall have until the close of escrow within which to elect to either cancel this Agreement and receive a refund of Robson Homes' deposit, together with all interest thereon, or to close escrow without reduction in the purchase price, in which event the District shall assign to Robson Homes all rights to condemnation awards.
7.14 Entire Agreement of Parties. This Agreement constitutes the entire Agreement among the parties and supersedes all prior discussions, negotiations and agreements, whether oral or written. This Agreement may be amended or modified only by a written instrument executed by the Parties.
7.15 Waiver. No waiver by any Party of any provision of this Agreement shall be considered a waiver of any other provision or of any subsequent breach of the same or any other provision, including the time for performance of any such provision. The exercise by a Party of any remedy provided in this Agreement or at law shall not prevent the exercise by that Party of any other remedy provided in this Agreement or at law or in equity, except as otherwise expressly provided in this Agreement.
7.16 District’s Board Approval. The District shall provide written notice to the other Parties and Escrow Agent of the adoption of the Resolution of Intention, along with a true and correct copy of the Resolution of Intention , as soon as reasonably possible following its adoption.
Escrow Agent is authorized by the Parties to insert as the Effective Date on the first page hereof the date Escrow Agent receives fully executed counterparts of this Agreement.
7.17 Incorporation of Recitals and Exhibits . The recitals and each attached exhibit are hereby incorporated herein by reference.
7.18 Effect of Recitals. The Recitals above are deemed true and correct, are hereby incorporated into this Section as though fully set forth herein, and the Parties acknowledge and agree that they are each bound by same.
7.19 Section References. Any reference to any section of this Agreement cited without a decimal includes all sections following the cited section. For example, a reference to Section 5 includes 5.1, 5.1(a) et seq.
7.20 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
7.21 Venue. Any actions or proceedings arising under, growing out of, or in any way related to this Agreement shall be instituted and prosecuted only in courts located in the County of Santa Clara, State of California, and each Party expressly waives its right, under part II, title IV of the California Code of Civil Procedure, to cause any such actions or proceedings to be instituted or prosecuted elsewhere.
7.22 Covenants to Survive Escrow. The covenants and agreements contained in this Agreement shall survive the Close of Escrow.
7.23 Conflicts of Interest. No director, officer, official, representative, agent or employee of District shall have any financial interest, direct or indirect, in this Agreement.
24 7.24 Nondiscrimination. There shall be no discrimination by the Parties against any person on account of race, color, religion, sex, marital status, national origin, or ancestry in the performance of their respective obligations under this Agreement.
7.25 Rights and Remedies are Cumulative. Except as may be otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of its right or remedies shall not preclude the exercise by it, at the same time or at different times, of any other rights or remedies for the same default or any other default by another Party.
7.26 Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party the Agreement shall forthwith be physically amended to make such insertion or correction. The foregoing shall not be read in a manner which works to strike or modify a negotiated term of this Agreement.
7.27 Parties Represented by Counsel. The Parties acknowledge that: (a) no Party is in a significantly disparate bargaining position in relation to any other party; and (b) the District and Robson Homes are each represented by legal counsel in connection with the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers, as of the Effective Date.
DISTRICT:
UNION SCHOOL DISTRICT
Signed:
Print Name:
Print Title:
ROBSON HOMES:
ROBSON HOMES, LLC.
Signed:
Print Name:
Print Title:
EXHIBIT A
EXHIBIT A
Legal Description of Mirassou Property
EXHIBIT A-1
EXHIBIT A-1
Visual Depiction of Mirassou Property
EXHIBIT A-1
EXHIBIT A-1
EXHIBIT A-2
EXHIBIT A-2
Legal Description of District Property
EXHIBIT A-3
EXHIBIT A-3
Legal Description of Exchange Property
EXHIBIT A-4
EXHIBIT A-4
Statement of Qualifications and Proposal
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT A-4
EXHIBIT B
EXHIBIT B
Grant Deed - Exchange Property
EXHIBIT B
EXHIBIT B-1
EXHIBIT B-1
Grant Deed – District Property
EXHIBIT B-1
EXHIBIT C
EXHIBIT C
Public Agency Certificate of Acceptance – District
EXHIBIT D
EXHIBIT D
Non-Foreign Affidavit – Exchange Property
FIFTH AMENDMENT TO EXCHANGE AGREEMENT Page 1 of 4
AND JOINT ESCROW INSTRUCTIONS
UNION SCHOOL DISTRICT
FIFTH AMENDMENT TO EXCHANGE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS FIFTH AMENDMENT TO EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“Fifth Amendment”) is entered into by and between the UNION SCHOOL DISTRICT, a public school district duly organized and validly existing under the Constitution and the laws of the State of California (“District”) and MANA CAMDEN FUND, LLC (“Mana”).
District and Mana are sometimes hereinafter referred to individually as a " Party" and collectively as the “Parties.” The effective date of this Fifth Amendment (“Effective Date”) shall be the date on which the last Party executes the Fifth Amendment.
RECITALS
WHEREAS, Mana’s predecessor and District entered into that Exchange Agreement and Joint Escrow Instructions effective April 24, 2023 (“ Exchange Agreement”) for a portion of the approximately 10.83 gross acres of land located at 5670 Camden Avenue, San Jose, CA 9 5124, and as more particularly described in the legal description attache d as Exhibit A to the Exchange Agreement and referred to in the Exchange Agreement as the “Cinnabar A Site” or “Cinnabar Site A”;
WHEREAS, Mana and District entered into that First Amendment to the Exchange Agreement and Joint Escrow Instructions effective June 13, 2023 (“First Amendment”); WHEREAS, Mana and District entered into that Second Amendment to the Exchange Agreement and Joint Escrow Instructions effective September 11 , 2023 (“ Second Amendment”);
WHEREAS, Mana and District entered into that Third Amendment to the Exchange Agreement and Joint Escrow Instructions effective February 13, 2024 (“Third Amendment”);
WHEREAS, Mana and District entered into that Fourth Amendment to the Exchange Agreement and Joint Escrow Instructions effective May 14, 2024 (“Fourth Amendment”) (collectively the Exchange Agreement, First Amendment, Second Amendment, Third Amendment, and Fourth Amendment are referred to herein as the “Agreement”); and WHEREAS, the development process has been unexpectedly delayed due to the slow processing by Public Works and Department of Transportation, the Parties wish to further amend the Agreement to extend the Closing Date in order to provide Mana with the additional time needed to obtain the necessary Entitlement approvals for the project.
NOW THEREFORE, in consideration of the covenants and agreements set forth in this Fifth Amendment, and the valuable consideration associated therewith, the Parties agree as follows:
FIFTH AMENDMENT TO EXCHANGE AGREEMENT Page 2 of 4
AND JOINT ESCROW INSTRUCTIONS
UNION SCHOOL DISTRICT
AGREEMENT
1. Except as otherwise defined herein, all defined terms in the Agreement shall retain the same definition herein.
2. Pursuant to Section 2.8 of the Agreement (as amended in the Fourth Amendment), the District is obligated to “obtain and deposit with Escrow Agent prior to Close of Escrow estoppel certificates for each Tenant/Little League in a form acceptable to and approved by Mana prior to expiration of the Due Diligence Period.” Mana and District hereby agree that the estoppel certificates shall be in the form attached hereto as Exhibit “A.”
3. The first sentence of Section 3.2 is hereby deleted in its entirety and replaced with the following:
“3.2 Close of Escrow; Closing Date. Escrow shall close
on or prior to the later of: (i) ninety (90) days after the San Jose Approval Date; or (ii) March 31, 202 6, if no
Mana Legal Action or Third Party Legal Action is
commenced; or (iii) ninety (90) days after the Conclusion of the Mana Legal Action or Third Party Legal Action, if a Mana Legal Action or Third Party Legal Action is
commenced (the "Closing Date"), unless mutually
extended by the Parties or extended by Mana Camden
through the Closing Extensions, as defined below,
provided that the conditions to Closing described in
Section 4 below have been satisfied.”
4. Pre-Sale Notice to Employees of the Unified School District. As a courtesy to the District and its employees, Mana agrees to provide advance notice (“Advance Notice”)to the District related to the marketing and sale of the first phase of the development so that employees may register on any available presale and/or prequalification lists as well as promptly submit purchase offers . T he Advance Notice will be sent to the District at the following address: 5175 Union Avenue San Jose, CA 95124. The Advance Notice shall set forth the marketing information of or related to the first phase of the Development including such information as a site plan, schedule of available units , and estimated purchase prices. The District shall be solely responsible for distributing that information to its employees. Nothing herein shall obligate the Developer to sell to any employee of the District; however, this advance information shall be provided as a courtesy to afford the employees an opportunity to inquire about purchasing a market rate unit. Mana’s inadvertent or unintentional failure to give Advance Notice shall not constitute a default under the Agreement.
5. Miscellaneous. Except to the extent expressly modified by this Fifth Amendment, the Agreement is ratified and remains in full force and effect. To the extent of any inconsistency between this Fifth Amendment and the Agreement, the terms and conditions of this Fifth Amendment shall control. This Fifth Amendment may be executed in multiple counterparts, which may be delivered and/or executed by electronic means, all of which, taken together, shall constitute one document.
IN WITNESS WHEREOF, the Parties hereto have caused this Fifth Amendment to be executed by their respective duly authorized officers, as of the Effective Date.
FIFTH AMENDMENT TO EXCHANGE AGREEMENT Page 3 of 4
AND JOINT ESCROW INSTRUCTIONS
UNION SCHOOL DISTRICT
DISTRICT:
UNION SCHOOL DISTRICT
Signed:
Print Name: Dr. Carrie Andrews
Print Title: Superintendent
Dated: _____________, 2025
MANA CAMDEN:
MANA CAMDEN FUND, LLC,
a Delaware limited liability company
Signed:
Print Name: Orville Power
Print Title: Member
Dated: ______________, 2025
September 11
FIFTH AMENDMENT TO EXCHANGE AGREEMENT Page 4 of 4
AND JOINT ESCROW INSTRUCTIONS
UNION SCHOOL DISTRICT
EXHIBIT “A”
ESTOPPEL CERTIFICATE
EXHIBIT A TO FIFTH AMENDMENT
FORM OF ESTOPPEL CERTIFICATE
UNION SCHOOL DISTRICT, a public school district duly organized and validly existing under the Constitution and the laws of the State of California (“District”) is the owner of the land located at 5670 Camden Avenue, San Jose, CA 95124 (the “Property”).
The District and MANA CAMDEN FUND, LLC (“Mana”) entered into that Exchange Agreement and Joint Escrow Instructions effective April 24, 2023 (“Agreement”) whereby Mana may purchase a portion of the Property.
Pursuant to Section 2.8 the Agreement, the District shall obtain and deposit with Escrow Agent (as defined in the Agreement) prior to Close of Escrow an estoppel certificate from each tenant (including any users such as Little League) confirming the terms and conditions of such parties rights regarding their occupancy or use of the Property so as to confirm there are in compliance with the Agreement and will vacate the Property in accordance with the Agreement. To that end, and for the benefit of Mana (and its successors and assigns), the undersigned represents, warrants and agrees as follows:
(1) The undersigned is the Lessee or Tenant under a lease agreement between the District, as Lessor, and _______________________________, as Tenant, dated _______________________, ________, covering the premises consisting of approximately ________ square feet of space of the Property (the "Leased Premises") described as follows:
___________________________. A copy of the fully executed lease agreement and all amendments or modifications thereto, if any (collectively, the "Lease"), are attached hereto. There are no other modifications or amendments to the Lease.
(2) There are no unfulfilled written or oral promises, representations or warranties by the Landlord.
(3) There are no subleases of the Leased Premises or any portion thereof.
(4) The term of the Lease shall expire __________ and Tenant has not right to occupy the Leased Premises after the aforementioned expiration date.
(5) The Lease is in good standing and in full force and effect. Landlord is not in default under the Lease; Tenant agrees to give notice of any Landlord default to Mana or any successor or assign making written request to Tenant for the same.
(6) Except for rents (if any) which may be due under the Lease for the current month, there are no rents or other charges which have been prepaid to Landlord under the Lease other than the following:
_________________________________________________________ _____________________________________________________________ _________________
_____________________________________________________________ ________________.
(7) The amount of security deposit currently posted by Tenant with Landlord is $____________ in the form of (__) cash, or (__) an irrevocable, unconditional letter of credit issued by
_________________________________ in favor of
____________________, as Landlord, which is still valid.
(8) Tenant acknowledges that the space being leased consists of ____________ rentable square feet, that the improvements to be constructed by Landlord, if any, in the Leased Premises have been satisfactorily completed, that the Leased Premises have been accepted by Tenant, that Tenant now occupies the Leased Premised, and that the commencement date for the term of the Lease was __________________, ___________.
(9) There are no rentals or other charges under the Lease which are due and unpaid. Rentals are fully paid (if required by the Lease) through the last day of the month in which this Estoppel Certificate has been executed.
(10) Tenant has no known offsets or credits against rentals or other charges under the Lease except as expressly provided by the terms of the Lease. Tenant has no known right of recession of the Lease or any defense to Tenant's future obligations to pay the specified rentals and other charges under the Lease at the times and in accordance with the Lease terms. Tenant has not received any concession (rental or otherwise) or similar compensation not expressed in the Lease.
(11) Tenant has no options or rights of refusal regarding (i) the purchase the Property or (ii) the leasing of the Leased Premises or additional space.
(12) Tenant acknowledges that this Estoppel Certificate and the statements therein may be conclusively relied upon by Landlord and by any prospective purchaser or lien holder of the Leased Premises.
(13) This agreement shall be binding upon and shall inure to the benefit of the Landlord, any present or future mortgagee, any prospective purchaser or master Lessee of the Property, and their successors and assigns.
EXECUTED this ____ day of ____________________, 20 2__.
___________________________________
(Name of Tenant)
By:
________________________________
Name:
______________________________
Title:
_______________________________
{SR402777}
UNION SCHOOL DISTRICT
Resolution No. 19-20-11
Before the Board of Trustees of the
Union School District
Santa Clara County, California
RESOLUTION MAKING FINDINGS REGARDING THE UNION SCHOOL DISTRICT
MAINTENANCE AND OPERATIONS BUILDING AND ADOPTING A MITIGATED
NEGATIVE DECLARATION AND A MITIGATION MONITORING PROGRAM
WHEREAS, the Board of Trustees (“Board”) of the Union School District (“District”) has received a Final Initial Study/Mitigated Negative Declaration (“IS/MND”) dated October 14, 2019, which is attached as Exhibit A and incorporated herein by reference for the proposed Union School District Maintenance and Operations Building (“Project”); and
WHEREAS, the Project that the District proposes to construct consists of a 6,500 square foot one-story Maintenance and Operations (“M&O”) building on the 32,000 square foot lot at 5670 Camden Avenue, San Jose, Santa Clara County. The M&O Building will house 9 employees. The building would contain two approximately 950 square foot shop spaces, about 3,850 square feet of parking/vehicle maintenance space, restrooms, a meeting room, offices, an electrical room, receiving room, reception area, and a breakroom. A new parking lot with 11 car parking spaces would be provided for the building staff plus paving of 8 parking spaces in the existing dirt lot. Construction is estimated to start in May 2020 and be completed by January 2021; and
WHEREAS, the public comment period on the IS/MND was duly and lawfully closed on November 16, 2019, following due notice to the public and all applicable public agencies and held a Board of Trustees meeting on October 14, 2019; and
WHEREAS, on December 9, 2019, the District administration held a Board of Trustees meeting to approval the filing of the final IS/MND report ; and
WHEREAS, the Board has independently reviewed and considered the IS/MND and has received no comments, written and oral, from persons who have reviewed the IS/MND; and
WHEREAS, the Board has independently reviewed and considered the mitigation measures identified in the IS/MND and listed in the Mitigation Monitoring Program set forth in Exhibit A; and
WHEREAS, the facts and findings regarding the Project set forth in this Resolution are supported by substantial evidence in the administrative record and by the IS/MND; and
WHEREAS, the IS/MND has identified all significant environmental effects of the Project and has identified all significant and known potentially significant impacts; and
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WHEREAS, the IS/MND has described reasonable mitigation measures that will reduce the potentially significant impacts to less than significant; and
WHEREAS, the IS/MND reflects the Board’s independent judgment and analysis on the potential for environmental impacts from the Project.
NOW, THEREFORE, BE IT RESOLVED that the Board of Trustees of the Union School District hereby finds, determines and orders as follows:
1. The foregoing recitals are true and correct and made a part of this Resolution.
2. CEQA
For every non-exempt public project, the California Environmental Quality Act (“CEQA”) generally requires the lead agency to prepare an initial study in order to determine the level of environmental review required for CEQA compliance. If the initial study indicates that the project will not result in significant adverse environmental impacts, the lead agency may adopt a “negative declaration.” (Pub. Res. Code § 21080(c).) If the initial study reveals substantial evidence that significant environmental impacts might occur, but also identifies mitigation measures that reduce those impacts to a level of less than significant, the lead agency may satisfy CEQA obligations with a “mitigated negative declaration.” (Pub. Res. Code §§ 21064.5 & 21080(d).) If the initial study reveals substantial evidence that significant environmental impacts might occur, and substantial evidence indicates that any identified mitigation measures would not reduce the impact to a level of less than significant, the lead agency must then prepare an “environmental impact report.” (Pub. Res. Code §§ 21002.1 & 21061.)
3. District Actions
In compliance with CEQA, the District prepared an initial study (“IS”) of the Project. The District held a Board of Trustees meeting for the preparation of the IS on October 14, 2019.
Moreover, in preparing the IS, the District consulted with the appropriate responsible and trustee agencies, including County of Santa Clara and Office of Planning and Research. The IS concluded that significant environmental impacts might occur, but also identified mitigation measures that reduced those effects to a point where the Project would have no significant effect on the environment.
Therefore, the District prepared the IS/MND and circulated it for public review. The public review period for the IS/MND began on October 15, 2019 and concluded on November 16, 2019. The District sent notices to all residents within 500 feet of Cinnabar Elementary School, that announced the release of the IS/MND, identified where it was available for review, and described the Project and its location. The notice also specified the date, time, and location of the Board of Trustees meetings regarding the Project and stated the period for submittal of comments on the contents of the IS/MND.
The District distributed the IS/MND to members of the public who requested a copy. Fifteen (15) copies of the IS/MND were provided to the State Clearinghouse at the Office of Planning
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and Research by overnight mail on October 16, 2019. Copies were also sent to County of Santa Clara. The IS/MND, and other materials pertinent to the Project, were made publicly available at the District office, on the District web site, and at the Santa Clara County Clerk Recorder’s Office.
The District received 0 letters of comment on the IS/MND. Further, a Board of Trustees meeting was held after the close of the public comment period on November 18, 2019, to receive additional oral comments on the IS/MND.
For purposes of CEQA and the findings set forth herein, the record of proceedings for the District decision on the Project includes, but is not limited to, the following documents or information:
- The IS/MND prepared for the Project;
- Other public notices in conjunction with the Project;
- All comments submitted by agencies and members of the public during the public comment periods for the IS/MND;
- The Mitigation Monitoring Program for the Project;
- All findings and resolutions previously adopted by the District in connection with the Project, and all documents cited or referred to therein;
- All reports, studies, memoranda (excluding confidential memoranda), maps, and other documents relevant to the Project prepared by the District, the District’s consultants, or responsible or trustee agencies with respect to the District’s compliance with the requirements of CEQA and with respect to the District’s action on the Project;
- All documents submitted to the District by agencies or members of the public in connection with the Project;
- Minutes, tape recordings and/or verbatim transcripts of all information sessions, public meetings, and Board of Trustees meetings held by the District in connection with the Project;
- Any documentary or other evidence submitted to the District at such public meetings and Board of Trustees meetings;
- Staff reports prepared by District staff and consultants relating to the Project; and
- Matters of common knowledge to the District.
The materials in the record are located at and available upon request at the District office.
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4. The Board makes the following findings for the Project in accordance with the California Environmental Quality Act (“CEQA”), Public Resources Code section 21081 and CEQA Guidelines, Title 14 of the California Code of Regulations section 15091.
A. Potentially Significant Effects Determined to be Mitigable to a Level of Insignificance. The Board finds that each of the following potential impacts identified in the IS/MND are potentially significant impacts that may feasibly be mitigated to a less than significant impact. The following effects from the implementation of the proposed Project that are identified in the IS/MND are further found to have been mitigated to a level of less than significant effect or no impact upon the existing physical environment. The measures that achieve this level of mitigation are identified below, followed by the findings of significance relevant to effects upon the Project after mitigation implementation.
3. Air Quality ( IS/MND, pp. 18-28.)
c) The modeled annual PM 2.5 (particulate matter) concentration from Project construction would be 0.471 µg/𝒎𝒎
𝟑𝟑(micrograms per cubic meter),
which substantially exceeds the Project-level CEQA threshold (0.3 µg/𝒎𝒎𝟑𝟑).
Implementation of mitigation measure AQ-1 would assure that annual average PM 2.5 (particulate matter) at the existing adjacent residential receptors due to Project construction would be well below the CEQA PM2.5 threshold (and would substantially reduce cancer risk and chronic hazard, as well). With this mitigation measure, this impact would be reduced to a less-than significant level.
Mitigation Measure AQ-1: The Project construction contractor shall implement the following measures to further reduce construction related diesel particulate exhaust emissions:
All off-road equipment greater than 25 horsepower (hp) and operating for more than 20 total hours over the entire duration of construction activities shall meet the following requirements:
• All engines shall be equipped with at least a CARB Level 2 Verified Diesel Emissions Control Strategy (VDECS) device.
5. Cultural Resources (IS/MND, pp. 32-34.)
b) An intensive archaeological inventory of the project area was conducted, and no cultural resources were encountered. However, it is important to note that surface pedestrian surveys cannot always determine what archaeological resources might be present in subsurface contexts. Such buried resources have
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the potential to be California Register of Historic Resources (CRHR)-eligible and as such any impacts to them would be considered a potentially significant impact.
Mitigation Measures CULT-1 would reduce this potentially significant impact to a less-than-significant level.
Although no historic or historic-era human remains have been identified within or near the project site, it is possible that presently undocumented human interments may be uncovered during excavation activities. Implementation of Mitigation Measures CULT-2 would reduce this impact to a less-than-significant level.
18. Tribal and Cultural Resources (IS/MND, pp. 62-64.)
a) i, ii On July 22, 2019, Ms. Katherine Erolinda Perez emailed Solano Archaeological Services stating that she had no information regarding Native American tribal resources in the project area but asked that the cultural resources report include an inadvertent discovery clause. The clause is incorporated into this Initial Study as Mitigation Measures CULT-1 and CULT-2.
Mitigation Measure CULT-1: Archaeological Deposits. If an inadvertent discovery of cultural materials (e.g. unusual amounts of shell, animal bone, bottle glass, ceramics, structure/building remains, etc.) is made during project-related construction activities, ground disturbances in the area of the find will be halted and a qualified profession archaeologist will be notified regarding the discovery. The archaeologist shall determine whether the resource is potentially significant as per the CRHR and develop appropriate mitigation.
Mitigation Measure CULT-2: Human Remains. In accordance with the California Health and Safety Code, if human remains are uncovered during ground disturbing activities all such activities in the vicinity of the find shall be halted immediately and the District or the District’s designated representative shall be notified. The District shall immediately notify the Santa Clara Sheriff/Coroner and a qualified professional archaeologist. The Sheriff/Coroner is required to examine all discoveries of human remains within 48 hours of receiving notice of a discovery on private or state lands (Health and Safety Code Section 7050.5[b]). If the coroner determines that the remains are those of a Native American, he or she must contact the Native American Heritage Commission by phone within 24 hours of making that determination (Health and Safety Code Section 7050 [c]). The responsibilities of the District for acting upon notification of a discovery of Native American human remains are identified in detail for the California Public Resources Code Section 5097.9. The District or their appointed representative and the professional archaeologist will consult with a Most Likely Descendent (MLD) determined by the NAHC regarding the removal or preservation and avoidance of the remains and determine if additional burials could be present in the vicinity.
7. Geology and Soils (I S/MND, pp. 34-38.)
a) ii) The site would be subject to very-strong ground shaking in the event of a major earthquake on any of the regional fault zones. This shaking could damage improperly constructed buildings and cause ground failures that also could affect
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the structure and infrastructure (these ground failures are discussed below). This impact is potentially significant but can be reduced to a less-than-significant level with the implementation of Mitigation Measure GEO-1.
iii) Cornerstone Earth Group evaluated the site fo r liquefaction potential and determined that it could be subject to total settlement of up to 0.75 inches, with differential settlement up to 0.5 inches on the site. Cornerstone evaluated the site for liquefaction potential and determined that it could be subject to total settlement of up to 0.75 inches, with differential settlement up to about 0.5 inches on the site. Cornerstone also evaluated the potential for lateral spreading on the site and determined it to be low.
The impact associated with liquefaction and differential settlement hazards would be reduced to a less-than-significant level by implementation of Mitigation Measure GEO-
2. Mitigation Measure GEO-1: The project structures and foundations shall be designed in accordance with the most recent version of the California Building Code. Recommended seismic coefficients provided in the Cornerstone report shall be included in the project design.
Mitigation Measure GEO-2: The project’s site clearing, site preparation, subgrade preparation and stabilization, fill, drainage, and foundation systems shall be designed and constructed per the specifications set forth on the project geotechnical report (Cornerstone 2019).
10. Hydrology and Water Quality (IS/MND, pp. 44-49.)
a, c, e) The Project site is relatively flat and mostly covered with crushed gravel and bare earth. Development of the proposed Project would require disturbance and light grading, as described in the Project Description. Minimal topographic changes would occur as a result of the project.
During construction activities, there would be a potential for surface water to carry sediment from on-site erosion and small quantities of pollutants into the City’s stormwater system and, ultimately, San Francisco Bay. Soil erosion may occur along Project boundaries during construction in areas where temporary soil storage may be required. Small quantities of pollutants may enter the storm drainage system, potentially degrading water quality. The project would include a storm-water bio-retention system that would filter out most of these pollutants.
Construction of the proposed Project also would require the use of gasoline and diesel- powered heavy equipment. Chemicals such as gasoline, diesel fuel, lubricating oil, hydraulic oil, lubricating grease, automatic transmission fluid, paints, solvents, glues, and other substances would be used during construction. An accidental release of any of these substances could degrade the water quality of the surface water runoff and add additional sources of pollution into the drainage system.
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Potentially contaminated runoff from the new impervious areas would occur.
Implementation of the Construction General Permit requirements, as well as Mitigation Measures HYD-1 and HYD-2, would reduce the other water quality impacts described above to a less-than-significant level.
Mitigation Measure HYD-1: Prior to the issuance of grading permits for the proposed Project, the Project engineers shall prepare a Stormwater Control Plan. The Stormwater Control Plan shall identify pollution prevention measures and practices to prevent polluted runoff from leaving the Project site.
Mitigation Measure HYD-2: The District shall maintain in perpetuity the post- construction BMPS listed in the Stormwater Operations and Management Plan. The District shall make changes and modifications to the Best Management Practices (“BMP”) to ensure peak performance. The District shall be responsible for costs incurred in operating, maintaining, repairing, and replacing the BMP. The District shall conduct inspection and maintenance activities and complete annual reports.
13. Noise (IS/MND, pp. 51-56.)
a) Potentially disturbing noise increments associated with development can occur temporarily during project construction and/or permanently after construction if the project would introduce new substantial noise sources to the site or in its vicinity.
To protect existing adjacent residents from substantial Project construction noise intrusions, the following measures shall be implemented as part of the project:
Mitigation Measure NOI-1: The following Best Management Practices shall be incorporated into the construction documents to be implemented by the Project contractor:
• Provide enclosures and noise muffler for stationary equipment, shrouding or shielding for impact tools, and barriers around particularly noisy activity areas on the site.
• Use quietest type of construction equipment whenever possible, particularly air compressors.
• Provide sound-control devices on equipment no less effective than those provided by the manufacturer.
• Locate stationary equipment, material stockpiles, and vehicle staging areas as far as practicable from sensitive receptors.
• Prohibit unnecessary idling of internal combustion engines. • Require applicable construction-related vehicles and equipment to use designated truck routes when entering/leaving the site. • Designate a noise disturbance coordinator at the District who shall be responsible for responding to complaints about noise during construction.
The telephone number of the noise disturbance coordinator shall be conspicuously posted at the construction site. Copies of the project
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purpose, description and construction schedule shall also be distributed to the surrounding residences.
After Project construction is complete, no substantial noise level increase will occur from Project operational sources, in this case exclusively motor vehicle traffic. The noise increment added by the introduction of the motor vehicles from the 1500 square feet of new office/maintenance space to local streets would have minimal noise impact (i.e., a fraction of a dBA).
17. Mandatory Fi ndings of Significance (IS/MND, pp.67.)
c) The proposed Project would not increase long-term air pollutant emissions and greenhouse gasses because it would not add any net new workers – Project workers are currently working at District facilities elsewhere in San Jose.
Mitigation measures for emissions from construction emissions would reduce any such emissions to less than significant levels. The project’s noise impacts also would be less than significant. The Project’s hazards to human health and safety would be less than significant. The impact would be reduced to less than significant with mitigation measures identified in this document.
5. The IS/MND for the Project has been completed and is in compliance with the provisions of CEQA, with State and local Guidelines implementing CEQA, and all other applicable laws and regulations.
6. The Board finds and declares that the IS/MND for the Project was presented to the Board and that the Board independently reviewed and considered the information contained in the IS/MND prior to approving the Project, as that Project is defined in the IS/MND.
7. Based upon its review of the IS/MND, the Board finds that the IS/MND for the Project is an adequate assessment of the potentially significant environmental impacts of the Project, as described in the IS/MND.
8. The Board has reviewed the findings regarding the Project, comments regarding the Project, and other relevant Project records. Based on the evidence contained therein, the Board finds and determines that, following implementation of the mitigation measures set forth in the IS/MND, there is no substantial evidence of a significant, unmitigated environmental impact caused by the Project.
9. The Board hereby adopts the IS/MND as complete and adequate under CEQA, and certifies that the IS/MND represents the independent judgment of the Board.
10. The Board hereby adopts the Mitigation Monitoring Program as complete a nd adequate.
PASSED, APPROVED AND ADOPTED by vote on December ___, 2019, by the Board of Trustees of the Union School District, Santa Clara County, State of California.
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AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: ___________________________ ____________________________ _____________, Superintendent _____________, President and Secretary to Board of Trustees Board of Trustees
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Exhibit A – Final Initial Study/Mitigated Negative Declaration and Mitigation Monitoring Program
UNION SCHOOL DISTRICT
5175 Union Avenue, San Jose, CA 95124
Phone: 408-377-8010 SUPERINTENDENT
www.unionsd.org Carrie Andrews, Ph.D.
April 16, 2026
VIA EMAIL
Thomas James Hislop
Re: Response to April 1, 2026, CA Public Records Act Request – 14 Day Extension
Dear Mr. Hislop:
The Union School District (“District”) is in receipt of your April 1, 2026, request for public records pursuant to the California Public Records (“Request”). Your Request seeks the following records:
● REQUEST NO. 1 - Terra Realty Advisors - Contracts
All contracts, agreements, amendments, purchase orders, invoices, and records of payment between Union School District and Terra Realty Advisors, Inc. (also known as Terra Advisors), and/or Scott Sheldon individually or in any capacity, from January 1, 2019 to present. This includes all compensation paid or owed, fee schedules, scope-of work documents, retainer or
success-fee arrangements, and any documentation of referral fees, finder's fees, or contingency payments related to the Cinnabar Site or any other District property.
● REQUEST NO. 2 - Communications - Superintendent Andrews and Scott Sheldon / Terra Realty Advisors
All emails, text messages, letters, memoranda, calendar invitations, meeting notes, and other written communications between Superintendent Carrie Andrews and Scott Sheldon and/or any representative of Terra Realty Advisors, Inc., from January 1, 2018 to present - including any communications predating a formal contractual relationship between the parties and any communications on personal or non-District devices or accounts that concern District business.
● REQUEST NO. 3 - Communications - Andrews, Sheldon, and Mana Investments / Orville Power
All emails, text messages, letters, memoranda, and other written communications between:
(a) Superintendent Carrie Andrews and Orville Power and/or any representative of Mana Investments, Inc. or Mana Camden Fund LLC, from January 1, 2019 to present; and
(b) Scott Sheldon and/or Terra Realty Advisors, Inc. and Orville Power and/or any representative of Mana Investments, Inc. or Mana Camden Fund LLC, related to any Union School District property, from January 1, 2019 to present.
FOUNDATION FOR EXCELLENCE
________________________________________________________________________________________ BOARD OF TRUSTEES Sheila Billings - Vickie Brown - Aengus Linehan - Jennifer Petroff - Thomas E. Rossmeissl
● REQUEST NO. 4 - Prior Developers - lnSite Property Group and ROEM Development Corporation
All contracts, exchange agreements, letters of intent, correspondence, communications, board authorizations, and records related to any agreement or proposed agreement between Union School District and lnSite Property Group and/or ROEM Development Corporation concerning the Cinnabar Site - including all records related to the negotiation, execution, and cancellation or termination of those agreements. This request includes any communications between District staff, Board members, or advisors (including Scott Sheldon / Terra Realty Advisors) and representatives of lnSite Property Group or ROEM Development Corporation.
● REQUEST NO. 5 - Developer Selection - Cinnabar Site (5670 Camden Avenue) All Request for Qualifications (RFQ) or Request for Proposals (RFP) documents, solicitation records, scoring sheets, evaluation criteria, selection committee notes, meeting minutes, correspondence, and board authorizations related to the consideration and selection of any developer for the Cinnabar Site -including but not limited to lnSite Property Group, ROEM Development Corporation, and Mana Investments, Inc. / Mana Camden Fund LLC. If no formal RFQ or RFP was issued for any developer selection, please state that in writing.
● REQUEST NO. 6 - Surplus Property and Naylor Act Compliance - Cinnabar Site All records, notices, correspondence, and documentation reflecting compliance -or analysis of compliance -with the Surplus Land Act (Gov. Code§ 54220 et seq.) and the Naylor Act (Pub.
Resources Code§ 5540) with respect to the Cinnabar Site, including: (a) any notices of availability sent to the City of San Jose, Santa Clara County, or any park or recreation district; (b) any legal analysis or opinions regarding the applicability of the Naylor Act to the Cinnabar Site; and (c) any internal communications regarding whether the Cinnabar Site transfer qualified as a sale or an exchange under Education Code § 17536.
● REQUEST NO. 7 - Board Resolution of Intent and August 2022 Authorization All records related to the Board's August 2022 Resolution of Intent to dispose of the Cinnabar Site, including the full agenda packet, staff reports, supporting materials, public notice documents, meeting minutes, and any legal opinions or analyses provided to the Board in connection with that action.
● REQUEST NO. 8 - April 2023 Board Resolution - Mana Camden Fund LLC Exchange Agreement
All records related to Board Resolution No. 22-23-16 (adopted April 17, 2023), including the full executed Exchange Agreement between Union School District and Mana Camden Fund LLC, all exhibits and attachments thereto, the full agenda packet and staff report, supporting appraisals or valuations, Chicago Title escrow instructions and escrow agreements, and any amendments or modifications to the Exchange Agreement entered into since April 2023.
● REQUEST NO. 9 - Scott Sheldon and Terra Realty Advisors - Prior School District Engagements
All records reflecting or describing any prior or concurrent engagement, contract, advisory relationship, or referral arrangement between Scott Sheldon and/or Terra Realty Advisors, Inc. and any other California school district, including any marketing proposal materials submitted to the District describing Terra Realty's services or experience with other districts. This request is limited to records in the District's possession, custody, or control.
FOUNDATION FOR EXCELLENCE
________________________________________________________________________________________ BOARD OF TRUSTEES Sheila Billings - Vickie Brown - Aengus Linehan - Jennifer Petroff - Thomas E. Rossmeissl
Upon reviewing the numerous categories of records demanded in your Request, and as permitted under the California Public Records Act, the District must extend the time to respond to your request by fourteen (14) days. The circumstances warranting this extension are the need to search for the requested records and collect any non-confidential and non-privileged records from various sources, which will require searching for, collecting, and appropriately examining a voluminous amount of separate and distinct records. (Gov. Code, §§ 7922.535(c)(1)-(c)(2).)
Therefore, the District will provide a determination regarding your Request no later than April 30, 2026.
If you have any questions regarding our response to your public records request, please contact me.
Sincerely,
Dr. Carrie Andrews
Superintendent
Union School District
FOUNDATION FOR EXCELLENCE
________________________________________________________________________________________ BOARD OF TRUSTEES Sheila Billings - Vickie Brown - Aengus Linehan - Jennifer Petroff - Thomas E. Rossmeissl
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Director of Planning and Investigations
California Housing Defense Fund
CalHDF is grant & donation funded
Donate today - https://calhdf.org/donate/
Apr 28, 2026
City of San José
200 E. Santa Clara Street
San Jose, CA 95113
By Email:
CC:
Re: Proposed Housing Development Project at 5670 Camden Avenue
Dear San José City Council,
The California Housing Defense Fund (“CalHDF”) submits this letter to remind the City of its obligation to abide by all relevant state laws when evaluating the proposed 108-unit housing development project, including eight extremely low-income units, located at 5670 Camden Avenue. These laws include the Housing Accountability Act (“HAA”), SB 330, and the Density Bonus Law (“DBL”).
Under the HAA,1 a city may not disapprove a qualifying affordable housing project (i.e., a housing development project that provides a certain percent of the total units to lower-income households, as defined by Health and Safety Code Section 50079.5) on the grounds it does not comply with the city’s zoning and general plan if the developer submitted either a statutorily defined "preliminary application" or a "complete development application" while the city's housing element was not in substantial compliance with state law. (See Gov. Code, § 65589.5, subds. (d)(5), (h)(5), (o)(1).2) This statutory provision temporarily suspends the power of non-compliant municipalities to enforce their zoning rules against 2 These code section numbers correspond to the HAA as it existed when the preliminary application for the project at issue was submitted (i.e. before AB 1893 went into effect). 1 AB 1893, effective January 1, 2025, has amended the “Builder’s Remedy” provisions of the HAA.
However, the AB 1893 allows for vested Builder’s Remedy applications to proceed under the previous version of the law.
2201 Broadway, Oakland, CA 94612
www.calhdf.org
qualifying affordable housing projects. (See, e.g., California Housing Defense Fund v. City of La Cañada Flintridge, Case Number: 23STCP02614 (attached), for a recent court decision affirming the plain language of the statute in this regard.) The City’s Housing Element was not in substantial compliance with state law when the preliminary application under SB 330 was submitted. The City must therefore allow the project to be developed as proposed.
CalHDF also writes to emphasize that the DBL offers the proposed development certain protections. The City must respect these protections. In addition to granting the increase in residential units allowed by the DBL, the City must not deny the project the proposed waivers and concessions with respect to rear setbacks. If the City wishes to deny requested waivers, Government Code section 65915, subdivision (e)(1) requires findings that the waivers would have a specific, adverse impact upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. If the City wishes to deny requested concessions, Government Code section 65915, subdivision (d)(1) requires findings that the concessions would not result in identifiable and actual cost reductions, that the concessions would have a specific, adverse impact on public health or safety, or that the concessions are contrary to state or federal law. The City, if it makes any such findings, bears the burden of proof. (Gov. Code, § 65915, subd. (d)(4).) Of note, the DBL specifically allows for a reduction in required accessory parking in addition to the allowable waivers and concessions. (Id. at subd. (p).) Additionally, the California Court of Appeal has ruled that when an applicant has requested one or more waivers and/or concessions pursuant to the DBL, the City “may not apply any development standard that would physically preclude construction of that project as designed, even if the building includes ‘amenities’ beyond the bare minimum of building components.” (Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 775.)
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. New housing such as this is a public benefit: it will provide badly-needed affordable housing; it will bring new customers to local businesses; and it will reduce displacement of existing residents by reducing competition for existing housing. While no one project will solve the statewide housing crisis, the proposed development is a step in the right direction. CalHDF urges the City to approve it, consistent with its obligations under state law.
CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households. You may learn more about CalHDF at www.calhdf.org.
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