HomeMy WebLinkAboutMINUTES - 03312009 - SD.4RECOMMENDATION(S):
REVIEW and CONSIDER the attached initial studies and Notices of Exemption for the proposed projects, and
FIND that the proposed projects are exempt from the California Environmental Quality Act (CEQA) pursuant
to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that there is no possibility that
the activity may have a significant effect on the environment;
1.
APPROVE a transfer agreement substantially in the form of the attached Transfer Agreement Between the
Judicial Council of California, Administrative Office of the Courts, and the County of Contra Costa for the
Transfer of Responsibility for Court Facility with respect to the following property: 100 38th Street, Richmond,
CA (storage space in County Health Center);
2.
APPROVE a transfer agreement substantially in the form of the attached Transfer Agreement Between the
Judicial Council of California, Administrative Office of the Courts, and the County of Contra Costa for the
Transfer of Responsibility and Transfer of Title for Court Facility, and a joint occupancy agreement
substantially in the form of the attached Joint Occupancy Agreement Between the Judicial Council of
California, Administrative Office of the Courts, and the County of Contra Costa, with respect to the following
property: 100 37th Street, Richmond, CA (Richmond Bay District Court);
3.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD
COMMITTEE
Action of Board On: 03/31/2009 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYES 5 NOES ____
ABSENT ____ ABSTAIN ____
RECUSE ____
Contact: Julie Enea (925) 335-1077
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of
the Board of Supervisors on the date shown.
ATTESTED: March 31, 2009
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Katherine Sinclair, Deputy
cc: General Svcs-Real Estate, General Svcs-Admin, CAO, County Counsel, Auditor-Controller, Risk Management
SD.4
To:Board of Supervisors
From:David Twa, County Administrator
Date:March 31, 2009
Contra
Costa
County
Subject:TRANSFER OF COURT FACILITIES TO STATE OF CALIFORNIA PURSUANT TO TRIAL COURT FACILITIES ACT OF
2002 (SB 1732) (T00030)
RECOMMENDATION(S): (CONT'D)
AUTHORIZE the Chair, Board of Supervisors, or designee, to EXECUTE the Transfer Agreements and the Joint
Occupancy Agreement, substantially in the form of the attached Transfer Agreements and Joint Occupancy
Agreement, and such deeds, easements, licenses and other documents as may be necessary to accomplish the
approved actions so long as their terms are consistent with the approved actions, in each case upon
recommendation of the General Services Director and approval as to form by County Counsel.
DIRECT the Director of Conservation and Development, or designee, to file the Notices of Exemption with the
County Clerk, DIRECT the Director of General Services, or designee, to arrange for the payment of the handling
fees to the Department of Conservation and Development and County Clerk for filing of the Notices of Exemption.
FISCAL IMPACT:
The transfers of title and responsibility for the County facilities under the various documents will relieve the County
of the ongoing obligation to provide the Court with necessary and suitable facilities, except for certain bond-related
and seismic liabilities described below. The County is obligated, however, to make projected annual “County
Facilities Payments” or “CFPs” of approximately $257,911 in perpetuity, as discussed below. These payments are
equal approximately to the current year County costs to maintain the transferred facilities, including staff and contract
services costs for preventive and major maintenance, utilities, and insurance.
A Joint Occupancy Agreement (JOA) has been negotiated to assign responsibility for the Richmond Bay District
Court building where both Court and County departments are occupants. Under the JOA each party is responsible for
maintenance of its exclusive space. The cost of maintaining common areas in this building will be split proportionally
based on occupancy. Management of the common areas in this building will be the responsibility of the State as the
owner of the building, subject to reimbursement from the County. The JOA will therefore require increased
coordination between the County and Court for budgeting, billing preparation/review, and agreement on major
maintenance and renovation projects. The financial impact of the JOA has not yet been determined.
Although the County Health Center located at 100 38th Street in Richmond is also a shared building, the Court use is
limited to a small amount of storage space. Therefore, the transfer agreement for this facility includes a delegation of
authority from the State to the Court for maintenance of the Court’s exclusive space. So long as the delegation
remains in place, the County is relieved of the obligation to pay the annual CFP (approximately $23,000) for this
facility.
Funding for the anticipated CFPs has been included in the FY 2008-2009 County budget.
BACKGROUND:
Beginning with the Lockyer-Isenberg Trial Court Funding Act in 1997, the State passed a succession of legislation to
move funding and control of Court operations from counties to the California Judicial Council. The Trial Court
Facilities Act of 2002, codified under Government Code sections 70301 et seq., addressed transfer of responsibility
for “court facilities” (defined by the Act to include court rooms, judges chambers, administrative support areas,
building operating systems, holding cells, common and connecting spaces, parking, and the grounds appurtenant to
court buildings) by authorizing the State of California, through the Judicial Council (acting through its staff agency,
the Administrative Office of the Courts (AOC)), to assume responsibility for these facilities throughout the State.
“Responsibility for facilities” is defined in the Act as the obligation of providing, operating, maintaining, altering and
renovating a building that contains court facilities. Under the Act, transfer of court facilities must occur prior to
December 31, 2009; however, County Facilities Payments required under the Act are subject to penalties (additional
inflators) if the transfer documents are executed after December 31, 2008, and higher penalties if the transfer
documents are executed after March 31, 2009.
Following Board approval on December 16, 2008, the County transferred 11 of its remaining 14 court facilities. At
this time, staff seeks the Board’s approval and authorization to complete the transfers of 2 of the remaining 3 court
facilities.
County Facilites Payment
Commencing upon the transfer of court facilities, Government Code section 70353 requires counties to continue to
provide the State with operations and maintenance funding at historic levels, known as “County Facilities Payments”
or “CFPs.” The Act specifies the methodology for calculating the CFPs based on expenditures during the five year
period from Fiscal Years 1995-1996 to 1999-2000, adjusted for inflation until the date of transfer, at which time it
becomes fixed. These facilities expenditures included labor, materials, and contract costs for maintenance, utilities,
insurance and major maintenance repairs and
renovations. CFPs were calculated as prescribed and have been transmitted to the AOC. Final approval of the
calculations by the State Department of Finance (DOF) is anticipated but has not yet been received for all of the
remaining facilities. If approved without changes, total CFP support to the State for the 2 facilities to be transferred
will be approximately $257,911 annually.
Benefit to the County
The advantage to the County from completing transfers of court facilities is that the County is relieved of any further
responsibility for providing, operating, maintaining, altering and renovating “necessary and suitable” court facilities.
This relieves the County of any future obligation to repair, upgrade or replace older existing court facilities. Upon
transfer of responsibility these costs will be the sole responsibility of the State, subject to the CFPs and certain
liabilities that the Act requires the County to retain (described below).
Under the Act, CFPs will not increase above the current amount and the County’s obligation is fixed.
Seismic
As originally enacted, the Act prohibited transfer of court facilities in a building having a seismic safety rating of
Level V under the State’s Seismic Risk Table (SRL-V) absent certain additional concessions. There is one SRL-V
building containing court facilities being transferred: Richmond Bay District Court. There were two SRL-V buildings
containing court facilities that were transferred this past December: Wakefield Taylor and Walnut Creek/Danville
District Courthouse. Recognizing the impracticality of this provision, SB 10 (2006) amended the Act to allow transfer
of court facilities in SRL-V buildings provided the County retains all liabilities for seismic-related property loss,
injury or death, until relieved of those obligations by the occurrence of certain events set forth in the Act.
Consequently, in order to transfer the court facilities in SRL-V buildings, the transfer document before you today
requires the County to defend, indemnify and hold harmless the State from any losses and liabilities arising from a
seismic event. This same provision was included in the transfer documents for the two SRL-V buildings approved by
the Board in December.
Under the Act, the County must retain these liabilities for either (a) 35 years, or until (b) repair, retrofit or
replacement of the building raises its seismic-safety rating to level IV or better; or (c) the facilities are no longer used
as court facilities; or (d) the County and the Judicial Council agree on a method to address the seismic issue such that
the State does not have a financial burden greater than it would have had if the transferred facility had a Level IV
rating or better. The latter method, an agreement putting the State in the same financial position it would have been in
if the transferred facility had a Level IV or better rating, is available to the County and the AOC until December 2009
and requires DOF approval.
Facilities Proposed for Transfer of Responsibility
The County intends to transfer responsibility for all court facilities in current use within the County. The
recommended actions allow for the transfer of responsibility of 2 of the 3 remaining court facilities in the County,
which are located at: 100 37th Street, Richmond, CA (Richmond Bay District Court), and 100 38th Street, Richmond,
CA (archival and storage facility in the Richmond Health Center). The one court facility that will remain to be
transferred is the Family Law Center located at 751 Pine Street, Martinez. “Transfer of Responsibility” is the critical
step in relieving the County of its current obligation to provide, operate, maintain, renovate and replace necessary and
suitable trial court facilities.
Under the Act, a County must transfer title (as well as responsibility) to those buildings that are occupied 100% by the
Court, and can transfer title and responsibility to those buildings in which the Court is the majority occupant. The
Court is not the sole occupant in any of the facilities being transferred.
However, the Court is a substantial majority occupant in one facility proposed for transfer of title: Richmond Bay
District Court. The County will retain its current occupancy in this building under the type of joint occupancy
agreement discussed below.
Transfers of title to the State must be approved by the California Public Works Board (PWB). The AOC has advised
that the PWB approval process could take several months in light of the number of court facility transfers that will
flood the system on or about March 31, 2009. The County will continue to maintain property insurance during the
interim period between the transfer of responsibility and the transfer of actual title, with the State reimbursing the
County for a pro rata share of the premiums based on its occupancy.
Joint Occupancy Agreements (JOA)
A Joint Occupancy Agreement has been negotiated and prepared for each building and campus (where applicable) in
which the County and the State will share occupancy. These agreements were created to establish the respective
rights and responsibilities of the State and County. Specifically, JOAs reflect the role of each party with regard to
exclusive use areas, common areas, managing party and contributing party responsibilities, cost allocation
methodology for common area maintenance and repairs, central plant operations, security, emergency response,
liability allocation and dispute resolution. The County will be the managing party of the Richmond Health Center and
the AOC will be the managing party of the Richmond Bay District Court.
Post-Transfer Liabilities
In addition to the seismic liability retention, and the CFP and debt retirement obligations, the County will have
additional post-transfer liabilities that are reflected in the transfer documents. Most notable among those are the
following:
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. sections 9601, et seq.
(CERCLA). CERCLA is a body of federal law allocating responsibilities for costs associated with the clean-up
of hazardous material released into the environment. The Act requires, as a condition of court transfers, that the
County defend, indemnify and hold harmless the State from any post-transfer CERCLA liability imposed on
the State that arises out of conditions existing on the properties at the time of transfer, whether or not known to
the County.
Third-Party Liabilities and Personal Property Losses. In shared-use buildings and campuses, each party bears
100% liability for damages and losses occurring in their exclusive-use areas, except to the extent the loss
results from the negligence or willful misconduct of an employee of the other party. Liabilities for damages and
losses occurring in the common areas are borne proportionally in relation to each party’s share of building
occupancy. (As noted above, these sharing concepts are not applicable to seismic events during the requisite
period.)
Property Casualties. Property casualties, other than those resulting from seismic events (explained above), are
borne by the parties in relation to their share of occupancy. The parties will share the cost of premiums and
deductibles, and any uninsured loss in relation to their share of occupancy.
Transition Schedule
Execution of the remaining transfer agreements prior to March 31, 2009 will allow the parties to meet the
requirements of the Act and avoid additional CFP inflators. Additional actions are required to complete the transfer of
titles and transition of responsibilities to the AOC.
The key milestones for this transition to occur are: (1) approval of the CFPs by the State Department of Finance; (2)
submission of fully executed Transfer Agreements and JOA to the Administrative Office of the Courts; (3) AOC
submission of title transfers to PWB; (4) approval of the transfers by PWB; (5) record documents; (6) finalize
schedule with State for handover of properties to the Facility Management Unit of the Judicial Council; (7) transfer
maintenance documents, records and control codes; (8) complete turnover checklist activities, including coordination
meetings, walk-throughs, and assignment of contracts; (9) establish procedures and protocols for communicating
among maintenance staff, billing reviews, emergency call-out, etc.
Actual handover of responsibilities for the properties will likely be phased in over a period of time to provide the
State time to initiate maintenance contracts, train staff on the buildings, review operations and maintenance
documentation, and coordinate activities with County staff.
Environmental Statement
As outlined above, the County proposes to transfer responsibility for, and in some cases title to, trial court facilities
currently operating within the County to the State through the Judicial Council. The proposed action involves only a
change in responsibility for operations of these existing public facilities with no change in the use or occupancy. As
determined by the initial studies, it can be seen with certainty that there is no possibility that the activity may have a
significant effect on the environment. Therefore, staff recommends that the Board find that the proposed transfers are
categorically exempt from the provisions of CEQA pursuant to CEQA Guidelines section 15061(b)(3) because it can
be seen with certainty that there is no possibility that the projects (the transfer of trial court facilities to the State with
no change in use or occupancy of the facilities) may have a significant effect on the environment.
CONSEQUENCE OF NEGATIVE ACTION:
If the transfer agreements are not approved by March 31, 2009, the annual CFPs that the County must pay will be
subject to additional CFP inflators of approximately $21,224 per year. If the transfer agreements are not approved by
December 31, 2009, the County will be unable to comply with the requirements of SB 1732 that require Counties to
transfer responsibilities for all Court facilities by December 31, 2009.
Facility #07-F1
Building Name: Richmond Bay District
Building Address: 100 37th Avenue, Richmond, CA
PRINT DATE: 3/12/09
Court Facility #07-F1
Owned/Shared (TOR/DTOT)
July 11, 2016March 23, 2009
LEGAL02/5923607v7
TRANSFER AGREEMENT
BETWEEN THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS,
AND THE COUNTY OF CONTRA COSTA
FOR THE TRANSFER OF RESPONSIBILITY FOR COURT FACILITY
TABLE OF CONTENTS
Page
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1. PURPOSE ................................................................................................................. 1
2. BACKGROUND ...................................................................................................... 1
3. DEFINITIONS ......................................................................................................... 1
4. RESPONSIBILITIES AFTER TRANSFER. ........................................................... 8
4.1 Transfer of Responsibility; Transfer of Title ................................................ 8
4.1.1 New Legal Parcel .......................................................................... 8
4.1.2 Access Agreements ....................................................................... 9
4.2 General Responsibilities ................................................................................ 9
4.2.1 Deferral of County Payment Obligations ..................................... 9
4.3 Specific Responsibilities After the TOR Closing Date ............................... 10
4.3.1 Utilities ....................................................................................... 10
4.3.2 Property Insurance and Risk Allocation ..................................... 10
4.3.3 Responsibility for Operation ...................................................... 10
4.3.4 Security Staffing ......................................................................... 11
4.3.5 Parking ........................................................................................ 11
4.3.6 Occupancy Agreements .............................................................. 11
4.3.7 Correspondence .......................................................................... 11
4.3.8 County Payment Obligations ...................................................... 11
4.3.9 Notice of Disputes ...................................................................... 11
4.3.10 Personal Property ........................................................................ 11
4.3.11 Adjustments ................................................................................ 12
4.3.12 Telecommunications Services .................................................... 12
4.3.13 Liability for Seismic-Related Damage and Injury. ..................... 12
4.3.14 Relief from Section 70311 Obligations ...................................... 13
4.4 Specific Responsibility After Effective Date .............................................. 13
5. THE CLOSING ...................................................................................................... 14
5.1 TOR Closing ............................................................................... 14
5.1.1 TOR Closing Documents ............................................................ 14
5.1.2 Time for Signature for TOR Closing Documents ...................... 14
5.1.3 Delivery of Signed Agreement, TOR Closing Documents,
and County Authorizing Document ............................................ 14
5.1.4 Delivery of Possession ................................................................ 14
5.2 TOT Closing ................................................................................................ 15
5.2.1 TOT Closing Documents ............................................................ 15
TABLE OF CONTENTS
(continued)
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5.2.2 Execution and Delivery of TOT Closing Documents ................ 15
5.2.3 Delivery of Title ......................................................................... 15
5.3 Conditions for Closing ................................................................................ 15
5.3.1 Conditions for the Benefit of the AOC ....................................... 15
5.3.2 Conditions for the Benefit of the County ................................... 16
5.4 Additional TOT Closing Conditions for the Benefit of the AOC ............... 16
5.5 “As-Is” ......................................................................................................... 16
6. COUNTY FACILITIES PAYMENT ..................................................................... 16
6.1 Amount of County Facilities Payment ........................................................ 16
6.1.1 DOF Approval ............................................................................ 16
6.2 County Facilities Payment Obligation ........................................................ 17
6.2.1 Prorations .................................................................................... 17
6.2.2 Quarterly County Facilities Payments ........................................ 17
6.3 Additional County Payment Obligation ...................................................... 17
7. REPRESENTATIONS AND WARRANTIES ...................................................... 18
7.1 The County’s Representations and Warranties ........................................... 18
7.1.1 Good Standing ............................................................................ 18
7.1.2 Authority ..................................................................................... 18
7.1.3 Due Execution and Delivery ....................................................... 18
7.1.4 No Conflict ................................................................................. 18
7.1.5 Title to Real Property .................................................................. 19
7.1.6 Personal Property ........................................................................ 19
7.1.7 No Disputes ................................................................................ 19
7.1.8 No Violations of Law ................................................................. 19
7.1.9 Accurate Disclosure .................................................................... 19
7.1.10 No Condemnation ....................................................................... 19
7.1.11 No Environmental Violations ..................................................... 20
7.1.12 Full and Complete Disclosure .................................................... 20
7.1.13 Service Contracts ........................................................................ 20
7.1.14 No Special Circumstances .......................................................... 20
7.2 AOC’s Representations and Warranties ...................................................... 20
7.2.1 Good Standing ............................................................................ 20
7.2.2 Authority ..................................................................................... 20
7.2.3 Due Execution and Delivery ....................................................... 20
7.2.4 No Conflict ................................................................................. 21
7.2.5 No Disputes ................................................................................ 21
7.2.6 No Violations of Law ................................................................. 21
7.2.7 No Environmental Violations ..................................................... 21
TABLE OF CONTENTS
(continued)
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7.3 Representations and Warranties for TOT Closing ...................................... 21
7.3.1 The Certificate ............................................................................ 21
8. INDEMNITIES ...................................................................................................... 21
8.1 The AOC’s Indemnities............................................................................... 21
8.1.1 Covenants ................................................................................... 22
8.1.2 Representations and Warranties ................................................. 22
8.1.3 AOC Responsibilities ................................................................. 22
8.2 The County’s Indemnities ........................................................................... 22
8.2.1 Covenants ................................................................................... 22
8.2.2 Representations and Warranties ................................................. 22
8.2.3 County Responsibilities .............................................................. 22
8.2.4 CERCLA ................................................................................. 2322
8.3 Indemnity Exclusions .................................................................................. 23
9. RIGHT TO AUDIT ................................................................................................ 23
10. DEFAULT NOTICE AND CURE ......................................................................... 23
11. DISPUTE RESOLUTION ..................................................................................... 24
11.1 Unassisted Negotiation; Mediation ............................................................. 24
11.1.1 Initiation of Mediation ................................................................ 24
11.1.2 Selection of Mediator ................................................................. 24
11.1.3 Cost of Mediation ....................................................................... 25
11.1.4 Date, Time, and Place of Mediation ........................................... 25
11.1.5 Attendance at Mediation ............................................................. 25
11.1.6 Statements Before Mediation ..................................................... 25
11.1.7 Confidentiality ............................................................................ 26
11.2 Resolution of Claims Remaining After Mediation ..................................... 26
12. NOTICES ............................................................................................................... 26
13. SURVIVAL OF TERMS AND PROVISIONS ..................................................... 28
14. MISCELLANEOUS ............................................................................................... 28
14.1 Amendments ................................................................................................ 28
14.2 Waivers ........................................................................................................ 28
14.3 Force Majeure .............................................................................................. 28
14.4 Assignment .................................................................................................. 29
14.5 Binding Effect ............................................................................................. 29
TABLE OF CONTENTS
(continued)
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14.6 Third Parties Benefited ................................................................................ 29
14.7 Governing Law ............................................................................................ 29
14.8 Construction ................................................................................................ 29
14.9 Integration ................................................................................................... 29
14.10 Capitalized Terms ........................................................................................ 29
14.11 Incorporation By Reference ........................................................................ 30
14.12 Severability .................................................................................................. 30
14.13 Further Assurances ...................................................................................... 30
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TRANSFER AGREEMENT
1. PURPOSE
The Judicial Council of California (“Council”), Administrative Office of the
Courts (together, the “AOC”), and the County of Contra Costa (“County”), set forth the
terms and conditions for the transfer of responsibility for funding and operation of the
trial court facility commonly known as the Richmond Bay District Courthouse and for
the conveyance to the State of California on behalf of the Council of the County’s title to
the Real Property.
2. BACKGROUND
The Lockyer-Isenberg Trial Court Funding Act of 1997, AB 233 (Escutia and
Pringle) provides for transfer of the primary obligation for funding of court operations
from the counties to the State. Although counties continue to contribute to trial court
funding through maintenance of effort obligations, the restructuring of funding for trial
court operations accomplished by the Lockyer-Isenberg Trial Court Funding Act of 1997
ended a dual system of county and state funding of, and created a more stable and
consistent funding source for, trial court operations. The Trial Court Facilities Act of
2002 was adopted to provide for the transfer of responsibility for funding and operation
of trial court facilities from the counties to the AOC. The Parties enter into this
Agreement to implement the provisions of the Act as it exists on the Effective Date.
3. DEFINITIONS
“Acceptance Document” means a certificate of acceptance or certified resolution
evidencing the PWB’s approval of the Transfer of Title.
“Act” means the Trial Court Facilities Act of 2002 (Government Code sections
70301-70404) as of the Effective Date.
“Agreement” means this Transfer Agreement, together with the attached Exhibits.
“AOC Authorized Signatory” means the AOC’s Senior Manager, Business
Services, Grant Walker, or any other person to whom signature authority has been
delegated.
“Building” means the building that includes the Court Facility commonly referred
to as the Richmond Bay District Courthouse, located on the Land and occupied by the
Court and the County, all connected structures and improvements, and all Building
Equipment.
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“Building Equipment” means all installed equipment and systems that serve the
Building, including the Building Software and those items listed on Exhibit “G” to this
Agreement. The Building Equipment does not include the equipment and systems that
exclusively serve the Exclusive-Use Area of only one Party.
“Building Software” means the software program called On Guard ET that is
licensed to the County by Lenel for the operation of a keycard entry system in the
Building.
“Campus” means the real property on which the Land, the Building, the Parking
Area and other unrelated improvements, including the Health Building Archival Storage
(AOC Facility #07-F2), are located, as described on Exhibit “A-1” and as shown on
Exhibit “A-2.”
“Certificate” means the document titled Datedown Certificate that is similar to
the document attached to this Agreement as Exhibit “H”.
“Closing” means the TOR Closing or the TOT Closing, as applicable.
“Closing Date” means the TOR Closing Date or the TOT Closing Date, as
applicable.
“Closing Documents” means, together, the TOR Closing Documents and the TOT
Closing Documents.
“Common Area” means the areas of the Real Property that are used non-
exclusively and in common by, or for the common benefit of, the AOC, the County, the
Court, and any Occupants, and includes (1) those portions of the Building depicted as
Common Area on Exhibit “B” to this Agreement, including hallways, stairwells, and
restrooms that are not located in either Party’s Exclusive-Use Area, (2) foundations,
exterior walls, load-bearing walls, support beams, exterior windows, the roof, and other
structural parts of the Building, (3) Building Equipment and Utilities that do not
exclusively serve only one Party’s Exclusive-Use Area, (4) driveways, walkways, and
other means of access over the Land and through the Building to the Court Exclusive-Use
Area, and (5) the Parking Area. The Common Area does not include any part of the
Exclusive-Use Area of either Party, except for any Building Equipment that is located in
a Party’s Exclusive-Use Area.
“Controller” means the State Controller.
“County Authorized Signatory” means the Chairperson of the County’s Board of
Supervisors, or his or her designee.
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“County Authorizing Document” means a certified copy of a resolution or order
of the County’s Board of Supervisors authorizing (1) the County Authorized Signatory to
execute this Agreement and the Closing Documents on behalf of the County; and (2) the
County to deliver and perform this Agreement and the Closing Documents.
“County Exclusive-Use Area” means the 13,274 square feet of the floor space in
the Building that are exclusively occupied and used by the County, as depicted on
Exhibit “B” to this Agreement. As of the Effective Date, the County Exclusive-Use
Area is 25.01 percent of the Total Exclusive-Use Area.
“County Facilities Payment” means the payments the County must make to the
Controller with respect to the Court Facility under Article 5 of the Act.
“County Parties” means the County, its elected and appointed officers, agents,
and employees.
“Court” means the Superior Court of California for the County of Contra Costa.
“Court Exclusive-Use Area” means the 39,805 square feet of the floor space in
the Building that are exclusively occupied and used by the Court, as depicted on Exhibit
“B” to this Agreement. As of the Effective Date, the Court Exclusive-Use Area
constitutes 74.99 percent of the Total Exclusive-Use Area.
“Court Facility” means all spaces, fixtures, and appurtenances described in
section 70301(d) of the Act, including the Court Exclusive-Use Area, which includes
eight rooms for holding superior court, eight chambers of judges of the Court, fourteen
walk-up windows, 6 rooms for secure holding of prisoners attending Court sessions,
rooms for attendants of the Court, offices for Court staff, rooms for storage, and certain
other areas required or used for Court functions, together with the non-exclusive right to
occupy and use the Common Area subject to the terms of the JOA, and with the right to
enter, exit, pass over, and pass through the Land as necessary to access the Court Facility
and the Parking Area. A copy of a site plan depicting the location of the Building on the
Land and a floor plan depicting the layout of the Building interior, are attached as
Exhibit “B” to this Agreement.
“Dispute” means each and every filed and pending claim under the Tort Claims
Act (Government Code section 810, et seq.), lawsuit, arbitration, mediation,
administrative proceeding, settlement negotiation, or other on-going dispute-resolution
proceeding related to the Property that, if determined adversely to the County or the
AOC, would have a Material Adverse Effect.
“Effective Date” means the date that this Agreement is signed by the last Party to
sign.
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“Environmental Law” means federal, state, or local laws, ordinances,
regulations, rules, statutes, and administrative actions or orders respecting hazardous or
toxic substances, waste, or materials, or industrial hygiene.
“Equipment Permits” means all permits, certificates, and approvals required for
lawful Operation of any of the Building Equipment.
“Equity” means the term “equity” as used and referred to in the Act.
“Grant Deed” means the document titled Grant Deed that is similar to the
document attached to this Agreement as Exhibit “I” and by which the County will
convey to the State on behalf of the Council title to the Real Property.
“Hazardous Substance” means any material or substance regulated under any
Environmental Law.
“Intangible Personal Property” means all of the County’s (1) contract rights and
commitments exclusively related to the Court Facility; (2) Building Software; (3)
warranties, permits, licenses, certificates, guaranties, and suretyship agreements and
arrangements, and indemnification rights in favor of the County exclusively with respect
to the Court Facility; (4) commitments, deposits, and rights for utilities exclusively
relating to the Court Facility; (5) engineering, accounting, title, legal, and other technical
or business data exclusively concerning the Court Facility; (6) deposits, deposit accounts,
and escrow accounts arising from or related to any transactions exclusively related to the
Court Facility, and rights to receive refunds or rebates of impact fees, assessments,
charges, premiums, or other payments made by the County exclusively in respect of the
Court Facility, if these refunds or rebates relate to the period on or after the TOR Closing
Date; or (7) all other intangible rights, interests, and claims of the County which are
exclusively a part of or related to the Court Facility.
“Interim Period” means the period of time commencing on the TOR Closing
Date and ending on the TOT Closing Date.
“JOA” means the document titled Joint Occupancy Agreement that is similar in
form and content to the document attached to this Agreement as Exhibit “E”, and under
which the County and the Court will occupy, and the Parties will operate and maintain,
the Real Property.
“Land” means a portion of the Campus on which the Building and the Parking
Area are located, as depicted on Exhibit “A-2.”
“Law” means State and federal codes, ordinances, laws, legally-promulgated
regulations, the California Rules of Court, and judicial and administrative orders and
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directives, to the extent binding on the County Parties or the State Parties, and issued by a
court or governmental entity with jurisdiction over the County Parties or the State Parties.
“Managing Party” means the Party designated the “Managing Party” in the JOA.
“Material Adverse Effect” means any of: (1) a material adverse change in (a) the
condition, operations, or value of the Property, (b) the County’s use of, interest in, or
right or title to, the Property, (c) the ability of the County to perform its obligations under
this Agreement and the Closing Documents, or (d) the validity or enforceability of this
Agreement or the Closing Documents; or (2) the imposition on the County of actual or
contingent payment obligations in respect of the Property of $50,000 or more in the
aggregate.
“Material Agreements” means any and all agreements, contracts, or
understandings (whether written or unwritten) relating to the Property (1) for which
termination requires advance notice by a period exceeding 30 calendar days, or (2) that
obligate the County to make payment, or entitle the County to receive payment,
exceeding $25,000 within any fiscal year.
“Memorandum” means the document titled Memorandum of Joint Occupancy
Agreement that is similar in form and content to the document attached to this Agreement
as Exhibit “F”.
“North Parking Lot” means the unsecured, above-ground parking lot located to
the north of the Building containing a total of 44 parking spaces, of which nine parking
spaces are designated and reserved for use by the Court and 35 parking spaces are
designated and reserved for use by the County, as shown on Exhibit “C” to this
Agreement.
“Occupancy Agreement” means any agreement or arrangement that entitles a
third party to occupy or use the Real Property for a period that continues after the TOR
Closing Date, and that cannot be terminated on 30 or fewer days notice.
“Occupant” means any party that occupies or uses the Real Property under an
Occupancy Agreement.
“Operation” means administration, management, maintenance, and repair, but
does not include custodial services, which are not governed by this Agreement or the
JOA.
“Parking Area” means the North Parking Lot and the South Parking Lot,
collectively.
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“Party” means either of the AOC or the County, and “Parties” means the AOC
and the County.
“Pending Projects” means any pending maintenance project or other project
involving the Court Facility under sections 70326(d) or 70331(c) of the Act.
“Property” means all right, title, and interest in and to the Land, the Building, the
Court Facility, and the Tangible Personal Property.
“Property Disclosure Documents” means all documents including any Material
Agreements in the County’s possession or control that pertain to the title, ownership, use,
occupancy, or condition of the Property or any rights, benefits, liabilities, obligations, or
risks associated with the Property. A list of the categories of possible Property
Disclosure Documents is attached as Exhibit “D”.
“PWB” means the State Public Works Board.
“Real Property” means the Land and the Building.
“Security-Related Areas” means the parts of the Real Property that are used for
secure holding and transport of prisoners, including holding cells, sallyports, and secured
elevators, staircases, and corridors.
“Service Contracts” means all contracts between the County and any third parties
under which goods or services are provided to the Court Facility.
“South Parking Lot” means the unsecured, above-ground parking lot located to
the south of the Building containing a total of 79 parking spaces, of which 10 parking
spaces are designated and reserved for use by the Court, 19 parking spaces are designated
and reserved for use by the County, and the remaining 50 parking spaces are available to
the staff and employees of the Court and the County on a first-come, first served basis, all
as shown on Exhibit “C” to this Agreement.
“State” means the State of California.
“State Parties” means the Council, the Administrative Office of the Courts, and
the Court, and their respective elected and appointed officials, officers, agents, and
employees.
“Tangible Personal Property” means any unaffixed item that is, on the TOR
Closing Date, exclusively: (i) located on or in the Court Exclusive-Use Area, or (ii) used
in or necessary to the use, occupancy, or Operation of, the Court Exclusive-Use Area.
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“Telecommunications MOU” means the Interagency Agreement (County
Provides Services) between the County and the Court, and the Service Plan attached
thereto, effective between July 1, 2005 and June 30, 2010, as amended or renewed from
time to time.
“TOR Closing” means the performance of all acts required to complete the
Transfer of Responsibility under this Agreement and the TOR Closing Documents.
“TOR Closing Date” means the first day of the first calendar month that is at least
30 days following the later to occur of: (i) the date that this Agreement and the TOR
Closing Documents are signed by the last Party to sign them; or (ii) the date on which the
County Facilities Payment has been approved by the State Department of Finance, as
more specifically provided in section 6.1.1 below. The TOR Closing Date shall be
subject to confirmation in writing by the Parties.
“TOR Closing Documents” means the documents listed in section 5.1.1 of this
Agreement.
“TOT Closing” means the performance of all acts required to complete the
Transfer of Title under this Agreement and the TOT Closing Documents.
“TOT Closing Date” means the date that the Grant Deed is recorded in the
County Recorder’s Office.
“TOT Closing Documents” means the documents listed in section 5.2.1 of this
Agreement.
“Total Exclusive-Use Area” means, together, the Court Exclusive-Use Area and
the County Exclusive-Use Area.
“Transfer” means the Transfer of Responsibility or the Transfer of Title, as
determined by the context, and “Transfers” means the Transfer of Responsibility and the
Transfer of Title, together.
“Transfer of Responsibility” means the County’s full and final grant, transfer,
absolute assignment, and conveyance to the applicable State Parties, and the State
Parties’ full and final acceptance and assumption of, entitlement to and responsibility for,
all of the County’s rights, duties, and liabilities arising from or related to the Court
Facility, under the Act and pursuant to this Agreement, except those rights, duties and
liabilities expressly retained by the County under this Agreement, the JOA and the Act,
and Disputes that commenced prior to the TOR Closing Date, or are related to facts or
circumstances that occurred or existed prior to the TOR Closing Date. Notwithstanding
the foregoing, the term Transfer of Responsibility does not include the Transfer of Title.
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“Transfer of Title” means the County’s full and final grant and conveyance to the
State on behalf of the Council of all of the County’s right, title, and interest in and to the
Real Property, except the Building Software, under this Agreement and the TOT Closing
Documents, subject to the County’s Equity (as defined in the JOA) interest in the County
Exclusive-Use Area and the nonexclusive right to use the Common Area under the terms
of the JOA.
“Utilities” means the utilities services provided to the Real Property, except for
telephone, cable, internet, and other data services, which are governed by section 3.8 of
the JOA.
4. RESPONSIBILITIES AFTER TRANSFER.
4.1 Transfer of Responsibility; Transfer of Title. On the TOR Closing Date,
the Transfer of Responsibility for the Court Facility from the County to the AOC will
occur under this Agreement and the TOR Closing Documents. On the TOT Closing
Date, the Transfer of Title will occur under this Agreement and the TOT Closing
Documents. Prior to the TOT Closing Date, the AOC shall notify the County that the
PWB has accepted the TOT Closing Documents required for the Transfer of Title and
issued the Acceptance Document.
4.1.1 New Legal Parcel. On the Effective Date, the Land is part of a
legal parcel of real property on which the Building, the Parking Area, and other unrelated
improvements are located. During the period between the Effective Date and the TOT
Closing Date, the County and the AOC will work together to prepare a legal description
for a new legal parcel comprised only of the Land and having the boundaries as
previously agreed to by the Parties, as depicted on the site plan attached as Exhibit “A-
2” to this Agreement. If the legal description prepared by the County and delivered to
the AOC for review is not consistent with the boundaries set forth on Exhibit “A-2”, and
if the Parties have not agreed upon the legal description for the new legal parcel by June
30, 2009, then this Agreement shall be considered void ab initio for the purposes of
section 70321(b) of the Act, and any rights, privileges, entitlements, obligations, and
liabilities contained herein and created hereby, will be of no force and effect. If, prior to
June 30, 2009, the Parties agree that the legal description for the new legal parcel is
consistent with the boundaries set forth on Exhibit “A-2”, then such legal description
will be attached to the Grant Deed, and, upon the recording of the Grant Deed, the new
legal parcel will be created. If applicable, after the Parties have agreed upon the legal
description pursuant to the foregoing, the County and the AOC shall cooperate in good
faith to rerecord the Memorandum with the legal description of the new legal parcel
attached.
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4.1.2 Access Agreements. During the period between the Effective
Date and the TOT Closing Date, the County and the AOC will work together to prepare
legal descriptions for non-exclusive access agreements having the boundaries as
previously agreed to by the Parties, as depicted on the site plan attached as Exhibit “A-
2” to this Agreement. The purposes of the access agreements are as follows: (i) to allow
the users of the Court Facility to use a portion of the Campus not being transferred to the
AOC, as depicted on Exhibit “A-2” to this Agreement, for ingress to and egress from the
Building until a reasonable date and time following the demolition and removal of the
Health Building Archival Storage (AOC Facility #7-F2), including the stairways and
accessibility ramps that are physically connected to or used in connection with the Health
Building Archival Storage; and (ii) to allow the County users of the Health Building
Archival Storage to use a portion of the Land being transferred to the AOC, as depicted
on Exhibit “A-2” to this Agreement, for ingress to and egress from the Health Building
Archival Storage, and to support the demolition and removal of the stairways and
accessibility ramps that are physically connected to or used in connection with the Health
Building Archival Storage. With these purposes in mind, the term of the access
agreements will commence on the date that the Grant Deed is recorded, and will expire
on the date that is nine months following the removal of the Health Building Archival
Storage and all stairways and accessibility ramps associated therewith (“Access Term”).
The AOC agrees that after removal of the Health Building Archival Storage, including
the associated stairways and accessibility ramps, and prior to the expiration of the Access
Term, it will use all reasonable efforts to commence and complete the construction of an
alternate point of entry/exit on and to the Real Property, so that the County or it is
successors in interest may request an early termination of the access agreements. If the
access agreements are recorded, then, after the Access Term (or earlier upon the
agreement of the Parties), the AOC and the County (or their successors in interest) will
cooperate with one another in good faith to take any further actions or execute any
necessary documents to remove the access agreements as encumbrances on each Parties’
respective property.
4.2 General Responsibilities. Upon the completion of each Transfer, the
Parties will have the general rights, duties, and liabilities set forth in the Act in respect of
the Real Property, except as expressly delegated by the Parties in this Agreement, the
applicable Closing Documents (including the JOA), or any other written agreement
authorized by the Parties’ respective governing bodies and executed in accordance with
such authorization.
4.2.1 Deferral of County Payment Obligations. The Parties have
established a schedule for transitioning the responsibility for Operation of the Court
Facility from the County to the AOC on July 1, 2009 (the “Transition Date”). Until the
Transition Date, the County will continue to perform the Operation of the Real Property
at no cost to the AOC. Notwithstanding anything to the contrary, and in consideration of
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the above-described services provided by the County to the AOC, the County will have
no obligation, at any time, to make any payments of the County Payment Obligations (as
defined in section 4.3.8, below) pursuant to section 6 of this Agreement to the Controller
for the period from the TOR Closing Date through the Transition Date, and the County
shall make its first payment of the County Payment Obligations on the day after the
Transition Date.
4.3 Specific Responsibilities After the TOR Closing Date. The Parties will
have the following specific rights, duties, and liabilities upon and after the TOR Closing
Date:
4.3.1 Utilities. If not completed before the TOR Closing Date, the
Parties will work together, diligently, and in good faith, to cause the County’s accounts
with all providers of Utilities to be assigned to and assumed by the AOC as of the TOR
Closing Date. If any Utility accounts cannot be assigned to the AOC, the Parties will
work together to cause the County’s Utilities accounts to be closed as of the TOR Closing
Date and new Utilities accounts to be opened in the name of the AOC. The County is
solely responsible for all Utilities costs and expenses incurred prior to the TOR Closing
Date, and the Parties will comply with the JOA with respect to the payment of Utilities
costs and expenses incurred on and after the TOR Closing Date. The County will send to
the AOC all invoices and other communications related to Utilities provided to the Real
Property on and after the TOR Closing Date.
4.3.2 Property Insurance and Risk Allocation. Responsibility and
liability for (i) damage to or destruction of the Real Property, (ii) bodily injury to or death
of third parties in, on, or about the Real Property, and (iii) Disputes, are allocated as set
forth in the JOA and section 8 of this Agreement.
4.3.3 Responsibility for Operation. As of the TOR Closing Date,
under the JOA and this Agreement, the AOC will be responsible for Operation of the
Common Area, including the Building Equipment. As of the TOR Closing Date, the
AOC, in its capacity as the Managing Party, shall be responsible for further permitting of
any Building Equipment that requires an Equipment Permit for lawful Operation, once
the County has delivered to the AOC the most recent copies of all required Equipment
Permits, including those related to the air compressor and/or the elevators in the Building.
Notwithstanding the foregoing, if any of the Equipment Permits delivered to the AOC
under this section 4.3.3 are expired or are otherwise not in full force and effect on the
TOR Closing Date as a result of the County’s failure to exercise diligent, good faith
efforts or the County’s negligence, then the County will be solely responsible for all costs
associated with the first instance of obtaining or renewing, as applicable, those
Equipment Permits after the TOR Closing Date.
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4.3.4 Security Staffing. This Agreement does not supersede, replace,
or modify any agreement between the County and the Court with respect to security
staffing for the Real Property.
4.3.5 Parking. The Managing Party is responsible for the Operation of
the Parking Area under the terms of the JOA. The Transfer of Responsibility will include
the Parking Area, and commencing on the TOR Closing Date, each Party will be
responsible for its Share (as defined in the JOA) of the costs of Operation of the Parking
Area, as provided in this Agreement and the JOA. The Court and the County have
agreed that the parking available to the Court in the Parking Area is parking of the same
number, type, and convenience as made available for users of the Court on October 1,
2001.
4.3.6 Occupancy Agreements. The Parties shall be responsible for all
Occupancy Agreements under the terms of the JOA.
4.3.6.1 Coffee Cart License. On the Effective Date, Co. Co.
Hut Express is the Occupant of space on the first floor of the Building without any
written Occupancy Agreement. Prior to the Transfer of Responsibility, the County shall
give this Occupant 30 days written notice that its license agreement with the County will
terminate on the TOR Closing Date. Thereafter, the Council shall either cause this
Occupant to vacate the Building or enter into an occupancy arrangement with this
Occupant on terms satisfactory to the Council and the AOC.
4.3.7 Correspondence. The County will endeavor to forward or direct
by first-class U.S. mail, postage pre-paid, or by facsimile transmission, all
correspondence, invoices, and information delivered to the County related to Operation
of the Court Facility for the period on and after the TOR Closing Date, to the Director of
the AOC’s Office of Court Construction and Management at 455 Golden Gate Avenue,
San Francisco, California 94102, facsimile number (415) 865-8885.
4.3.8 County Payment Obligations. The County will make all County
Facilities Payments and Additional County Payments (as defined in section 6.3 below)
(together the “County Payment Obligations”) in accordance with the Act and section 6
of this Agreement.
4.3.9 Notice of Disputes. Each Party will use best efforts to promptly
notify the other Party in writing of any Dispute filed after the TOR Closing Date that
concerns or alleges acts or omissions of either Party committed at any time related to the
Property.
4.3.10 Personal Property. If either Party determines that there exists
any Tangible Personal Property or Intangible Personal Property, that Party will promptly
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provide to the other Party a notice that includes a reasonably-detailed, written description
of that property. At the AOC’s request, the County will transfer, convey, or assign to the
AOC any or all of the Tangible Personal Property or Intangible Personal Property
described in that notice, except for the Building Software. The County shall continue to
be the licensee of the Building Software and provide the Building Software for use by the
Court under the terms of the JOA.
4.3.11 Adjustments. The Parties will make the appropriate adjustments
for prorations or computations required by this Agreement or the Closing Documents as
promptly as possible once accurate information becomes available evidencing that either
Party is entitled to an adjustment. Any prorations will be based on a 365-day fiscal year.
The Party entitled to the adjustment must make written demand on the other Party for the
adjustment within one year after the TOR Closing Date and will provide a reasonably-
detailed explanation of the basis for the demand and all supporting documentation. The
Parties will promptly pay each other any corrected proration or adjustment amounts.
4.3.12 Telecommunications Services. The County will continue to offer
telecommunications services to the State Parties, for the benefit of the Court in the Court
Facility, on the costs and terms set forth in the Telecommunications MOU. Certain
components of the County’s telephone system, including the telephone line interface
module and related equipment known as LIM and its associated subcomponents (e.g.,
power supplies, batteries, rectifiers, UPSs, cable modems, etc.) (collectively, the “LIM”),
are located throughout the Court Facility. The LIM is part of the County
communications system, and is tied to the Tandem PBX located at 30 Douglas Drive,
Martinez, California. Pursuant to the Telecommunications MOU, the County is the
telecommunications service provider for the Building and provides voicemail for the
Court Facility by County equipment at 30 Douglas Drive, Martinez, California. On and
after the Effective Date, the AOC grants to the County the right of ingress, egress, and
access to all parts of the Court Facility in which any component or subcomponent of, or
connection to, the LIM is located, as reasonably required for the County’s continued
operation, use, maintenance, expansion, replacement, and repair of the LIM or the
associated County backbone copper cable plant in support of the LIM, all of which will
remain the sole and exclusive responsibility and obligation of the County pursuant to the
Telecommunications MOU.
4.3.13 Liability for Seismic-Related Damage and Injury.
4.3.13.1 Application of Section 70324 of the Act. The Parties
acknowledge that the AOC has assigned the Building a “Level V seismic rating” as
defined in section 70301 of the Act; therefore, section 70324 of the Act applies to the
Transfer, and section 70324 of the Act will continue to apply until any one of the events
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described in section 70324(b)(1) through (4) of the Act has occurred, notwithstanding
any subsequent repeal of section 70324 of the Act.
4.3.13.2 Allocation of Liability and Obligations. The liabilities
and obligations of the Parties (including any indemnification obligations) with respect to
any seismic-related damage and injury on or to the Real Property shall be as set forth in
section 70324 of the Act which, for the convenience of the Parties, is attached as
Exhibit “J” and incorporated into this Agreement as though fully set forth in this
Agreement. At all times that section 70324 of the Act applies in respect of the Real
Property, the terms of section 70324 of the Act and this section 4.3.13 will prevail over
any conflicting provisions of the Act, this Agreement, or the Closing Documents.
4.3.13.3 Termination of this Section and Related Indemnities.
When section 70324 of the Act no longer applies in respect of the Property, this
section 4.3.13 will immediately and automatically expire and be of no further force or
effect with respect to any subsequent seismic-related damage or injury in respect of the
Real Property. Thereafter, the other terms of this Agreement and the Closing Documents,
or any agreement entered into under section 70324(a)(4) of the Act and approved by the
Director of Finance, if applicable, will apply to allocation of liability for seismic-related
damage or injury on or to the Real Property.
4.3.14 Relief from Section 70311 Obligations. Effective upon the TOR
Closing Date and pursuant to section 70312 of the Act, the AOC confirms and agrees that
the County will be and is relieved of any responsibility: (1) under section 70311 of the
Act for providing to the Court necessary and suitable court facilities for the number of
judicial and Court support positions currently located in the Building; (2) for deferred or
ongoing maintenance for the Court Facility, except for the County Facilities Payment and
any other obligations of the County under this Agreement or the JOA; and (3) to provide
parking spaces for judges, Court employees, other Court staff, witnesses, and jurors at the
Court Facility.
4.4 Specific Responsibility After Effective Date. After the Effective Date of
this Agreement, neither Party will, without the prior, written consent of the other Party,
which consent will not be unreasonably withheld or delayed: (1) transfer, agree to
transfer, or enter into any agreement affecting any title or ownership interest in the Real
Property to or with any third party, or allow any liens or encumbrances to be recorded
against the Real Property, except as specifically permitted by this Agreement, the JOA, or
the Act; (2) do anything that would result in a change to the zoning or entitlements for
use of the Real Property; or (3) cause the Building to become subject to a deficiency
under section 70326(b) of the Act.
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5. THE CLOSING
5.1 TOR Closing. The TOR Closing will occur upon the TOR Closing Date,
and will not be affected by the date of delivery of the signed originals of this Agreement
or the TOR Closing Documents.
5.1.1 TOR Closing Documents. The TOR Closing Documents are as
follows:
(a) the JOA;
(b) the Memorandum;
(c) the County Authorizing Document; and,
(d) any other documents required by Law, or reasonably
requested by the State Parties or the County to complete the Transfer of Responsibility.
5.1.2 Time for Signature for TOR Closing Documents. The Parties
will sign the TOR Closing Documents on or as expeditiously as possible after the
Effective Date. If the TOR Closing Documents have not been signed within 10 days
after the Effective Date, either Party that has signed the TOR Closing Documents may
terminate this Agreement and the TOR Closing Documents upon five business days
notice to the other Party, but if the TOR Closing Documents are fully signed by the
Parties prior to the end of the five business day period, any termination notice shall be of
no force or effect.
5.1.3 Delivery of Signed Agreement, TOR Closing Documents, and
County Authorizing Document. The last Party to sign this Agreement and the TOR
Closing Documents must deliver, within three business days after signing, (i) to the
County, one signed original of this Agreement and the TOR Closing Documents, and (ii)
to the AOC, all remaining signed originals of this Agreement, and the TOR Closing
Documents, and the County Authorizing Document. The AOC will endeavor to cause
the Memorandum to be recorded in the County Recorder’s Office within 10 business
days after the AOC’s receipt of the signed originals of this Agreement and the TOR
Closing Documents.
5.1.4 Delivery of Possession. On the TOR Closing Date, the County
will deliver to the AOC custody and control over the Court Exclusive-Use Area and the
non-exclusive right to occupy and use the Common Area, subject to the terms of the
JOA.
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5.2 TOT Closing. The TOT Closing will occur upon the recordation of the
Grant Deed in the County Recorder’s Office. By merely completing the Transfer of
Title, the County does not waive, relinquish, limit, diminish, or convey to the State, to
any extent whatsoever, the County’s Equity interest in the Real Property or the right to
occupy certain portions of the Real Property under the terms of the JOA.
5.2.1 TOT Closing Documents. The TOT Closing Documents are as
follows:
(a) the Grant Deed;
(b) the Certificate; and
(c) any other documents required by Law or reasonably
requested by the County, the State Parties, or AOC’s title insurance company to effect the
Transfer of Title.
5.2.2 Execution and Delivery of TOT Closing Documents. The
County will execute and deliver the TOT Closing Documents (along with a certified copy
of the County Authorizing Document) to the AOC within 30 days after the date those
documents are requested in writing by the AOC. The AOC will endeavor to present this
Agreement, the signed TOT Closing Documents, and the County Authorizing Document
to the PWB for approval of the Transfer of Title as promptly as possible after the TOR
Closing Date. The Parties will work together, in a good faith, cooperative manner, to
effect the Transfer of Title and to resolve to the satisfaction of the PWB any condition of
the Real Property that the PWB requires be resolved prior to the PWB’s approval of the
Transfer of Title.
5.2.3 Delivery of Title. On the TOT Closing Date, the County will
deliver to the State Parties title to the Real Property.
5.3 Conditions for Closing. Neither Party will be obligated to consummate the
Transfers unless the following conditions are satisfied or waived prior to the applicable
Closing Date. The conditions for the benefit of the County may only be waived by the
County in a writing executed by the County, and the conditions for the benefit of the
AOC may only be waived by the AOC in a writing executed by the AOC.
5.3.1 Conditions for the Benefit of the AOC. All of the County’s
representations and warranties in this Agreement must be accurate and complete in all
material respects as though made on the applicable Closing Date; the County must not
have breached any of the County’s representations, warranties, or covenants in this
Agreement; and, there must be no County Events of Default under this Agreement nor
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any circumstance which, but for the passage of time or the giving of notice or both,
would constitute a County Event of Default as of the applicable Closing Date.
5.3.2 Conditions for the Benefit of the County. All of the AOC’s
representations and warranties in this Agreement must be accurate and complete in all
material respects as though made on the applicable Closing Date; the AOC must not have
breached any of the AOC’s representations, warranties, or covenants in this Agreement;
and, there must be no AOC Events of Default under this Agreement nor any circumstance
which, but for the passage of time or the giving of notice or both, would constitute an
AOC Event of Default as of the applicable Closing Date.
5.4 Additional TOT Closing Conditions for the Benefit of the AOC. In
addition to the conditions set forth in section 5.3.1 above, the AOC is not obligated to
consummate the Transfer of Title unless on or before the TOT Closing Date: the PWB
has approved the Transfer of Title as evidenced by the AOC’s receipt of the Acceptance
Document, and a title insurance company acceptable to the State Parties is irrevocably
committed to issue an owner’s policy of title insurance to the State on the TOT Closing
Date insuring the State’s title to the Real Property, free and clear of any liens, and subject
only to other exceptions acceptable to the State Parties.
5.5 “As-Is”. Subject to the terms of this Agreement, the JOA, and the Act, the
AOC will accept responsibility for the Court Facility on the TOR Closing Date and the
State will be granted title to the Real Property on the TOT Closing Date, respectively, in
the “as is” condition of the Court Facility or the Real Property, as applicable, and without
requiring payment from the County for any deficiencies in the Court Facility or the Real
Property that are caused by deferred maintenance.
6. COUNTY FACILITIES PAYMENT
6.1 Amount of County Facilities Payment. The annual amount of the County
Facilities Payment submitted to the State Department of Finance (“DOF”) for approval is
$235,211, subject to adjustment under section 70362 of the Act. This amount is based on
a TOR Closing Date occurring within the same fiscal quarter as the Effective Date. If the
TOR Closing Date does not occur in the same fiscal quarter as the Effective Date, the
Parties will recalculate the County Facilities Payment as set forth in the Act.
6.1.1 DOF Approval. If DOF does not approve the County Facilities
Payment in an amount equal to or less than the amount set forth in section 6.1 of this
Agreement, then the Parties will promptly meet and confer to determine how to proceed
in respect of this Agreement and the Transfers, and neither Closing Date will occur
unless and until the County Facilities Payment has been approved by DOF in an amount
that is either (a) equal to or less than the amount set forth in section 6.1 above, or (b) has
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been approved in writing by both the AOC and the County. If the County Facilities
Payment has not been approved by DOF in accordance with (a) or (b) of this
section 6.1.1 by 180 days after the Effective Date, either Party may cancel and terminate
this Agreement upon 10 days prior notice to the other Party; provided that, if DOF
approval of the County Facilities Payment in accordance with (a) or (b) of this
section 6.1.1 is received during the 10-day period, any termination notice will be of no
force or effect.
6.2 County Facilities Payment Obligation. The County will pay to the
Controller the County Facilities Payment under Article 5 of the Act and section 6 of this
Agreement.
6.2.1 Prorations. If the TOR Closing Date falls on any date other than
October 1, January 1, April 1, or July 1, the first quarterly installment of the County
Facilities Payment will be prorated for the period from the TOR Closing Date to the last
day of the fiscal quarter in which the TOR Closing Date occurs. The regular quarterly
installments of the County Facilities Payment will be $58,802.75, based on the TOR
Closing Date occurring in the same fiscal quarter as the Effective Date, and subject to
adjustment under section 70362 of the Act. If the TOR Closing Date does not occur in
the same fiscal quarter as the Effective Date, the amount of the first quarterly installment
will be recalculated in accordance with this section 6.2.1 and section 6.1, if applicable.
No later than 5 business days after the TOR Closing Date, the County will deliver to the
Controller the first quarterly installment of the County Facilities Payment.
6.2.2 Quarterly County Facilities Payments. The County will make
County Facilities Payments every fiscal quarter at the time and in the amount that is
required by the Act and this section 6, including any adjustments to the County Facilities
Payment amount, except for the first quarterly installment of the County Facilities
Payment which must be adjusted and prorated in accordance with sections 6.2.1 and
6.2.2.
6.3 Additional County Payment Obligation. In addition to the County
Facilities Payment set forth in section 6.1, above, and pursuant to section 70321(b) of the
Act, the County shall be obligated to pay a continuing amount from the date of Transfer
(the “Additional County Payment”) calculated by multiplying the County Facilities
Payment by the percentage change in the National Implicit Price Deflator for State and
Local Government Purchases, as published by the DOF, for the fiscal year in which this
Agreement is executed as compared to the prior fiscal year. The Additional County
Payment shall be paid to the Controller in same manner as the County Facilities Payment
under section 6.2 of this Agreement.
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7. REPRESENTATIONS AND WARRANTIES
Each Party hereby makes the representations and warranties set forth in this
section 7 to the other Party as of the Effective Date, the TOR Closing Date, and the TOT
Closing Date. Each Party shall give written notice to the other within 5 business days of
its discovery of any facts, events, or circumstances that would render any information
contained in that Party’s representations and warranties in this Agreement or any Closing
Document incomplete, untrue, or misleading, but if a Party makes that discovery within
seven calendar days prior to the applicable Closing Date, then that Party must
immediately deliver written notice of the relevant information to the other Party,
whereupon the applicable Closing Date will be automatically delayed to allow the Party
receiving that notice sufficient time to decide whether to proceed with the Closing of the
applicable Transfer.
7.1 The County’s Representations and Warranties. The phrase “to the best of
the County’s knowledge” or words of similar import, means the actual knowledge of
Terry Mann, the Deputy Director of the County’s Department of General Services, and
the County represents that Mr. Mann is the County staff person most knowledgeable
about all the various aspects of the Property and has access to County documents and
information to give the County’s representations and warranties.
7.1.1 Good Standing. The County is a political subdivision of the
State duly organized, validly existing, and in good standing under the Law of the State.
7.1.2 Authority. The County Authorized Signatory has been duly
authorized and empowered, by a resolution or other formal action of the County Board of
Supervisors, to sign this Agreement and the Closing Documents on behalf of the County.
7.1.3 Due Execution and Delivery. To the best knowledge of the
County, and assuming the due authorization, execution and delivery by, and validity
against, the other Parties hereto, this Agreement and the Closing Documents executed by
the County are legal, valid, and binding obligations of the County enforceable against the
County in accordance with their respective terms, subject in each case to: (1) laws
relating to bankruptcy, insolvency, or other laws affecting the enforcement of creditors’
rights generally; (2) the application of equitable principles if equitable remedies are
sought; (3) the exercise of judicial discretion in appropriate cases; and (4) the limitation
on legal remedies against counties in the State of California.
7.1.4 No Conflict. To the best knowledge of the County, this
Agreement and the Closing Documents do not and will not violate any provision of any
agreement, obligation, or court order to which the County is a party or by which the
County or any of its assets is subject or bound. To the best knowledge of the County,
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there is no Law in effect that would prohibit the County’s execution, delivery, or
performance of its obligations under this Agreement or the Closing Documents.
7.1.5 Title to Real Property. To the best knowledge of the County,
other than any Occupancy Agreements and those rights and interests that are subject to
any recorded encumbrances or have been disclosed in the Property Disclosure
Documents: (1) the County has good and marketable fee title to the Real Property, free
and clear of any liens, claims, encumbrances, or security interests in favor of third parties;
and (2) no person or entity other than the County Parties or any State Parties has any title
or interest in or right to occupy or use the Real Property; and (3) the County has not
granted, conveyed, or otherwise transferred to any person or entity any title or interest in
or right to, or any future right to acquire, any title or interest in or right to, the Real
Property.
7.1.6 Personal Property. To the best knowledge of the County, with
the exception of the Building Software, there is no Tangible Personal Property or
Intangible Personal Property, and to the extent the County has any right, title, or interest
in or to any Tangible Personal Property or Intangible Personal Property, other than the
Building Software, effective as of the TOR Closing Date, the County transfers, conveys,
and quitclaims the same to the AOC.
7.1.7 No Disputes. To the best of the County’s knowledge, there are
no Disputes pertaining to the Property, or the County’s right, title, and interest in and to
the Property.
7.1.8 No Violations of Law. To the best knowledge of the County, the
County has not received any written notice from any State, federal, or other governmental
authority requesting or requiring the County to correct any violations of Law pertaining
to the Property. To the best of County’s knowledge, Security-Related Areas are either in
full compliance with the standards set forth in Titles 15 and 24 of the California Code of
Regulations, or are exempt from compliance with those standards.
7.1.9 Accurate Disclosure. The County maintains in its ordinary course
of business the Property Disclosure Documents delivered or made available to the AOC
for the Transfer. The County has not intentionally altered any of these Property
Disclosure Documents in any manner that renders them inaccurate, incomplete, or
misleading.
7.1.10 No Condemnation. To the best knowledge of the County, the
County has not received a written notice of any pending modification of a street or
highway contiguous to the Real Property, or any existing or proposed eminent domain
proceeding that could result in a taking of any part of the Real Property.
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7.1.11 No Environmental Violations. Except as set forth in the Property
Disclosure Documents provided to the AOC, or in any environmental assessments or
investigations of the Real Property performed by the AOC, to the best knowledge of the
County, there are no existing violations of Environmental Laws in, on, under, adjacent to,
or affecting the Real Property.
7.1.12 Full and Complete Disclosure. To the best knowledge of the
County, the County provided to the AOC all existing Property Disclosure Documents
within the County’s possession, custody, or control.
7.1.13 Service Contracts. To the best knowledge of the County, other
than Service Contracts for elevators and fire extinguishers, there are no Service Contracts
with respect to the Court Facility. Subject to section 4.3.3 above, on and after the
Effective Transition Date, the County shall terminate the Service Contracts for elevators
and fire extinguishers in respect of the Court Facility, and the Parties will work together
to cause new contracts for those goods/services to be entered into directly by the AOC.
7.1.14 No Special Circumstances. The County has not undertaken or
commenced any Pending Projects in or around the Real Property, the Real Property is not
subject to “bonded indebtedness” as defined in section 70301(a) of the Act, and the
Building is not an “historical building” as defined in section 70301(f) of the Act.
7.2 AOC’s Representations and Warranties. The phrase “to the best of the
AOC’s knowledge,” or words of similar import, means the actual knowledge of the
Director, Office of Court Construction and Management, and the AOC represents that
this is the person within the AOC most knowledgeable with respect to the matters
described in the AOC’s representations and warranties, and has access to AOC
documents and information to give the AOC’s representations and warranties.
7.2.1 Good Standing. The Administrative Office of the Courts is the
staff agency to the Council, an entity established by the Constitution of the State, validly
existing under the Law of the State.
7.2.2 Authority. The AOC Authorized Signatory has been duly
authorized and empowered to sign this Agreement and the Closing Documents on behalf
of the AOC.
7.2.3 Due Execution and Delivery. To the best knowledge of the AOC,
and assuming the due authorization, execution and delivery by, and validity against, the
other Parties hereto, this Agreement and the Closing Documents executed by the AOC
are legal, valid and binding obligations of the AOC enforceable against the AOC in
accordance with their respective terms, subject in each case to: (1) laws relating to
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bankruptcy, insolvency, or other laws affecting the enforcement of creditors’ rights
generally; (2) the application of equitable principles if equitable remedies are sought; (3)
the exercise of judicial discretion in appropriate cases; and (4) the limitation on legal
remedies against the State.
7.2.4 No Conflict. To the best knowledge of the AOC, this Agreement
and the Closing Documents do not and will not violate any provision of any agreement,
obligation, or court order, to which the AOC is a party or by which the AOC or any of its
property is subject or bound. To the best knowledge of the AOC, other than the PWB’s
approval of the Transfer of Title, no other action of any governmental agency or authority
is required for, and the AOC has no actual knowledge of any Law in effect which would
prohibit, the AOC’s execution, delivery, or performance of its obligations under this
Agreement or the Closing Documents.
7.2.5 No Disputes. To the best of the AOC’s knowledge, there are no
Disputes pertaining to the Court Facility, or the AOC’s right to and interest in the Court
Facility.
7.2.6 No Violations of Law. To the best knowledge of the AOC, the
AOC has not received any written notice from any State, federal, or other governmental
authority requesting or requiring the AOC to correct any violations of Law pertaining to
the Court Facility.
7.2.7 No Environmental Violations. Except as set forth in the Property
Disclosure Documents provided to the AOC, or in any environmental assessments or
investigations of the Real Property performed by the AOC, to the best knowledge of the
AOC, there are no existing violations of Environmental Laws in, on, under, adjacent to,
or affecting the Court Facility.
7.3 Representations and Warranties for TOT Closing. Each Party makes the
representations and warranties set forth in this section 7.3 to the other Party effective only
on the TOT Closing Date:
7.3.1 The Certificate. To the best knowledge of each Party, the
matters described in the Certificate are the only exceptions to the accuracy or
completeness of that Party’s representations and warranties set forth in section 7.1 or 7.2
of this Agreement, respectively, as of the TOT Closing Date.
8. INDEMNITIES
8.1 The AOC’s Indemnities. The AOC agrees to indemnify, defend, and hold
harmless the County Parties (with counsel reasonably acceptable to the County) from and
against all liability, damages, attorney fees, costs, expenses, or losses (referred to as
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“Indemnified Loss” in this section) asserted against the County Parties arising from the
following except as set forth in section 8.3 below:
8.1.1 Covenants. Any material breach by a State Party of its
obligations set forth in this Agreement or any Closing Documents;
8.1.2 Representations and Warranties. Any breach of the AOC’s
representations and warranties contained in section 7.2 of this Agreement or in the
Closing Documents; and
8.1.3 AOC Responsibilities. Any event that occurs, or Dispute that
commences, on or after the TOR Closing Date, to the extent the Indemnified Loss results
from, or is directly attributable to, (i) the Court’s occupancy of the Court Exclusive-Use
Area, or (ii) the Court’s shared use of the Common Area, or (iii) the AOC’s Operation of
or responsibility for the Property (except for the County Exclusive-Use Area) and the
Parking Area, in each case, on or after the TOR Closing Date. This indemnity cannot be
deemed or construed to limit or diminish the State Parties’ obligations contained in any
agreement between the State Parties and the County Parties, or that are otherwise
required by Law, which are required or permitted to be performed after the TOR Closing
Date.
8.2 The County’s Indemnities. The County agrees to indemnify, defend, and
hold harmless the State Parties (with counsel reasonably acceptable to the AOC) from
and against all Indemnified Loss asserted against the State Parties arising from the
following except as set forth in section 8.3 below:
8.2.1 Covenants. Any material breach by a County Party of its
obligations set forth in this Agreement or the Closing Documents;
8.2.2 Representations and Warranties. Any breach of the County’s
representations and warranties contained in section 7.1 of this Agreement or set forth in
the Closing Documents;
8.2.3 County Responsibilities. Any event that occurs, or Dispute that
commences, prior to the TOR Closing Date, or which is otherwise attributable to the time
prior to the TOR Closing Date, to the extent the Indemnified Loss results from, or is
directly attributable to, the County’s ownership, occupancy, Operation of, or
responsibility for, the Property. This indemnity cannot be deemed or construed to limit
or diminish the County Parties’ obligations contained in any agreement between the State
Parties and the County Parties, or that are otherwise required by Law, which are required
or permitted to be performed after the TOR Closing Date; and
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8.2.4 CERCLA. Under section 70393(d) of the Act, any liability
imposed on the State pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (42 U.S.C. section 9601 et seq.)
(“CERCLA”), or related provisions, for conditions that existed on the Real Property at
the time of the TOR Closing Date whether or not known to the County.
8.3 Indemnity Exclusions. Neither Party will be entitled to be indemnified,
defended, or held harmless by the other Party under this Agreement in respect of any
event, circumstance, or condition that arises from its own negligence or willful
misconduct. The indemnification obligations of the Parties under sections 8.1 and 8.2 of
this Agreement will in no event release the Parties from their respective obligations set
forth in this Agreement, the Closing Documents, or any other agreement, or in any way
diminish the duty of either Party to fully and faithfully perform those obligations.
9. RIGHT TO AUDIT
The County will maintain all records relating to the County Payment Obligations
due and owing from the County under the Act and this Agreement for the period of time
required by Law. The County will also maintain an accounting system, supporting fiscal
records, and agreements related to the Property to address claims and disputes arising
under this Agreement and the Closing Documents in accordance with the requirements of
the Act. The County will also maintain records relating to all receipts and expenditures
from the local courthouse construction fund established under Government Code
section 76100, which the AOC has the right to audit under section 70391(d)(2) of the
Act. The County will provide to the AOC, or its designated representative or consultant,
copies of, or access to, these records and supporting documents for inspection and audit
at any reasonable time upon reasonable prior notice.
10. DEFAULT NOTICE AND CURE
Upon a Party’s breach or default of any provision of this Agreement, the non-
defaulting Party will provide written notice to the defaulting Party of the breach or
default (“Default Notice”). Upon receipt of the Default Notice, the defaulting Party will
have 30 calendar days to cure the breach or default described in the Default Notice and to
provide evidence of that cure to the non-defaulting Party. If the breach or default is not
capable of cure within the 30 calendar day period, then no breach or default can be
deemed to have occurred by reason of the failure to cure so long as the defaulting Party
promptly begins and diligently and continuously performs the cure to completion within a
reasonable time period, not to exceed 90 calendar days from commencement of the cure
(“Cure Period”). If the defaulting Party does not provide evidence of the cure to the
non-defaulting Party within the Cure Period, then the defaulting Party will be deemed to
have committed an “Event of Default,” and the non-defaulting Party will have the right,
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but not the obligation, to pursue its rights with respect to resolution of disputes under
section 11 of this Agreement. The Parties may at any time mutually agree to commence
the dispute resolution procedures in section 11 of this Agreement before the end of the
Cure Period.
11. DISPUTE RESOLUTION
11.1 Unassisted Negotiation; Mediation. In the event of a dispute between the
Parties arising under or relating to performance of the Parties’ obligations under this
Agreement, or any aspect of the transactions contemplated in this Agreement, the County
Administrator and an Assistant Director of the AOC’s Office of Court Construction and
Management, or their respective designees, will meet to discuss a resolution to the
dispute. Any designee appointed must have the authority to negotiate for, and to
effectively recommend settlement to, the Party that he or she represents. If the Parties
are not able to resolve their dispute within 30 calendar days through that unassisted
negotiation, they will attempt to resolve the dispute by mediation under this section 11.1.
If the dispute concerns a matter within the jurisdiction of the Court Facilities Dispute
Resolution Committee (“CFDRC”), established by section 70303 of the Act, the Parties
must first mediate the dispute before a Party can commence a dispute resolution
proceeding before the CFDRC.
11.1.1 Initiation of Mediation. Either or both of the Parties may request
the initiation of mediation for any dispute described in section 11.1, whether or not the
dispute falls within the CFDRC’s jurisdiction, by delivering a written request for
mediation (“Mediation Request”) to the other Party. The Mediation Request must (1)
include a brief summary of the issues in dispute, (2) state the dates on which the
requesting Party is unavailable to attend the mediation within the immediately-
succeeding 90 calendar days after the delivery to the other Party of the Mediation
Request, and (3) list at least three neutral mediators who are acceptable to the requesting
Party for mediation of the dispute. Within ten calendar days after the requesting Party’s
delivery of a Mediation Request to the other Party, the responding Party must deliver to
the requesting Party a response to the Mediation Request (“Mediation Response”),
which must: (a) include a brief summary of the issues in dispute (which may or may not
be the same as the summary provided by the requesting Party); (b) state the dates on
which the responding Party is unavailable to attend the mediation within the 80 calendar
days immediately following the requesting Party’s receipt of the Mediation Response;
and (c) state whether any of the neutral mediators listed in the Mediation Request are
acceptable to the responding Party and, if none are, then the Mediation Response must
list at least three neutral mediators who are acceptable to the responding Party.
11.1.2 Selection of Mediator. Within 10 calendar days after delivery to
the requesting Party of the Mediation Response, the Parties will attempt in good faith to
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agree upon a neutral mediator to preside over the mediation. If the Parties are not able to
agree upon a neutral mediator within 10 calendar days after delivery to the requesting
Party of the Mediation Response, the Parties must apply to a mutually agreeable
mediation service for selection of a neutral mediator to mediate the dispute. The Parties’
application to a mediation service must be filed in accordance with the selected mediation
service’s applicable rules and procedures then in effect, and must include copies of the
Mediation Request and Mediation Response. The mediator must be a person with a
reasonable degree of experience and expertise in handling disputes involving
governmental entities. The mediator must have no current or prior involvement with
either Party in the negotiations between the Parties related to the Act or any of the court
facility transfers provided for in the Act, and shall discharge his or her duties impartially
and as a neutral, independent participant to the mediation process to assist the Parties to
achieve a settlement and compromise of their dispute, taking into consideration the
relevant facts, applicable Law, and the pertinent provisions of any relevant agreement
between the Parties. The selection of a mediator by the mediation service will be final
and binding on the Parties.
11.1.3 Cost of Mediation. The Parties will share equally in payment of
all costs of the mediation, including the compensation of the mediator. The Parties and
the mediator must reach a written agreement regarding the mediator’s compensation and
expenses before the mediation is commenced.
11.1.4 Date, Time, and Place of Mediation. In consultation with the
Parties, the mediator will fix the date, time, and place of each mediation session. The
mediation may be held at any convenient location agreeable to the Parties and the
mediator. Mediation must be completed within 90 calendar days after the requesting
Party’s delivery to the responding Party of the Mediation Request.
11.1.5 Attendance at Mediation. Both Parties must attend the mediation
session(s). The Parties may satisfy this attendance requirement by sending a
representative familiar with the facts of the dispute, who has the authority to negotiate on
behalf of, and to effectively recommend settlement to, the Party he or she represents.
Any Party to the mediation may have the assistance of an attorney or other representative
of its choice, at its own cost. Other persons may attend the mediation sessions only with
the consent of the Parties and the mediator.
11.1.6 Statements Before Mediation. The mediator will determine the
manner in which the issues in dispute will be framed and addressed. The Parties should
expect that the mediator will request a premediation statement outlining facts, issues, and
positions of each Party (“Premediation Statement”) in advance of the mediation
session. At the discretion of the mediator, the Premediation Statements or other
information may be mutually exchanged by the Parties.
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11.1.7 Confidentiality. The mediation will be confidential in all
respects, and the provisions of California Evidence Code sections 1152 and 1154 will
apply to all written and verbal evidence presented in the mediation and to settlement
communications made in the Premediation Statement, during the mediation itself, or
otherwise in furtherance of or related to the mediation or the settlement of the dispute.
The Premediation Statements shall be confidential, for settlement purposes only, and will
not be admissible for any purpose other than for the mediation. Without limiting the
foregoing, the provisions of California Evidence Code sections 1115 through 1128,
inclusive, will apply in connection with any mediation under this Agreement.
11.2 Resolution of Claims Remaining After Mediation. After compliance with
the terms of section 11.1 of this Agreement, the Parties shall proceed as follows in
respect of any dispute that remains unresolved: (i) if the unresolved dispute involves any
of the matters described in sections 70303(c)(1) through (5) of the Act, the Parties shall
refer the dispute to the CFDRC for hearing and recommendation to, and decision by, the
Director of Finance, pursuant to the Act and the regulations and rules adopted by the
CFDRC; or (ii) if the unresolved dispute does not involve any of the matters described in
sections 70303(c)(1) through (5) of the Act, then the Parties may proceed to resolve the
dispute in any manner permitted at Law or in equity.
12. NOTICES
Any notice or communication required to be sent to a Party pursuant to this
Agreement must refer to this Agreement and must state that the notice is being sent
pursuant to this section 12. The notice must be sent in writing by personal delivery
(including overnight courier service), certified U.S. mail, postage pre-paid and with
return receipt requested, to the Parties at their addresses indicated below. Routine
exchange of information may be conducted via telephone, facsimile, and/or electronic
means, including e-mail.
If to the AOC:
Administrative Office of the Courts
Office of Court Construction and Management
Attention: Portfolio Administration Analyst for the
Bay Area/Northern Coastal Region
455 Golden Gate Avenue, 8th Floor
San Francisco, CA 94102
Voice: 415-865-4053
Fax: 415-865-8885
With a copy to:
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Administrative Office of the Courts
Office of Court Construction and Management
Attention: Manager, Real Estate
455 Golden Gate Avenue
San Francisco, CA 94102
Voice: 415-865-4048
Fax: 415-865-8885
In addition, all audit requests and notices by the County relating to termination of
this Agreement or alleged breach or default by the AOC of this Agreement or a
Closing Document must also be sent to:
Administrative Office of the Courts
Attention: Senior Manager, Business Services
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Voice: 415-865-4090
If to the County:
County Administrator
County of Contra Costa
Attention: Capital Facilities Manager
651 Pine Street, 11th Floor
Martinez, CA 94553
Voice: (925) 335-1021
and
General Services Director
County of Contra Costa
Attention: Deputy Director
1220 Morello Avenue, Suite 200
Martinez, CA 94553
Voice: (925) 313-7163
With a copy to:
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Office of the County Counsel
County of Contra Costa
651 Pine Street, 9th Floor
Martinez, CA 94553
Voice: (925) 335-1800
A Party may change its address for notice under this Agreement by giving written
notice to the other Party in the manner provided in this section 12. Any notice or
communication sent under this section 12 will be deemed to have been duly given as
follows: (1) if by personal delivery, on the date actually received by the addressee or its
representative at the address provided above, or (2) if sent by certified U.S. mail, return
receipt requested, on the first business day that is at least 3 calendar days after the date
deposited in the U.S. Mail.
13. SURVIVAL OF TERMS AND PROVISIONS
The following sections of this Agreement will survive the TOR Closing and the
TOT Closing, and will remain in full force and effect: 3, 4, 5.1.3, 5.2.2, 5.3, 5.4, 5.5, and
6 through 14, inclusive. All other rights and duties hereunder will cease on the TOT
Closing Date. In the event of the termination of this Agreement, all documents, other
tangible objects, and information containing or representing confidential or proprietary
information which have been disclosed by one Party to the other, and all copies which are
in the possession or under the control of the other Party will be and remain the property
of the Party that disclosed the documents, objects, and information, and all those
documents and other tangible objects will be promptly returned to the Party that disclosed
them at that Party’s written request.
14. MISCELLANEOUS
14.1 Amendments. This Agreement may be amended only by written
agreement signed by both of the Parties.
14.2 Waivers. No waiver of any provision of this Agreement will be valid
unless it is in writing and signed by both the AOC and the County. Waiver by either
Party at any time of any breach of this Agreement cannot be deemed a waiver of or
consent to a breach of the same or any other provision of this Agreement. If a Party’s
action requires the consent or approval of the other Party, that consent or approval on
any one occasion cannot be deemed a consent to or approval of that action on any later
occasion or a consent or approval of any other action.
14.3 Force Majeure. Neither Party is responsible for performance under this
Agreement to the extent performance is prevented, hindered, or delayed by fire, flood,
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earthquake, elements of nature, acts of God, acts of war (declared and undeclared), riots,
rebellions, revolutions, or terrorism, whether foreseeable or unforeseeable.
14.4 Assignment. Neither Party may assign this Agreement in whole or in part,
whether by operation of law or otherwise, to any other entity, agency, or person without
the prior written consent of the other Party. Even if that consent is given, any
assignment made in contravention of any Law will be void and of no effect.
14.5 Binding Effect. This Agreement binds the parties and their permitted
successors and assigns.
14.6 Third Parties Benefited. The State Parties are intended beneficiaries of all
provisions of this Agreement and the Closing Documents for the benefit of the AOC.
The County Parties are intended beneficiaries of all provisions of this Agreement and the
Closing Documents for the benefit of the County. Nothing in this Agreement, the JOA,
or any of the other Closing Documents, express or implied, is intended to confer on any
other person, other than the State Parties and County Parties, any rights under or by
reason of this Agreement.
14.7 Governing Law. This Agreement, and the Parties’ performance under this
Agreement, will be exclusively governed by the laws of the State without regard to its
conflict of law provisions. The Parties, to the fullest extent permitted by Law,
knowingly, intentionally, and voluntarily, with and upon the advice of competent
counsel, submit to personal jurisdiction in the State of California over any suit, action, or
proceeding arising from or related to the terms of this Agreement.
14.8 Construction. The headings used in this Agreement are inserted for
convenience only and will not affect the meaning or interpretation of this Agreement.
The words “hereof,” “herein,” and “hereunder,” and other words of similar import, refer
to this Agreement as a whole and not to any subdivision contained in this Agreement.
This Agreement and the Closing Documents will not be construed against any Party as
the principal draftsperson. The words “include” and “including” when used are not
exclusive and mean “include, but are not limited to” and “including but not limited to,”
respectively.
14.9 Integration. This Agreement and the Closing Documents executed and
delivered by the AOC or the County, contain the entire agreement of the Parties with
respect to the Transfers, and supersede all previous communications, representations,
understandings, and agreements, whether verbal, written, express, or implied, between
the Parties.
14.10 Capitalized Terms. The capitalized terms used in this Agreement have the
meanings ascribed to them in this Agreement.
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14.11 Incorporation By Reference. The Exhibits contained in or attached to this
Agreement are all incorporated into and made a part of this Agreement for all purposes,
and all references to this Agreement in any of the recitals or Exhibits will mean and
include the entirety of this Agreement.
14.12 Severability. If any term of this Agreement is inconsistent with applicable
Law, then upon the request of either Party, the Parties will promptly meet and confer to
determine how to amend the inconsistent term in a manner consistent with Law, but all
parts of this Agreement not affected by the inconsistency will remain in full force and
effect.
14.13 Further Assurances. The Parties agree to cooperate reasonably and in good
faith with one another to (1) implement the terms and provisions set forth in this
Agreement and the Act, and (2) consummate the transactions contemplated herein, and
will execute any further agreements and perform any additional acts that may be
reasonably necessary to carry out the purposes and intent of this Agreement, the Closing
Documents, and the Act.
[CONTINUED ON NEXT PAGE]
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The Parties agree to the terms of this Agreement.
APPROVED AS TO FORM:
Administrative Office of the Courts,
Office of the General Counsel
By: __________________________
Name: Dianne Barry
Title: Attorney
Date: _________________________
JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE
COURTS
By: ________________________________
Name: ____________________________
Title: ____________________________
Date: ______________________________
STATE OF CALIFORNIA )
COUNTY OF CONTRA COSTA )
On _________________, 200__, before me,
__________________________, Deputy Clerk of the Board of
Supervisors, Contra Costa County, State of California, and for
said County and state, personally appeared
______________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
By: ____________________________ (Seal)
Deputy Clerk
COUNTY OF CONTRA COSTA, a political
subdivision of the State of California
By: _______________________________
Name: ____________________________
Title: ____________________________
Date: ______________________________
APPROVED AS TO FORM:
SILVANO B. MARCHESI
County Counsel
County of Contra Costa
By: ___________________________
Deputy County Counsel
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EXHIBITS
Exhibit “A-1” – Legal Description of the Land
Exhibit “A-2” – Depiction of Land
Exhibit “B” – Copy of Site Plan and Floor Plan
Exhibit “C” – Depiction of Parking Area
Exhibit “D” – Categories of Property Disclosure Documents
Exhibit “E” – Form of Joint Occupancy Agreement
Exhibit “F” – Form of Memorandum of Joint Occupancy Agreement
Exhibit “G” – List of Building Equipment
Exhibit “H” – Form of Datedown Certificate
Exhibit “I” – Form of Grant Deed
Exhibit “J” – Copy of Section 70324 of the Act
Facility # 07-F1
Building Name: Richmond Bay District Courthouse
Building Address: 100 37th Avenue, Richmond, CA
PRINT DATE: 3/12/09
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JOINT OCCUPANCY AGREEMENT
BETWEEN
THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS,
AND
THE COUNTY OF CONTRA COSTA
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JOINT OCCUPANCY AGREEMENT
1. PURPOSE
The Judicial Council of California (“Council”), Administrative Office of the
Courts (together, the “AOC”), and the County of Contra Costa (“County”) set forth the
terms and conditions for the Parties’ shared possession, occupancy, and use of the Real
Property.
2. DEFINITIONS
“Act” means The Trial Court Facilities Act of 2002 (Government Code sections
70301-70404) as of the Effective Date.
“Agreement” means the Transfer Agreement for the Transfer of Responsibility
for Court Facility, by and between the AOC and the County, of even date herewith.
“AOC Claim” means any demand, complaint, cause of action, or claim related to
the period on and after the Effective Date, alleging or arising from acts, errors, omissions,
or negligence of the Court in the administration and performance of judicial operations in
the Court Facility (e.g., allegations of civil rights violations made by a third party against
a Court employee).
“AOC Share” means 74.99 percent, which is the percentage of the Total
Exclusive-Use Area occupied by the Court on the Effective Date. The Parties
acknowledge that the AOC Share may change upon the mutual, written agreement of the
Parties.
“Appraiser” means an MAI appraiser with at least five years experience in
appraising real properties similar to the Real Property.
“Broker” means a real estate broker licensed by the California Department of
Real Estate with adequate knowledge and experience in assessing and providing opinions
of value for real properties similar to the Real Property.
“Building” means the building that includes the Court Facility commonly referred
to as the Richmond Bay District Courthouse, located on the Land and occupied by the
Court and the County, all connected structures and improvements, and all Building
Equipment.
“Building Equipment” means all installed equipment and systems that serve the
Building, including the Building Software and those items listed on Exhibit “G” to the
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Agreement. The Building Equipment does not include the equipment and systems that
exclusively serve the Exclusive-Use Area of only one Party.
“Building Software” means the software program called On Guard ET that is
licensed to the County by Lenel for the operation of a keycard entry system in the
Building.
“Campus” means the real property on which the Land, the Building, the Parking
Area and other unrelated improvements, including the Health Building Archival Storage
(AOC Facility #07-F2), are located, as described on Attachment “1” and as shown on
Attachment “2” to this JOA.
“Claim” is defined in section 6.2.2 of this JOA.
“Common Area” means the areas of the Real Property that are used non-
exclusively and in common by, or for the common benefit of, the AOC, the County, the
Court, and any Occupants, and includes (1) those portions of the Building depicted as
Common Area on Attachment “2” to this JOA including hallways, stairwells, and
restrooms that are not located in either Party’s Exclusive-Use Area, (2) foundations,
exterior walls, load-bearing walls, support beams, exterior windows, the roof, and other
structural parts of the Building, (3) Building Equipment and Utilities that do not
exclusively serve only one Party’s Exclusive-Use Area, (4) driveways, walkways, and
other means of access over the Land and through the Building to the Court Exclusive-Use
Area, and (5) the Parking Area. The Common Area does not include any part of the
Exclusive-Use Area of either Party except for any Building Equipment that is located in a
Party’s Exclusive-Use Area.
“Contractors” means all third-party contractors, vendors, service providers, and
all levels of subcontractors, and their respective employees, consultants, and
representatives, that provide goods, services, or supplies with respect to the Operation of
any part of the Real Property.
“Contributing Party” means the County.
“County Exclusive-Use Area” means the 13,274 square feet of the floor space in
the Building, which are exclusively occupied and used by the County as depicted on
Attachment “2” to this JOA. As of the Effective Date, the County Exclusive-Use Area
is 25.01 percent of the Total Exclusive-Use Area.
“County Facilities Payment” means the payments the County must make to the
Controller with respect to the Court Facility under Article 5 of the Act.
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“County Parties” means the County, its elected and appointed officers, agents,
and employees.
“County Share” means 25.01 percent, which is the percentage of the Total
Exclusive-Use Area that is exclusively occupied and used by the County as of the
Effective Date. The Parties acknowledge that the County Share may change upon the
mutual, written agreement of the Parties.
“Court” means the Superior Court of California, County of Contra Costa.
“Court Exclusive-Use Area” means the 39,805 square feet of the floor space of
the Building that are exclusively occupied and used by the Court, as depicted on
Attachment “2” to this JOA. As of the Effective Date, the Court Exclusive-Use Area is
74.99 percent of the Total Exclusive-Use Area.
“Court Facility” means all spaces, fixtures, and appurtenances described in
section 70301(d) of the Act, including the Court Exclusive-Use Area, which includes
eight rooms for holding superior court, eight chambers of judges of the Court, fourteen
walk-up windows, 6 rooms for secure holding of prisoners attending Court sessions,
rooms for attendants of the Court, offices for Court staff, rooms for storage, and certain
other areas required or used for Court functions, together with the non-exclusive right to
occupy and use the Common Area subject to the terms of this JOA, and with the right to
enter, exit, pass over, and pass through the Land as necessary to access the Court Facility
and the Parking Area. A copy of a site plan depicting the location of the Building on the
Land and a floor plan depicting the layout of the Building interior, are attached as Exhibit
“B” to the Agreement.
“Damaged Property” is defined in section 6.1.4 of this JOA.
“Deficiency” means any physical condition of, damage to, or defect in the
Common Area arising after the Effective Date that: (1) threatens the life, health, or safety
of persons occupying or visiting the Building, (2) unreasonably interferes with, disrupts,
or prevents either Party’s occupancy or use of the Real Property, or its ability to conduct
its business operations in its Exclusive-Use Area, in an orderly, neat, clean, safe, and
functional environment, (3) threatens the security of the employees, guests, invitees, or
patrons of either Party, (4) threatens to diminish the value of the Contributing Party’s
Exclusive-Use Area or the Common Area, or threatens to damage or destroy the business
personal property of the Contributing Party or the Court located in the Building, (5)
threatens the preservation of the Contributing Party’s files, records, and documents
located in the Building, or (6) causes or exacerbates an unsafe, unsanitary, unlawful, or
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non-functional condition affecting the Contributing Party’s Exclusive-Use Area or the
Common Area.
“Effective Date” means the date that this JOA is signed by the last Party to sign.
“Emergency” means a sudden, unexpected event or circumstance, on or affecting
the Common Area or the Real Property, that results in a Deficiency.
“Equipment Permits” means all permits, certificates, and approvals required for
lawful Operation of any of the Building Equipment.
“Equity” means the term “equity” as used and referred to in the Act.
“Estimated Shared Costs” means the Managing Party’s reasonable, itemized
estimate of the Shared Costs for a fiscal year; provided that, the Managing Party’s first
estimate of the Shared Costs will cover the period from the Effective Date to the last day
of the fiscal year in which the Effective Date occurs.
“Exclusive-Use Area” means the Court Exclusive-Use Area or the County
Exclusive-Use Area, as determined by the context in which the term is used.
“Hazardous Substance” means any material or substance regulated under any
federal, state, or local laws, ordinances, regulations, rules, statutes, and administrative
actions or orders respecting hazardous or toxic substances, waste, or materials, or
industrial hygiene.
“Incident” is defined in section 6.2.2 of this JOA.
“Indemnified Loss” means all liability, damages, attorney fees, costs, expenses,
or losses with respect to which either Party is obligated to indemnify the other Party
under this JOA.
“JOA” means this Joint Occupancy Agreement.
“Land” means a portion of the Campus on which the Building and the Parking
Area are located, as depicted on Attachment “2” to this JOA.
“Law” means State and federal codes, ordinances, laws, legally-promulgated
regulations, the California Rules of Court, and judicial and administrative orders and
directives, to the extent binding on the County Parties or the State Parties, and issued by a
court or governmental entity with jurisdiction over the County Parties or the State Parties.
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“Liability Claim” means any demand, complaint, cause of action, or claim
alleging (1) bodily injury to or death of third parties (excluding any employees of State
Parties or County Parties acting within the scope of their employment as such) in, on, or
about the Real Property, and (2) damage to or destruction of personal property of a third
party (other than personal property of a County Party or a State Party) in, on, or about the
Real Property, but excludes all AOC Claims.
“Major Deficiency” means any Deficiency: (i) that cannot, with reasonable
diligence, be corrected within 10 days, or (ii) as to which the estimated cost to correct
will result in Excess Costs in an amount greater than 10 percent of the Estimated Shared
Costs for the fiscal quarter in which the Parties anticipate the correction will be
performed, under section 4.2 of this JOA.
“Managing Party” means the AOC.
“Memorandum” means the document titled Memorandum of Joint Occupancy
Agreement that will be recorded in the official records of the County as an encumbrance
on the Land pursuant to the Agreement and that is similar in form and content to the
document attached as Exhibit “F” to the Agreement.
“Non-Owning Party” means the Party that does not own fee title to the Real
Property.
“North Parking Lot” means the unsecured, above-ground parking lot located to
the north of the Building containing a total of 44 parking spaces, of which nine parking
spaces are designated and reserved for use by the Court and 35 parking spaces are
designated and reserved for use by the County, as shown on Exhibit “C” to the
Agreement.
“Occupancy Agreement” means any agreement or arrangement that entitles a
third party to occupy or use the Real Property for a period that continues after the TOR
Closing Date, and that cannot be terminated on 30 or fewer days notice.
“Occupant” means any party that occupies or uses the Real Property under an
Occupancy Agreement.
“Operation” means administration, management, maintenance, and repair, but
does not include custodial services, which are not governed by the Agreement or this
JOA.
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“Owner” means the Party that owns fee title to the Real Property, which shall be
the County prior to the TOT Closing Date, and the State after the TOT Closing Date.
“Parking Area” means the North Parking Lot and the South Parking Lot,
collectively.
“Party” means either the AOC or the County, and “Parties” means the AOC and
the County.
“Property Damage Claim” means any claim or demand arising from or related to
direct, physical loss or damage to the Real Property that is required to be covered by the
Property Insurance Policies.
“Property Insurance Costs” means all costs of providing the Property Insurance
Policies, including premiums, deductibles, and self-insurance retention amounts under
Owner’s self-insurance program.
“Property Insurance Policies” means one or more policies of property insurance
maintained by the Owner that insure the Real PropertyBuilding against those risks
covered under a form of coverage with terms and conditions as comprehensive as those in
an All-Risk/Special Form property insurance policy and, when applicable, the
comprehensive form of equipment breakdown insurance, with coverage amounts equal to
at least the 100 percent Replacement Cost of the Building. Owner’s obligation to provide
the Property Insurance Policies may be satisfied, in whole or in part, by any self-
insurance or deductible maintained by the Owner for the Real PropertyBuilding, or by
Owner’s participation in a joint powers authority established for the purpose of pooling
self-insured claims.
“Property Loss” means any loss or damage to, or destruction of, the Real
Property that arises from a cause that is required to be covered under the terms of the
Property Insurance Policies.
“Real Property” means the Land and the Building.
“Restricted Area” means all areas (i) within the Court Exclusive-Use Area that
are not generally accessible to the public, including judges’ chambers, all non-public
restrooms, elevators, break rooms, and corridors, and other non-public spaces that are
dedicated for use only by judges or Court staff and employees, and (ii) public areas of the
Common Area and the Court Exclusive-Use Area during non-business hours that are
subject to security screening during normal business hours.
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“Share” means the AOC Share or the County Share, as determined by the context
in which the term is used.
“Shared Costs” means: (i) the cost of owned or rented capital replacement items,
improvements, equipment, and repairs in or benefiting the Common Area; (ii) the cost of
normal, day-to-day Operation of the Common Area including the cost of Utilities
provided to the Common Area, and the cost of maintaining Equipment Permits (but
excluding any late fees, interest, penalties, or other charges arising from the Managing
Party’s failure to timely pay those costs or keep the Equipment Permits in effect); (iii) the
cost of Utilities provided to the Exclusive-Use Areas, if Utilities are not separately
metered for the Exclusive-Use Areas; and (iv) any Property Insurance Costs, subject to
section 4.5 below. Shared Costs do not include: (a) any cost that is primarily for the
purpose of benefiting a Party’s Exclusive-Use Area, including the cost of Utilities that are
separately metered for a Party’s Exclusive-Use Area; (b) late fees related to any item that
would otherwise be a Shared Cost, unless those late fees are pre-approved by both
Parties, or are necessary to remedy the imminent threat arising from an Emergency; (c)
any fees, fines, penalties, interest, or other charges arising from the Managing Party’s
Operation of the Real Property in a negligent manner or a manner that does not comply
with Law; or (d) any cost that arises from the sole willful misconduct or gross negligence
of a Party, its officers employees, agents, or Contractors. Notwithstanding anything to
the contrary, Shared Costs do not include any cost, expense or fee that is incurred by the
AOC as a result of the design, engineering, plans, permits, inspections, demolition,
disposal, or grading arising from as a result of the construction of an alternate point of
entry/exit on and to the Real Property, which will replace an access agreement to use a
certain portion of the Campus not being transferred to the AOC, including, without
limitation, any cost, expense or fee for design, engineering, plans, permits, inspections,
demolition, disposal, grading, drainage, paving, hardscape (including curbs, gutters and
sidewalks), striping, signage, fencing and gated access points, if any.
“State Parties” means the Council, the Administrative Office of the Courts, and
the Court, and their respective elected and appointed officials, officers, agents, and
employees.
“Telecommunications MOU” means the Interagency Agreement (County
Provides Services) between the County and the Court, and the Service Plan attached
thereto, effective between July 1, 2005 and June 30, 2010, as amended or renewed from
time to time.
“Term” means the term of this JOA, which commences on the Effective Date and
continues indefinitely until the Parties enter into a written agreement terminating this
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JOA. Upon termination of this JOA, the Memorandum shall be terminated and removed
as an encumbrance on the Land.
“Termination Agreement” means the document titled Termination of Joint
Occupancy Agreement in the form and content attached as Attachment “4” to this JOA.
“Total Exclusive-Use Area” means the Court Exclusive-Use Area and the County
Exclusive-Use Area, together.
“Utilities” means the utilities services provided to the Real Property, except for
telephone, cable, internet, and other data services, which are governed by section 3.8 of
this JOA.
3. RIGHTS AND RESPONSIBILITIES
3.1 Rights to Exclusive-Use Area and Common Area. Under the Act, the
Agreement, and this JOA, the County has the right to exclusively occupy and use the
County Exclusive-Use Area and the non-exclusive right to occupy and use the Common
Area, and the AOC has the right to exclusively occupy and use the Court Exclusive-Use
Area and the non-exclusive right to occupy and use the Common Area. Each Party’s
non-exclusive right to use the Common Area must: (i) not interfere with the other Party’s
use of its Exclusive-Use Area or the Common Area; (ii) not materially increase the other
Party’s obligations under this JOA; and (iii) comply with Law. The Parties may from
time to time agree on reasonable rules and regulations for their shared use of the
Common Area.
3.2 Responsibility for Exclusive-Use Areas and Common Area.
3.2.1 Exclusive-Use Areas. During the Term, each Party is responsible
for the Operation of its Exclusive-Use Area at its sole cost and expense. Each Party may
make alterations and additions to its Exclusive-Use Area, as long as those alterations and
additions do not unreasonably interfere with the other Party’s use or structural integrity of
its Exclusive-Use Area or the Common Area.
3.2.2 Common Area. The Managing Party is responsible for the
Operation of the Common Area and will provide and pay for Utilities to the Real
Property under this JOA, subject to the Contributing Party’s obligations under section 4
of this JOA. The Managing Party may make reasonable additions and alterations to the
Common Area, the cost of which will be a Shared Cost, but the Managing Party must
first obtain the written consent of the Contributing Party to those additions or alterations,
which consent will not be unreasonably withheld, conditioned, or delayed. If the
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Contributing Party neither consents, nor provides to the Managing Party a reasonably-
detailed description of its reasons for withholding its consent, within 30 days after the
Contributing Party’s receipt of the Managing Party’s request for consent to the Common
Area additions or alterations, the Contributing Party will be deemed to have consented,
and will be responsible to pay its Share of the costs and expenses incurred by the
Managing Party in making the Common Area alterations or additions described in the
Managing Party’s request for consent.
3.2.3 Correction of Deficiencies.
3.2.3.1 Deficiency. Upon the Managing Party’s discovery of a
Deficiency, the Managing Party must either (i) correct the Deficiency within 20 days, or
(ii) if the Deficiency is a Major Deficiency, send a written notice to the Contributing
Party, within 10 days, describing the Major Deficiency and providing an estimate of the
cost and time needed to correct the Major Deficiency (“Major Deficiency Notice”).
3.2.3.2 Contributing Party Deficiency Notice. The Contributing
Party may at any time, but is not obligated to, send a written notice to the Managing Party
describing the Deficiency (the “Contributing Party Deficiency Notice”). Upon receipt
of any Contributing Party Deficiency Notice, the Managing Party must either: (i) correct
the Deficiency by no later than 20 days after the Managing Party’s receipt of the
Contributing Party Deficiency Notice; or (ii) within 10 days after the Managing Party’s
receipt of the Contributing Party Deficiency Notice, send a Major Deficiency Notice to
the Contributing Party.
3.2.3.3 Contributing Party’s Right to Correct. If the Managing
Party neither corrects the Deficiency nor sends a Major Deficiency Notice within the time
periods provided in section 3.2.3.2, then the Contributing Party may, but is not obligated
to, without giving any notice or commencing any cure period under section 10 of this
JOA, correct the Deficiency described in the Contributing Party Deficiency Notice in any
reasonable manner under the circumstances. If the Contributing Party corrects the
Deficiency, the Contributing Party will be entitled to reimbursement from the Managing
Party, under section 3.2.3.4, below, of the Managing Party’s Share of the actual costs
incurred by the Contributing Party to correct the Deficiency, whether or not the
Deficiency is a Major Deficiency.
3.2.3.4 Correcting Party; Reimbursement. The Party that
actually performs the correction of a Deficiency or a Major Deficiency is the
“Correcting Party.” The Correcting Party will endeavor to contact the non-Correcting
Party prior to performing the correction of a Deficiency or a Major Deficiency. The
Correcting Party is entitled to be reimbursed by the non-Correcting Party for the non-
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Correcting Party’s Share of the actual costs that the Correcting Party incurs in correcting
each Deficiency, as follows:
(a) If the Correcting Party is the Managing Party, the
non-Correcting Party will endeavor to promptly reimburse the Correcting Party for the
non-Correcting Party’s Share of the actual costs to correct the Deficiency but no later
than 60 days after the Managing Party has delivered to the Contributing Party an invoice
and reasonable supporting documents evidencing the actual costs to correct the
Deficiency; or
(b) If the Correcting Party is the Contributing Party, the
Managing Party will reimburse the Contributing Party for the Managing Party’s Share of
the actual costs to correct the Deficiency within 30 days after the Contributing Party has
delivered to the Managing Party an invoice and reasonable supporting documents
evidencing the actual costs to correct the Deficiency.
(c) If the non-Correcting Party does not timely
reimburse the Correcting Party for the non-Correcting Party’s Share of the costs of
correction, the Correcting Party may offset the non-Correcting Party’s Share of the costs
to correct the Deficiency against any amounts that the Correcting Party owes to the non-
Correcting Party under this JOA or any other agreement. Notwithstanding the foregoing,
the County will have no right of set off in respect of payment of the County Facilities
Payment.
3.2.3.5 Major Deficiency Correction Plan. If the Managing
Party at any time sends the Contributing Party a Major Deficiency Notice, whether under
section 3.2.3.1 or section 3.2.3.2 of this JOA, then within 10 days after the Contributing
Party’s receipt of the Major Deficiency Notice, the Parties will meet and confer, in good
faith, in person or by telephone, to determine a plan (“Correction Plan”) for the
correction of the Major Deficiency, including the method, estimated cost, and time period
for the correction. If the Managing Party does not thereafter complete the correction of
the Major Deficiency in accordance with the agreed upon Correction Plan, the
Contributing Party may, but will not be obligated to, without giving any notice or
commencing any cure period under section 10 of this JOA, correct the Major Deficiency
in a manner consistent with the Correction Plan, and will thereafter be the Correcting
Party for purposes of reimbursement of the Managing Party’s Share of the actual costs of
correcting the Deficiency under section 3.2.3.4(b) of this JOA.
3.2.3.6 Not Applicable to Emergencies. This section 3.2.3 will
not apply to any Deficiency that: (i) arises from an Emergency, and (ii) constitutes an
imminent threat (a) to life, safety, health, or security, (b) of reduction in the value of the
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Contributing Party’s Exclusive-Use Area or the Common Area, or (c) to the preservation
of the Contributing Party’s files, records, and documents located in the Building. Rather,
those Deficiencies will be governed by section 3.2.4 of this JOA. Any Deficiency that
arises from an Emergency, but that does not constitute an imminent threat to the matters
described in (ii) (a), (b), or (c) above, will be governed by section 3.2.3.
3.2.4 Emergencies. If any Emergency occurs, the Parties must
immediately notify one another of the Emergency by telephone or any other means
reasonable under the circumstances. As promptly as is feasible under the circumstances,
the Managing Party must take steps to correct any Deficiency that arises from the
Emergency and that constitutes an imminent threat (a) to life, safety, health, or security,
(b) of reduction in the value of the Contributing Party’s Exclusive-Use Area or the
Common Area, or (c) to the preservation of the Contributing Party’s files, records, and
documents located in the Building. If the Managing Party does not immediately correct
any such Deficiency arising from an Emergency, the Contributing Party may, but will not
be obligated to, without giving any notice or commencing any cure period under section
10 of this JOA, correct that Deficiency without making any further demand on the
Managing Party, and will notify the Managing Party of the steps taken to correct the
Deficiency as soon as reasonably possible. The Party that corrects a Deficiency arising
from an Emergency under this section 3.2.4 is entitled to reimbursement from the other
Party of the non-Correcting Party’s Share of the actual cost of correcting the Emergency
pursuant to section 3.2.3.4 of this JOA. Notwithstanding the foregoing, if a Deficiency
arises from an Emergency, but the Deficiency does not constitute an imminent threat to
the matters described in (a), (b), or (c) above, the correction of that Deficiency will be
governed by section 3.2.3 of this JOA.
3.3 Parking. The Managing Party is responsible for the Operation of the
Parking Area, which is part of the Common Area, subject to the Contributing Party’s
obligation to reimburse its Share of the Shared Costs of that Operation under this JOA.
Except for any parking spaces that may be reserved or designated under this JOA, all of
the parking spaces in the Parking Area will be undesignated and used by the Parties and
their respective staff, employees, and visitors on a first-come, first-served basis. The
Court and the County have agreed that the parking available to the Court in the Parking
Area is parking of the same number, type, and convenience as made available for users of
the Court on October 1, 2001.
3.4 Cooperation. The Parties will cooperate with one another, reasonably and
in good faith, to ensure that each Party can peacefully enjoy, possess, use, and occupy its
Exclusive-Use Area and the Common Area. The Owner will cooperate in good faith
with, and ensure that, the Non-Owning Party can exercise its rights and responsibilities
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under this JOA. Subject to any reasonable rules and restrictions, each Party will allow
the other Party to enter its Exclusive-Use Area for any reasonable purpose related to the
terms of this JOA or any other written agreement between the Parties. Either Party may
delegate its responsibilities under this JOA to the other Party or to a third party, but that
delegation will not relieve the delegating Party from its obligations under this JOA.
3.5 Security Staffing. This Agreement does not supersede, replace, or modify
any agreement between the County and the Court with respect to security staffing for the
Real Property.
3.6 Occupancy Agreements. Each Party is responsible for all Occupancy
Agreements affecting its Exclusive-Use Area, and Owner is responsible for all
Occupancy Agreements affecting the Common Area, in each case without contribution
from the other Party. The Party that is responsible for each Occupancy Agreement is
entitled to all income arising from it.
3.7 Obtaining Equipment Permits. The County will endeavor, at its sole cost
and expense, to obtain current and valid Equipment Permits for the following equipment
as soon as possible after the Effective Date: (1) Any and all elevators located in the
Building, and (2) the air compressor located within the Building. After the County
delivers current and valid Equipment Permits pursuant to the foregoing sentence, the
Managing Party shall be responsible for maintaining and renewing the Equipment
Permits.
3.8 Information Technology and Telephone Equipment. The County will
continue to offer telecommunications services to the State Parties, for the benefit of the
Court in the Court Facility, on the costs and terms set forth in the Telecommunications
MOU. Certain components of the County’s telephone system, including the telephone
line interface module and related equipment known as LIM and its associated
subcomponents (e.g., power supplies, batteries, rectifiers, UPSs, cable modems, etc.)
(collectively, the “LIM”), are located throughout the Court Facility. The LIM is part of
the County communications system, and is tied to the Tandem PBX located at 30
Douglas Drive, Martinez, California. Pursuant to the Telecommunications MOU, the
County is the telecommunications service provider for the Building and provides
voicemail for the Court Facility by County equipment at 30 Douglas Drive, Martinez,
California. On and after the Effective Date, the AOC grants to the County the right of
ingress, egress, and access to all parts of the Court Facility in which any component or
subcomponent of, or connection to, the LIM is located, as reasonably required for the
County’s continued operation, use, maintenance, expansion, replacement, and repair of
the LIM or the associated County backbone copper cable plant in support of the LIM, all
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of which will remain the sole and exclusive responsibility and obligation of the County
pursuant to the Telecommunications MOU.
4. SHARED COSTS
4.1 Payment of Estimated Shared Costs. The Managing Party will make
timely, direct payment of all Shared Costs owed to third parties, and the Contributing
Party is responsible to reimburse the Managing Party for its Share of all Shared Costs
under this section 4. Within 90 days after the Effective Date, and on or before the first
day of each fiscal year thereafter, the Managing Party will deliver to the Contributing
Party a statement (the “Estimate Statement”) itemizing the Estimated Shared Costs,
which the Contributing Party will either comment on or approve within 30 days. If the
Contributing Party disapproves any of the Estimated Shared Costs in the Estimate
Statement, the Contributing Party must state its reasons for disapproval with reasonable
specificity in its written response to the Managing Party. Failure to respond within such
30-day period will be deemed approval of the Estimate Statement by the Contributing
Party. If the Parties are not in full agreement as to the Estimated Shared Costs after the
Managing Party’s consideration of the Contributing Party’s written response, the Parties
will promptly meet and discuss the reason for the disapproval. If the Parties reach
agreement with respect to all Estimated Shared Costs, the Managing Party will, if
necessary, revise the Estimate Statement, which both Parties will promptly approve. The
Contributing Party is not obligated to make any payments of its Share of the Estimated
Shared Costs until it has approved the Estimate Statement in writing or such Estimate
Statement has been deemed approved. However, until the Contributing Party approves
the Estimate Statement, it will pay its Share of the Estimated Shared Costs based on the
approved Estimate Statement for the prior fiscal year plus five percent or the undisputed
portion of the Estimate Statement, whichever is greater, or, during the initial fiscal year
of the Term, based on the County Facilities Payment. Upon approving the Estimate
Statement, the Contributing Party will pay its Share of the Estimated Shared Costs based
on the approved Estimate Statement, plus all additional amounts owed by the
Contributing Party for the period during which the Parties were in the process of reaching
agreement as to the Estimate Statement. Payment of Estimated Shared Costs will be
made in equal quarterly installments on the first day of each fiscal quarter, subject to this
JOA.
4.2 Payment of Actual Shared Costs. Within 30 days after the end of each
fiscal quarter, the Managing Party will deliver to the Contributing Party a statement (the
“Quarterly Invoice”) itemizing the actual Shared Costs incurred during the previous
fiscal quarter (“Actual Shared Costs”). Within 30 days after a written request by the
Contributing Party, the Managing Party will also deliver to the Contributing Party copies
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of supporting documents for any of the Actual Shared Costs shown on the Quarterly
Invoice. If the Actual Shared Costs are less than the Estimated Shared Cost for the
applicable fiscal quarter, the Managing Party will refund the amount overpaid to the
Contributing Party within 30 days after the Managing Party’s delivery of the Quarterly
Invoice, except that if the Contributing Party consents, the Managing Party may retain the
overpayment and offset it against future amounts owed by the Contributing Party under
this JOA. If the Actual Shared Costs are greater than the Estimated Shared Costs for the
applicable fiscal quarter (“Excess Costs”), the Contributing Party will pay such Excess
Costs to the Managing Party within 30 days after its receipt of the Quarterly Invoice,
except that (a) if the Excess Costs are more than 10 percent of the Estimated Shared
Costs for any fiscal quarter, or (b) if the Contributing Party has requested, but not
received, supporting documents for any Excess Costs by 10 days prior to the date that
payment is due, the Contributing Party will continue to make payment of its Share of the
Shared Costs based on the Estimate Statement, or as otherwise agreed under section 4.3
of this JOA, but may defer payment of the Excess Costs (or, in the case of (b) above, the
Excess Costs to which the supporting documents relate) for that fiscal quarter, until the
Parties have met and reached an agreement regarding the amount of the Excess Costs,
under section 3.2.3.5 or section 4.3 of this JOA, whichever is applicable.
4.3 Notice of Anticipated Excess Costs. Prior to incurring any Shared Cost that
the Managing Party reasonably believes will result in excess costs in amounts greater
than 10 percent of the estimated Shared Costs shown on the Estimate Statement (“Excess
Costs”), the Managing Party must give written notice to the Contributing Party
describing the amount and reason for such Excess Costs; except that (a) no notice must
be given to the Contributing Party if the Excess Costs will be incurred to correct a
Deficiency arising from an Emergency under section 3.2.4 of this JOA, and (b) if the
Excess Costs will be incurred in connection with the correction of a Deficiency under
section 3.2.3 of this JOA, notice of the Excess Costs, and resolution of any issues related
to the Excess Costs, will be handled under section 3.2.3, and this section 4.3 will not
apply. If the Contributing Party objects in writing to the Excess Costs within 30 days
after receiving the Managing Party’s notice, the Parties must meet and confer, in person
or by telephone, within 10 calendar days to resolve their dispute concerning the Excess
Costs. If the Parties do not reach agreement concerning the Excess Costs during that
meet and confer process, the Parties will promptly seek to resolve their dispute
concerning the Excess Costs under the terms of section 11 of this JOA. If the
Contributing Party does not respond to the Managing Party’s notice within 30 days of
receiving the notice, the Managing Party may proceed with expenditure of the Excess
Cost in the amount and for the purpose described in the notice, and the Contributing Party
must pay its Share of those Excess Costs.
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4.4 Audit Rights. The Contributing Party may, at its sole cost and upon
reasonable notice to the Managing Party, inspect the Managing Party’s books, records,
and supporting documents concerning all Actual Shared Costs incurred for up to 12
calendar months prior to the date of the Contributing Party’s inspection. The Parties will
cooperate reasonably with each other to ensure that the inspection is performed promptly
and without undue interference to either Party. If, after its inspection, the Contributing
Party disputes any Actual Shared Costs for any of the immediately-preceding 12 calendar
months, the Contributing Party may engage an independent certified public accountant,
acceptable to both Parties, to audit the Managing Party’s books and records to determine
the amount of the Actual Shared Costs in dispute. The results of the audit will be binding
on both Parties. If the audit reveals that the Contributing Party overpaid or underpaid
Actual Shared Costs for a fiscal quarter, the Parties will make the payments necessary to
resolve that overpayment or underpayment within 30 days following the completion of
the audit. The Contributing Party must pay the entire cost of the audit. The Contributing
Party’s payment of Shared Costs will not prevent it from disputing the accuracy of any
Actual Shared Costs under this section 4.4.
4.5 Parking Area and Electricity Costs.
4.5.1 Parking Area Costs. The terms of section 4 of this JOA apply to
the Shared Costs incurred in Operation of the Parking Area, and the Parties are
responsible for those Shared Costs based on the Parties’ respective Shares of the Total
Exclusive-Use Area.
4.5.2 Electricity Costs. There is only one electrical meter for the
Building and the County-owned building commonly known as the Health Building
Archival Storage (AOC Facility #7-F2), and therefore, only one electrical account for
both structures. The portion of the monthly electrical bill attributable to the Building is
44.864 percent, which is the percentage of the total usable square feet of the Building and
the Health Building Archival Storage combined that is located in the Building only.
Accordingly, the Parties are responsible for 44.864 percent of the monthly electrical bill
based on their respective Shares. In the event that the total square footage of the Health
Building Archival Storage is modified due to construction, demolition, expansion,
vacancy or otherwise, the percentage of the Campus electricity costs attributable to the
Building shall be commensurately adjusted. The Parties acknowledge and agree that
upon demolition of the Health Building Archival Storage, the electrical meter and related
electrical account shall serve the Building only.
4.6 Property Insurance Costs. Owner will not change any deductible or self-
insurance retention amount in respect of the Property Insurance Policies without the
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prior, written consent of the Non-Owning Party, which consent will not be unreasonably
withheld. While the County is the Owner of the Real Property, the AOC will reimburse
the County for the AOC Share of the Property Insurance Costs in the same manner set
forth in section 4 of this JOA, with the County having the rights and duties of the
Managing Party and the AOC having the rights and duties of the Contributing Party, only
as it relates to reimbursement of the Property Insurance Costs.
4.7 Shared Cost Notifications. Notwithstanding section 12 of this JOA, all
communications and notices between the Parties relating to Shared Costs including,
without limitation, Estimate Statements, Quarterly Invoices, or any other communication
or notice required by this section 4, will be made between the following County and AOC
representatives, or to such alternate representatives as a Party may designate from time to
time by written notice to the other Party given pursuant to section 12 of this JOA:
If to the AOC:
Administrative Office of the Courts
Office of Court Construction and Management
455 Golden Gate Avenue
San Francisco, CA 94102
Attention: Regional Manager of the Bay Area North Coast
Region of the Facilities Management Unit
Phone: 415-865-4059
Fax: 415-865-8885
If to the County:
General Services Director
County of Contra Costa
Attention: Deputy Director
1220 Morello Avenue, Suite 200
Martinez, CA 94553
Voice: (925) 313-7163
5. RIGHT OF FIRST REFUSAL, COMPATIBLE USES, AND VACATE
RIGHTS
5.1 Right of First Refusal and Increase of Space In Building
5.1.1 Right of First Refusal for Excess Area. At least 30 days before a
Party rents or otherwise transfers to a third party all or any portion of its Exclusive-Use
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Area (“Excess Area”), that Party must, by written notice, offer the Excess Area to the
other Party on the same terms and conditions set forth in any offer to or an acceptable
offer from a third party for the Excess Area (“Third Party Terms”). The Third Party
Terms must separate the rent for the Excess Area from any amounts to be paid by the
third party for Operation, Utilities, and other costs in respect of the Excess Area. If the
other Party elects not to occupy the Excess Area on the Third Party Terms, or fails to
respond to the notice within a 30 day period, the Party with the Excess Area may, subject
to section 5, permit a third party to occupy and use the Excess Area on the Third Party
Terms. Before a third party can occupy the Excess Area on terms that are more favorable
to the third party than the Third Party Terms, the Party with the Excess Area must again
first offer the Excess Area to the other Party on those more favorable terms under this
section 5.1.1. If the other Party elects to accept the Excess Area on the Third Party
Terms, the Parties will enter into a separate written agreement setting forth the terms for
the other Party’s occupancy and use of the Excess Area, consistent with the Third Party
Terms.
5.1.2 Request for Increase of Exclusive-Use Area. If a Party wishes to
increase the size of its Exclusive-Use Area (“Additional Area”), and the Parties reach
agreement on mutually-acceptable terms for the Additional Area, the Parties will enter
into a separate written agreement setting forth the terms for the occupancy and use of the
Additional Area, which terms may include a reasonable rent, subject to section 5.1.4 of
this JOA.
5.1.3 No Adjustment to Shares. If a Party rents any Excess Area or
Additional Area under section 5.1.1 or 5.1.2, above, the rental transaction will not result
in a change to the Parties’ Shares. Rather, the rent paid by the Party renting the Excess
Area or the Additional Area will include the Shared Costs applicable to the Excess Area
or the Additional Area, as applicable. The Parties’ Shares will only be adjusted if one
Party at any time buys the other Party’s rights to occupancy and use of the Real Property
for fair market value under section 5.3 of this JOA, or otherwise.
5.1.4 Terms of this JOA Not Affected. Any transfer of the Excess
Area or the Additional Area to a Party or to a third party will not relieve the Parties of
their rights and responsibilities under this JOA with respect to the Excess Area or the
Additional Area. Rather, any re-allocation of the Parties’ rights and responsibilities
under this JOA will be set forth in any separate agreement entered into by the Parties for
rental of the Excess Area or the Additional Area.
5.2 Compatible Use; Hazardous Substances.
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5.2.1 Compatible Use. Each Party must use, and must require that any
Occupant use, its Exclusive-Use Area in a manner that is compatible with the Parties’ use
of the Building on the Effective Date and that does not deteriorate or diminish the other
Party’s ability to use its Exclusive-Use Area or the Common Area effectively. The
Managing Party must ensure that any Occupant that occupies any of the Common Area
uses its space in a manner compatible with the Parties’ use of the Building.
5.2.2 Hazardous Substances. Neither Party will store, use, treat,
manufacture, or sell, or allow any other person to store, use, treat, manufacture, or sell,
any Hazardous Substance on the Real Property except in compliance with Law.
5.3 Vacate Right Pursuant to Section 70344(b) of the Act. After the Effective
Date, if either Party is entitled to and does exercise its rights under section 70344(b) of
the Act, the Party that is required to vacate the Building (“Vacating Party”) must
remove all of its property from, and surrender to the other Party full possession of, the
space vacated (“Vacated Space”) within 90 days after the Parties agree on the amount of
compensation to be paid to the Vacating Party for (i) its Equity in the Vacated Space, and
(ii) its relocation costs. The Vacating Party must repair, at its sole cost, any damage it
causes to any part of the Real Property in removing its property from the Vacated Space.
If the Parties cannot agree on the value of the Vacating Party’s Equity in the Vacated
Space, the Parties will select a mutually-acceptable Appraiser or a Broker to determine
the fair market value of the Vacating Party’s Equity in the Vacated Space. If the Parties
cannot agree on the fair market value of the Vacating Party’s relocation costs, the Parties
will select a mutually-acceptable relocation expert with at least five years of experience
in determining relocation costs in California (“Expert”), to determine the fair market
value of the Vacating Party’s relocation costs. Any Appraiser, Broker, or Expert will
deliver to both Parties its determination of value, and each Party will be responsible for
one-half of the costs of the Appraiser, Broker, or Expert. Any disputes under this section
5.3 with respect to the amount to be paid to the Vacating Party for the Vacating Party’s
Equity in the Vacated Space or the Vacating Party’s relocation costs will be resolved
under section 11 of this JOA. The Parties will enter into an Equity Rights Purchase
Agreement, substantially similar to Attachment “3” attached to this JOA, to
memorialize the terms of the purchase of the Vacating Party’s Equity in the Vacated
Space, and the Parties must enter into a Termination Agreement, substantially similar to
Attachment “4” attached to this JOA, when the Vacating Party has vacated the Vacated
Space and has been compensated for its Equity in the Vacated Space and its relocation
costs, all as required under this section 5.3. Concurrent with its execution of the
Termination Agreement, the Vacating Party will execute, acknowledge, and deliver to the
other Party a quitclaim deed relinquishing all right, title and interest in and to the Real
Property.
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5.4 Amendment to JOA; Equity Rights. If the Parties’ Equity rights will be
modified, whether under section 7 of this JOA, or as a result of any other purchase of
Equity rights to which the Parties may agree under this JOA or the Act, the Parties will
amend this JOA to: (i) adjust their Exclusive-Use Areas; and (ii) adjust each Party’s
Share and their Equity rights in the Real Property.
6. INSURANCE
6.1 Property Insurance.
6.1.1 Property Insurance Policies to be Maintained. Owner will provide
the Property Insurance Policies and maintain them in full force and effect, and will make
direct payment of all Property Insurance Costs, subject to the Non-Owning Party’s
obligation to pay its portion of those costs under section 4 of this JOA. Owner will
include by specific endorsement to each of the Property Insurance Policies: (i) when the
County is the Owner, the Judicial Council of California, the Administrative Office of the
Courts, and the Court, or (ii) when the AOC is the Owner, the County, as additional
insureds or covered parties, as their interests may appear, and joint loss payees with
respect to those insurance proceeds that relate to any Property Damage Claims payable
under the terms and conditions of the Property Insurance Policies, with the same
coverages and limits as the named insured under the Property Insurance Policies.
6.1.2 Allocation of Risk for Property Damage Claims. While Owner is
providing and maintaining the Property Insurance Policies, and the Non-Owning Party is
paying its portion of the Property Insurance Costs under section 4, above, Owner will
bear sole responsibility for the purchase and maintenance of the Property Insurance
Policies, and both the Non-Owning Party and the Owner hereby waive, and the Owner
will cause the providers of its Property Insurance Policies to waive, all rights of recovery
against the other Party and its applicable insurer(s) for any Property Damage Claims
payable under, the terms and conditions of the Property Insurance Policies. The Parties
will cooperate in developing and presenting the necessary proofs of loss required by
providers of the Property Insurance Policies, and will jointly pursue to final resolution,
any and all Property Damage Claims, including (if covered by the Property Insurance
Policies) claims for costs associated with obtaining, and relocating Court operations to,
alternate space while any portion of the Real Property is being repaired or replaced;
provided, however, that the AOC will not jointly pursue any Property Damage Claims
which are exclusively related to the County Exclusive-Use Area. The Parties
acknowledge that property insurance is “no fault” insurance; therefore, if any Property
Loss occurs, there are no exclusions or conditions to payment, irrespective of the acts or
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omissions of either Party, other than those exclusions specifically set forth in the Property
Insurance Policies or as a matter of Law.
6.1.3 Compliance with Property Insurance Policies. While Owner is
providing and maintaining the Property Insurance Policies under this JOA, Owner will
provide the Non-Owning Party with verification that the Property Insurance Policies are
in full force and effect and, at the request of the Non-Owning Party, with copies of the
Property Insurance Policies, as the Property Insurance Policies may be issued or modified
from time to time. The State Parties and the County Parties will comply in all material
respects with all requirements for the use of the Real Property that are set forth in the
Property Insurance Policies and that Owner has provided to the Non-Owning Party.
6.1.4 Property Insurance Proceeds; Claims in Excess of Insurance
Limits. Upon the occurrence of any Property Loss, each Party will be entitled to the
applicable proceeds from the Property Insurance Policies, net of any deductibles or self-
insured retentions applicable to the Property Insurance Policies, to the extent the Property
Loss is attributable to its Exclusive-Use Area or its Share of the Common Area, subject to
section 7, below. If one or more Property Damage Claims is fully and finally resolved in
an amount that exceeds the total limits of all of the Property Insurance Policies, or if any
Property Loss is not covered by the Property Insurance Policies through no fault of
Owner, then if both Parties elect to restore or replace the damaged portions of the Real
Property (“Damaged Property”) under section 7 below, each Party will pay the amounts
that exceed the coverage of the Property Insurance Policies to the extent the Property
Loss is attributable to its Exclusive-Use Area or its Share of the Common Area. By way
of example only, if the total amount of the Property Damage Claim is $1,250,000, and if
40 percent is attributed to damage in the Court Exclusive-Use Area, 35 percent is
attributed to damage in the County Exclusive-Use Area, and 25 percent is attributed to
damage in the Common Area, and the amount payable under the Property Insurance
Policies is $1,000,000, then the AOC would be entitled to insurance proceeds in the
amount of $400,000 (for the damage to the Court Exclusive-Use Area), the County would
be entitled to insurance proceeds of $350,000 (for damage to the County Exclusive-Use
Area), and the Parties would share the remaining $250,000 of insurance proceeds in
accordance with their respective Shares. With respect to the uninsured $250,000 portion
of the Property Damage Claim, the AOC would be responsible to pay (subject to section
7, below) $100,000 (40 percent of $250,000) in respect of its Exclusive-Use Area, plus an
amount equal to the AOC Share of the $62,500 (25 percent of $250,000) in respect of the
Common Area, and the County would be responsible to pay (if both Parties elect to
restore or replace the Damaged Property under section 7, below) the balance of the
uninsured loss. The Owner will assign and deliver to the other Party all insurance
proceeds owed to the other Party effective upon its receipt of those proceeds.
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6.1.5 No Waiver of Equity Rights. The provisions of section 6.1.4 of
this JOA will not be deemed or construed to waive, diminish, release, or otherwise affect
the Equity rights of either Party in respect of the Real Property.
6.2 Reporting and Processing Claims.
6.2.1 Incident Reports. Each Party will maintain copies of any Incident
reports that it prepares for a period of five years, and at the request of the non-preparing
Party, the Party preparing an Incident report will provide a complete copy of, or
reasonable access to, any Incident report to the other Party.
6.2.2 Party Responsible for Claims. If either Party receives any demand,
complaint, notice, document, or information alleging the existence or occurrence of any
incident, event, circumstance, or occurrence in, on, or about the Real Property
(“Incident”) that is or could result in any Property Damage Claim or Liability Claim
(each, a “Claim”, and together, “Claims”) or an AOC Claim, or if a Party otherwise
becomes aware that an Incident has occurred, that Party will make best efforts to
promptly notify the other Party of that Incident. Following that notice, the Parties will
work together, diligently and in good faith, to determine which of them bears
responsibility for the loss or injury alleged, and whether either Party is entitled to
indemnification by the other in respect of the Incident under sections 8.1 or 8.2 of this
Agreement. If the Parties are not able to so agree, then they will resolve those matters
under section 11 of this JOA.
6.3 Third-Party Contractor Insurance. Each Party must require each of its
Contractors to (i) obtain and maintain insurance of the type and with coverage amounts
that are usual and customary to the type of business or exposures related to the work
being performed on the Real Property, (ii) name both Parties as additional insureds by
specific endorsement to their general liability policies, (iii) provide a waiver of
subrogation in favor of both Parties with respect to all property insurance policies, and
(iv) provide to the Parties a 30-day notice of cancellation or material change in any
insurance coverage required hereunder. Unless the Parties otherwise agree, all
Contractors must indemnify, defend, and hold harmless the County Parties and the State
Parties from and against all claims, demands, liabilities, damages, attorney fees, costs,
expenses, and losses arising from the performance by the Contractors under their
contracts, and neither Party waives any right of recovery or subrogation against the other
in respect of their contractual arrangements with the Contractors.
6.4 Workers’ Compensation Coverage. Each Party will each maintain its own
workers’ compensation insurance covering its own employees, and neither Party will
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have any liability or responsibility for workers’ compensation insurance coverage for
employees of the other Party.
7. DAMAGE OR DESTRUCTION
7.1 Damage or Destruction Event. If, due to Property Loss, the Real Property
cannot be occupied by one or both Parties, each Party will be solely responsible to
arrange for its own relocation to and occupancy of alternate space. Promptly after a
Property Loss, the Parties will comply with the provisions of section 6, and as promptly
as possible, but in no event later than 180 days after a Property Loss, each Party will
notify the other in writing (“Restoration Election Notice”) whether it wishes to restore
or replace the Damaged Property.
7.2 Both Parties Elect to Restore or Replace. If both Parties elect to restore or
replace the Damaged Property, the Parties will cooperate in good faith to restore or
replace the Damaged Property, with each Party contributing the proceeds it receives as
indemnity for direct physical loss or damage under the Property Insurance Policies and
otherwise paying its portion of the cost to restore or replace the Damaged Property, as set
forth in section 6.1.4, above. If the Parties restore or replace the Damaged Property in a
way that results in a change to the Parties’ Shares or their Equity rights, the Parties will
each pay the costs and expense to restore or replace the Damaged Property according to
their newly-determined Shares or Equity rights.
7.3 Only One Party Elects to Restore or Replace. If, based on the Restoration
Election Notices, only one Party elects to restore or replace the Damaged Property, then
within 30 days after the Parties’ Restoration Election Notices are given, the Parties must
meet and confer in good faith to determine how to proceed with respect to (i) the
Damaged Property; (ii) the proceeds of the Property Insurance Policies, if any, to which
each Party is entitled as indemnity for direct physical loss or damage under section 6.1.4,
above, and (iii) compensation for the Equity rights of either Party in the Real Property, if
applicable. If the Parties cannot agree on those matters, they will proceed as set forth in
section 7.4 of this JOA.
7.4 Neither Party Elects to Restore or Replace. If neither Party elects to restore
or replace the Damaged Property, then the Owner shall compensate the Non-Owning
Party for its Equity rights in the uninhabitable part of the Non-Owning Party’s Exclusive-
Use Area, and the Non-Owning Party will be solely responsible for its own relocation
and occupancy to alternate space. In such event, the Owner shall be entitled to all of the
insurance proceeds applicable to direct physical damage to the Building otherwise
payable to the Non-Owning Party pursuant to section 6.1.4 of this Agreement, to offset
the cost of Owner’s Equity payment to the Non-Owning Party except that such
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entitlement to such insurance proceeds shall not exceed the Equity payment obligation,
and the Non-Owning Party shall continue to be entitled to those insurance proceeds
related to its temporary and permanent relocation costs. If the Non-Owning Party will no
longer occupy the Building due to Property Loss that neither Party elects to restore or
replace, then when the Non-Owning Party has been compensated for its Equity rights
under this section 7.4, the Parties will terminate this JOA by signing a Termination
Agreement and recording it in the County Recorder’s Office, and the Owner shall, if
applicable, be relieved of any responsibility under the Agreement, this JOA or the Act
(including, without limitation, sections 70311 and 70344(c) of the Act) for providing
suitable and necessary facilities for the Non-Owning Party. If the Parties cannot agree on
the value of each Party’s Equity rights in the Building, the Parties will select a mutually-
acceptable Appraiser or a Broker to determine the fair market value of each Party’s
Equity rights in the Building. The selected Appraiser or Broker will deliver to both
Parties its determination of value, and each Party will be responsible for one-half of the
costs of the Appraiser or Broker, as applicable. Any disputes under this section 7.4 will
be resolved under section 11 of this JOA.
8. INDEMNIFICATION
8.1 Indemnification Obligation of State. The State will and does indemnify,
defend, and hold harmless the County Parties, with counsel reasonably acceptable to the
County Parties, from and against all Indemnified Loss arising from (1) all AOC Claims,
and (2) Liability Claims where and to the extent that the Liability Claims result from the
willful misconduct or negligent acts, errors, or omissions of a State Party.
8.2 Indemnification Obligation of County. The County will and does
indemnify, defend, and hold harmless the State Parties, with counsel reasonably
acceptable to the State Parties, from and against all Indemnified Loss arising from
Liability Claims where and to the extent that the Liability Claims result from the willful
misconduct or negligent acts, errors, or omissions of a County Party.
8.3 Indemnified Party’s Participation. The indemnifying Party must manage
and be entirely responsible to handle and resolve all Liability Claims for which it is
responsible under sections 8.1 or 8.2, as applicable. The indemnified Party may elect, but
is not required, to retain its own attorney, at the indemnified Party’s sole expense, to
participate in the litigation, settlement negotiations, or other dispute resolution procedures
for any Liability Claim as to which it is the indemnified Party. If the indemnified Party
elects to retain its own attorney to participate in the litigation, settlement negotiations, or
other dispute resolution procedures for a Liability Claim, the indemnifying Party will
cooperate with the indemnified Party, and the attorney retained by the indemnified Party.
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8.4 Effect of Indemnification Rights. The rights of a Party to be indemnified
under sections 8.1 or 8.2 of this JOA cannot be deemed or construed to limit or diminish
the obligation of the indemnified Party to perform its duties at Law or under any
agreement between the County Parties and the State Parties. The indemnifying Party will
have no right of set off in respect of payment of any Indemnified Loss to the indemnified
Party under this JOA.
9. CONDEMNATION
If either Party receives written notice advising of an actual or intended
condemnation of the Real Property (“Condemnation Notice”), that Party will
immediately deliver a copy of the Condemnation Notice to the other Party. In the event
of an actual condemnation, the Parties will cooperate with each other in good faith to
obtain the maximum award that may be obtained from the condemning authority, and if
the entire Building is condemned, each Party will be entitled to its Share of the
condemnation proceeds; provided that, if only a portion of the Building is condemned,
the Parties shall allocate the award based on their respective pro rata occupancies of the
portion of the Building condemned.
10. DEFAULT NOTICE AND CURE
Upon a Party’s breach or default of any other provision of this JOA, the Parties
will comply with the terms for notice of default and cure period set forth in section 10 of
the Agreement, which terms are incorporated into this JOA as though fully set forth
herein. Notwithstanding anything in this JOA or the Agreement to the contrary, no
default or breach will be deemed to have occurred if either Party is unable to pay any
amounts due and owing under this JOA as a result of said Party’s failure to timely
approve and adopt a budget. Should a Party fail to pay any amounts due and owing under
this JOA as a result of that Party’s failure to timely approve and adopt a budget, that
Party will promptly pay any previously due and unpaid amounts due and owing under
this JOA upon approval and adoption of that Party’s budget.
11. DISPUTE RESOLUTION
In the event of a dispute between the Parties relating to performance of the Parties’
obligations under this JOA, the Parties will comply with the terms for dispute resolution
set forth in section 11 of the Agreement, which terms are incorporated into this JOA as
though fully set forth herein.
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12. NOTICES
Subject to section 4.7 of this JOA, any notice or communication required to be
sent to a Party under this JOA must be sent in accordance with the terms for giving of
notices in section 12 of the Agreement, which terms are incorporated into this JOA as
though fully set forth herein.
13. MISCELLANEOUS
13.1 Waivers. No waiver of any provision of this JOA will be valid unless it is
in writing and signed by both Parties. Waiver by either Party at any time of a breach of
this JOA cannot be deemed a waiver of or consent to a breach of the same or any other
provision of this JOA. If a Party’s action requires the consent or approval of the other
Party, that consent or approval on one occasion cannot be deemed a consent to or
approval of that action on any later occasion or a consent or approval of any other action.
13.2 Force Majeure. Neither Party is responsible for performance under this JOA
to the extent performance is prevented, hindered, or delayed by fire, flood, earthquake,
elements of nature, acts of God, acts of war (declared and undeclared), riots, rebellions,
revolutions, or terrorism, whether foreseeable or unforeseeable.
13.3 Assignment. Neither Party may assign this JOA in whole or in part,
whether by operation of law or otherwise, to any other entity, agency, or person without
the prior written consent of the other Party. Even if that consent is given, any assignment
made in contravention of any Law will be void and of no effect.
13.4 Binding Effect. This JOA binds the Parties and their permitted successors
and assigns.
13.5 Third Parties Benefited. The Court is an intended beneficiary of all
provisions of this JOA for the benefit of the AOC. Nothing in the Agreement, this JOA,
or any of the other Closing Documents, express or implied, is intended to confer on any
other person, other than the State Parties and County Parties, any rights under or by reason
of this Agreement.
13.6 Construction. The headings used in this JOA are for convenience only and
will not affect the meaning or interpretation of this JOA. The words “hereof,” “herein,”
and “hereunder,” and other words of similar import, refer to this JOA as a whole and not
to any subdivision of this JOA. Both Parties have reviewed and negotiated this JOA, and
this JOA will not be construed against a Party as the principal draftsperson. The words
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“include” and “including” when used are not exclusive and mean “include, but are not
limited to” and “including but not limited to,” respectively.
13.7 Integration; Amendments. This JOA and the Agreement contain the entire
agreement of the Parties with respect to the subject matter of this JOA, and supersede all
previous communications, representations, understandings, and agreements, whether
verbal, written, express, or implied, between the Parties. This JOA may be amended only
by written agreement signed by both of the Parties.
13.8 Incorporation By Reference. The Attachments to this JOA are incorporated
into and made a part of this JOA for all purposes, and all references to this JOA in any of
the Attachments mean and include the entirety of this JOA.
13.9 Severability. If any term of this JOA is inconsistent with applicable Law,
then on the request of either Party, the Parties will promptly meet and confer to determine
how to amend the inconsistent term in a manner consistent with Law, but all parts of this
JOA not affected by the inconsistency will remain in full force and effect.
13.10 Further Assurances. The Parties agree to cooperate reasonably and in good
faith with one another to (i) implement the terms and provisions set forth in this JOA and
the Act, and (ii) consummate the transactions contemplated herein, and will execute any
further agreements and perform any additional acts that may be reasonably necessary to
carry out the purposes and intent of this JOA and the Act.
13.11 Conflicts Between JOA and Agreement; Capitalized Terms. The
Agreement supersedes and controls to the extent of any conflicts between the terms of the
Agreement and this JOA. Capitalized terms used in this JOA and not otherwise defined
herein will have the meanings given to them in the Agreement.
13.12 Signature Authority. The individuals signing this JOA on behalf of the
AOC and the County certify that they are authorized to do so.
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The Parties agree to the terms of this Agreement.
APPROVED AS TO FORM:
Administrative Office of the Courts,
Office of the General Counsel
By: __________________________
Name: Dianne Barry
Title: Attorney
Date: _________________________
JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE
COURTS
By: ________________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
STATE OF CALIFORNIA )
COUNTY OF CONTRA COSTA )
On _________________, 200__, before me,
__________________________, Deputy Clerk of the Board of
Supervisors, Contra Costa County, State of California, and for
said County and state, personally appeared
______________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
By: ____________________________ (Seal)
Deputy Clerk
COUNTY OF CONTRA COSTA, a political
subdivision of the State of California
By: _______________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________
APPROVED AS TO FORM:
SILVANO B. MARCHESI
County Counsel
County of Contra Costa
By: ___________________________
Deputy County Counsel
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LIST OF ATTACHMENTS
Attachment “1” Legal Description of Campus
Attachment “2” Site Plan of Real Property and Floor Plan
Attachment “3” Form of Equity Rights Purchase Agreement
Attachment “4” Form of Termination of Joint Occupancy Agreement
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ATTACHMENT “1” TO JOA
LEGAL DESCRIPTION OF CAMPUS
[TO BE PROVIDED]
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ATTACHMENT “2” TO JOA
SITE PLAN OF REAL PROPERTY
[TO BE PROVIDED]
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ATTACHMENT “3” TO JOA
FORM OF EQUITY RIGHTS PURCHASE AGREEMENT
1. PURPOSE
The Judicial Council of California (“Council”), Administrative Office of
the Courts (together, the “AOC”), and the County of Contra Costa (“County”) enter into
this Agreement under section 70344(b) of the Trial Court Facilities Act of 2002,
Government Code section 70301, et seq., as it exists as of the Effective Date (the “Act”),
to set forth the terms and conditions for the purchase of Equity Rights in the Real
Property.
2. DEFINITIONS
“Agreement” means this Equity Rights Purchase Agreement.
“Building” means the “Building” as defined in the Transfer Agreement.
“Common Area” means the “Common Area” as defined in the Transfer
Agreement.
“Compensation” means the amount paid by the Majority Occupant to the
Minority Occupant in exchange for the Minority Occupant’s Equity Rights.
“Court Facility” means the trial court facility commonly known as the
Richmond Bay District Courthouse, as further defined in the Transfer Agreement.
“Effective Date” means the date this Agreement is signed by the last Party
to sign.
“Equity” means “equity” as used in section 70344(b) of the Act.
“Equity Purchase” means the Majority Occupant’s purchase of the
Minority Occupant’s Equity Rights in the Real Property under section 70344(b) of the
Act and this Agreement.
“Equity Rights” means (1) all rights, interests, and entitlement of the
Minority Occupant in and to the [_____] square feet of space in the Building that is
occupied exclusively by the Minority Occupant on the Effective Date, and which space
comprises approximately [___] percent of the total Building square footage, as depicted
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on Exhibit “A” attached to this Agreement, and (2) all non-exclusive rights, interests,
and entitlement of the Minority Occupant in and to the Common Area.
“Grant Deed” means the “Grant Deed” as defined in the Transfer
Agreement.
“JOA” means the Joint Occupancy Agreement between the Judicial
Council of California, Administrative Office of the Courts and the County of Contra
Costa, dated as of [__________], 2009.
“Majority Occupant” means the Party that occupies 80 percent or more of
the total Building square footage on the Effective Date of this Agreement. For purposes
of this Agreement, the [AOC/County] is the Majority Occupant.
“Minority Occupant” means the Party that occupies 20 percent or less of
the total Building square footage on the Effective Date of this Agreement. For purposes
of this Agreement, the [AOC/County] is the Minority Occupant.
“Party” means the AOC or the County, and “Parties” means the AOC and
the County.
“Real Property” means the “Real Property” as defined in the Transfer
Agreement.
“Transfer Agreement” means the Transfer Agreement For the Transfer of
Responsibility For Court Facility, and all attached Exhibits, dated as of [__________,]
2009, which sets forth the terms for the transfer of responsibility for the Court Facility
under the Act.
3. PURCHASE OF EQUITY RIGHTS
3.1 Exercise of Vacate Right. The Majority Occupant has elected to exercise
its right to require the Minority Occupant to vacate the Building under section 70344(b)
of the Act and has given the Minority Occupant reasonable notice of its election to so
exercise.
3.2 Compensation. The Compensation for the Equity Purchase is
$[______________], which amount will be paid by the Majority Occupant to the
Minority Occupant [in a lump sum on the later of (1) the date that the Minority Occupant
actually vacates the Building, or (2) the date on which the Termination Agreement is
recorded in the official records of the County.] OR [describe]. The Parties acknowledge
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that the Compensation is equal to the fair market value of the Minority Occupant’s Equity
Rights in the Real Property.
3.3 Relocation Costs. The Majority Occupant will be responsible for the
moving expenses of the Minority Occupant at the fair market rate. The Majority
Occupant will, at its sole expense, make arrangements for the furniture, equipment,
supplies, and other personal property of the Minority Occupant that are located in the
Building to be packed and moved, by a professional business relocation service, from the
Real Property to the alternate location specified by the Minority Occupant or, at the sole
option of the Minority Occupant, the Minority Occupant may engage its own moving and
relocation company to perform its move and the Majority Occupant will reimburse the
Minority Occupant’s actual relocation costs in an amount not to exceed the amount that
would have been charged by the Majority Occupant’s professional relocation company
for the same relocation services. In no event will the Majority Occupant be responsible
for any costs incurred by the Minority Occupant in searching for, identifying, leasing,
purchasing, improving, furnishing, or otherwise preparing for occupancy the Minority
Occupant’s alternate premises, including without limitation, any brokerage commissions,
finders’ fees, closing costs, tenant improvement costs, or consultant’s fees. The terms of
this section 3.3 will survive the consummation of the Equity Purchase until
_____________, 200__ [Note: This should be the same date as the deadline for
vacation of the Real Property by the Minority Occupant set forth in section 4.3
below].
3.4 Rights and Responsibilities. Upon completion of the Equity Purchase, the
rights and responsibilities of the Parties in respect of the Equity Rights purchased by the
Majority Occupant will be as set forth in the Transfer Agreement.
3.5 Representations and Warranties. Each Party makes the following
representations and warranties to the other to the best of its knowledge after reasonable
investigation and inquiry:
3.5.1 The person who has signed this Agreement on behalf of the Party
has been duly authorized and empowered, by a resolution or other formal action of the
Party, to sign this Agreement on its behalf, and no other or further approval or consent is
required to authorize or empower the Party to enter into and perform this Agreement; and
3.5.2 This Agreement and the Equity Purchase contemplated in this
Agreement do not and will not violate any agreement, obligation, or court order by which
the Party is bound or to which it or its assets is subject.
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4. CLOSING THE EQUITY PURCHASE TRANSACTION
4.1 Delivery of Signed Agreement. The last Party to sign this Agreement must
deliver to the AOC, within three business days after signing, [____] fully-signed originals
of this Agreement.
4.2 When the Equity Purchase Takes Effect. The Equity Purchase will be
effective and deemed consummated immediately and automatically upon the Majority
Occupant’s payment of the Compensation to the Minority Occupant, whether or not the
Minority Occupant has then vacated the Real Property.
4.3 When Minority Occupant Must Vacate the Real Property. The Minority
Occupant agrees that it will entirely vacate its occupancy of the Real Property by no later
than [_________, 200__]. If the Minority Occupant fails to complete its vacation of the
Real Property by [____________, 200__] through no fault of the Majority Occupant, the
Minority Occupant will be deemed to have fully and forever waived and relinquished its
rights, under section 70344(b) of the Act and section 3.3 of this Agreement, to require the
Majority Occupant to pay the Minority Occupant’s relocation costs.
4.4 Delivery of Possession. When the Equity Purchase has been completed and
the Minority Occupant has vacated the Real Property, the Minority Occupant will deliver
to the Majority Occupant possession and control of the Equity Rights, and the Minority
Occupant will thereafter have no right, claim, or interest in the Equity Rights whatsoever.
5. MISCELLANEOUS
5.1 Dispute Resolution. Any dispute between the Parties concerning this
Agreement must be resolved under the terms for “Dispute Resolution” in section 11 of
the Transfer Agreement.
5.2 Amendments. This Agreement may be amended only by written agreement
signed by both of the Parties.
5.3 Waivers. No waiver of any provision of this Agreement will be valid
unless it is in writing and signed by both Parties. Waiver by either Party at any time of
any breach of this Agreement cannot be deemed a waiver of or consent to a breach of the
same or any other provision of this Agreement. If a Party’s action requires the consent or
approval of the other Party, that consent or approval on any one occasion cannot be
deemed a consent to or approval of that action on any later occasion or a consent or
approval of any other action.
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5.4 Binding Effect. This Agreement binds the Parties and their permitted
successors and assigns. The State Parties are intended beneficiaries of all provisions of
this Agreement for the benefit of the AOC. The County Parties are intended beneficiaries
of all provisions of this Agreement for the benefit of the County. Otherwise, this
Agreement is for the benefit only of the Parties, and no third parties are intended to be
benefited by this Agreement.
5.5 Governing Law. This Agreement, and the Parties’ performance under this
Agreement, will be exclusively governed by the laws of the State without regard to its
conflict of law provisions.
5.6 Construction. The headings used in this Agreement are for convenience
only and will not affect the meaning or interpretation of this Agreement. This Agreement
will not be construed against any Party as the principal draftsperson. The words
“include” and “including” when used are not exclusive and mean “include, but are not
limited to” and “including but not limited to,” respectively.
5.7 Integration. This Agreement, the Transfer Agreement and the JOA, contain
the entire agreement of the Parties with respect to the Equity Purchase, and supersede all
previous and concurrent communications, understandings, and agreements, whether
verbal, written, express, or implied, between the Parties concerning the subject matter of
this Agreement.
5.8 Capitalized Terms. Any capitalized terms that are not otherwise defined in
this Agreement will have the meanings given to them in the Transfer Agreement and the
JOA.
5.9 Severability. If any term of this Agreement is inconsistent with applicable
law, then upon the request of either Party, the Parties will promptly meet and confer to
determine how to amend the inconsistent term in a manner consistent with Law, but all
parts of this Agreement not affected by the inconsistency will remain in full force and
effect.
5.10 Further Assurances. The County and the AOC agree to cooperate
reasonably and in good faith with one another to (1) implement the terms of this
Agreement, and (2) consummate the Equity Purchase, and will execute any further
agreements and perform any additional acts that are reasonably necessary to carry out the
terms of this Agreement.
5.11 Notices. Any notices or other communications to be sent by one Party to
the other under this Agreement will be sent and deemed received in accordance with the
“Notices” provision of section 12 of the Transfer Agreement.
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The Parties agree to the terms of this Agreement.
APPROVED AS TO FORM:
Administrative Office of the Courts,
Office of the General Counsel
By: __________________________
Name: Dianne Barry
Title: Attorney
Date: _________________________
JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE
COURTS
By: ________________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
STATE OF CALIFORNIA )
COUNTY OF CONTRA COSTA )
On _________________, 200__, before me,
__________________________, Deputy Clerk of the Board of
Supervisors, Contra Costa County, State of California, and for
said County and state, personally appeared
______________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
By: ____________________________ (Seal)
Deputy Clerk
COUNTY OF CONTRA COSTA, a political
subdivision of the State of California
By: _______________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________
APPROVED AS TO FORM:
SILVANO B. MARCHESI
County Counsel
County of Contra Costa
By: ___________________________
Deputy County Counsel
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EXHIBIT “A”
Copy of Floor Plan
[See attached.]
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ATTACHMENT “4” TO JOA
FORM OF TERMINATION OF JOINT OCCUPANCY AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
STATE OF CALIFORNIA
c/o Judicial Council of California
Administrative Office of the Courts
Office of the General Counsel
455 Golden Gate Avenue
San Francisco, CA 94102
Attn: Melvin Kennedy, Managing Attorney
Office of the General Counsel, Real Estate Unit
________________________________________________________________________
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.
TERMINATION OF JOINT OCCUPANCY AGREEMENT
This Termination of Joint Occupancy Agreement (“Termination”) is made and
entered into this [______day of ____________, 20__], by and between the Judicial
Council of California, Administrative Office of the Courts (“AOC”), and the COUNTY
OF CONTRA COSTA (“County”). The AOC and the County each constitute a “Party”
and collectively constitute the “Parties” to this Termination.
RECITALS
A. On [_________, 20__], the County and the AOC entered into a Transfer
Agreement For The Transfer of Responsibility For Court Facility (the “Transfer
Agreement”). Under the Transfer Agreement, the County transferred to the AOC
responsibility for funding and operation of the Richmond Bay District Courthouse, which
is located in a building on certain real property in the City of Richmond, County of
Contra Costa, State of California and having a street address of 100 37th Avenue,
Richmond (as more completely described in the Transfer Agreement, the “Real
Property”). The legal description of the Real Property is attached to this Termination as
Exhibit “A”.
B. Under the Transfer Agreement, the AOC and the County also entered into a
Joint Occupancy Agreement dated [________, 20___] (“JOA”), setting forth the parties’
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respective rights and obligations with respect to the shared occupancy and use of the Real
Property.
C. To memorialize the parties’ respective rights and duties under the JOA, the
parties signed a Memorandum of Joint Occupancy Agreement (“Memorandum”), which
was recorded in the Official Records of the County as Instrument No.
[_______________].
D. The JOA has now been terminated by the County and the AOC, and is no
longer of any force or effect, except for the terms of the JOA that expressly survive the
termination of the JOA.
E. The County and the AOC now wish to record this Termination to
memorialize the termination of the JOA and the Memorandum.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, County and AOC do hereby agree as
follows:
1. The JOA and the Memorandum are terminated, and are no longer of any
force or effect, except for those terms of the JOA that the parties have expressly agreed in
writing will survive the termination of the JOA.
2. This Termination is to be recorded in the Official Records of the County
with respect to the Real Property, whereupon the Memorandum will automatically be
removed as an encumbrance on the title to the Real Property.
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IN WITNESS WHEREOF, this Termination has been executed as of the day and
year first above written.
APPROVED AS TO FORM:
Administrative Office of the Courts,
Office of the General Counsel
By: __________________________
Name: Dianne Barry
Title: Attorney
Date: _________________________
JUDICIAL COUNCIL OF
CALIFORNIA, ADMINISTRATIVE
OFFICE OF THE COURTS
By: ________________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
STATE OF CALIFORNIA )
COUNTY OF CONTRA COSTA )
On _________________, 200__, before me,
__________________________, Deputy Clerk of the Board
of Supervisors, Contra Costa County, State of California,
and for said County and state, personally appeared
______________________, who 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.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
By: ____________________________ (Seal)
Deputy Clerk
COUNTY OF CONTRA COSTA, a
political subdivision of the State of
California
By: _______________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________
APPROVED AS TO FORM:
SILVANO B. MARCHESI
County Counsel
County of Contra Costa
By: ___________________________
Deputy County Counsel
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STATE OF CALIFORNIA )
) SS.
COUNTY OF _____________________)
On this ______ day of _________________ in the year 20___, 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
STATE OF CALIFORNIA )
) SS.
COUNTY OF _____________________)
On this ______ day of _________________ in the year 20___, 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
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EXHIBIT “A”
Legal Description of the Real Property
[See attached.]
Facility: #07-F2
Building Name: Health Building Archival Storage
Building Address: 100 38th St. Richmond, CA
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1201680.2
TRANSFER AGREEMENT
BETWEEN THE JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE COURTS,
AND THE COUNTY OF CONTRA COSTA COUNTY
FOR THE TRANSFER OF RESPONSIBILITY FOR COURT FACILITY
TABLE OF CONTENTS
Page
Court Facility: #07-F2
1201680.2
1. PURPOSE ............................................................................................................... 1
2. BACKGROUND ..................................................................................................... 1
3. DEFINITIONS .................................................................................................... 112
4. TRANSFER OF RESPONSIBILITY ................................................................... 2
5. COUNTY FACILITIES PAYMENT ................................................................... 5
6. DISPUTE RESOLUTION ................................................................................. 556
7. NOTICES ................................................................................................................ 8
8. MISCELLANEOUS ......................................................................................... 9910
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1201680.2
TRANSFER AGREEMENT
1. PURPOSE
The Judicial Council of California (“Council”), Administrative Office of the
Courts (together, the “AOC”), and the County of Contra Costa (“County”), set forth the
terms and conditions for the transfer of responsibility for funding and operation of the
trial court facility commonly known as Health Building Archival Storage (“Existing
Court Facility”).
2. BACKGROUND
The Lockyer-Isenberg Trial Court Funding Act of 1997, AB 233 (Escutia and
Pringle) provides for transfer of the primary obligation for funding of court operations
from the counties to the State. The restructuring of funding for trial court operations
accomplished by the Lockyer-Isenberg Trial Court Funding Act of 1997 ended a dual
system of county and state funding of, and created a more stable and consistent funding
source for, trial court operations. The Trial Court Facilities Act of 2002 was adopted to
provide for the transfer of responsibility for funding and operation of trial court facilities
from the counties to the AOC.
As of the Effective Date of this Agreement, the Existing Court Facility occupies a
very small proportion (7.53%) of the building which is located at 100 38th Street,
Richmond, CA (“Building”). The County uses the Building as a health facility and
provides twenty-four hour county services to the Building appropriate to a health facility
(“County Services”). Locating the Existing Court Facility in the Building benefits both
the County and the Court as it allows the County to efficiently provide County Services
and the Court to provide court services relating to document storage for the Richmond
Bay Courthouse. In light of the fact that: the Existing Court Facility is a small portion of
the Building and located in a special use building (i.e. health facility), the County and the
AOC agree that responsibility for the Existing Court Facility will be delegated back to the
County under the terms set forth herein and pursuant to the provisions of section
70393(c) of the Act. The County and the AOC further agree that proceeding as set forth
herein will ensure the continued orderly provision of services to the Existing Court
Facility in a manner that is beneficial to the AOC, the Court and the County. Attached
hereto as Exhibit “A” is a floor plan of the Building depicting the location of the Existing
Court Facility in the Building.
3. DEFINITIONS
“Act” means the Trial Court Facilities Act of 2002 (Government Code sections
70301-70404) as of the Effective Date.
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“Agreement” means this Transfer Agreement, together with the attached Exhibits.
Closing Date” means the date on which this Agreement is signed by the last of the
Parties to sign the Agreement.
“County Parties” means the County, its elected and appointed officers, agents
and employees.
“County Facilities Payment” means the payments the County must make to the
State’s Controller under Article 5 of the Act.
“Court” means the Superior Court of California, County of Contra Costa.
“Effective Date” means the date this Agreement is signed by the last Party to sign.
“Existing Court Facility” means the 5,460 square feet of the floor space in the
Building that are exclusively occupied and used by the Court as archival and record
storage for Richmond Bay Courthouse, as depicted on Exhibit “A” to this Agreement.
“Equity” means the term “equity” as used and referred to in the Act.
“Operations” means management, maintenance, and repair.
“State” means the State of California.
“State Parties” means and refers to the Judicial Council of California, the AOC,
the Court, and their respective officers, agents, and employees.
4. TRANSFER OF RESPONSIBILITY
4.1 Transfer of Responsibility. On the Closing Date, the transfer of
responsibility for the Existing Court Facility from the County to the AOC will occur
pursuant to the terms of this Agreement.
4.2 General Responsibilities After Transfer. Upon the completion of the
transfer of responsibility, the Parties will have the general rights, duties, and liabilities set
forth in the Act in respect of the Existing Court Facility, except as expressly delegated by
the Parties in this Agreement, or any other written agreement authorized by the Parties’
respective governing bodies and executed in accordance with such authorization.
4.3 Specific Responsibilities After Transfer. The Parties will have the
following specific rights, duties, and liabilities upon and after the transfer of
responsibility:
4.3.1 Delegation. Upon the Closing Date, the AOC delegates all of its
rights and duties with respect to Operations of the Existing Court Facility to the County,
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and the County accepts the delegation of the AOC’s rights and duties with respect to
Operations of the Existing Court Facility (the “Delegation”). While the Delegation is in
effect, the County will provide and maintain the same basic level of services, including
routine maintenance and repair, to the Court-occupied space in the Existing Court
Facility as the County generally provides to other County-occupied buildings. The AOC
and the County agree that all liabilities, duties and responsibilities for the Existing Court
Facility (including, without limitation, liability for any seismic-related damage and
injury) are and remain the sole and exclusive responsibility of the County as long as (a)
the Delegation is in effect, and (b) the Court occupies the Existing Court Facility in
accordance with this Agreement. Notwithstanding the foregoing, the County will not
have any liability, duty or responsibility in connection with any demand, complaint,
cause of action or claim (1) alleging bodily injury or death and asserted by or on behalf of
any employees of any State Parties acting within the scope of their employment as such
or (2) arising from the willful misconduct or negligent acts, errors, or omissions of any
State Party. While the Delegation is in effect, the County will not be obligated to pay a
County Facilities Payment.
4.3.2 Withdrawal of Delegation. Upon one year’s written notice, the
AOC, in its sole discretion, may withdraw and terminate the Delegation at any time and
for any reason, during which time the County and the AOC agree to negotiate in good
faith and enter into a joint occupancy agreement for the Building that includes the
following provisions:
(a) a methodology for the AOC and the County to share costs for
Operations of the Building based upon the Court and the County’s pro rata occupancy
and use of the Building;
(b) a designation that the County will be managing party for the
Building and therefore responsible for Operations of the common area of the Building,
including without limitation the building systems of the Building;
(c) designation of the following three areas within the Building:
(i) County Exclusive-Use Area; (ii) Court Exclusive-Use Area; and (iii) Common Area;
(d) an acknowledgment that the County will commence payment
of the County Facilities Payment in accordance with section 5 of this Agreement; and
(e) any other provision which is typically included in a joint
occupancy agreement between the AOC and the County, or in the event that the AOC and
the County do not have any existing joint occupancy agreements, then the parties shall
look to joint occupancy agreements between the AOC and other counties for guidance.
4.3.3 Relocation of Existing Court Facility by County. In the event that
the County relocates the County Services to another location within the County, and the
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Court gives its written consent to relocating the Existing Court Facility to a new location
in conjunction with the relocation of the County Services (“Relocation Facility”), the
County may move the Existing Court Facility to the Relocation Facility, and any
reference in this Agreement to Existing Court Facility shall then apply to the Relocation
Facility. The Court shall have complete discretion to not give its written consent to
moving to a Relocation Facility. The Relocation Facility must be comparable in size and
functionality to the Existing Court Facility. In addition to the cost of the Relocation
Facility, the County will be responsible for all reasonable costs associated with relocating
the Court, including, without limitation, moving costs or costs that the Court incurs as a
result of the relocation (e.g. printing new stationery or notices). If the County desires to
relocate the Court into a Relocation Facility, the County shall give the Court not less than
one hundred eighty (180) days notice of the proposed relocation (“Relocation Notice”).
The Relocation Notice shall include the location and a brief description of the proposed
Relocation Facility, the date upon which the County desires the relocation to commence
and the County’s estimated time and cost for the relocation. At the Court’s request, the
County shall promptly provide the Court access to the proposed Relocation Facility for
the Court’s inspection. Within sixty (60) days of receipt of the Relocation Notice, the
Court shall provide written notice to the County of any concerns the Court has with the
comparability of the proposed Relocation Facility. Any Court concerns stated in the
Court’s timely, written notice to the County about the comparability of the proposed
Relocation Facility that cannot be readily resolved by the parties shall be addressed under
section 6 of this Agreement.
4.3.4 Vacation of Existing Court Facility by Court. The AOC, after
consultation with the Court, may vacate the Existing Court Facility by giving the County
180 days’ written notice. Upon the Court’s vacation of the Existing Court Facility in
accordance with this section, the County shall commence making County Facility
Payments pursuant to section 5 of this Agreement.
4.3.5 County’s Rights Under Section 70344(b) of the Act. After the
Effective Date, if County elects to exercise its rights under section 70344(b) of the Act,
the Court must remove all of its property from, and surrender to the County, full
possession of the Building within 90 days after the Parties agree on the amount of
compensation to be paid by the County to the AOC for (i) its Equity in the Existing Court
Facility, and (ii) the Court’s relocation costs. The AOC must repair, at its sole cost, any
damage caused to any part of the Real Property in removing the Court’s property from
the Existing Court Facility. If the Parties cannot agree on the value of the AOC’s Equity
in the Existing Court Facility, the Parties will select a mutually-acceptable MAI appraiser
(“Appraiser”) to determine the fair market value of the AOC’s Equity in the Existing
Court Facility. If the Parties cannot agree on the fair market value of the Court’s
relocation costs, the Parties will select a mutually-acceptable relocation expert with at
least five years of experience in determining relocation costs in California (“Relocation
Expert”), to determine the fair market value of the Court’s relocation costs. Any
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Appraiser or Relocation Expert will deliver to both Parties its determination of value or
costs, respectively, and each Party will be responsible for one-half of the costs of the
Appraiser and Relocation Expert. Any disputes under this section 4.3.5 will be resolved
under section 6 of this Agreement.
4.3.6 Relief from Section 70311 Obligations. Effective upon the Closing
Date and pursuant to section 70312 of the Act, the AOC confirms and agrees that the
County will be and is relieved of any responsibility under section 70311 of the Act for
providing to the Court necessary and suitable court facilities for the number of judicial
and Court support positions currently located in the Building.
5. COUNTY FACILITIES PAYMENT
5.1 The amount of the County Facilities Payment for the Existing Court
Facility approved by the State Department of Finance is $22,700. The County will make
its first installment payment of the County Facilities Payment within five (5) days of
either:
(a) the effective date of the AOC’s withdrawal of the Delegation in accordance
with section 4.3.2 of this Agreement; or
(b) the Court’s vacation of either the Existing Court Facility or the Relocation
Facility in accordance with section 4.3.4 and 4.3.5 of this Agreement.
The County’s first payment will be prorated on the basis of a 365-day year if the
first payment is due on any date other than July 1, October 1, January 1, or April 1.
Thereafter, the County will make payments of the County Facilities Payment to the State
Controller each and every fiscal quarter, as provided in the Act.
5.2 Additional County Payment Obligation. In addition to the County
Facilities Payment set forth in section 5.1 above, if the Effective Date occurs on or prior
to March March 31, 2009, then pursuant to section 70321(b) of the Act, the County shall
be obligated to pay a continuing amount from the date of Transfer calculated by
multiplying the County Facilities Payment by the percentage change in the National
Implicit Price Deflator for State and Local Government Purchases, as published by the
DOF, for the fiscal year in which this Agreement is executed as compared to the prior
fiscal year.
6. DISPUTE RESOLUTION
6.1. Unassisted Negotiation; Mediation. In the event of a dispute between the
Parties arising under or relating to performance of the Parties’ obligations under this
Agreement, or any aspect of the transactions contemplated in this Agreement, the County
Administrator and an Assistant Director of the AOC’s Office of Court Construction &
Management, or their respective designees, will meet to discuss a resolution to the
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dispute. Any designee appointed must have the authority to negotiate for, and to
effectively recommend settlement to, the Party that he or she represents. If the Parties are
not able to resolve their dispute within 30 calendar days through that unassisted
negotiation, they will attempt to resolve the dispute by mediation under this section 6.1.
If the dispute concerns a matter within the jurisdiction of the Court Facilities Dispute
Resolution Committee (“CFDRC”), established by section 70303 of the Act, the Parties
must first mediate the dispute before a Party can commence a dispute resolution
proceeding before the CFDRC.
6.1.1. Initiation of Mediation. Either or both of the Parties may request the
initiation of mediation for any dispute described in section 6.1, whether or not the dispute
falls within the CFDRC’s jurisdiction, by delivering a written request for mediation
(“Mediation Request”) to the other Party. The Mediation Request must (1) include a
brief summary of the issues in dispute, (2) state the dates on which the requesting Party is
unavailable to attend the mediation within the immediately-succeeding 90 calendar days
after the delivery to the other Party of the Mediation Request, and (3) list at least three
neutral mediators who are acceptable to the requesting Party for mediation of the dispute.
Within ten calendar days after the requesting Party’s delivery of a Mediation Request to
the other Party, the responding Party must deliver to the requesting Party a response to
the Mediation Request (“Mediation Response”), which must: (a) include a brief
summary of the issues in dispute (which may or may not be the same as the summary
provided by the requesting Party); (b) state the dates on which the responding Party is
unavailable to attend the mediation within the 80 calendar days immediately following
the requesting Party’s receipt of the Mediation Response; and (c) state whether any of the
neutral mediators listed in the Mediation Request are acceptable to the responding Party
and, if none are, then the Mediation Response must list at least three neutral mediators
who are acceptable to the responding Party.
6.1.2. Selection of Mediator. Within 10 calendar days after delivery to the
requesting Party of the Mediation Response, the Parties will attempt in good faith to
agree upon a neutral mediator to preside over the mediation. If the Parties are not able to
agree upon a neutral mediator within 10 calendar days after delivery to the requesting
Party of the Mediation Response, the Parties must apply to a mutually agreeable
mediation service for selection of a neutral mediator to mediate the dispute. The Parties’
application to a mediation service must be filed in accordance with the selected mediation
service’s applicable rules and procedures then in effect, and must include copies of the
Mediation Request and Mediation Response. The mediator must be a person with a
reasonable degree of experience and expertise in handling disputes involving
governmental entities. The mediator must have no current or prior involvement with
either Party in the negotiations between the Parties related to the Act or any of the court
facility transfers provided for in the Act, and shall discharge his or her duties impartially
and as a neutral, independent participant to the mediation process to assist the Parties to
achieve a settlement and compromise of their dispute, taking into consideration the
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relevant facts, applicable Law, and the pertinent provisions of any relevant agreement
between the Parties. The selection of a mediator by the mediation service will be final
and binding on the Parties, and the Parties shall be equally responsible for the payment of
all fees and costs charged by the mediation service.
6.1.3. Cost of Mediation. The Parties will share equally in payment of all
costs of the mediation, including the compensation of the mediator. The Parties and the
mediator must reach a written agreement regarding the mediator’s compensation and
expenses before the mediation is commenced.
6.1.4. Date, Time, and Place of Mediation. In consultation with the
Parties, the mediator will fix the date, time, and place of each mediation session. The
mediation may be held at any convenient location agreeable to the Parties and the
mediator. Mediation must be completed within 90 calendar days after the requesting
Party’s delivery to the responding Party of the Mediation Request.
6.1.5. Attendance at Mediation. Both Parties must attend the mediation
session(s). The Parties may satisfy this attendance requirement by sending a
representative familiar with the facts of the dispute, who has the authority to negotiate on
behalf of, and to effectively recommend settlement to, the Party he or she represents.
Any Party to the mediation may have the assistance of an attorney or other representative
of its choice, at its own cost. Other persons may attend the mediation sessions only with
the consent of the Parties and the mediator.
6.1.6. Statements Before Mediation. The mediator will determine the
manner in which the issues in dispute will be framed and addressed. The Parties should
expect that the mediator will request a premediation statement outlining facts, issues, and
positions of each Party (“Premediation Statement”) in advance of the mediation
session. At the discretion of the mediator, the Premediation Statements or other
information may be mutually exchanged by the Parties.
6.1.7. Confidentiality. The mediation will be confidential in all respects,
and the provisions of California Evidence Code sections 1152 and 1154 will apply to all
written and verbal evidence presented in the mediation and to settlement communications
made in the Premediation Statement, during the mediation itself, or otherwise in
furtherance of or related to the mediation or the settlement of the dispute. The
Premediation Statements shall be confidential, for settlement purposes only, and will not
be admissible for any purpose other than for the mediation. Without limiting the
foregoing, the provisions of California Evidence Code sections 1115 through 1128,
inclusive, will apply in connection with any mediation under this Agreement.
6.2. Resolution of Claims Remaining After Mediation. After compliance with
the terms of section 6.1 of this Agreement, the Parties shall proceed as follows in respect
of any dispute that remains unresolved: (i) if the unresolved dispute involves any of the
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matters described in sections 70303(c)(1) through (5) of the Act, the Parties shall refer
the dispute to the CFDRC for hearing and recommendation to, and decision by, the
Director of Finance, pursuant to the Act and the regulations and rules adopted by the
CFDRC; or (ii) if the unresolved dispute does not involve any of the matters described in
sections 70303(c)(1) through (5) of the Act, then the Parties may proceed to resolve the
dispute in any manner permitted at Law or in equity.
7. NOTICES
Any notice or communication required to be sent to a Party pursuant to this
Agreement must be sent in writing by personal delivery (including overnight courier
service), certified U.S. mail, postage pre-paid and with return receipt requested, to the
Parties at their addresses or fax numbers indicated below. Routine exchange of
information may be conducted via telephone, facsimile, and/or electronic means,
including e-mail.
If to the AOC: Administrative Office of the Courts
Attention: Portfolio Administration Analyst for the
BANCRO Regional Office
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Voice: 415-865-4053
Fax: 415-865-8885
With a copy to: Administrative Office of the Courts
Office of Court Construction and Management
Attention: Manager, Real Estate
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Voice: 415-865-4048
Fax: 415-865-8885
In addition, all notices by the County relating to any alleged breach or default by
the AOC of this Agreement must also be sent to:
Administrative Office of the Courts
Attention: Business Services, Senior Manager
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Voice: 415-865-4090
Fax: 415-865-4326
E-mail: grant.walker@jud.ca.gov
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If to the County: County of Contra Costa
County Administrator
Attention: Capital Facilities Manager
651 Pine Street, 11th Floor
Martinez, CA 94553
Voice: (925) 313-7163
Fax: _______________
With a copy to: Office of the County Counsel
County of Contra Costa
651 Pine Street, 9th Floor
Martinez, CA 94553
(925) 335-1800
A Party may change its address for notice under this Agreement by giving written
notice to the other Party in the manner provided in this section 7. Any notice or
communication sent under this section 7 will be deemed to have been duly given as
follows: (1) if by personal delivery, on the date actually received by the addressee or its
representative at the address provided above, or (2) if sent by certified U.S. mail, return
receipt requested, on the first business day that is at least three calendar days after the
date deposited in the U.S. Mail.
8. MISCELLANEOUS
8.1. Waivers. No waiver of any provision of this Agreement will be valid
unless it is in writing and signed by both the AOC and the County. Waiver by either
Party at any time of any breach of this Agreement cannot be deemed a waiver of or
consent to a breach of the same or any other provision of this Agreement. If a Party’s
action requires the consent or approval of the other Party, that consent or approval on any
one occasion cannot be deemed a consent to or approval of that action on any later
occasion or a consent or approval of any other action.
8.2. Force Majeure. Neither Party will be responsible for performance under this
Agreement to the extent performance is prevented, hindered, or delayed by fire, flood,
earthquake, elements of nature, acts of God, acts of war (declared and undeclared), riots,
rebellions, revolutions, or terrorism, whether foreseeable or unforeseeable.
8.3. Assignment. Neither Party may assign this Agreement in whole or in part,
whether by operation of law or otherwise, to any other entity, agency, or person without
the prior written consent of the other Party. Even if that consent is given, any assignment
made in contravention of any Law will be void and of no effect.
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8.4. Binding Effect. This Agreement binds the Parties and their permitted
successors and assigns.
8.5. Third Parties Benefited. The State Parties and the County Parties are
intended beneficiaries of all provisions of this Agreement. Nothing in this Agreement,
express or implied, is intended to confer on any other person, other than the State Parties
and the County Parties, any rights under or by reason of this Agreement.
8.6. Governing Law. This Agreement, and the Parties’ performance under this
Agreement, will be exclusively governed by the laws of the State of California.
8.7. Construction. The headings used in this Agreement are for convenience
only and will not affect the meaning or interpretation of this Agreement. The words
“hereof”, “herein”, and “hereunder”, and other words of similar import, refer to this
Agreement as a whole and not to any subdivision of this Agreement. This Agreement
will not be construed against either Party as the principal draftsperson. The words
“include” and “including” when used are not exclusive and mean “include, but are not
limited to” and “including but not limited to,” respectively. The capitalized terms used in
this Agreement have the meanings ascribed to them in this Agreement.
8.8. Integration; Amendments. This Agreement contains the entire agreement of
the Parties with respect to the transfer of responsibility for the Existing Court Facility,
and supersede all previous communications, representations, understandings, and
agreements, whether verbal, written, express, or implied, between the Parties. This
Agreement may be amended only by written agreement signed by both of the Parties.
8.9. Incorporation By Reference. The factual recitals and Exhibits contained in
or attached to this Agreement are all incorporated into and made a part of this Agreement
for all purposes, and all references to this Agreement in any of the recitals or Exhibits
will be deemed to include the entirety of this Agreement.
8.10. Severability. If a term of this Agreement is inconsistent with applicable
Law, then on the request of either Party, the Parties will promptly meet and confer to
determine how to amend the inconsistent term in a manner consistent with Law, but all
parts of this Agreement not affected by the inconsistency will remain in full force and
effect.
8.11. Further Assurances. The Parties agree to cooperate reasonably and in good
faith with one another to (1) implement the terms and provisions set forth in this
Agreement and the Act, and (2) consummate the transactions contemplated herein, and
will execute any further agreements and perform any additional acts that may be
reasonably necessary to carry out the purposes and intent of this Agreement and the Act.
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8.12. Recordation of Memorandum/Quitclaim Deed. Within thirty (30) days of
written request by the AOC, County will execute, acknowledge, and deliver to AOC a
memorandum of this Agreement which the AOC may record against the land upon which
the Building is located. Within thirty (30) days of written request by the County
following the relocation of the Existing Court Facility in accordance with section 4.3.3 of
this Agreement or the vacation of the Existing Court Facility in accordance with section
4.3.4 or 4.3.5, the AOC will execute, acknowledge, and deliver to the County a quitclaim
deed relinquishing all right, title and interest in the Existing Court Facility which the
County may record to clear title to the land upon which the Building is located.
[SIGNATURE PAGE TO IMMEDIATLEY FOLLOW]
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1201680.2
The Parties agree to the terms of this Agreement.
APPROVED AS TO FORM
Administrative Office of the Courts,
Office of the General Counsel
By:_____________________________
Name: Dianne Barry
Title: Attorney
Date: ___________________________
JUDICIAL COUNCIL OF CALIFORNIA,
ADMINISTRATIVE OFFICE OF THE
COURTS
By: ________________________________
Name: Grant Walker
Title: Senior Manager, Business Services
Dated: _______________________________
THE COUNTY OF CONTRA COSTA, a
political subdivision of California
By: ________________________________
Name: ______________________________
Title:
Date: _______________________________
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EXHIBIT “A”
FLOOR PLAN