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HomeMy WebLinkAboutMINUTES - 08021994 - 1.49 - C_.ontra _ Costa TO: BOARD OF SUPERVISORS cIJur r uM�cT • ", FROM: Harvey E. Bragdon Director of Community Development DATE : August 2, 1994 SUBJECT: Pleasant Hill BART Pocket Park SPECIFIC REQUEST(S) OR RECOMMENDATIONS (S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS APPROVE a Ground Lease with the San Francisco Bay Area Rapid Transit District (BART) for establishment of the Pleasant Hill BART Pocket Park,_ ("Project") , and AUTHORIZE the Chair to execute said lease on behalf of the County; FIND that a Negative Declaration pertaining to this Project was published with no protests, and CONCUR in the findings that the Project will not have a significant effect on the environmental and DIRECT the Community Development Director to file a Notice of Determination with the County Clerk; and FIND that the Project is in compliance with the County General Plan. FISCAL IMPACT General Funds involved. All funds being used are previously authorized County Park Dedication Funds . CONTINUED ON ATTACHMENT: X YES SIGNATURE : RECOMMENDATION OF COUNTY ADMINISTRATOR RECO ND TION OF-1OARD COMMI EE APPROVE OTHER SIGNATURE (S) : ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS / I HEREBY CERTIFY THAT THIS IS A V UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Source: Jim Kennedy 646-4208 cc: County Administrator ATTESTEDAJIG 2.--�po� County Counsel PHIL BATC OR, CLERK OF General Services-Architectural THE BOARD OF SUPERVISORS General Services-Maintenance AND COUNTY ADMINISTRATOR Public Works-County Service Area Coordinator Pleasant Hill BART Pocket Park BY �3e���„� � , DEPUTY Steering Committee via Redevelopment JK:1h sralV pockpark.bos BACKGROUND/REASONS FOR RECOMMENDATIONS The Community Development Department has been working with the property owners, employees and residents of the Greater Pleasant Hill BART Station Area regarding establishment of a pocket park. The proposed park is to be located primarily on property owned by the Bay Area Rapid Transit District and leased to the County (Exhibit A) . A general summary of lease terms is included as Exhibit B. A steering committee has been formed and a landscape architect has been engaged to complete the planning and design work. The Board of Supervisors has previously authorized the expenditure of up to $195, 000 in County Park Dedication Funds to cover the cost of park development. No other funds are involved. The "Project, " as the term is used above, includes the execution of a Ground Lease with BART, and an adjacent privately owned property, and the development/construction of the Pocket Park. � r .. e a _ e t. c a 'ao a �-�O e� • °�_ o• � \ �- a -� • I - � � - e p� d s 'O • � V��e 0 ■ r90 ' O• WHO- ° • � ,o 'A •7 LIM- Ila i is: _.��le '�• h � AppO 1� t�OI ool °� •�i � �eeoee� y'- wed • 'DO •wry°.Y�• � . e r �....c- '—_��' �-n��'ti��• 1. EXHIBIT B SUMMARY OF LEASE TERMS Term: 50 years Rent: $1 . 00/year Use: Public park/open space Maintenance: County, via Lighting and Landscaping District (LL-2) , responsible 1 Co This Lease, dated as of , is between the SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT ("BART" or "Lessor"), and CONTRA COSTA COUNTY ("Lessee"). Lessor, in consideration of the rents and covenants herein to be paid, kept and performed by Lessee, and upon the condition that all thereof shall be fully paid, kept and performed by Lessee, hereby Leases to Lessee those premises as described herein. ARTICLE 1. PREMISES Lessor hereby Leases to Lessee, and Lessee hereby Leases from Lessor, for the term, at the rent, and upon the covenants and conditions hereinafter set forth, those premises situated in the County of Contra Costa, State of California, described and depicted on "Exhibit A" attached hereto and made a part hereof. ARTICLE 2. TERM AND RENT The term of this Lease shall be for fifty (50) years commencing and ending , with right of termination by Lessor and Lessee as set forth in Article 9 herein, or as terminated earlier as provided herein. The rent shall be One Dollar ($1.00) per annum payable annually in advance, for each and every year, on or before each year or payable in one lump sum of $50 for full term of lease. If lump sum is paid in advance, Lessor will refund Lessee balance of prepaid rent in event that lease is terminated by Lessor under provisions in Article 9.2. Lessee shall pay said rent to Lessor at the address designated in Article 9.8 herein, without deduction or offset. ARTICLE 3. USE 3.1 Specified Use Lessee shall use and occupy the premises only as an open-space public park and picnic area, and for no other purpose whatsoever without obtaining the prior written consent of the Lessor. 3717.1 1 3.2 Condition of Premises Lessee hereby accepts the premises in their condition existing as of the date set forth above, subject to all applicable zoning, municipal, county, state and federal laws, ordinances and regulations governing and regulating the use of the premises, and accepts this Lease subject thereto. Lessor has not made any representation or warranty with respect to the condition of the premises or the suitability thereof for the permitted use, nor has Lessor agreed to undertake any modification, alteration or improvement to the premises. 3.3 Compliance with Law Lessee shall not use the premises or permit anything to be done in or about the premises which constitutes a nuisance or waste or which will in any way conflict with any law, statute, zoning restriction, ordinance or governmental rule or regulation or requirements of duly constituted public authorities now in force or which may hereafter be in force insofar as Lessee is subject thereto. Commencement of any proceedings to prohibit Lessee's use of the premises shall, at the option of the Lessor, be deemed a breach hereof. 3.4 Improvements Lessee shall not make any initial improvements or alternations to said premises until design, landscaping and improvement plans are reviewed by BART and written approval from BART is received by Lessee. Subsequent improvements or alternations shall also require review and prior written approval by BART. Any additions or alterations shall become at once a part of the realty and belong to the Lessor, unless otherwise agreed to by the parties in writing. 3.5 Utilities Lessee shall pay for all water, heat, light power, telephone and any other utilities supplied to the premises. 3.6 Signs Lessee shall not place, or permit to be placed on the premises, any signs, advertisements or notices, without Lessor's prior written consent, except for signs identifying the 3717.1 2 I park/picnic areas. 3.7 Vending Lessee shall not conduct or permit the vending or sale of any goods or services upon the premises. 3.8 Hazardous Materials Lessee shall not use, create, store or allow any hazardous materials or waste on the premises. Lessee shall be responsible for and bear any costs of removal, disposal, cleanup or decontamination, on or off premises, caused by the placement of hazardous materials or waste onto the surface of the premises during Lessee's period of possession. of the premises, except that the Lessee shall not be responsible for hazardous materials or waste introduced through underground seepage. Lessee shall not be responsible for hazardous materials or waste introduced to the premises through groundwater, surface water, ground seepage, or otherwise migrating to the property from an off-site location; as between Lessor and Lessee, the responsibiility for any cleanup, removal, disposal or decontamination of such hazardous materials will remain with Lessor. 3.9 Vehicles Lessee shall not park or store vehicles of any kind on the premises. ARTICLE 4. MAINTENANCE AND REPAIRS 4.1 Lessee's Obligations Lessee, at its own cost and expense, shall maintain the Leased premises, improvements and landscaping thereon, in good repair and in compliance with all requirements of law. Lessee shall designate in writing to Lessor a representative who shall be responsible for the day-to-day operation and level of maintenance, cleanliness and general order of the premises. 4.2 Lessor's Rights In.the event Lessee fails to perform its obligations under this Article, Lessor shall give 3717.1 3 Lessee thirty, (30) days written notice to do such acts as are reasonably required to so maintain the premises. If Lessee fails to commence the work within the said thirty-day period or fails to diligently prosecute it to completion, Lessor shall have the right, but not the obligation, to do such acts and expend such funds at the expense of Lessee as are reasonably required to perform such work. Any amount so expended by Lessor shall be paid by Lessee promptly after demand. Lessor shall have no liability to Lessee for any damage, inconvenience or interference with the use of the premises by Lessee as a result of performing such work. 4.3 Condition of Premises on Termination or Expiration of Lease At the expiration or termination of this Lease, all improvements constructed on the premises by Lessee shall vest in Lessor, and Lessee shall deliver the leased premises together with said improvements to Lessor in good condition and repair, reasonable wear and tear excepted free and clear of all claims to or against them by Lessee, any sublessee or third party, and Lessee shall defend and hold Lessor harmless from all liability arising from such claims or from the exercise by Lessor of its rights under this Article. In the event the real property, excluding the improvements, is not delivered to Lessor in good condition and repair, reasonable wear and tear excepted, Lessor shall make the necessary maintenance and repairs and Lessee shall be Iiable to and shall reimburse Lessor for any such expenditure made. If Lease is terminated by Lessor according to terms in Section 9.2, Lessor will pay Lessee unamortized valued of improvements according to the schedule in Exhibit_. Upon completion of park construction, all such improvements to be reimbursed shall be detailed and added to this Lease as Attachment_, which may be amended by the mutual agreement of parties from time to time as additional improvements are made. No payments shall be made by Lessor for improvements not listed on the Attachment _. Lessor may elect within thirty (30) days before the expiration of the term, or within thirty (30) days after the termination of the term, to require Lessee to remove any improvements which Lessee has constructed on the premises. If Lessor so elects, Lessee at its cost shall restore the premises to the condition designated by Lessor in its election and/or remove the signs designated by Lessor in its election, within thirty (30) days after the end of the term, or within thirty (30) days after notice of election is given, whichever is later. ARTICLE 5. INDEMNIFICATION 5.1 Lessee's Responsibility to Maintain Premises It is expressly agreed that Lessee, rather than Lessor, is wholly responsible for maintaining safe conditions on the premises during the term of the Lease, and that the 3717.1 4 failure by Lessor to maintain, police or provide safety services on the premises does not constitute negligence. 5.2 Agreement to Indemnify and Defend Lessee shall indemnify and hold harmless the Lessor, its directors, officers, agents and employees harmless from all claims, costs, demands, suits, loss, damage, injury and liability (direct or indirect, including any and all costs and expenses in connection therewith) arising out of the negligent or wrongful acts or omissions of the Lessee pursuant to this lease and, if requested by Lesor, will defend any such actions at the sole cost and expense of the Lessee. ARTICLE 6. INSURANCE At all times during the life of this Lease, or as may further be required by this Lease, Lessee at its own cost and expense shall provide the insurance specified by this Article. 6.1 Evidence Required At or before execution of this Lease, Lessee shall provide Lessor with a certificate of insurance executed by an authorized representative of the insurer(s) evidencing that Lessee's insurance complies with this Article and a copy of any required endorsements. 6.2 Notice of Cancellation, Reduction or Material Change in Coverage. Policies shall be endorsed to provide thirty (30) days prior written notice of any cancellation, reduction or material change in coverage. Notices shall be forwarded to: San Francisco Bay Area Rapid Transit District P. O. Box 12688, Oakland, California 94607-2688 Attention: Insurance Manager 6.3 Qualifying Insurers All policies shall be issued by companies which hold a current policy holders alphabetic and financial size category rating of not less than A:X according to Best's Insurance Reports. 3717.1 5 ARTICLE 6. INSURANCE At all times during the life of this Lease, or as may further be required by this Lease, Lessee at its own cost and expense shall provide the insurance specified by this Article. 6.1 Evidence Required At or before execution of this Lease, Lessee shall provide Lessor with a certificate of insurance executed by an authorized representative of the insurer(s) evidencing that Lessee's insurance complies with this Article and a copy of any required endorsements. 6.2 Notice of Cancellation, Reduction or Material Change in Coverage. Policies shall be endorsed to provide thirty (30) days prior written notice of any cancellation, reduction or material change in coverage. Notices shall be forwarded to: San Francisco Bay Area Rapid Transit District P. O. Box 12688, Oakland, California 94607-2688 Attention: Insurance Manager 6.3 Qualifying Insurers All policies shall be issued by companies which hold a current policy holders alphabetic and financial size category rating of not less than A:X according to Best's Insurance Reports. 6.4 Insurance Required A. Commercial General Liability Insurance for bodily injury(including death) and property damage which provides limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) annual aggregate. 1. Coverage shall include: a) Premises and Operations; b) Products/Completed Operations; C) Broad Form Property Damage; d) Contractual liability; 3717.1 6 6.5 Special Provisions A. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Lessee and any approval of said insurance by Lessor is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Lessee pursuant to this Lease, including but not limited to the provisions concerning indemnification. B. Lessor acknowledges that the insurance requirements contained in this article may be fulfilled by a funded self insurance program of Lessee. However, this shall not in any way limit liabilities assumed by Lessee under this Lease. Any self-insurance program must be approved in writing by Lessor. C. Should any of the work under this Lease be contracted, Lessee shall require each of its contractor or subcontractor of any tier to provide the aforementioned coverage, or Lessee may insure its contractor(s) under its own policy(s). D. Lessor reserves the right to terminate the Lease, subject to the notice provisions of Article 7, in the event of material noncompliance with the insurance requirements of this article. ARTICLE 7. DEFAULT 7.1 Material Default The occurrence of any of the following shall constitute a material default and breach of this Lease by Lessee. A. Any failure by Lessee to pay rent or any other monetary sums required to be paid hereunder, where such failure continues for fourteen (14) days after written notice thereof has been given by Lessor to Lessee. B. A failure by Lessee to observe and perform any other provision of this Lease to be observed or performed by Lessee, where such failure continues for thirty (30) days after written notice thereof by Lessor to Lessee; provided, however, that if the nature of such default is such that 3717.1 7 it cannot be reasonably cured within such thirty (30) day period, Lessee shall not be deemed to be in default if Lessee shall within such period commence such cure and thereafter diligently prosecute it to completion. C. The making by Lessee of any general assignment or general arrangement for the benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Lessee the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets, where possession is not restored to Lessee within forty-five (45) days; or the attachment, execution or other judicial seizure of substantially all of Lessee's assets, where such seizure is not discharged within thirty (30) days. 7.2 Immediate Termination In the event of any material default or breach by Lessee, subject to the notice provisions of this article, Lessor may at any time thereafter, without limiting Lessor in the exercise of any right or remedy at law or in equity which Lessor may have by reason of such default or breach, terminate this Lease. 7.3 Lessor's Remedies In the event of any material default or breach by Lessee, Lessor may at any time thereafter, without limiting Lessor in the exercise of any right or remedy at law or in equity which Lessor may have by reason of such default or breach: A. Terminate Lessee's right to possession by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default. 7.4 Lessor's Right to Cure Lessee's Default Subject to the notice provisions of this Section, any time after Lessee is in default or material breach of this Lease, Lessor may cure such default or breach at Lessee's cost. Unless shorter notice is expressly provided for herein, Lessor shall give Lessee thirty (30) days written notice prior to curing such default or material breach at Lessee's cost. 3717.1 8 If Lessee has reasonably commenced to cure the default or material breach within the 30 day period, Lessor shall not have the right to cure such default or breach at Lessee's cost unless Lessee thereafter fails to complete the cure. If Lessor at any time, by reason of such default or breach, pays any sum of does any act that requires the payment of any sum, the sum paid by Lessor shall be due immediately from Lessee to Lessor at the time the sum is paid. ARTICLE 8. ASSIGNMENTS, SUBLEASES AND ENCUMBRANCES 8.1 Assignments and Subleases Lessee shall not assign, transfer or sublease its interest in this Lease or in the premises without first obtaining Lessor's prior written consent. Lessor's consent to any assignment, sublease or encumbrance shall not constitute a waiver of any of the terms, covenants or conditions of the Lease, which shall apply to each and every assignment or sublease of this Lease. Lessor's consent to one assignment or subletting shall not be construed as a consent to any other assignment or subletting. Lessee's failure to obtain Lessor's required prior written approval of any assignment or sublease shall render such assignment or sublease void. 8.2 Encumbrances Lessee shall not encumber the Leased premises in any manner whatsoever. Lessee shall keep the premises and the property in which the premises are situated free from any liens arising out of any work performed, material furnished, or obligations incurred by or for Lessee. ARTICLE 9. ADDITIONAL PROVISIONS 9.1 Open Space Requirements The parties acknowledge that this Lease, as long as it is in effect constitutes partial fulfillment of the open space requirements in the 1985 Acquisition and Development Agreement between Lessor and Lessee. 9.2 Termination This Lease may be terminated for cause by Lessor as set forth in Article 7. In addition, 3717.1 9 if Lessor, in its sole discretion, determines that the Leased premises are needed for transportation-related purposes, excluding joint development, Lessor may terminate the lease by giving written notice at least ninety (90) days prior to when such termination shall become effective., In addition, if Lessor, in its sole discretion, determines that the leased premises are needed for transportation-related purposes, excluding joint development and, as a condition precedent to such termination the Lessor pays to Lessee the unamortized value of the improvements on the property as required by Section 4.3 of this Lease, Lessor may terminate the Lease by giving written notice at least ninety (90) days prior to when such termination shall become effective. 9.3 Quiet Enjoyment Lessor hereby agrees that Lessee, upon paying rent and other monetary sums due under the Lease and performing all obligations required to be performed herein, shall during the term of the Lease quietly hold and enjoy the premises without hindrance from Lessor. 9.4 Inspection Lessor shall have the right to enter upon and inspect the premises at reasonable times upon reasonable notice to ensure compliance with the requirements of this Lease. Lessor shall have the additional right to take samples of substances and materials present for testing should there be a concern that hazardous materials have been placed on the premises. If Lessor performs any testing pursuant to this Section, it shall be the responsibility of Lessor, at Lessor's sole cost and expense, to restore the premises and any affected improvements, to their original condition prior to testing. Lessor shall indemnify, defend, save, protect and hold harmless Lessee from and against all claims, demands, suits, loss damages, injury and liability (direct or indirect, including any and all costs and expenses in connection therewith) arising our of or connected with any act taken by Lessor pursuant to this Section, including but not limited to taking samples, .performing studies or tests on the leased premises. Notwithstanding any other provision of this Article 9.4, if hazardous materials other than hazardous materials introduced through underground seepage are discovered to have been introduced to the premises during Lessee's period of possession of the premises, Lessee shall be responsible for remediation as set forth in Article 3.8 herein. 9.5 Holding Over Any holding over, with Lessor's consent, after the expiration of the term of the Lease, shall be a tenancy from month to month, and shall otherwise be on the terms of this Lease. 3717.1 10 9.6 Non-Discrimination Lessee for itself, its representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (1) no person on the grounds of race, color, religion or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Leased premises and (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, religion or national origin shall.be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. In the event of breach of the above non-discrimination covenants, Lessor shall have the right to terminate the Lease pursuant to Article 7.2. 9.7 Relocation Lessee understands and agrees that this tenancy is of a temporary nature, and that no relocation payment will be sought or provided in any form as a consequence of this tenancy. 9.8 Condemnation If any of the premises shall be taken by eminent domain and a part thereof remains which is susceptible of occupation hereunder, this Lease shall, as to the part taken, terminate as of the date title shall vest in the Condemnor, and the rent payable hereunder shall be adjusted so that Lessee shall be required to pay for the remainder of the term only such proportion of such rent as the value of the part remaining after condemnation bears to the value of the entire premises at the date of condemnation; but in such event Lessor may terminate this Lease as of the date when title to the part so taken vests in the Condemnor. If all of the premises or such part taken thereof be so taken so that there does not remain a portion susceptible of occupation hereunder, this Lease shall thereupon terminate. If a part of the premises be so taken that there remains a portion susceptible of occupation hereunder, Lessee shall have the right to elect to terminate or continue the Lease. All compensation awarded upon any taking under this Article shall go to the Lessor, and Lessee hereby assigns to Lessor any right to compensation or damamges to which Lessee may be entitled by reason of any such taking; provided, however, that Lessor shall pay to Lessee such portion of condemnation award that equals the unamortized value of any affected improvements in accordance with the schedule described in Article 4.3 herein and attached hereto as Exhibit 9.9 Notices 3717.1 1 1 All notices and payments of rent shall be given to the Lessor in writing,personally or by mail, addressed as follows: San Francisco Bay Area Rapid Transit District, P.O. Box 12688, Oakland, California 94604-2688, Attention: Department Manager, Real Estate. All notices given by Lessor to Lessee shall be addressed as follows: Contra Costa County General Services Department 1220 Morello Ave. Suite 200 Martinez, CA 94553 Attn: Lease Manager .10 Entire Agreement This Lease constitutes the entire agreement between the parties, and it may be amended only in writing signed by both parties. No obligations other than those set forth herein will be recognized. 9.11 Severability If any term or provision of this Lease shall be determined by a court of competent jurisdiction to,be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 9.12 Cost of Suit If Lessor or Lessee shall bring an action for any relief against the other, declaratory or otherwise, arising out of this Lease, the losing party shall pay the successful party's reasonable attorneys' fees. 9.13 Governing Law This Lease shall be governed by the laws of the State of California. 9.14 Waiver No covenant, term or condition, or the breach thereof, shall be deemed waived, except by written consent of the party against whom the waiver is claimed. Any waiver shall not be deemed to be a waiver of any preceding or succeeding breach. Acceptance by Lessor of any performance by Lessee after the time the same shall have become due shall not constitute a waiver by Lessor of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by Lessor in writing. 3717.1 12 EXHIBIT A PARCEL DESCRIPTION AND MAP A portion of Parcels O-C244 and 244.1 as said parcels are shown on a map entitled, "San Francisco Bay Area Rapid Transit District, Record Map of Right of Way, Central Contra Costa Line" recorded in Book 3 of BART maps at page 7 in the Office of the County Recorder of Contra Costa County, being also a portion of Rancho Las Juntas, described as follows: BEGINNING at the point of intersection of the back of existing sidewalk located along the southerly side of Las Juntas Way with the easterly line of "Parcel One" as shown on a map entitled, "2nd Updated A.L.T.A. Survey" prepared by Aliquot Engineering dated Rev. 2, 3/1/89 and running thence (1) Easterly along the back of sidewalk, 87 feet more or less to an angle point in the sidewalk, thence (2) Southerly, along the westerly back of sidewalk, along a BART parking lot, 183 feet more or less to an angle point the sidewalk, thence (3) Westerly, along the northerly back of sidewalk along the northerly line of Wayne Drive 65 feet more or less, thence (4) Along the westerly line of the aforementioned "Parcel One" North 17.00 feet, thence (5) Along the same N 2° 24' 37" E. 37.05 feet, thence (6) Still along the same N 41 54' 55" E 124.98 feet to the point and place of BEGINNING Containing 0.31 acres, more or less. GABOB\LEVIPARK. DES EXHIBIT A Z } � S �h ✓� �, 1y , y8 J J Q J4 A1# r \ EXHIBIT R AMORTIZATION SCHEDULE (To be provided upon completion of park) ATTACHMENT 1 LIST OF IMPROVEMENTS AND UNAMORTIZED VALUE OF IMPROVEMENTS (To be provided upon completion of park) 9.15 Binding Effect Subject to any provisions herein as to assignment and subletting, the terms of this Lease shall bind and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written. irk CONTRA COSTA COUNTY SAN . FRANCISCO BAY AREA RAPID TRANSIT DISTRICT Tomrdo'(of ers, Chair Desha R. Hill Bo Supervisors Department Manager, Real Estate Attest: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By -- Deputy g: /park/final .lse 3717.1 13 CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT DATE: September 21, 1994 TO: Alan Pfeiffer, ger, ease Management Division jGeneralSp ent FROM: De ty Director-Redevelopment SUBJECT: BART Pocket Park Lease Enclosed for your records is the County's original copy of a lease between the San Francisco Bay Area Rapid Transit District (BART) and the County for the above referenced project. As you may know,this park will be developed by the County using Park Dedication Funds, and will be maintained through the County's Lighting and Landscaping District. lo Gcz.,, cz� i Ca P 7 ex I l Xlh Attachmait. cc: Skip Epperly(with attachments) Bob Baba(without anachments) File C5.1(q)(2) =16/pfeiffer.mem r This Lease, dated as of September 7, 1994, is between the SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT ('BART" or "Lessor"), and CONTRA COSTA COUNTY ("Lessee"). Lessor, in consideration of the rents and covenants herein to be paid, kept and performed by Lessee, and upon the condition that all thereof shall be fully paid, kept and performed by Lessee, hereby Leases to Lessee those premises as described herein. ARTICLE 1. PREMISES Lessor hereby Leases to Lessee, and Lessee hereby Leases from Lessor, for the term, at the rent, and upon the covenants and conditions hereinafter set forth, those premises situated in the County of Contra Costa, State of California, described and depicted on "Exhibit A" attached hereto and made a part hereof. ARTICLE 2. TERM AND RENT The term of this Lease shall be for fifty (50) years commencing November 1, 1994 and ending October 30, 2044, with right of termination by Lessor and Lessee as set forth in Article 9 herein, or as terminated earlier as provided herein. The rent shall be One Dollar ($1.00) per annum payable annually in advance, for each and every year, on or before November 1 of each year or payable in one lump sum of$50 for full term of lease. If lump sum is paid in advance, Lessor will refund Lessee balance of prepaid rent in event that lease is terminated by Lessor under provisions in Article 9.2. Lessee shall pay said rent to Lessor at the address designated in Article 9.8 herein, without deduction or offset. ARTICLE 3. USE 3.1 Specified Use Lessee shall use and occupy the premises only as an open-space public park and picnic area, and for no other purpose whatsoever without obtaining the prior written consent of the Lessor. 3717.1 1 3.2 Condition of Premises Lessee hereby accepts the premises in their condition existing as of the date set forth above, subject to all applicable zoning, municipal, county, state and federal laws, ordinances and regulations governing and regulating the use of the premises, and accepts this Lease subject thereto. Lessor has not made any representation or warranty with respect to the condition of the premises or the suitability thereof for the permitted use, nor has Lessor agreed to undertake any modification, alteration or improvement to the premises. 3.3 Compliance with Law Lessee shall not use the premises or permit anything to be done in or about the premises which constitutes a nuisance or waste or which will in any way conflict with any law, statute, zoning restriction, ordinance or governmental rule or regulation or requirements of duly constituted public authorities now in force or which may hereafter be in force insofar as. Lessee is subject thereto. Commencement of any proceedings to prohibit Lessee's use of the premises shall, at the option of the Lessor, be deemed a breach hereof. 3.4 Improvements Lessee shall not make any initial improvements or alternations to said premises until design, landscaping and improvement plans are reviewed by BART and written approval from BART is received by Lessee. Subsequent improvements or alternations shall also require review and prior written approval by BART. Any additions or alterations shall become at once a part of the realty and belong to the Lessor, unless otherwise agreed to by the parties in writing. 3.5 Utilities Lessee shall pay for all water, heat, light power, telephone and any other utilities supplied to the premises. 3.6 i n Lessee shall not place, or permit to be placed on the premises, any signs, advertisements or notices, without Lessor's prior written consent, except for signs identifying the 3717.1 2 park/picnic areas. 3.7 Vending Lessee shall not conduct or permit the vending or sale of any goods or services upon the premises. 3.8 Hazardous Materials Lessee shall not use, create, store or,allow any hazardous materials or waste on the premises. Lessee shall be responsible for and bear any costs of removal, disposal, cleanup or decontamination, on or off premises, caused by the placement of hazardous materials or waste onto the surface of the premises during Lessee's period of possession of the premises, except that the Lessee shall not be responsible for hazardous materials or waste introduced through underground seepage. Lessee shall not be responsible for hazardous materials or waste introduced to the premises through groundwater, surface water, ground seepage, or otherwise migrating to the property from an off-site location; as between Lessor and Lessee, the responsibiility for any cleanup, removal, disposal or decontamination of such hazardous materials will remain with Lessor. 3.9 Vehicles Lessee shall not park or store vehicles of any kind on the premises. ARTICLE 4. MAINTENANCE AND REPAIRS 4.1 Lessee's Obligations Lessee, at its own cost and expense, shall maintain the Leased premises, improvements and landscaping thereon, in good repair and in compliance with all requirements of law. Lessee shall designate in writing to Lessor a representative who shall be responsible for the day-today operation and level of maintenance, cleanliness and general order of the premises. 4.2 Lessor's Rights In the event Lessee fails to perform its obligations under this Article, Lessor shall give 3717.1 3 Lessee thirty (30) days written notice to do such acts as are reasonably required to so . maintain the premises. If Lessee fails to commence the work within the said thirty-day period or fails to diligently prosecute it to completion, Lessor shall have the right, but not the obligation, to do such acts and expend such funds at the expense of Lessee as are reasonably required to perform such work. Any amount so expended by Lessor shall be paid by Lessee promptly after demand. Lessor shall have no liability to Lessee for any damage, inconvenience or interference with the use of the premises by Lessee as a result of performing such work. 4.3 Condition of Premises on Termination or Expiration of Lease At the expiration or termination of this Lease, all improvements constructed on the premises by Lessee shall vest in Lessor, and Lessee shall deliver the leased premises together with said improvements to Lessor in good condition and repair, reasonable wear and tear excepted free and clear of all claims to or against them by Lessee, any sublessee or third party, and Lessee shall defend and hold Lessor harmless from all liability arising from such claims or from the exercise by Lessor of its rights under this Article. In the event the real property, excluding the improvements, is not delivered to Lessor in good condition and repair, reasonable wear and tear excepted, Lessor shall make the necessary maintenance and repairs and Lessee shall be liable to and shall reimburse Lessor for any such expenditure made. If Lease is terminated by Lessor according to terms in Section 9.2, Lessor will pay Lessee unamortized valued of improvements according to the schedule in Exhibit B. Upon completion of park construction, all such improvements to be reimbursed shall be detailed and added to this Lease as Attachment 1, which may be amended by the mutual agreement of parties from time to time as additional improvements are made. No payments shall be made by Lessor for improvements not listed on the Attachment —!. Lessor may elect within thirty (30) days before the expiration of the term, or within thirty (30) days after the termination of the term, to require Lessee to remove any improvements which Lessee has constructed on the premises. If Lessor so elects, Lessee at its cost shall restore the premises to the condition designated by Lessor in its election and/or remove the signs designated by Lessor in its election, within thirty (30) days after the end of the term, or within thirty (30) days after notice of election is given, whichever is later. ARTICLE 5. INDEMNIFICATION 5.1 Lessee's Responsibility to Maintain Premises It is expressly agreed that Lessee, rather than Lessor, is wholly responsible for maintaining safe conditions on the premises during the term of the Lease, and that the 3717.1 4 failure by Lessor to maintain, police or provide safety services on the premises does not constitute negligence. 5.2 Agreement to Indemnify and Defend Lessee shall indemnify and hold harmless the Lessor, its directors, officers, agents and employees harmless from all claims, costs, demands, suits, loss, damage, injury and liability (direct or indirect, including any and all costs and expenses in connection therewith) arising out of the negligent or wrongful acts or omissions of the Lessee pursuant to this lease and, if requested by Lesor, will defend any such actions at the sole cost and expense of the Lessee. ARTICLE 6. INSURANCE At all times during the life of this Lease, or as may further be required by this Lease, Lessee at its own cost and expense shall provide the insurance specified by this Article. 6.1 Evidence Required At or before execution of this Lease, Lessee shall provide Lessor with a certificate of insurance executed by an authorized representative of the insurer(s) evidencing that Lessee's insurance complies with this Article and a copy of any required endorsements. 6.2 Notice of Cancellation. Reduction or Material Change in Coverage. Policies shall be endorsed to provide thirty (30) days prior written notice of any cancellation, reduction or material change in coverage. Notices shall be forwarded to: San Francisco Bay Area Rapid Transit District P. O. Box 12688, Oakland, California 94607-2688 Attention: Insurance Manager 6.3 Oualifying Insurers All policies shall be issued by companies which hold a current policy holders alphabetic and financial size category rating of not less than A:X according to Best's Insurance Reports. 3717.1 5 6.4 Insurance Required A. Commercial General Liability Insurance for bodily injury(including death) and property damage which provides limits of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) annual aggregate. 1. Coverage shall include: a) Premises and Operations; b) Products/Completed Operations; c) Broad Form Property Damage; d) Contractual liability; e) Personal Injury liability; and f) Cross-Liability and Severability of Interests. 2. Such insurance shall include the following endorsements, copies of which shall be provided: a) Inclusion of BART, its directors, officers, representatives, agents and employees as additional insured as respects to lessee's operations in connection with this Lease; b) Stipulation that the insurance is primary insurance and that no insurance or self-insurance of BART will be called upon to contribute to a loss. B. Comprehensive Automobile Liabilityfor bodily injury (including death) and property damage which provides total limits of not less than One Million Dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles. C. Workers' Compensation/Employer's Liability Insurance Statutory Workers' Compensation and Employer's Liability insurance for not less than One Million Dollars ($1,000,000) per occurrence applicable to Employer's Liability coverage for all employees engaged in services or operations under this Lease. Coverage shall include a broad form all- states/other states endorsement and the insurer's waive of subrogation in favor of the District, its directors, officers, representatives, agents and employees. Should Lessee contract any work to be done on the Leased premises, Lessee shall require each contractor or subcontractor of any tier similarly to comply with this section, all in strict compliance with federal and state laws. 3717.1 6 6.5 Special Provisions A., The foregoing requirements as to the types and limits of insurance coverage to be maintained by Lessee and any approval of said insurance by Lessor is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Lessee pursuant to this Lease, including but not limitedto the provisions concerning indemnification. B. Lessor acknowledges that the insurance requirements contained in this article may be fulfilled by a funded self-insurance program of Lessee. However, this shall not in any way limit liabilities assumed by Lessee under this Lease. Any self-insurance program must be approved in writing by Lessor. C. Should any of the work under this Lease be contracted, Lessee shall require each of its contractor or subcontractor of any tier to provide the aforementioned coverage, or Lessee may insure its contractor(s) under its own policy(s). D. Lessor reserves the right to terminate the Lease, subject to the notice provisions of Article 7, in the event of material noncompliance with the insurance requirements of this article. ARTICLE 7. DEFAULT 7.1 Material Default The occurrence of any of the following shall constitute a material default and breach of this Lease by Lessee. A. Any failure by Lessee to pay rent or any other monetary sums required to be paid hereunder, where such failure continues for fourteen (14) days after written notice thereof has been given by Lessor to Lessee. B. A failure by Lessee to observe and perform any other provision of this Lease to be observed or performed by Lessee, where such failure continues for thirty (30) days after written notice thereof by Lessor to Lessee; provided, however, that if the nature of such default is such that 3717.1 7 it cannot be reasonably cured within such thirty (30) day period, Lessee shall not be deemed to be in default if Lessee shall within such period commence such cure and thereafter diligently prosecute it to completion. C. The making by Lessee of any general assignment or general arrangement for the benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Lessee the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets, where possession is not restored to Lessee within forty-five (45) days; or the attachment, execution or other judicial seizure of substantially all of Lessee's assets, where such seizure is not discharged within thirty (30) days. 7.2 Immediate Termination In the event of any material default or breach by Lessee, subject to the notice provisions of this article, Lessor may at any time thereafter, without limiting Lessor in the exercise of any right or remedy at law or in equity which Lessor may have by reason of such default or breach, terminate this Lease. 7.3 Lessor's Remedies Lessor's remedies upon termination shall include the following: A. The right to terminate Lessee's possession by any lawful means, in which case Lessee shall immediately surrender possession of the premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default. 7.4 Lessor's Right to Cure Lessee's Default Subject to the notice provisions of this Section, any time after Lessee is in default or material breach of this Lease; Lessor may cure such default or breach at Lessee's cost. Unless shorter notice is expressly provided for herein, Lessor shall give Lessee thirty (30) days written notice prior to curing such default or material breach at Lessee's cost. 3717.1 8 If Lessee has reasonably commenced to cure the default or material breach within the 30 day period, Lessor shall not have the right to cure such default or breach at Lessee's cost unless Lessee thereafter fails to complete the cure. If Lessor at any time, by reason of such default or breach, pays any sum of does any act that requires the payment of any sum, the sum paid by Lessor shall be-due immediately from Lessee to Lessor at the time the sum.is paid. ARTICLE 8. ASSIGNMENTS, SUBLEASES AND ENCUMBRANCES 8.1 Assignments and Subleases Lessee shall not assign, transfer or sublease its interest in this Lease or in the premises without first obtaining Lessor's prior written consent. Lessor's consent to any assignment, sublease or encumbrance shall not constitute a waiver of any of the terms, covenants or conditions of the Lease, which shall apply to each and every assignment or sublease of this Lease. Lessor's consent to one assignment or subletting shall not be construed as a consent to any other assignment or subletting. Lessee's failure to obtain Lessor's required prior written approval of any assignment or sublease shall render such assignment or sublease void. 8.2 Encumbrances Lessee shall not encumber the Leased premises in any manner whatsoever. Lessee shall keep the premises and the property in which the premises are situated free from any liens arising out of any work performed, material furnished, or obligations incurred by or for Lessee. ARTICLE 9. ADDITIONAL PROVISIONS 9.1 Ooen Space Requirements The parties acknowledge that this Lease, as long as it is in effect constitutes partial fulfillment of the open space requirements in the 1985 Acquisition and Development Agreement between Lessor and Lessee. 9.2 Termination This Lease may be terminated for cause by Lessor as set forth in Article 7. In addition, 3717.1 9 if Lessor, in its sole discretion, determines that the Leased premises are needed for transportation-related purposes, excluding joint development, Lessor may terminate the lease by giving written notice at least ninety (90) days prior to when such termination shall become effective. In addition,,if Lessor, in its sole discretion, determines that the leased premises are needed for transportation-related purposes, excluding joint development and, as a condition precedent to such termination the Lessor pays to Lessee the unamortized value of the improvements on the property as required by Section 4.3 of this Lease,. Lessor may terminate the Lease by giving written notice at least ninety (90) days prior to when such termination shall become effective.. 9.3 Quiet Enjgyment Lessor hereby agrees that Lessee, upon paying rent and other monetary sums due under the Lease and performing all obligations required to be performed herein, shall during the term of the Lease quietly hold and enjoy the premises without hindrance from Lessor. 9.4 Ins en ction Lessor shall have the right to enter upon and inspect the premises at reasonable times upon reasonable notice to ensure compliance with the requirements of this Lease. Lessor shall have the additional right to take samples of substances and materials present for testing should there be a concern that hazardous materials- have been placed on the premises. If Lessor performs any testing pursuant to this Section, it shall be the responsibility of Lessor, at Lessor's sole cost and expense, to restore the premises and any affected improvements, to their original condition prior to testing. Lessor shall indemnify, defend, save, protect and,hold harmless Lessee from and against all claims, demands, suits, loss damages, injury and liability (direct.or indirect, including any and all costs and expenses in connection therewith) arising our of or connected with any act taken by Lessor pursuant to this Section, including but not limited to taking samples, performing studies or tests on the leased premises. Notwithstanding any other provision of this Article 9.4, if hazardous materials other than hazardous materials introduced through underground seepage are discovered to have been introduced to the premises during Lessee's period of possession of the premises, Lessee shall be responsible for remediation as set forth in Article 3.8 herein. 9.5 Holding_Over Any holding over, with Lessor's consent, after the expiration of the term of the Lease, shall be a tenancy from month to month, and shall otherwise be on the terms of this Lease. 3717.1 10 ` 9.6 Non-Discrimination ' Lessee for itself, its representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (1) no person on the grounds of race, color, religion or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Leased premises and (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, religion or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. In the event of breach of the above non-discrimination covenants, Lessor shall have the right to terminate the Lease pursuant to Article 7.2. 9.7 Relocation Lessee understands and agrees that this tenancy is of a temporary nature, and that no relocation payment will be sought or provided in any form as a consequence of this tenancy. 9.8 Condemnation If any of the premises shall be taken by eminent domain and a part thereof remains which is susceptible of occupation hereunder, this Lease shall, as to the part taken, terminate as of the date title shall vest in the Condemnor, and the rent payable hereunder shall be adjusted so that Lessee shall be required to pay for the remainder of the term only such proportion of such rent as the value of the part remaining after condemnation bears to the value of the entire premises at the date of condemnation; but in such event Lessor may terminate this Lease as of the date when title to the part so taken vests in the Condemnor. If all of the premises or such part taken thereof be so taken so that there does not remain a portion susceptible of occupation hereunder, this Lease shall thereupon terminate. If a part of the premises be so taken that there remains a portion susceptible of occupation hereunder, Lessee shall have the right to elect to terminate or continue the Lease. All compensation awarded upon any taking under this Article shall go to the Lessor, and Lessee hereby assigns to Lessor any right to compensation or damamges to which Lessee may be entitled by reason of any such taking; provided, however, that Lessor shall pay to Lessee such portion of condemnation award that equals the unamortized value of any affected improvements in accordance with the schedule described in Article 4.3 herein and attached hereto as Exhibit B. 9.9 Notices 3717.1 11 a � All notices and payments of rent shall be given to the Lessor in writing, personally or by mail, addressed as follows: San Francisco Bay Area Rapid Transit District, P.O. Box 12688, Oakland, California 94604-2688, Attention: Department Manager, Real Estate. All notices given by Lessor to Lessee shall be addressed as follows: Contra Costa County General Services Department 1220 Morello Ave. Suite 200 Martinez, CA 94553 Attn: Lease Manager .10 Entire Ag=ment This Lease constitutes the entire agreement between the parties, and it may be amended only in writing signed by both parties. No obligations other than those set forth herein will be recognized. 9.11 Severability If any term or provision of this Lease shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 9.12 Cost of Suit If Lessor or Lessee shall bring an action for any relief againstthe other, declaratory or otherwise, arising out of this. Lease, the losing party shall pay the successful party's reasonable attorneys' fees. 9.13 Governing Law This Lease shall be governed by the laws.of the.State of California. 9.14 Waiver No covenant, term or condition, or the breach thereof, shall be deemed waived, except by written consent of the party against.whom the waiver is claimed. Any waiver shall not be deemed to be a waiver of any preceding or succeeding breach. Acceptance by Lessor of any performance by Lessee after the time the same shall have become due shall not constitute a waiver by Lessor of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by Lessor in writing. 3717.1 12 9.15 Binding Effect Subject to any provisions herein as to assignment and subletting, the terms of this Lease shall bind and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and assigns. IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written. CONTRA COSTA COUNTY SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT Tom ers, Chair Desha R. Hill Board of Supervisors Department Manager, Real Estate Attest: Phil Batchelor, Clerk of the Board eof Supervisors and County Administrator By Deputy g: /park/final .lse 3717.1 13 A portion of Parcels O-C244 and 244.1 as said parcels are shown on a map entitled, "San Francisco Bay Area Rapid Transit District, Record Map of Right of Way, Central Contra Costa Line" recorded in Book 3 of BART maps at page 7 in the Office of the County Recorder of Contra Costa County, being also a portion of Rancho Las Juntas, described as follows: BEGINNING at the point of intersection of the back of existing sidewalk located along the southerly side of Las Juntas Way with the easterly line of "Parcel One" as'shown on a map entitled, "2nd Updated A.L.T.A. Survey" prepared by Aliquot Engineering dated Rev. 2, 3/1/89 and running thence (1) Easterly along the back of sidewalk, 87 feet more or less to an angle point in the sidewalk, thence (2) Southerly, along the westerly back of sidewalk, along a BART parking lot, 183 feet more or less to an angle point the sidewalk, thence (3) Westerly, along the northerly back of sidewalk along the northerly line of Wayne Drive 65 feet more or less, thence (4) Along the westerly line of the aforementioned "Parcel One" North 17.00 feet, thence (5) Along the same N 21 24' 37" E. 37.05 feet, thence (6) Still along the same N 41 54' 55" E 124.98 feet to the point and place of BEGINNING Containing 0.31 acres, more or less. G. BOB\LEVIPARK. DES EXHIBIT A 1 y S C,,// A654e/se AC l Yle 1- w I �Al# �� r 0 ,l '3> EXHIBIT B AMORTIZATION SCHEDULE 20 Year Straight Line Depreciation for landscaping and concrete pedestals and walls 15 Year Straight Line Depreciation for all other items listed in Attachment 1 ATTACHMENT 1 LIST OF IMPROVEMENTS AND UNAMORTIZED VALUE -, OF. , IMPROVEMENTS (To be provided upon completion of park)