HomeMy WebLinkAboutMINUTES - 08061985 - T.7 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on August 6 , 1985 , by the following vote:
AYES: Supervisors Powers , Schroder, McPeak , Torlakson and Fanden
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: Ordinance (s) Introduced
The following ordinance (s) having been introduced, the
Board by unanimous vote of the members present waives full reading
thereof and fixes August 13 , 1985 as the time for
adoption of same .
Ordinance 85-47 adopting an acquisition and development
agreement between Contra Costa County , the Contra Costa
County Redevelopment Agency and the San Francisco Bay
Area Rapid Transit District .
I hereby certify that this is a true and correct eopy of
an action taken and enter3d on the minutes of the
Board of Supervisors in the date shown.
i
ATTESTED: f.,,4,14-F ..,_,—
PHiI BATCHMOROCIerk of the Board
of Supervisors and County Administrator
By Deputy
78
CONTRA COSTA COUNTY REDEVELOPMENT AGENCY
Adopted this Order on August 6,_1985 , by the following vote:
AYES: Supervisors Powers , Schroder, McPeak, Torlakson and Fanden
NOES: None
ABSENT: None
ABSTAIN: None RESOLUTION NO. RA 85-8
SUBJECT: Acquisition and Development Agreement between the Agency,
Contra Costa County and the San Francisco ay Area Rapid
Transit District
1 . The staff has presented a proposed Acquisition and
Development Agreement ("Agreement") between the Agency, Contra
Costa County ("County") and the San Francisco Bay Area Rapid
Transit District ("BART") which Agreement is attached hereto
as Exhibit A. The Agreement provides for certain transfers
between the Agency, County and BART, of property in the
Project Area governed by the Redevelopment Plan for the
Pleasant Hill BART Station Area ("Redevelopment Plan") ,
provides for the Agency to undertake certain public
improvements in the Project Area, provides for certain
standards of development for property owned by BART in the
Project Area and constitutes an owner-participation agreement
between the Agency and BART with respect to certain property
owned by BART in the Project Area.
2. After duly noticed public hearing, the Agency hereby
finds and determines that entering into the Agreement will be
of benefit to implementation of the Redevelopment Plan in that
the Agreement provides for the Agency to acquire from BART
property necessary for construction of public improvements in
the Project Area and for assemblage of development sites in
the Project Area, provides for construction of public
improvements in the Project Area and provides for development
of property owned by BART in the project area in a manner
consistent with the Redevelopment Plan.
Therefore, the Agency hereby resolves that the Agreement
is approved and that the Executive Director of the Agency is
authorized to execute the Agreement on behalf of the Agency in
substantially the form and substance as set forth in
Exhibit A attached to this resolution.
I hereby certify that this Is a true and correct copy of
an action taken And entered"on the minutes of the
Redevelopment Agen
cy on the date shown.
ATTESTED:
PHIL SATC LOR,Agency Secretary
By ----r Deputy
cc: Distribution via Redevelopment Agency to:
County Administrator
Goldfarb & Lipman
Community Development Department
San Francisco Bay Area Rapid
Transit District (BART)
RESOLUTION NO. RA 85-8
ACQUISITION AND DEVELOPMENT
AGREEMENT
by and between
CONTRA COSTA COUNTY
and
CONTRA COSTA COUNTY REDEVELOPMENT AGENCY
and
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
Table of Contents
RECITALS2
1. Definitions and Exhibits. 0 5
1 .1 Definitions. . . . . . . . . . . . 0 0 5
1 .2 Exhibits. .._ . 8
2. Effective Date; Term. 0 . . . . . . . . . . 10
2.1 Effective Date. 10
2.2 Term. 10
2.3 Recordation of Amendment or Cancellation. 10
3. Conveyance of BART Dedication Property to Agency. 10
3. 1 Property Identification. . . . . . . . . . 10
3.2 Conveyance Consideration. . . . . . . . . 11
4. Conveyance of BART Road Property to Agency. 11
4.1 Property Identification. . . . . . 11
4 .2 Conveyance Consideration. . . . . . . 11
5. Conveyance of BART Assemblage Property to Agency. 11
,5.1 Property Identification. . . . 11
5.2 Conveyance Consideration. 0 . . . . 12
6 . Conveyance of County Conveyance Property and
Transit Easements to BART. . . . . . . . . . . . . 12
6. 1 Property Identification. . . . . . . . 12
6.2 Transit Easements. . . . 00 . . . . . . . 12
6.3 Conveyance Consideration. 0 . . . . . . . 12
7. Conveyance of Sacramento Northern Claims in Parcel
B-32. . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.1 Property Identification. . . . . . . . . . 13
7.2 Property Valuation. . . . . . . . . . . . 13
8. Opening of Escrow. . . . . . . . . . . . . . . . 13
9. The Closing. . . . . . . . . . . . . . . . . . . 13
9.1 The Closing Date. . . . . . . . . . . . . 13
9.2 Condition of Title of BART Dedication
Property, BART Road Property, and BART Assemblage
Property. . . . . . . . . . . . . . . . . . . . . 13
9.3 Condition of Title of County Conveyance
Property and Transit Easements. . . . . . . . . . 14
9.4 Condition of Title of Sacramento Northern
Claims 1n .Parcel B-32 . . . . . . . . . . . . . . 15
9.5 Alternative Procedures for Closing. 15
9.6 Alternative If Financing Arranged, 15
9.7 Alternative If Financing Not Arranged. 16
9.8 Closing Procedures. . . 17
9.9. Further Conditions to the Closing. 18
. 9.10 Possession. 18
9. 11 Effect of Failure of Escrow to Close. 18
10 . Consent to New Leases and Other Contracts
Affecting the Property. . . . 19
11. Bond Financing. 19
12. Treatment of BART Assemblage Property After the
Effective Date20
13. Sacramento Northern Claims. 0 22
14. Treatment of Parcel B-17 After the Effective
Date. . . . . . . . 0 0 *
22
15. , Development of the BART Development Property. 23
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15.1 Development Agreement. 0 0 0 0 0 . 0 23
15.2 Zoning Conformance to Specific Plano . 0 23
15.3 Approved Land Use Standards. 0 0 6 . . 0 24
15.4 Development in Excess of Approved Land Use
Standards. 0 •
25
15.5 Permits to Implement Le;eio;m;ni. * 25
15.6 Future Design Reviewo 0 0 0 * a 25
; 15.7 CEQA Review. 0 0 o o o 0 o 0 o 0 0 a 0 0 . 25
' 15 .8 Application of New Rules, Regulations or
Policies• •
26
15.9 In
Li
15.9 27
15.10 Transfer of Development Potential. 27
16 . Periodic Review of Compliance.. 28
16.1 Annual Review. * & * 0 28
16.2 BART's Submission. 0 0 28
16.3 Schedule for Development. 28
16.4 Finding of Compliance. 0 0 0 0 . * 0 0 . 29
16.5 Finding of Noncompliance. 0 0 0 . 0 0 . 29
16.6 Review by County Board of Supervisors. 0 29
16.7 Miscellaneous Requirements in Connection
with Annual Review. 0 * 0 0 0 * * 0 0 0 0 * * 0 . 30
17. Agency Approvals. 0 * 0 0 * * 0 0 0 0 . 0 . . 30
17.1 Redevelopment Agency Owner Participation
Agreement. . . . . 0 0 30
. . .
. 17.2 Future Agency Review. • 30
18 . Development Fees and Development Fee Credits. 31
18.1 Development Fees. 0 0 0 10 0 0 0 0 0 0 0 31
18.2 Calculation of Development Fee Creditso 32
18.3 Credit If Financing Arranged. . * 0 . 0 32
. 18o4 Credit If Financing Not Arranged. . 0 0 32
18.5 Application of Credits. 0 0 0 0 0 0 0 . 33
18o6 Documentation of Credit. 0 0 . 0 0 0 0 . 34
18.7 Payment of BART's Development Fees by
Agency. P; 0 0 * ,o * 0 0 0 * 0 0 0 a o . o . o . . 34
19. Development Fee Credit Attributable to the Thomas
Property. . - - I . *'. - - o, - - - - - o . . . . . . . 34
20. Construction Work. . . 0 * 0 36
20..1 Cost'Allocation. 0 * 36
20.2 Approval of Plans and Specificationso 36
20.1 Sequence of the Construction Work. 37
20.4 Payment of BART's Cost Allocation. 0 0 0 37
20.5 Provisions Relating to Financing. . . . 37
20.6 Construction by Agency. 0 0 . 0 0 . . 0 37
20.7 Contract Documentso 0 0 0 . 0 * . 0 0 . 38
20.8 Contract Administration. 0 0 0 . * . . • 38
20 .9 Change Orders. 0 * 0 * 0 0 0 0 0 & . . • 39
20.10 Exception to Change Order Procedure. 0 39
20.11 Changes for Work Other Than the
Construction Worko . 0 . . 0 * 0 0 0 * . 0 0 . . 39
20.12 Final Inspection. 0- 0 * 0 0 0 0 0 0 40
20.13 Outside Sources of Funding. 0 0 0 0 0 40
20.14 Grant of Easements. * 0 * 0 & 0 0 0 . 40
21, BART Loan to Agency for the Parking Lot
Improvements. • 0 0 0 0 0 0 0 0 0 0 * 0 0 0 * 40
21.1 Agency Request for Loan. . . . . . . . . 40
21.2 Loan Terms. . . . . . . . . . 41
21 .3 Repayment of Loan From Financing Proceeds. 42
21.4 Use of Tax Increments To Pay Loan. 42
22. Utilities. . . . . . . . . 42
23. Right of Entry and Indemnification. 0 43
24. Abandonment of County Right of Way. 0. 43
25. Notices. . . . . . . . . . . . . . . - 44
26. Permitted Delays. . . . . . . . . 44
27. Supersedure by Subsequent Laws. . . . . . 44
28. Events of Default; Remedies; Termination;
Attorneys' Fees. . . . . . . . . . . 45
28 .1 Events of Default. 45
28.2 Remedies . . . . . 0 . . . 0 46
28.3 Limitation on Damages. . - 46
28 .4 Special Remedy of Reimbursement of Unused
Credits. . . 46
28.5 Waiver; Remedies Cumulative. . . 47
28.6 Litigation Expenses. . . . . . . . . . . 48
28.7 Actions by a Third Party. . . . . . . . 48
28.8 Effect of Court Action. . . . . . . . 48
29. Estoppel Certificate. . . . . _. . . . . . . . 49
30. Transfers and Assignments. . . . . . . . . . . 49
30. 1 Rights To Assign. . . . . . . . . . . . 49
30.2 Procedure Upon Transfer. . . . . . . . . 49
31 . Amendment and Termination. . . . . . . . . 50
32. Operating Memoranda. . . . . . . . . 50
33. Rights Run With the Land. . . . . . 51
34. Time of Essence. . . . . . . . . . . 51
35. Governing Law. . . . . . . . . . . . . . . . . 51
36. Severability. . . . . . . . . . . . . . . . . 51
37. Headings, 0 . . . . . . . . . . . . . . 52
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RECORDING REQUESTED BY:
Contra Costa County
WHEN RECORDED RETURN TO:
Contra Costa County
Attention:
ACQUISITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the day
of , 1985, by and between CONTRA COSTA COUNTY,
a county of the State of California ("County") , CONTRA COSTA
COUNTY REDEVELOPMENT AGENCY ("Agency") and SAN FRANCISCO BAY
AREA RAPID TRANSIT DISTRICT ("BART") , on the basis of the
following facts, understandings and intentions of the
parties: ,
RECITALS
A. These Recitals refer to and utilize certain
capitalized terms which are defined in this Agreement. The
parties intend to refer to those definitions in conjunction
with the use thereof in these Recitals.
B. County and Agency are interested in promoting
more intensive development in the vicinity of the Pleasant
Hill BART, Station (the "Station Area") , recognizing the
special importance of the Station Area given the high level of
regional accessibility provided by BART and Interstate 680,
the Area's central location in the County and the public and
private investment in the surrounding areas. With such goals
in mind, the County had adopted in 1975 an Area Plan for the
Station Area which provided for a higher density of
development; however the Station Area was not redeveloped in
the manner contemplated by that Plan.
C. The County, continuing to wish to encourage
development of the Station Area that makes efficient use of
land, utilities, transit facilities and other resources
within and around the Station Area, commissioned a specific
plan in 1981 to refine the plan for the area and set standards
for office, retail and residential development in the Station
Area and to identify public infrastructure improvements that
would be necessary to support such development. On June 7,
1983, a specific plan for the Station Area was approved and
adopted by the County Board of Supervisors in Resolution No.
83/805 , and was amended thereafter by resolutions adopted on
January 31 and April 10 , 1984 , February 5, 1985, and
May 14 , 1985 (the "Specific Plan") . An environmental impact
report (the "EIR") was also prepared pursuant to the
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California Environmental Quality Act ("CEQA") in connection
with the consideration and adoption of the Specific Plan to
identify and determine necessary mitigation measures which
needed to be undertaken to address the impact of increased
land use in the Station Area as contemplated by the Specific
Plan. Relevant elements of the Specific Plan include assembly
of small parcels in the Station Area into sites for new
development, installation of up-graded utilities, roadway
construction and realignment, improved vehicular and
pedestrian circulation and standards for private development
within the Station Area.
D. Having determined that the Station Area was
blighted and that the impediments to desired development
include the small size of the lots within. the Station Area,
the dilapidation of some of the existing improvements in the
Station Area, the configuration of the lots in relationship to
the street pattern and the lack of the public infrastructure
and improvements necessary to permit redevelopment, the County
and Agency believed the Station Area would not be likely to be
developed in the manner contemplated by the Specific Plan
without the kinds of development assistance provided through
the redevelopment process.
E. In order to implement the Specific Plan, the
Agency submitted, and the County Board of Supervisors adopted
by Ordinance No. 84-30 , on July 10 , 1984 , a Redevelopment Plan
for the Pleasant Hill BART Station Area Redevelopment Project
(the "Redevelopment Plan") . The Redevelopment Plan covers
approximately 130 acres of land within the County, mostly
coterminous with the Station Area, and more specifically shown
in Exhibit C attached hereto (the "Project Area") .
F. BART anticipates development of the BART
Development Property (defined in Paragraph 1.1 (f) ) (lying
within both the Station Area and the Project Area) in
conformance with the Specific Plan and the Redevelopment
Plan. The development anticipated for the BART Development
Property includes mixed-use phased development including
associated commercial parking requiring major investment in
public facilities and substantial initial investment in on-
and off-site improvements in order to make such development
feasible. BART owns property which the Agency wishes to
acquire for the construction of some of the public
improvements contemplated by the Specific Plan and the
Redevelopment Plan. In addition, BART owns property which
the Agency may acquire for assemblage with other lots in the
Project Area for private redevelopment purposes consistent
with the Specific Plan and the Redevelopment Plan. The
County owns property adjacent to BART' s Development Property
which BART wishes to acquire, to enable BART to assemble the
land needed to carry out the purposes of the Specific Plan as
it relates to the BART Development Property.
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G. Pursuant to the Specific Plan, developers of
property in the Station Area (and in the Project Area pursuant
to the Redevelopment Plan) are required to pay development
fees based upon the square footage of development allowed on
their property. Assessment District 1983-1 was approved and
formed by the County Board of Supervisors to collect a portion
of the development fees in advance of any actual private
development in order to help finance and commence construction
of certain of the planned public infrastructure improvements
related to roads , circulation and drainage (the "Public
Improvements") . BART was not required to, and did not, join
the Assessment District, but under the Specific Plan, it would
be required to pay development fees in lieu of such assessment
for the Public Improvements in conjunction with and at the
time of its development of the BART Development Property.
H. It is the intent and desire of County, Agency and
BART to provide for the transfer of various parcels which they
own, to set standards for development of the BART Development
Property, and to arrange a method for payment of the
development fees in a manner which will enable the County and
Agency to carry out their respective Plans for implementing
the Public Improvements and parcel assemblages and to enable
private development within the Project Area to go forward as
desired. This Agreement is a necessary and logical step to
implementing such goals and policies, to providing balanced
and diversified land uses in order to maintain the overall
quality of life and of the environment within the County, to
improve roads, traffic flow patterns and support facilities
(such as storm drainage and other amenities) in the Project
Area, and to establishing measures for mitigation of any
adverse environmental impacts in the County and the
surrounding region. The County, the Agency and BART believe
that the orderly development of the BART Development Property
will provide many public benefits to the County and the
residents of the County through the imposition of the
foregoing under the terms and conditions of this Agreement,
including, without limitation, increased tax revenues
resulting in fiscal benefits to the Agency and County,
installation of on- and off-site public improvements, and
development of employment-creating uses at a location
already serviced by major regional transportation systems
including BART.
I. The County, the Agency, and BART have determined
that a development agreement pursuant to the California
Development Agreement Law (California Government Code Sections
65864 et. seq. ) is an appropriate vehicle to provide for
certain parameters of use, height, density and setback
standards for development of the BART Development Property so
as to allow BART to plan and implement development of that
property 'in a rational manner consistent with the Specific
Plan and the- Redevelopment Plan and with assurances that such
parameters will not be altered during the course of that
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planning and implementation; and is an appropriate vehicle to
assure the County and the Agency that the BART Development
Property will be developed in a timely manner and in a manner
which will be consistent with the Specific Plan and the
Redevelopment Plan.
J. On July 16 , 1985, after due review of this
Agreement by the appropriate County agencies and departments ,
and consideration of all other evidence heard and submitted at
a duly noticed public hearing, the Contra Costa County
Planning Commission found and determined that this Agreement
is consistent with the County's General Plan and the Specific
Plan.
K. Thereafter, on , 1985,-'the County
Board of Supervisors held a duly noticed public hearing on
this Agreement, found this Agreement consistent with the
County's General Plan and the Specific Plan, and introduced an
ordinance in order to enact this Agreement as its legislative
act. Thereafter, on , 1985 , the County Board
of Supervisors adopted the ordinance (Ordinance No. )
enacting this Agreement as its legislative act (the "Enacting
Ordinance") .
N o w, T h e r e f o r e, pursuant to the authority
contained in the California Development Agreement Law, and in
consideration of the mutual covenants and promises of the
parties herein contained, the parties agree as follows :
1 . Definitions and Exhibits.
1 .1 Definitions.
The following definitions shall govern this
Agreement.
(a) "Adjustment Factor" shall mean 1 .045 .
(b) "Approved Land Use Standards" shall have the
meaning given in Paragraph 15.3.
(c) "BART Dedication Property" shall mean the
property described as Parcels B-1 , B-2, B-3 ,
B-18 , B-20, B-21 , B-22, B-23 , B-26, B-28 , B-29 ,
B-31 , B-33, B-34 and B-35 in the attached Exhibit
A-1 which BART is to convey to the Agency
pursuant to the terms of this Agreement.
(d) "BART Road Property" shall mean the property
described as Parcels B-4 , B-5, B-6, B-7, B-8 ,
B-9, B-10 , B-27 and B-30 in the attached Exhibit
A-2 which BART is to convey to Agency pursuant to
the terms of this Agreement.
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(e) "BART Assemblage Property" shall mean the
property described as Parcels B-11 , B-12 , B-13 ,
B-14 , B-15 , B-16 and B-19 in the attached Exhibit
A-3 which BART may convey to the Agency or to
developers pursuant to the terms of this
Agreement.
(f) "BART Development Property" shall mean the
property described in the attached Exhibit B
which BART intends to develop or cause to be
developed in accordance with the terms and
conditions of this Agreement.
(g) "Closing" shall have the meaning given in
Paragraph 9 . 1 .
(h) "Construction Work" shall mean those parking,
road access and sanitary sewer line relocation
improvements described in Exhibit F which the
Agency is to construct.
(i) "County Conveyance Property" shall mean the
property described as Parcels C-1 , C-2 and C-3 in
the attached Exhibit A-5 which County or Agency
is to convey to BART pursuant to this Agreement.
(j) "County Easement Property" shall mean the
property described as Parcels C-5 , C-6 and C-7 in
the attached Exhibit A-9.
(k) "County Right of Way Vacation Area" shall mean
that portion of the BART Development Property
described as Parcels P-2 and P-34 in the attached
Exhibit A-6 over which the County has existing
right of way easements, which easements County is
to abandon and vacate pursuant to Paragraph 24 .
(1) "Credit" shall mean the amount of credit to which
BART is entitled to receive by virtue of having
prepaid development fees otherwise due and
payable in connection with and at the time of the
development of the BART Development Property, and
is entitled to use at the time of development of
the BART Development Property, as calculated and
adjusted from time to time pursuant to Paragraph
18 .
(m) "Defaulting Party" shall have the meaning given
in Paragraph 28 . 1 .
(n) "Effective Date" shall have the meaning given in
Paragraph 2.1 .
(o) "EIR" shall have the meaning given in Recital C.
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(p) "Enacting Ordinance" shall have the meaning given
in Recital K.
(q) "Event of Default" shall have the meaning given
in Paragraph 28 .1 .
(r) "Financing Date" shall have the meaning given in
Paragraph 11 .
(s) "Law" shall mean the laws of the State of
California, the Constitution of the United
States, and any codes, statutes, regulations or
executive mandates or any court decision, state
or Federal thereunder.
(t) "New Dedicated Easements" shall mean those
Easements described in the attached Exhibit A-7
for traffic control devices and a pedestrian
bridge which BART is to grant to the Agency
pursuant to this Agreement.
(u) "Parcel B-17" shall mean that property described
in the attached Exhibit A-4.
(v) "Parcel B-32" shall mean that property described
in the attached Exhibit A-8 .
(w) "Parking Lot Work" shall mean that portion of the
Construction Work which is described as the
Parking Lot Work in the attached Exhibit F.
(x) "Project Area" shall mean the area governed by
the Redevelopment Plan as shown on the map
attached as Exhibit C.
(y) "Public Improvements" shall have the meaning
given in Recital G.
(z) "Redevelopment Plan" shall have the meaning given
in Recital E.
(aa) "Sacramento Northern Claims" shall have the
meaning given in Paragraph 13.
(bb) "Specific Plan" shall have the meaning given
in Recital C.
(.cc) "Specific Plan Area" shall mean the geographic
area within Contra Costa County covered by the
Specific Plan, and is the same area as the
Station Area.
(dd) "Station Area" shall have the meaning given in
Recital B.
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(ee) "Thomas Property" shall mean that portion of the
BART Development Property described in the
attached Exhibit I.
(ff) "Transit Easements" shall have the meaning given
in Paragraph 6 .2.
(gg) "Transit Functions" shall mean use of the BART
Development Property for purposes of
construction, operation, administration,
maintenance, repair or replacement of transit
facilities, or functions related thereto.
1. 2 Exhibits.
The following Exhibits are attached to this
Agreement and by this reference are incorporated herein and
made a part hereof.
Exhibit A Composite Map showing all the parcels
described in Exhibits A-1 through A-9.
Exhibit A-1 Map and legal description of the parcels
comprising the BART Dedication Property.
Exhibit A-2 Map and legal description of the parcels
comprising the BART Road Property.
Exhibit A-3 Map and legal description of the parcels
comprising the BART Assemblage Property.
Exhibit A-4 Map and legal description of Parcel
B-17.
Exhibit A-5 Map and legal description of the parcels
comprising the County Conveyance Property.
Exhibit A-6 Map and legal description of County
Right of Way Vacation Area.
Exhibit A-7 Map and legal description of the New
Dedicated Easements.
Exhibit A-8 Map and legal description of Parcel
B-32 .
Exhibit A-9 Map and legal description of the County
Easement Property.
Exhibit B Map and legal description of the BART
Development Propety.
Exhibit C Map showing the Pleasant Hill BART
Station Redevelopment Project Area.
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Exhibit D Exceptions to title to the BART
Dedication Property, BART Road Property
and BART Assemblage Property.
Exhibit E Exceptions to title to the County
Conveyance Property.
Exhibit F Description of the Construction Work
and elements thereof including the
Parking Lot Work.
Exhibit G Schematic map showing the location of
utility stubs for storm and sanitary
sewer drains referred to in Paragraph 22.
Exhibit H Form of documentation for the Credit.
Exhibit I Map and legal description of the Thomas
Property.
Exhibit J The form of Promissory Note referred to
in Paragraph 21 .2.
Exhibit K BART insurance requirements referred to
in Paragraph 20.7.
2. Effective Date; Term.
2. 1 Effective Date.
This Agreement shall be dated and the obligations
of the parties under this Agreement shall be effective as of
the date which is thirty (30) days following the date the
Enacting Ordinance was approved by the County Board of
Supervisors as specified in the Recitals above. Said date is
referred to in this Agreement as the "Effective Date" . After
the Enacting Ordinance takes effect pursuant to Government
Code Section 25123 , and not later than ten (10) days
thereafter, the County, by and through its Board of
Supervisors, . the Agency and BART shall execute and acknowledge
this Agreement, and thereafter the Clerk of the County Board
of Supervisors shall cause this Agreement to be recorded in
the Official Records of the County . of Contra Costa, State of
California. The cost of recording this Agreement, if any,
shall be borne equally by BART and the County.
2.2 Term.
.The Term of this Agreement shall commence on the
Effective Date and shall terminate ten (10) years thereafter,
unless sooner terminated or extended as provided in this
Agreement.
2.3 Recordation of Amendment or Cancellation.
.If the parties amend or cancel this Agreement as
herein provided, or as otherwise provided by the California
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Development Agreement Law, or this Agreement is terminated
pursuant to any provision hereof, then the Clerk of the County
Board of Supervisors shall, not later than ten (10) days after
such action takes effect, cause an appropriate notice of such
action to be recorded in the Official Records of the County of
Contra Costa describing the real property affected by such
action.
3 . Conveyance of BART Dedication Property to
Agency.
3 . 1 Property Identification.
BART hereby agrees to grant, sell, transfer and
convey to Agency, and Agency hereby agrees to accept from
BART, upon and subject to the terms and conditions set forth
herein, the BART Dedication Property described as follows :
(a) Parcels B-1 , B-2 , B-3 , B-18 , B-20, B-21, B-22,
B-23, B-26 , B-28 , B-29, B-31, B-33, B-34 and
B-35, each located in the County of Contra Costa,
State of California, as more particularly
described in Exhibit A-1 ;
(b) together with all rights, privileges and
easements appurtenant to each of said parcels
comprising the BART Dedication Property.
3 .2 Conveyance Consideration.
The parties agree that the aggregate value of the
BART Dedication Property is $3 , 102,912 and such property shall
be conveyed to the Agency at no cost to the Agency at the
Closing.
4 . Conveyance of BART Road Property to Agency.
4 .1 Property Identification.
BART hereby agrees to grant, sell, transfer and
convey to Agency, and Agency hereby agrees to accept from
BART, upon and subject to the terms and conditions set forth
herein, the BART Road Property described as follows :
(a) Parcels B-4 , B-5, B-6 , B-7, B-8, B-9, B-10, B-27
and B-30 , each located in the County of Contra
Costa, State of California, as more particularly
described in Exhibit A-2;
(b) together with all rights, privileges and
easements appurtenant to each of said parcels
comprising the BART Road Property.
4. 2 Conveyance Consideration.
The parties agree that the values of the parcels
comprising the BART Road Property shall be as follows:
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(a) Parcel B-4 : $ 61 ,424 .
(b) Parcel B-5 : $148 ,864 .
(c) Parcel B-6 : $ 86,240.
(d) Parcel B-7: $ 55,072 .
(e) Parcel B-8 : $ 47 ,892 .
(f) Parcel B-9 : $114 , 560 .
(g) Parcel B-10: $ 68, 164.
(h) Parcel B-27 : $ 20,032.
(i) Parcel B-30 : $154 ,154 .
For a total value of $756,402.
5. Conveyance of BART Assemblage Property to
Agency.
5.1 Property Identification.
If so required pursuant to the provisions of
Paragraph„ 9 .7 or Paragraph 12, below, BART hereby agrees to
grant, sell, transfer and convey to Agency, and Agency agrees
to accept from BART, upon and subject to the terms and
conditions set forth in this Agreement, the BART Assemblage
Property described as follows:
(a) Parcels B-11, B-12, B-13, B-14 , B-15, B-16, and
B-19 , each located in the County of Contra Costa,
State of California, as more particularly
described in Exhibit A-3;
'(b) together with all rights, privileges and
easements appurtenant to each of said parcels
comprising the BART Assemblage Property.
5.2 Conveyance Consideration.
The parties agree that the values of the parcels
comprising the BART Assemblage Property shall be as follows :
(a) Parcel B-11 : $ 296,803.
(b) Parcel B-12 : $ 284 ,986.
! (c) Parcel B-13 : $ 36,270 .
(d) Parcel B-14 : $ 415 ,447.50
(e) Parcel B-15: $ 219,882.
(f) Parcel B-16: $ 9,438 .
(g) Parcel B-19 : $ 9,958.
For a total value of $1,272,784 .50 .
'6 . Conveyance of County Conveyance Property and
Transit Easements to BART.
6 .1 Property Identification.
County hereby agrees to grant, sell, transfer and
convey to BART or arrange for Agency to grant, sell, transfer
and convey to BART in which event Agency shall so grant, sell
transfer and convey to BART, and BART hereby agrees to accept
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from Agency or County, upon and subject to the terms and
conditions set forth herein, the County. Conveyance Property
described as follows:
(a) Parcels C-1 , C-2 and C-3 , each located in the
County of Contra Costa, State of California, as
particularly described in Exhibit A-5;
(b) together with all rights, privileges and
easements appurtenant to each of said parcels
comprising the County Conveyance Property.
6 .2 Transit Easements.
County and Agency hereby agree to grant,
transfer, , and convey to BART, and BART hereby agrees to accept
from County and Agency, upon and subject to the terms and
conditions set forth herein, easements for transit facilities
("Transit Easements") over County Easement Property described
as follows :
(a) Parcels C-5 and C-6 each located in the County of
Contra Costa, State of California, as
particularly described in Exhibit A-9.
6 .3 Conveyance Consideration.
The parties agree that the values of the parcels
comprising the County Conveyance Property shall be as follows:
(a) Parcel C-1 : $110 ,396.
(b) Parcel C-2 : $ 69,888.
(c) Parcel C-3 : $ 74 ,984 .
For a total amount of $255,268.
The Transit Easements over Parcels C-5 and C-6 shall
be granted at no cost to BART.
7 . Conveyance of Sacramento Northern Claims in
Parcel B-32.
7. 1 Property Identification.
Subject to the provisions of Paragraph 13, Agency
hereby agrees to grant, sell, transfer, and convey to BART and
BART hereby agrees to accept from Agency, upon and subject to
the terms and conditions set forth herein, the Sacramento
Northern Claims (as defined in Paragraph 13) in Parcel B-32.
7.2 Property Valuation.
The parties agree that the Sacramento Northern
Claims in Parcel B-32 have an agreed upon value of $74 ,523 .
8 . Opening of Escrow.
Within one (1) week after all of the parties have
executed this Agreement, BART shall deposit an executed copy
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of this Agreement with the Walnut Creek Office of First
American Title Guaranty Company ("Escrow Holder") in order to
open an escrow to complete the land conveyancing transaction
contemplated by this Agreement. BART, County and Agency agree
to execute escrow instructions as may be appropriate to enable
Escrow Holder to comply with the terms of this Agreement;
provided, however, that in the event of any conflict between
the provisions of this Agreement and any escrow instruction,
the terms of this Agreement shall control unless such escrow
instructions are executed by the County, the Agency and BART,
or their respective attorneys.
9. The Closing.
9.1 The Closing Date.
The closing ("Closing") for the land conveyances
contemplated in Paragraphs 3, 4 , 5 , 6 and 7 shall be held at
the offices of the Escrow Holder not later than thirty (30)
days following the earlier of the Financing Date or the date
the Financing is arranged, or on such other date or dates as
Agency, County and BART may agree in writing. Such dates may
not be extended without the prior written approval of Agency,
County and BART except as otherwise expressly provided in this
Agreement.
9.2 Condition of Title of BART Dedication
Property, BART Road Property, and BART
Assemblage Property.
The BART Dedication Property, the BART Road
Property and the BART Assemblage Property shall be transferred
to the Agency as follows:
(a) At the closing with respect to a particular
parcel , BART shall convey to Agency fee simple
title to the parcel by duly executed and
acknowledged grant deed, except as specified in
Paragraph 9.2 (b) , provided that the following
condition precedent to the close of escrow has
been satisfied: (i) with respect to the BART
Dedication Property and the BART Road Property,
the Escrow Holder shall be prepared to and shall
issue a CLTA Owner' s Policy of Title Insurance in
the amount of $3,859, 314 insuring fee simple
title to the BART Dedication Property and the
BART Road Property other than Parcels B-29 and
B-31 vested in Agency, subject only to the
exceptions shown in the attached Exhibit D, the
reserved easements for Parcels B-2, B-6 , B-7,
B-8 , B-14, B-15, B-18, B-21, B-22, B-23, B-29,
B-30 and B-33, as described in Exhibits A-1 and
A-2, the exception noted in Paragraph 9 .2 (c)
below, and any other exceptions agreed upon by
BART and the Agency, and (ii) with respect to
each parcel comprising the BART Assemblage
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Property, is prepared to issue a CLTA Owner 's
Policy of Title Insurance in an amount equal to
the value of that parcel set forth in Paragraph
5 .2 above, subject only to the exceptions shown
in the attached Exhibit D, the reserved easement
for Parcels B-14 and B-15 as described in Exhibit
A-3, and any other exceptions agreed upon by BART
and the Agency.
(b) Parcels B-3, B-10 , and B-33 may be conveyed by
quitclaim deed rather than grant deed.
(c) The BART Dedication Property shall be conveyed
subject to a condition subsequent which requires
that if any portion of that property is not put
to use for roads, utilities, landscaping, curbs,
gutters or sidewalks within five (5) years of the
date of the recordation of the conveyance of that
property to the Agency, then such portion shall
be reconveyed to BART.
9.3 Condition of Title of County Conveyance
Property and Transit Easements.
At the Closing the County or Agency shall convey
to BART fee simple title to the County Conveyance Property by
duly executed and acknowledged grant deed, provided that the
following condition precedent to the close of escrow has been
satisfied: the Escrow Holder shall be prepared to and shall
issue a CLTA Owner 's Policy of Title Insurance in the amount
of $255 ,268 , insuring fee simple title to the County
Conveyance Property vested in BART subject only to the
exceptions shown in the attached Exhibit E and any other
exceptions agreed upon by BART and the conveying entity. At
the Closing, the Agency or the County shall convey to BART the
Transit Easements over the County Easement Property by duly
executed and acknowledged grant of easement.
9.4 Condition of Title of Sacramento Northern
Claims in Parcel B-32 .
At the Closing, the Agency shall convey to BART
the Sacramento Northern Claims in Parcel B-32 by duly executed
and acknowledged quitclaim deed, provided that the following
condition precedent to the close of escrow has been
satisfied: the Escrow Holder shall be prepared to issue a
CLTA Owner 's Policy of Title Insurance in the amount of
$355 ,524 'insuring fee simple title to Parcel B-32 vested in
BART subject only to such exceptions created by BART prior to
the Closing. As a further condition to the Closing, the
Agency shall dismiss or caused to be dismissed with prejudice
as to Parcel B-32 the action entitled Chatham et. al. v. BART
et. al. , Contra Costa Superior Court No. 257752.
9 .5 Alternative Procedures for Closing.
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The parties contemplate that the Property to be
transferred at the Closing and the consideration to be paid or
given at the Closing will differ depending upon whether the
Financing contemplated pursuant to Paragraph 11 is arranged on
or before the Financing Date. Therefore, the parties have
provided for alternative procedures for the Closing, the
first, as" set forth in Paragraph 9.6, applying if the
Financing is arranged on or before the Financing Date and the
second, as set forth in Paragraph 9.7, applying if the
Financing is not arranged on or before the Financing Date.
9 .6 Alternative If Financing Arranged.
In the event the Financing is arranged (as
described in Paragraph 11 (b) ) , on or before the Financing
Date, then at the Closing:
(a) BART shall convey the BART Dedication Property
and the BART Road Property to the Agency.
(b) County or Agency shall convey the County
Conveyance Property and the Transit Easements to
BART.
(c) Agency shall convey to BART the Sacramento
Northern Claims in Parcel B-32.
(d) Agency shall pay BART the amount of $497,834
which represents the agreed upon value of the
BART Road Property ($756 ,402) less the sum of the
agreed upon value of the County Conveyance
Property ($255,268) and fifty percent (50%) of
the costs of certain appraisals paid for by the
County and Agency prior to the Effective Date.
(e) BART shall pay the Agency $74,523 , which
represents the agreed upon value of the
Sacramento Northern Claims in Parcel B-32 as set
forth in Paragraph 7.2.
(f) If BART has sold Parcel B-17 prior to the
Closing, BART shall pay to the Agency the
proceeds of such sale in excess of $475,461, but
in no event shall the amount paid to the Agency
pursuant to this subparagraph (f) exceed
$610,175. As used in this Paragraph 9.6 and in
Paragraph 9 .7, 12, 14 and 18 , the term "proceeds
of such sale" or "proceeds of sale" shall mean
the price at which the property was sold less
closing costs paid by BART or deducted from the
proceeds paid to BART in connection with the sale
of the property.
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(g) BART shall not be obligated to convey any parcel
comprising the BART Assemblage Property to the
Agency.
Upon Closing, BART shall receive the Credit specified
in Paragraph 18 .3 .
9 . 7 Alternative If Financing .Not Arranged.
In the event the Financing is not arranged on or
before the Financing Date, then at the Closing:
(a) BART shall convey the BART Dedication Property
and the BART Road Property to the Agency.
(b) BART shall convey to the Agency those parcels
comprising the BART Assemblage Property which
BART has not previously sold to third parties or
for which BART does not have, as of the date of
the Closing, an obligation to sell in the future
.-to a person or entity other than. the Agency.
(c) County or Agency shall convey the County
Conveyance Property to BART.
(d) Agency shall convey to BART the Sacramento
Northern Claims in Parcel B-32 .
(e) BART shall pay the Agency the amount of $74,523
which represents the agreed upon value of the
Sacramento Northern Claims in Parcel B-32 as set
forth in Paragraph 7.2 .
(f) BART shall pay the Agency the proceeds of sale of
any parcel comprising the BART Assemblage
Property which BART has sold and conveyed to
third parties prior to the Closing, provided,
however, that in no event shall the amount BART
is obligated to pay the Agency pursuant to this
subparagraph (f) with respect to any particular
parcel comprising the BART Assemblage Property
exceed the agreed upon value of such parcel as
set forth in Paragraph 5 .2 .
(g) If BART has sold Parcel B-17 prior to the
Closing, BART shall pay to the Agency the
proceeds of such sale but in no event shall the
amount paid to the Agency pursuant to this
subparagraph (g) exceed $1,085 ,636 .
Upon Closing BART shall receive the Credit specified
in Paragraph 18.4 .
9 .8 Closing Procedures.
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At the Closing, the following deliveries and
payment of closing costs shall be made:
.(a) If the party coAveying the parcel is BART, BART
shall deliver to the Escrow Holder a duly
executed and acknowledged grant deed (or
quitclaim deed pursuant to Paragraph 9.2 (b) )
conveying the parcel to the Agency.
(b) If the party conveying the parcel is the County
or Agency, the County or Agency, as the case may
be, shall deliver to the Escrow Holder a duly
executed and acknowledged grant deed (or
quitclaim deed pursuant to Paragraph 9.4 or grant
of easement pursuant to Paragraph 9. 3) conveying
the parcel to BART.
(c) If a party is required to pay money in
consideration for the property to be conveyed, ,.
that party shall deliver that money to the Escrow
Holder.
(d) BART, and Agency and County shall each deposit
such other instruments as are reasonably required
by the Escrow Holder or otherwise required to
close the escrow and consummate the contemplated
conveyances, provided that the same are
consistent with the intent of and are in
accordance with the terms of this Agreement.
(e) All expenses of the escrow including title
insurance, transfer taxes, if any, escrow fees
and recording fees shall be paid fifty percent
(50%) by BART and fifty percent (50%) by the
Agency.
9.9 Further Conditions to the Closing.
The following shall be conditions precedent to
the Closing and conveyances and payments to occur at the
Closing:
(a) Each party obligated by this Agreement to convey
property or a property interest at the Closing is
prepared to convey such property or property
interest in the condition specified in this
Agreement and has delivered to the Escrow Holder
the deeds or other conveyancing documents
necessary to accomplish such conveyances.
(b) The County has adopted an ordinance pursuant to
California Government Section 66428 permitting
waiver of parcel map requirements for conveyances
to and from government agencies, public entities,
and public utilities, and such waiver has been
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granted for the conveyances to BART and the
Agency contemplated by this Agreement.
(c) The County has adopted by resolution or ordinance
a policy allowing, upon agreement of the Agency
and the County, prepayment of or credits against
the development fees payable in connection with
development of the area governed by the Specific
Plan, for developer conveyances to the Agency of
property necessary for construction of public
improvements in the Project Area or the Specific
Plan Area or assemblage of development sites in
the Project Area or the Specific Plan Area, for
developer cash payments to the Agency and for the
proceeds of Agency bonds or other debt
instruments received by the Agency where such
bonds or other debt instruments are secured by
developer obligations.
(d) The Agency has acquired the Sacramento Northern
Claims.
(e) If required to do so by Law, BART has complied
with any legal procedures applicable to the sale
of BART's property which are a prerequisite to
conveyance of the BART Dedication Property, BART
Road Property and BART Assemblage Property to the
Agency, and County. or Agency, as the case may be,
has complied with any legal procedures applicable
to conveyance of the County Conveyance Property
to BART.
9. 10 Possession.
Possession of all of the property conveyed shall
be delivered at the Closing.
9 .11 Effect of Failure of Escrow to Close.
It is the understanding of the parties that the
conveyance of the BART Dedication Property and the BART Road
Property to the Agency is part of the consideration for the
performance of the obligations of the County and the Agency
pursuant to Paragraphs 15 through 22 of this Agreement.
Therefore, the parties agree that the County and/or Agency's
and BART' s performance or compliance with the obligations set
forth in said Paragraphs shall be conditioned upon BART' s
conveyance of the BART Dedication Property and the BART Road
Property to the Agency.
10 . Consent to New Leases and Other Contracts
Affecting the Property.
After the Effective Date, BART shall not enter
into any lease, or amendment of lease or tenancy agreement, or
contract or agreement pertaining to the BART Dedication
Property, BART Road Property or BART Assemblage Property which
-18-
could not be terminated as to such property upon not more than
thirty (30) days ' notice, or permit any tenant of the BART
Dedication Property, BART Road Property or BART Assemblage
Property to enter into any sublease, assignment of lease,
contract or agreement pertaining to the BART Dedication
Property, BART Road Property or BART Assemblage Property, or
modify any lease or tenancy agreement, contract or agreement
pertaining to the BART Dedication Property, BART Road Property
or BART Assemblage Property or waive any rights of BART
thereunder, without in each case obtaining Agency's prior
written consent thereto, which consent Agency agrees shall not
be unreasonably withheld, provided, however, such obligations
with respect to the BART Assemblage Property shall terminate
as of the Closing. Nothwithstanding the foregoing, BART may
sell or contract to sell a parcel included within the BART
Assemblage Property without the consent of the Agency provided
such sale complies with the provisions of Paragraph 12.
County and Agency shall have the same obligations with respect
to the County Conveyance Property as BART has pursuant to this
Paragraph 10 with respect to the BART Dedication Property and
the BART Road Property, and shall similarly be required to
obtain BART ' s consent.
11 . Bond Financing.
(a) The parties agree to use their best efforts to
arrange a financing (the "Financing") to raise
funds through sale of Agency bonds or similar
financing mechanism in order to provide the
Agency with funds to carry out Public
Improvements in the Project Area. It is the
general intent of the parties that the funds
raised through the contemplated financing will,
subject to the specific provisions of this
Agreement, constitute prepayment of the
development fees that would be paid in connection
with development of the BART Development
Property. The parties agree that the general
parameters of the Financing shall be as follows:
the interest rate on the bonds or other debt
instrument shall not exceed ten percent (10%) per
annum; the obligation to pay the bonds or other
debt instrument shall be secured by such security
or income stream BART may provide and is
acceptable to BART; the Agency shall have no
obligation to pay the bonds or other debt
instrument except from the security or income
stream BART provides as security for payment of
the bonds or other debt instrument; the proceeds
of the sale of the bonds or other debt instrument
shall be approximately $2,400,000 plus an amount
equal to the estimated cost of construction of
Wayne Drive Extension as shown on Exhibit F, the
sanitary sewer line relocation described in
-19-
Exhibit F and any other utilities which BART may
desire to finance; the costs of issuance of the
bonds or other debt instruments shall be paid
from the proceeds of the bonds or other debt
instrument; and the proceeds of the Financing
shall be used to pay for the BART Road Property,
construction of the Construction Work, and
acquisition of land for and construction of other
public improvements in the Project Area.
(b) If the Financing is not arranged by the
Financing Date, the parties will cease their
efforts to arrange the Financing and the
provision of this Agreement as to rights and
obligations of the parties which become effective
if the Financing is not arranged by the Financing
Date shall become effective. As used in this
Agreement the term "arranged" when used in
connection with the Financing referred to in this
Paragraph 11 shall mean that the bonds or other
debt instrument have been sold or executed and
that the proceeds of such bonds or other debt
instrument are available for expenditure by the
Agency.
(c) The Financing Date shall be one hundred twenty
(120) days following the Effective Date of this
Agreement. Any party may request extension of
the Financing Date and the other parties shall
not unreasonably withhold consent to such
extension if it is reasonably probable that, by
the Financing Date as proposed to be extended,
the Financing referred to in this Paragraph 11
will have been arranged.
12. Treatment of BART Assemblage Property After
the Effective Date.
(a) BART agrees that during the period beginning on
the Effective Date and ending upon the Closing,
BART will not sell or contract to sell any parcel
comprising the BART Assemblage Property except to
any person or entity who owns, controls or has a
right to purchase adjoining property with which
the BART parcel being sold is designated, under
the Specific Plan, to be assembled for
development purposes within a common development
area.
(b) BART agrees that for a period beginning on the
Effective Date and ending sixty (60) days
thereafter, BART shall not sell or contract to
sell a parcel comprising the BART Assemblage
Property at a price more than the agreed upon
-20-
price of that parcel as set forth in Paragraph
5 . 2.
(c) If the Financing is not arranged on or before the
Financing Date and there is a parcel or parcels
comprising the BART Assemblage property which
BART is not obligated to convey to the Agency at
the Closing pursuant to Paragraph 9. 7 (b) , then
BART shall pay to the Agency the proceeds of sale
of_ such parcel or parcels promptly upon receipt,
but in no event shall the amount BART is
obligated to pay the Agency pursuant to this
subparagraph (c) exceed the agreed upon value of
such parcel or parcels as set forth in Paragraph
5.2 .
(d) If the Financing is not arranged on or before the
Financing Date; and if there is a parcel or
parcels comprising the BART Assemblage Property
which BART owns as of the Closing but is not
obligated to convey to the Agency pursuant to
Paragraph 9. 7 (b) because BART has contracted to
sell such parcel or parcels to other persons or
entities; and if the contract to sell such parcel
or parcels expires or is subsequently terminated
such that BART no longer is obligated to sell
such parcel or parcels to other persons or
entities, then, if there is no dispute between
BART and the person or entity with whom BART
contracted as to the validity of the cancellation
or termination, BART shall convey such parcel or
parcels to the Agency. The escrow for the
conveyance shall close within thirty (30) days
following the date on which BART ceases to be
obligated to sell such parcel or parcels to other
persons or entities and the escrow and closing
shall be governed by the relevant provisions of
Paragraph 9 .
13. Sacramento Northern Claims.
(a) Prior to the Effective Date, the Agency entered
into an agreement to purchase from third persons
certain alleged reversionary rights ("Sacramento
Northern Claims" ) in and to Parcels B-3 , B-10 ,
and B-17 and in and to Parcel B-32 located within
the BART Development Property and more
particularly described in Exhibit A-8 . Pursuant
to Paragraphs 7 and 9 of this Agreement, the
Agency will convey to BART at the Closing the
Sacramento Northern Claims in Parcel B-32.
Agency agrees to use its best efforts to complete
the purchase of the Sacramento Northern Claims on
or before the Closing. Notwithstanding the
-21-
foregoing, if the Agency has acquired the
Sacramento Northern Claims in Parcel B-32 before
the date of the Closing, then the Agency shall
notify BART immediately of such acquisition and
the parties shall use their best efforts to
complete as soon as practicable the sale by the
Agency of the Sacramento Northern Claims in
Parcel B-32 to BART by arranging for the
satisfaction of the conditions precedent set
forth in Paragraph 9 .4 of this Agreement. When
such conditions precedent have been satisfied,
the Agency shall convey to BART the Sacramento
Northern Claims in Parcel B-32 by duly executed
and acknowledged quitclaim deed, and BART shall
pay the Agency $74 ,523 , which represents the
agreed upon value of the Sacramento Northern
Claims in Parcel B-32 as set forth in Paragraph
7.2, on the date mutually acceptable to BART and
the Agency.
(b) Agency agrees that if BART sells Parcel B-17 in
conformance with the provisions of this
Agreement, then, concurrent with the conveyance
of Parcel B-17 to the purchaser(s) , the Agency
will convey to the purchaser (s) of Parcel B-17
the Sacramento Northern Claims with respect to
Parcel B-17 upon payment by such purchasers to
the Agency of the purchase price for the
Sacramento Northern Claims in Parcel B-17. For
the period beginning on the Effective Date and
ending five (5) years after the Closing, Agency
agrees that it will not sell the Sacramento
Northern Claims in Parcel B-17 except pursuant to
the provisions of this Paragraph 13. Agency
agrees that for the period beginning on the
Effective Date and ending December 31, 1985, the
purchase price for the Sacramento Northern Claims
in Parcel B-17 will not exceed $287, 918 .
14 . Treatment of Parcel B-17 After the Effective
Date.
(a) BART agrees that during the period beginning on
the Effective Date and ending one (1) year
thereafter, BART will not sell or contract to
sell Parcel B-17 except to a person or entity who
owns, controls or has a right to purchase
property adjoining Parcel B-17 with which Parcel
B-17 is designated, under the Specific Plan, to
be assembled for development purposes within a
common development area.
(b) BART agrees that for the period beginning on the
Effective Date and ending on December 31, 1985,
-22-
,r
BART will not convey Parcel B-17 for
consideration in an amount greater than
$1,085,636 .
(c) BART agrees that if, during the period beginning
at the Closing and ending five (5) years
thereafter, BART sells or contracts to sell
Parcel B-17, then promptly following the sale,
BART shall pay to the Agency an amount calculated
as follows:
(i) If the Financing was arranged, the proceeds
of sale of Parcel B-17 in excess of $475, 461 ,
but in no event shall the amount paid to the
Agency pursuant to this subparagraph (c) (i)
exceed $610,175.
(ii) If the Financing was not arranged, the
proceeds of sale of Parcel B-17, but
in no event shall the amount paid to the
Agency pursuant to this subparagraph (c)
(ii) exceed $1,085 ,636.
15. Development of the BART Development
Property.
15.1 Development Agreement.
This Agreement shall constitute a development
agreement between County and BART pursuant to the California
Development Agreement Law, with respect to any and all
development of the BART Development Property primarily for
purposes other than Transit Functions, by BART by private
developers leasing or purchasing all or any portion of the
BART Development Property from BART. BART shall have the
right to develop the BART Development Property, and County
shall have the right to control development of the BART
Development Property (to the extent it is used for purposes
other than Transit Functions) , each in accordance with the
provisions of this Agreement. The parties acknowledge that
BART cannot at this time predict when or the order in which
the BART Development Property will be developed, but BART
agrees to make good faith efforts to obtain development of the
BART Development Property. Subject to its obligation to make
good faith efforts to obtain development of the BART
Development Property and its obligation under Paragraph 16 .3
to impose a schedule upon developers to whom BART sells or
leases the BART Development Property, BART shall have the
right to develop the BART Development Property in phases in
such order and at such times as BART deems appropriate within
the exercise of its subjective business analysis of those
factors determining, in BART' s judgment, the appropriate
course of development of the BART Development Property, so
long as such development is planned as an integrated mixed-use
development as contemplated by the Specific Plan, as in effect
-23-
on the date of this Agreement, and the provisions of this
Agreement.
15 .2 Zoning Conformance to Specific Plan.
The County and BART acknowledge that pursuant to
the County Board of Supervisors ' Order dated April 10, 1984
and Contra Costa County Planning Commission Resolution
15-1984 , the current zoning of the BART Development Property
is a holding zone which does not yet reflect the allowable
land uses, densities or heights set forth in the Specific Plan
in effect as of the date of this Agreement. Concurrent with
the earlier of the County ' s approval of a preliminary
development plan or of a final development plan for all or a
portion of the BART Development Property pursuant to Chapter
84-66 of the County of Contra Costa Codes, or successor
provisions, the County agrees that it shall rezone the BART
Development Property, or that portion of the BART Development
Property for which a preliminary development plan or final
development plan has been submitted, to P-1 planned unit
district zoning (as such zoning is described in Chapter 84-66
of the County of Contra Costa Codes) , or to zoning which has
substantially the same requirements as the P-1 zoning in
effect in Contra Costa County as of the date of this
Agreement, in order that the zoning affecting the BART
Development Property be brought into conformance with the
Specific Plan.
15 .3 Approved Land Use Standards.
The standards with respect to the uses and height
of development of the BART Development Property shall be those
standards set forth in the Specific Plan and the Redevelopment
Plan, each in effect as of the date of this Agreement (except
that any references in the Redevelopment Plan to "existing
zoning" or "zoning" of the Project Area, shall be deemed to
mean and ,refer to the land use standards set forth in the
Specific Plan) , and the standard for density of development of
the BART ,Development Property shall be as follows : (i) the
maximum density of nonresidential development shall be
1,265,000 gross square feet of building; (ii) the minimum
density of nonresidential development shall be 600 ,000 gross
square feet of building; and (iii) in addition to any such
nonresidential development, the standard for residential
development of development area 11 of the Specific Plan area
shall be as set forth in the Specific Plan, which residential
development shall be in addition to the nonresidential
development permitted in development area 11 (all the
foregoing standards for development are the "Approved Land Use
Standards") . Notwithstanding the above minimum density
standard, the County shall not disapprove an application for
development of the BART Development Property which provides
for less than 600 ,000 gross square feet of building if the
project proposed in the application will not make subsequent
development of the balance of the BART Development Property to
a density of at least 600,000 gross square feet of building
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physically infeasible. For the purpose of this Agreement, the
term "gross square feet of building" shall be the gross square
feet of floor area in a building measured from outside wall to
outside wall of the building, including any balcony which is
necessary . to the function of the building, but excluding areas
devoted to the parking or unloading of vehicles.
15 .4 Development in Excess of Approved Land Use
Standards.
The County and BART acknowledge that the maximum
density set forth in Paragraph 15 .3 is less than that
permitted for the BART Development Property under the Specific
Plan. Therefore, County and BART agree that this Agreement
and the Approved Land Use Standards shall not preclude
application to the County for development of the BART
Development Property to a density in excess of the maximum
density set forth in Paragraph 15.3. The County and BART
further agree that if such application is made, the County
shall have no obligation under this Agreement with respect to
the approval or disapproval of any such application, the
standards determining approval or disapproval of such
application, or the conditions or requirements imposed as a
condition of approval 'of such application.
15.5 Permits to Implement Development.
Each phase of development of the BART Development
Property for other than Transit Functions shall be carried out
pursuant to an appropriate use permit, or other permit or
approval required for development, construction or use of the
BART Development Property, applied for under the County
ordinances applicable at the time the application for permit
or approval is made. Provided that the application for such
use or other permit or approval is in compliance with the
Approved Land Use Standards of this Agreement and otherwise
complies with the then applicable County ordinances and
application standards regarding the contents of applications,
County shall accept such application and process it in
accordance with the procedures specified therefor in its
ordinances. The County shall not deny any permit or approval
for reasons related to the proposed use, density or height of
the project described in any such application if the use,
density and height of the project conforms with the Approved
Land Use Standards, and the County shall not condition any
such. permit or approval so as to require a change or
alteration with respect to the standards for uses, density and
height of development from the Approved Land Use Standards.
15. 6 Future Design Review.
In order to implement the Approved Land Use
Standards, BART shall follow the applicable design review
procedures in effect under the County ordinances applicable at
the time the application for permit or approval is made, and
the County ' s review of BART' s applications shall be made based
on the applicable policies embodied in the County General
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Plan, and Specific Plan and other policies relating to design
review.
15.7 CEQA Review.
In its review and approval of the EIR, the County
undertook the required analysis of the environmental effects
which would be caused by development of the Station Area
(including the BART Development Property) pursuant to and in
accordance with the designated land uses of the Specific
Plan. The parties agree that the County has examined the
potential adverse impacts associated with drainage, sewer
capacity, pedestrian circulation, landscaping and open space
needs and vehicular traffic conditions within the Station
Area, and vehicular traffic conditions within the County, and
the effects of development of the BART Development Property in
accordance with the Approved Land Use Standards and the
Specific Plan. The parties further agree that in the EIR and
Specific Plan the County determined those mitigation measures
which would eliminate, or reduce to an acceptable level, the
adverse environmental impacts of development of the Station
Area pursuant to and in accordance with the Specific Plan,
including the impacts of development of the BART Development
Property pursuant to and in accordance with the Approved Land
Use Standards. Certain of those mitigation measures have and
will be imposed in connection with the development of the BART
Development Property through the terms hereof relating to in
.lieu dedication for roadway purposes, sewer relocation,
payment of development fees, conveyance of the New Dedicated
Easements, and Construction Work, and as conditions to the
issuance of permits and other approvals contemplated under
this Agreement. Because of these mitigation measures and the
fact that the EIR anticipated and analyzed the adverse
environmental impact of development of the BART Development
Property in accordance with the Approved Land Use Standards,
the County has found that the EIR has considered the impact of
development of the BART Development Property in accordance
with the Approved Land Use Standards, and that no subsequent
or supplemental environmental impact reports are necessary or
required under CEQA in order for the County to enter into or
undertake the terms and conditions of this Agreement, provided
that the mitigation measures provided for in the EIR are
implemented and assured of fulfillment through the review and
approval of BART 's applications for permits and other approval
of its planned development. As a result, the County shall not
require a subsequent or supplemental environmental impact
report to be prepared in connection with any portion of the
development of the BART Development Property for other than
Transit Functions in accordance with the Approved Land Use
Standards , unless at the time an application for a permit or
other approval is submitted such a report is legally required
by CEQA in connection with potential impacts not already
considered in the EIR. The County shall not be deemed to have
breached or violated this Paragraph 15 .7 if it is required by
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court order to perform additional environmental analysis or
prepare additional reports under CEQA.
15 .8 Application of New Rules, Regulations or
Policies.
The provisions of this Agreement shall not
prevent the County from applying new rules , regulations or
policies to the development of the BART Development Property
or from denying or conditioning permits or approvals on the
basis of such new rules, regulations or policies, provided
that such new rules, regulations or policies do not conflict
with the Approved Land Use Standards. For purposes of this
Paragraph 15 .8 , a rule, "regulation or policy which conflicts
with the Approved Land Use Standards shall include, but not be
limited to: a moratorium on development; a quota or other
growth restriction which limits the amount of development
within any designated period of time in the Station Area, the
Project Area or the County; and an application or
interpretation of setback requirements which when combined
with height restrictions have the effect of reducing the
density of development on the BART Development Property to a
level below the maximum for nonresidential development set
forth in subparagraph 15.3; provided, however, that such .
setback requirements are not imposed for reasons related to
fire safety.
15.9 In Lieu Dedication.
County acknowledges that BART is conveying the
BART Dedication Property to the Agency without charge, that
those parcels are necessary for the construction of public
roads around the BART Development Property as part of the
mitigation measures recommended by the EIR, and that those
parcels would otherwise be required to be dedicated to the
County as a condition of County approval of any future
development of the BART Development Property for other than
Transit Purposes. BART and County further acknowledge that
the conveyance of BART Dedication Property to the Agency shall
satisfy the County 's dedication requirements with respect to
development of the BART Development Property up to the maximum
density standards set forth in Paragraph 15. 3, and shall
preclude the County from requiring other dedications of
property as a condition of approval of development of the BART
Development Property except as such dedications may be made
necessary by the specific design features of development
proposed on the BART Development Property.
15.10 Transfer of Development Potential.
BART shall be permitted to transfer development
potential associated with the BART Development Property to the
extent any such transfer of development potential is permitted
pursuant to the Specific Plan in effect on the date of this
Agreement, and if BART so elects, also transfer the Credits
toward development fees associated therewith. Transfer of the
first 123,000 square feet of development potential associated
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with the BART Development Property shall not reduce the
maximum density of nonresidential development on the BART
Development Property as set forth in Paragraph 15.3. Any
transfer in excess of 123,000 square feet of development
potential shall for all purposes under this Agreement, reduce
the maximum density of nonresidential development on the BART
Development Property on the basis of a one square foot
reduction in maximum density for each square foot of
development potential transferred. If BART transfers less
than 123,000 square feet of development potential then BART
may increase the density of nonresidential development of the
BART Development Property to 1 ,265,000 gross square feet of
building plus the difference between the amount of development
potential - transferred and 123 ,000 square feet, and the
Approved Land Use Standards shall be increased accordingly.
16 . Periodic Review of Compliance.
16.1 Annual Review.
County and BART shall annually review this
Agreement and all actions taken pursuant to the terms of this
Agreement with respect to the development of the BART
Development Property. Such annual review shall be undertaken
in accordance with the provisions of this Paragraph 16.
16 .2 BART' s Submission.
Not less than thirty (30) , nor more than sixty
(60) , days prior to the first anniversary date of the
Effective Date, and each anniversary date thereafter, BART
shall submit to the Zoning Administrator of the County a
letter setting forth BART' s good faith compliance with the
terms and conditions of this Agreement. Such letter shall be
accompanied by such documents and other information as may be
reasonably necessary and available to BART to enable the
Zoning Administrator to undertake his or her annual review of
BART' s good faith compliance with the terms of this Agreement,
and shall also state that such letter is submitted to County
pursuant to the requirements of Section 65865.1 of the
California Development Agreement Law.
16 .3 Schedule for Development.
If BART enters into any agreement for the
development of any portion of the BART Development Property (a
"BART/developer agreement") , BART shall obligate the developer
to develop the portion of the BART Development Property to
which the BART/developer agreement pertains on a reasonable
schedule. A schedule shall be deemed reasonable if it is
approved in writing by the Zoning Administrator of the County
or if it obligates the developer to commence construction of
improvements within three (3) years following the date of the
BART/developer agreement, to complete construction of any
improvements within two (2) years following commencement of
construction of such improvements or such longer period of
time as may be reasonably necessary given the magnitude and
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l:
nature of ,the improvements, and, if such development is to be
carried out in phases, to commence construction of any
subsequent phase within three (3) years following completion
of the previous phase of development. Once BART has entered
into such a BART/developer agreement which obligates the
developer to develop on a reasonable schedule, then such
schedule shall thereafter be the standard by which compliance
with this Paragraph 16 shall be measured with respect to
commencement and completion of construction on that portion of
the BART bevelopment Property to which the BART/developer
agreement pertains.
16. 4 Finding of Compliance.
The Zoning Administrator shall review BART's
submission to ascertain whether BART has complied in good
faith with the terms of Paragraphs 15, 16 and 18 of --this
Agreement. Upon request of the Zoning Administrator, BART
shall furnish such additional documents or information as may
be reasonably required and available to BART to enable the
Zoning Administrator to make and complete his or her review
hereunder. The Zoning Administrator ' s determination hereunder
shall be made within thirty (30) days after the submission by
BART of the required material hereunder. BART shall be
permitted an opportunity to be heard orally or in writing
before the Zoning Administrator regarding such performance and
before the Zoning Administrator makes a determination or
referral. If the Zoning Administrator finds good faith
'compliance by BART with the terms of Paragraphs 15, 16 and 18
of this Agreement, he or she shall issue a certificate of
compliance, certifying BART's good faith compliance with the
terms of Paragraphs 15 , 16 and 18 of this Agreement through
the period of the applicable annual review. Such certificate
of compliance shall, if BART so requests, be in recordable
form and shall contain such information as may be necessary in
order to impart constructive record notice of the finding of
good faith compliance hereunder. BART shall have the right to
record the certificate of compliance in the Official Records
of the County of Contra Costa. At least ten (10) days prior
to making, his or her determination hereunder, the Zoning
Administrator shall provide to BART copies of all staff
reports and other information not subject to legal privileges
concerning BART's compliance and the determination proposed by
the Zoning Administrator.
16.5 Finding of Noncompliance.
If the Zoning Administrator, on the basis of
substantial evidence, finds that BART has not complied in good
faith with the terms of this Agreement, he or she shall
specify in writing to BART the respects in which BART has
failed to comply. The Zoning Administrator shall also specify
in writing a reasonable time for BART to meet the terms of
compliance, which time shall be not less than thirty (30)
days , and any proposed modification or termination of this
Agreement because of BART's noncompliance.
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16 .6 Review by County Board of Supervisors.
Before this Agreement is modified or terminated
on grounds of BART's noncompliance, the County Board of
Supervisors shall hold a public hearing no earlier than thirty
(30) days following the date of mailing of the written notice
specified in Paragraph 16 .5 above. At such hearing, BART
shall be entitled to submit evidence and address all the
issues raised in the notice of noncompliance or otherwise..
BART' s evidence may be in writing or may be taken orally at
the hearing before the County Board of Supervisors, or both.
If, after receipt of any written response of BART, and after
considering the evidence at such public hearing, the Board of
Supervisors finds and determines on the basis of substantial
evidence that BART has not complied in good faith with the
terms and conditions of Paragraphs 15, 16 or 18 of this
Agreement, then the Board of Supervisors shall specify to BART
the respects in which BART has failed to comply, and shall
also specify a reasonable time for BART to meet the terms of
compliance, which time shall not be less than thirty (30)
days. If, the areas of noncompliance specified by the Board of
Supervisors are not perfected within such time limits
prescribed, then the Board of Supervisors may take action to
terminate or modify the provision of Paragraphs 15, 16 and 18
of this Agreement after permitting BART a reasonable
opportunity to present evidence orally or in writing as to
whether or not the areas of noncompliance have been
perfected.
16 .7 Miscellaneous Requirements in Connection
with Annual Review.
The issuance of a certificate of compliance by
the Zoning Administrator, or the direction of or the
confirmation by the Board of Supervisors of the issuance of a
certificate of compliance shall conclude the review for the
applicable period, and such determination shall be final and
conclusive up to and including the date of the annual review.
The County may impose a fee or charge to reimburse it for the
cost of undertaking the annual review provided such fee or
charge is applied on a uniform basis to all such reviews.
17. Agency Approvals.
,17. 1 Redevelopment Agency Owner Participation
Agreement.
Agency and BART agree that this Agreement shall
constitute an owner participation agreement between the Agency
and BART and that the development of the BART Development
Property for purposes other than Transit Functions in
conformance with the provisions of this Agreement shall
constitute conformance with the Redevelopment Plan. By
execution of this Agreement the Agency waives any right it may
have to acquire the BART Development Property or portion
thereof by exercise of the Agency's power of eminent domain.
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17.2 Future Agency Review.
Agency agrees that County permits and approvals
of development of the BART Development Property shall
constitute Agency approval of such development under the
Redevelopment Plan and that no additional Agency approvals
shall be necessary so long as such development conforms to the
provisions of the Redevelopment Plan as of the date of this
Agreement except that, as provided in Paragraph 15 .3, any
references in the Redevelopment Plan to "existing zoning" or
"zoning" of the Project Area shall be deemed to mean and refer
to the land use standards set forth in the Specific Plan in
effect as of the Effective Date. BART may request in writing
that the Agency certify in writing that a proposed development
on the BART Development Property conforms to the Redevelopment
Plan. The Agency shall respond to such a request within
thirty (30) days of receipt of such a request, and if a
response is not timely received, such conformity shall be
deemed to exist.
18 . Development Fees and Development Fee
Credits.
18 .1 Development Fees.
The parties acknowledge and agree that to
mitigate certain environmental impacts identified in the EIR
and to achieve the goals and implement the policies of the
Specific Plan, a Contra Costa Assessment District 1983-1 was
formed to enable the County to raise funds to defray the cost
of needed infrastructure related to the Public Improvements,
that participants in this Assessment District are deemed to
have prepaid development fees with respect to the Public
Improvements, and that entities or persons not participating
in the Assessment District would be required to pay
development fees to cover their pro rata or benefit share of
the Public Improvements when they proceed with actual
development of their property within the Station Area. The
parties further acknowledge and agree that BART did not
participate in the Assessment District, and that the
development fee payable with respect to non-residential
development of the BART Development Property shall be $3 .24
for each gross square foot of building and the development fee
payable with respect to residential development of the BART
Development Property shall be $2, 080 for each residential
unit. Such fee shall be subject to increases every twelve
(12) month period beginning January 1 , 1986 based on increases
in the California Department of Transportation Summary-Highway
Construction Index; provided, however, that before BART shall
be obligated to pay any such increased fee, BART shall be
entitled to apply its Credits to offset development fees at
the rates set forth in the preceding sentence until such time
as the amount of the Credits is reduced to zero. Development
fees shall be based upon the actual amount of development
undertaken rather than the maximum amount that could be
undertaken. Other than the annual increases specified above,
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the County shall not increase such fee with respect to
development of the BART Development Property, but may impose
new fees for other improvements or services generated by the
development of the BART Development Property not covered by
the development fee if such new fees apply to comparable
development. For the purposes of this Paragraph 18 .1 , the
purpose of the development fee is to defray the costs of the
Public Improvements, the costs of preparing the Specific Plan,
and the engineering and administrative costs associated with
preparation of the Specific Plan and with construction of the
Public Improvements in the Station Area.
18 .2 Calculation of Development Fee Credits .
The parties agree that the Credit will be
calculated in a different manner depending on whether the
Financing occurs. Therefore, this Agreement in Paragraphs
18.3 and 18. 4 sets forth alternative provisions for
calculation of the Credit depending upon whether or not the
Financing is arranged.
18 .3 Credit If Financing Arranged.
If the Financing is arranged on or before the
Financing Date, the Credit shall be the sum of the following
amounts:
(a) The product derived by multiplying the Adjustment
Factor and the amount calculated by subtracting
from the amount of the proceeds of the Financing
the amount of such proceeds which the Agency and
BART have agreed are reasonably allocable to the
cost of construction of the Wayne Drive Extension
(as shown on Exhibit F) , the sanitary sewer
relocation described in Exhibit F, and other
utilities work if such projects are included in
the scope of work to be undertaken with the
proceeds of the Financing; and
(b) The product derived by multiplying the Adjustment
Factor by any amount BART pays the Agency at the
Closing pursuant to Paragraph 9.6 (f) on account
of BART' s sale of Parcel B-17; and
(c) The product derived by multiplying the Adjustment
Factor by any amount BART pays the Agency after
the Closing pursuant to Paragraph 14 (c) (i) on
account of BART's sale of Parcel B-17.
18 . 4 Credit If Financing Not Arranged.
If the Financing is not arranged on or before the
Financing Date, the Credit shall be the sum of the following:
(a) The product derived by multiplying the Adjustment
Factor by the amount of $497 ,834 (which amount
represents the agreed upon value of the BART Road
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Property ($756 ,402) less the sum of the agreed
upon value of the County Conveyance Property
($255 ,268) and fifty percent (50%) of the cost of
certain appraisals paid for by the County and the
Agency prior to the Effective Date) ; and
(b) The product derived by multiplying the Adjustment
Factor by the sum of the agreed upon values (as
set forth in Paragraph 5 . 2) of those parcels
comprising the BART Assemblage Property which are
conveyed to the Agency at the Closing; and
(c) The product derived by multiplying the Adjustment
Factor by any amount BART pays to the Agency at
the Closing pursuant to Paragraph 9 .7 (f) on
account of BART's sale of a parcel comprising the
BART Assemblage Property; and
(d) The product derived by multiplying the Adjustment
Factor by any amount BART pays to the Agency at
the Closing pursuant to Paragraph 9.7 (g) on
account of BART' s sale of Parcel B-17; and
(e) The product derived by multiplying the Adjustment
Factor by any amount BART pays to the Agency
pursuant to Paragraph 12 (c) on account of BART's
sale of a parcel comprising the BART Assemblage
Property after the Closing; and
(f) The product derived by multiplying the Adjustment
Factor by the sum of the agreed upon values (as
set forth in Paragraph 5 .2) of those parcels
comprising the BART Assemblage Property which are
conveyed to the Agency after the Closing pursuant
to Paragraph 12 (d) ; and
(g) The product derived by multiplying the Adjustment
Factor by any amount BART pays to the Agency
pursuant to Paragraph 14 (c) (ii) on account of
BART's sale of Parcel B-17 after the Closing.
18 .5 Application of Credits.
The Credit shall be applied to offset development
fees otherwise due and payable in connection with the
development of the BART Development Property, and shall be
reduced as follows :
(a) If development fees become due in connection with
non-residential development of the BART
Development Property, then on such due date the
Credit shall be reduced by an amount calculated
by multiplying $3 .24 times the gross square feet
of building approved in the development.
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(b) If development fees become due in connection with
residential development of the BART Development
Property, then on such due date the Credit shall
be reduced by an amount calculated by multiplying
$2080 by the number of units approved in the
development.
18 .6 Documentation of Credit.
If there is a reduction or increase in the Credit
pursuant to any provision of this Agreement, then promptly
following the event giving rise to such reduction or increase,
the parties shall execute a document setting forth the amount
of the reduction or increase in the Credit, the event giving
rise to the increase or decrease, and the amount of the Credit
remaining after the reduction or increase. The parties shall
document such changes to the Credit using the form attached
hereto as Exhibit H.
18 . 7 Payment of BART' s Development Fees by
Agency.
Until the Credit has been reduced to zero
pursuant to the provisions of this Paragraph 18 or Paragraph
28 .4 , the Agency shall pay to the County, or make arrangements
to pay the County in the future, the development fees
attributable to the development of the BART Development
Property as such fees become due. If the payment of a portion
of such development fees occurs at a time when the Credit is
reduced to zero, the Agency's obligation under this Paragraph
18 .7 shall extend only to payment of the development fees for
that portion of the development which causes the Credit to be
reduced to zero. County agrees that if the Agency fails to
pay the development fees it is obligated to pay for the
account of BART pursuant to this Paragraph 18 . 7, the County
shall not require BART or its assignee or transferee to pay
such development fees or deny the issuance of any permit on
the grounds that the Agency has failed to pay such fees , it
being the understanding of the County and BART that the Credit
and the conveyances, payment and proceeds of the Financing
giving rise to the Credit represent a present prepayment of
such development fees .
19. Development Fee Credit Attributable to the
Thomas Property.
(a) The parties understand and acknowledge that BART
acquired a portion of the BART Development
Property referred to herein as the Thomas
Property subject to the assessments of Assessment
District 1983-1. BART shall receive credit
against payment of development fees incurred in
connection with development of any portion of the
BART Development Property for residential or
nonresidential use, in the total amount of the
Thomas Property's assessment, which is $313, 200;
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provided, however, that the credit attributed to
the Thomas Property shall not be utilized by BART
pursuant to subparagraph 19 (b) against payment of
development fees incurred in connection with
development of the BART Development Property
until such time as the Credit calculated pursuant
to Paragraph 18. 3 or 18 .4 has been reduced to
zero.
(b) The $313, 200 credit attributed to the Thomas
Property shall be applied to offset development
fees otherwise due and payable in connection with
the development of the BART Development Property,
and shall be reduced as follows:
(i) If the development fees become due in
connection with nonresidential development of
the BART Development Property, then on such
due date the amount of credit shall be
reduced by an amount calculated by
multiplying $3. 10 times the gross square feet
of building approved in the development.
(ii) If the development fees become due in
connection with residential development of
the BART Development Property, then on such
due date the amount of credit shall be
reduced by an amount calculated by
multiplying $1990 by the number of units
approved in the development.
(iii) If the credit or portion thereof is
transferred as provided in subparagraph (c)
below, the amount of the credit shall be
reduced by the amount so transferred.
The parties shall document the reduction in the
amount of the credit provided for in this
subparagraph (b) and subparagraph (c) below in
substantially the same manner as reductions in
the credit are documented pursuant to Paragraph
18.6.
(c) The County understands and acknowledges that BART
acquired the Thomas Property subject to the right
of BART's predecessor to require from BART a
transfer of development potential associated with
the Thomas Property (which transfer is permitted
under the Specific Plan subject to certain
conditions and approvals) , together with a pro
rata share of the credit set forth in
subparagraph (a) associated with the payment of
assessments on the Thomas Property. County
agrees that BART shall have the right to transfer
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development potential associated with the Thomas
Property, together with a pro rata share of the
credit associated therewith, in the ratio which
the amount of development potential transferred
bears to the amount of development potential
remaining on the Thomas Property after said
transfer, to any area within the Specific Plan
Area, if BART provides written assurances in
recordable form acceptable to the County, from
BART and the person or entity owning the property
within the Specific Plan Area for whose benefit
the development potential and associated credit
are being transferred, as to the allocation of
such credit between the BART Development Property
and the property owned by such other person or
entity. The credit allowed to BART under this
Paragraph 19 shall be reduced by the amount of
credit so transferred. BART expressly
understands and agrees that regardless of any
arrangement it might make with such transferee,
the provisions of this Paragraph 19 are not
intended to and shall not be deemed to alter any
rights or obligations with regard to Assessment
District 1983-1 or the payment of assessments
levied by that Assessment District which are a
lien against the Thomas Property.
20. Construction Work.
The Agency and BART agree to undertake the
Construction Work for the existing BART Station parking lot,
access roads to that parking lot, and sanitary sewer
relocation as a cooperative effort. The Agency and BART
contemplate that all or a portion of the Construction Work
will be completed as part of a larger construction project
involving two or more construction contracts that will also
include construction of Oak Road and the widening of that
portion of Treat Boulevard which is adjacent to the BART
Development Property.
20.1 Cost Allocation.
Only that portion of the cost of the Construction
Work attributable to Wayne Drive Extension and the sanitary
sewer relocation as shown on Exhibit F will be allocated to
BART; the remaining costs of construction shall be paid by the
Agency. The costs of construction shall include the costs of
preliminary engineering and costs of construction
engineering. Agency will provide quality control and field
staking through the use of its own materials and forces or
consultants and the costs of such services shall be considered
to be construction engineering costs.
20.2 Approval of Plans and Specifications.
The Agency shall submit all plans and
specifications for the Construction Work to BART for
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approval. BART staff shall review and sign all construction
plan sheets for the Construction Work; BART staff shall review
and approve the specifications. At the time the Agency
submits the plans and specifications for the Wayne Drive
Extension and the sanitary sewer relocation, the Agency shall
also submit a statement of the proposed basis for allocation
of costs between Wayne Drive Extension and sanitary sewer
relocation and any other work the Agency expects to include in
the contract which will include construction of the Wayne
Drive Extension or the sanitary sewer relocation. The basis
of the allocation shall be reasonably related to the expected
costs of construction of the Wayne Drive Extension and the
sanitary sewer relocation as distinguished from the costs of
the remainder of the construction work to be performed under
the contract. BART and Agency shall agree upon the basis for
the cost allocation prior to the Agency's initiation of the
bidding process. At the time the Agency submits the plans and
specifications for the Parking Lot Work (as shown on Exhibit
F) , it shall also provide BART an estimate of the cost of
constructing the Parking Lot Work.
20 .3 Sequence of the Construction Work.
The construction plans prepared by Agency shall
include a sequence for project construction that creates a
minimum of disruption for use of the BART Station parking lot
during the construction period. BART shall approve the
construction sequence as part of its approval of the plans and
specifications .
20. 4 Payment of BART's Cost Allocation.
Agency will bill BART for costs allocated to it
for Wayne Drive Extension and the sanitary sewer relocation as
these costs are incurred and applications for payment have
been received from the contractor. Payment will be due within
thirty (30) days of receipt of a bill. Prior to submission of
such bills , pay estimates will be prepared by the Agency on
the 15th of each month and a copy will be sent to BART with a
cost breakdown for all items of work expected to be paid by
BART. During construction, all paperwork will be completed on
standard -Contra Costa County forms .
20 .5 Provisions Relating to Financing.
Notwithstanding the provisions of Paragraph 20 .4,
BART shall not be obligated to pay any bills for the
Construction Work until ten (10) days after the Financing
Date. In the event the Financing is arranged and the
Financing, as provided in Paragraph 11, provides for funding
of the costs of construction of those portions of the
Construction Work for which BART is obligated to pay pursuant
to Paragraph 20. 2 and 20.4 , the Agency agrees that such costs
will be paid from the proceeds of the Financing rather than
directly by BART. In such event, however, the Agency shall
still provide BART the bills and estimates required pursuant
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to Paragraph 20 .4 despite the fact that the bills will not be
paid by BART.
20 .6 Construction by Agency.
Agency shall construct or cause to be constructed
the Construction Work in accordance with the plans and
specifications approved by BART. Agency shall complete the
preliminary engineering, advertise for bids, award a contract
for construction to the lowest responsible bidder, perform all
construction work and perform all construction engineering and
contract administration. Upon the Agency 's award of a
contract to the lowest responsible bidder, a copy of the
executed construction contract will be sent to BART for
information and accounting purposes. No amendments or
modifications shall be made to a construction contract without
the prior written approval of BART, and no dispute that may
arise regarding any construction contract may be settled
without the prior written approval of BART. Agency shall make
best. efforts to commence construction of the Construction Work
by October 1 , 1985. Once a contract has been awarded which
includes all or a -portion of the Construction Work for which
BART is obligated to pay pursuant to Paragraph 20.2 and 20.4 ,
the Agency and BART shall apply the cost allocation formulas
approved by BART pursuant to Paragraph 20.2 in order to
determine the portion of the contract costs which BART will be
obligated to pay.
20. 7 Contract Documents.
The contract documents shall consist of the
approved plans and specifications, the Caltrans Standard
Specifications, Contra Costa County Standard Specifications,
applicable BART and County Standard Plans, and special
provisions. In addition to other project requirements, the
special provisions will require the successful bidder to
provide insurance complying with the requirements of Exhibit
K, to name BART as an additional insured on any required
insurance certificates and to promise to hold harmless and
indemnify BART from liabilities in the same manner as the
successful bidder is required to hold harmless and indemnify
the Agency and County.
20 .8 Contract Administration.
During the construction phase, the Agency shall
be the sole contact for the construction contractor. BART may
at all times observe and inspect the Construction Work and
direct comments and recommendations concerning such work to
the Agency representative. If BART desires to modify the
scope of any portion of the Construction Work as reflected in
any construction contract, as for example and by way of
illustration, the sequencing of the Parking Lot Work or the
location of any facility installation comprising the
Construction Work, then the Agency shall cooperate with BART
to effectuate the proper modification or Change Order with
respect to the construction contract affected, provided that
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the Agency and BART shall have concurred in any adjustment of
contract time and compensation owing the contractor on account
of the change requested by BART. For all construction of the
Construction Work, the Agency representative, with the
concurrence of BART, shall decide all questions which may
arise regarding:
(a) the interpretation of the plans and
specifications;
(b) the quality or acceptability of the materials
furnished;
(c) the work performed, the manner of the
performance, and the rate of progress of the work;
(d) the contractor' s acceptable fulfillment of the
construction contract; and
(e) compensation.
The decisions of the Agency representative will be
final and he or she shall have the authority to enforce such
decisions.
20 .9 Change Orders.
Subject to the following procedure, the Agency
representative may make such changes in the plans and
specifications as may be required during construction for the
proper completion of the improvements. Any such changes will
be described in a contract change order which will also
specify any adjustment of contract time and the basis of
compensation for the changes. Prior to the preparation of a
contract change order, the Agency representative will discuss
the proposed change order with BART's authorized
representative and reach concurrence regarding the proposed
change. A contract change order form will be sent to BART for
written approval. After a change order has been approved by
BART, it will be signed by the Agency, and the contractor will
then be directed to perform the change order work. The Agency
will send a copy of the final change order to BART.
20 .10 Exception to Change Order Procedure.
BART and Agency recognize that situations may
arise that require the Agency to order the contractor to
perform work prior to the execution of a change order. In
such cases, the Agency representative will discuss the
proposed change with BART's authorized representative and
reach concurrence with BART on the change prior to directing
the contractor to proceed with the work. Following a
direction to proceed, the Agency will then prepare a contract
change order which will be sent to BART for written
concurrence and which will be returned to the Agency. The
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Agency will send a copy of the executed final change order to
BART.
20. 11 Changes for Work Other Than the
Construction Work.
Because the contract or contracts for the
Construction Work may include work in addition to the
Construction Work, BART and Agency anticipate that some change
orders or other contract modifications or amendments may
pertain to work other than the Construction Work. Therefore,
Agency and BART agree that notwithstanding the provisions of
Sectons 20. 6 , 20 .9 and 20 . 10, BART's review, concurrence or
approval shall not be required for any change order, contract
modification or change in plans or specifications which:
.(a) pertains only to work other than the Construction
Work;
(b) does not affect the
quality of construction of
the Construction Work; and
. (c) does not increase the portion of the cost of the
Construction Work BART is obligated to pay.
`20.12 Final Inspection.
Upon substantial completion of the contract work
in each such construction contract a final inspection will be
carried out by a BART representative, the contractor and
Agency representatives. Following the inspection, the Agency
and BART 'shall agree upon a "punch list" of items of work to
be completed. Upon satisfactory completion of all "punch
list" work, the Agency, with BART's concurrence, shall
authorize final acceptance of the contract work in such
construction contract as complete. Upon final acceptance, the
Agency and BART will immediately assume maintenance
responsibilities for the improvements on their respective
properties. Upon substantial completion of the contract work
performed under the construction contract which contains the
last portion of the Construction Work to be performed pursuant
to this Paragraph 20, the Agency and BART shall execute a
written memorandum confirming that substantial completion of
the Construction Work has occurred. If the Agency and BART
fail to execute any such written memorandum, then the date the
"punch list" is given to a contractor with respect to the
construction contract containing the last portion of the
Construction Work, shall . be the date upon which substantial
completion of the Construction work shall be deemed to have
occurred.
20. 13 Outside Sources of Funding.
The parties shall make good faith efforts to
obtain grants from the State of California Department of
Transportation or other governmental sources to pay for the
costs of constructing the Construction Work; provided,
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however, that the parties shall not be obligated to accept any
such grant if it is reasonably foreseeable that acceptance of
such grant would materially delay commencement of construction
of the Construction Work beyond the date specified in
Paragraph 20.6 . Unless otherwise specified pursuant to the
terms of any such grant, the proceeds of any grant shall be
applied in the following manner:
(a) First, to pay BART's share of the cost of
constructing the Construction Work;
(b) Second, to pay Agency 's share of the cost of
constructing the Construction Work.
20. 14 Grant of Easements.
Upon completion of all the Construction Work or
such earlier time as the parties may agree, Agency shall grant
to BART or cause the County to grant to BART a perpetual
non-exclusive easement for pedestrian and vehicular ingress
and egress appurtenant to the BART Development Property over
the Jones Road access road to the BART Development Property,
as shown on Exhibit A-9, and BART shall grant to the Agency
the New Dedicated Easements as shown in Exhibit A-7. The
easements shall be in a recordable form reasonably acceptable
to the Agency and BART.
21. BART Loan to Agency for the Parking Lot
Improvements.
21. 1 Agency Request for Loan.
If the Agency so elects BART shall loan to the
Agency the Agency' s share of those costs of the construction
of the Construction Work allocable to Parking Lot Work which
are in excess of the first $350,000 of such construction
costs, but in no event shall such loan exceed $500,000. The
loan shall be disbursed by BART within 30 days of receipt of a
written request from the Agency for disbursement; provided,
however, that (i) the Agency shall not make such request until
the Agency and/or County has expended at least $350 ,000 for
construction of the Parking Lot Work and have provided written
evidence of such expenditure to BART in form and substance
satisfactorily to BART, and (ii) the Agency shall time such
requests so that BART is not obligated to make a disbursement
of funds to the Agency (each a "Disbursement" and collectively
the "Disbursements") , more than five (5) days prior to the
date the Agency expects to expend such funds for payment of
the costs of construction of the Construction Work. BART
shall have no obligation to loan any amount to the Agency
until such time as the Agency has provided written evidence to
BART that the Repayment Agreement between the Agency and the
County dated December 4 , 1984 has been amended to provide that
the Agency 's pledge of tax increments to the County under that
Repayment Agreement is, with respect to tax increment
generated by the BART Development Property, subordinate to the
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Agency's obligation to repay the loan BART makes pursuant to
this Paragraph 21 . For the purposes of this Paragraph 21. 1
and for the purposes of Paragraphs 21 .2 and 21 .4, the term
"tax increments" shall refer to the funds paid to the Agency
pursuant .to California Health and Safety Code Section 33670 .
.21 . 2 Loan Terms.
The loan shall be evidenced by a note executed
substantially in the form attached as Exhibit J by the Agency
when the ,first funds are disbursed to it. The amounts loaned
to the Agency shall bear simple interest from the date
disbursed at the rate of 10. 5% per annum. Beginning on the
date which is six (6) months from the date of the first
disbursement, interest only 'shall be paid semi-annually on all
amounts outstanding until such time as amortized payments of
principal and interest are due and payable as hereinafter
specified. Any interest not paid within thirty (30) days of
the due date shall be added to the principal amount of the
loan and shall bear like interest thereafter. On the date of
substantial completion of the Construction Work, as such date
is determined pursuant to Paragraph 20.12, principal together
with interest due thereon shall be amortized over a five (5)
year period, and commencing on the date which is six (6)
months following the date of substantial completion of the
Construction Work, the Agency shall make ten (10) semi-annual
payments of such amortized principal and interest until the
entire unpaid principal and interest on the loan has been
paid. The Agency may prepay all or part of the loan without
penalty or charge. Any payment shall be applied first to
reduce accrued interest which has not yet been added to
principal and then to reduce the principal amount of the loan
in reverse order of maturity. Notwithstanding the payment
schedule set forth above in this Paragraph 21. 2 (i) in the
event the Agency sells bonds secured by a pledge of tax
increments payable to the Agency, the Agency shall use at
least twenty percent (20%) of the proceeds of such bonds to
repay the principal then outstanding on the loan and any
interest then owing on the loan; and (ii) in the event the
Agency receives tax increments generated from sale, lease or
development of the BART Development Property, it shall use
such tax increments to repay the principal then outstanding on
the loan and any interest then owing on the loan.
'21 .3 Repayment of Loan From Financing Proceeds.
Notwithstanding the provisions of Paragraph 21.2 ,
if the Financing referred to in Paragraph 11 is arranged prior
to the Financing Date, then, within thirty (30) days after the
date the proceeds of such Financing are available to the
Agency, the Agency shall repay to BART the entire principal
amount of the loan then outstanding and any accrued interest.
In addition, if the Financing is arranged prior to the
Financing Date, then notwithstanding the provisions of
Paragraph- 21 .1, BART shall have no further obligation under
this Paragraph 21 to loan any amount to the Agency.
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21 .4 Use of Tax Increments To Pay Loan.
Notwithstanding any other provision of this
Paragraph 21 , to the extent the Agency is obligated by this
Paragraph' 21 to make payments on the loan from tax increments,
the Agency shall be obligated to make such payments on the
loan only' from the tax increments paid to the Agency and only
to the extent such funds are available after payment of the
following,: (i) principal, interest and any other payment
required on any bonds issued by the Agency after July 31 ,
1985 , which are secured by a pledge of tax increments and
which do not exceed a principal amount of $2,500,000, and (ii)
principal and interest required under the terms of that
certain Repayment Agreement dated December 4 , 1984 between the
County and the Agency, as modified per the requirements of
Paragraph 21 . 1 . After the Effective Date and for as long as
any principal and interest on the loan remains unpaid, the
Agency shall not pledge as security for any other loans or
bonds, the tax increment which is generated from lease, sale
or development of the BART Development Property, unless the
Agency, in conjunction with obtaining such loan or selling
such bonds , makes irrevocable arrangements to provide that
proceeds of such loans or bonds or a portion thereof will be
used to pay all unpaid principal and interest on the loan made
pursuant to this Paragraph 21 as soon as such proceeds are
available to the Agency.
22. Utilities.
In undertaking or causing construction or
reconstruction of water, sewage, gas, electric and telephone
facilities under, along or over any public street for the
benefit of all real property owners within the Project Area,
Agency and County shall assure that such facilities will have
adequate capacity to serve development on the BART Development
Property in accordance with the Approved Land Use Standards,
and Agency shall, at it sole cost, provide stubs for storm and
sanitary sewer drains at the locations indicated in Exhibit
G. BART acknowledges and agrees that any utility facility
stubs and laterals other than such stubs for storm or sanitary
sewer drains will be designed, constructed and installed at
BART's own expense.
23. Right of Entry and Indemnification.
BART hereby grants the Agency and/or County and
their respective contractors or subcontractors a license to
enter upon the BART Development Property for the purpose of
carrying ,out the work specified in Paragraphs 20 and 22 and to
enter the BART Dedication Property and BART Road Property for
the purpose of construction of public improvements in
accordance with this Agreement on that Property prior to the
Closing. Agency or County shall give BART five (5) days prior
written notice before entering the property. Agency and
County shall jointly and severally assume responsibility and
liability for all damages , loss, death or injury of any kind
or nature whatsoever, whether to persons or property, that is
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caused by or results from or in connection with any act,
action, neglect, omission or failure to act when under a duty
to act, on the part of the Agency and/or County or any of
their officers, agents, servants, employees , contractors or
subcontractors in the performance of the work for which the
right of entry is given. Agency and County shall jointly and
severally defend, indemnify, and hold BART, its directors,
officers, agents and employees, harmless from and against all
claims, demands, suits, losses, damages, injury, penalties and
liability, direct or indirect (including any and all costs and
expenses in connection therewith) , incurred by reason of any
act, or failure to act of County and/or Agency, their
officers, agents, employees, contractors and/or
subcontractors, or any of them, under or in connection with
this right of entry and the performance of the work for which
the right of entry is given; the County and Agency agree at
their own cost, expense and risk to defend any and all claims,
actions, suits, or other legal or administrative proceedings
brought or instituted against BART, its directors, officers,
agents and employees, or any of them, arising out of this
right of entry and the performance of the work for which the
right of entry is given, and to pay and satisfy any resulting
judgments,
24. Abandonment of County Right of Way.
Promptly following completion of construction of
the new Oak Road adjacent to the BART Development Property,
County, in accordance with applicable Laws, shall abandon and
vacate its rights over the County Right of Way Vacation Area
at its own cost and expense and without reservation of future
rights. County shall take whatever actions are required by
Law (including enactment of appropriate resolutions by the
County Board of Supervisors) and execute such documents and
instruments as may be necessary to effectuate such abandonment
and transfer of all of County' s right, title and interest
thereto to BART. In addition, to enable BART to proceed with
development of the BART Development Property, Agency and
County shall assist BART in seeking abandonment of Contra
Costa County Flood Control District and Central Contra Costa
County Sanitary District easements over the BART Development
Property.
25 . Notices.
Any notice required or permitted to be given
under this Agreement shall be in writing and hand delivered or
mailed as registered or certified mail, postage prepaid,
return receipt requested, or by Express Mail and addressed as
follows:
If to BART: BART
800 Madison Street
P.O. Box 12688
Oakland, CA 94604-2688
Attn: Director of Joint Development
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If to County Contra Costa County Redevelopment
or Agency : Agency
651 Pine Street, 11th Floor
Martinez , CA 94553-1291
Attn: Executive Director
or such other address as either party may from time to time
specify in writing to the other. All notices shall be
effective on the date of receipt.
26 . Permitted Delays.
In addition to any specific provision of this
Agreement, performance by any party of its obligations
hereunder (other than its conveyancing obligations under
Paragraphs 3 through 9) , shall be excused during any period of
delay caused at any time by reason of acts of God or civil
commotion, riots, strikes, picketing, or other labor disputes,
shortage of materials or supplies, or damage to work in
process by reason of fire, floods, earthquake, or other
casualties, restrictions imposed or mandated governmental or
quasi-governmental entities, enactment of conflicting Laws
(including, without limitation, new or supplementary
environmental regulations) , litigation, acts or neglect of the
other party, or any other cause beyond the reasonable control
of a party. Each party shall promptly notify the other ,
parties of any delay hereunder as soon as possible after the
same has been ascertained. The term of this Agreement shall
be extended by the period of any delay under this Paragraph
26.
27. Supersedure by Subsequent Laws.
If any Law made or enacted after the Effective
Date prevents or precludes compliance with one or more
provisions of this Agreement, then the provisions of this
Agreement shall, to the extent feasible, be modified or
suspended as may be necessary to comply with such new Law.
Immediately after enactment of any such new Law, the parties
shall meet and confer in good faith to determine the
feasibility of any such modification or suspension based on
the effect such modification or suspension would have on the
purposes and intent of, and obligations under, this
Agreement. BART, the County or the Agency shall have the
right to challenge the new Law preventing compliance with the
terms of this Agreement, and, in the event such challenge is
successful , this Agreement shall remain unmodified and in full
force and: effect, except that the term shall be extended by
such challenge pursuant to Paragraph 26 .
28 . Events of Default; Remedies; Termination;
Attorneys Fees.
28. 1 Events of Default.
Subject to any extensions of time by mutual
consent in writing, and subject to the provisions of Paragraph
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26 regarding permitted delays, any failure by any party (a
"Defaulting Party") to perform any material term or provision
of this Agreement for any reason whatsoever shall constitute
an Event of Default, (i) if such Defaulting Party does not
cure such failure within thirty (30) days following notice of
default from the other party, where such failure is of a
nature that it can be cured within such thirty (30) day
period, or (ii) if such failure is not of a nature which can
be cured within such thirty (30) day period, the Defaulting
Party does not within such thirty (30) day period commence
substantial efforts to cure such failure, or thereafter does
.not within a reasonable time prosecute to completion with
diligence and continuity the curing of such failure. Any
notice of default given hereunder shall specify in detail the
nature of the failure in performance which the noticing party
claims constitutes the Event of Default and the manner in
which such Event of Default may be satisfactorily cured in
accordance with the terms and conditions of this Agreement.
During the time periods herein specified for cure of a failure
of performance, the Defaulting Party shall not be considered
to be in default for purposes of termination of this
Agreement, institution of legal proceedings with respect
thereto, or issuance of any permit with respect to the
development of the BART Development Property. This Paragraph
28 .1 shall not apply to an Event of Default which arises
because of a failure to perform or default by BART with
respect to provisions of Paragraph 15 , 16 or 18 of this
Agreement and instead the provisions of Paragraph 16 shall
apply to BART' s failure to perform or default with respect to
provisions of Paragraph 15, 16 and 18 of this Agreement.
28.2 Remedies.
Upon the occurrence of any Event of Default, a
nondefaulting party shall have the right, in addition to other
rights and remedies available at law, in equity or pursuant to
this Agreement, to (i) bring any proceeding in the nature of
specific performance, injunctive relief or mandamus, and/or
(ii) bring any action at law or in equity as may be permitted
by Law or this Agreement in order to recover all damages
necessary to compensate the nondefaulting party for all the
detriment proximately caused by the Defaulting Party's failure
to perform its agreements, obligations or undertakings
hereunder, or otherwise arising out of the Event of Default,
or which in the ordinary course of things would be likely to
result therefrom. In addition, upon the occurrence of an
Event of Default, the nondefaulting party or parties shall
have the right to terminate this Agreement, but any such
termination shall not affect such party or parties ' right to
seek compensatory damages on account of the Event of Default
for which this Agreement has been terminated.
28 .3 Limitation on Damages.
Notwithstanding the provisions of Paragraph 28 .2 ,
no party to this Agreement shall be entitled to monetary
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damages by reason of another party's breach, default or
failure to perform with respect to the provisions of
Paragraphs 15 , 16 , 17 and 18 of this Agreement, provided,
however, that this Paragraph 28 .3 shall not limit the remedy
provided BART pursuant to Paragraph 28.4 , BART's right to sue
for a refund or reimbursement of development fees or any
remedy the County may have against the Agency or the Agency
may have against the County regarding calculation or payment
of the Credit under Paragraph 18 .
28 .4 Special Remedy of Reimbursement.
(a) The parties acknowledge that the BART Dedicated
Property was conveyed by BART in partial
consideration for the performance of the
convenants of the County and the Agency contained
in Paragraphs 15, 16 , 17 and 18 of this
Agreement, and that any reduction in density on
the BART Development Property from that permitted
in Paragraph 15 as part of the Approved Land Use
Standards, from any cause (including without
limitation breach of this Agreement by the County
or the Agency, a subsequently enacted Law or the
unenforceability of this Agreement) , other than
BART's own action, will result in the unjust
enrichment of the Agency and the County and in
BART' s having conveyed land for benefits and
consideration not received. Therefore, Agency
and BART agree that, if within ten (10) years of
the Effective Date, the allowable density of
development on the BART Development Property is
reduced for any reason to a level lower than
1, 265,000 square feet of nonresidential
development, then BART shall be entitled to
receive a refund within ten (10) days after BART
submits a claim of refund to the Agency. Such
refund shall be equal to the principal amount (as
calculated below) plus interest on the principal
amount of ten and one half percent (10.5%) per
annum compounded semiannually from the date of
the Closing until the refund is made; provided,
however, that in no event shall the amount of the
refund calculated pursuant to this subparagraph
28 .4 (a) exceed the amount of $3 ,102,912;
(b) The principal amount referred to above shall be
calculated by multiplying $3.20 times the number
of square feet by which the permitted density of
nonresidential development on the BART
Development Property is reduced below 1,265 ,000
square feet.
(c) When the refund is made to BART, the Credit to
which BART may thereafter be entitled pursuant to
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Paragraph 18 shall be decreased by the principal
amount of the refund calculated pursuant to
subparagraph 28 .4 (b) .
(d) The provisions of this Paragraph 28.4 shall
survive the termination of this Agreement by any
party or for any cause.
!(e) The Agency acknowledges that one of the sources
which may be used to make a refund required to be
paid to BART by the Agency, pursuant to this
Paragraph 28 .4 may, subject to the Agency's
pledge of tax increments to secure its bonds or
other debt instruments, be tax increments or the
proceeds of bonds secured by tax increments.
(f) The County and BART agree that if the obligation
of the Agency to pay a refund to BART pursuant to
this Paragraph 28.4 arises because of a voluntary
action taken by the County, then the County shall
be jointly and severally liable with the Agency
to pay such refund to BART.
28.5 Waiver; Remedies Cumulative.
Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by any
other panty, irrespective of the length of time for which such
failure continues, shall not constitute a waiver of such
party 's rights to demand strict compliance by such other party
in the future. No waiver by a party of an Event of Default
shall beeffective or binding upon such party unless made in
writing by such party, and no such waiver shall be implied
from any omission by a party to take any action with respect
to such Event of Default. No express written waiver of any
Event of Default shall affect any other Event of Default, or
cover any other period of time, other than any Event of
Default and/or period of time specified in such express
waiver. One or more written waivers of an Event of Default
under any provision of this Agreement shall not be deemed to
be a waiver of any subsequent Event of Default, and the
performance of the same or any other term or provision
contained in this Agreement. Except as provided in Paragraph
28 .3, all of the remedies permitted or available to a party
under this Agreement, or at law or in equity, shall be
cumulative and not alternative, and invocation of any such
right or remedy shall not constitute a waiver or election of
remedies with respect to any other permitted or available
right or ,remedy.
28.6 Litigation Expenses.
If any party brings an action or proceeding
(including, without limitation, any cross-complaint,
counterclaim, or third-party claim) against any other party by
reason of an Event of Default, or otherwise arising out of
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this Agreement, the prevailing party in such action or
proceeding shall be entitled to its costs and expenses of
suit, including but not limited to reasonable attorneys '
fees . If' any party is required to initiate or defend any
action or proceeding with a third person or entity (including,
without limitation, any cross-complaint, counterclaim or third
party claim) because of any other party's commission of an
Event of Default and such initiating or defending party is' the
prevailing party in such action or proceeding, then such party
shall be entitled to reasonable attorneys ' fees from the other
party. Attorneys ' fees shall include attorneys ' fees on any
appeal, and, in addition, a party entitled to attorneys ' fees
shall be entitled to all other reasonable costs and expenses
incurred in connection with such action.
28 .7 Actions by a Third Party.
If any action or proceeding is instituted by any
third person challenging the validity of any provision of this
Agreement or any action or decision taken or made hereunder,
the parties shall cooperate in defending such action or
proceeding.
28 .8 Effect of Court Action.
If any court action or proceeding is brought by
any third person or entity to challenge this Agreement, or any
permit or approval required from the County or any other
governmental entity for development or construction of the
BART Developmental Property, or any portion thereof, for other
than Transit Functions, and without regard to whether or not
BART is a party in such action or proceeding, any such court
action shall constitute a permitted delay under Paragraph 26.
29. Estoppel Certificate.
Any party may, at any time, and from time to
time, deliver written notice to the other parties requesting
such parties to certify in writing that, to the knowledge of
the certifying party, (i) this Agreement is in full force and
effect and a binding obligation of the parties, (ii) this
Agreement has not been amended or modified either orally or in
writing, and if so amended, identifying the amendments, and
(iii) the requesting party is not in default in the
performance of its obligations under this Agreement, or if in
default, ;to describe therein the nature and amount of any such
defaults. A party receiving a request hereunder shall execute
and return such certificate within thirty (30) days following
receipt thereof. The Community Development Director of the
County shall have the right to execute any certificate
requested by BART hereunder. County and Agency each
acknowledges that a certificate hereunder may be relied upon
by transferees and mortgagees.
30 . Transfers and Assignments.
30. 1 Rights To Assign.
-49-
BART shall have the right to sell, assign or
transfer this Agreement, and all of its rights , duties and
obligations hereunder, to any person or entity at any time
during the term of this Agreement; provided, however, in no
event shall the rights, duties and obligations conferred upon
BART pursuant to this Agreement be at any time so transferred
or assigned except in connection with the grant of an
ownership or leasehold interest in the BART Development
Property, or any portion thereof.
'30. 2 Procedure Upon Transfer.
BART shall include in any lease or sale agreement
for development purposes affecting all or any portion of the
BART Development Property an obligation for the transferee to
comply with all County rules, regulations and policies
regarding development of the BART Development Property and the
provisions of this Agreement; provided, however, that BART
shall be in no way responsible to the County for enforcing
such obligations on the part of the transferee. The
transferee shall execute and deliver to County and Agency a
written agreement in which the transferee expressly agrees to
comply with the obligations of BART under this Agreement with
respect to the interest in the BART Development Property, or
portion thereof, granted to such transferee. A provision
substantially in the following form will satisfy the
requirement of the foregoing:
"Developer acknowledges that BART has entered into an
Acquisition and Development Agreement dated
1985 with the County of Contra Costa
and the Contra Costa County Redevelopment Agency,
which Agreement sets forth certain rights and
obligations with respect to development of the BART
Development Property that is the subject of that
Agreement. Developer agrees that in its development
of the portion of the BART Development Property in
which it has acquired an interest, it shall comply
with the provisions of the Acquisition and
..Development Agreement as such terms and conditions
apply to development of the BART Development
.Property. "
BART shall also give notice to County and Agency of any
transfer containing therein the identity of the transferee,
such transferee' s address, the amount of the Credit which BART
intends to allocate to such transferee for its development of
the portion of the BART Development Property in which it has
acquired an interest, and the maximum amount of
non-residential development and maximum number of residential
units permitted on the portion of the Property to be
transferred. In no event shall the aggregate amount of
development specified with respect to all such transfers
exceed the maximum density permitted under the Approved Land
Use Standards unless such excess is approved by the County as
-50-
provided for in Paragraph 15. 4. If the actual completed
construction which occurs on an assigned portion of the BART
Development Property is less than was set forth in the notice
of transfer given to County and Agency pursuant to this
Paragraph, 30 , then the unused development potential may be
allocated to another portion of the BART Development Property
if the transferee of the portion of the BART Development
Property with respect to which the development potential was
unused agrees with the County that it will make no claim under
this Agreement to use such unused development potential.
This Paragraph 30 .2 shall not obligate BART for
responsibility to the County for enforcing the obligations of
this Agreement on the part of BART transferee. In addition,
upon a transfer which complies with the provisions of this
Paragraph 30 , BART shall be released from its obligations
under this Agreement with respect to that portion of the BART
Development Property so transferred.
31 . Amendment and Termination.
Except as provided in Paragraph 16 with respect
to the County' s annual review thereunder, this Agreement may
be cancelled, modified or amended only by mutual consent of
BART, the. County and the Agency in writing, and then only in
the manner provided for by law.
32. Operating Memoranda.
The parties acknowledge that the provisions of
this Agreement require a close degree of cooperation between
Agency, County and BART, and that refinements and future
events may demonstrate that changes are appropriate with
respect to the details of performance of the parties under
this Agreement. The parties desire, therefore, to retain a
certain degree of flexibility with respect to the details of
performance with respect to those items covered in general
terms under this Agreement. If and when, from time to time
during the term of this Agreement, the parties find that such
changes or adjustments are necessary or appropriate, they
shall effectuate such changes or adjustments through operating
memoranda approved by the parties which, after execution,
shall be ,attached hereto as addenda and become a part hereof,
and may be further changed and amended from time to time as
necessary, with further approval by Agency, for itself and the
County, and BART. No such operating memoranda shall require
prior notice or hearing, or constitute an amendment to this
Agreement; and in the case of the Agency and County such
operating memoranda may be acted upon by the Agency' s
Executive Director or his designee. Failure of the parties to
enter into any such operating memoranda shall not affect any
of the rights, duties or obligations of the parties under the
provisions of this Agreement.
33 . Rights Run With the Land.
-51-
All of the provisions, agreements, rights,
powers, standards, terms, covenants and obligations contained
in this Agreement shall be binding on the parties and their
respective heirs, successors (by merger, consolidation or
otherwise) and assigns, devisees, administrators,
representatives , lessees, and all other persons or entities
acquiring the BART Development Property, or any portion
thereof or any interest therein, whether by operation of Laws
or in any manner whatsoever, and shall insure the benefit of
the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns.
34 . Time of Essence.
Time is of the essence of this Agreement.
35. Governing Law.
This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
36 . Severability.
If any article, section, subsection or paragraph,
sentence, clause, phrase or portion of this Agreement is for
any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of
this Agreement. The County Board of Supervisors and the
Boards of' the Agency and BART hereby declare that they would
have adopted and agreed to this Agreement and each article,
section, sub-section or paragraph, sentence, clause, phrase or
portion thereof, irrespective of the fact that any one or more
sections, sub-sections, sentences, clauses, phrases or
portions be declared invalid or unconstitutional.
37. Headings.
The underscored words appearing at the
commencement of paragraphs of this Agreement are included only
as a guide to the contents hereof and are not be be considered
as controlling, enlarging or restricting the language or
meaning of those Articles of paragraphs.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written above.
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT
By
Its
CONTRA COSTA COUNTY REDEVELOPMENT
AGENCY
By
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Its
CONTRA COSTA COUNTY
By
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COUNTY CONVEYANCE PROPERTY
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COUNTY RIGHT OF WAY VACATIONS
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Fs. NEW DEDICATED EASEMENTS
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BART DEVELOPMENT PROPERTY
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- 1
EXHIBIT D
Exceptions to Title of
BART Dedication
Property, BART Road
Property and BART
Assemblage Property
3. Parcei' B-2.
EASEMENT for the purposes stated herein and incidents thereto
For : Roadway embankment and slope purposes
Granted to : Contra Costa County
Recorded April 20, 1955, Book 2749, Pace 506, Official Records.
EASEMENT affecting that portion of premises and for the purposes stated herein
and incidental purposes as created by the following instrument:
For : Drainage purposes
Contemned to - :-The Count�,' rrtra- s�a-,-Tn-the--Final -Order of Conde-:nation
Recorded . October 29, 1957, Book 3066,- Page 525, Official Records.
WAIVER Or DAMAGES as contained in the Instrument
Recorded' : November 22, 1965, Book 4998, Page 114, Official Records.
EASEMENT for the purposes stated herein and incidents thereto
For : Sanitary sewer purposes
Gran- to : Central Contra Costa Sanitary District
RecorAed :. November 22, 1971 , Book 6525, Page 328, Official Records.
Parcel B-3.
a
EA_EMENT for the purposes stated herein and incidents thereto
For Storm drainage purposes
3 Granted to : County of Contra Costa
Reccrded : November 8, 1972, Book 6792, Page 355, Official Records
WAIVER..OF DAMAGES as contained in the Grant Deed
Recorded: Play 28, 1980, Book 9865, Page 49, Official Records.
Exhibit D, Pace 1 of 8 pages .
G -
Parcel B-3 (Cont. )
ACTION To seek a declaration as to whether the deed fro' R.E. 'kcPherson,
et ux, to Oakland and Antioch Railway recorded in Book 154 of
Deeds at Page 433, conveyed an easement to be used exclusively
for railroad purposes or conveyed fee title and to quiet plaintiff's
title to portions and interests in the property, as more specifically
stated in the complaint, and to compel a reconveyance of the
purported interests of the defendants in and to portions of the
property, as more specifically stated in the complaint, and to
eject defendants from portions of the property, as more specifically
stated in the complaint, and'as an alternative to ejectment of certain
defendants, damages for the inverse condemnation of portions of
the property, as more specifically stated in the complaint.
Case No. : 257752
Court : Superior Court of the State of California in and for the County
of Contra Costa
Plaintiff : Lorraine Watt Chatham, Administrator of the Estate of Lulu Fraser
Watt, also known as Felina Carolyn Spafford, Lulu Fraser, Lulu Watt,
Mrs. George Watt, Lulu Watt Tier, and Hrs. W. D. Ti„
Defendant : San Francisco Bay Area Rapid Transit District, a public body; County
of Contra Costa, et al
Recorded : March 28, 1984, Book 11716, Pace 595, Official Records.
Attorney : Terence M. Murphy, Esq. Law Offices of Saline, Murphy b Sternberg
Address : 1070 Concord Avenue, Suite 100, Concord, CA 94520
Telephone : (415) 825-3933
mended Notice of Pending Action thereunder, recorded April 9, 1984,
Book 11734, Official Records, page 524.
Escape-taxes if any, should a court of competent jurisdiction determine
that the interest of the heirs of -Lulu Watt-Timm extend to a time prior to
any judgment from said court.
Z.._. -Parcel B-18.
EASEMENT for the purposes stated herein and incidents thereto
For : Storz drainage purposes
Granted to ` : County of Contra Costa
Recorded November 8, 1972, Book 6792, Page 355, Official Records.
E::n;b;t D Pace 2 of 8 paces .
4 . Parcel B-20.
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to :Contra Costa County Water District
Recorded : Play 22, 1962, Book 4124, Page 468, Official Records.
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa Countv Water District
Recorded June 11 , 1962, Book 4136, Page 509, Official Records
1
WAIVER OF DAMAG"cS as contained in the Instrument
Recorded December 15, 1964, Book 4763, Page 329, Official Records.
S. Parcel Br21.
EASEMENT for the purposes stated herein and incidents thereto
For Underground utility purposes
Granted to : Contra Costa County Fater District
Recorded : Play 22, 1962, Book 4124, Page 468, Official Records
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa County Water District
Recorded : June 11 , 1962, Book 4136, Page 509, Official Records
WAIVER OF DAMAGES as contained in the Instrument
Recorded December 15, 1964, Book 4763, Page 329, Official Records.
6. Parcel B' 23.
EASEMENT for the purposes stated herein and incidents thereto
For : Storm drainage purposes
Granted to : County of Contra Costa
Recorded : November 8, 1972, Book 6792, Page 355, Official Records.
EY_^,lbit D, Pace 3 of
'7_. Parcel B-26 .
WAIVER OF DAMAGES as contained in the Instru, ent
Recorded November 22, 1965, Book 4998, Page 114, Official Records: -
EASERENT for the purposes stated herein and incidents thereto
For Storm drainage purposes
Granted to : County of Contra Costa
Recorded : Ptovember 8, 1972, Book 6792, Page 355, Official Records.
B._ Parcel B733 .
The Terms, Conditions and Restrictions and the Reversionary Rights, as set
forth in the deed from G. E. Weldon and Estelle Marie Weldon, his wife, recorded
z:,eptember ;2, 1910, Book 156 of Deeds, Page 310, as follows:
"Said second party shall construct and permanently maintain along the sides
of said strip of land a hog tight fence and shall construct and maintain two
crossinas over said land for the benefit of the first parties and their
assigns if necessary. Said land to be used for railroad purposes and should
the said party of the second part abandon said land and not use the same fcr
a railroad right-of-way, then the said abovedescribed strip of land shall revert
to the said first parties."
9 Parcel B-4 .
UNRECORDED POLELINE EASEMENT as disclosed by the Grant of Right of Way to Great
-Western Power Company of California, recorded February 28, 1923,, Book 422.of
Deeds, Page 451 .
Exhibit D, Paso 4 0 8 =axes .
10 . Parcel B-6 .
EASEME?{T for the purposes stated herein and incidents thereto,
For : Storm drain purposes
Granted to : The County of Contra Costa
Recorded November 27, 1950, Book 1675, Page 136, Official Records
EASEMENT for the purposes stated herein and incidents thereto,
For : storm drainage purposes
Granted to : County of Contra Costa
Recorded : : November 8, 1972, Book 6792, Page 355, Official Records
1l. Parcel B-10 .
EASE.YENT for the purposes stated herein and incidents thereto
For : Storm, drainage purposes
Granted to : County of Contra Costa
Recorded : November 8, 1972, Book 6792, Page 355, Official Records
WAIVER OF I)WGES as contained in the Grant Deed
Recorded: Hay 28, 1980, 'Book 9865, Page 49, Official Records.
' ACTION To seek a declaration as to whether the deed from R.E. McPherson,
j- et ux, to Oakland and Antioch Railway recorded in Book 154 of
Deeds at Page 433, conveyed an easement to be used exclusively
for railroad purposes or conveyed fee title and to quiet plaintiff's
title to portions and interests in the property, as more specifically
stated in the complaint, and to compel a reconveyance of the
purported interests of the defendants in and to portions of the
property, as more specifically 'stated in the complaint, and to .
eject defendants from portions of the property, as more specifically
stated in the complaint, and as an alternative to ejectment of certain
defendants, damages for the inverse condemnation of portions of
the property, as more specifically stated in the complaint.
Exh bi - D, Page 5 of 8 page-s.
Parcel B-10 (Cont. )
Case No. 257752
Court Superior Cour of the State of California in and for the County
of Contra Costa
Plaintiff` Lorraine Watt Chatham, Administrator of the Estate of Lulu Fraser
Watt, also known as Felina Carolyn Spafford, Lulu Fraser, Lulu Watt,
Mrs. George Watt, Lulu Watt Timm, and Mrs. W. D. Tim
Defendant San. Francisco Bay Area Rapid Transit District, a public body; County
of Contra Costa, et al
Recorded : March 28, 1994, Book 11716, Page 595, Official Records:
Attorney : Terence M. Murphy, Esq. Law Offices of Safine, Murphy b Sternberg
Address : 1070 Concord Avenue, Suite 100, Concord, CA 94520
Telephone : (415) 825-3933
Amended Notice of Pending Action thereunder, recorded April 9, 1984,
Book 11734, Official Records, page 524.
Escape taxes if any, should a court of competent jurisdiction determine,
t�zt the interest of the heirs of-Lulu Matt-Ti, extend to a time prior to
any ,judgment from said court.
12. Parcel B=30 .
EAS--MINT for the purposes stated herein and incidents thereto,
For : Storm drain purposes .
Granted to : The County of'Contra`Costa
Recorded : November 27, 1950, Book 1675, Page 136, Official Records
EASEMENT for the purposes stated herein and incidents thereto,= _
For : storm drainage purposes
Granted to : County of Contra Costa
Recorded November 8, 1972, Book 6792, Page 355, Official Records
EX:liblt D, Pace 5 cz 6 c a5 .
7
13. Parcel B-11.
UNRECORDED POLELINE EASEMENT as disclosed by the Grant cf Right of Way
to Great „Western Power Company of California, recorded February 28,
Book 422 of Deeds , Page 451.
14. Parcel B-13.
EASEMENT 'for the purposes stated herein and incidents thereto
For : Storm drain purposes
Granted to : County of Contra Costa
Recorded : November 8, 1972, Book 6792, Page 355, Official Records
13. Parcel. B-14 .
EASEMENT for the purposes stated herein and incidents thereto
For : Storm drain purposes
Granted to : The County of Contra Costa
Recorded : Novemoer 27, 1950, Book 1675, Page 136, Official Records
Private easements for ingress, egress and utilities as granted and reserved.
in numerous deeds of record in favor of owners of property fronting on Oak
Court.
Rights of'the public "for use as a public highway"- including all public utilities
installed in connection therewith and their rights of .ingress and egress, as
granted in the deed to -Contra Costa County recorded October 24, 1951 in Book
18:1, Page 98, Official Records.
f
EASEMENT for the purposes stated herein and incidents thereto
For Storm drain purposes
Granted to County of Contra Costa
Recorded Noventer 8, 1972, Book 6792, Page 355, Official Records
Exhibit D, Pane 7 c- 8 pages .
Y
Parcel B-:14 (Cont. )
"S.F.B.A.R.T.D. Richt of Nay" as shown on the 'San Francisco Bay Area Rapid
Transit District Record Map of Right of Nay" filed February 10, 1976, Book
3 of Bart Maps, Page 1, Contra Costa County Records.
1-E. Parcel B-16 .
EASEXE T for the purposes stated herein and incidents thereto
For I . Storm, drain purposes ,
Granted to' : - County of Contra Costa
Recorded : Novemcer 8, 1972, Book 6792, Page 365, Official Records
With resaect to all parcels comprising the BART Dedication
Property, the BART Road Property and the ..=:RT Assemblage
Property, the lack of co:.pliance with the Subdivision Map Act.
y : _b_t D, Pace 8 c= 8 pag=_ .
EXHIBIT
EXCEPTIONS TO TITLE OF
COUNTY CONIEYANCE PROPERTY
1.
Parcel C-l.
EASEMENT for the purposes stated herein and incidents thereto
For Underground utility purposes
Granted to : Contra Costa County Water District
Recorded : May 22, 1962, Book 4324, Page 468, Official Records
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa County Mater District
Ret^riled : June 1I , i962, Book 4136, Page 509, Official Retards
The Recitals contained in the Grant Deed to County of Contra Costa,
recorded March 30, 1979, Book 9286, Official Records, Page 342, as follows:
"Grantee, for itself, its successors and assigns hereby covenants and agrees
that :the purchase price of the property reflects any disadvantages or adverse.
conditions that may exist or which may hereafter arise by reason of its
proximity of grantor's rapid- transit facilities. Grantee agrees that the.
purchase price accounts for any claims grantee may have against grantor
arising out of grantor-'s maintenance, operation or expansion of its rapid
transit facilities. . Gantee knowingly accepts any adverse affects attributable
to the operation by:grantor of its rapid transit facilities in proximity.to
said property."-
2.
roperty.-2. Parcel C-2.
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa County Water District
Recorded : May 22, 1962, Book 4124, Page 468, Official Records
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa County mater District
Recorded : June 11 , 1962, Book 4136, Page 509, Official Records
Exhibit E, Page 3 of 3 iaes .
Parcel C-2 (Cont. )
The ;Recitals contained in the Grant Deed to County of Contra Costa,
recorded March 30, 1979, Book 9286, Official Records, Page 342, as follows:
"Grantee, for itself, its successors and assigns hereby covenants and agrees
that the purchase price of the property reflects any disadvantages or adverse
conditions that may exist or which may hereafter arise by reason of its
proximity of grantor's rapid transit facilities. Grantee agrees that the
purchase price accounts for any claims grantee may have against grantor
arising out of grantor's maintenance, operation or expansion of its rapid
transit facilities. Grantee knowingly accepts any adverse affects attributable
to the operation by grantor of its rapid transit facilities in proximity to
said property."
3. Parcel C-3.
EASEMENT for the purposes stated herein and incidents thereto
For : Underground utility purposes
Granted to : Contra Costa County Water District
Recorded : May 22, 1962, Book 4124, Page 468, Official Records
EASEMENT for the purposes stated herein and incidents thereto
For ' : Underground utility purposes
Granted to : Contra Costa County Water District
Recorded June 11, 1962, Book 4136, Page 549, Official Records
The .R;ecitals contained in the Grant Deed to County of Contra Costa,
recorded March 30, 1979, Book 9286, Official Records, Page 342, as follows:
"Grantee, for itself, its successors and assigns hereby covenants and agrees
1.41at the purchase price of the property reflects.any disadvantages or adverse
conditions that may exist or which may hereafter arise by reason of its
proximity of grantor's rapid transit facilities. Grantee agrees that the
purchase price accounts for any claims grantee may have against grantor
arising out of grantor's maintenance, operation or expansion of its rapid
transit facilities. Grantee knowingly accepts any adverse affects attributable
to the operation by grantor of its rapid transit facilities in proximity to
said property."
Er-^•� = �, Page 2 0: 3 pages.
4. With respect to all parcels comprising the County+ ,Conveyance
Property, the lack of compliance with the Subdivision Map
Acta
Exhibit E, Page 3 of 3 paras .
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aALIQUOT
1n EXHIBIT F
3.`
AP t
CONSTRUCTIO`: WORK{
The .Constructicn Work shall consist of the reconstruction of
station, pedestrian, and vehicle access facilities as a
result of the road improvements required by the Specific
Plan, 'and shall have three principal components: (a) the .
Parking Lot Work; (b) cons tructicn of the Wayne Drive
Extension; and (c) relocation of the existing sanitary sewer
presently located within the BART Development Property,
includinc without lLnitation the , following:
(a) Parkins Lot Work. This work will consist of
the reconstruction of patron parking lots, bus and
passencer pick-up and drop off facilities, and the
f Jones access road :in the BART Development Property,
including without limitation., construction of temporary
parking facilities , removal of landscaped islands and
their replacement with pavement structural sections,
removal of conflicting markings and striping, relo-
cation of electroliers, restoration of irrigation for
preserved landscaping, rest icing, and construction of
curbs , sidewalks , pavement structural sections ,
drainace, pavement markers and traffic islands; and
(b) Construction of the Wayne Drive Extension.
This work will consist of the construction of Wavne
Drive within the BART Develoament Property and will
include , without limitation, construction of curbs,
sidewalks , pavement structural sections, drainace,
pavement markers and traffic islands, and striping; ana
(c) Sanitary Sewer Relocation. This work will
include, without limitation, relocation of the existing
sanitary sewer from its current location in the BART
Development Property to a new location along the new
Jones access road, and construction of a lateral
service line connection to the relocated sanitary sewer
to provide service to the existing BART transit -
facility and future development on the BART Development
Property;
all in accordance with the construction contracts, plans and
specifications prepared by the Agency and approved by BART.
EYIBIT F - Pace 1 of 1 Pace
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EXH IBIT G
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Documentation of Credit
Docu:.entation.
Date:
Pursuant to the Acquisition and Development Agreement
("Agreement") dated , 1985 by and between the
Contra: Costa County ( County 3 Contra Costa County
Redevelopment Agency ("Agency") and the San Francisco Bay Area
Rapid Transit ("BAR.") , BART is to receive Credit (as defined
in the Agreement) against payment of .development fees
otherwise payable in connection with development of the BART
Development Property (as defined in the Agreement) and that
Credit is to be reduced uoon the occurence of certain events
specified' in the Agreenent.' The purpose of this documentation
is to set forth in writing an increase or decrease in the
Credit.
] . Amount of Credit Prior to Execution of this
Dccumentation No.
2. Increase or (Decrease) in Credit by Reason of Events
Specified in this Documentation No.
3. Total Credit After Taking Into Account Events Specified
in this Documentation No.
(Add Lines line 2 if Line 2 is an increase
in the Credit; Subtract Line 2 from Line
I if Line 2 is a decrease in Credit.)
4 . Reasons for Increase or (Decrease) in Credit:
H Page 1 of Z'Pages
5 . If adjustment to the Credit is attributable to EART ' s
grant of an ownership or leasehold interest in the
BART Develo=-,ent Property, or any portion thereof ,
together with an asSicnment of ELRT ' s obligations
under the Agreement to such transferee, then the
following shall indicate the amount of the Credit
which BART is allocating to such transferee, and the
amount of remaining Credit which BART has retained
for itself:
Amount of Credit retained by BART: $
Name of BA.RT ' s transferee :
Amount of Credit transfered to such transferee :
Reasons for Increase Anount
Total: $
'(Specify basis for increase in Credit
under Paragraphs 28.3 (a) - (c) or 18.4 -
'(a)-(g) of the Agreement and amount
associated with with each such basis.)
Reasons for Decrease Amount
Total: $
(Specify basis for decrease in Credit
under Paragraph 18.5 or 28 .4 of the
Agreement)
r
EX-71BIT H Page 2 of 2 Pages
CONTRA COSTA COUNTY
by.
CONTRA COSTA COUNTY
R.EDEVE,LOPHEIAT AGENCY
by:
SAN FRANCISCO BAY
RAPID TRANSIT DISTRICT
by:
OR
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EXHIBIT J
Parra of Promissory Nate
` -71-
E X H I_'3I K
BART INSUP.ANCE PROVISIONS
A2. 12 . i Under, the polic•Y(s ) ofdescribed ahave,
each polic%,. shall contai: t::e follcwin, orovisio::s :
Thirty (30) days ' written notice submitted by re,istered
nail: from the insurance C-. ier(s ) .to San Francisco Bay.
A_ ea Rao2d Transit District. 800 uaA; Scn Street, . P. C. `Box
32588, Daklard, California 94604-2688, prior to any can-
cellation� or reduction in coverage.
A2. 12, 2 Under the policy(s) of indurance described in
Article A.2. 1.2(b) , . each policy shall contain the following
provisions:
(a) San Francisco Bay Area Rapid Transit District, its
directors ; officers , representatives, agents and
hall be included
employees sas additional insureds as
respects work, or operations in connection wit:: this
Contract.
(b) Endorse:-ent provi di;:g that such insurance is primary
insurance and no insurance of the additional insureds
shall be called on to contribute to a loss .
(c) Endorsement providing that such insurance shall rot
contain any exclusion recarding loss cr damage to
property caused by- explosion cr resulting from col-
lapse of buildings cr structures or damage to proper-
. ty underground, commonly referred to by insurers as
"XCU" hazards.
(d) Standard cross-liability clause covering Persona 1In
jury, Bodily Injury (including death resulting there--
from) and Property Damage, or policy wording as
follows: "The insurance afforded applies separately
to each insured. . . .except as to limits. ".
(�) Endorsement providing that such insurance shall not
contain any exclusion denying liability due to the -
performance of operations within the vicinity of any
railroad bridge cr trestle, track, roadbed, tunnel;.
underpass or crossway.
A2. 12. 3 Prior to beginning work, Contractor shall furnish
certificates satisfactory to the District as to contents
and carriers of such insurance.
_ EXHIBIT •K Page 1 of 1 Page
7o-
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on Au g u s t F, , i 4R r , by the following vote:
AYES: Supervisors Powers , Schroder, McPeak , Torlakson and Fanden
NOES: None ,
ABSENT: ' None
ABSTAIN: None
RESOLUTION N0. 85/470
SUBJECT: Development fees payable in connection with Development of
property in the area governed by the Pleasant Hill BART Station
Specific Plan
1. The Specific Plan for the Pleasant Hill BART Station
Area ("Specific Plan") and implementing resolutions provide
for payment of development fees in connection with development
of property in the area governed by the Specific Plan and
allows such fees to be prepaid through an assessment
district. The development fees are designed to pay the costs
of public improvements in the area governed by the Specific
Plan and to create a transit systems management program for
the area.
2. Subsequent to adoption of the Specific Plan, the
Board activated the Contra Costa County Redevelopment Agency
("Agency"') and the Board and the Agency adopted the
Redevelopment Plan for the Pleasant Hill BART Station Area
("Redevelopment Plan") . The Redevelopment Plan provides for
the Agency to implement the Redevelopment Plan by, among other
things, undertaking the construction of public improvements in
the area 'governed by the Specific Plan.
3. In taking steps to implement the Specific Plan', and
Redevelopment Plan, it has become apparent that under certain
circumstances implementation of the Specific Plan and
Redevelopment Plan and construction of public improvements can
best be accomplished by financing payment of development fees
through Agency financing mechanisms, or by allowing payment of
development fees through cash payments to the Agency or.
through transfers to the Agency of property needed for public
improvements or assemblage of development sites. Such
mechanisms for payment of development fees are not currently
permitted under the Specific Plan and implementing
resolutions, and the Board as well as the Agency desire to
provide for such mechanisms.
Therefore, the Board of Supervisors of Contra Costa
County hereby resolves that the development fees payable in
connection with development of property in the area governed
by the Specific Plan may be paid or prepaid by a developer in
the following methods:
(a) Through the payment to the Agency of the proceeds of
;Agency bonds or other Agency financings where such
bonds or other financings are secured by payments to
,be made by a developer.
(b) 'Through cash payments by a developer to the Agency.
(c) Through transfers by a developer to the Agency of
property that is needed for public improvements or
assemblage of development sites.
RESOLUTION 85/470
t
It is the intent of the Board in adopting this resolution
that 'the additional methods for payment or prepayment of
development fees prescribed above only be available in those
limited circumstances where payment or prepayment by such
methods would be advantageous to the County and the Agency in
implementing the Specific Plan and the Redevelopment Plan.
Therefore`, before any payment or prepayment of development
fees by the methods set forth in this resolution is permitted,
the County and the Agency must consent to the payment or
prepayment proposed by a developer and approve the specific
method for the payment or prepayment and the amount of fees to
be paid or prepaid by such method. Such consents and
approvals may be given through approval or adoption of an
agreement or agreements between the County, the Agency and the
developer.
1 hereby eettity"t thle fs o!vole and comet co"411
an action taken and ernere!On the lnht M of 110
Board of Supervisors on tits date shmm ;
ATTESTED: 1" 6 . / y&.2-
PHIL SATCHEL R. Cte+rk of it*Dosed
of Sapervism and County AdmIrAstnHor
By ....._.. .Deputy
cc : Distribution Via Redevelopment Agency to :
County Administrator
Goldfarb & Lipman
Community Development Department
San Francisco Bay Area Rapid
Transit District (BART)
RESOLUTION RS/47n