HomeMy WebLinkAboutCALIFORNIA, STATE OF - JUDICIAL COUNCIL OF CALIFORNIA - 2005
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A-2005-307
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.:
Court of Appeal, Fourth Appellate District, Division Three
City of Santa Ana, County of Orange, State of California
008-036-34; 008.067-27; 008-067-33; 008-067-40
O.SA-1419432 (08)
REAL PROPERTY ACQUISITION AGREEMENT
This Real Property Acquisition Agreement ("Agreement") is entered into by the
undersigned parties as of , 2005 (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 CITY OF SANTA ANA, a Charter City
and Municipal Corporation.
1.2, Buyer. The "Buyer" hereunder is THE STATE OF CALIFORNIA acting
through 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 andlor addenda, each of which is incorporated into and forms a part of
this Agreement for all purposes:
Exhibit A-
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F -
Exhibit G -
Exhibit H -
Form of Grant Deed and Certificate of Acceptance
Intentionally Omitted
Intentionally Omitted
Diagram of Easements, Setback, Transformer, & Lift Station
Form of Reciprocal Easement Agreement
Diagram of State Parking Area
City Parking Structure Description
Form of Memorandum of Agreement
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
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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 certain land situated in the City of Santa Ana, County of Orange, State of
California (the "Land"), as more particularly described in the form of the Grant Deed attached
hereto as Exhibit A ("Grant Deed") 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, 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 a two or three story building with an area of approximately 55,000 gross square feet
("State Project"), for use by the Court of Appeal, Fourth Appellate District, of the State of
California ("Court") for judicial, court, administrative, office, and related purposes. Buyer
anticipates that the construction of the State Project will commence on or about March 1, 2007.
The parties acknowledge that the State legislature has authorized the State Project as follows:
Line Item 0250-301-0001(2), of the Budget Act of 2000 (Ch. 52, Stats. of 2000), as
reappropriated, in part, in the Budget Act of 2003 and pending further reappropriation in the
proposed Budget Act of 2005; and Line Item 0250-301-0660 (1) of the Budget Act of 2002 (Ch.
379, Stats. 2002), as reappropriated in the Budget Acts of 2003 and 2004.
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
Ciose of Escrow by no later than the earlier of the following: (i) 11 :59 p.m. (PST) of the thirtieth
(30th) day after Seller has caused the substantial completion of construction of the City Parking
Structure pursuant to Section 6.9 of this Agreement, or (ii) 11 :59 p.m. (PST) on December 1,
2006 ("Closing Date"). Buyer and Seller shall each have a one-time right to extend the Closing
Date for a period of up to sixty (60) days at any time prior to the current Closing Date by
delivering to the other Party and to Escrow Holder a written notice specifying the new Closing
Date.
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 6.16 (each a "Buyer Contingency," and collectively "Buyer Contingencies") are
performed and satisfied within the applicable time periods specified herein. The Buyer
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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 Title Report, Within fifteen (15) days of the Effective Date,
Seller shall deliver to Buyer a preliminary title report for the Real Property ("Title Report")
issued by First American Title Company, 2 First American Way, Santa Ana, California 92707,
Attention: Alberto Alvarado, Phone: (714) 800-4909, Fax: (714) 800-4909, E-mail:
aalvarado@firstam.com ("Title Company"), and 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
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.
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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 Escrow Holder and 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 and cancel the
Escrow 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 an AL 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) those certain public
utility easements of record shown and described on Exhibit D attached hereto ("Permitted
Utility Easements"); (ii) any exceptions shown on the Title Report which Buyer has not
specifically disapproved; and (iii) 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, By no later than five (5) business days prior to the Closing
Date, or sooner if otherwise expressly required elsewhere in this Agreement, 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 duly executed by Seller and notarized;
6.5.2. One (1) copy of Seller's City Council resolution or certified City Clerk's
minute order 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 terms 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 and notarized the Certificate of Acceptance attached to the Grant
Deed, or in such form and content as then required by applicable law.
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6,7. Expiration of CEQA Statute of Limitation. With respect to the State Project,
prior to submittal to the SPWB for acquisition authorization, the statute of limitation period under
the California Environmental Quality Act, as set forth at California Public Resources Code
section 21000, et seq. ("CEQA"), shall have expired.
6.8, REA. The parties shall have executed and deposited with Escrow Holder that
certain Reciprocal Easement Agreement in the form attached hereto as Exhibit E ("REA"). The
REA shall be recorded immediately following the recordation of the Grant Deed against Seller's
land adjacent to the Real Property, as more particularly described in the REA ("Seller's
Adjacent Real Property") and the Real Property.
6.9, Construction of City Parking Structure, At least thirty (30) days prior to the
Close of Escrow, Seller shall cause the substantial completion of construction of that certain
parking structure and all improvements related thereto substantially in compliance with the
general description attached hereto as Exhibit G ("City Parking Structure"), subject to
reasonable delays due to Force Majeure. The City anticipates that the substantial completion of
construction of the City Parking Structure will occur by approximately October 31, 2006. The
entire ground floor of the City Parking Structure is intended to be used for parking by the Court's
judges, employees, guests, and invitees, as more particularly described herein and shown on
Exhibit F attached hereto ("State Parking Area"). Seller shall use best efforts to ensure that (I)
the schematic design, appearance, and perimeter security features of the exterior of are
aesthetically, architecturally, and functionally compatible with the proposed State Project for the
purpose of, among other things, prohibiting access and visibility by unauthorized persons into
the State Parking Area, subject to the limitation of Seller's construction budget for the City
Parking Structure; and (ii) Seller's design-build contractor for the City Parking Structure ("City
Parking Contractor") cooperates in good faith with Buyer's architect, Carrier Johnson, to carry
out the intent of this Section 6.9. As used herein, the term "Force Majeure" means any act,
neglect, or delay resulting from adverse weather, acts of God, acts of the public enemy, riots or
civil commotion, embargoes, labor strikes, City-wide lockouts, accidents, fire, war, terrorist acts,
governmental pre-emption in connection with a national emergency, or rules, orders or
regulations of any department, bureau or subdivision of any governmental authority (other than
the City).
6.10, Termination and Relocation of Easements, By no later than three (3) days
prior to the Closing Date, Seller shall, at its sole cost and expense: (i) cause to be removed and
terminated of record all easements of record against the Real Property, except for the Permitted
Utility Easements; and (ii) obtain a written consent or encroachment permit from SBC
Communications, Inc., the holder of the easement for public utilities and incidental purposes in
the area identified as 1A on Exhibit D and as set forth in a document recorded on April 22, 1971,
in Book 9614, Page 990 of the Official Records of the County of Orange ("SBC Easement"),
permitting the construction and encroachment of the State Project over the SBC Easement.
6.11. Memorandum of Agreement. By no later than three (3) days following the
Effective Date, Seller shall execute, notarize, and deliver to Escrow Holder the Memorandum of
Agreement in the form attached hereto as Exhibit H, with instructions authorizing Escrow
Holder to record the Memorandum of Agreement in the Official Records of Orange County,
California.
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6.12, Demolition and Grading,
6.12,1, By no later than one hundred twenty (120) days after SPWB's
authorization of the acquisition of the Real Property pursuant to this Agreement, Buyer shall
provide Seller with Buyer's specifications and requirements for the fill and grading of the Land
("Grading Specifications"), which shall be consistent with the area and elevations shown as
Key Note "6" on Exhibit D attached hereto, and the requirement for compaction of fill shall be
the maximum soil bearing capacity of the soil obtained from the City Parking Structure footing
excavation, as determined by the City's soils engineer; and
6.12,2. By no later than thirty (30) days prior to the Close of Escrow, Seller shall,
at its sole cost and expense, complete the following work in a good and workmanlike manner,
and in compliance with all applicable laws: (i) Demolish and remove the existing detention
facilities and related improvements located on the Land, including, but not limited to, surface
improvements, footings and foundations, demolition debris, stairways, and any utility
improvements or connections (which shall be stubbed to the point of connection outside the
boundary line of the Land), but excluding the existing parking lot lighting fixtures shown as Key
Note "4D" on Exhibit D attached hereto; and (Ii) fill and grade the Land in accordance with the
Grading Specifications, subject to Buyer's reasonable approval and satisfaction.
6.13, Relocation of Transformer. Prior to the Close of Escrow, Seller shall, at its sole
cost and expense, cause that certain transformer located on the Land to be moved and
relocated to the area identified as "RELOCATED TRANSFORMER" on Exhibit D attached
hereto. Seller shall cause such work to be completed in a good and workmanlike manner, and
in compliance with all applicable laws. Seller shall not permit any lien or stop-notice to be filed
against the Real Property in connection with Seller's satisfaction of its obligation pursuant to this
Section 6.13. In the event that any such lien attaches to the Real Property, Seller shall take all
necessary actions to remove any such liens by payment or by providing sufficient security to
cause the removal of the lien.
6.14, Preservation of Existing Trees, In connection with the construction of the City
Parking Structure, Seller shall use best efforts to preserve the existing trees located along the
easterly boundary of Seller's Adjacent Real Property. If any of the existing trees cannot be
preserved and are removed by Seller, then prior to the completion of the City Parking Structure,
Seller shall replace such trees with new trees of comparable type.
6.15. Parking Security Bid. Seller shall obtain a separate line-item bid from the City
Parking Contractor ("Bid") for Buyer's approval of the estimated cost of constructing the roll-
down garage access gate and in-fill closure panels ("Security Elements") restricting access to,
and visibility of, the State Parking Area in accordance with the schematic design for the exterior
appearance of the City Parking Structure approved by Carrier Johnson pursuant to Section 6.9.
If Buyer disapproves of the Bid, Seller shall use commercially reasonable efforts to revise the
Bid and/or to incorporate a change order to satisfy Buyer's comments and requirements, so long
as any revision or change order does not cause (i) the Bid to exceed Ninety Thousand Dollars
($90,000), or (ii) a delay in the construction schedule for the City Parking Structure. Seller shall
permit Buyer to participate in any discussions or negotiations with the City Parking Contractor in
connection with the foregoing. If the City Parking Contractor is unable to revise or incorporate
any change order to the Bid to the satisfaction of Buyer, Seller shall be permitted to use its
reasonable discretion in finalizing the Bid at no less than Ninety Thousand Dollars ($90,000),
and Seller shall proceed with the construction of the City Parking Structure, including the
Security Elements as described in the Bid.
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6.16. 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"). If
Buyer fails to deliver the Buyer Contingencies Notice to Seller and Escrow Holder within the
time period specified in this Section 6.16, Buyer shall be deemed to have disapproved of all
Buyer Contingencies, except for the Buyer Contingency set forth in Section 6.1, which shall be
governed by the terms thereof, and Buyer shall have the right. but not the obligation, to
terminate this Agreement and cancel the Escrow pursuant to Section 8.2.
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 7.5 (each a "Seller Contingency," and colhpctively "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 6.16 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.
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").
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, 6.6, 6.7, 6.9, 6.10, or 6.16) ("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
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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
6.1,6.6,6.7,6.9,6.10, or 6.16 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
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, This 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, the parties shall cooperate in good faith to open escrow for the
transaction contemplated hereunder ("Escrow") by depositing with First American Title
Company, 2 First American Way, Santa Ana, California 92707, Attention: Mr. Robert
Benavente, Phone: (714) 800-4721, Fax: (714) 800-3741, E-mail: rbenavente@firstam.com,
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Order No. O-SA-1419432 (08) ("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. Any funds deposited by Buyer into Escrow
shall be placed in an interest-bearing escrow account with all interest accruing to the benefit of
Buyer from the date of deposit until the date of disbursement.
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 to be recorded in the Official Records of Orange 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, less Seller's share of the Closing Costs as provided
herein, 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, and showing fee title to the
Real Property vested in Buyer, free and clear of all liens and encumbrances, except for the
Permitted Exceptions;
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 Orange 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) Seller and Buyer shall each pay one-half (Y:,)
of Escrow Holder's charges and fees; (Ii) Seller shall pay the premium for the CL T A coverage
portion of the Owner's Policy and any title endorsernents approved by Seller to cure any
Disapproved Exceptions; and (Iii) Buyer shall pay the additional cost of the premium for the
ALTA - Extended Coverage portion of the Owner's Policy in excess of the CLTA coverage
premium paid by Seller. The parties acknowiedge that Buyer and Seller, as governmental
entities, are 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
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and until Buyer receives an acceptable Owner's Policy issued to Buyer, along with an invoice
itemizing Buyer's share of Closing Costs.
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 a municipal corporation and charter city duly organized, validly
existing, and in good standing under the Constitution and 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, Does not and will not violate any provisions of any agreement
which is binding upon Seller or any of Seller's assets;
10,1,3,3, 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
10,1.3.4, Is not prohibited by any law, ordinance, or regulation.
10.1.4. To the best of Seller's knowledge:
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 othelWise 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 are present in, on, or under the Real
Property in violation of any Environmental Laws; and
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10.1.4.4. Except for any matters of record, there are no other leases,
rental agreements, or maintenance agreements with respect to the Real Property.
10.1.5, 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
Properly.
10,1,7, There are no encroachments of any improvements onto the Real
Property, nor do any of the improvements on the Real Properly encroach onto any neighboring
land owned by a third party.
10.1.8. There are no actual or pending public improvements on the Real
Properly 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, The Real Property is not subject to any building setback
restrictions, other than the "right-of-way" line along Ross Street shown as Key Note "2A" on
Exhibit D attached hereto.
10,1,11. The Buyer is exempt from any permit, building, or development
fee requirements of the City of Santa Ana in connection with Buyer's acquisition of the Real
Property and development and construction of the State Project.
10.1.12. 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):
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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.
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.
10,3, 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-
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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 as expressly provided in Section 6.12 of this Agreement. 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
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.
10.5. Seller's Post-Closing Covenants, From and after the Close of Escrow until
Buyer commences of construction of the State Project, Seller shall use gravel or sandbag dikes
as necessary to prevent discharge of earthen materials from the site during periOds of
precipitation or run-off, and shall clean, sweep. and sprinkle water or apply other means as
necessary to mitigate dust on the Real Property. Seller's obligations under this Section 10.5
shall survive the Close of Escrow and shall continue until Buyer commences construction of the
State Project.
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,
(ili) 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
Page 13
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(Rev.07121!05)
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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.
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, "Indemnified Parties" includes the State of California, and each of its
political subdivisions (other than the Seller or any of the other Seller Parties), and its branches,
divisions, entities, agencies, departments, members, managers, employees, agents, affiliates,
partners, attorneys, successors, and assigns.
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 substance.
Page 14
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11,2, Indemnification, Seller shall, and hereby does, indemnify, defend, and hold
harmless Buyer and each of the Indemnified Parties from and against all Losses incurred,
suffered by or claimed against anyone or more of the Indemnified Parties, by reason of, arising
out of or relating to any event which occurred during, or which is otherwise solely attributable to,
the time period prior to the Close of Escrow related to Seller's ownership, possession,
operation, management, maintenance, and repair of, and/or responsibility for the Real Property,
including, but not limited to, any Release of Hazardous Substances in, on, under, or near the
Real Property, or a violation of any Environmental Laws relating to the Real Property, whether
known or unknown, which may have occurred prior to the Close of Escrow.
11.3. Duty to Defend; Attorneys Fees and Expenses. Upon written request by any
Indemnified Party, Seller shall defend same (if requested by any of the Indemnified Parties, in
the name of the Indemnified Parties) by attorneys and other professionals, including engineers
and environmental consultants selected by the Seller, subject to the reasonable approval of the
Indemnified Parties.
11,4, Survival, All rights of the 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.
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 damaged or
destroyed prior to the Close of Escrow from 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 domain 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, (iil) 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
Page 15
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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; mailed 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:
With a copy to:
And to:
Buyer:
557986.11
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza M-30
Santa Ana, California 92701
Telephone: (714) 647-6520
Facsimile: (714) 647-6956
City of Santa Ana Public Works
Executive Director of Public Works
20 Civic Center Plaza M-21
Santa Ana, California 92701
Telephone: (714) 647-5201
Facsimile: (714) 647-5622
City of Santa Ana
Office of the City Attorney
20 Civic Center Plaza M-29
Santa Ana, California 92701
Telephone: (714) 647-5201
Facsimile: (714) 647-6515
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn: Clifford Ham, Senior Project Manager
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-7550
Facsimile: (415) 865-8885
E-mail: clifford.ham@jud.ca.gov
and
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn: Kim K. Davis, AlA, Director
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-7971
Facsimile: (415) 865-8885
E-mail: kim.davis@jud.ca.gov
Page 16
(Rev.07f21f05)
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With a copy to:
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) 865-8084
Facsimile: (415) 865-7664
E-mail: melvin.kennedy@jud.ca.gov
Department of General Services
Real Estate Services Division
Attn: Chief, Real Property Services Section
707 Third Street, 5th Floor
West Sacramento, CA 95605
Telephone: (916) 375-4099
Facsimile: (916) 375-4029
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.
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. Counterparts, This Agreement may be executed in counterparts, each of which
shall be considered an original and all of which taken together shall constitute one and the same
instrument.
557986.11
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14.7. 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.
14,8. Time of the Essence, Time is of the essence with respect to all matters
contained in this Agreement.
14.9. 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.
14,10. 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.
14.11, 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.
14.12, 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.
14.13, 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.
14,14, 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.
14.15, Non-Discrimination, Buyer and Seller shall comply with, and this Agreement is
subject to, any and all laws prohibiting discrimination.
14.16, 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.
14.17. 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.
Page 18
(Rev. 07121/05)
557986.11
14.18. 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 transfer of fee title to the Real Property to the State, and
shall continue to be binding on the respective obligated party in accordance with their terms.
14.19. 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:
By:
David N. Ream, City Manager
Page 19
557W6.11
BUYER:
THE STATE OF CALIFORNIA acting
through THE JUDICIAL COUNCIL OF
CALIFORNIA, ADMINISTRATIVE OFFICE
OF THE COURTS
/.. .' '.
~~~e~il~;rn~~W~krey
Its: _Adrninistrati~e DiJ;Qctor
of the Courts
APPROVED:
DEPARTMENT OF GENERAL SERVICES
Dwight V. Weathers
Chief, Real Property Services Section
(Rev. 07/21105)
.
.
GLOSSARY OF DEFINED TERMS
"ACM" is defined in Section 11.1.2.
"Agreement" is defined in the Introductory Paragraph.
"Appurtenances" is defined in Section 3.1.
"Bid" is defined in Section 6.15.
"Buyer" is defined in Section 1.2.
"Buyer Contingency(ies)" is defined in Section 6.
"Buyer Contingencies Notice" is defined in Section 6.16.
"Buyer Deliveries" is defined in Section 7.5.
"Buyer's Inspection Notice" is defined in Section 6.1.5.
"Breach" is defined in Section 8.1.
"CEQA" is defined in Section 6.7.
"City Parking Contractor" is defined in Section 6.9.
"City Parking Structure" is defined in Section 6.9.
"Close of Escrow" is defined in Section 9.2.
"Closing Costs" is defined in Section 9.3.
"Closing Date" is defined in Section 5.
"Condemnation Notice" is defined in Section 13.
"Court" is defined in Section 3.2.
"Default Notice" is defined in Section 8.1.
"Defaulting Party" is defined in Section 8.1.
"Disapproved Conditions" is defined in Section 6.1.5.
"Due Diligence Contingency Notice" is defined in Section 6.1.7.
"Due Diligence Deadline" is defined in Section 6.1.7.
"Effective Date" is defined in the Introductory Paragraph.
"Environmental Laws" is defined in Section 11.1.1.
Page 1
557986.11
{Rev. 07121105)
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"Escrow" is defined in Section 9.1.
"Escrow Holder" is defined in Section 9.1.
"Event of Default" is defined in Section 8.1.
"Exception Documents" is defined in Section 6.1.1.
"Force Majeure" is defined in Section 6.9.
"Grading Specifications" is defined in Section 6.12.1.
"Grant Deed" is defined in Section 3.1.
"Hazardous Substances" is defined in Section 11.1.2.
"Improvements" is defined in Section 3.1.
"Indemnified Parties" is defined in Section 11.1.3.
"Land" is defined in Section 3.1.
"Losses" is defined in Section 11.1.4.
"Non-Defaulting Party" is defined in Section 8.1.
"Other Due Diligence Inspections" is defined in Section 6.1.3.
"Owner's Policy" is defined in Section 6.2.
"PCBs" is defined in Section 11.1.2.
"Permitted Exceptions" is defined in Section 6.2.
"Permitted Utility Easements" is defined in Section 6.2.
"Purchase Price" is defined in Section 4.
"REA" is defined in Section 6.8.
"Real Property" is defined in Section 3.1.
"Release" is defined in Section 11.1.5.
"Remediation" is defined in Section 11.1.6.
"Security Elements" is defined in Section 6.15.
"Seller" is defined in Section 1 .1.
"Seller Cure Notice" is defined in Section 6.1.6.
"Seller's Adjacent Real Property" is defined in Section 6.8.
Page 2
557986.11
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(Rev.07121!05)
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"Seller's Deliveries" is defined in Section 6.5.
"Seller Contingency(ies)" is defined in Section 7.
"SPWB" is defined in Section 6.6.
"State Parking Area" is defined in Section 6.9
"State Project" is defined in Section 3.2.
"Storage Tanks" is defined in Section 11.1.7.
"Survey" is defined in Section 6.1.2.
"Title Company" is defined in Section 6.1.1.
"Title Report" is defined in Section 6.1.1.
Page 3
(Rev. 07121105)
557986.11
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557986.11
EXHIBIT A
GRANT DEED
(SEE ATTACHED)
Page 1
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(Rev. 07121/05)
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IWHEN RECORDED MAIL TO:
I
Judicial Council of California
Administrative Office of the Courts
Office of the General Counsel
455 Golden Gate Avenue
San Francisco, CA 94102
~ttn: Managing Attorney, Real Estate Unit
-.J
OFFICIAL STATE BUSINESS - EXEMPT FROM
RECORDING FEES PURSUANT TO GOV'T. 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: Court of Appeal, Fourth Appellate District, Div. 3
APN(S):
008-036-34; 008-067-27; 008-067-33; 008-067-40 County of Orange
CITY OF SANTA ANA
hereoy GRANTS to THE STATE OF CALIFORNIA, acting through THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS, the following descrioed real property situated in the State of California,
County of Orange, City of Santa Ana, descrioed as follows:
See Exhibit "pt
consisting of one (1) page attached hereto
and oy this reference made a part hereof.
Dated:
THE CITY OF SANTA ANA,
a Charter City and Municipal Corporation
By:
David N. Ream, City Manager
ATTEST
By:
Patricia A. Healy
Clerk of the Council
APPROVED AS TO FORM BY:
Joseph W. Fletcher
City Attorney
557986.11
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EXHIBIT "An
Legal Description
Real property in the City of Santa Ana, County of Orange, State of California, described
as follows:
That portion of Blocks A and B of the Ross Addition to Santa Ana as shown on the rnap
filed in Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County,
California, together with that portion of Lots 1 and 16 of Stout's Addition to Santa Ana as
shown on the map filed in Book 6, Page 28 of Miscellaneous Maps, Records of Orange
County, California, also to~ether with those portions of Van Ness Street (Abandoned),
5th Street (Abandoned), 6' Street (Abandoned), and Ross Street, all in the City of Santa
Ana, County of Orange, State of California, described as a whole as follows:
Beginning at the centerline intersection of Santa Ana Boulevard (108 feet wide) and Ross
Street ( 106 feet wide) as shown on Record of Survey 95-1031, filed in Book 149, Pages
49 and 50 of Records of Survey, Records of said County; thence South 49'02'03" West
248.90 feet along said centerline of Santa Ana Boulevard to the beginning of a curve
concave northwesterly having a radius of 800.00 feet; thence southwesterly along said
curve through a central angle of 5'41 '39" an arc length of 79.51 feet; thence North
35'16'18" West 54.00 feet to the northwesterly line of said Santa Ana Boulevard and the
true point of beginning; thence North 00'37'23" West 342.65 feet; thence North 89'22'37"
East 66.00 feet; thence North 00'37'23" West 51.08 feet to the beginning of a curve
concave northwesterly having a radius of 33.00 feet; thence easterly and northeasterly
along said curve through a central angle of 33'54 '20" an arc length of 19.53 feet; thence
North 01 '41'42" West 5.71 feet to the beginning of a curve concave southeasterly having
a radius 18.00 feet; thence northerly and northeasterly along said curve through a central
angle of 46'44'51" an arc length of 14.69 feet; thence North 45'03'09" East 31.20 feet to
the beginning of a curve concave northwesterly having a radius of 26.00 feet; thence
northeasterly, northerly, and northwesterly along said curve through a central angle of
71'14'38" an arc length of 32.33 feet; thence North 45'01 '29" East 0.66 feet; thence
North 89'57'38" East 138.81 feet to a line 40.00 feet west of the centerline of said Ross
Street; thence South 00'37'23" East 155.94 feet along said line; thence South 47'32'35"
West 17.45 feet to the west line of said Ross Street; thence South 00'37'23" East 111.77
feet along said west line to the beginning of a curve concave northwesterly having a
radius of 25.00; thence southerly and southwesterly along said curve through a central
angle of 49'39'26" an arc length of 21.67 feet to a point on said northwesterly line of
Santa Ana Boulevard; thence South 49'02'03" West 213.66 feet along said northwesterly
line to the beginning of a curve concave northwesterly having a radius of 746.00 feet;
thence southwesterly along said curve through a central angle of 5'41 '39" an arc length
of 74.14 feet to the true point of beginning.
Said parcel contains 80,718 square feet more or less.
557986.11
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CERTIFICATE OF ACCEPTANCE
Agency:
JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS
Court of Appeal, Fourth Appellate District, Div. 3
Project:
Agency Parcel:
Assessor's Parcel No.:
008-036-34; 008-067-27; 008-067-33; 008-067-40
This is to certify that, pursuant to Sections 15853 and 27281 of the California Government Code, the interest in real
property conveyed by the Grant Deed dated from THE CITY OF SANTA ANA, a Charter
City and Municipal Corporation, to THE STATE OF CALIFORNIA, acting through 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
and the Grantee consents to the recordation thereof by its duly authorized officer.
Note to Recorder: If this certificate is for a correction deed, al/ 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
Dated:
MARIANNE WETZEL
Assistant Administrative Secretary
Consent
STATE OF CALIFORNIA, acting through
THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS
By
Dated:
NAME OF AUTHORIZED SIGNATORY
Title of Authorized signatory
Consent
DIRECTOR, DEPARTMENT OF GENERAL SERVICES
By
Dated:
DWIGHT V. WEATHERS
Real Estate Services Section
557986.11
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557986.11
EXHIBIT B
INTENTIONALLY DELETED
.
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557986.11
EXHIBIT C
INTENTIONALLY DELETED
.
557986.11
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EXHIBIT D
DIAGRAM OF EASEMENTS, SETBACK, TRANSFORMER, & LIFT STATION
EXHIIIT "'IT
-
W.J' rea
_lUll
"
;f.<wmI\ilX,
J\o~~1ft!Il....~
IJIKlRIIIRIlS'fa
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.
EXHIBIT E
FORM OF RECIPROCAL EASEMENT AGREEMENT
(SEE ATTACHED)
557986.11
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Judicial Council of California
Adrninistrative Office of the Courts
Office of the General Counsel
455 Golden Gate Avenue
San Francisco, CA 94102
Attn: Managing Attorney, Real Estate Unit
RECIPROCAL EASEMENT AGREEMENT
This RECIPROCAL EASEMENT AGREEMENT (this "Agreement"), dated for reference
purposes only as of , 200_, is entered into by between THE STATE OF
CALIFORNIA acting through THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS ("State") and THE CITY OF SANTA ANA, a
Charter City and Municipal Corporation ("City"), with reference to the following recitals:
Recitals
A. The State is the fee owner of that certain parcel of real property located in the
City of Santa Ana, County of Orange, State of California, as more particularly described on
Exhibit A attached hereto (the "State Parcel"). The State intends to construct certain court
facilities and related improvements on the State Parcel, including a two or three story building
with an area of approximately 55,000 gross square feet ("State Project"), for use by the Court
of Appeal, Fourth Appellate District, of the State of California ("Court").
B. The City is the fee owner of that certain parcel of real property located adjacent
to the State Parcel, as more particularly described on Exhibit B attached hereto (the "City
Parcel"). The City intends to construct a parking structure and related improvements on the
City Parcel ("City Parking Structure"). The entire ground floor of the City Parking Structure is
intended to be used for parking by the Court's judges, employees, guests, and invitees, as more
particularly described herein and shown on Exhibit C attached hereto ("State Parking Area").
C. The State and the City desire to enter into this Agreement to ensure the orderly
ownership, operation, and maintenance of the City Parcel and the State Parcel (collectively,
"Real Properties"), and to grant reciprocal easements over the Real Properties to allow owners
and users of the Real Properties reasonable rights of access, ingress, and egress to and from
each of the respective Real Properties, as more particularly described herein and depicted on
Exhibit D attached hereto.
Agreement
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the City and the State (each, a "Party" and
collectively, the "Parties") hereby agree as follows:
557986.11
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1. Grant of Easements.
1,1, Drivewav Access Easement. The City hereby grants to the State and
its Related Parties (as hereinafter defined) a non-exclusive easement over portions of the City
Parcel in the areas identified as "1 C" on Exhibit D attached hereto for purposes of vehicular
and pedestrian access, ingress, and egress between Santa Ana Boulevard and the City Parking
Structure (as defined below). For purposes of this Agreement, the term "Related Parties" shall
mean the officials, representatives, agents, employees, contractors, subcontractors, guests,
invitees, agencies, departments, political subdivisions (as applicable), successors, and assigns
of the particular Party referenced in connection therewith.
1,2, EmerClencv Access Easements.
1,2,1, The State hereby grants to the City and its Related Parties a non-
exclusive easement over the portions of the State Parcel identified as "1 E" on Exhibit D
attached hereto for purposes of access, ingress, and egress by pedestrians and emergency
personnel and vehicles (e.g., fire, police, paramedics), and for fire lane and emergency vehicle
access purposes in accordance with the requirements of the Uniform Fire Code, to and from the
State Parcel and the City Parcel; and
1.2,2, The City hereby grants to the State and its Related Parties a non-
exclusive easement over the portions of the City Parcel identified as "1 D" on Exhibit D attached
hereto for purposes of access, ingress, and egress purposes by pedestrians and emergency
personnel only (e,g., fire, police, paramedics) to and from the State Parcel and the City Parcel.
1,3, Lift Station Easement. The State hereby grants to the City and its
Related Parties a non-exclusive easement over the State Parcel for purposes of access to, and
maintenance of, the transformer and the storm sewer lift station (below street grade) located on
the portions of the State Parcel identified as "1 B" on Exhibit D attached hereto ("Lift Station").
1.4, State ParkinCl Easement. The City hereby grants to the State and its
Related Parties an exclusive easement and irrevocable and perpetual right to use the State
Parking Area, which will be comprised of the entire ground floor of the City Parking Structure, as
shown and described on Exhibit C attached hereto, for purposes of secured and segregated
parking and any purposes related or incidental thereto.
1.5, City ParkinCl Structure Easements. The State hereby grants to the City
and its Related Parties non-exclusive easements over the portions of the State Parcel identified
as "1E" on Exhibit D attached hereto for purposes of (i) maintenance and repair of the City
Parking Structure, and (ii) the construction, maintenance, repair, and replacement of the
footings and subsurface foundations of the City Parking Structure along the westerly boundary
of the State Parcel. The extent of the easements for the footings and foundation improvements
shall be defined and limited by the as-built improvements as and when constructed. The City
shall notify the State at least seven (7) days prior to the City's entry upon the State Parcel for
purposes of exercising the easement rights granted under this Section 1.5. The City shall use
reasonable efforts to minimize any disturbance or damage to the State Parcel in connection with
the City's exercise of its rights hereunder, and the City shall restore the State Parcel to good
condition if the City's activities on the State Parcel result in any disturbance or damage to the
State Parcel, at the City's sole cost and expense.
557986.11
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1,6, No Abandonment or OverburdeninQ. No act or failure to act on the
part of either Party shall be deemed to constitute an abandonment or surrender of any
easement rights granted hereunder, except upon recordation by the grantee of a quitclaim deed
specifically conveying such easement (or such portion thereof) back to the grantor. Without
limiting the generality of the foregoing, mere non-use of any easement granted hereunder shall
not prevent the grantee thereof from using the entire easement to the fullest extent permitted
hereunder in the future. It is the intention of the Parties that the easements granted hereunder
be used for any and all purposes incidental or relating to the specified purposes, and no
increase in the character, degree or nature of the use of such easements in the future, and no
assignment, grant, license, transfer or conveyance of any subordinate rights by either Party
shall, separately or in the aggregate, constitute an impermissible surcharge or overburdening of
the servient estate.
2, Maintenance ObliQations.
2,1, Maintenance of Lift Station. The City shall operate, maintain, and
repair the Lift Station in good condition such that the drainage needs of the State Parcel are
adequately satisfied. The State shall reimburse the City for 18.75% of the reasonable out-of-
pocket costs of operating, maintaining, and repairing the Lift Station located on the State Parcel
for the preceding fiscal year ("Lift Station Costs"); provided, however, that the State's
obligation to reimburse the City for the State's share of the Lift Station Costs shall be subject to
the State's receipt of a statement detailing the Lift Station Costs for the preceding fiscal year
and a budget appropriation by the State Legislature. The City shall maintain all records
evidencing the Lift Station Costs for at least five (5) years following the City's delivery of the
applicable statement, and the State shall have the right to audit the statement and records
associated with the Lift Station Costs. If such audit reveals that an increase or decrease to the
Lift Station Costs is appropriate, the Parties shall cooperate in good faith to make the necessary
reimbursements or adjustments within a reasonable period of time after the State's completion
of such audit; provided, however, that the State shall not be obligated to make any payments
unless and until any discrepancies revealed by such audit are resolved by the Parties.
2.2. Maintenance and Repair of City ParkinQ Structure. The City shall, at
its sole cost and expense, operate, maintain, and repair all portions of the City Parking Structure
in good condition, except for the interior surfaces, lighting, fixtures, and security improvements
within the State Parking Area, which the State shall operate, maintain, and repair in good
condition, at the State's sole cost and expense. The State shall have the right to (i) install a
secured access card and parking gate entry system for the State Parking Area, and (ii) conduct
security background investigations on any personnel, staff, or contractors employed or
contracted by the City or its Related Parties, or any other persons who may have operational
access to, or responsibility for, the secured areas of the State Parking Area. If the State
determines (in its sole and absolute discretion) that any personnel of the City or its Related
Parties do not satisfy the security background requirements of the State, the State shall have
the right to refuse and/or restrict access to the State Parking Area by such personnel.
2.3. DamaQe or Destruction of City ParkinQ Structure. If all or any portion
of the City Parking Structure is partially or totally damaged or destroyed by fire or other casualty
such that the State Parking Area is not usable or accessible by the State in whole or in part, the
City shall diligently repair such damage in order to fully restore the State's access to and use of
the State Parking Area and/or the Additional Parking (as applicable) as soon as reasonably
possible. During the time period that the State does not have access to or use of all or a portion
of the State Parking Area, the City shall use best efforts to provide the State with temporary
557986.11
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replacement parking of comparable convenience and security ("Temporary Parking"), at no
cost to the State. The City shall continue to provide the Temporary Parking until such time as
the State's use of and access to the State Parking Area is fully restored, or until the City
provides permanent replacement parking of comparable convenience and security as the State
Parking Area, at no cost to the State. In the event that the City determines that the repair or
replacement of the City Parking Structure is not feasible, then the City shall provide the State
with permanent replacement parking of comparable convenience and security as the State
Parking Area, at no cost to the State.
2,4, Notice and Riaht to Cure, If the State believes that the City has not
complied with the City's obligations set forth in Section 2.1, 2.2, or 2.3 above, the State shall
notify the City in writing consistent with Section 6.1 below, and the City shall have thirty (30)
days from receipt of such written notice to respond to such notice either by undertaking any
reasonable maintenance, repairs, or restorations requested by the State in such notice or by
providing the State with information evidencing that the maintenance, repairs, and/or
restorations requested by the State in its notice are not required pursuant to this Agreement.
The Parties shall cooperate in good faith to resolve any disagreements as to any maintenance
or repairs requested by the State pursuant to this Section 2.4. Notwithstanding anything to the
contrary set forth herein, the City shall not be deemed to have committed an event of default
hereunder unless the City has failed to commence with due diligence and dispatch the cure
requested by the State within said thirty (30) calendar day period and does not thereafter
promptly and continuously prosecute such to completion within sixty (60) calendar days after the
date on which the City received the State's notice alleging that the City has not complied with
Section 2.1, 2.2, or 2.3.
3, Other Riahts. Restrictions. Covenants.
3.1, Ootion to Rent Additional Parkina, The City hereby grants in favor of
the State an option to rent up to thirty-five (35) additional parking spaces in the City Parking
Structure ("Additional Parking"), subject to availability, at the market rental rates prevailing at
the time the State exercises such option for comparable parking spaces in comparable parking
structures within the Santa Ana Civic Center ("Prevailing Market Rate"). This option shall be
exercisable by the State at any time from and after the completion of construction of the City
Parking Structure. In order to exercise said option, the State shall notify the City in writing of its
intent to acquire additional parking spaces and the number of parking spaces needed ("Notice
of Intent"). Upon the City's receipt of the Notice of Intent, the City shall reserve the number of
parking spaces requested by the State, subject to availability at the time of the City's receipt of
the Notice of Intent. Within fifteen (15) days of the City's receipt of the Notice of Intent, the City
shall notify the State in writing of the number of additional parking spaces available and the
Prevailing Market Rate then in effect ("Notice of Availability"). Within thirty (30) days of the
State's receipt of the Notice of Availability, the State may exercise its option by notifying the City
in writing of the State's exercise of the option with respect to the number of additional parking
spaces identified in the Notice of Availability at the Prevailing Market Rate then in effect
("Exercise Notice"). Within sixty (60) days of the City's receipt of the Exercise Notice, the State
and the City shall cooperate to execute a written amendment to this Agreement amending the
description of the State Parking Area to include the additional parking spaces identified in the
Exercise Notice. The State's option rights hereunder shall continue hereunder in perpetuity until
such time that the State acquires all thirty-five (35) additional parking spaces in the City Parking
Structure. If all or any portion of the City Parking Structure is partially or totally damaged or
destroyed by fire or other casualty such that the Additional Parking is not accessible or usable
by the State in whole or in part, the State's obligation to pay rent shall be abated indefinitely
557986.11
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from the date of damage or destruction and until such time that the State's access to and use of
the Additional Parking is fully restored, or until the City provides permanent replacement parking
of comparable convenience and security as the Additional Parking.
3.2, City Parkina Structure Expansion. Any expansion of the City Parking
Structure beyond the general description of the City Parking Structure attached hereto as
Exhibit E shall be subject to the prior written approval of the State, which shall not be
unreasonably withheld. Notwithstanding the foregoing, it shall be reasonable for the State to
withhold its approval of any expansion of the City Parking Structure if such expansion (i)
materially interferes with the continued use of the State Project, (ii) is architecturally or
aesthetically inconsistent with the existing City Parking Structure and State' Project, or (iii)
materially compromises the security of the existing State Parking Area.
3,3. Open Parkina Structure - Unprotected Openinas. No buildings or
enclosed structures of any kind (other than landscaping, sidewalks, open trellises, covered
walkways, pavement, or improvements related thereto) shall be permitted within ten (10) feet of
the outside perimeter of the City Parking Structure, from ground to sky, along the westerly
boundary of the State Parcel in compliance with Section 503.2 and Table 5-A of the California
Building Code (as amended). This Section 3.3 shall not be amended or modified without the
express written consent of the Building Official of the City of Santa Ana.
4, Covenants Runnina With The land, The Parties do hereby declare that the
Real Properties and all improvements and appurtenances thereon, to the extent owned by each
of them, shall be subject to this Agreement. Each of the Real Properties shall be held,
conveyed, hypothecated, encumbered, leased, rented, used, and occupied subject to the
provisions of this Agreement. It is the express intent of the Parties that the covenants contained
herein shall be covenants running with the land, in accordance with the provisions of Section
1468 of the California Civil Code. All the provisions hereof are declared to be in furtherance of a
plan for the use and occupancy of the Real Properties and shall burden, benefit, and be
appurtenant to the Real Properties, and shall be binding on all owners of the Real Properties
and all other Parties having or acquiring any right, title or interest in any portion of the Real
Properties, and their respective grantees, heirs, executors, administrators, successors and
assigns. Each of the easements, covenants, conditions, and restrictions set forth herein shall
be deemed to be effective upon the recordation of this Agreement in the Official Records of
Orange County.
5, Indemnification.
5,1, For so long as each Party holds an ownership interest in the Real
Properties, each Party and its respective successors and assigns (each an "Indemnifying
Party") shall indemnify, defend, and hold the other Party and its Related Parties ("Indemnified
Parties") harmless from and against any and all claims, liabilities, losses, costs or damages that
the Indemnified Parties may incur as a result of any negligent Dr intentional acts or omissions by
any Indemnifying Party on or around the Real Properties in connection with this Agreement.
5,2. The City shall indemnify, defend, and hold the State and its Related
Parties harmless from and against any and all claims, liabilities, losses, costs or damages that
the State or its Related Parties may incur as a result of the presence of the City Parking
Structure footings and foundation improvements constructed on the State Parcel pursuant to
Section 1.5 above, and any negligent or intentional acts or omissions of the City or its Related
Parties in connection with the City's exercise of its rights under Section 1.5 above. This Section
557986.11
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5.2 is intended to be in furtherance of and in addition to, and not as a limitation upon, the
indemnity and defense obligations of the City under Section 5.1 above.
5.3, Notwithstanding anything herein to the contrary, the indemnification
obligations set forth in this Section 5 shall immediately and automatically terminate and shall be
of no further force or effect as to an Indemnifying Party upon such Indemnifying Party's sale or
other transfer or conveyance of the entirety of its interest in and to the Real Properties, and
thereafter only the holders of an ownership interest in the Real Properties shall be obligated and
liable for the indemnification obligations hereunder; provided, however, that no Indemnifying
Party shall be released from liability for indemnification as to any acts or omissions which may
have occurred prior to such Indemnifying Party's sale or other transfer or conveyance of the
entirety of its interest in the Real Properties.
5,4. The indemnification obligations in this Section are expressly intended to
be, and shall be, several and no Indemnifying Party shall be liable for or obligated to indemnify
the Indemnified Parties for any losses, costs or damages incurred by the Indemnified Parties as
a result of any negligent or intentional acts or omissions of another Indemnifying Party or the
Indemnified Parties.
5.5, If any third party notifies a Party of any matter (a "Third Party Claim")
which may give rise to a claim for indemnification under this Section 5, then that Party shall
promptly notify the Indemnifying Party in writing of the Third Party Claim. The Indemnifying
Party shall be relieved of any obligation or liability under this Section 5, to the extent a delay by
the Party giving notice of the receipt of the Third Party Claim results in any damage or prejudice
to that Party. If the Indemnifying Party is conducting the defense of the Third Party Claim, the
Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim, without the prior written consent of the Indemnified Party
(which consent shall not be withheld unreasonably).
6, General Provisions,
6.1. Notices. All notices or other communications between City and
Developer required or permitted hereunder shall be in writing and personally delivered or sent
by fax, certified mail, return receipt requested and postage prepaid, or sent by reputable
overnight courier, to the following addresses:
If to City:
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza M-30
Santa Ana, California 92701
Telephone: (714) 647-6520
Facsimile: (714) 647-6956
With a copy to:
City of Santa Ana Public Works
Executive Director of Public Works
20 Civic Center Plaza M-21
Santa Ana, California 92701
Telephone: (714) 647-5201
Facsirnile: (714) 647-5622
557986.11
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And to:
If to State:
With a copy to:
With a copy to:
.
City of Santa Ana
Office of the City Attorney
20 Civic Center Plaza M-29
Santa Ana, California 92701
Telephone: (714) 647-5201
Facsirnile: (714) 647-6515
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn.: Clifford Ham, Senior Project Manager
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-7550
Facsimile: (415) 865-8885
E-mail: c1ifford.ham@jud.ca.gov
and
Judicial Council of California
Administrative Office of the Courts
Office of Court Construction and Management
Attn.: Kim K. Davis, AlA, Director
455 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 865-7971
Facsimile: (415) 865-8885
E-mail: kim.davis@jud.ca.gov
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) 865-8084
Facsimile: (415) 865-7664
E-mail: melvin.kennedy@jud.ca.gov
Department of General Services
Real Estate Services Division
Attn: Chief, Real Property Services Section
707 Third Street, 5th Floor
West Sacramento, CA 95605
Telephone: (916) 375-4099
Facsimile: (916) 375-4029
A notice shall be effective on the date of personal delivery or transmission of a confirmed
facsimile, if the personal delivery or confirmed facsimile is received before 5:00 p.m. on a
business day of the recipient, otherwise on the first business day following the date of such
personal delivery or facsimile transmission, or three (3) business days following the date the
557986.11
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notice is postmarked, if sent by certified U.S. mail, with return receipt requested, or one (1)
business day after such notice is deposited with a reputable overnight courier, if sent by
overnight courier. Either Party may change the address to which notices are to be given to it by
giving notice of such change of address in the manner set forth above for giving notice.
6.2. Term. This Agreement shall remain in effect in perpetuity, unless and
until the Parties mutually execute and record a written notice terminating this Agreement,
whereupon the Parties shall have no further rights or obligations one to another hereunder,
except for liabilities that accrued prior to the date of such recordation.
6.3, Entire Aqreement. That certain Real Property Acquisition Agreement
dated 2005, between the State and the City with respect to the State's acquisition of
the State Parcel from the City, this Agreement, and the Exhibits attached hereto, represent the
final and entire agreement between the Parties in connection with the terms hereof, 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 Parties.
6.4, 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.
6,5, Captions. Headinqs, 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.
6.6. Counterparts. This Agreement may be executed in counterparts, each
of which shall be considered an original and all of which taken together shall constitute one and
the same instrument.
6,7, Governinq 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.
6,8, Time of the Essence. Time is of the essence with respect to all matters
contained in this Agreement.
6,9, Countinq of Davs. 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
557986.11
8
.
.
defined in Code of Civil Procedure Section 7.5. Accordingly, the term "business day" shall
mean any day other than a non-business day.
6.10. 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.
6.11, DraftinQ of AQreement. The Parties 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.
6,12, No Third-Party Beneficiary RiQhts. This Agreement is entered into for
the sole benefit of each Party and its Related Parties as set forth herein, and no other third
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.
6.13, 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first written above.
CITY:
STATE:
THE CITY OF SANTA ANA,
a Charter City and Municipal Corporation
THE STATE OF CALIFORNIA acting
through THE JUDICIAL COUNCIL OF
CALIFORNIA, ADMINISTRATIVE OFFICE
OF THE COURTS
By:
David N. Ream, City Manager
ATTEST
By:
Name:
Its:
By:
Patricia A. Healy
Clerk of the Council
APPROVED:
APPROVED AS TO FORM BY:
DEPARTMENT OF GENERAL SERVICES
Joseph W. Fletcher
City Attorney
Dwight V. Weathers
Chief, Real Property Services Section
557986.11
9
.
.
ACKNOWLEDGMENTS
COUNTY OF
)
)
)
ss.
STATE OF CALIFORNIA
On , 200_, before me, the undersigned, a notary public in and for said
State, personaliy appeared ,
personaliy known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
COUNTY OF
)
)
)
ss.
STATE OF CALIFORNIA
On , 200_, before me, the undersigned, a notary public in and for said
State, personaliy appeared ,
personaliy known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
557986.10
.
.
ACKNOWLEDGMENTS
COUNTY OF
)
)
)
ss.
STATE OF CALIFORNIA
On , 200_, before me, the undersigned, a notary public in and for said
State, personally appeared '
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
COUNTY OF
)
)
)
ss.
STATE OF CALIFORNIA
On , 200_, before me, the undersigned, a notary public in and for said
State, personally appeared '
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
557986.10
.
.
EXHIBIT A
TO RECIPROCAL EASEMENT AGREEMENT
LeQal Description of the State Parcel
Real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
That portion of Blocks A and B of the Ross Addition to Santa Ana as shown on the map filed in
Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County, California,
together with that portion of Lots 1 and 16 of Stout's Addition to Santa Ana as shown on the
map filed in Book 6, Page 28 of Miscellaneous Maps, Records of Orange County, California,
also together with those portions of Van Ness Street (Abandoned), 5th Street (Abandoned), 6th
Street (Abandoned), and Ross Street, all in the City of Santa Ana, County of Orange, State of
California, described as a whole as follows:
Beginning at the centerline intersection of Santa Ana Boulevard (108 feet wide) and Ross Street
{ 106 feet wide} as shown on Record of Survey 95-1031, filed in Book 149, Pages 49 and 50 of
Records of Survey, Records of said County; thence South 49002'03" West 248.90 feet along
said centerline of Santa Ana Boulevard to the beginning of a curve concave northwesterly
having a radius of 800.00 feet; thence southwesterly along said curve through a central angle of
5041 '39" an arc length of 79.51 feet; thence North 35016'18" West 54.00 feet to the
northwesterly line of said Santa Ana Boulevard and the true point of beginning; thence North
00037'23" West 342.65 feet; thence North 89022'37" East 66.00 feet; thence North 00037'23"
West 51.08 feet to the beginning of a curve concave northwesterly having a radius of 33.00 feet;
thence easterly and northeasterly along said curve through a central angle of 33054 '20" an arc
length of 19.53 feet; thence North 01041 '42" West 5.71 feet to the beginning of a curve concave
southeasterly having a radius 18.00 feet; thence northerly and northeasterly along said curve
through a central angle of 46044'51" an arc length of 14.69 feet; thence North 45003'09" East
31.20 feet to the beginning of a curve concave northwesterly having a radius of 26.00 feet;
thence northeasterly, northerly, and northwesterly along said curve through a central angle of
71014'38" an arc length of 32.33 feet; thence North 45001 '29" East 0.66 feet; thence North
89057'38" East 138.81 feet to a line 40.00 feet west of the centerline of said Ross Street; thence
South 00037'23" East 155.94 feet along said line; thence South 47"32'35" West 17.45 feet to the
west line of said Ross Street; thence South 00037'23" East 111.77 feet along said west line to
the beginning of a curve concave northwesterly having a radius of 25.00; thence southerly and
southwesterly along said curve through a central angle of 49039'26" an arc length of 21.67 feet
to a point on said northwesterly line of Santa Ana Boulevard; thence South 49002'03" West
213.66 feet along said northwesterly line to the beginning of a curve concave northwesterly
having a radius of 746.00 feet; thence southwesterly along said curve through a central angle of
5041 '39" an arc length of 74.14 feet to the true point of beginning.
Said parcel contains 80,718 square feet more or less.
.
.
EXHIBIT B
TO RECIPROCAL EASEMENT AGREEMENT
LeClal Description of the City Parcel
Real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
That portion of Blocks A, B, C, and D of the Ross Addition to Santa Ana as shown on the map
filed in Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County,
California, together with that portion of Lots 1 and 16 of Stouts' Addition to Santa Ana as shown
on the map filed in Book 6, Page 28 of Miscellaneous Maps, Records of Orange County,
California, also together with those portions of Fifth Street (abandoned), Sixth Street
(abandoned), Van Ness Street (abandoned), and Parton Street (abandoned), all in the City of
Santa Ana, County of Orange, State of California, described as follows:
Beginning at the intersection of the centerline of Santa Ana Boulevard (108 feet wide) with the
centerline of Ross Street (106 feet wide) as shown on Record of Survey 95-1031, filed in Book
149, Pages 49 and 50 of Records of Survey, Records of said Orange County; thence South
49002'03" West 248.90 feet along said centerline of Santa Ana Boulevard; thence North
40057'57" West 54.00 feet to the northwesterly line of said Santa Ana Boulevard and the True
Point of Beginning, said northwesterly line also being the northwesterly line of Parcel 1 as
described in Resolution No. 68-186 of the City Council of the City of Santa Ana recorded
December 18, 1968 in Book 8819, Page 934 of Official Records of said Orange County, said
point being the beginning of a curve concave northwesterly having a radius of 746.00, a radial
bearing to said beginning bears South 40057'57" East; thence southwesterly along said curve
and said northwesterly line 401.75 feet through a central angle of 30051 '21"; thence leaving said
northwesterly line North 0005'22" West 53.21 feet; thence North 54013'46" East 27.92 feet;
thence North 0005'22" West 36.93 feet; thence South 54013'46" West 64.85 feet to the
centerline of said Parton Street (abandoned); thence North 0005'22" West 186.31 feet along
said centerline to an angle point therein; thence continuing along said centerline North 0003'00"
West 310.62 feet to the intersection with the centerline of said Sixth Street (abandoned); thence
North 89058'20" East 309.89 feet to an angle point therein; thence continuing along said
centerline North 89057'41" East 29.83 feet; thence along the southeasterly line of the Santa Ana
City Hall and Santa Ana City Hall Annex the following five (5) courses:
1} North 0002'22" West 2.75 feet
2} North 89057'38" East 38.12 feet
3) North 0002'22" West 36.75 feet
4} North 89057'38" East 40.42 feet
5} North 0002'22" West 43.17 feet
thence continuing along said southeasterly line and the easterly prolongation thereof North
89057'38" East 137.08 feet to a line parallel with and 53.00 feet westerly of the centerline of said
Ross Street; thence South 0037'23" East 318.16 feet along said parallel line and the westerly
line of said Ross Street to a curve concave northwesterly having a radius of 25.00 feet; thence
southerly and southwesterly along said curve 21.67 feet through a central angle of 49039'26" to
.
.
the northwesterly line of said Santa Ana Boulevard; thence South 49002'03" West 213.66 feet
along said northwesterly line to the True Point of Beginning,
Except that portion of said land lying easterly, southeasterly and southerly of the following
described line:
Beginning at a point on the curved northwesterly line of said Santa Ana Boulevard having a
radius of 746.00 feet, as described above, said point being an arc distance of 74.14 feet
southwesterly from the northeasterly terminus of said curve; thence North 0037'23" West 342.65
feet; thence North 89022'37" East 66.00 feet; thence North 0037'23" West 51.08 feet to a non-
tangent curve concave westerly having a radius of 33.00 feet, a radial line to said curve bears
South 57047'22" East; thence northerly along said curve 19.53 feet through a central angle of
33054'20"; thence North 1041 '42" West 5.71 feet to a curve concave southeasterly having a
radius of 18.00 feet; thence northerly and northeasterly along said curve 14.69 feet through a
central angle of 46044'51"; thence North 45003'09" East 31.20 feet to a curve concave westerly
having a radius of 26.00 feet; thence northeasterly and northerly along said curve 32.33 feet
through a central angle of 71014'38"; thence North 45001 '29" East 0.66 feet; thence North
89057'38" East 125.81 feet to a line parallel with and 53.00 feet westerly of the centerline of said
Ross Street.
Also except that portion of said land described as follows:
Beginning at the angle point in the centerline of Parton Street (abandoned) as described above;
thence South 0005'22" East 23.18 feet along said centerline; thence North 89058'59" East 17.31
feet to the True Point of Beginning of this exception; thence continuing North 89058'59" East
136.50 feet; thence North 0001 '01" West 193.00 feet; thence South 89058'59" West 136.50 feet;
thence South 0001 '01" East 193.00 feet to the True Point of Beginning.
Said parcel contains 155,334 square feet I 3.566 acres, more or less.
.
.
EXHIBIT C
TO RECIPROCAL EASEMENT AGREEMENT
EXHBIT C: DIAGRAM OF STATE PARKING AREA
~ !~//////m//~::///mwJ
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SECURITY
st'REENINCi
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SCREENING
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SCREENING
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_ CITY TO PROVIDE 70 SPACES fOR APPELLATE
COURT USE. FINAl. LAYOUT TO BE RESOlVED
OURIMG smUCTURE OtslGN.-
\
.
.
EXHIBIT D
TO RECIPROCAL EASEMENT AGREEMENT
.
.
EXHIIIT -D-
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.
.
EXHIBIT E
TO RECIPROCAL EASEMENT AGREEMENT
City ParkinQ Structure Description
The project is a three hundred (300) vehicle 3 level parking facility one hundred and twenty-four
feet (124') wide by two hundred and seventy feet (270') long comprising one on grade level and
two elevated levels. The structure shall be long-span, cast-in-place concrete with post-tensioned
slabs and beams, cast-in-place columns, slab on grade with concrete foundations. The structure
is a two bay 3 level parking facility designed for two-way traffic flow and gO-degree parking. The
Parking structure is designed as an above-grade "open" parking structure of Group S Division 4
Occupancy; of Type I fire resistive construction per the 2001 California Building Code.
The primary use of the structure is to offset the parking lost by the sale of the adjacent property
to the State Appellate Court. The ground floor will be designated for the self-parking of seventy
(70) automobiles of Appellate Court Staff. 230 spaces will be provided on the two remaining
elevated levels for general Civic Center parking. The northeast corner of the facility will be
devoted to stairs, one elevator and the elevator machine room for the vertical circulation of
pedestrians. A second stair will be located at the southwest corner of the parking facility.
The vertical vehicle circulation is achieved by means of short ramps that rise one half floor level
before turning and rising another half level to the next level. The short ramps are required
because of the limited site available for the parking facility. The north end of the facility is
depressed below grade one half level to allow vehicles entering the facility at the southwest
corner at grade level to ramp up half a level to a point one full level above the parking below at
the north end. Vehicles entering on grade at the southeast corner will ramp down one half level
to a point one full level below the parking above at the north end.
.
.
EXHIBIT F
EXHIBIT F: DIAGRAM OF STATE PARKING AREA
~,.
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SCAEENING
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.
11
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SECURITY
SCREEN IllIG
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_ c fty to PAOVIOE: 10 SPACEs f'OR APPelt"ArE
COURT USE. F'INAL LAYOUT to 8[ RESOlVED
OURING STRUCTURE DESIGN."
, /
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/::~///;
"
/
.
.
EXHIBIT G
CITY PARKING STRUCTURE DESCRIPTION
The project is a three hundred (300) vehicle 3 level parking facility one hundred and twenty-four
feet (124') wide by two hundred and seventy feet (270') long comprising one on grade level and
two elevated levels. The structure shall be long-span, cast-in-place concrete with post-tensioned
slabs and beams, cast-in-place columns, slab on grade with concrete foundations. The structure
is a two bay 3 level parking facility designed for two-way traffic flow and gO-degree parking. The
Parking structure is designed as an above-grade "open" parking structure of Group S Division 4
Occupancy; of Type I fire resistive construction per the 2001 California Building Code.
The primary use of the structure is to offset the parking lost by the sale of the adjacent property
to the State Appellate Court. The ground floor will be designated for the self-parking of seventy
(70) automobiles of Appellate Court Staff. 230 spaces will be provided on the two remaining
elevated levels for general Civic Center parking. The northeast corner of the facility will be
devoted to stairs, one elevator and the elevator machine room for the vertical circulation of
pedestrians. A second stair will be located at the southwest corner of the parking facility.
The vertical vehicle circulation is achieved by means of short ramps that rise one half floor level
before turning and rising another half level to the next level. The short ramps are required
because of the limited site available for the parking facility. The north end of the facility is
depressed below grade one half level to allow vehicles entering the facility at the southwest
corner at grade level to ramp up half a level to a point one full level above the parking below at
the north end. Vehicles entering on grade at the southeast corner will ramp down one half level
to a point one full level below the parking above at the north end.
.
.
EXHIBIT H
FORM OF MEMORANDUM OF AGREEMENT
(SEE ATTACHED)
.
.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Judicial Council of California
Administrative Office of the Courts
Office of the General Counsel
455 Golden Gate Avenue
San Francisco, CA 94102
Attn: Managing Attorney, Real Estate Unit
APN: 008-36-34; 008-067-27; 008-067-33; 008-067-40
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT ("Memorandum") is made and entered into
this day of " by and between the City of Santa Ana, whose
present address is 20 Civic Center Plaza, M-30, Santa Ana, California 92701, Attn: Clerk of the
Council ("City") and The State of California, acting through the Judicial Council of California,
Administrative Office of the Courts, whose present address is 455 Golden Gate Avenue, San
Francisco, California 94102, Attn: Managing Attorney, Real Estate Unit ("State"), with respect to
the following facts:
A. City is the owner of certain real property located in the City of Santa Ana,
County of Orange, State of California, as more particularly described on Exhibit A attached
hereto and incorporated herein ("Land"), together with all buildings, structures and
improvements located on and affixed to the Land (collectively, the "Real Property"), and that
certain real property adjacent to the Real Property, as more particularly described on Exhibit B
attached hereto and incorporated herein ("Adjacent Property").
B. City and State have entered into that certain Real Property Acquisition
Agreement dated , 200_ ("Agreement"), setting forth the terms and conditions for
the State's acquisition of the Real Property from the City, and certain reciprocal easements and
conditions benefiting and burdening the Real Property and the Adjacent Property, among other
things;
C. Pursuant to the terms of the Agreement, this Memorandum is to be
recorded against the Real Property and the Adjacent Property in the Official Records of the
County of Orange for the purpose of memorializing the existence of the Agreement, the terms
and conditions of which inure to the benefit of, and bind, the State, the City, and their respective
successors and assigns, as a matter of public record. Any third-party interested in obtaining
information about the Agreement may contact the parties at the above-referenced addresses.
557986.11
1
.
.
D. This Memorandum shall automatically terminate of record upon the
record conveyance of the fee title to the Real Property from Seller to Buyer.
CITY:
STATE:
THE CITY OF SANTA ANA,
a Charter City and Municipal Corporation
THE STATE OF CALIFORNIA acting
through THE JUDICIAL COUNCIL OF
CALIFORNIA, ADMINISTRATIVE OFFICE
OF THE COURTS
By:
David N. Ream, City Manager
ATTEST
By:
Name:
Its:
By:
Patricia A. Healy
Clerk of the Council
APPROVED:
APPROVED AS TO FORM BY:
DEPARTMENT OF GENERAL SERVICES
Joseph W. Fletcher
City Attorney
Dwight V. Weathers
Chief, Real Property Services Section
557986.11
2
.
.
NOTARY ACKNOWLEDGMENT
COUNTY OF
)
)
)
SS.
STATE OF CALIFORNIA
On this day of in the year 200_, before me, a notary public in
and for the State of California, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity, and that by his/her signature on the instrument he/she, or
the entity on behalf of which he/she acted, executed the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
State of California
COUNTY OF
)
)
)
SS.
STATE OF CALIFORNIA
On this day of in the year 200_, before me, a notary public in
and for the State of California, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity, and that by his/her signature on the instrument he/she, or
the entity on behalf of which he/she acted, executed the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
State of California
1
.
.
EXHIBIT A
TO MEMORANDUM OF AGREEMENT
Lellal Description of Land
Real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
That portion of Blocks A and B of the Ross Addition to Santa Ana as shown on the map filed in
Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County, California,
together with that portion of Lots 1 and 16 of Stout's Addition to Santa Ana as shown on the
map filed in Book 6, Page 28 of Miscellaneous Maps, Records of Orange County, California,
also together with those portions of Van Ness Street (Abandoned), 5th Street (Abandoned), 6th
Street (Abandoned), and Ross Street, all in the City of Santa Ana, County of Orange, State of
California, described as a whole as follows:
Beginning at the centerline intersection of Santa Ana Boulevard (108 feet wide) and Ross Street
( 106 feet wide) as shown on Record of Survey 95-1031, filed in Book 149, Pages 49 and 50 of
Records of Survey, Records of said County; thence South 49002'03" West 248.90 feet along
said centerline of Santa Ana Boulevard to the beginning of a curve concave northwesterly
having a radius of 800.00 feet; thence southwesterly along said curve through a central angle of
5041 '39" an arc length of 79.51 feet; thence North 35016'18" West 54.00 feet to the
northwesterly line of said Santa Ana Boulevard and the true point of beginning; thence North
00037'23" West 342.65 feet; thence North 89022'37" East 66.00 feet; thence North 00037'23"
West 51.08 feet to the beginning of a curve concave northwesterly having a radius of 33.00 feet;
thence easterly and northeasterly along said curve through a central angle of 33054 '20" an arc
length of 19.53 feet; thence North 01041'42" West 5.71 feet to the beginning of a curve concave
southeasterly having a radius 18.00 feet; thence northerly and northeasterly along said curve
through a central angle of 46044'51" an arc length of 14.69 feet; thence North 45003'09" East
31.20 feet to the beginning of a curve concave northwesterly having a radius of 26.00 feet;
thence northeasterly, northerly, and northwesterly along said curve through a central angle of
71014'38" an arc length of 32.33 feet; thence North 45001 '29" East 0.66 feet; thence North
89057'38" East 138.81 feet to a line 40.00 feet west of the centerline of said Ross Street; thence
South 00037'23" East 155.94 feet along said line; thence South 4r32'35" West 17.45 feet to the
west line of said Ross Street; thence South 00037'23" East 111.77 feet along said west line to
the beginning of a curve concave northwesterly having a radius of 25.00; thence southerly and
southwesterly along said curve through a central angle of 49039'26" an arc length of 21.67 feet
to a point on said northwesterly line of Santa Ana Boulevard; thence South 49002'03" West
213.66 feet along said northwesterly line to the beginning of a curve concave northwesterly
having a radius of 746.00 feet; thence southwesterly along said curve through a central angle of
5041 '39" an arc length of 74.14 feet to the true point of beginning.
Said parcel contains 80,718 square feet more or less.
.
.
EXHIBIT B
TO MEMORANDUM OF AGREEMENT
Leqal Description of Adiacent Property
Real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
That portion of Blocks A, B, C, and D of the Ross Addition to Santa Ana as shown on the map
filed in Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County,
California, together with that portion of Lots 1 and 16 of Stouts' Addition to Santa Ana as shown
on the map filed in Book 6, Page 28 of Miscellaneous Maps, Records of Orange County,
California, also together with those portions of Fifth Street (abandoned), Sixth Street
(abandoned), Van Ness Street (abandoned), and Parton Street (abandoned), all in the City of
Santa Ana, County of Orange, State of California, described as follows:
Beginning at the intersection of the centerline of Santa Ana Boulevard (108 feet wide) with the
centerline of Ross Street (106 feet wide) as shown on Record of Survey 95-1031, filed in Book
149, Pages 49 and 50 of Records of Survey, Records of said Orange County; thence South
49'02'03" West 248.90 feet along said centerline of Santa Ana Boulevard; thence North
40'57'57" West 54.00 feet to the northwesterly line of said Santa Ana Boulevard and the True
Point of Beginning, said northwesterly line also being the northwesterly line of Parcel 1 as
described in Resolution No. 68-186 of the City Council of the City of Santa Ana recorded
December 18, 1968 in Book 8819, Page 934 of Official Records of said Orange County, said
point being the beginning of a curve concave northwesterly having a radius of 746.00, a radial
bearing to said beginning bears South 40057'57" East; thence southwesterly along said curve
and said northwesterly line 401.75 feet through a central angle of 30051'21"; thence leaving said
northwesterly line North 0005'22" West 53.21 feet; thence North 54013'46" East 27.92 feet;
thence North 0005'22" West 36.93 feet; thence South 54013'46" West 64.85 feet to the
centerline of said Parton Street (abandoned); thence North 0005'22" West 186.31 feet along
said centerline to an angle point therein; thence continuing along said centerline North 0003'00"
West 310.62 feet to the intersection with the centerline of said Sixth Street (abandoned); thence
North 89058'20" East 309.89 feet to an angle point therein; thence continuing along said
centerline North 89057'41" East 29.83 feet; thence along the southeasterly line of the Santa Ana
City Hall and Santa Ana City Hall Annex the following five (5) courses:
1) North 0002'22" West 2.75 feet
2) North 89057'38" East 38.12 feet
3) North 0002'22" West 36.75 feet
4) North 89057'38" East 40.42 feet
5) North 0002'22" West 43.17 feet
thence continuing along said southeasterly line and the easterly prolongation thereof North
89057'38" East 137.08 feet to a line parallel with and 53.00 feet westerly of the centerline of said
Ross Street; thence South 0037'23" East 318.16 feet along said parallel line and the westerly
line of said Ross Street to a curve concave northwesterly having a radius of 25,00 feet; thence
southerly and southwesterly along said curve 21.67 feet through a central angle of 49039'26" to
the northwesterly line of said Santa Ana Boulevard; thence South 49002'03" West 213.66 feet
along said northwesterly line to the True Point of Beginning,
.
.
Except that portion of said land lying easterly, southeasterly and southerly of the following
described line:
Beginning at a point on the curved northwesterly line of said Santa Ana Boulevard having a
radius of 746.00 feet, as described above, said point being an arc distance of 74.14 feet
southwesterly from the northeasterly terminus of said curve; thence North 0037'23" West 342.65
feet; thence North 89022'37" East 66.00 feet; thence North 0037'23" West 51.08 feet to a non-
tangent curve concave westerly having a radius of 33.00 feet, a radial line to said curve bears
South 57047'22" East; thence northerly along said curve 19.53 feet through a central angle of
33054'20"; thence North 1041'42" West 5.71 feet to a curve concave southeasterly having a
radius of 18.00 feet; thence northerly and northeasterly along said curve 14.69 feet through a
central angle of 46044'51"; thence North 45003'09" East 31.20 feet to a curve concave westerly
having a radius of 26.00 feet; thence northeasterly and northerly along said curve 32.33 feet
through a central angle of 71014'38"; thence North 45001 '29" East 0.66 feet; thence North
89057'38" East 125.81 feet to a line parallel with and 53.00 feet westerly of the centerline of said
Ross Street.
Also except that portion of said land described as follows:
Beginning at the angle point in the centerline of Parton Street (abandoned) as described above;
thence South 0005'22" East 23.18 feet along said centerline; thence North 89058'59" East 17.31
feet to the True Point of Beginning of this exception; thence continuing North 89058'59" East
136.50 feet; thence North 0001'01" West 193.00 feet; thence South 89058'59" West 136.50 feet;
thence South 0001 '01" East 193.00 feet to the True Point of Beginning.
Said parcel contains 155,334 square feet I 3.566 acres, more or less
.
.
REAL PROPERTY ACQUISITION AGREEMENT
Between
Buyer:
The State of California,
acting through
The Judicial Council of California,
Administrative Office of the Courts
and
Seller:
The City Of Santa Ana
Project:
Court of Appeal, Fourth Appellate District
City of Santa Ana, County of Orange, State of California
.
.
TABLE OF CONTENTS
Page
1. PARTIES. .................................................................................................... 1
1.1. Seller ...,........................... ................,.................................................. 1
1.2. Buyer................... .... ........................... .................... ................ ............ 1
2. COMPOSITION OF AGREEMENT; DEFINED TERMS.............................. 1
2.1. Composition of Agreement .,.........................................................,.... 1
2.2. Defined Terms .................................................................,.................1
3. DESCRIPTION OF PROPERTY; STATE PROJECT. ................................, 2
3.1. Description of Real Property.............................................................. 2
3.2. Description of State Project .........,......................................,.............. 2
4. Purchase Price. ...............,.........",..................,............................................ 2
5. CLOSING DATE. .....,................................................................................... 2
6. Buyer Contingencies......... ,......................... ,........ ........... .,............. .............. 2
Due Diligence Inspections. ..............................................................., 3
Owner's Policy.. ................. ..................................... ...........................4
Accuracy of Representations and Warranties ................................... 4
No Breach or Event of Default ........................................................... 4
Seller Deliveries.......................... ......................................... ..............4
SPWB Approval and Acceptance ...................................................... 4
Expiration of CEQA Statute of Limitation ...........................................5
REA....................................................................................................5
Construction of City Parking Structure............................................... 5
Termination and Relocation of Easements........................................ 5
Memorandum of Agreement .............................................,................5
Demolition and Grading. .................................................................... 6
6.1.
6.2.
6.3.
6.4.
6.5.
6.6.
6.7.
6.8.
6.9.
6.10.
6.11.
6.12.
557986.11
.
.
TABLE OF CONTENTS
(continued)
Page
6.13. Relocation of Transformer ...................................................,............. 6
6.14. Preservation of Existing Trees..................................,........................ 6
6.15. Parking Security Bid .....................................................,.,..................6
6.16. Buyer Contingencies Notice ............................."............................... 7
7. SELLER CONTINGENCIES. ...,................................................................... 7
7.1. Due Diligence Contingency Notice .................................................... 7
7.2. Buyer Contingencies Notice ..............................................,.............,.7
7.3. Accuracy of Representations and Warranties ...............,................... 7
7.4. No Breach or Event of Default..,..................................".................... 7
7 .5. Buyer Deliveries........................ ..,..... ........ ..... .......... .......................... 7
8. EVENT OF DEFAULT; Termination; REMEDIES. ...................................... 7
8.1. Termination for Event of Default ...................................................,....7
8.2. No-Fault Termination ......................................................................... 8
8.3. Payment of Costs Upon Termination .................................................8
8.4. Return of Sums and Documents........................................................ 8
8.5. Rights and Remedies Cumulative .....................................................8
9. r=SCROW; CLOSING COSTS; TAXES. ...................................................... 8
9.1. Opening of Escrow............................................................................ 8
9.2. Close of Escrow ...,....................,............................................"..........9
9.3. Closing Costs.....................................................................................9
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS. ...................10
10.1. Seller's Representations and Warranties ........................................ 10
10.2. Buyer's Representations and Warranties ........................................ 11
.
.
TABLE OF CONTENTS
(continued)
Page
10.3. No Merger ,....................................................................................... 12
10.4. Seller's Pre-Closing Covenants ....................................................... 12
10.5. Seller's Post-Closing Covenants ........,............................................13
11. Indemnification AND DUTY TO DEFEND. ................................................ 13
11.1. Defined Terms ...................................................,............................. 13
11.2. Indemnification ................................................................................. 15
11.3. Duty to Defend; Attorneys Fees and Expenses............................... 15
11.4. Survival ........."..................................,.............................................. 15
12. DAMAGE OR DESTRUCTION PRIOR TO CLOSING. ............................. 15
13. CONDEMNATION PRIOR TO CLOSING. .....,.............,............................15
14. MISCELLAN EOUS. ................................... .................. .............................. 15
14.1. Notices ............................................................................................. 15
14.2. Entire Agreement ..........................................................................,.. 17
14.3. No Assignment; Binding Effect ........................................................17
14.4. Waiver............................................ ..... ..... ........................................ 17
14.5. Captions, Headings, Exhibits, and Recitals..................................... 17
14.6. Counterparts..... ....... ...................... ........... .............................. ......... 17
14.7. Governing Law ........................................ ......................................... 18
14.8. Time of the Essence ........................................................................18
14.9. Date of Agreement....,......................................................................18
14.10. Counting of Days ..."..................................................................... 18
14.11. Invalidity of any Provision ............................................................. 18
14.12. Drafting of Agreement.......................,........................................... 18
.
.
TABLE OF CONTENTS
(continued)
Page
14.13. No Third-Party Beneficiary Rights ................................................ 18
14.14. Further Acts ...............................................,............................,..... 18
14.15. Non-Discrimination ......................................................,................ 18
14.16. Conflict of Interest.........,............................................................... 18
14.17. Limitation on Liability.................................................................... 18
14.18. Survival....................,.................................................................... 19
14.19. Facsimile Signatures .............................,.............................."......19
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Exhibit E -
Exhibit F ~
Exhibit G -
Exhibit H -
Form of Grant Deed and Certificate of Acceptance
Intentionally Deleted .
Intentionally Deleted
Diagram of Easements, Setback, Transformer, & Lift Station
Form of Reciprocal Easement Agreement
Diagram of State Parking Area
City Parking Structure Description
Form of Memorandum of Agreement