HomeMy WebLinkAboutR43-Economic Development Agency
CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
FROM: Emil A. Marzullo
Interim Executive Director
SUBJECT:
Consent and approval of the 2008 Real
Property Acquisition Agreement for
Disposition of Property at 247 West 3" Street
to the State of California (Central City East
Redevelopment Project Area)
DATE: April 10,2008
Svnoesis of Previous Commission/Council/Committee Action{sl:
On April 10, 2008, Redevelopment Committee Members Estrada, Johnson and Baxter unanimously voted to recommend that
the Community Development Commission consider this action for approval.
Recommended Motion(s):
(Mavor and Common Council)
A: Resolution of the Mayor and Common Council of the City of San Bernardino consenting to the disposition of
property located at 247 West 3" Street, San Bernardino (APN: 0135-221-22) to the State of California pursuant to the
2008 Real Property Acquisition Agreement (Central City East Redevelopment Project Area)
(Community Deve.Doment Commission)
B: Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing
the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute
the 2008 Real Property Acquisition Agreement by and between the Agency and the State of California (Central City
n_____!'!!S_U~,,,_d_e-"_e!gE~,,l1l}~~oj,,ctAr,,a)____________________uun_______________________________n____________________________Un_____________________________
Contact Person(s):
Project Area(s):
Colin Strange
Central City East Redevelopment Area
Phone:
(909) 663-1044
Ward(s):
Supporting Data Attached:
o Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s)
FUNDING REQUIREMENTS:
Amount: $
N/A
Source:
Budget Authority:
N/A
N/A
"GNA'O" 2~
Emil A. Marzullo, Interim Executive Director
Fiscal Review: z::..l--.L\. ~ CLA 0 -=-'-/7 ~I ;:7
Barbara Lindseth, Administrative Services
Commission/Conncil Notes:
P:\Agendas\Comm Dev CommissionlCDC 2008\04-21-08 COlin House -247 West 3rd Street Acquisition Agreement SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 04/21/2008
Agenda Item Number:R 43
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
CONSENT AND APPROVAL OF THE 2008 REAL PROPERTY ACQUISITION AGREEMENT
FOR DISPOSITION OF PROPERTY AT 247 WEST 3RD STREET TO THE STATE OF
CALIFORNIA (CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA)
BACKGROUND:
On January 4, 1996, the Redevelopment Agency of the City of San Bernardino ("Agency") entered into a
Construction Project Management Agreement ("Agreement") with the State of California ("State") for the
development of the new Caltrans office building and parking structure on the Agency owned property
located at the northeast comer of 4th and "E" Streets in downtown San Bernardino. Pursuant to this
Agreement, the State was not required to pay for the property at the time of construction, but instead was
obligated to pay the Agency the amount of $6,516,856 for the property at some future undetermined date
allocated between Caltrans in the amount of $3,835,356 and the State of California, Department of General
Services ("DGS") in the amount of $2,681 ,500.
In May of 2000, the Agency entered into an agreement for the purchase and sale of the property at 247
West 3'd Street, upon which the previous Caltrans facility (the "Property") had been located. The
consideration for this 7.7 acre parcel was $2,700,000 in the form of a credit against the amount owed by
Caltrans to the Agency.
On December 3, 2001, the Mayor and Common Council of the City of San Bernardino ("Council") adopted
Resolution No. 2001-367 which confirmed the intent of the Agency to donate this property, at the
appropriate time, for the purpose of constructing a new Superior Court Facility. Since that time, 1/3 of the
northern section of the Property has been improved as a parking lot to accommodate the needs of the
temporary court annex at 303 West 3'd Street, and a portion of the unimproved surface as a transfer station
for Strongbow Construction as they undertake the seismic retrofit of the 1926 historical courthouse on
Arrowhead Avenue.
CURRENT ISSUE:
The Administrative Office of the Courts ("AOC") is the staff agency of the Judicial Council of the State of
California responsible for the implementation of trial court facilities since the adoption of the Trial Court
Facilities Act of 2002, which shifted governance of California courthouses from the counties to the State in
2004.
Currently, San Bernardino's 34 court rooms are seriously inadequate, overcrowded, in poor physical
condition and lacking security. In addition, the population of the County has nearly doubled since 1980
seriously increasing the load on the County's Superior Court system. Following years of intense lobbying
by a number of high ranking San Bernardino officials, the AOC has received the State's approval to
proceed with the construction of a new court facility on the Agency Property in downtown San Bernardino
which will increase the total number of courtrooms in San Bernardino to 47 upon completion of the new
facility.
P:\Agendas\Comm Dev CommissionlCDC 2008\04-21-08 Court House -247 West 3rd Street Acquisition Agreement SR.drn:
COMMISSION MEETING AGENDA
Meeting Date: 0412112008
Agenda Item Nnmber:
Economic Development Agency Staff Report
Court House - 247 West 3r. Street Acquisition Agreement
Page 2
The new court facility will:
. Consist of36 courtrooms, Office of the Clerk of the Court, Executive Offices, security operations
and holding areas.
. Be 356,000 square foot in size and 12 stories high with 425 parking spaces.
. Cost approximately $303 million to construct and equip.
. Conform to Leadership in Energy and Environmental Design ("LEED") silver certification.
The Agreement contains the following major points.
. The Agency will dispose of the Property to the State for the sum of$1.00.
. The Agency will relocate the sewer line that traverses the Property to the Property perimeter.
. The State will be responsible for any environmental remediation to the Property.
. The State will commence construction of the new facility on the Property as described above within
5 years
. In the event that the State has not commenced construction on the Property within the time period
specified, the Property shall revert back to the Agency for the sum of $1.00.
Not only will this prestigious new building enable the Superior Court to improve the efficiency of its
operations, offer new services, serve more court visitors and relieve the court backlog; it will serve as a
vital component in the revitalization of downtown San Bernardino. This new facility is one of the
cornerstones of the Urban Land Institute's recommendations, will attract literally thousands of
additional visitors to downtown annually and will no doubt playa key role in attracting prestigious law
firms to a downtown location in the future.
ENVIRONMENTAL IMPACT:
The recommendation contained in this Staff Report is for approval of the Agreement only. As such, it is
exempt from the California Environmental Quality Act ("CEQA") pursuant to Chapter 2.6, Section 21080
of the Public Resources Code, CEQA Statutes, and Section 1506I(b)(3), Review For Exemptions, of the
CEQA Guidelines.
FISCAL IMPACT:
While the Agency proposes selling the Property to the State for the sum of $1, the transaction in fact
represents a land write down in the amount of $2,700,000.
RECOMMENDATION:
That the Mayor and Common Council and the Community Development Commission adopt the
~
Emil A. Marzullo, Interim Executive Director
P\Agendas\Comm Dev Commission\CDC 2008\04-21-08 Coun House -247 West 3rd Street Acquisition Agreement SR.doc COMMISSION MEETING AGENDA
Meeting Date: 04/21/2008
Agenda Item Number:
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO CONSENTING TO THE DISPOSITION OF
PROPERTY LOCATED AT 247 WEST 3RD STREET, SAN BERNARDINO
(APN: 0135-221-22) TO THE STATE OF CALIFORNIA PURSUANT TO THE
2008 REAL PROPERTY ACQUISITION AGREEMENT (CENTRAL CITY
EAST REDEVELOPMENT PROJECT AREA)
WHEREAS, the City of San Bernardino (the "City") is a municipal corporation and charter
city, duly organized and existing pursuant to the provisions of the constitution of the State of
9
California; and
10
11
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a
public body, corporate and politic existing under the laws of the State of California, Health and
12
Safety Code 33100, and is charged with the mission of redeveloping blighted and underutilized
13
land; and
14
15
WHEREAS, the current Superior Court is situated in a facility built in 1926 as a County
Administrative Center and consists of 34 courtrooms which are seriously inadequate, overcrowded,
16
in poor physical condition and lacking security; and
17
18
WHEREAS, the Agency is the current owner of that certain real property consisting of
approximately 7.7 acres (APN: 0135-221-22) located at 247 West 3rd Street which is bounded by 3rd
19
Street to the north, Arrowhead A venue to the west and 2nd Street to the south (the "Property") in the
20
Central City East Redevelopment Project Area ("Project Area"); and
21
22
WHEREAS, the Agency is entering into a 2008 Real Property Acquisition Agreement (the
"Agreement") for the disposition of the Property with the State of California Administrative Office
23
of the Courts (the "AOC"), pursuant to which the Agency will sell the Property to the AOC for a
24
purchase price of $1.00; and
25
26
WHEREAS, the dollar amount that is to be received by the Agency is less than the fair
market value of the Property by reason of the expectation of the parties that the AOC will construct
27
a new courthouse on the site; and
28
I
P:\Agendas\Resolutions\Resoll.ltions\2008\04-21_08 Courthouse - 247 West 3rd Street MCC Reso.doc
DLI-.)I- 08
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1 WHEREAS, the sales price represents the Agency's contribution to the courthouse project as
2 adopted by the Mayor and Common Council of the City of San Bernardino ("Council") on
3 December 2, 2001, which confirmed the intent of the Agency to donate the property at the
4 appropriate time for the purpose of providing for the construction of a new Superior Court Facility;
5 and
6 WHEREAS, the Agreement provides for the development of the Property to be developed
7 into a new Courthouse with 36 new courtrooms, Office ofthe Clerk of the Court, Executive Offices,
8 security operations and holding areas with 485 parking spaces totaling approximately 356,000
9 square feet with a 12 story building costing approximately $303 million (the "Project"); and
10 WHEREAS, the Agency has prepared and published a notice of joint public hearing in the
11 Sun newspaper on April 7 and 14, 2008, regarding the consideration and approval of the Agreement;
12 and
13 WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency may transfer
14 the Property to the AOC subject to the Council and the Community Development Commission of
15 the City of San Bernardino ("Commission") adopting separate Resolutions authorizing the Agency
16 to transfer the Property in light of the findings set forth herein, pursuant to Health and Safety Code
17 Section 33433; and
18 WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety
19 Code Section 33433 ("Report") that describes the salient points of the Agreement and identifies the
20 cost of the Agreement to the Agency; and
21 WHEREAS, the approval and execution of the Agreement by the Agency is exempt from
22 the California Environmental Quality Act ("CEQA") pursuant to Chapter 2.6, Section 21080 of the
23 Public Resources Code, CEQA Statutes, and Section 15061 (b)(3); and
24 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY
25 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
26 FOLLOWS:
27 Section 1. On April 21, 2008, the Council conducted a full and fair joint public hearing with
28 the Commission, as the governing board of the Agency, relating to the disposition of the Property
2
P\Agendas\ResolutionsIResolutions\2008\04-21-08 Courthouse - 247 West 3rd Street Mec ResQ,doc
1 from the Agency to the AGC and the development thereof pursuant to the Agreement. The minutes
2 of the City Clerk for the April 21, 2008, meeting of the Council shall include a record of all
3 communication and testimony submitted to the Council by interested persons relating to the public
4 hearing and the approval of the Agreement.
5
Section 2.
The Council hereby receives and approves the Report and the other written
6 materials submitted to the Council at the meeting at which this Resolution is adopted. The Report
7 contains information required under Health and Safety Code Section 33433.
8
Section 3.
This Resolution is adopted in order to satisfy the provisions of Health and
9 Safety Code Section 33433(a)(1) and (b)(2) related to the disposition of the Property to the AGC in
10 accordance with the Agreement and the Council hereby approves the transfer of the Property to the
11 AGC pursuant to the Agreement for the consideration as provided therein. The Council hereby
12 finds and determines as follows: the Report contains the information described in Health and Safety
13 Code Section 33433(b )(2) wherein the Property is being sold to the AGC at the purchase price of
14 $1.00 for the development of a new Superior Courthouse Facility which consideration is less than
15 the fair market value determined at its highest and best use in accordance with the Redevelopment
16 Plan by reason of the expectation of the parties that the AGC will likely comply with the provisions
17 of the Agreement and construct the new Courthouse for the benefit of the entire County and that the
18 expectation by the Council that the Agency shall contribute to this public project per Resolution
19 No. 2001-367.
20
Section 4.
This Resolution shall take effect upon its adoption and execution III the
21 manner as required by the City Charter.
22 III
23 III
24 III
25 III
26 III
27 III
28 III
3
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO CONSENTING TO THE DISPOSITION OF
PROPERTY LOCATED AT 247 WEST 3RD STREET, SAN BERNARDINO
(APN: 0135-221-22) TO THE STATE OF CALIFORNIA PURSUANT TO THE
2008 REAL PROPERTY ACQUISITION AGREEMENT (CENTRAL CITY
EAST REDEVELOPMENT PROJECT AREA)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
7 held on the day of
8 Council Members: Aves
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17
18
meeting thereof,
, 2008, by the foIIowing vote to wit:
Navs
Abstain
Absent
Rachel G. Clark, City Clerk
day of
,2008.
19 The foregoing Resolution is hereby approved this
20
21
22
Patrick J. Morris, Mayor
City of San Bernardino
23 Approved as to Form:
24 I:
25 By:
26
27
28
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE 2008 REAL PROPERTY ACQUISITION
AGREEMENT BY AND BETWEEN THE AGENCY AND THE STATE OF
CALIFORNIA (CENTRAL CITY EAST REDEVELOPMENT PROJECT
AREA)
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a
public body, corporate and politic existing under the laws of the State of California, Health and
Safety Code 33100, and is charged with the mission of redeveloping blighted and underutilized
land; and
WHEREAS, the Agency is the current owner of that certain real property consisting of
approximately 7.7 acres (APN: 0135-221-22) located at 247 West 3'd Street which is bounded by 3'd
13
Street to the north, Arrowhead Avenue to the west and 2nd Street to the south (the "Property") in the
14
Central City East Redevelopment Project Area ("Project Area"); and
15
WHEREAS, the current Superior Court is situated in a facility built in 1926 as a County
16
17
18
19
Administrative Center and consists of 34 courtrooms which are seriously inadequate, overcrowded,
in poor physical condition and lacking security; and
WHEREAS, the Agency is entering into a 2008 Real Property Acquisition Agreement (the
"Agreement") for the disposition of the Property with the State of California Administrative Office
of the Courts (the "AOC"), pursuant to which the Agency will sell the Property to the AOC for a
purchase price of$1.00; and
WHEREAS, the dollar amount that is to be received by the Agency is less than the fair
market value of the Property by reason of the expectation of the parties that the AOC will construct
20
21
22
23
24
25
26
27
28
a new courthouse on the site; and
WHEREAS, the sales price represents the Agency's contribution to the courthouse project as
adopted by the Mayor and Common Council of the City of San Bernardino ("Council") on
December 2, 2001, which confirmed the intent of the Agency to donate the property at the
1
P\Agendas\Resolutions\Resolutions\2008\04-21-08 COllnhouse - 247 West 3rd Street CDC Reso.doc
, .(-:
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124313
1 appropriate time for the purpose of providing for the construction of a new Superior Court Facility;
2 and
3 WHEREAS, the Agreement provides for the development of the Property to be developed
4 into a new Courthouse with 36 new courtrooms, Office ofthe Clerk of the Court, Executive Offices,
5 security operations and holding areas with 485 parking spaces totaling approximately 356,000
6 square feet with a 12 story building and costing approximately $303 million (the "Project"); and
7 WHEREAS, the Agency has prepared and published a notice of joint public hearing in the
8 Sun newspaper on April 7 and 14,2008, regarding the consideration and approval of the Agreement;
9 and
10 WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency may transfer
11 the Property to the AOC subject to the Council and the Community Development Commission of
12 the City of San Bernardino ("Commission") adopting separate Resolutions authorizing the Agency
13 to transfer the Property in light of the findings set forth herein, pursuant to Health and Safety Code
14 Section 33433; and
15 WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety
16 Code Section 33433 ("Report") that describes the salient points of the Agreement and identifies the
17 cost of the Agreement to the Agency; and
18 WHEREAS, the approval and execution ofthe Agreement by the Agency is exempt from the
19 California Environmental Quality Act ("CEQA") pursuant to Chapter 2.6, Section 21080 of the
20 Public Resources Code, CEQA Statutes, and Section 15061 (b)(3); and
21 WHEREAS, it is appropriate for the Commission to take action with respect to the
22 disposition of the Property to the AOC by the Agency and to approve the Agreement as set forth in
23 this Resolution
24 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
25 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
26 FOLLOWS:
27 Section 1. On April 21, 2008, the Council conducted a full and fair joint public hearing
28 with the Commission, as the governing board of the Agency, relating to the disposition of the
2
P:\Agendas\Resolutions\Resolulions\2008\04-21-08 Courthouse - 247 West 3rd Street CDC Reso.doc
1 Property from the Agency to the AOC and the development thereof pursuant to the Agreement. The
2 minutes of the Agency Secretary for the April 21, 2008, meeting of the Commission shall include a
3 record of all communication and testimony submitted to the Commission by interested persons
4 relating to the public hearing and the approval of the Agreement.
5
Section 2.
The Commission hereby receives and approves the Report and the other
6 written materials submitted to the Commission at the meeting at which this Resolution is adopted.
7 The Report contains information required under Health and Safety Code Section 33433.
8
Section 3.
This Resolution is adopted in order to satisfy the provisions of Health and
9 Safety Code Section 33433(a)(I) and (b)(2) related to the disposition ofthe Property to the AOC in
10 accordance with the Agreement. The Commission hereby finds and determines as follows: the
11 Summary Report contains the information described in Health and Safety Code Section
12 33433(b)(2) wherein the Property is being sold to the AOC at the purchase price of $1.00 for the
13 development of a new Superior Court Facility which consideration is less than the fair market value
14 determined at its highest and best use in accordance with the Redevelopment Plan by reason of the
15 expectation of the parties that the AOC will likely comply with the provisions of the Agreement
16 and construct the new Courthouse for the benefit of the entire County and that the expectation by
17 the Council that the Agency shall contribute to this public project per Resolution No. 2001-367.
18
Section 4.
The Commission hereby approves the Agreement and the Interim Executive
19 Director is hereby authorized and directed to execute the Agreement on behalf of the Agency
20 together with nonsubstantive and conforming changes as may be recommended by the Interim
21 Executive Director and the Agency Counsel. The Interim Executive Director is hereby authorized
22 to take all appropriate actions as set forth in the Agreement to implement the disposition and
23 redevelopment of the Property.
24
25 / / /
26 / / /
27 / / /
28 / / /
Section 5.
This Resolution shall become effective immediately upon its adoption.
3
P:\Agendas\Resolutions\Resolulions\2008\04-21-08 Courthouse - 247 West 3rd Street (,DC Reso,doc
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE 2008 REAL PROPERTY ACQUISITION
AGREEMENT BY AND BETWEEN THE AGENCY AND THE STATE OF
CALIFORNIA (CENTRAL CITY EAST REDEVELOPMENT PROJECT
AREA)
2
3
4
S
6
7
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
8 Development Commission of the City of San Bernardino at a
, 2008, by the following vote to wit:
meeting
Nays
Abstain
Absent
19
Secretary
20
21
day of
,2008.
The foregoing Resolution is hereby approved this
22
23
24
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
2S Approved as to Form:
26 ~
27 By: ~
Agency Co nsel
28
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Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
455 Golden Gate Avenue, San Francisco, CA 94102-3688
Project:
Location:
Assessor Parcel No.:
Title Order No.:
New San Bernardino Courthouse
City of San Bernardino, County of San Bernardino, State of California
135-221-22
71016451-X14; NBU 80702375-52
REAL PROPERTY ACQUISITION AGREEMENT
This Real Property Acquisition Agreement ("Agreement") is entered into by the
undersigned parties as of April 21" 2008 (the "Effective Date"), and in consideration of the
mutual covenants and agreements contained herein, and for good and valuable consideration,
the undersigned parties agree to the following terms and conditions:
1. PARTIES.
1.1. Seller. The "Seller" hereunder is the REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO, a public body, corporate and politic.
1.2. Buyer. The "Buyer" hereunder is THE STATE OF CALIFORNIA, on behalf of
THE JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF THE COURTS.
2. COMPOSITION OF AGREEMENT; DEFINED TERMS.
2.1. Composition of Agreement. This Agreement is comprised of, and includes, all of
the following exhibits and/or addenda, each of which is incorporated into and forms a part of this
Agreement for all purposes:
Exhibit A - Map of Land
Exhibit B - Legal Description of Land
Exhibit C - Form of Grant Deed and Certificate of Acceptance
Exhibit D - Location of Existing Sewer Line
2.2. Defined Terms. Capitalized terms used in this Agreement shall have the
meanings ascribed to them herein. For ease of reference, the Glossary attached to this
Agreement lists the capitalized terms and refers to the applicable section of this Agreement in
which each capitalized term is first defined.
3. DESCRIPTION OF PROPERTY; STATE PROJECT.
3.1. Description of Real Property. Seller agrees to sell, convey, and deliver to Buyer,
and Buyer agrees to acquire and accept from Seller, all of Seller's right, title, and interest in and to
that parcel of property with the street address of 247 West Third Street, San Bernardino,
California which is approximately 7.7 acres situated at the southeast corner of the intersection of
1
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3'd Street and Arrowhead Avenue (the "Land"), as more particularly depicted in Exhibit A ("Map
of Land") and described in Exhibit B ("Legal Description of Land") along with any
improvements affixed to the Land which have not been removed pursuant to the terms hereof
{"Improvements"), and all privileges, entitlements, easements, and appurtenances pertaining to
the Land and the Improvements ("Appurtenances"). The Land, Improvements, if any, and
Appurtenances are referred to herein collectively as the "Real Property", subject to the terms and
conditions set forth in this Agreement.
3.2. Description of State Project. Buyer is acquiring the Real Property with the
intention of designing and constructing certain court facilities and related improvements thereon,
including, without limitation, a building with an area of approximately 356,390 gross square feet
{"State Projecf'), for use by the Superior Court of California, County of San Bernardino
(collectively "Court" or the "Courthouse") for judicial, court, administrative, office, and related
purposes. The State Project shall consist of the construction and completion by the State,
at the sole cost and expense of the State, of a multi-story building having approximately
356,390 gross square feet, in addition to a basement of approximately 57,000 gross square
feet. The State Project will include up to thirty-six (36) courtrooms, court administrative
offices, support space for court administrators, court clerk counters, security operations, building
support space, secured parking, sallyport, and in-custody detainee facilities located on the
basement level to be constructed by Buyer. The State Project shall also include public parking
spaces in surface parking lots and may also include a separate parking structure. Buyer shall
commence construction of the State Project within five (5) years or sixty (60) months) from the
Close of Escrow ("Construction Commencement Date"). Buyer shall exercise its best efforts
to promptly, diligently and in an expeditious manner after the Construction Commencement
Date to complete the construction of the State Project and to have the State Project ready for
occupancy. For purposes of this Agreement, "commence construction" means the Buyer's
award of a contract to a contractor for any construction activity for the State Project, including,
without limitation, grading, site work, foundation work, or construction of a building with respect
to the State Project. In the event that Buyer has approved the preliminary plans for the State
Project by the Construction Commencement Date and Buyer is using its best efforts to finalize
the final plans and specifications for the State Project, Seller and Buyer shall negotiate in good
faith to extend the Construction Commencement Date to a reasonable date that serves both the
Seller's interest of not keeping the Real Property vacant and the Buyer's interest of completing
the State Project. Subject to Section 10.2.6 of this Agreement, if Seller and Buyer, for any
reason whatsoever, within ninety (90) days after the Construction Commencement Date have
not agreed in writing to a date to extend the Construction Commencement Date, Buyer will have
no further right to extend the Construction Commencement Date and Seller shall have the right,
without limitation, to purchase the Real Property as provided for in Section 10.2.6. For
purposes of sections 3.2, 10.2.5,10.2.6 and 10.6, Buyer includes, without limitation, the Judicial
Council and the Administrative Office of the Courts.
4. PURCHASE PRICE.
The "Purchase Price" of the Real Property is ONE AND NO/100 DOLLAR ($1.00). The
parties acknowledge that the Purchase Price and the other mutual covenants and agreements
contained herein are adequate and sufficient consideration in support of this Agreement.
5. CLOSING DATE.
Subject to the terms and conditions set forth herein, the Parties shall consummate the
Close of Escrow on or about July 1, 2009 ("Closing Date"). The Closing Date may be
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extended, at Buyer's option by written notice to Seller, for a reasonable period of time if required
to allow satisfaction of all necessary conditions and contingencies, subject to Buyer's further
rights to terminate this Agreement if all such conditions have not then been satisfied.
6. BUYER CONTINGENCIES.
Buyer shall not be obligated to consummate the Close of Escrow unless and until each
and all of the obligations, conditions precedent, and contingencies set forth in sections 6.1
through 6.10 (each a "Buyer Contingency," and collectively "Buyer Contingencies") are
performed and satisfied within the applicable time periods specified herein. The Buyer
Contingencies are for the sole benefit of Buyer and may only be waived or deemed satisfied in
writing at Buyer's election and in Buyer's sole and absolute discretion.
6.1. Due Diligence Inspections.
6.1.1. Preliminary Report. Within fifteen (15) days of the Effective Date,
Chicago Title Company ("Title Company") shall deliver to Buyer a preliminary (title) report for
the Real Property ("Title Report") issued by Title Company which is located at 700 South
Flower Street, Los Angeles, CA, Attention: Mark Raskin, Phone: (213) 488-4383, Fax: (213)
629-3828 E-mail: mark.raskin@ctt.com. with copies of all underlying recorded instruments of
record shown as exceptions and described on the Title Report ("Exception Documents").
6.1.2. ALTAlACSM Survey. As soon as reasonably practicable following the
Effective Date, Buyer shall have the right to obtain, at its sole cost and expense, a certified
survey of the Real Property ("Survey") prepared by a licensed land surveyor in accordance with
the 1999 Minimum Standard Detail Requirements for AL TAlACSM Land Title Surveys, as
adopted by the American Land Title Association, American Congress on Surveying and
Mapping, and the National Society of Professional Surveyors.
6.1.3. Other Due Diligence Inspections. As soon as reasonably practicable
following the Effective Date, Buyer shall have the right, at its sole cost and expense, to conduct
any and all other investigations, inspections, and examinations relating to the condition of the
Real Property and the suitability of the Real Property for Buyer's purposes, including but not
limited to, assessment of environmental, soil, seismic, surface, and subsurface conditions for
the presence of Hazardous Substances (as defined below); and performing architectural,
engineering, development, and/or economic feasibility studies (collectively, "Other Due
Diligence Inspections"). Buyer shall conduct such Other Due Diligence Inspections in such
manner as to minimize any interference with the Seller's current uses and occupancies of the
Real Property.
6.1.4. Access to Real Property and Records. To facilitate Buyer's due
diligence inspections of the Real Property, Seller shall cooperate in good faith to provide Buyer
and its agents, representatives, and consultants with reasonable access to the Real Property,
and to any records pertaining to the Real Property in Seller's possession or control. Buyer shall
endeavor to notify Seller at least twenty-four (24) hours prior to entry upon the Real Property by
Buyer or its agents, representatives, or consultants, or request for access to Seller's records.
6.1.5. Disapproved Conditions. Following Buyer's receipt and review of the
Title Report, all of the Exception Documents, and the Survey, and Buyer's satisfactory
completion of all Other Due Diligence Inspections, Buyer shall have the right, but not the
obligation, to deliver a written notice to Seller ("Buyer's Inspection Notice") identifying Buyer's
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disapproval of (i) any title conditions reflected in the Title Report and/or Exception Documents;
(ii) any title conditions or other matters shown on the Survey; and (iii) any other conditions or
matters arising from the Other Due Diligence Inspections (collectively, "Disapproved
Conditions").
6.1.6. Seller's Cure Notice. By no later than 5:00 p.m. of the twentieth (20th)
business day following Seller's receipt of Buyer's Inspection Notice, Seller shall deliver a written
notice to Buyer ("Seller's Cure Notice"), identifying Seller's proposed cure, if any, of any of the
Disapproved Conditions.
6.1.7. Due Diligence Deadline. By no later than 5:00 p.m. of the twentieth
(20th) business day following Buyer's receipt of Seller's Cure Notice ("Due Diligence Deadline")
Buyer shall have the right, but not the obligation, to deliver to Seller a written notice approving
and/or waiving Buyer's Contingency under this section 6.1 ("Due Diligence Contingency
Notice"). Prior to the expiration of the Due Diligence Deadline, Buyer and Seller shall
cooperate in good faith to resolve any issues or disagreements relating to the Disapproved
Conditions. If Buyer does not deliver the Due Diligence Contingency Notice on or prior to the
Due Diligence Deadline, Buyer shall be deemed to have disapproved of the condition of the
Real Property, and Buyer shall have the right to terminate this Agreement pursuant to section
8.2.
6.2. Owner's Policy. By no later than three (3) days prior to the Closing Date, Title
Company shall be irrevocably and unconditionally committed to issue a CL T A Owner's Policy of
Title Insurance - Extended Coverage ("Owner's Policy"), with liability coverage in the amount of
the appraised value of the Real Property, and showing fee title to the Real Property vested in
Buyer, free and clear of all liens and encumbrances, except for (i) any exceptions shown on the
Title Report which Buyer has not specifically disapproved; and (ii) any Disapproved Conditions
shown on the Title Report which Seller has expressly agreed to cure to the satisfaction of Buyer
by a method other than removal (collectively, "Permitted Exceptions").
6.3. Accuracy of Representations and Warranties. As of the Close of Escrow, all of
Seller's representations and warranties set forth herein shall be true and accurate with the same
force and effect as if remade by Seller in a separate certificate at the Close of Escrow.
6.4. No Breach or Event of Default. As of the Close of Escrow, no uncured Event of
Default by Seller, nor any Breach by Seller which could become an Event of Default with the
passage of time, shall exist.
6.5. Seller Deliveries. Buyer shall provide Seller, in writing, advance notice of the date
when Buyer will submit its site acquisition application for the Real Property to the State Public
Works Board for approval ("Submission Date"), and no later than one (1) business day prior to
the Submission Date, Seller shall deliver, or cause to be delivered, to Escrow Holder the following
("Seller Deliveries"):
6.5.1. One (1) original of the Grant Deed, substantially in the same form as
Exhibit C, duly executed by Seller and notarized. The executed Grant Deed will be needed by
or before the Close of Escrow;
6.5.2. One (1) copy of Seller's resolution, or equivalent document, evidencing
Seller's authorization to enter into, deliver, and perform under all of the documents and
instruments necessary to effect the sale of the Real Property to Buyer in accordance with the
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terms of this Agreement. The resolution, or equivalent document, will be needed by or within
seven (7) days of Seller's execution of this Agreement; and
6.5.3. Any other documents, instruments, or items reasonably requested and
deemed necessary by Escrow Holder to consummate the Close of Escrow in accordance with
the terms of this Agreement.
6.6. SPWB Approval and Acceptance. The State Public Works Board ("SPWB") shall
have (i) authorized Buyer's acquisition of the Real Property pursuant to the terms of this
Agreement and the Real Property Acquisition law set forth in Government Code sections 15850
to 15866; and (ii) executed the Certificate of Acceptance attached to the Grant Deed, or in such
form and content as then required by applicable law.
6.7. Compliance with CEQA including Expiration of CEQA Statute of Limitation.
Prior to approval of the SPWB for acquisition authorization, Buyer's compliance with the California
Environmental Quality Act, as set forth at California Public Resources Code section 21000, et
seq. ("CEQA") with respect to the State Project, including without limitation, the expiration of any
applicable statute of limitation period under CEQA.
6.8. Buyer Contingencies Notice. By no later than three (3) days prior to the Closing
Date, Buyer shall have delivered to Seller and Escrow Holder a written notice approving and/or
waiving all of the Buyer Contingencies other than the Buyer Contingencies set forth in section 6.1,
which shall be governed by the terms thereof ("Buyer Contingencies Notice").
6.9. Sewer Line Relocation. Within one (1) year after the Effective Date and prior to
the Close of Escrow, Seller shall relocate the sewer line ("Sewer Line Relocation") that is
located below the surface of the land at the location set forth in Exhibit D, at the sole cost and
expense of Seller, to a location that is mutually agreed to by and between Seller and Buyer,
which approval shall not be unreasonably withheld, delayed or conditioned by either Seller or by
Buyer. Prior to commencing the Sewer Line Relocation, Seller shall provide to Buyer a site plan
("Sewer Line Relocation Site Plan") which indicates the proposed new location of the sewer
line, and Seller shall provide Buyer any updates, if necessary, in the event that the new location
changes from the site plan which is provided to Buyer. Within fifteen (15) days from written
notice from Seller to Buyer that the Sewer Line Relocation has been completed by Seller and
from receipt by Buyer from Seller of the Sewer Line Relocation Site Plan, Buyer shall approve or
disapprove, in writing, the Sewer Line Relocation Site Plan, which approval shall not be
unreasonably withheld, delayed or conditioned by Buyer. If Buyer fails to accept or fails to
disapprove the Sewer Line Relocation Site Plan within fifteen (15) days from the date that Buyer
is in receipt of the written notice and in receipt of the Sewer Line Relocation Site Plan from
Seller, the Sewer Line Relocation and the Sewer Line Relocation Site Plan shall be deemed and
construed as having been accepted by Buyer. If Buyer disapproves the Sewer Line Relocation
and the Sewer Line Relocation Site Plan within fifteen (15) days from receipt thereof, Buyer
shall specify, in detail, the reasons for the disapproval ("Buyer Sewer Line Disapproval
Notice"). Seller will then attempt to either correct and remedy, at the sole cost and expense of
Seller, the deficiencies listed in the Buyer Sewer Line Disapproval Notice, or elect not to correct
and remedy the deficiencies listed by Seller in the Buyer Sewer Line Disapproval Notice. If
Seller elects to correct and remedy the deficiencies listed in the Buyer Sewer Line Disapproval
Notice, Seller will notify Buyer, in writing, when Seller has completed the revised Sewer Line
Relocation and the revised Sewer Line Relocation Site Plan. Within fifteen (15) days from the
date that Buyer is in receipt of the written notice from Seller that the revised Sewer Line
Relocation and the revised Sewer Line Relocation Site Plan have been completed by Seller,
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Buyer shall either accept or disapprove the revised Sewer Line Relocation and the revised
Sewer Line Relocation Site Plan within fifteen (15) days from its receipt thereof. If Buyer fails to
accept or disapprove the revised Sewer Line Relocation and the revised Sewer Line Relocation
Site Plan within fifteen (15) days from the date that Buyer is in receipt of written notice from
Seller and in receipt of the revised Sewer Line Relocation Site Plan, the revised Sewer Line
Relocation and the revised Sewer Line Relocation Site Plan shall be deemed and construed as
having been accepted by Buyer. Once again, Buyer shall accept and approve the revised
Sewer Line Relocation and the revised Sewer Line Relocation Site Plan prepared by Seller and
such approval shall not be unreasonably withheld, delayed or conditioned by Buyer. In the
event that Seller fails to complete the Sewer Line Relocation and the Sewer Line Relocation
Site Plan, and/or any revisions thereto, in accordance with this section, Buyer may waive, in its
sole discretion, the condition set forth in this section, and in the event that Buyer waives this
condition, Seller agrees to (1) cooperate with Buyer's relocation of the sewer line to a location
along the perimeter of the Land or on the Land; and (2) reimburse Buyer within ninety (90) days
after receipt by Seller of a correct invoice by Buyer for 115% of the actual costs incurred by
Buyer with respect to the relocation of the sewer line.
6.10. Removal Of Parking Lot Improvements By The County of San Bernardino.
The County of San Bernardino ("County") must acknowledge, in writing ("County Consent
Letter"), to Buyer that pursuant to the Vehicle Parking License Agreement (247 West 3rd
Street), dated as of June 20, 2006, by and between Seller, as licensor, and the County, as
licensee (the "County Parking Agreement") the County will remove the Parking Lot
Improvements (as defined in the County Parking Agreement) from the Real Property by the
expiration date of the County Parking Agreement or upon not less than sixty (60) days' prior
written notice during the term of the County Parking Agreement from Seller, or from Buyer, as
successor-in-interest to the fee ownership of Seller in and to the Real Property, at the sole cost
and expense of the County, in accordance with and pursuant to the County Parking Agreement.
7. SELLER CONTINGENCIES.
Seller shall not be obligated to consummate the Close of Escrow unless and until each
and all of the obligations, conditions precedent, and contingencies set forth in sections 7.1
through 7.7 (each a "Seller Contingency," and collectively "Seller Contingencies") are
performed within the time periods specified herein. The Seller Contingencies are for the sole
benefit of Seller and may only be waived or deemed satisfied in writing at Seller's election and
in Seller's sole and absolute discretion.
7.1. Due Diligence Contingency Notice. Buyer shall have timely delivered to Seller
and Escrow Holder the Due Diligence Contingency Notice in accordance with section 6.1.7
above.
7.2. Buyer Contingencies Notice. Buyer shall have timely delivered to Seller and
Escrow Holder the Buyer Contingencies Notice in accordance with section 6.8 above.
7.3. Accuracy of Representations and Warranties. As of the Close of Escrow, all of
Buyer's representations and warranties set forth herein shall be true and accurate with the same
force and effect as if remade by Seller in a separate certificate at the Close of Escrow.
7.4. No Breach or Event of Default. As of the Close of Escrow, no uncured Event of
Default by Buyer, nor any Breach by Buyer which could become an Event of Default with the
passage of time, shall exist.
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7.5. Buyer Deliveries. At least three (3) business days prior to the Closing Date,
Buyer shall have delivered to Escrow Holder the Purchase Price, along with all other documents,
instruments, or items reasonably requested and deemed necessary by Escrow Holder to
consummate the Close of Escrow in accordance with the terms of this Agreement ("Buyer
Deliveries").
7.6. Approval by Buyer of Sewer Line Relocation. Buyer must have approved the
Sewer Line Relocation, or the Sewer Line Relocation must have been deemed approved by
Buyer, as provided for and in accordance with Section 6.9 of this Agreement.
7.7 County Consent Letter. Seller must obtain the County Consent Letter, in a
form acceptable to Buyer, and provide that County Consent Letter to the Buyer on or before the
Close of Escrow.
8. EVENT OF DEFAULT; TERMINATION; REMEDIES.
8.1. Termination for Event of Default. If Buyer or Seller breaches, defaults, or fails to
perform any obligation, covenant, condition precedent, or contingency to be observed or
performed by such party, including the failure or unsatisfactory completion of any Buyer
Contingency, or Seller Contingency, as applicable (except for any of the Buyer Contingencies in
sections 6.1, 6.2, 6.6, 6.7, 6.8, 6.9 and 6.10) ("Breach"), the party who is claiming that a Breach
has occurred ("Non-Defaulting Party") shall provide written notice (the "Default Notice") to the
other party ("Defaulting Party") identifying the Breach and a description of the facts and
circumstances relating to such Breach. Upon receipt of the Default Notice, the Defaulting Party
shall have ten (10) days, or less if the breach or default occurs within ten (10) days of the Closing
Date, to cure the Breach described in the Default Notice and to provide evidence of such cure to
the Non-Defaulting Party. If the Defaulting Party does not provide evidence of the cure to the
Non-Defaulting Party within the ten (10) day, or shorter, time period, as applicable, then the
Defaulting Party shall be deemed to have committed an "Event of Default" hereunder, and the
Non-Defaulting Party shall have the right, but not the obligation, to terminate this Agreement and
cancel Escrow pursuant to the terms hereof. Upon the occurrence of an Event of Default, and
provided that the Non-Defaulting Party has not also committed an Event of Default, the Non-
Defaulting Party shall have the right, but not the obligation, to terminate this Agreement and
cancel the Escrow by delivering written notice of termination and cancellation instructions to the
Defaulting Party and Escrow Holder. If the Non-Defaulting Party exercises such right, this
Agreement shall terminate, the Escrow shall be cancelled, and the Non-Defaulting Party shall
have the right to pursue any and all remedies available at law or in equity.
8.2. No-Fault Termination. If (i) any of the Buyer Contingencies set forth in sections
6.1,6.2,6.6,6.7,6.8 and 6.10 are not satisfied within the time periods set forth therein; or (ii)
Buyer elects to terminate this Agreement pursuant to sections 12 or 13, as applicable, Buyer's
sole remedy shall be to terminate this Agreement and cancel the Escrow by delivering written
notice of termination and cancellation instructions to Seller and Escrow Holder. In the event of
such termination and cancellation by Buyer, this Agreement shall terminate, the Escrow shall be
cancelled, and the parties hereto shall have no further rights, obligations, or liabilities hereunder,
except for any obligations that expressly survive such termination and cancellation pursuant to the
terms herein.
8.3. Payment of Costs Upon Termination. Upon termination of this Agreement and
cancellation of Escrow pursuant to section 8.1, the Defaulting Party shall pay any and all of
Escrow Holder's cancellation fees and costs. Upon termination of this Agreement and
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cancellation of Escrow pursuant to section 8.2, Buyer and Seller shall equally share Escrow
Holder's cancellation fees and costs. The obligations of the parties under this section 8.3 shall
survive the termination of this Agreement and cancellation of Escrow.
8.4. Return of Sums and Documents. Upon termination of this Agreement and
cancellation of Escrow pursuant to the terms hereof, Escrow Holder shall return all sums and/or
documents deposited in Escrow to the parties who respectively deposited the same. The parties
shall reasonably cooperate to execute any additional cancellation instructions required of Escrow
Holder to effect the cancellation of Escrow pursuant to this section 8.
8.5. Rights and Remedies Cumulative. The rights and remedies of the parties in
connection with this Agreement are cumulative, and the exercise by a party of one or more of its
rights or remedies shall not preclude the exercise by it, at the same time or at a different time, of
any other rights or remedies for the same Event of Default or other Event of Default. In addition
to the rights and remedies specified herein, the parties shall have the right to pursue any and all
other rights or remedies available at law or in equity, including, but not limited to, specific
performance, declaratory relief, and/or damages.
9. ESCROW; CLOSING COSTS; TAXES.
9.1. Opening of Escrow. As soon as reasonably practicable following the full
execution of this Agreement and SPWB site acquisition approval, the parties shall cooperate in
good faith to open escrow for the transaction contemplated hereunder ("Escrow") by depositing
with Chicago Title Company, 700 South Flower Street, Los Angeles, CA, Attention: Mark Raskin,
Phone: (213) 488-4383, Fax: (213) 629-3828 E-mail: mark.raskin@ctt.com ("Escrow Holder"), a
copy of this Agreement fully executed by the parties. This Agreement shall constitute joint
instructions to Escrow Holder; provided, however, that Buyer and Seller shall execute such
additional escrow instructions as may be reasonably requested by Escrow Holder so long as such
additional instructions do not conflict with this Agreement. Escrow shall not be deemed "opened"
until Escrow Holder confirms receipt of a fully executed copy of this Agreement.
9.2. Close of Escrow. Provided that all of the Buyer Contingencies and Seller
Contingencies have been satisfied and/or waived by the respective parties, the parties shall
proceed to "close" Escrow as follows ("Close of Escrow"):
9.2.1. Seller's Authorization. Seller shall authorize and instruct Escrow Holder
to cause the Grant Deed, substantially in the same form as Exhibit C, to be recorded in the
Official Records of San Bernardino County, California, subject to any instructions and conditions
of Seller which do not conflict with the terms of this Agreement.
9.2.2. Buyer's Authorization. Buyer shall authorize and instruct Escrow
Holder to release the Purchase Price to Seller subject to any instructions and conditions of
Buyer which do not conflict with the terms of this Agreement.
9.2.3. Disbursement and Recordation. The Close of Escrow shall not be
deemed consummated or "closed" unless and until the following have occurred:
9.2.3.1. Owner's Policy. Escrow Holder has confirmed that Title
Company is irrevocably and unconditionally committed to issue the Owner's Policy, with liability
coverage in the amount of the appraised value of the Real Property on the Close of Escrow, and
showing fee title to the Real Property vested in Buyer, free and clear of all liens and
encumbrances, except for the Permitted Exceptions;
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9.2.3.2. Recordation of Grant Deed. Escrow Holder has confirmed
that Seller's conditions to the recordation of the Grant Deed have been satisfied, and that the
Grant Deed has been recorded in the Official Records of San Bernardino County, California;
and
9.2.3.3. Disbursement of Purchase Price. Escrow Holder has
confirmed that Buyer's conditions to the disbursement of the Purchase Price have been
satisfied, and that the Purchase Price, less Seller's share of Closing Costs, has been disbursed
to, and received by, Seller in accordance with Seller's instructions.
9.3. Closing Costs. At the Close of Escrow, the costs and fees associated therewith
("Closing Costs") shall be allocated as follows: (i) Buyer shall pay one hundred percent (100%)
of all Escrow Holder's charges and fees, and for all overnight deliveries requested by Buyer or by
Escrow Holder; (ii) Buyer shall pay the premium for the CL T A coverage portion of the Owner's
Policy and any title endorsements approved by Seller to cure any Disapproved Exceptions; (Hi) if
Buyer obtains an AL T A --Extended Coverage policy, Buyer shall pay the cost of the premium for
the AL T A - Extended Coverage portion of the Owner's Policy. The parties acknowledge that
Buyer, as a governmental entity, is exempt from the payment of documentary transfer taxes and
recording fees. Notwithstanding the foregoing, in accordance with the standard practice and
policy of the State of California, Buyer shall not be obligated to pay for Buyer's share of the
Closing Costs unless and until Buyer receives an acceptable Owner's Policy issued to Buyer,
along with an invoice itemizing Buyer's share of Closing Costs; (iv) Seller shall pay for all
overnight deliveries requested by Seller.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
10.1. Seller's Representations and Warranties. Seller hereby makes the following
representations and warranties to Buyer, all of which shall be true and accurate as of the
execution of this Agreement and as of the Close of Escrow:
10.1.1. Seller is the sole owner of fee simple title to the Real Property, and
Seller's conveyance and delivery of fee simple title to Buyer at the Close of Escrow shall be free
of any and all liens or encumbrances, except for the Permitted Exceptions.
10.1.2. Seller is duly organized, validly existing, and in good standing under the
laws of the State of California.
10.1.3. Seller's execution, delivery, or performance of this Agreement (including
any related documents to be executed and delivered by Seller at the Close of Escrow):
10.1.3.1. Is duly authorized and approved such that this Agreement and
related documents will constitute legal, valid, and binding obligations of Seller enforceable
against Seller in accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium, and other
principles relating to or limiting the right of contracting parties generally);
10.1.3.2. To the knowledge of Seller, this Agreement does not and will
not violate any provisions of any agreement which is binding upon Seller or any of Seller's
assets;
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10.1.3.3. Except for the approval by the governing body having
jurisdiction over Seller and the approval by the Mayor and by the Common Council for the City
of San Bernardino, this Agreement does not require any authorization, consent, approval, or
other action of or filing or registration with any other governmental agency, and except as
expressly provided herein; and
10.1.3.4. Is not prohibited by any law, ordinance, or regulation.
10.1.4. To the knowledge of Seller:
10.1.4.1. There are no suits, actions, arbitrations, attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganizations,
or other legal proceedings or inquiries pending or threatened against the Real Property or Seller
which could adversely affect the value of the Real Property, Seller's interest therein, Seller's
ability to perform its obligations hereunder, or otherwise impose any liability upon any owner of
the Real Property;
10.1.4.2. There are no uncorrected violations of any statutes, ordinances,
regulations, or administrative or judicial orders or holdings which could adversely affect the Real
Property, nor has Seller received any written notice of said violations from any governmental or
quasi-governmental authority;
10.1.4.3. No Hazardous Substances were released in, on, or under the
Real Property in violation of any Environmental Laws during the time that Seller has owned the
Real Property; and
10.1.4.4. Except for any mailers of record, there are no other leases,
rental agreements, or maintenance agreements with respect to the Real Property with the
exception of the following agreements: (i) the County Parking Agreement; (ii) Temporary
Vehicle Parking License Agreement (2nd Street and Arrowhead Avenue Parking Lot - APN:
0135-221-22, dated as of October 16, 2007, by and between Seller, as licensor, and the
Southern California Gas Co., a California corporation, as licensee ("Gas Company Parking
Agreement"); (iii) Redevelopment Agency Of The City of San Bernardino Lease, dated as of
January 16, 2008, by and between Seller, as lessor, and Stronghold Engineering, Inc., a
California corporation, as lessee, in connection with and relating to the lease by Seller to
Stronghold Engineering, Inc. of the Site (as defined therein) ("Stronghold Engineering
Parking Agreement"); and (iv) License Agreement Permitting Limited Entry For Investigation of
Environmental, Soils, Geotechnical and Other Conditions, dated as of February 4, 2008, by and
between Seller, as licensor, and Buyer, as licensee.
10.1.5. To the knowledge of Seller, Seller has not received any written notice of
any pending widening, modification, or realignment of any street or highway contiguous to the
Real Property or any existing or proposed eminent domain proceeding that would result in a
taking of all or any part of the Real Property.
10.1.6. Seller has not granted any preemptive or reversionary rights with respect
to the Real Property, nor has Seller entered into any other agreements for the sale, lease, use,
or occupancy of any portion of the Real Property by any third parties, which would otherwise
impose an obligation upon Buyer or affect the marketability of title to the Real Property (except
as provided for in Section 10.1.4.4 of this Agreement).
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10.1.7. To the knowledge of Seller, and except as provided for in Schedule B,
Title Exception 4 of the preliminary report, dated August 30, 2007, by Orange Coast Title
Company, as title company, in favor of Seller, in connection with the effect of a deed recorded
on April 2, 1990, in the Official Records of San Bernardino County, State of California, in Book
285 Pages 121 of Deeds, there are no encroachments of any improvements onto the Real
Property, nor do any of the improvements on the Real Property encroach onto any neighboring
land owned by a third party.
10.1.8. There are no actual or pending public improvements on the Real
Property which would or could result in the imposition of any liens thereon, including, but not
limited to, any public assessments or mechanics' liens.
10.1.9. Seller has neither engaged nor owes a commission to any broker or
finder in connection with the sale contemplated by this Agreement.
10.1.10. No representation, warranty, or statement of Seller in this Agreement, or
in any document, certificate, or schedule furnished or to be furnished to Buyer pursuant to this
Agreement, contains any untrue statement of a material fact, or omits to state any material fact
needed to ensure the accuracy of the representations, warranties, or statements contained
therein.
10.2. Buyer's Representations and Warranties. Buyer hereby makes the following
representations and warranties to Seller, all of which shall be true and accurate as of the
execution of this Agreement and as of the Close of Escrow:
10.2.1. The Administrative Office of the Courts is the staff agency to the Judicial
Council of California, an entity established by the Constitution of the State, validly existing under
the laws of the State.
10.2.2. Buyer's execution, delivery, or performance of this Agreement (including
any related documents to be executed and delivered by Buyer at the Close of Escrow):
10.2.2.1. Is duly authorized and approved such that this Agreement and
related documents will constitute legal, valid, and binding obligations of Buyer enforceable
against Buyer in accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium, and other
principles relating to or limiting the right of contracting parties generally);
10.2.2.2. Does not and will not violate any provisions of any agreement
which is binding upon Buyer or any of Buyer's assets;
10.2.2.3. Does not require any authorization, consent, approval, or other
action of, or filing or registration with, any other governmental agency, except as expressly
provided herein; and
10.2.2.4. Is not prohibited by any law, ordinance, or regulation.
10.2.3. Buyer has neither engaged nor owes a commission to any broker or
finder in connection with the sale contemplated by this Agreement.
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10.2.4. No representation, warranty or statement of Buyer in this Agreement, or
in any document, certificate, or schedule furnished or to be furnished to Seller pursuant to this
Agreement, contains any untrue statement of a material fact or omits to state any material fact
needed to ensure the accuracy of the representations, warranties, or statements contained
therein.
10.2.5. Buyer represents, warrants and covenants to Seller that: (i) Buyer, at its
sole cost and expense with the exception of the Sewer Line Relocation, will develop, construct
and complete the State Project in accordance with all applicable federal, state, municipal and/or
local laws, statutes, codes, ordinances and/or regulations; and (ii) subject to Section 3.2 and to
Section 10.2.6 of this Agreement, Buyer will commence construction of the State Project no
later than the Construction Commencement Date. In the event that Buyer has approved the
preliminary plans for the State Project by the Construction Commencement Date and Buyer is
using its best efforts to finalize the final plans and specifications for the State Project, Seller and
Buyer shall negotiate in good faith to extend the Construction Commencement Date to a
reasonable date that serves both the Seller's interest of not keeping the Real Properly vacant
and the Buyer's interest of completing the State Project. Subject to Section 10.2.6 of this
Agreement, if Seller and Buyer, for any reason whatsoever, within ninety (90) days after the
Construction Commencement Date have not agreed in writing to a date to extend the
Construction Commencement Date, Buyer will have no further right to extend the Construction
Commencement Date and Seller shall have the right, without limitation, to purchase the Real
Properly as provided for in Section 10.2.6.
10.2.6. In the event Buyer fails to commence construction of the State Project by
the Construction Commencement Date, as may be extended by Buyer and Seller, in writing,
pursuant to Section 3.2 and to Section 10.2.5(ii) of this Agreement, upon ninety (90) days
written notice from Seller to Buyer, Seller may elect to repurchase the Real Property from
Buyer, and if Seller elects in such written notice to repurchase the Real Property (the "Seller's
Repurchase Notice"), Buyer shall convey to Seller, the Real Property pursuant to the following:
(1) subject to the rules, regulations, procedures and policies of the SPWB and any applicable
law or regulation governing Buyer (collectively, "SPWB Policies"), within one hundred twenty
(120) days from receipt by Buyer of the Seller's Repurchase Notice, Buyer, as seller, and Seller,
as buyer, shall execute, deliver and enter into a real properly acquisition agreement having
terms, covenants and conditions similar to this Agreement except, without limitation, that Buyer
as seller, will sell to Seller, as buyer, the Real Properly (the "Repurchase Agreement"); (2)
within one hundred twenty (120) days from the receipt by Buyer of the Seller's Repurchase
Notice, Seller and Buyer shall deposit the Repurchase Agreement with the Escrow Holder and,
for purposes of the Repurchase Agreement, escrow shall open upon the Escrow Holder's
receipt of the Repurchase Agreement, as mutually executed by Buyer, as seller, and Seller, as
buyer; (3) pursuant to the Repurchase Agreement and subject to SPWB Policies, escrow under
the Repurchase Agreement shall close no later than one hundred twenty (120) days from the
opening of such escrow; (4) Buyer shall be the fee owner of the Real Properly and the title to
the Real Property shall be subject only to non-delinquent real property taxes and assessments,
to the Permitted Exceptions listed in the Owner's Policy from the Title Company to the Buyer
and to easements that encumber the Real Property and that are created by Buyer after the
Effective Date which easements are necessary to permit Buyer to construct and complete the
State Project (collectively, "Title Exceptions"); (5) Buyer shall grant, transfer and convey to
Seller the Real Property pursuant to a grant deed, subject only to the Title Exceptions; (6)
subject to SPWB Policies, Seller shall pay Buyer one dollar ($1.00) to purchase the Real
Property and Seller shall have no obligation to pay any other fees, costs or amounts to Buyer In
connection with its repurchase from Buyer of the Real Properly; (7) Buyer shall pay all escrow
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fees and costs, recording costs and all other fees, costs and amounts incurred in connection
with the closing of the transactions contemplated in the Repurchase Agreement; (8) Seller shall
have no duty or obligation to construct, develop or complete the State Project at the Real
Property and Seller shall have no duty or obligation to construct, develop and/or complete any
other improvements at the Real Property; and (9) the Repurchase Agreement shall also contain
all other terms, covenants and conditions agreed to by and between Buyer, as seller, and Seller,
as buyer. Notwithstanding Section 3.2 and Section 10.2.5(ii) to the contrary in this Agreement,
in the event that Buyer commences construction of the State Project within ninety (90) days
following Buyer's receipt of the Seller's Repurchase Notice, the Repurchase Agreement will be
terminated and any rights of Seller to repurchase the Real Property will also terminate.
10.3. No Merger. All express representations and warranties in this section 10 shall
survive the Close of Escrow and the conveyance of record fee title to the Real Property to the
Buyer, and shall not merge with the recordation of the Grant Deed.
10.4. Seller's Pre-Closing Covenants. Seller shall comply with the following covenants
and requirements at all times from and after the Effective Date, and prior to the Close of Escrow
or earlier termination of this Agreement and cancellation of Escrow:
10.4.1. Seller shall not grant, convey, or enter into any easement, lease, license,
agreement, lien, encumbrance, or any other legal or beneficial interest in or to the Real
Property, other than the Permitted Exceptions, without the prior written consent of Buyer, which
consent shall not be unreasonably withheld or delayed.
10.4.2. Seller shall not violate, nor allow the violation of, any law, ordinance,
rule, or regulation affecting the Real Property.
10.4.3. Seller shall do or cause to be done, all things within its reasonable
control to preserve intact and unimpaired any and all rights of way, easements, grants,
appurtenances, privileges, and licenses in favor or consisting of any portion of the Real
Property, except as otherwise expressly provided herein.
10.4.4. Seller shall pay, if and when the same are due, all payments on any
encumbrances or assessments presently affecting the Real Property and any and all taxes,
assessments, and levies in respect of the Real Property through the Closing Date.
10.4.5. Seller shall not take any action, or fail to take any action, that would
result in any change, alteration, modification, addition to, or termination of any of the presently-
existing general plan or zoning designation of the Real Property, without Buyer's prior written
approval, and Seller shall immediately provide Buyer with a copy of any written materials
received by Seller evidencing or relating to any proposal or attempt to effect any such change,
alteration, modification, addition to, or termination other than those sought by Buyer.
10.4.6. Except for the Sewer Line Relocation, Seller shall (i) not alter the
physical condition of the Real Property; (ii) maintain the Real Property in substantially the same
condition as that which existed as of the Effective Date; and (iii) Seller shall deliver possession
of the Real Property to Buyer at the Close of Escrow in no worse condition than that which
existed at the expiration of the Due Diligence Deadline.
10.4.7. Seller shall promptly notify Buyer of any event or circumstance that
could or would render any representation or warranty of Seller under this Agreement untrue or
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misleading, or of any covenant of Seller under this Agreement incapable or less likely of being
performed; provided, however, that Seller's foregoing obligation to provide notice to Buyer shall
in no way relieve Seller of any liability for a Breach by Seller of any of its representations,
warranties or covenants under this Agreement.
10.4.8. Seller shall not record any covenants, conditions or restrictions against
the land which restricts the design or the development upon the land, and to the extent that
any covenants, conditions or restrictions are recorded against the land, such covenants,
conditions or restrictions shall exempt the land from any design or development restrictions.
10.4.9. Seller shall not assist with the formation, vote for, or agree to any
assessment districts or special tax districts which results in a special tax or assessment upon
the land.
10.5. Seller's Post-Closing Covenant. Seller represents, warrants and covenants to
Buyer that:
10.5.1. As of the Effective Date, Seller owns land immediately adjacent, and to
the east, of the Real Property which Seller utilizes for park purposes ("Park"). Following the
Close of Escrow, in the event that Seller decides to install or construct any bridges or walking
paths from the Park to the Real Property, Seller will be responsible for the coordination, design,
construction, operation and maintenance (including obtaining any permits) relating to the
installation or construction of those bridges and walking paths, including all costs associated with
those activities. Prior to commencing the installation or construction of any bridges or walking
paths connecting the Park to the Real Property, Seller shall obtain the written consent of Buyer
which consent shall not be unreasonably withheld, delayed or conditioned by Buyer. Further,
Seller shall indemnify, defend, and hold harmless Buyer and each of the Buyer Indemnified
Parties (as defined in section 11.1.3(a) below) from and against all losses incurred, suffered by or
claimed against anyone (1) or more of the Buyer Indemnified Parties, by reason of, arising out of
or relating to the design, construction, operation or maintenance of any bridge or walking path
connecting the Park to the Real Property; provided, however, Seller shall have no liability under
this Section 10.5.1 should any losses incurred, suffered by or claimed against anyone (1) or
more of the Buyer Indemnified Parties result directly or indirectly from the negligence or wrongful
conduct of Buyer, or of one (1) or more, without limitation, of its branches, divisions, entities,
agencies and departments, officers, agents, members, managers, employees,
affiliates, independent contractors, or the successors and/or assigns, of any of them.
10.5.2. After receiving the design development documents for the State Project
(collectively, the "Design Development Documents") from Buyer in accordance with section
10.6, Seller shall review the Design Development Documents within a reasonable period of time
as such Design Development Documents relate to either flood prevention or recommended
mitigation relating to the existing improvements to the river bank (collectively, the "River Bank
Improvements") which River Bank is owned in fee by Seller on the Effective Date, is adjacent
to and located to the southeast of the land (the "River Bank"). Notwithstanding anything to the
contrary in the Design Development Documents, within one (1) year or 365 days from the date
that Seller receives from Buyer the Design Development Documents, Seller, at its sole cost and
expense, shall make any modifications to the River Bank and/or to the River Bank
Improvements, if any, that Seller determines in its sole and absolute discretion are necessary in
order to mitigate against flooding on the Real Property or possible damage to the River Bank
Improvements which could reasonably result due to the location of the State Project upon the
Real Property in conformance with the Design Development Documents.
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10.6 Buyer's Post-Closing Covenant. Buyer represents, warrants and covenants to
Seller that: (i) Buyer, at its sole cost and expense with the exception of the Sewer Line
Relocation, will develop, construct and complete the State Project in accordance with all
applicable federal, state, municipal and/or local laws, statutes, codes, ordinances and/or
regulations; (ii) Within ten (10) days of receipt, Buyer shall deliver to Seller the Design
Development Documents; (iii) the Design Development Documents must be delivered by Buyer
to Seller no later than one (1) year or 365 days prior to the Construction Completion Date; (iv)
on forty-eight (48) hours prior written notice from Seller to Buyer, Buyer shall grant to Seller
and/or to its agents, employees, independent contractors and/or consultants access to the Real
Property to enable Seller and/or its agents, employees, independent contractors and/or
consultants (a) to determine if improvements to the River Bank Improvements are necessary,
and/or (b) to make improvements to the River Bank Improvements in the event that Seller
determines that improvements are necessary; (v) Buyer will commence construction of the
State Project no later than the Construction Commencement Date subject to Section 3.2, to
Section 1 0.2.5(ii) and to Section 10.2.6 of this Agreement.
11. INDEMNIFICATION AND DUTY TO DEFEND.
11.1. Defined Terms. For purposes of this Agreement, the following defined terms and
definitions shall apply:
11.1.1. "Environmental Laws" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations, and the like, as well as common law, which
(i) relate to protection of human health or the environment, (ii) relate to Hazardous Substances,
(iii) relate to liability for or costs of Remediation or prevention of Releases of Hazardous
Substances, (iv) relate to liability for or costs of other actual or future danger to human health or
the environment, (v) condition transfer of property upon a negative declaration, or other
approval of a governmental authority of the environmental condition of the Real Property, (vi)
require notification or disclosure of Releases of Hazardous Substances, or other environmental
condition of the Real Property, to any governmental authority or other person or entity, whether
or not in connection with transfer of title to or interest in property, (vii) imposes conditions or
requirements in connection with permits or other authorization for lawful activity, (viii) relates to
nuisance, trespass, or other causes of action related to the Real Property, and/or (xi) relate to
wrongful death, personal injury, or property or other damage in connection with any physical
condition or use of the Real Property, including but not limited to, the following laws, as they
may be amended from time to time: Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. section 9601, et seq.; Federal Resource Conservation and
Recovery Act, 42 U.S.C. section 6901, et seq.; Clean Water Act, 33 U.S.C. section 1251, et
seq.; Toxic Substances Control Act, 15 U.S.C. section 2601, et seq.; Refuse Act, 33 U.S.C.
section 407; Occupational Safety and Health Act, 29 U.S.C. section 651, et seq.; Clean Air Act,
42 U.S.C. section 7401, et seq.; California Hazardous Waste Control Act, California Health and
Safety Code sections 25100, et seq.; Carpenter-Presley-Tanner Hazardous Substance Account
Act Substance Account Act, California Health and Safety Code sections 25300, et seq.;
Hazardous Substance Cleanup Bond Act of 1984, California Health and Safety Code sections
25385, et seq., and related statutes including sections 25356.1-25356.4 of the California Health
and Safety Code; Porter-Cologne Water Quality Control Act, California Water Code sections
13000, et seq.; Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and
Safety Code sections 25249.5, et seq.; California Health and Safety Code sections 25220, et
seq., 25280, et seq., 25359.7; Code of Civil Procedure section 3483; and any similar federal,
state, and/or local laws and ordinances and the regulations now or hereafter adopted,
published, and/or promulgated pursuant thereto.
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11.1.2. "Hazardous Substances" includes, but is not limited to, any and all
substances (whether solid, liquid, or gas) defined, listed, or otherwise classified as pollutants,
hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes,
or words of similar meaning or regulatory effect under any present or future Environmental Laws
or that may have a negative impact on human health or the environment, including but not
limited to petroleum and petroleum products, asbestos, and asbestos-containing materials
("ACM"), polychlorinated biphenyls ("PCBs"), lead, lead-based paints, radon, radioactive
materials, flammables, and explosives.
11.1.3. "Buyer Indemnified Parties" and "Seller Indemnified Parties."
(a) "Buyer Indemnified Parties" includes the State of California (including without
limitation its branches, divisions, entities, agencies, and departments); the Judicial Council of
California; the Administrative Office of the Courts; the Superior Court of California, County of
San Bernardino; and their respective officers, agents, members, managers, employees,
independent contractors, agents, personal representatives, affiliates, attorneys, and
administrators, and the successors, and assigns of each of them.
(b) "Seller Indemnified Parties" includes the City of San Bernardino and the
Redevelopment Agency of the City of San Bernardino and their respective officers, agents,
members, managers, employees, independent contractors, agents, personal representatives,
affiliates, attorneys, and administrators and the successors and assigns of each of them.
11.1.4. "Losses" includes, but shall not be limited to, any and all claims, suits,
liabilities (including but not limited to strict liabilities), administrative or judicial actions or
proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines,
penalties, charges, fees, expenses, costs of assessing damages or losses, judgments, awards,
amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation
costs, attorneys' fees, engineers' fees, environmental consultants' fees, Remediation and
investigation costs (including but not limited to costs for sampling, testing, and analysis of soil,
water, air, building materials, and other materials and substances whether solid, liquid, or gas),
of whatever kind or nature, and whether or not incurred in connection with any judicial or
administrative proceedings.
11.1.5. "Release" includes, but is not limited to, any release, deposit, discharge,
emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing, presence, or other movement of Hazardous Substances.
11.1.6. "Remediation" includes, but is not limited, to any response, remedial,
removal, or corrective action mandated by any Environmental Laws; any activity to cleanup,
detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance mandated
by any Environmental Laws; any actions to prevent, cure or mitigate any Release of any
Hazardous Substance mandated by any Environmental Laws; any action to comply with any
Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation,
study, monitoring, assessment, audit, sampling, and testing, laboratory or other analysis, or
evaluation relating to any Hazardous Substances mandated by any Environmental Laws.
11.1.7. "Storage Tanks" includes any underground or aboveground storage
tanks, whether filled, empty, or partially filled with any Hazardous Substance.
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11.2. Indemnification.
11.2.1 Seller Indemnification. Seller shall, and hereby does, indemnify,
defend, and hold harmless Buyer and each of the Buyer Indemnified Parties from and against
all Losses incurred, suffered by or claimed against anyone or more of the Buyer Indemnified
Parties, by reason of, arising out of or relating to (a) a Release occurring during the fee
ownership of Seller in and to the Real Property, of Hazardous Substances in, on, under, above,
at or from the Real Property, or (b) a violation by Seller or by any of the Seller Indemnified
Parties of any Environmental Laws relating to the Real Property, whether known or unknown,
which occurred during the fee ownership by Seller of the Real Property; provided, however,
Buyer and Buyer Indemnified Parties shall not be entitled to indemnification under this Section
11.2.1 of the Agreement to the extent that their Losses result directly or indirectly from the
negligence or wrongful conduct of Buyer or of one or more, of the Buyer Indemnified Parties.
11.2.2 Buyer Indemnification. Buyer shall, and hereby does, indemnify,
defend, and hold harmless Seller and each of the Seller Indemnified Parties from and against all
Losses incurred, suffered by or claimed against anyone or more of the Seller Indemnified
Parties, by reason of, arising out of or relating to (a) a Release occurring during the fee
ownership by Buyer of the Real Property or by one or more of the Buyer Indemnified Parties of
Hazardous Substances in, on, under, above, at or from the Real Property, or (b) a violation by
Buyer or by anyone of the Buyer Indemnified Parties of any Environmental Laws relating to the
Real Property, whether known or unknown, which occurred during either (i) the fee ownership of
Buyer of the Real Property and/or (ii) the time period between the Effective Date and the Close
of Escrow; provided, however, Seller and Seller Indemnified Parties shall not be entitled to
indemnification under this Section 11.2.2 of the Agreement to the extent that their Losses result
directly or indirectly from the negligence or wrongful conduct of Seller or of one or more, of the
Seller Indemnified Parties.
11.3. Duty to Defend; Attorneys Fees and Expenses. Upon written request by any
Buyer Indemnified Party, Seller shall defend the Buyer Indemnified Parties for any claims that are
within the scope of the indemnity obligation set forth in section 11.2.1 above (if requested by any
of the Buyer Indemnified Parties, in the name of the Buyer Indemnified Parties) by attorneys and
other professionals, including engineers and environmental consultants selected by the Seller,
subject to the reasonable approval of the Buyer Indemnified Parties. Upon written request by any
one or more of the Seller Indemnified Parties, Buyer shall defend the Seller Indemnified Parties
for any claims that are within the scope of the indemnity obligation set forth in section 11.2.2
above (if requested by any of the Seller Indemnified Parties, in the name of the Seller Indemnified
Parties) by attorneys and other professionals, including engineers and environmental consultants
selected by Seller, subject to the reasonable approval of the Seller Indemnified Parties.
11.4. Survival. All rights of the Buyer Indemnified Parties and all obligations of Seller
under this Section 11 shall survive the Close of Escrow, recordation of the Grant Deed, and
Seller's conveyance, and Buyer's acceptance, of record title to the Real Property. All rights of the
Seller Indemnified Parties and all obligations of Buyer under this Section 11 shall survive the
Close of Escrow.
11.5, Preservation and Retention of Rights. Notwithstanding anything in this
Agreement to the contrary, Seller and Buyer preserve and retain any rights under all laws
including without limitation the Environmental Laws that either party may have against any third
party.
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12. DAMAGE OR DESTRUCTION PRIOR TO CLOSING.
The risk of physical loss to the Real Property shall be borne by Seller prior to the Close
of Escrow and by Buyer thereafter. If the Real Property, or any portion thereof, is darnaged or
destroyed prior to the Close of Escrow frorn any cause whatsoever, whether an insured risk or
not, and such damage or destruction materially interferes with Buyer's ability to construct the
State Project (as determined in Buyer's sole and absolute discretion, subject to the concurrence
of the SPWB), Buyer shall have the right, upon written notice to Seller within five (5) business
days after the date Buyer receives notice of the loss from Seller, to terminate this Agreement
and cancel Escrow in accordance with section 8.2.
13. CONDEMNATION PRIOR TO CLOSING.
If Seller receives written notice from any agency or authority having the power of
eminent dornain advising of an actual or intended condemnation of all or any portion of the Real
Property ("Condemnation Notice"), and such condemnation materially interferes with Buyer's
ability to construct the State Project (as determined in Buyer's sole and absolute discretion,
subject to the concurrence of the SPWB), Seller shall immediately advise Buyer of same in
writing and deliver therewith a copy of the Condemnation Notice. Buyer shall have the option,
upon written notice to Seller within five (5) business days after the date Buyer receives the
Condemnation Notice, to terminate this Agreement and cancel Escrow in accordance with
section 8.2.
14. MISCELLANEOUS.
14.1. Notices. All notices required to be given by either party will be made in writing and
may be effected (i) by personal delivery, (Ii) via reputable overnight courier service, (iii) by mail,
registered or certified, postage prepaid with return receipt requested, or (iv) by facsimile
transmission. Notices sent by courier or mail must be addressed to the parties at the addresses,
and faxed notices must be sent to the parties at the facsimile numbers, appearing below in this
section 14.1, but each party may change its designated address or facsimile number by giving
written notice to the other party in accordance herewith. Notices delivered personally will be
deemed communicated as of actual receipt; notices sent via overnight courier will be deemed
communicated as of the date delivered by the courier; rnailed notices will be deemed
communicated as of the date of receipt or the fifth day after mailing, which ever occurs first; and
faxed notices will be deemed communicated as of the time and date of the facsimile confirmation
printout of the recipient. The parties' addresses, telephone numbers, and facsimile numbers are
as follows (telephone numbers are provided for convenience only):
Seller:
Redevelopment Agency of the City of San Bernardino
Attn.: Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Telephone: (909) 663-1044
Facsimile: (909) 663-2294
Buyer:
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn: Eunice Calvert-Banks
455 Golden Gate Avenue
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San Francisco, CA 94102
Telephone: (415) 865-4048
Facsimile: (415) 865-8885
E-mail: eunice.calvert-banks@jud.ca.gov
and
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn: Director
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-4055
Facsimile: (415) 865-8885
E-mail: kim.davis@jud.ca.gov
With a copy to:
Judicial Council of California
Administrative Office of the Courts
Office of the General Counsel
Attn: Managing Attorney, Real Estate Unit
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-4057
Facsimile: (415) 865-8885
E-mail: melvin.kennedy@jud.ca.gov
14.2. Entire Agreement. This Agreement, and the Exhibits attached hereto, represent
the final and entire agreement between the parties in connection with the terms and conditions of
the purchase and sale of the Real Property, and this Agreement supersedes and replaces any
and all prior and contemporaneous agreements, understandings, and communications between
the parties, whether oral or written, with regard to the subject matter hereof. There are no oral or
written agreements, representations, or inducements of any kind existing between the parties
relating to this transaction which are not expressly set forth herein. This Agreement may not be
modified except by a written agreement signed by both Buyer and Seller.
14.3. No Assignment; Binding Effect. Neither party may assign its rights under this
Agreement without the prior written consent of the other party, which may be given or withheld in
the sole and absolute discretion of the non-assigning party. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective heirs, legal representatives,
administrators, successors-in-interest, and assigns.
14.4. Waiver. No waiver of any provision of this Agreement shall be valid unless in
writing and signed by both parties hereto. No waiver by any party, at any time, of any breach of
any provision of this Agreement shall be deemed a waiver of a breach of any other provision
herein, or a consent to any subsequent breach of the same or another provision. If any action by
any party shall require the consent or approval of another party, such consent or approval of such
action on anyone occasion shall not be deemed a consent to or approval of such action on any
subsequent occasion or a consent to or approval of any other action.
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14.5. Captions, Headings, Exhibits, and Recitals. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience and do not define, limit,
construe, or describe the scope or intent of this Agreement. The recitals set forth in this
Agreement, and each and all of the exhibits attached to this Agreement, are incorporated herein
as if set forth in full in this Agreement.
14.6. Governing Law. This Agreement has been prepared, negotiated, and executed
in, and shall be construed in accordance with, the laws of the State of California, without regard to
conflict of law rules.
14.7. Time of the Essence. Time is of the essence with respect to all matters contained
in this Agreement.
14.8. Date of Agreement. All references in this Agreement to "the date of this
Agreement" or "the date hereof' shall be deemed to refer to the Effective Date.
14.9. Counting of Days. The time in which any act must be performed under this
Agreement shall be computed by excluding the first day and including the last day, unless the last
day is a non-business day (as defined below), in which case the last day of performance shall be
the next business day (as defined below). The term "non-business day" shall mean any "holiday"
as defined in Code of Civil Procedure section 7 and any "optional bank holiday" as defined in
Code of Civil Procedure section 7.5. Accordingly, the term "business day" shall mean any day
other than a non-business day.
14.10. Invalidity of any Provision. If any provision (or any portion of any provision) of
this Agreement is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, the legality, validity, and enforceability of the
remaining provisions (or the balance of such provision) shall not be affected thereby.
14.11. Drafting of Agreement. Buyer and Seller acknowledge that this Agreement has
been negotiated at arm's length, that each party has been represented by independent counsel
and that this Agreement has been drafted by both parties and no one party shall be construed as
the draftsperson.
14.12. No Third-Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of Buyer and Seller and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under, or to this
Agreement, except as expressly provided herein.
14.13. Further Acts. The parties agree to execute such instruments and to perform such
further acts as may be reasonably necessary to carry out the purposes and intent of this
Agreement.
14.14. Non-Discrimination. Buyer and Seller shall comply with, and this Agreement is
subject to, any and all laws prohibiting discrimination.
14.15. Conflict of Interest. No member, official, officer, or employee of the Buyer shall
have any direct or indirect interest in this Agreement or the State Project, nor shall such parties
participate in any decision relating to this Agreement or the State Project where such participation
is prohibited by law.
20
P:\Agendas\Agenda AltachmenlslAgrmts-Amend 2008\04-21-08 Courthouse - Real Property Acquisition Agreement.doc
14.16. Limitation on Liability. No member, official, officer, employee, or agent of the
Buyer shall be personally liable for any default or breach by the Buyer under this Agreement. No
member, official, officer, manager, employee, or agent of Seller shall be personally liable for any
default or breach by Seller under this Agreement.
14.17. Survival. All terms and conditions in this Agreement, which represent continuing
obligations and duties of the parties and have not been satisfied prior to the Close of Escrow shall
survive the Close of Escrow, and shall continue to be binding on the respective obligated party in
accordance with their terms. All covenants, representations and warranties that are intended by
Seller and Buyer in this Agreement to survive the Close of Escrow shall survive the Close of
Escrow.
14.18. Facsimile Signatures. Facsimile signatures shall not be accepted unless prior
agreement is obtained in writing by both parties. If agreed that facsimile signatures are
acceptable, they will be treated as original signatures; however, in no instance shall facsimile
signatures be accepted on any document to be recorded; such documents shall bear original
signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
SELLER:
BUYER:
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
THE STATE OF CALIFORNIA, on behalf of
THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS
By:
Name: Emil A. Marzullo,
Title: Interim Executive Director
Dated:
By:
Name: William C. Vickrey
Title: Administrative Director
Dated:
Approved as to Form and Legal Content:
//iJ-
. .. /1
By: ~~. "j,
Agency ~unsel
APPROVED AS TO FORM:
Administrative Office of the Courts,
Office of the General Counsel
By:
Name: Melvin L. Kennedy
Title: Managing Attorney, Real Estate Unit
Dated:
21
P:\Agendas\Agenda Attachmenls\Agrmts-Amend 2008\04-21-08 Courthouse - Real Property AcquisWon Agreement.doc
EXHIBIT A
MAP OF LAND
(SEE ATTACHED)
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LEGAL DESCRIPTION OF LAND
(TO BE PROVIDED)
B-1
EXHIBIT C
FORM OF GRANT DEED AND CERTIFICATE OF ACCEPTANCE
(SEE ATTACHED)
C-1
IvVHEN RECORDED MAIL TO: I
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
455 Golden Gate Avenue
San Francisco, CA 94102
~ttn: Director ~
OFFICIAL STATE BUSINESS - EXEMPT FROM
RECORDING FEES PURSUANT TO GOVT. CODE
SECTION 27383 AND DOCUMENTARY TRANSFER
TAX PURSUANT TO REVENUE AND TAXATION CODE
SECTION 11922.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED Agency: Judicial Council of California,
Administrative Office of the Courts
Project: New San Bernardino Courthouse
Proiect Parcel: 36-R1
APN(S): 135-221-22 --- County of San Bernardino
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic,
hereby GRANTS to THE STATE OF CALIFORNIA, on behalf of THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS, the following described real property situated in the State of
California, County of San Bernardino, City of San Bernardino, described as follows:
See Exhibit "A"
consisting of one (1) page attached hereto
and by this reference made a part hereof. REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
By:
Name: Emil A. Marzullo
Its: Interim Executive Director
Dated:
APPROVED AS TO FORM AND CONTENT:
Agency Counsel
C-2
CERTIFICATE OF ACCEPTANCE
Agency: JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS
Project: New San Bernardino Courthouse
DGS Parcel: 10495
Assessor's Parcel No.: 135-221-22
This is to certify that, pursuant to sections 15853, 27281 and 70301 et seq. of the California Government
Code, the interest in real property conveyed by the Grant Deed dated from
Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic, to THE STATE
OF CALIFORNIA, on behalf of THE JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF
THE COURTS, is hereby accepted by the undersigned officer on behalf of the State Public Works Board
pursuant to authority conferred by resolution of said Board duly adopted on June 13, 2008 and the Grantee
consents to the recordation thereof by its duly authorized officer.
Note to Recorder: If this certificate is for a correction deed, all corrections and/or changes to the previously
recorded deed must be reviewed and accepted by the State prior to recording a correction deed. All
correction deeds require a new Certificate of Acceptance dated subsequent to recordation of the original
deed or the most recent correction deed, if any.
Accepted
STATE OF CALIFORNIA
STATE PUBLIC WORKS BOARD
By
Jerry Leong
Assistant Administrative Secretary
Dated:
Consent
THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS
By
Dated:
William C. Vickrey
Administrative Director of the Courts
Approved as to form:
ADMINISTRATIVE OFFICE OF THE COURTS
OFFICE OF THE GENERAL COUNSEL
By:
Dated:
Melvin L. Kennedy
Managing Attorney, Real Estate Unit
Approved
DIRECTOR. DEPARTMENT OF GENERAL SERVICES
By
Dated:
James S. Martin, Assistant Chief
Real Property Services Section
C-4
EXHIBIT "0"
LOCATION OF EXHIBIT SEWER LINE
{SEE ATTACHED)
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