HomeMy WebLinkAboutMINUTES - 10122010 - D.2RECOMMENDATION(S):
1. CONSIDER whether to APPROVE the purchase of approximately 2.8 acres of land
located at 13613 and 13577 San Pablo Avenue, San Pablo, California (the “Property”),
from the Redevelopment Agency of the City of San Pablo (“Redevelopment Agency”), at a
price of $3,861,444, and on what terms, pursuant to a Disposition and Development
Agreement (“DDA”); AUTHORIZE the County Administrator, or designee, to execute the
DDA on behalf of the County, and ACCEPT the Grant Deed from the Redevelopment
Agency for the purchase of the Property.
2. APPROVE payment in the amount of $3,861,444 for the purchase of the Property, and
AUTHORIZE the Auditor-Controller to issue a check in the amount of $425,000 payable to
the Redevelopment Agency of the City of San Pablo, 13831 San Pablo Avenue, San Pablo,
California, 94806 and a check in the amount of $3,436,444 payable to Chicago Title
Company, 1646 N. California Blvd., Suite 106, Walnut Creek, California 94596, their
Escrow Nos. 10-38608549 and 10-38608553, Attn: Laurie Balding-Smith, (925) 288-8300
(“Title Company”) to be forwarded to the Real Property Division of Public Works for
delivery.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/12/2010 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: PATRICK GODLEY
(925) 957-5400
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: October 12, 2010
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: JULIE ENEA, Deputy
cc: Asst City Mgr, San Pablo, Conservation & Development Dept, Health Services Dept, Health Services Dept - Finance, County Administrator, County
Counsel 1, County Counsel 2, Auditor-Controller
D.3
To:Board of Supervisors
From:William Walker, M.D., Health Services Director
Date:October 12, 2010
Contra
Costa
County
Subject:NOTICE OF INTENTION TO PURCHASE THE WEST COUNTY HEALTH CENTER
3. FIND the Mitigated Negative Declaration prepared
RECOMMENDATION(S): (CONT'D)
for the project to be adequate for purposes of compliance with the California
Environmental Quality Act (CEQA), and ADOPT the Mitigated Negative Declaration
and the Mitigation Monitoring and Reporting Program.
4. DIRECT the Department of Conservation and Development to post the Notice of
Determination with the County Clerk, and DIRECT the Health Services Department to
pay the filing fee to the County Clerk for posting the Notice of Determination.
FISCAL IMPACT:
Full funding for the property acquisition and the construction of the West County Health
Center will be made from a combination of federal grant revenues and bond financing.
BACKGROUND:
I. CEQA DETERMINATION
As determined by the Initial Study, the mitigation measures identified in the Initial Study
will reduce the project impacts on the environment to a less than significant level.
Therefore, staff recommends that the Board find that the Mitigated Negative Declaration
prepared for the project is adequate for the purposes of CEQA, and adopt the Mitigated
Negative Declaration and the Mitigated Monitoring and Reporting Program.
II. HISTORY OF THE PROJECT
The Richmond Health Center is in need of total replacement. Its functional design reflects
an outmoded approach to the delivery of healthcare. The Health Services Department, in
conjunction with the General Services Department, has reviewed a variety of options
over the last ten years to address these deficiencies. Options reviewed included (1)
remodeling on the existing site, (2) rebuilding on the existing site, and (3) rebuilding
elsewhere in Richmond (multiple locations were evaluated). All of these options proved
to be either too costly or politically not acceptable.
On August 6, 2009, on short notice and under considerable pressure of time, the Health
Services Department submitted a proposal to the federal Health Resources and Services
Administration (HRSA) for the maximum funding available, $12 million, under the
Recovery Act Facilities Investment Program grant opportunity. On December 9, 2009,
the County learned that it had been awarded the only grant of this size in California, and
one of only six of this size nationwide. The grant requires that the facility be constructed
and occupied within a two-year time period.
With first-hand knowledge of the County's site issues, and the desire to have the health
center resources and jobs located in the City of San Pablo, the Redevelopment Agency of
the City of San Pablo has offered to sell to the County 2.8 acres to build the West County
Health Center in the City’s Redevelopment area.
On August 10, 2010, the Board of Supervisors approved a Notice of Intention to
Purchase Real Property (“NOI”) that set October 5, 2010, at 10:00 a.m., in the Board’s
chambers, as the date and time for the Board to meet to consummate the purchase of the
Property described in Exhibit “A” to the NOI. The NOI was published in the Contra
Costa Times pursuant to Government Code section 6063. The NOI indicated that the
purchase price for the property would be $3,600,000. However, subsequent to the
publication of the NOI, the negotiated purchase price has increased to $3,861,444 as a
result of a slight increase in the size of the parcel being acquired. Due to the lack of a
quorum on October 5, 2010, the Board’s action on this item was continued to October
12, 2010.
III. DISCUSSION OF AGREEMENT
The Redevelopment Agency requires that the County acquire the Property through a
Disposition and Development Agreement (“DDA”). Under the DDA, the County will pay
the sum of $3,861,444 to the Redevelopment Agency for the approximately 2.8-acre site
needed for the construction of the health center, parking garage, and associated
improvements. The Redevelopment Agency will also grant the County a license to use
portions of the Redevelopment Agency’s adjacent property during construction for
access, materials and equipment storage, construction staging, and parking, and for the
construction of various improvements, including an access road, a pedestrian walkway, a
service road and utility area, signage, landscaping and street lighting. Upon completion of
the improvements, the Redevelopment Agency will convey easements to the County for
the continued use and maintenance of the improvements installed on the Redevelopment
Agency’s property.
On October 5, 2010, the San Pablo Redevelopment Agency approved the attached
version of a DDA. This is not a fully negotiated agreement. Certain issues contained in
the attached DDA have been agreed to by County staff, subject to Board approval.
Agreement has not been reached on other issues. Below is a discussion of the matters on
which conceptual agreement has been reached, and a discussion of issues that have yet to
be resolved. The parties continue to negotiate the terms of the agreement and will provide
the Board with an update on the status of negotiations at the October 12, 2010 Board
meeting.
A. ISSUES ON WHICH HEALTH SERVICES STAFF HAS REACHED
CONCEPTUAL AGREEMENT, SUBJECT TO BOARD APPROVAL
1. Purchase and Sale and Escrow Terms (Article 2): The agreed purchase price is
$3,861,444 (including a deposit in the amount of $425,000 which is refundable only in
the event of Agency’s default), for the Property containing approximately 2.838 acres.
The agreement also contains the terms for the close of escrow. The closing date remains
unresolved, as discussed below.
2. Development and Use of the Property (Sections 1.2, 2.14, 4.1, and 4.4): Both parties
understand that the County is purchasing the Property for the construction and operation
of a health center, and that the use of the Property for health center purposes is in
conformance with the City’s general plan and consistent with the Redevelopment Plans
for the area in which the Property is located. The agreement states that the County will
maintain the Property in a manner that will not constitute a public nuisance. The
agreement states that the County will negotiate in good faith with Agency or any future
owners of Agency’s adjacent site to make parking spaces in the health center garage
available for use at a reasonable cost.
3. Improvements on Agency’s Adjacent Property (Section 3.1.4): Under the terms of the
agreement, the County will construct certain improvements on Agency’s adjacent
property that are necessary for the project, including an access road, a pedestrian
walkway, a service road and utility area, signage, landscaping and street lighting.
Following construction of these improvements, Agency will grant the County
non-exclusive easements for the continued use of the improvements, and the County will
have the sole obligation to maintain the improvements. In addition, if Agency grants
others the right to use the improvements, Agency will determine a proportionate
cost-sharing arrangement among the County and other users of the improvements.
4. Enforcement of DDA; Attorneys’ Fees (Article 5): The agreement states that each
party will have all legal and equitable rights and remedies available for enforcement of
the provisions of the DDA, including the right to require specific performance of the
terms of the DDA, and the prevailing party will be entitled to recover attorneys’ fees and
costs.
5. Condition of the Property and Indemnity Regarding Hazardous Materials (Section
2.12): The agreement states that the County will accept the Property in an “as is”
condition and release all claims against the Agency or City arising as a result of any
contamination on the Property unless released on the Property by the City or Agency.
The agreement requires the County to indemnify and defend the Agency and City, and all
successors and assigns, against any damages, whenever arising, resulting from hazardous
materials on the Property, even if caused by a third party or the discharge happens after
the County no longer owns the Property.
6. Defense of Litigation (Section 7.3): Under the terms of the agreement, the County will
indemnify and defend the Agency and City against all claims arising from the Agency’s
and City’s approval and exercise of the DDA, including compliance with CEQA and
compliance with the Dutra Act (which relates to residential density requirements under
the housing element of a City’s general plan). This indemnity obligation will require the
County to defend and indemnify the Agency and City even if the only claims in the
litigation relate to the failure of either the Agency or the City to comply with
requirements that are applicable only to the Agency or the City.
B. ISSUES THAT ARE UNDER DISCUSSION BUT NOT YET RESOLVED.
1. Date for Close of Escrow (Section 2.5): The County’s financial analysts have advised
staff that escrow on the Property transaction needs to close by October 19, 2010, at the
latest (and sooner is better), in order to avoid an impact on the pricing of the bonds. The
agreement states that escrow will close by November 2, 2010. County staff has advised
Agency and City staff of the need for an earlier closing date, but has not yet received a
response from Agency or City staff.
2. Control over Project Design (Sections 3.1.2, 3.1.3, 3.1.4, and 3.1.6): The County
presented conceptual drawings of the project to the City’s Planning Commission on
September 14, 2010. The final construction drawings have not yet been prepared. As
approved by the Redevelopment Agency, the DDA does not allow the County to make
any changes in location, layout, elevation, design, square footage, parking, or exterior
finishing materials from what was depicted in the conceptual drawings unless Agency
agrees to the changes. As the DDA is currently written, the County will need to obtain
Agency consent even if the changes are necessitated by unforeseen conditions, code
requirements, or factors affecting budget, schedule, life safety, public safety, or protection
of property. The agreement contains no timeframe within which Agency must accept or
reject the changes, and no standard for withholding consent to a change. General
Services staff has expressed concern that this provision, as written, could result in costly
delays or cause the County to be unable to meet funding deadlines.
3. Agency’s Right to Repurchase the Property/Limitations Required for Bond Financing
(Sections 3.2 and 5.7): Under the DDA, Agency will have a right to repurchase the
Property if (i) the County has not commenced construction of the project within 3 years
following the close of escrow or fails to diligently proceed with the construction; or (ii)
after completion of construction, the Board determines to dispose of the Property or
discontinue operation of use of the Property as a health center. In the first case, the
Agency’s price to repurchase the Property will be the lesser of (a) the fair market value of
the Property or (b) the price paid by the County for the Property, plus all costs incurred
by the County for design and construction of the health center project. Under the second
scenario, Agency will pay the appraised fair market value of the Property at the time of
the offer.
In either case, under the Agency's proposed DDA, if the bonds are still outstanding the
County must take all appropriate actions to remove the bonded indebtedness as an
encumbrance (i.e., defease the bonds). If the County is prohibited from reconveying the
Property to Agency, the County must build a public plaza and landscaping on the
Property and pay the Agency the sum of $2,000,000 in liquidated damages. The County
will also be required to maintain the public plaza until such time as the County can either
complete the project under the terms of the DDA or reconvey the Property to Agency.
County’s bond counsel, disclosure counsel, and financial analysts have reviewed the
DDA. They agree that the terms described above will prevent the County from being able
to proceed with the bond financing as planned. County’s bond counsel and financial
advisers have provided alternate language, which (other than a further limitation relating
to future third party use of the health center garage) has been provided to Agency and
City staff. Staff has been told that Agency’s Executive Director has authority to revise the
Agency version of the DDA only to the extent required by bond counsel. The attached
version of the DDA does not include the changes required by bond counsel. The Agency
is currently requiring explanations from bond counsel to justify each change.
4. Grant Deed: The Grant Deed attached to Agency’s version of the DDA contains
numerous conditions and restrictions, some of which are not even consistent with
Agency’s DDA. Bond counsel has stated, and County staff has advised Agency staff, that
the County needs to acquire clean title to the Property by a standard form of grant deed
that does not contain any conditions, covenants or restrictions (other than an obligation
not to discriminate). County staff provided the form of Grant Deed that is acceptable to
County staff and bond counsel. Staff has been told that the Agency’s Executive Director
has authority to revise exhibits to the DDA, including the Grant Deed, if required by
bond counsel, but to date Agency has not replaced its form of Grant Deed with the form
that County staff provided.
CONSEQUENCE OF NEGATIVE ACTION:
The County will not have the necessary land rights to allow for the construction of the
West County Health Center and parking for the visitors and employees that will use the
facility.
CHILDREN'S IMPACT STATEMENT:
CLERK'S ADDENDUM
Speakers: Rollie Katz, Public Employees' Union, Local One expressed the
organization's support for this project. APPROVED the purchase of approximately 2.8
acres of land located at 13613 and 13577 San Pablo Avenue, San Pablo, California
(the “Property”);AUTHORIZED the County Administrator, or designee, to execute the
Disposition and Devlopment Agreement (DDA) on behalf of the County, and ACCEPT
the Grant Deed from the Redevelopment Agency for the purchase of the Property;
APPROVED payment in the amount of $3,861,444 for the purchase of the Property;
AUTHORIZED the Auditor-Controller to issue a check in the amount of $425,000
payable to the Redevelopment Agency of the City of San Pablo, and a check in the
amount of $3,436,444 payable to Chicago Title Company, to be forwarded to the Real
Property Division of Public Works for delivery; FOUND the Mitigated Negative
Declaration prepared for the project to be adequate for purposes of compliance with
the California Environmental Quality Act (CEQA) and ADOPTED the Mitigated
Negative Declaration and the Mitigation Monitoring and Reporting
Program; DIRECTED the Department of Conservation and Development to post the
Notice of Determination with the County Clerk, and DIRECTED the Health Services
Department to pay the filing fee to the County Clerk for posting the Notice of
Determination.
ATTACHMENTS
West Co Health Ctr Disposition and Development Agreement
West Co Health Ctr Grant Deed
West Co Health Ctr Initial Study
West Co Health Ctr Mitigation Monitoring and Reporting Program
West Co Health Ctr CEQA Notice of Determination
SPB/WCHC DDA 9/21/10
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN PABLO
and
CONTRA COSTA COUNTY
Tenth Township Redevelopment Project
and
Legacy Redevelopment Project
SPB/WCHC DDA i 9/21/10
TABLE OF CONTENTS
Page
ARTICLE 1. SUBJECT OF AGREEMENT ........................................................................................ 1
1.1 Purpose of this Agreement ........................................................................................................ 1
1.2 The Redevelopment Plans ........................................................................................................ 1
1.3 The Project Areas................................................................................................................ 1112
1.4 The Site ..................................................................................................................................... 2
1.5 Parties to this Agreement .......................................................................................................... 2
1.5.1 Agency ............................................................................................................................... 2
1.5.2 County ................................................................................................................................ 2
1.6 Deposit ...................................................................................................................................... 2
ARTICLE 2. DISPOSITION OF THE SITE ....................................................................................... 3
2.1 Sale and Purchase ..................................................................................................................... 3
2.2 Escrow ...................................................................................................................................... 3
2.3 Conditions Precedent to Close of Escrow ................................................................................. 5
2.4 Representations and Warranties .......................................................................................... 7778
2.5 Conveyance of Title and Delivery of Possession ............................................................. 99910
2.6 Form of Deed .................................................................................................................... 99910
2.7 Condition of Title.............................................................................................................. 99910
2.8 Time for and Place of Delivery of Deed ........................................................................... 99910
2.9 Payment of the Purchase Price and Recordation of Deed ............................................. 1010910
2.10 Title Insurance ...................................................................................................................... 10
2.11 Taxes and Assessments ............................................................................................. 10101011
2.12 Condition of the Site ................................................................................................. 10101011
2.13 Preliminary Work by County .................................................................................... 12121213
ARTICLE 3. DEVELOPMENT OF THE SITE ..................................................................... 13131314
SPB/WCHC DDA ii 9/21/10
3.1 Development of the Site by County ............................................................................ 13131314
3.1.1 Scope of Development ......................................................................................... 13131314
3.1.2 Project Design ...................................................................................................... 13131314
3.1.4 Development and Use of Adjacent Agency Property .......................................... 14141415
3.1.5 Cost of Construction ............................................................................................ 16161617
3.1.6 Construction Schedule ..................................................................................................... 17
3.1.8 Governmental Agency Permits ............................................................................ 18171718
3.1.9 Rights of Access .................................................................................................. 18181819
3.1.10 Local, State and Federal Laws ............................................................................. 18181819
3.1.12 Antidiscrimination During Construction ............................................................. 19181819
3.2 Encumbrances and Liens ............................................................................................ 19181820
3.3 Prohibition Against Transfer of Site, the Buildings or Structures Thereon and Assignment of
Agreement ............................................................................................................ 19191920
3.4 Security Financing; Rights of Holders ........................................................................ 20191920
3.4.1 No Encumbrances Except Mortgages, Deeds of Trust, Sales and Leases-Back or
Other Financing for Development .................................................................. 20191920
3.4.2 Holder Not Obligated to Construct Improvements .............................................. 20202021
3.4.3 Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders;
Right to Cure ................................................................................................... 20202021
3.4.4 Failure of Holder to Complete Improvements ..................................................... 21202021
3.4.5 Right of Agency to Cure Mortgage, Deed of Trust or Other Security Interest
Default ............................................................................................................. 22212122
3.5 Right of Agency to Satisfy Other Liens on the Site After Title Passes ...................... 22212122
3.6 Certificate of Completion ........................................................................................... 22212122
ARTICLE 4. USE OF THE SITE .......................................................................................... 23222223
4.1 Uses ............................................................................................................................. 23222223
4.2 Obligation to Refrain From Discrimination ................................................................ 23232324
4.3 Form of Nondiscrimination and Nonsegregation Clauses .......................................... 24232324
SPB/WCHC DDA iii 9/21/10
4.5 Effect and Duration of Covenants .............................................................................. 25242425
ARTICLE 5. DEFAULTS, REMEDIES AND TERMINATION .......................................... 25242425
5.1 Defaults -- General ...................................................................................................... 25242425
5.2 Legal Actions .............................................................................................................. 25252526
5.2.1 Institution of Legal Actions ................................................................................. 25252526
5.2.2 Applicable Law .................................................................................................... 26252526
5.2.3 Acceptance of Service of Process ........................................................................ 26252526
5.2.4 Attorneys’ Fees and Costs ................................................................................... 26252526
5.3 Rights and Remedies are Cumulative ......................................................................... 26252527
5.4 Damages ..................................................................................................................... 26262627
5.5 Specific Performance .................................................................................................. 26262627
5.6 Rights of Termination Prior to Conveyance of the Site to County ............................. 27262627
5.6.1 Termination by County ........................................................................................ 27262627
5.6.2 Termination by Agency ....................................................................................... 27262628
5.7 Option to Repurchase, Reenter and Repossess ........................................................... 28272728
ARTICLE 6. GENERAL PROVISIONS ................................................................................... 313029
6.1 Notices, Demands and Communications Between the Parties ....................................... 313029
6.2 Conflicts of Interest ........................................................................................................ 333231
6.3 Nonliability of Officials and Employees ........................................................................ 333231
6.4 Enforced Delay: Extension of Times of Performance ................................................... 333231
6.5 Severabilty ...................................................................................................................... 333231
6.6 Successors and Assigns; No Third Party Beneficiaries ................................................. 333231
6.7 Effective Date of Agreement; Term .............................................................................. 343332
ARTICLE 7. SPECIAL PROVISIONS ...................................................................................... 343332
7.1 Amendment of Redevelopment Plans ............................................................................. 343332
7.2 Amendments to this Agreement ..................................................................................... 343332
SPB/WCHC DDA iv 9/21/10
ARTICLE 8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS ............................ 353433
ARTICLE 9. TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ......................... 353433
AttachmentsExhibits
Exhibit A Legal Description of the Site
Exhibit B Aerial Depiction of the Site
Exhibit C Form of Grant Deed
Exhibit D License Areas
Exhibit E Non-Exclusive Easement Areas
Exhibit FE Area 1 and Area 2
Exhibit G Form of Right of First Offer
SPB/WCHC DDA 1 9/21/10
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement") is entered
into as of the ______ day of October, 2010, by and between the REDEVELOPMENT AGENCY OF
THE CITY OF SAN PABLO, a public body, corporate and politic (the "Agency"), and CONTRA
COSTA COUNTY, a political subdivision of the State of California (the "County"). Agency and
County agree as follows:
ARTICLE 1. SUBJECT OF AGREEMENT
1.1 Purpose of this Agreement
The purpose of this Agreement is to implement the goals and objectives of the
Redevelopment Plans (the "Redevelopment Plans") for the Tenth Township Redevelopment Project
and the Legacy Redevelopment Project (the "Projects") by providing for the disposition and
development of certain real property (the "Site") included within the boundaries of the Projects.
Pursuant to this Agreement, County will construct on the Site an approximately fifty-
three thousand (53,000) square foot building to be used as the West County Health Center, a three-
story parking garage with approximately 320 parking spaces, and will construct related infrastructure
and landscaping on the Site and adjacent to the Site on Agency property (the “WCHC Project”), as
more particularly described in Article 3 of this Agreement.
The development of the Site pursuant to this Agreement and the fulfillment generally
of this Agreement are in the vital and best interests of the City of San Pablo, California (the "City"),
and the health, safety and welfare of its residents, and in accord with the public purposes and
provisions of applicable federal, state and local laws and requirements.
1.2 The Redevelopment Plans
The term “Redevelopment Plans” means (i) the Amended Redevelopment Plan for
the Tenth Township Redevelopment Project, which was approved and adopted on March 3, 1997, by
the City Council of the City of San Pablo, by Ordinance No. 97-001, and subsequently amended by
Ordinance No. 2004-003, adopted on February 17, 2004, and Ordinance No. 2006-012, adopted on
July 10, 2006; Ordinance No. 2006-012 was subsequently corrected by Ordinance No. 2006-015,
adopted on October 3, 2006; and (ii) the Redevelopment Plan for the Legacy Redevelopment Project,
which was approved and adopted on March 3, 1997, by the City Council of the City of San Pablo, by
Ordinance No. 97-002, and subsequently amended by Ordinance No. 2004-004, adopted on February
17, 2004. Until the termination date of the Redevelopment Plan for the Legacy Redevelopment
Project, currently on March 3, 2028 (“Redevelopment Plans Termination Date”),, County shall use
and continue to use the Site only for the construction and operation of a health center, and all uses
incidental thereto. Such use is consistent with the provisions of the Redevelopment Plans for the
Project Areas.
1.3 The Project Areas
The areas included within the boundaries of the Tenth Township and Legacy
Redevelopment Projects (the "Project Areas") are located in the City of San Pablo, California, and
the exact boundaries thereof are specifically described in the Redevelopment Plans.
SPB/WCHC DDA 2 9/21/10
1.4 The Site
The Site is that portion of the Project Areas shown on the Map Aerial Depiction of the Site
(Exhibit B), and described in the Legal Description of the Site (Exhibit BA). The Site is currently
part of two existing parcels, Assessor’s Parcel Nos. 417-180-028 and 417-170-004. The Legal
Description will be attached to the Grant Deed pursuant to which Agency will convey title to the Site
to County. Upon recording of the Grant Deed, the new legal parcel will be created.
1.5 Parties to this Agreement
1.5.1 Agency
Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33000 et seq.; the “CRL”). The office of
Agency is located at 13831 San Pablo Avenue, San Pablo, California 94806. "Agency," as used in
this Agreement, includes the Redevelopment Agency of the City of San Pablo and any assignee of or
successor to its rights, powers and responsibilities.
1.5.2 County
County is a political subdivision of the State of California. The principal
address of County, for purposes of this Agreement, is 651 Pine Street, 11th Floor, Martinez,
California 94553. Wherever the term "County," is used herein, such term shall include Contra Costa
County and any permitted nominee, assignee or successor in interest as provided herein.
Prior to the issuance of a Certificate of Completion”Project Completion Date”
(as defined in Section 3.1.6 below), County shall not assign all or any part of this Agreement without
the prior written approval of Agency, except as necessary to obtain financing to develop the WCHC
Project, as described in Section 3.2 hereof, or as permitted in Section 3.4 hereof.
1.6 Deposit
County shall, within five (5) business days after approval of this Agreement by
County’s Board of Supervisors and the execution of this Agreement by Agency, deliver to Agency a
deposit in the amount of FOUR HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($425,000.00) (the “Deposit”). The Deposit will serve (1) if this Agreement is terminated by Agency
in accordance with Section 5.6.2 prior to conveyance of the Site to County, to compensate the
Agency for the loss of future rent from a tenant currently occupying the Site (the “Lost Rent
Component”) and for consultant costs incurred by the Agency related to the relocation of the tenant
occupying the Site (the “Relocation Cost Component”); or (2) upon the close of escrow for
conveyance of the Site to the County, as a credit applied to the Purchase Price.
If this Agreement is terminated prior to the conveyance of the Site pursuant to
Section 5.6.1 or 5.6.2 hereof, the Deposit shall be disbursed as provided therein.
If this Agreement shall not have been theretofore cancelled or terminated, the Deposit
shall be credited towards the Purchase Price at the close of escrow.
SPB/WCHC DDA 3 9/21/10
ARTICLE 2. DISPOSITION OF THE SITE
2.1 Sale and Purchase
In accordance with and subject to all the terms, covenants and conditions of this
Agreement, Agency agrees to sell, and County agrees to purchase, the Site for the sum of THREE
MILLION EIGHT HUNDRED SIXTY-ONE THOUSAND FOUR HUNDRED FORTY-FOUR
DOLLARS ($3,861,444) (the "Purchase Price"). The Purchase Price includes total compensation for
the Site, the license granted in Section 3.1.4.a., and the easements granted in Section 3.1.4.c..
2.2 Escrow
By this Agreement, County and Agency agree to establish an escrow with Chicago
Title Company, 1646 N. California Blvd., Suite 106, Walnut Creek, California, their Escrow Nos.
10-38608553 for APN 417-170-004 and 10-38608549 for APN 417-180-028 (“Title Company” or
“Escrow Agent”), or any other escrow company approved by Agency and County which shall, upon
approval, be the “Title Company” or “Escrow Agent” for purposes of this Agreement. This
Agreement constitutes the joint escrow instructions of Agency and County, and a duplicate original
of this Agreement shall be delivered to the Escrow Agent upon the opening of escrow. Agency and
County shall provide such additional escrow instructions as shall be necessary and consistent with
this Agreement. The Escrow Agent hereby is empowered to act under this Agreement and to carry
out its duties as Escrow Agent hereunder.
County shall deposit with the Escrow Agent the Purchase Price, less the amount of
the Deposit, for the Site in accordance with the provisions of Section 2.9 of this Agreement.
County shall pay the following fees, charges and costs promptly after the Escrow
Agent has notified County of the amount of such fees, charges and costs:
a. The escrow fee;
a.b. The premium for the title insurance policy or special endorsements to be paid
by County, if any, as set forth in Section 2.10 of this Agreement; and
a.c. All recording fees, closing costs and documentary transfer taxes or other real
estate transaction taxes or fees, if any.
Agency shall timely and properly execute, acknowledge and deliver a grant deed in
the form attached hereto as Exhibit C (the “Grant Deed”), conveying to County title to the Site in
accordance with the requirements of Section 2.7 of this Agreement.
Agency shall pay in escrow to the Escrow Agent the following fees, charges and
costs promptly after the Escrow Agent has notified Agency of the amount of such fees, charges and
costs, but not earlier than ten (10) days prior to the scheduled date for the close of escrow:
a. Costs necessary to place the title to the Site in the condition for conveyance
required by the provisions of this Agreement;
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b. Ad valorem taxes and penalties and costs thereon, if any, and all installments
of any bond or assessment that constitutes a lien upon the Site for any time
prior to conveyance of title;
Upon delivery of the Grant Deed to the Escrow Agent by Agency pursuant to
Section 2.8 of this Agreement and the satisfaction of all of Agency’s and County’s Conditions
Precedent, the Escrow Agent shall record such Grant Deed when title can be vested in County in
accordance with the terms and provisions of this Agreement. Any insurance policies governing the
Site are not to be transferred.
The Escrow Agent is authorized to:
a. Record the Grant Deed, marked for return to County care of Carmen Pina-
Sandoval, Real Property Agent for County (which shall be deemed delivery
to County), together with any other instruments delivered through this
escrow, if necessary or proper, to vest title in County in accordance with the
terms and provisions of this Agreement;
b. Prorate taxes, assessments, rents and other charges as provided by this
Agreement, and pay and charge Agency and County, respectively, for any
fees, charges and costs payable under this Section 2.2 of this Agreement.
Before such payments are made, the Escrow Agent shall notify Agency and
County of the fees, charges and costs necessary to clear title and close the
escrow;
c. Disburse funds and deliver the recorded Grant Deed and other documents to
the parties entitled thereto when the conditions of this escrow have been
fulfilled by Agency and County;
d. Issue the “Title Policy” (as defined below), if requested to do so by County;
and
e. Prepare and deliver to County and Agency one signed copy of the Title
Company’s closing statement showing all receipts and disbursements of the
escrow.
All funds received in this escrow shall be deposited by the Escrow Agent with other
escrow funds of the Escrow Agent in a general escrow account or accounts with any state or national
bank doing business in the State of California. Such funds may be transferred to any other such
general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent.
All adjustments shall be made on the basis of a 30-day month.
If this escrow is not in condition to close before the time for conveyance established
in Section 2.5 of this Agreement, either party who then shall have fully performed the acts to be
performed before the conveyance of title may, in writing, terminate this Agreement in the manner set
forth in Section 5.6.1 or 5.6.2 hereof, as the case may be, and demand the return of its money, papers
or documents. Thereupon all obligations and liabilities of the parties under this Agreement shall
cease and terminate in the manner set forth in Section 5.6.1 or 5.6.2 hereof, as the case may be. If
neither Agency nor County shall have fully performed the acts to be performed before the time for
SPB/WCHC DDA 5 9/21/10
conveyance established in Section 2.5, no termination or demand for return shall be recognized until
ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or
parties at the address of its or their principal place or places of business. If any objections are raised
within the 10-day period, the Escrow Agent is authorized to hold all money, papers and documents
with respect to the Site until instructed in writing by both Agency and County or upon failure thereof
by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as
soon as possible. Nothing in this Section 2.2 shall be construed to impair or affect the rights or
obligations of Agency or County to specific performance.
Any amendment of these escrow instructions shall be in writing and signed by both
Agency and County. At the time of any amendment, the Escrow Agent shall agree to carry out its
duties as Escrow Agent under such amendment.
All communications from the Escrow Agent to Agency or County shall be directed
to the addresses and in the manner established in Section 6.1 of this Agreement for notices, demands
and communications between Agency and County.
The liability of the Escrow Agent under this Agreement is limited to performance of
the obligations imposed upon it under Sections 2.2 to 2.10, both inclusive, of this Agreement.
2.3 Conditions Precedent to Close of Escrow
Close of escrow is conditioned upon the satisfaction of the following terms and
conditions within the times designated below:
a. Agency’s Conditions Precedent to Close of Escrow. Agency’s obligation to
proceed with the close of escrow is subject to the fulfillment, or waiver in writing by Agency, of each
and all of the conditions precedent (1) through (5), inclusive, described below (“Agency’s Conditions
Precedent”) which are solely for the benefit of Agency:
(1) County’s Representations and Warranties. County’s representations
and warranties in this Agreement being correct as of the close of
escrow.
(2) No Default. County is not in default in any of its obligations under
the terms of this Agreement.
(3) Payment of Purchase Price. County has paid the Purchase Price (less
the amount of the Deposit) into Escrow.
(4) Execution of Documents. County has executed any documents
required hereunder and delivered such documents to the Escrow
Agent.
(5) No CEQA Stoppage. If any legal action challenging the WCHC
Project is filed, County has determined to proceed with the WCHC
Project.
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b. County’s Conditions Precedent to Close of Escrow. County’s obligation to
proceed with the close of escrow is subject to the fulfillment, or waiver in writing by County, of each
and all of the conditions precedent (1) through (6), inclusive, described below (“County’s Conditions
Precedent”), which are solely for the benefit of County:
(1) Agency’s Representations and Warranties. Agency’s representations
and warranties in this Agreement being correct as of the close of
escrow.
(2) No Default. Agency is not in default in any of its obligations under
the terms of this Agreement, and has performed all obligations
required to be performed by Agency prior to the close of escrow,
including without limitation the obligations set forth in Section 2.3 c.,
below.
(3) Execution of Documents. Agency has executed the Grant Deed and
any other documents required hereunder and delivered such
documents into Escrow.
(4) Title. The vesting of title to the Site in County by Grant Deed in fee
simple absolute, free and clear of all recorded liens, encumbrances,
assessments, leases and taxes, subject only to the following
“Approved Exceptions” listed in the following Preliminary Title
Reports, each dated August 3, 2010, issued by Chicago Title
Company:
(i) Easements or rights of way of record over the Site, listed as
exceptions 3, 4 and 5 in Preliminary Title Report No. 10-
38608553-LB;
(i)(ii) Covenants, conditions, restrictions and reservations of record
listed as exceptions 6 and 7 in Preliminary Title Report No.
10-38608553-LB;
(i)(iii) Exception 3 listed in Preliminary Title Report No. 10-
38608549-LB; and
(i)(iv) Covenants, conditions, restrictions and reservations of record
listed as exceptions 4 and 5 in Preliminary Title Report No.
10-38608549-LB.
(5) Title Policy. If requested by County, the Title Company has agreed,
upon payment of Title Company’s regularly scheduled premium, to
issue a CLTA title insurance policy for the Site subject only to the
Approved Exceptions, in the full amount of the Purchase Price, upon
close of escrow.
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c. Agency’s Obligations Prior to Close of Escrow. Agency shall perform the
obligations set forth in this Section 2.3 c. by October 31, 2010, or prior to the close of
escrow, whichever comes first.
(1) Relocation of Salvation Army. A tenant identified as the Salvation
Army currently occupies a building located on a portion of Agency’s
property adjacent to the Site with a property address of 13577 San
Pablo Avenue. Agency assumes the full responsibility and cost
(without contribution or reimbursement from County, except that
County may be obligated to reimburse the Agency for relocation
consultant costs as set forth in Section 5.6.2) for relocating the
Salvation Army in accordance with California law and the Uniform
Relocation Act, including but not limited to any and all benefits,
expenses or relocation assistance payments to which the Salvation
Army may be entitled to receive under State or Federal law, as set
forth in California Government Code section 7260 et seq. and 42
U.S.C. section 4601 et seq., arising out of the relocation. Agency
warrants that it had no obligations under federal law regarding
relocation costs for the project site to date. Any further relocation
costs or expenses arising under federal law or funding obligations
specifically due to Agency’s or County’s approval of this project,
shall be County’s responsibility.
(2) Removal of Structures. Agency shall remove all trailers, structures
(other than the building occupied by the Salvation Army), fixtures,
and any above ground utility connections from the Site and from the
portions of Agency’s adjacent property labeled L-1, L-2 and L-3 on
Attachment No. 4Exhibit D. If County determines that Agency has
not removed the items specified in this paragraph, County will give
written notice and allow five (5) days for Agency to comply with its
obligation. If Agency fails to remove the identified items, County
may remove them and Agency will reimburse County the actual cost
incurred by County for the removal, within thirty (30) days after
County’s written demand. County shall be responsible for demolition
and removal of the Salvation Army building.
2.4 Representations and Warranties
a. Agency Representations. Agency represents and warrants to County as
follows as of the date of this Agreement and as of the close of escrow:
(1) Authority. Agency is a public body, corporate and politic, organized
and existing pursuant to the CRL. Agency has full right, power and
lawful authority to grant, sell and convey the Site as provided herein,
and the execution, performance and delivery of this Agreement by
Agency has been fully authorized by all requisite actions on the part
of Agency.
SPB/WCHC DDA 8 9/21/10
(2) No Conflict. To the best of Agency’s knowledge, Agency’s
execution, delivery and performance of this Agreement will not
constitute a default or a breach under any contract, agreement or order
to which Agency is a party or by which it is bound.
(2)(3) Marketable Title. Agency is the owner of the Site, has marketable
and insurable fee simple title to the Site and to the best of its
knowledge can convey title to the Site clear of restrictions, leases
(other than the lease with the Salvation Army), liens and other
encumbrances, subject only to the Approved Exceptions listed in
Section 2.3.b.(4). Commencing with the full execution of this
Agreement by both parties and until the close of escrow, Agency will
not permit any liens, encumbrances or easements to be placed on the
Site other than the Approved Exceptions listed in Section 2.3 b. (4),
nor will Agency enter into any agreement affecting the Site that
would be binding on County after the close of escrow without the
prior written consent of County.
(2)(4) Condition of Site. Agency hereby represents and warrants that, to
Agency’s actual knowledge, during the period of Agency’s ownership
of the Site, there have been no disposals or releases of hazardous
substances or hazardous materials onto the Site. Agency further
represents and warrants that Agency has no actual knowledge of any
disposal, release, or threatened release of hazardous substance or
hazardous waste on, from, or under the Site that may have occurred
prior to Agency taking title to the Site. Agency has disclosed to
County all information, records and studies maintained by Agency in
connection with the Site concerning hazardous substances.
The Purchase Price reflects the fair market value of the Site without
the presence of contamination. If the Site is found to be contaminated
by the presence of hazardous waste which requires mitigation under
Federal or State law, County may elect to recover its clean-up costs
from those who caused or contributed to the contamination, or are
otherwise responsible under State and Federal law with the exception
of the City of San Pablo or Agency, or their officers, agents, and
employees. County explicitly waives its right to recover clean-up
costs from the City or Agency.
(5) Other Matters Affecting Site. To Agency’s knowledge, there are not
presently any actions, suits, or proceedings pending or threatened
against or affecting the Site or the interest of Agency in the Site or its
use that would affect Agency’s ability to consummate the transaction
contemplated by this Agreement. Further, to the best of Agency’s
knowledge, there are not any outstanding and unpaid arbitration
awards or judgments affecting title to any portion of the Site. To the
best of Agency’s knowledge, there are not presently any pending or
threatened condemnation, eminent domain or similar proceedings
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SPB/WCHC DDA 9 9/21/10
affecting the Site. Agency shall promptly notify County of any of
these matters arising in the future.
b. County Representations. County represents and warrants to the Agency as
follows:
(1) Authority. County is a political subdivision of the State of California
and has full right, power and lawful authority to purchase and accept
the conveyance of the Site and undertake all obligations provided
herein, and the execution, performance and delivery of this
Agreement by County has been fully authorized by all requisite
actions on the part of County.
(2) No Conflict. To the best of County’s knowledge, County’s execution,
delivery and performance of this Agreement will not constitute a
default or breach under any contract, agreement or order to which the
County is a party or by which it is bound.
(3) Purpose of Acquiring the Site. County is acquiring the Site for the
purpose of constructing and operating a health center, parking garage
and associated uses, and has the authority to undertake such
construction and operation.
2.5 Conveyance of Title and Delivery of Possession
Provided that County is not in default under this Agreement and all conditions
precedent to such conveyance have occurred, and subject to any mutually agreed upon extensions of
time, conveyance to County of title to the Site shall be completed on or before November 2, 2010.
Agency and County agree to perform all acts necessary for the conveyance of title in sufficient time
for title to be conveyed in accordance with the foregoing provisions.
Possession shall be delivered to County concurrently with the conveyance of title,
except that access for limited purposes will be permitted before conveyance of title as provided in
Section 2.13 of this Agreement.
2.6 Form of Deed
Agency shall convey to County title to the Site in the condition provided in
Section 2.7 of this Agreement by Grant Deed in substantially the form set forth in Exhibit C.
2.7 Condition of Title
Agency shall convey to County fee simple title to the Site, subject only to the
Approved Exceptions.
2.8 Time for and Place of Delivery of Deed
Subject to any mutually agreed upon extensions of time, Agency shall deposit the
Grant Deed for the Site with the Escrow Agent on or before the date established for the conveyance
of the Site in Section 2.5 above.
SPB/WCHC DDA 10 9/21/10
2.9 Payment of the Purchase Price and Recordation of Deed
County shall deposit the Purchase Price for the Site, less the amount of the Deposit,
and other sums required hereunder with the Escrow Agent prior to the date for conveyance thereof,
provided that the Escrow Agent shall have notified County in writing that the Grant Deed, properly
executed and acknowledged by Agency, has been delivered to the Escrow Agent and that title and
possession are in condition to be conveyed in conformity with the provisions of Sections 2.5 and 2.7
of this Agreement. Upon the close of escrow, the Escrow Agent shall file the Grant Deed for
recordation among the land records in the Office of the County Recorder of Contra Costa County,
shall deliver the Purchase Price, less the amount of the Deposit, and other required sums to Agency
and shall deliver to County a title insurance policy, if requested by County, insuring title in
conformity with Section 2.10 of this Agreement.
2.10 Title Insurance
If requested by County, concurrently with recordation of the Grant Deed, Title
Company shall provide and deliver to County a title insurance policy issued by the Title Company
insuring that the title is vested in County in the condition required by Section 2.7 of this Agreement.
The Title Company shall provide Agency with a copy of the title insurance policy and the title
insurance policy shall be in the amount of the Purchase Price of the Site.
The County shall pay for all premiums for title insurance coverage or special
endorsements.
2.11 Taxes and Assessments
Ad valorem taxes and assessments, if any, on the Site, and any penalties and costs
thereon, if any, all installments of any bond or assessment that constitute a lien on the Site, and taxes
upon this Agreement or any rights hereunder, levied, assessed or imposed for any period
commencing prior to conveyance of title shall be cleared and paid by Agency as of the date title shall
vest in County by recordation of the Grant Deed. All ad valorem taxes and assessments, if any,
levied or imposed for any period commencing after closing of the escrow shall be paid by County.
2.12 Condition of the Site
a. "As Is". Agency shall provide County with all information of which it has
actual knowledge concerning the physical condition of the Site, including, without limitation,
information about any substance, material or waste which is defined as “hazardous” under State or
Federal law or determined by State, Federal or local governmental authority to be capable of posing
a risk of injury to health, safety or property (collectively, “Hazardous Materials”). County
acknowledges and agrees that it is acquiring the Site from Agency "as is," in its current physical
condition, with no warranties, express or implied except as provided in this Agreement, as to the
physical condition thereof, the presence or absence of any latent or patent condition thereon or
therein, including without limitation, any Hazardous Materials thereon or therein, and any other
matters affecting the Site. It shall be the sole responsibility of County, at County’s sole expense, to
investigate and determine the physical condition of the Site for the use to which the Site will be put,
including the environmental and soils conditions of the Site. If the physical condition of the Site is
not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole
SPB/WCHC DDA 11 9/21/10
responsibility and obligation of County to take such action as may be necessary to place the physical
condition of the Site in a condition suitable for the development of the Site.
Agency has conducted a Phase I Environmental Report of the Site, which
indicated no contamination on the Site. Agency shall have no other obligation to investigate the
condition of the Site other than the Phase I Environmental Report. Pursuant to previous agreements
with the Agency, consultants of the County have had the right to access the Site to conduct additional
investigations of the Site since the beginning of July 2010.
b. Indemnity. County agrees, from and after the date title to or possession of
the Site is delivered from Agency to County under this Agreement, to defend, indemnify, protect and
hold harmless Agency and its officers, beneficiaries, employees, agents, attorneys, representatives,
legal successors and assigns ("Indemnitees") from, regarding and against any and all liabilities,
obligations, orders, decrees, judgments, liens, demands, actions, Environmental Response Actions
(as defined herein), claims, losses, damages, fines, penalties, expenses, Environmental Response
Costs (as defined herein) or costs of any kind or nature whatsoever, together with fees (including,
without limitation, reasonable attorneys' fees and experts' and consultants' fees), whenever arising,
resulting from or in connection with the actual or claimed generation, storage, handling,
transportation, use, presence, placement, migration and/or release of Hazardous Materials (as defined
herein), at, on, in, beneath or from the Site (sometimes herein collectively referred to as
“Contamination”). County’s defense, indemnification, protection and hold harmless obligations
herein shall include, without limitation, the duty to respond to any governmental inquiry,
investigation, claim or demand regarding the Contamination, at County’s sole cost.
c. Release and Waiver. County hereby releases and waives all rights, causes of
action and claims County has or may have in the future against the Indemnitees arising out of or in
connection with any Hazardous Materials (as defined herein) at, on, in, beneath or from the Site,
unless released on the Site by the City, Agency or their respective contractors, designated agents, or
employees. In furtherance of the intentions set forth herein, County acknowledges that it is familiar
with Section 1542 of the Civil Code of the State of California which provides as follows:
“A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.”
County hereby waives and relinquishes any right or benefit which it has or may have under Section
1542 of the Civil Code of the State of California or any similar provision of the statutory or
nonstatutory law of any other applicable jurisdiction to the full extent that it may lawfully waive all
such rights and benefits pertaining to the subject matter of this Section 2.12.
d. Definitions.
(1) As used in this Agreement, the term "Environmental Response
Actions" means any and all activities, data compilations, preparation of studies or reports, interaction
with environmental regulatory agencies, obligations and undertakings associated with environmental
investigations, removal activities, remediation activities or responses to inquiries and notice letters,
as may be sought, engendered, initiated or required in connection with any local, state or federal
governmental or private party claims, including any claims by County.
SPB/WCHC DDA 12 9/21/10
(2) As used in this Agreement, the term "Environmental Response Costs"
means any and all costs associated with Environmental Response Actions including, without
limitation, any and all fines, penalties and damages.
(3) As used in this Agreement, the term "Hazardous Materials" means
any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any
provision of California law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls;
(5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the
Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to
Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (7) defined as a "hazardous waste"
pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
Section 6903); (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42
U.S.C. Section 9601); or (9) determined by California, federal or local governmental authority to be
capable of posing a risk of injury to health, safety or property.
2.13 Preliminary Work by County
From and after the Effective Date of this Agreement and at all times until this
Agreement is terminated or title vests in County, Agency hereby grants County, its agents,
contractors and employees, the right to enter onto the Site at all reasonable times for the purposes of
performing reasonable tests, engineering studies, surveys, conducting soils and environmental tests,
and investigations of the Site as County deems necessary or desirable in connection with the WCHC
Project. Agency has full right, title and authority to grant County this access to the Site, and no third
party permission or consent is needed in connection therewith. Agency specifically agrees that
County shall have access to and be entitled to inspect all portions of the Site, including without
limitation, any structures located thereon, provided, however, that County shall not interfere with any
tenant on the Site or other real or personal property, or enter upon any other real property, without
first obtaining the written consent of the manager(s) of such other real or personal property.
County shall defend, indemnify and hold Agency, it officers, employees and agents,
harmless for any claims, injury or damages arising out of any County activity pursuant to this
Section. County shall have access to all data and information on the Site available to Agency, but
without warranty or representation by Agency as to the completeness, correctness or validity of such
data and information. Copies of data, surveys and tests obtained or made by County on the Site shall
be filed provided to Agency, if requested by with Agency.
2.14 CEQA Requirements; General Plan Conformance
County has prepared a Mitigated Negative Declaration for the WCHC Project in
compliance with the California Environmental Quality Act (“CEQA”). The costs of implementing
any mitigation measures and the cost of a mitigation monitoring and reporting program, if required
by CEQA, will be borne by County. The City of San Pablo has provided written confirmation that
the proposed construction of the WCHC Project is in conformance with the City’s general plan.
SPB/WCHC DDA 13 9/21/10
ARTICLE 3. DEVELOPMENT OF THE WCHC PROJECT
3.1 Development of the WCHC Project by County
3.1.1 Scope of Development
County will construct the WCHC Project in accordance with the terms of this
Agreement and County’s standard procedures for construction of County projects, provided,
however, that the “Improvements” (as defined in Section 3.1.4 below) to be installed by County on to
the adjacent Agency property shall should be constructed in accordance with the requirements set
forth in Section 3.1.4. During construction, County will monitor the construction on a regular basis.
3.1.2 Project Design
On September 14, 2010, County presented conceptual drawings of the
WCHC Project to the City of San Pablo’s Planning Commission. As mentioned in the staff report to
the Planning Commission, the development of the County’s health center, parking garage and related
improvements on the Site are covered by an intergovernmental immunity and not subject to the
City’s building, zoning or design-review, regulations. As a condition of the Agency’s agreement to
sell the Site to the County, however, the Agency is retaining certain rights under this Agreement to
ensure the development of the Site is designed in a manner acceptable to the Agency and that
construction is carried out in accordance with the design-review approval by the Planning
Commission on September 14, 2010. The parties intend to continue cooperating on the design of the
WCHC Project, but recognize that the portion of the WCHC Project located on the Site falls solely
under County’s jurisdiction for design approvals, zoning, permitting, plan checking, and inspection.
The parties acknowledge and agree that County’s voluntary participation in the September 14, 2010,
hearing and other City proceedings does not constitute a waiver of County’s intergovernmental
immunity, which County reserves; provided, however, that all obligations set forth in this agreement
shall be enforceable by Agency and a court of law without regard to such immunity., except as to
such obligations set forth in this agreement. Agency approval of this Agreement is an approval of
the design review of the WCHC Project as approved by the Planning Commission.
3.1.3 Construction Plans, Drawings and Related Documents
County shall prepare and make available to the Agency final construction
plans, drawings and related documents, including final landscaping plans for the development of the
Site (the “Construction Plans”). County agrees not to make any substantial change in the
Construction Plans from the conceptual drawings presented on September 14, 2010, to the City’s
Planning Commission which would substantially affect the exterior architectural appearance,
including but not limited to changes in location, layout, elevation, design, square footage, parking, or
exterior finishing materials, of the WCHC Project unless agreed to by Agency. Agency shall have the
right of disapproval of the Construction Plans, for the purpose of confirming consistency with the
conceptual drawings presented to and approved by the City’s Planning Commission on September
14, 2010. Agency’s right of disapproval shall only extend to substantial changes made to the
Construction Plans from the conceptual drawings approved by the Planning Commission. For
purposes hereof, “substantial change” shall include, without limitation, the following changes:
a.Changes in the layout, elevation, design or square footage substantially
affecting architectural appearance or functional use and operation.
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SPB/WCHC DDA 14 9/21/10
a.Changes in the use of exterior finishing materials substantially affecting
architectural appearance or functional use and operation.
c. Changes in size or design affecting parking, bulk, building coverage,
building height or number of floors, frontage, signage or accessibility of public spaces,
Agency shall exercise its right to disapprove of Construction Plans with
substantial changes within ten (10) business days. County shall not commence construction of any
improvements following delivery of a disapproval by the Agency. Failure by Agency to disapprove
the Construction Plans within ten (10) business days shall be deemed a waiver of the Agency’s right
to disapprove the Construction Plans. Any disapproval shall state in writing the reasons for
disapproval and the changes which Agency requests be made. Such reasons and such changes must
be consistent with the conceptual plans review and approved by the Planning Commission and any
items previously approved or deemed approved hereunder by the Agency. County, upon receipt of a
disapproval based upon powers reserved by Agency hereunder, shall revise such Construction Plans
and resubmit them to Agency as soon as possible after receipt of the notice of disapproval, provided
that in no case shall Agency be entitled to require changes inconsistent with the conceptual drawings
approved by the Planning Commission and any previously approved items.
3.1.4 Development and Use of Adjacent Agency Property
a. Rights of Access to Adjacent Agency Property During Construction.
The WCHC Project includes the construction and installation of improvements and infrastructure on
Agency property adjacent to the Site, consisting of an access road, a pedestrian walkway, a service
road and utility area, signage, landscaping and street lighting (the “Improvements”). The portion of
the adjacent Agency property to be improved by the County is depicted as L-2 and L-3 on Exhibit D
and designated herein as the “Agency Property to be Improved.” Effective as of the date of close of
escrow for conveyance of the Site to County, Agency hereby grants a license to County, its
contractors and their authorized agents, to enter and bring necessary workmen, tools and equipment
on, over and across all of the license areas labeled L-1, L-2 and L-3 and depicted on Exhibit D, for
the following purposes:
(1) Materials and equipment storage;
(2) Construction staging;
(3) Access;
(4) Testing, abatement and demolition of the building
improvements located at 13577 San Pablo Avenue;
(5) Construction of the Improvements on the Agency Property to
be Improved; and
(6) Parking for construction personnel.
The license for the area labeled L-1 on Exhibit D will remain in effect until
the WCHC Project is complete, as evidenced by County’s adoption of a Resolution of Acceptance
and Notice of Completion. The license for the area labeled L-2 on Exhibit D will remain in effect
until (i) the WCHC Project is complete, as evidenced by County’s adoption of a Resolution of
SPB/WCHC DDA 15 9/21/10
Acceptance and Notice of Completion, and (ii) the easements described in Section 3.1.4.c. below
have been conveyed to County. The license for the area labeled L-3 on Exhibit D may be revoked by
Agency at any time by providing ninety (90) days prior written notice to County. County will repair
any damage it causes to the license area labeled L-1 on Exhibit D, and leave such property in a clean
and orderly condition upon completion of the construction activities associated with the WCHC
Project.
b. Future Use of Adjacent Agency Property. Prior to the approval of
any development plans for the areas identified as Area 1 and Area 2 on Exhibit F, Agency will
provide the development plans to the County for review and comment. County acknowledges that
notwithstanding its review and comment on applicable development plans, Agency reserves full
discretion and authority to approve development of Area 1 and Area 2.
c. Access Easements to Site; Maintenance of Agency Property to be
Improved. Within thirty (30) days after the WCHC Project is complete, as evidenced by County’s
adoption of a Resolution of Acceptance and Notice of Completion, Agency shall grant non-exclusive
easements to the County, in form and substance mutually acceptable to Agency and County, for
County’s use and maintenance of the Improvements on Agency Property to be Improved, in the
general location of the easement areas labeled L-2 and depicted on Exhibit D. Under the easements,
Agency will convey to County the right to enter upon, in, over, under, and across designated
easement areas for the use and maintenance of the Improvements. As a condition to a specific grant
of rights to any party other than County allowing use of the non-exclusive easement areas, Agency
will provide for the reasonable and appropriate sharing of costs of maintenance of the non-exclusive
easement areas with the County. The exact location of the easements will be determined by
agreement of Agency and County upon completion of the Improvements. The easement areas will
include all portions of the Agency Property to be Improved on which the Improvements are located,
as well as a sufficient area adjacent to the Improvements needed for access to and maintenance of the
Improvements. At a minimum, the easement areas will include the following areas labeled L-2 and
depicted on Exhibit D:
(1) An area wide enough to accommodate an access road and all
ancillary improvements associated with the access road,
including but not limited to sidewalk, curb and gutter,
landscaping and street lighting, with a minimum width of 46
feet from San Pablo Avenue to the Site and narrowing to 36
feet where the road is adjacent to the northern boundary of the
Site;
(2) (2) An area wide enough to accommodate a pedestrian walkway
commencing at San Pablo Avenue and continuing to the northern
boundary of the health center building, with a minimum width of
8 feet;
(2)(3) An area large enough to accommodate a monument sign in
the area adjacent to San Pablo Avenue and the access road
described above;
(34) An area wide enough to accommodate a service road/utility
easement, with a minimum width of 20 feet, including an area
Formatted: Bullets and Numbering
SPB/WCHC DDA 16 9/21/10
adjacent to San Pablo Avenue and the western boundary of
the access road for a monument sign; and
(45) All areas containing Improvements consisting of landscaping
and street lighting that are outside the access road easement,
except the area labeled L-3 on Exhibit D.
Agency shall have the right to relocate the non-exclusive easements to be
granted pursuant to this Section 3.1.4.c relating to access to the Site from San Pablo Avenue with
County’s prior written consent, which consent shall not be unreasonably withheld so long as Agency
provides County reasonably similar access to the Site from San Pablo Avenue. Agency shall have
the right to relocate the monument sign with County’s prior written consent, which consent shall not
be unreasonably withheld so long as Agency provides County reasonably similar signage along San
Pablo Avenue, either as a stand-alone sign or part of a larger single sign.
Except as set forth in this Section 3.1.4, County shall have sole responsibility
for maintaining the Improvements installed by the County on the Agency Property to be Improved
during the term of the easements therefor, and neither the Agency nor City shall be responsible for
maintenance of the Improvements during such period of time. County shall maintain the
Improvements in accordance with County’s standard maintenance policies for County property,
including the requirements of the Municipal Regional Stormwater NPDES Permit (No. CAS612008)
issued by the San Francisco Bay Regional Water Quality Control Board.
d. Construction Plans for Improvements. County shall prepare and
provide to Agency for review all construction plans for the Improvements to be installed on the
Agency Property to be Improved. Agency may request changes to the construction plans for the
Improvements by written notice delivered to County within ten (10) days after delivery of the
construction plans to Agency. County agrees to incorporate any changes Agency requests in
connection with the Improvements to be installed on the Agency Property to be Improved so long as
such changes do not unreasonably delay the construction of the Improvements or substantially
increase the cost of the Improvements.
3.1.5 Cost of Construction
The cost of demolishing the improvements located at 13577 San Pablo
Avenue, developing the Site and constructing all related improvements shall be borne by County,
except for work expressly set forth in this Agreement to be performed or paid for by Agency or
others. Agency and County shall each pay the costs necessary to administer and carry out their
respective responsibilities and obligations under this Agreement.
If deemed necessary by Agency, County shall construct, or cause to be
constructed at its sole expense, or be responsible for all costs related to improvements constructed by
City of San Pablo required to San Pablo Avenue as a result of the access road connecting the Site to
San Pablo Avenue, including any extension of the left turn pocket on San Pablo Avenue onto the
access road and related median removal or construction, and any removal or construction of the
sidewalk and curb cuts or landscaping for the access road.
SPB/WCHC DDA 17 9/21/10
3.1.6 Construction Schedule
After the conveyance of title to the Site and the issuance of the necessary
permits for such development, County will endeavor to promptly begin and thereafter diligently
prosecute to completion the WCHC Project. In the event the County determines, by official action of
the County Board of Supervisors, not to proceed with the construction of the WCHC Project, or does
not commence construction of the WCHC Project within three (3) years following conveyance of the
Site (subject to extensions of time pursuant to Section 6.4), whichever occurs earlier, Agency shall
have the right to exercise its option to repurchase the Site pursuant to Section 5.7 herein. During the
period of construction, but not more frequently than once a month, County shall provide progress
status reports, as available, to Agency if requested by Agency. The WCHC Project shall be deemed
to be complete, for purposes of this Agreement, on the date the County Board of Supervisors adopts a
Resolution of Acceptance and Notice of Completion for the WCHC Project (“Project Completion
Date”). County staff will provide Agency staff thirty (30) days advance notice of the date the County
Board of Supervisors will consider adoption of the Resolution of Acceptance and Notice of
Completion and will evaluate in good faith any written comments received from Agency during such
30-day period.
comments received from Agency during such 30-day period.
After the conveyance of title to the Site and the issuance of the necessary
permits for such development, County will endeavor to promptly begin and thereafter diligently
prosecute to completion the WCHC Project. During the period of construction, but not more
frequently than once a month, County shall provide progress status reports, as available, to Agency if
requested by Agency.
If the County has not commenced construction of the WCHC Project within
three (3) years following the close of escrow for conveyance of the Site by the Agency to the County,
or has commenced construction of the WCHC Project but failed to diligently proceed with
construction, then the Agency shall have the right to repurchase the Site pursuant to Section 5.7.2 of
this Agreement.
The WCHC Project shall be deemed to be complete, for purposes of this
Agreement, on the date the County Board of Supervisors adopts a Resolution of Acceptance and
Notice of Completion for the WCHC Project (“Project Completion Date”). County staff will provide
Agency staff thirty (30) days advance notice of the date the County Board of Supervisors will
consider adoption of the Resolution of Acceptance and Notice of Completion and will evaluate in
good faith any written comments received from Agency during such 30-day period.
3.1.7 Indemnification; Bodily Injury, Property Damage and Workers’
Compensation Insurance
During the periods of construction of the WCHC Project on the Site and until
such time as the WCHC Project is complete, as evidenced by County’s adoption of a Resolution of
Acceptance and Notice of Completion, County agrees to and shall indemnify, protect, defend and
hold Agency and the City harmless from and against all liability, loss, damage, costs or expenses
(including attorneys’ fees and court costs) arising from or as a result of the death of any person or
any accident, injury, loss or damage whatsoever caused to any person or to the property of any
SPB/WCHC DDA 18 9/21/10
person, arising directly or indirectly, in whole or in part, from construction of the WCHC Project,
unless arising solely from the willful misconduct or active negligence of the Agency.
The contract documents for the WCHC Project shall require the successful
bidder to (a) secure and maintain worker’s compensation and public liability insurance in forms and
limits of liability satisfactory to County, naming Agency and County, their governing bodies,
officers, agents and employees as additional insureds, and (b) promise to defend, indemnify and hold
harmless Agency and County, their governing bodies, officers, agents and employees from liability
arising or in any way related to construction of the WCHC Project.
3.1.8 Governmental Agency Permits
Agency agrees to join County in executing any applications for governmental
approvals reasonably required by County prior to the close of escrow in connection with the WCHC
Project, but with no obligation by Agency beyond that of executing applications or other documents
prepared by County in connection with the WCHC Project. County shall prepare, implement and
comply with a Stormwater Control Plan and Stormwater Control Operation and Maintenance Plan
consistent with the most recent edition of the Stormwater C.3 Guidebook, and shall provide such
plans to the City.
County shall submit to the Agency and City for review and approval all
construction plans for the Improvements.
3.1.9 Rights of Access
If Agency desires to access the Site during construction of the WCHC
Project, Agency shall make prior arrangements for such access with County’s project manager, and
shall comply with all requirements imposed by County’s project manager and County’s project
superintendent, including checking in at the jobsite office trailer prior to accessing the Site. Agency
and City assume all risks arising from such access onto the Site during construction of the WCHC
Project, and Agency and City shall indemnify, defend and hold County harmless from any damage
caused or liability arising out of this right to access.
3.1.10 Local, State and Federal Laws
County shall carry out the construction of the improvements on the Site in
conformity with all applicable laws, including all applicable federal and state labor standards.
County shall comply with all mitigation measures identified in the Mitigated
Negative Declaration prepared and approved (on October 5, 2010) for the WCHC Project.
3.1.11 Local Hiring Policy
County shall include a local hiring policy in its Project Labor Agreement for
the WCHC Project, with particular emphasis for employment of San Pablo residents on the project
site.
SPB/WCHC DDA 19 9/21/10
3.1.12 Antidiscrimination During Construction
County, for itself and its successors and assigns, agrees that in the
construction of the improvements provided for in this Agreement, County will not discriminate
against any employee or applicant for employment because of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in Section 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code.
3.2 Encumbrances and LiensFinancing of the WCHC Project
County plans to finance the acquisition and construction of the WCHCH Project
partially through the issuance of lease revenue bonds by the Contra Costa County Public Financing
Authority (the “Authority”) to be secured by the Site and all improvements thereon (the “Bonded
Indebtedness”). The Bonded Indebtedness will be evidenced by various documents, including
without limitation the Authority’s Lease Revenue Bonds, a Trust Agreement, a Site Lease, and a
Sublease, some or all of which will be recorded as encumbrances against the Site and improvements
constructed thereon (the “Bonded Indebtedness Documents”). Until the Bonded Indebtedness no
longer encumbers the Site or any portion thereof, all rights of Agency under this Agreement are
subject and subordinate to all rights of the Authority and the bond holders, and any inconsistency
among the terms of this Agreement and the terms of the Bonded Indebtedness will be resolved in
favor of the Bonded Indebtedness Documents.
Prior to the issuance by Agency of a Certificate of Completion pursuant to
Section 3.6 hereofProject Completion Date, County shall not place or allow to be placed on the Site
any mortgage, trust deed, encumbrance or lien other than the Bonded Indebtedness Documents unless
unauthorized by this Agreement. County shall remove or have removed any levy or attachment
made on the Site (or any portion thereof), or shall assure the satisfaction thereof, within a reasonable
time, but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to
prohibit County from contesting the validity or amounts of any encumbrance or lien, nor to limit the
remedies available to County in respect thereto.
3.3 Prohibition Against Transfer of Site, the Buildings or Structures Thereon and
Assignment of Agreement
For the period commencing upon the date of this Agreement and until the issuance of
the Certificate of Completion pursuant to Section 3.6 hereofProject Completion Date, no voluntary or
involuntary successor in interest of County other than the Authority, the bond holders, and any other
successors in interest of County under the Bonded Indebtedness Documents, shall acquire any rights
or powers under this Agreement without the prior written approval of the Agency, except as
expressly permitted by this Agreement. Additionally, for the period commencing on the date of this
Agreement and prior to the issuance by Agency of a Certificate of Completion pursuant to
Section 3.6 hereofProject Completion Date, County shall not, except as provided under the Bonded
Indebtedness Documents or otherwise expressly permitted by this Agreement, sell, transfer, convey,
assign, subdivide, refinance or lease the whole or any part of the Site or the buildings or
improvements thereon without the prior written approval of Agency.
These prohibitions shall not apply subsequent to the issuance of the Certificate of
Completion for the SiteProject Completion Date. These prohibitions shall not be deemed to prevent