HomeMy WebLinkAboutMINUTES - 12031985 - T.5 Y
TO ' BOARD OF SUPERVISORS
FROM: Phil Batchelor, Cont
Executive Director
Costa
DATE: November 19, 1985
CO
SUBJECT: Joint Public Hearing on the purchase of leases on Southern Pacific ""'� �`�
Right of way, Pleasant Hill , BART Station Redevelopment Project.
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION
Hold a joint. public hearing of the Board of Supervisors and
the Redevelopment Agency regarding an Agreement between the
Agency and Park & Rail and Helix & Associates, Inc. to
purchase leasehold interests, and execution of a new lease
with Park & Rail for temporary parking facilities. affecting
former Southern Pacific Railroad right of way in the
vicinity of the Pleasant Hill BART Station Redevelopment
Project, and
1. Adopt a Resolution of the Board of Supervisors
approving said Agreement and new lease;
2 . Adopt a Resolution of the Redevelopment Agency
approving and authorizing the Executive Director
or his designee to execute said Agreement and new
lease; and
3 . Appropriate $124 , 000 for the,_ initial payment and
interest payments on the Agreement and direct that
the Fiscal 1985-86 Budget be amended accordingly.
FISCAL IMPACT
The purchase price of the existing Park & Rail and Helix &
Associates, Inc. parking lot leases is $500 ,000 to be paid
as follows:
- $100 ,000 cash down payment
- $48 ,000; per year for seven years, representing
interest only payments on the unpaid balance.
- A "Balloon Payment" of $400, 000 at the end of seven
years. ,
The initial down payment is to be appropriated from existing
Agency cash. Interest and balloon payments are expected to
be available from income from a new lease to P rk & Rail in
which the Agency will receive 60% of gross re 1ipts of the
business on the property.
CONTINUED ON ATTACHMENT: _AYES SIGNATURE:
RECOMMENDATION OF COUNTY '!ADMINISTRATOR RECOM ND ON BOARD MMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD:'ON D e'c.e mb er 3 1985 APPROVED AS RECOMMENDED XX OTHER
The Chairwoman declared the joint public hearing open . No one having
appeared to speak against the purchase of leases , the Board of Supervisors -
and as the Board of Commissioners of the Redevelopment Agency closed the . -
public hearing and proceeded to adopt resolutions 85/706 and RA-85-18 .
VOTE OF SUPERVISORS
1 HEREBY CERTIFY E IFY THAT THIS ISA E
X UNANIMOUS (ABSENT ----' AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
December 3 , 1985
cc: Distribution by Redevelopment ATTESTED
Agency ,* PHIL BATCHELOR, CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY �- ,DEPUTY
M382/7-83
Joint Public Hearing
November 19 , 1985
Page 2
u
Staff estimates that the Agency will recover all costs of
lease acquisition from the new lease revenue, and may
possibly come out ahead.
BACKGROUND/REASONS FOR RECOMMENDATION
To implement the Pleasant Hill BART Station Redevelopment
Project the Agency has purchased (or has Agreements to
purchase) several segments of former Southern Pacific
Railroad right of way in the vicinity of the Pleasant Hill
BART Station. ! Portions of the right of way between Seemas
Lane and the Contra Costa Canal are encumbered by existing
leases which were not bought out as part of the property
acquisition. These leases must be cleared out before the
right of way can be used for circulation improvements
intended to serve development in the area. The most
immediate need is for widening and realignment of Jones
Road, which is scheduled for immediate construction.
The Agreementreachedwith the leaseholders, Park & Rail and
Helix & Associates, Inc. , and recommended by Staff allows
the Agency to take the property as needed for public
improvements. 'l It also minimizes immediate cash outlay by
the Agency; provides for an income stream to cover costs;
and retains as much parking as possible during critical
construction periods at the BART Station.
CONSEQUENCES OF NEGATIVE ACTION
A negative act'ion will seriously delay the Agency' s
commitment to complete the widening and realignment of Jones
Road in the Project Area. In all likelihood other
alternatives will: cost more than the Agreement under
consideration,1 cost more in "up front" cash; or, further
delay the project.
al
f
f
THE REDEVELOPMENT AGENCY OF CONTRA COSTA. COUNTY, CALIFORNIA
December 1 19$5
Adopted this Order on , by the following vote:
f
AYES: Commissioners Powers, Schroder, McPeak, Torlakson, Fanden
NOES: bone
ABSENT: None
ABSTAIN: Nobe
XE6UTUTiUN
SUBJECT. Purchase of Leases on Former Southern Pacific Railroads
Right of way, Pleasant Hill BART Station Redevelopment
Project.
The Contra Costa County Redevelopment Agency, is in receipt
of an Agreement from Park & Rail, a California Partnership
in which Helix, & associates, Inc. , and Samuel P. Young, Inc.
are partners, to terminate and assign certain leases to the '
Agency affecting former Southern Pacific Railroad right of
way in the vicinity of the Pleasant Hill BART Station
Redevelopment Project. The Agreement provides for a ;
purchase price� of $500,000 and for the Agency and Park &
Rail to execute a new lease for temporary operation of
parking facilities.
In accordance with California Community Development Law
(Health and Safety Code Sec. 33433) Ithe Agency has prepared
a summary report on the new lease; the new lease and summary
report have been made available for public -inspection; and
the Agency and" Board of Supervisors have held a duly noticed
public hearing to consider the Agreement and new lease.
The Agreement and the new lease are in the best interest of
the County and the Agency, and are necessary for the
implementation,� of the Pleasant Hill BART Station Area
Redevelopment Plan.
The Agency finds that the purchase price of existing leases
from Park & Rail and Helix &' Associates, Inc: is not more
than the fair market value of those leases over their
remaining term'; and the lease payments to be made by Park &
Rail under the new lease are not less than fair market value
for-:the leasehold interests conveyed to Park & Rail
determined at~ithe highest and best use permitted under the
Redevelopment Plan.
Therefore, the Agency does hereby resolve that:
1; Its ;Executive Director or his designee is
authorized to execute that certain Agreement with
Park & Rail and Helix & Associates, Inc. , attached
hereto and made a part hereof, terminating and
assigning certain leases affecting former Southern
Pacific Railroad Right of way in the vicinity of
the 'Pleasant Hill BART Station Area Redevelopment
Project;
2 . The 'Executive Director or his designee is
authorized to execute such other documents and
take such actions as may be necessary to carry out
the ;;Agreement with Park & Rail; and
3 . The:, Agency hereby appropriates the sum of $100,000
from Agency funds for the initial payment to Park
& Rail under the terms of the Agreement, and the
sum; of $24 ,000 for interest payments for the
remainder of Fiscal Year 1985-86, and directs that -
the° Agency Fiscal Year 1985-86 budget be amended
accordingly.
t hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Redevelopment Agency on the date shown.
ATTESTED: December 3, 1985
PHIL BATCHELOR,Agency Secretary
By .�9_ � ,. Deputy
Distribution by
Redevelopment Agency
RESOLUTION NO.
L- -.or; TERMINATION AND ASSIGNMENT AGREEMENT
This Agreement is made this day of ,
1985, by and between the Contra Costa County Redevelopment
Agency ("Agency") ,land Park & Rail, a California partnership
("Park & Rail") in which Helix & Associates, Inc. , a
California corporation ("Helix") and Samuel P. Young, Inc. , a
California corporation ("Young") are partners, and Helix with
reference to the following facts:
A. Park & Rail is the lessee under a lease dated
, 1983 between Lessee and Randall, Earle &
Craig and others as lessor ("REC Lease") . Helix is the
lessee under ,a lease dated , 1983 between
Helix and Southern Pacific Company ( 'SP Lease") .
B. The property that is subject to the SP Lease has been
acquired by the Agency. The Agency has contracted to-
purchase
opurchase but "has not yet acquired the property that is
subject to the REC Lease. The property that is the
subject of the SP Lease is described in the attached
Exhibit A-1 and is referred to herein as the "SP
Property" . The property that is subject to the REC Lease
is described in the attached Exhibit A-2 and is referred.
to herein as the "REC Property". The SP Property and the
REC Property !!lare referred to herein collectively as the
"Property".
C. Agency and Helix desire to terminate the SP Lease, to
assign Park & Rail 's interest in the REC Lease to the
Agency and all parties desire to provide for Park & Rail
to operate a1parking lot and related facilities on the
Property.
THEREFORE, the parties agree as follows:
1 . Termination of SP Lease. At the Closing, the SP Lease
shall terminate and upon such termination neither Helix nor
the Agency shall have any rights, obligations or liabilities
with respect to the other party under the SP Lease.
2. Assignment of REC Lease. At the Closing, Park & Rail
shall assign all its right, title and interest in the REC
Lease to the Agency pursuant to an assignment substantially in
the form as set forth in Exhibit B. The REC Lease shall
terminate upon the Agency's acquisition of the REC Property or
if the Agency acquires less than the entire REC Property, the
REC Lease shall terminate only as to that portion of the REC
Property so acquired.
3 . Lease to Park & Rail. At the Closing, Park & Rail and
Agency shall enter into a lease and sublease for the Property
-1-
(the "New Lease") The New Lease shall be in substantially
the form and substance as the lease attached hereto as Exhibit
C.
4. Payments to Lessee. In consideration of Park & Rail 's
and Helix' s agreement to terminate the SP Lease, assign the
REC Lease to the Agency and enter into the New Lease, Agency
shall pay to Park ''& Rail the sum of $500,000.
5 . Timing of Payments. The amount to be paid to. Park &
Rail pursuant to Paragraph 4 shall be paid in the following
manner: a $100 ,006 initial payment shall be made on or before
the Closing. The ''remaining $400, 000 shall be evidenced by a
note executed by the Agency on or before the Closing in favor
of Park & Rail. Said note shall provide for interest on the
unpaid principal amount of the note at the rate of 12% per
annum with payments of interest only to be made semi-
annually. The principal amount of the note shall be all due
and payable sevenh�years from the date of the note and may not
be prepaid. The note shall be substantially in the form of
the note set forth in Exhibit D attached hereto.
6 . Closing. The Closing shall occur on or before December
20, 1985 . At the ;IClosing, Park & Rail shall execute and
deliver to the Agency:
a. A duly acknowledged quitclaim deed conveying Park &
Rail 's interest in such portion of the REC Property
then owned by Agency.
b. The assignment of the REC Lease as specified in
Paragraph 2.
C. The New Lease as specified in Paragraph 3.
At the closing Helix shall execute and deliver to the Agency:
a. A duly acknowledged quitclaim deed conveying Helix's
interest in the SP Property.
At the Closing, Agency shall execute and deliver to Park &
Rail:
a. The note as specified in Paragraph 5.
b. The New Lease as specified in Paragraph 3.
In addition, at the Closing the Agency shall deliver the sum
of $100, 000 to Park & Rail as specified in Paragraph 5.
7. Waiver of Right of First Refusal. Park & Rail
acknowledges that ;iijthe REC Lease gives Park & Rail a right of
first refusal to purchase the REC Property. Park & Rail
hereby waives such right of first refusal with respect to
-2-
purchase of the REG Property or portion thereof by the
Agency.
8. Waiver of Compensation and Relocation Benefits. Park
Rail, Helix, and Young acknowledge that the agreements and
considerations ofj� the in this Agreement are in lieu of
condemnation of their respective interests in the REC Property
and the SP Property. Therefore, Park & Rail, Helix, and Young
agree and acknowle' dge that the considerations under this
Agreement represent full payment for any claim Park & Rail,
Helix or Young has made or could have made -against the Agency
or the County of Contra Costa for compensation for the
Property, leasehold interests in the Property, improvements on
the Property, loss of go6dwill, severance damages, interest,
costs, litigation:9 expenses, damages for unreasonable
precondemnation activity, compensation for inverse
condemnation, andfbenefits or payments under the Relocation
Law (Government Code - Sections 7260 et seq. ) and arising from
actions taken by the Agency or the County of Contra Costa to
acquire the Property or interests therein or to regulate the
land uses permitted on the Property and from the actions
contemplated by this Agreement.
CONTRA COSTA COUNTY
REDEVELOPMENT AGENCY
b
Phil Batchelor, Executive
Director
Park & Rail, a California
partnership
by its partners:
Helix & Associates, Inc.
by_, its
Samuel P. Young, Inc.
by its
Helix & Associates, Inc.
by r its
#025/A15301
-3-
Z
IL
post
PLEA-S&Or HILL J60
tma-
21
016
"o
vim,
LLIN
SCHOOL 13
SLO
ang
0
sole
m. 00r
7
X.5
4I r /5 p!
BA FIT Z'- j -7
1ASAWT HILL
k�e! 7-7
L
OF
'.N
811"tft HILL CALIF WATER
PC SERVICE CO
L A RIT r
/^ sue ,� l J _ :. .. r a'Y,.r. ,,,
;7
I—se
I.
�T
wc
EXHIBIT A
PROPERTY PROPOSED FOR
LEASE AND SUBLEASE
17
AL r
4
EXHIBIT A-1
SP PROPERTY
�I
EXHIBIT A-2
REC PROPERTY
i
EXHIBIT B
ASSIGNMENT
For value received receipt of which is hereby
acknowledged, Park & Rail, a California partnership
("Assignor") hereby assigns to the Contra Costa County
Redevelopment Agency all its right, title and interest in and
to that certain lease dated by and between
Assignor as lessee and Randall, Earle & Craig, a Nevada
Corporation, Allan M. Ballard, Norvall A. Ballard, and
Florence A. Parsons as lessors .
9i
Y
Park & Rail, a California
partnership
By its partners:
Helix & Associates, Inc.
by its
Samuel P. Young, Inc.
I
by its
#026/A15301
i
�I
u
EXHIBIT C
LEASE
SOUTHERN PACIFIC RIGHT OF WAY
AT PLEASANT. HILL BART STATION
1. Parties and Date: Effective on ,
Contra Costa County Redevelopment Agency, a political
subdivision of the State -of California, hereinafter referred
to as "Lessor" , and Park & Rail, a California partnership,
hereinafter referred to as "Lessee", hereby mutually promise
and agree as follows:
'b
2. Lease of Preimses: Lessor, for and in consideration of
the rents and for 1the terms and upon covenants and conditions
herein, hereby leases to Lessee and Lessee leases from Lessor
that certain parcei1 of land, consisting of approximately
310,000 square feet , more or less, shown on Exhibit "1" and
further described 4n Exhibit "2" , both exhibits attached
hereto and made apart hereof. Lessor and Lessee understand
and acknowledge that the Lessor does not own but has
contracted to purchase a portion of the demised premises and
that Lessor is leasing that portion of the demised premises
from the current owner. With respect to that portion of the
demised premises which the Lessor does not own, this Lease
shall be considered a sublease until such time as the Lessor
acquires title tor�such portion of the premises.
3. Term: This pease is for the term commencing on the
effective date aslgjset forth in Section 1 above and ending on
September 30, 1992.
4. Use:
a. Lessee shall use the demised premises for the purpose
of condueIting thereon the business of- a parking lot
and/or vehicle storage and for incidental purposes
related thereto; provided, however, that Lessee shall
not use the demised premises in such a manner as to
violate any applicable law, rule, ordinance or
regulation of any governmental body. Lessee shall
not permit transient or permanent occupation of
vehicles !, arked or stored on the premises.
°I
b. Lessee stall not use, or permit said premises or any
part thereof to be used, for any purpose or purposes
other than those for which the said premises are
hereby leased. -
-1-
AI
5. Standards ofjOperation: During the term of this Lease,
Lessor shall operdte the facilities on the demised premises in
a reasonable, prudent and efficient manner.
6. Rental:
�i
a. In consideration for this lease, Lessee agrees to pay
Lessor on or before the first day of each and every
month during the term hereof, commencing with the
tenth day of the calendar month following the date of
execution of this Lease by Lessor as follows: Sixty
percent (60%) of the gross receipts of the business
conducted on tha demised premises. Within ten (10)
days after the end of each month, Lessee shall pay
any rents due for that month and deliver to Lessor a
monthly statement signed by a responsible accounting
officer of the Lessee, who shall verify the accuracy
of the Statements therein of the monthly gross
receiptsof any business conducted on the demised
premises.
b. "Gross Receipts" means the gross income from rental
of parking spaces, including rental paid in advance,
and the gross selling price of all merchandise or
servicesljsold, leased, licensed or delivered in or
from the premises by Lessee, its permitted
subtenants, licensees or concessionaires, whether for
cash or on credit (whether collected or not) ,
including the gross amount received by reason or
orders taken on the premises although filled
elsewhere, and whether made by personnel or vending
machines: Any transaction on an installment basis or
otherwise involving the extension of credit, shall be
treated is a sale for the full price at the time of
the transaction, irrespective of the time of payment
or when title passes'.
c. Lessor shall have the right to review prices charged
by Lessee or any subtenant of Lessee and to regulate
said prices at its sole discretion.
7. Amendments to Account for Capital Improvements: In
entering into this Lease, the parties du not contemplate that
the County of Contra Costa will require Lessee to make
additional capital improvements on the premises as a condition
to Lessee's use or operation of the premises for the uses
permitted under this Lease. Therefore, Lessor and Lessee
agree that if the° County of Contra Costa requires that capital
improvements be made to the premises as a condition of
obtaining or exte`""ding any permits or approvals to use or
operate the facilities on the premises, then Lessor and Lessee
shall negotiate in good faith for an amendment to this ,Lease
to provide for construction of the capital improvements and to
provide for allocation of the costs of those capital
-2-
improvements betwe en Lessor and Lessee through direct payment
of the costs of those ose improvements, adjustments in rent or
amendment of other"' provisions of this Lease. If Lessor and
Lessee cannot agree upon an acceptable amendment within sixty
(60) days following the final action of the County of Contra
Costa imposing requirements to construct capital improvements,
then either Lessor or Lessee may terminate this Lease by
giving thirty (30)!l days prior written notice of such
termination. Forl�the purposes of this Section 7, capital
improvements shall include improvements made pursuant to
Section 18 or improvements made as a condition of use of the
portion of the premises described in the attached Exhibit "4",
provided, howeveor �� that the exclusion of improvements of the
portion of the premises described in the attached Exhibit "4"
from the provisions of this Section 7 shall not be deemed to
preclude Lessee from requesting amendments to this Lease as a
condition to under"'taking improvements to the portion of the
.premises described in the attached Exhibit "4".
S. Late Charges: If any rent is not paid to the Lessor
within fifteen (15) days after due date, a late charge of ten
pe'rcent (10%) of t'he payment due shall be added to the payment
and the total sumshall become immediately due and payable to
Lessor.
9. Delinquent Rent: in the event that Lessee shall become
delinquent in paying to Lessor any payment (including late
Y
charges) due under Section 6 (Rental) , or Section 8 (Late
Charges) herein, for a period of thirty (30) days or more,
Lessee shall pay to Lessor interest on said unpaid balance at
a rate of one andi�nine tenths percent 41.9%) per month, from
the date said payment was due and payable until paid.
10. Records and Audit: Lessor or its agents or employees
shall have the right to inspect the books and records of
Lessee or any subtenant
enant of Lessee from which the statement of
gross receipts isprepared at any reasonable time upon
twenty-four (24) hours prior notice to Lessee. For this
Ot
purpose, Lessee or any -subtenant of Lessee shall, for a period
of two (2) years after submission to Lessor of any such
statement, keep safe and intact all of said records, books,
accounts, and other data and -shall upon request make the same
available to Lessor, Lessor's Auditor representative or agent
for examination a�jji any time during said two (2) year period.
X
The cost of said 'audit shall be borne by Lessor unless the
audit reveals a discrepancy of more than four percent (4%)
between the rent due as reported by Lessee in accordance with
this lease and rent due as determined by said audit. In
the event of said greater discrepancy, the full cost of the
audit, as dete 0!' ed by the Lessor's Auditor Controller, shall
be paid by LesseeI. If the results of an audit indicate that
additional rent il's due, Lessor shall give Lessee notice, of
such additional rent and Lessee shall pay such additional rent
within ten (10) days of receipt of such notice together with
-3-
the applicable late charges and interest specified in Section
8 and Section 9.
Lessor shall;� be provided with a co of an audit of .
��, P PY Y
Lessee's business, if requested by Lessee from a public
accountant of its';, own selection and at Lessee's own cost and
expense.
11 . Utilities: .,Lessee shall pay for all water, gas, light,
power, telephone service, sewer service and all other services
supplied to the said premises, including installation and
connection of said services.
12. Cancellation!!„i by Lessor: Lessor may cancel this Lease
with respect to all or portions of the premises as specified
below by giving Lessee sixty (60) days prior written notice
under any of the 'following conditions:
a. Jones Road: If Lessor, at its sole discretion,
determines that a portion of the premises shown in
Exhibit 73” attached hereto and made a part hereof is
needed for the Jones Road extension, Lessor may
cancel this Lease with respect to that portion of the
premises shown in Exhibit "3" or a portion thereof.
b. Recreational Vehicle Parking Area: If Lessee has not
obtainedlall required permits and approvals and
completed improvements required to use the area
described in Exhibit "4" attached hereto and made a
part hereof for vehicle storage prior to December 31,
1987, Lessor may cancel this Lease with respect to
that portion of the premises shown in Exhibit "4".
C. Trail: If Lessor, at its sole discretion, determines
that a portion of the premises is needed for a trail,
pedestrian and/or bicycle, Lessor may cancel this
Lease with respect to that portion of the premises
necessary for such trail. In selecting a location
for such trail Lessor shall make good faith efforts
to select a location which will, to the extent
physically and economically feasible, cause the least
disruption with Lessee's operations on the remainder
of the premises.
d. Transportation Corridor: If Lessor, at its sole
discreti'„on, determines that all or a portion of the
premises°' is needed for a transportation corridor,
Lessor may cancel this Lease with respect to all or
the portion by the premises needed for such
transportation corridor.
13. Cancellation�Jby Lessee: Lessee may cancel this Lease
with respectl[ to all of the premises by giving Lessor
sixty (60) drays prior notice.
-4-
i
14 . Construction''Ilof Improvements by Lessee:
a. Lessor'sl' Consent. No external structures,
improvem' nts or facilities shall be constructed,
erected,� altered or made within the demised premises
without Lessor's prior written consent. Any
conditions relating to the manner, method, design and
construcition of said structures, improvements or
facilities fixed by Lessor shall be conditions hereof
as though originally stated herein.
b. Strict Compliance with Plans and Specifications.
All improvements constructed by Lessee within the
demised premises shall be constructed in good and
workmanlike manner and in strict compliance with
detailed'','; plans and specifications approved by
Lessor.
C. "As-Built" Plans. Within sixty (60) days following
completion of any substantial improvement within the
demised premises, Lessee shall furnish Lessor a
complete'lIset of "As-Built" plans.
o'
d. Freedom ifrom Liens. All improvements and
facilities constructed or placed within the demised
premiseslby Lessee must, upon completion, be free and
clear ofII all liens, claims or liability for labor or
material;.
Lessee shall at all times defend, indemnify and save
Lessor h'�armless from all claims for labor or
materials°s in connection with construction, repair,
alterati"on or installation of structures,
improvements, equipment or facilities within the
demised °premises, and from the cost of defending
against""'such claims, including attorney's fees, save
and except for claims or liability arising from the
sole neg'',jligence of Lessor.
e. Signs. Lessee agrees not to construct, maintain or
allow any sign upon the demised premises, except
those si4ns approved in writing by Lessor.
Unapproved signs, banners, flags, etc. , may be
removed1'by the Lessor at Lessee 's expense. All signs
so approved shall comply with any applicable sign
ordinance.
15. Bonds: Prior to the commencement of any construction
hereunder and wit'Yhin fourteen (14) days after Lessor's final
approval of the plans and specifications, Lessee, at its sole
cost and expense, shall furnish to Lessor a surety bond
executed by a surety company licensed to transact business in
the State of Cali'i;fornia, or other type of bond security
satisfactory to the Lessor, with Lessee's contractor or
- -5-
.. el
tl
' 4
contractors as principals, in a sum of not less than fifty
percent (50%) of the total estimated cost of the construction
contracts for the improvements and other necessary
appurtenances spec++lified herein, guaranteeing the payment for
all labor, materials, provisions, supplies and equipment used
in, upon, for or about the performance of said construction
work or labor done„ thereon of any kind whatsoever and
protecting the Lessor from any liability, losses or damages
arising therefrom. Lessee shall also provide Lessor a similar
surety bond in any amount equal to the estimated cost of the
construction of the improvements, guaranteeing faithful
performance of said construction contracts. If Lessee obtains
from its contractor or cdntractor such bond or bonds in like
amount which are satisfactory to the Lessor, the Lessor, upon
application to Lessor by Lessee and upon naming Lessor as an
additional obligeeliof Lessee 's principal and surety under such
bond or bonds, may, release Lessee from and consent to the
cancellation of tRe bond or bonds originally furnished by
Lessee.
16. Maintenance and Repairs:
a. Lessee' s )"Obligation. Lessee shall, at its sole cost
and expeh['se, keep and maintain the demised premises
and all �`m, rovements of any kind which may be
erected, nstalled or made thereon in substantial
repair. it shall be Lessee 's responsibility. to take
all steps";� necessary or appropriate to maintain such a
'standardof condition and repair.
Lessee exhpressly agrees to maintain the demised
premises !, n a safe, clean, wholesome and sanitary
conditionfto the complete satisfaction of Lessor and
in compliance with all applicable laws. Lessor shall
have theQright to enter upon and inspect the demised
premises `at any time for cleanliness and safety.
Lessee acknowledges that it has inspected the
11
premisesq�nd that the premises are in good condition.
b. Lessor' s "Right to Repair. If Lessee fails to
maintain {"or make repairs or replacements as required
herein, Lessor may notify Lessee in writing of said
failure. Should Lessee fail to correct the situation
within al`ieasonable time thereafter, as established
by Lessor6, Lessor may make the necessary correction
and the cost thereof, including, but not limited to,
the cos of labor, materials and equipment and
administrIation, shall be paid by Lessee within ten
(10) days of receipt of a statement of said cost from
Lessor. ;;Lessor may, at its option, choose other
remedies ;:available -herein or by law.
-6-
�I
al
17 . Waste, QuietllConduct: Lessee shall not commit or,, suffer
to be committed any waste upon said premises, or any nuisance
or other act or thing which may disturb the quiet enjoyment of
the surrounding and adjoining property.
18. Unlawful Use; Lessee agrees that no improvements shall
be erected, place upon, operated or maintained within the
demised premises,] nor any business conducted or carried on
therein or therefrom, in violation of the terms of this Lease,
or of any statute; ordinance, regulation or other rule of any
governmental agency having jurisdiction.
21
19. Damage To Or�,IDestruction Of Improvements: In the event
of damage to or destruction of Lessee's improvements or in the
event Lessee 's improvements located on the demised premises
are declared unsafe or unfit for use or occupancy by a public
entity with the authority to make and enforce such
declaration, including Lessor, Lessee shall, within thirty
(30) days, commence and diligently pursue to completion, the
repair, replacement or reconstruction of improvements
necessary to permit full use and occupancy of the demised
premises for the purposes permitted by this lease. Repair,
replacement or reconstruction of improvements within the
demised premises shall be accomplished in a manner and
according to plans approved by Lessor.
20. Insurance: ,Lessee shall procure and maintain, at its
sole cost and expense, and at all times during the term of
this lease., the following coverage:
a. Public Liability and Property Damage Insurance:
Lessee shall obtain and maintain owner's landlord's
and tenant's public liability insurance covering and
insuring'lall parties hereto (including Lessor and the
County of Contra Costa and their respective officers
and employees as additional, insureds under the
policy) with a minimum combined single-limit coverage
of One Ma.11ion And No/100 Dollars ($1 ,000,000.00) for
all damages due to bodily injury, sickness or
disease,J� or death to any person and/or damage to
property; including the loss of use thereof, arising
out of each accident or occurrence. Evidence of such
insurance shall be provided by the Lessee by filing
with Lessor a copy of the policy or policies, or a
duly executed certificate to the effect that the
insurance required by this lease is extended. Said
policy or policies or certificates shall contain the
provision that written notice of cancellation or of
any material changes shall be delivered to Lessor at
least th- rty (30) days in advance of the effective
date thereof. From time to time, Lessor may require
Lessee to adjust amount of said coverage.
k
i
-7-
b. Worker' s ',!Compensation Insurance: Lessee shall
obtain and maintain insurance to protect him from
claims under worker's or workmen's compensation acts
and other employee benefit acts, claims for damages
because of bodily injury, including death, and from
claims for damages to property which may arise out of
or result from the Lessee 's operation under this
Lease, whether such operations be by himself or by
any sublessee or anyone directly or indirectly
employed ,,',lby any of them. This insurance shall be
written for not less than any limits of liability
required -"',by law. Certificates of such insurance
shall be ''Ifiled with the Lessor prior to the
commencement of 'the Lease.
21 . Condemnation:
a. If any part of the premises shall be taken as a
result of the exercise of the power of eminent domain
or be conveyed to any entity having such power under
threat of exercise thereof (both of such actions
being hereinafter referred to as "condemnation") ,
this Lease shall automatically terminate as to the
portion of the premises which is condemned, as of the
date physical possession of such portion is taken by
the condemnor.
b. If the remaining part of the premises will not be
reasonabiy suitable for the operation of Lessee's
facility; this Lease may be terminated by either
Lessor or Lessee at any time within thirty (30) days
after the date possession of the condemnation portion
is taken ,liby the condemnor, and any unearned rent
theretofore paid by Lessee shall be refunded. If the
remaining part of the premises will be reasonably
suitable- 'for the operation of Lessee's facility, this
Lease may continue in full force and effect as to
such remaining part.
c. Lessee hereby waives any rights it has now or in the
future to receive any portion of any award made or
compensation payable by reason of the condemnation of
the premises, portion thereof interest therein or
improvements thereon. In addition, Lessee hereby
assigns to Lessor any claim Lessee may have with
respect of loss of goodwill caused by the taking of
the premises a portion thereof. Lessee further
agrees to co-operate with Lessor in asserting or
litigating any claim for loss of goodwill so assigned.
22 . Taxes: ThisyLease may result in the creation of
possessory interests subject to property taxation and Lessee
may be subject tolthe payment of property taxes levied on such
interest. Lessee'� agrees that this provision complies with the
-8-
notice provisions ',,iof Revenue and Taxation Code Section 107.6,
and waives all rights to further notice or to damages under
that or any comparable statute.
rl,
Lessee shall jfpromptly pay all taxes and assessment which
shall become due and payable during the occupancy of said
demised premises under any levy or assessment by County or
other legally authorized governmental authority upon the
improvements, equipment, fixtures and personal property which
Lessee may erect or place therein.
y
23. Inspection And Notice: Lessor or its agents shall at
any and all timeshave the right to go upon and inspect the
land and premises ;reby leased and any and every improvement
erected or constructed or in the course of being erected or
constructed, repaired, added to, rebuilt or restored thereon
and also to serve !lor to post and to keep posted thereon, or in
any part thereof, notices of nonresponsibility, or any other
notice or noticesJ�that may at any time be required or
permitted by law. .;
24 . Assignment, Subletting And Encumbrances: Lessee shall
not assign this lease, or any interest therein, and shall not
sublet the demised premises, or any part thereof or any right
or privilege appurtenant thereto, without the prior written
consent of Lessor! Any such assignment or subletting without
such prior consent shall be void and Lessor shall have the
option to terminate this Lease therefor. Lessee shall not
mortgage or encumber its interest created hereby or any part
thereof, unless written consent of Lessor is first obtained.
The above assignment provisions do not apply to heirs by
will, devise or intestacy or other transfers by operation of
law or to an assignment to Samuel P. Young, Inc. or Helix &
Associates, Inc. The above provisions regarding subleasing do
not apply to leasing parking or vehicle storage as provided
for in this Lease,!
'f
Lessor agree'" that it will not arbitrarily withhold its
consent to any requested assignment or sublease of Lessee 's
interest herein, but Lessor may withhold consent, at its sole
discretion, if any of the following conditions exist:
1 . Lessee or any of his successors or assigns are -in
default in any term, covenant or condition of this
lease whether notice of default has or has not been
given by"l Lessor.
2. The prospective assignee, sublessee or other
transferee has not agreed in writing to keep, perform
and be b°ound by all the terms, covenants and
conditions of this lease.
+I
_g_
,l
3. The proc'"essing fee required by Lessor and set out
below has not been paid to Lessor by delivery of said
fee to Le'° ssor; a fee (which may be adjusted from time
to time at the sole discretion of the Lessor) of
Seven Hundred And No/100 Dollars ($700.00) shall be
paid to Lessor for processing each application for
assignment, transfer or sublease submitted to Lessor
as required by this lease . This processing fee shall
be deemed earned by Lessor when paid and shall not be
refundable.
4 . The prospective assignee, sublessee or transferee has
demonstrated l to!the reasonable satisfaction of
Lessor, the abiiity to manage and operate the
facilities on the premises.
25 . Bankruptcy And Insolvency: If the Lessee be adjudicated
as bankrupt or become insolvent, or if possession of any
interest in the demised premises shall be taken by virtue of
any attachment, execution or receivership, the Lessor may, at
its election, unless, within ninety (90) days such bankruptcy
proceedings be terminated in favor of lessee and/or such
insolvency be cured and/or such possession regained,
immediately terminate this Lease by service of notice to such
effect upon any aaultlperson found in possession of said
premises, or as provided in Section 33, Notices, below.
26. Surrender Of'', Possession: Lessee agrees to yield all
improvements and facilities constructed or placed within the
demised premises :and shall become the property of Lessor at
the expiration of'lithis lease or upon earlier termination or
cancellation-., hereof, and deliver to Lessor possession of the
premises leased herein at the termination of this lease by
expiration or othel" rwise, in good condition, normal wear and
tear excepted. Lessee shall promptly remove all signs and
other personal property from the premises.
27. Default: The occurrence of any of the following shall
constitute a default by Lessee:
1. Failure to pay when due rent or any other payment
requirediunder this Lease, if the failure continues
for fifteen (15) days after notice has been given to
Lessee.
2. Abandonment and vacation of the premises. Failure to
occupy and operate the premises for ten (10)
consecutive days shall be deemed and abandonment and
vacation'?:
3. Failure to perform any other provision of this lease
if the f'"ailure to perform is not cured within thirty
(30) days after notice has been given to Lessee. If
the default cannot reasonably be cured within thirty
'i
-10-
(30) days, Lessee shall not be in default of this
lease if'JlLessee commences to cure the default within
the thirty (30) day period and diligently and in good
faith continues to cure the default; provided,
however, 'tthat in no event shall Lessee be permitted
more than thirty (30) days to cure a default arising
from the 'Ifailure to perform pursuant to Section 5 of
this Lease.
Notices given: under this section shall specify the
alleged default and the applicable lease provisions, and shall
demand that Lessee perform the provisions of this lease or pay
the rent that is in arrears, as the case may be, within the
applicable period�of time, or quit the premises. No such
notice shall be deemed a forfeiture or a termination of this
lease unless Lessor so elects in the notice.
The purpose of the notice requirements set forth in this
paragraph is to extend the notice requirements of the unlawful
detainer statutesilof California.
No waiver of �ILessor of default by Lessee of any of the
terms, covenants or conditions hereof to be performed, kept
and observed by Lessee shall be construed to be or act as a
waiver by Lessor of any subsequent default of any of the
terms, covenants and conditions herein contained to be
performed, kept and observed by Lessee.
28. Lessor' s Remedies: If Lessee is in default hereof,
Lessor shall have1nithe right, at any time thereafter, in
accordance with the due process of law, to terminate this
Lease and Lessee's right to possession hereunder and recover
damages as specified in Civil Code Section 1951 .2 or to treat
the Lease as continuing in effect and seek the remedies
specified in Civil Code Section 1951 .2 .
Lessor' s remedy herein is not exclusive, but is
cumulative and iniaddition to all other remedies in favor of
Lessor existing in law, equity or bankruptcy.
29. Hold Harmless And Indemnity:
a. Lessor shall not be liable to Lessee and Lessee
hereby waives all claims and recourse against Lessor,
including the right to contribution, for any loss,
injury of damage, to any person or property on or
about the leased premises by or from any cause
whatsoever, including any latent defects existing on
or aboutlthe leased premises or any part thereof,
except claims arising from the sole negligence of
Lessor, its officers, agents and employees.
b. Lessee shall indemnify, hold harmless and defend
Lessor, the County of Contra Costa and their
-11-
respective officers, agents and employees against any
and all claims, demands, damages, costs, expenses or
liabisityj costs arising out of, either in whole or in
part, whe'ther .directly or indirectly, the
organization, development, construction, operation or
maintenanfce of the leased premises, except for
liability l arising out of the sole negligence of
Lessor, 'ts officers, agents and employees.
c. The prov11sions and agreements in this section are not
conditioned or dependent on whether or not Lessor has
prepared,jli supplied, reviewed or approved any plan (s)
or specification (s) in connection with the leased
premises,,, its operation or repairs, maintenance or
improvements relating thereto, or has insurance or
other indemnification covering any of these matters.
30. Disposition Off Abandoned Personal Property: If Lessee
abandons the demised premises or is dispossessed thereof by
process of law or {otherwise, title to any personal property
belonging to Lessee and left on the demised premises
forty-five (45) days after such abandonment or dispossession
shall be deemed to have been transferred to Lessor. Lessor
shall have the right to remove and to dispose of such property
without liability '!'therefor to Lessee or to any person claiming
under Lessee, aid shall not be required to account therefor.
31. Holding Over:', In the event Lessee shall continue in
possession of the '"demised premises after the term of this
Lease, such possession shall not be considered a renewal of
this Lease, but a !,tenancy from month to month, and shall be
governed by the colnditions and covenants contained in this
lease.
32. Invalid Provision - Severability: It is expressly
understood and agreed by and between the parties hereto that
in the event any covenant, condition or provision contained
herein is held tobe invalid by a court of competent
jurisdiction, the !V�invalidity of any such covenant, condition
or provision herein contained shall not invalidate any other
covenant, condition or provision of this agreement; provided
that the invalidity of any such covenant, condition or
provision does not materially prejudice either the Lessor or
the Lessee in their respective rights and obligations
contained in a vaiid covenants, conditions and provisions in
this agreement.
33 . Notices: `Any and all notices to be given under this
Lease, or otherwise, may be served by enclosing the same in a
sealed envelope addressed to the party intended to receive the
same, at its address, and deposited in the United States Post
Office as registered mail with postage prepaid. When so given
such notice shalll�fbe effective from the date of the mailing of
the same. For the purposes thereof, unless otherwise provided
-12-
Iq
in writing by the�;iparties hereto, the address of the Lessor
and the proper party to receive any such notices on its behalf
is:
Contra Costa� County Public Works Department
Lease Management
651 Pine Street, 6th Floor
Martinez, CA'i 94553
and the address of the Lessee is:
Park & Rail
other address either art shall hereafter specify
or to such o party
by written notice to the other.
35. Time: Ti.me , is of the essence of this lease.
"I
35 . Binding On Successors: The covenants and conditions
herein contained shall, subject to the provisions as to
assignment, applytu and 'bind the heirs, successors,
executors, administrators and assigns of all the parties
hereto.
36 . utility Construction. Lessor utilities companies or
entities approvedlby Lessor shall have the right to enter the
Property for the purpose of installing or replacing
underground utilities. Lessor shall or shall cause the
utility company orentity to undertake such utility work ina
manner which minimizes to the extent feasible the disruptions
to Lessee's operations on the Property and to restore Lessee's
improvements to at least the condition they were in prior to
commencement of the utility work.
37. State of Titre. Lessee understands and agrees that its
interest in the Property pursuant to this Lease is subject and
subordinate to all liens,' encumbrances, easements or clouds on
title of record as of the effective date of this Lease and to
all rights to use� or occupy the Property that would be
apparent from inspection of the Property.
38 . Compliance With Existing Lease. As noted in Section 2
above, Lessor is leasing a portion of the premises from
others. Said Lease is dated ,1983 and is by and between
Lessee under this� Lease as lessee and Randall, Earle and
Craig, a Nevada Corporation, Norvall A. Ballard, Allan M.
Ballard and Florence Parsons as Lessors ("REC Lease") Lessee
has assigned the REC Lease to Lessor pursuant to separate
agreement between`ILessor and Lessee. So long as the RFC Lease
or portions thereof have not been terminated as specified in
Section 2 above, Lessee shall observe all terms and conditions
c;
-13-
of the REC Lease which are for the benefit of the Lessors
under the REC Lease.
39. Right of First Refusal. Should Lessor determine to
lease the premises within one year following the expiration of
the term for the uses provided for under this Lease, then
before entering into such lease for the premises with a third
party, Lessor shall offer to Lessee in writing the right to
lease the premises' on the' same terms and conditions as are
acceptable to the ILessor and such third party. Such offer
shall be acceptedlor rejected by Lessee in writing within
thirty (30) days Of the date of mailing the offer and if not
accepted within said thirty (30) day period, such offer shall
be deemed to havehbeen rejected.
LESSOR LESSEE
CONTRA COSTA COUNTY PARK & RAIL, a
REDEVELOPMENT AGENCY, California partnership
a political subdivision of By its partners
the State of California Helix Associates, Inc.
By; By:
Phil Batchelor, Executive
Director
Title
Samuel P. Young, Inc.
By:
Title
#027/A15301
-14-
EXHIBIT D
Note
$400,000 „I . , 1985
Martinez, California
For value received, the Contra Costa County Redevelopment
Agency promises to pay, seven (7) years from the date of this
note, the principal amount of Four Hundred Thousand Dollars
($400, 000) to Park & Rail, a California partnership or order
together with interest at twelve percent (12%) per annum.
Interest shall be0payablg monthly beginning on the fifteenth
day of the month which first begins following the date of this
note. Each monthly payment of interest shall be one-twelfth
of the annual interest owing except that the first payment of
interest shall beiiprorated on the basis of the number of days
between the date of this note and the date the first interest
payment is due. This note may not be prepaid in whole or in
part. This note is given with the intent of complying with
Internal Revenue Code Section 103 (a) resulting in the interest
payable on this note being exempt from federal income
taxation. The Contra Costa County Redevelopment Agency,
however, makes no 'I representation or warranty as to the
treatment of payments of principal and interest under this
note for federal income tax purposes.
CONTRA COSTA REDEVELOPMENT AGENCY
By:
Phil Batchelor, Executive
Director
#026/A15301
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on December 3 , 1985"
by the following vote:
AYES: . , . Supervisors Powers , Schroder , McPeak , Torlakson , Fanden
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: RESOLUTION NO. 85/706
Purchase of Leases on Former Southern Pacific Railroad
Right of way, Pleasant Hill BART Station Redevelopment
Project.
The Contra Costa County Redevelopment Agency is in receipt
of an Agreement from Park & Rail, a California Partnership
in which Helix & Associates, Inc. , and Samuel P. Young, Inc.
are partners, ''to terminate and assign certain leases to the
Agency affecting former Southern Pacific Railroad right of
way in the vicinity of the Pleasant Hill BART Station
Redevelopment ,Project. The Agreement provides for a
purchase price of $500, 000 and for the Agency and Park &
Rail to execute a new lease for temporary operation of
parking facilities.
In accordance ;with California Community Development Law
(Health and Safety Code Sec. 33433 ) the Agency has prepared
a summary report on the new lease; the new lease and summary
report have been made available for public inspection; and
the Agency and Board of Supervisors have held a duly noticed
public hearing to consider the Agreement and new lease.
The Agreement 'and the new lease are in the best interest of
the County and, the Agency, and are necessary for the
implementation of the Pleasant Hill BART Station Area
Redevelopment Plan.
The Board of Supervisors finds that the purchase price of
existing leases from Park & Rail and Helix & Associates,
Inc. is not more than the fair market value of those leases
over their remaining term; and the lease payments to be made
by Park & Rail under the new lease are not less than fair
market value for the leasehold interests conveyed to Park &
Rail determined at the highest and best use permitted under
the Redevelopment Plan.
Therefore the Board of Supervisors hereby resolves that:
That certain Agreement between the Redevelopment
Agency, and Park & Rail, and Helix & Associates, Inc.
to terminate and assign leasehold interests and to
execute a' new lease with Park & Rail, attached hereto
and incorporated herein by this reference, affecting
portions of former Southern Pacific Railroad right of
way in the vicinity of the Pleasant Hill BART Station
Redevelopment Project, is hereby approved. .
I hereby certify that this is;•:noe and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date s1hown.
ATTESTED: m �.. 1985
PH:L BATCHELOR,C.-^.#c,f the�oarcS
cc Distribution b y of Supervisors and County.Administrator
Rbdfev'elopme.^t Agency
By Deputy
RESOLUTION NO. 85/706
TEFZMINATION AND ASSIGNMENT AGREEMENT
This Agreement is made this day of ,
1985, by and between the Contra Costa County Redevelopment
Agency ("Agency") and Park & Rail, a California partnership
("Park & Rail") in which Helix & Associates, Inc. , a
California corporation ("Helix") and Samuel P. Young, Inc. , a
California corporation ("Young") are partners, and Helix with
reference to the following facts:
A. Park & Rail is the lessee under a lease dated
1983 between Lessee and Randall, Earle &
Craig and others as lessor ("REC Lease") . Helix is the
lessee under a lease dated , 1983 between
Helix and Southern Pacific Company ("SP Lease") .
B. The property that is subject to the SP Lease has been
acquired by the Agency. The Agency has contracted to-
purchase but ° has not yet acquired the property that is
subject to the REC Lease. The property that is the
subject of the SP Lease is described in the attached
Exhibit A-1 and is referred to herein as the "SP
Property" . The property that is subject to the REC Lease
is described ; in the attached Exhibit A-2 and is referred
to herein as the "REC Property". The SP Property and the
REC Property are referred to herein collectively. as the
"Property".
C. Agency and Helix desire to terminate the SP Lease, to
assign Park & Rail's interest in the REC Lease to the
Agency and all parties desire to provide for Park & Rail
to operate a "parking lot and related facilities on the
Property.
THEREFORE, the parties agree as follows:
1. Termination of SP Lease. At the Closing, the SP Lease
shall terminate and upon such termination neither Helix nor
the Agency shall have any rights, obligations or liabilities
with respect to the other party under the SP Lease.
2. Assignment of REC Lease. At the Closing, Park & Rail
shall assign all its right, title and interest in the REC
Lease to the Agency pursuant to an assignment substantially in
the form as set forth in Exhibit. B. The REC Lease shall
terminate upon the Agency's acquisition of the REC Property or
if the Agency acquires less than the entire REC Property, the
REC Lease shall terminate only as to that portion of the REC
Property so acquired.
3 . Lease to Park & Rail. At the Closing, Park & Rail and
Agency shall enter into a lease and sublease for the Property
-1-
(the "New Lease")'''. The New Lease shall be in substantially
the form and substance as the lease attached hereto as Exhibit
C.
4. Payments to Lessee. In consideration of Park & Rail 's
and Helix' s agreement to terminate the SP Lease, assign the
REC Lease to the Agency and enter into the New Lease, Agency
shall pay to Park: & Rail the sum of $500,000.
5 . Timing of Payments. The amount to be paid to Park &
Rail pursuant to ;Paragraph 4 shall be paid in the following
manner: a $100 ,00,0 initial payment shall be made on or before
the Closing. The, remaining $400, 000 shall be evidenced by a
note executed by the Agency on or before the Closing in favor
of Park & Rail. Said note shall provide for interest on the
unpaid principal amount of the note at the rate of 12% per
annum with payments of interest only to be made semi-
annually. The principal amount of the note shall be all due
and payable sevenj years from the date of the note and may not
be prepaid. The note shall be substantially in the form of
the note set forth in Exhibit D attached hereto.
6. Closing. The Closing shall occur on or before December
20, 1985 . At them Closing, Park & Rail shall execute and
deliver to the Agency:
a. A duly acknowledged quitclaim deed conveying Park &
Rail 's interest in such portion of the REC Property
then owned by Agency.
b. The assignment of the REC Lease as specified in
Paragraph 2.
c. The New Lease as specified in Paragraph 3.
At the closing Helix shall execute and deliver to the Agency:
a. A duly acknowledged quitclaim deed conveying Helix's
interest in the SP Property.
At the Closing, Agency shall execute and deliver to Park &
Rail:
a. The note as specified in Paragraph 5.
b. The New Lease as specified in Paragraph 3.
In addition, at the Closing the Agency shall deliver the sum
of $100, 000 to Park & Rail as specified in Paragraph 5.
7. Waiver of Right of First Refusal. Park & Rail
acknowledges that,;; the REC Lease gives Park & Rail a right of
first refusal to purchase the REC Property. Park & Rail
hereby waives such right of first refusal with respect to
-2-
r ,
purchase of the REC Property or portion thereof by the
Agency.
8. Waiver of Compensation and Relocation Benefits. Park &
Rail, Helix, and Young acknowledge that the agreements and
considerations of" the in this Agreement are in lieu of
condemnation of their respective interests in the REC Property
and the SP Property. Therefore, Park & Rail, Helix, and Young
agree and acknowledge that the considerations under this
Agreement represent full payment for any claim Park & Rail,
Helix or Young ha's made or could have made against the Agency
or the County of Contra Costa for compensation for the
Property, leasehold interests in the Property, improvements on
the Property, los's of goodwill, severance damages, interest,
costs, litigation,; expenses, damages for unreasonable
precondemnation activity, compensation for inverse
condemnation, and benefits or payments under the Relocation
Law (Government Code Sections 7260 et seq. ) and arising from
actions taken by the Agency or the County of Contra Costa to
acquire the Property or interests therein or to regulate the
land uses permitted on the Property and from the actions
contemplated by this Agreement.
CONTRA COSTA COUNTY
REDEVELOPMENT AGENCY
by
Phil Batchelor, Executive
Director
Park & Rail, a California
partnership
by its partners:
Helix & Associates, Inc.
by its
Samuel P. Young, Inc.
by , its
Helix & Associates, Inc.
by , its
#025/A15301
-3-
I \
t G,
IAC*r
-gp
-7 67Fi7 C,
jft.:
a 1
sr,� 6.1
PLC LSxWwKI"
$44
'Z
'A�
SCHOOL
wat
4.
OAK Pmt•
ELEm
scZ;7,
sLe
iz
N_ ' - •� tl U tl.t' t2�' li�l:.moi �.. V • w �y •.ne 0 \ '�.
s BARS
PLEASANT HILL
STATION
SLYD
... . ......
K'
7
sub
kv
CALIF WATER
vcji-i • SERVICE CO
J—ery
"s,
A�4AICN
sw -fi Cr '22.9/
001"
w
EXHIBIT A
r
PROPERTY PROPOSED FOR
LEASE AND SUBLEASE
All
cul
EXHIBIT A-1
SP PROPERTY
EXHIBIT A-2
REC PROPERTY
EXHIBIT B
ASSIGNMENT
For value received receipt of which is hereby
acknowledged, Park & Rail, a California partnership
("Assignor") hereby assigns to the Contra Costa County
Redevelopment Agency all its right, title and interest in and
to that certain lease dated by and between
Assignor as lessee and Randall, Earle & Craig, a Nevada
Corporation, Allan M. Ballard, Norvall A. Ballard, and
Florence A. Parsons as lessors.
Park & Rail, a California
partnership
By its partners:
Helix & Associates, Inc.
by its
Samuel P. Young, Inc.
by , its
#026/A15301
EXHIBIT C
LEASE
SOUTHERN PACIFIC RIGHT OF WAY
AT PLEASANT HILL BART STATION
1. Parties and D- 11ate: Effective on ,
Contra Costa County Redevelopment Agency, a political
subdivision of the State 'of California, hereinafter referred
to as "Lessor" , and Park '& Rail, a California partnership,
hereinafter referred to as "Lessee", hereby mutually promise
and agree as follows:
2. Lease of Premises: Lessor, for and in consideration of
the rents and for °Ithe terms and upon covenants and conditions
herein, hereby leases to Lessee and Lessee leases from Lessor
that certain parcel of land, consisting of approximately
310,000 square feet, more or less, shown on Exhibit "1" and
further described ,�in Exhibit "2" , both exhibits attached
hereto and made aipart hereof. Lessor and Lessee understand
and acknowledge that the Lessor does not own but has
contracted to purchase a portion of the demised premises and
that Lessor is leasing that portion of the demised premises
from the current owner. With respect to that portion of the
demised premises which the Lessor does not own, this Lease
shall be considered a sublease until such time as the Lessor
acquires title tojsuch portion of the premises.
3. Term: This Please is for the term commencing on the
effective date as Iset forth in Section 1 above and ending on
September 30, 1992.
4. Use :
a. Lessee shall use the demised premises for the purpose
of conducting thereon the business of a parking lot
and/or vehicle storage and for incidental purposes
related thereto.; provided, however, that Lessee shall
not use the demised premises in such a manner as to
violate any applicable law, rule, ordinance or
regulation of any governmental body. Lessee shall
not permit transient or permanent occupation of
vehicles `parked or stored on the premises.
b. Lessee shall not use, or permit said premises or any
part thereof to be used, for any purpose or purposes
other than those for which the said premises are
hereby leased.
-1-
5. Standards ofl';j,IOperation: During the term of this Lease,
Lessor shall operate the facilities on the demised premises in
a reasonable, prudent and efficient manner.
6. Rental:
a. In consideration for this lease, Lessee agrees to pay
Lessor on or before the first day of each and every
month during the term hereof, commencing with the
tenth day of the calendar month following the date of
execution of this Lease by Lessor as follows: Sixty
percent (60%) of the gross receipts of the business
conducted on the demised premises. Within ten (10)
days after the end of each month, Lessee shall pay
any rent's due for that month and deliver to Lessor a
monthly statement signed by a responsible accounting
officer of the Lessee, who shall verify the accuracy
of the Statements therein of the monthly gross
receipts':', uf any business conducted on the demised
premises':'
b. "Gross Receipts" means the gross income from rental
of parking spaces, including rental paid in advance,.
and the gross selling price of all merchandise or
services';"1` sold, leased, licensed or delivered in or
from the �jpremises by Lessee, its permitted
subtenants, licensees or concessionaires, whether for
cash or on credit (whether collected or not) ,
including the gross amount received by reason or
orders taken on the premises although filled
elsewhere, and whether made by personnel or vending
machines'' Any transaction on an installment basis or
otherwise involving the extension of credit, shall be
treated as a sale for the full price at the time of
the transaction, irrespective of the time of payment
orwhen title passes.
c. Lessor shall have the right to review prices charged
by Lessee or any subtenant of Lessee and to regulate
said prices at its sole discretion.
7. Amendments to Account for Capital Improvements: In
entering into this Lease, the parties do not contemplate that
the County of Contra Costa will require Lessee to make
additional capital improvements on the premises as a condition
to Lessee 's use or operation of the premises for the uses
permitted under this Lease. ' Therefore, Lessor and Lessee
agree that if the '';County of Contra Costa requires that capital
improvements be made to the premises as a condition of
obtaining or extending any permits or approvals to use or
operate the facilities on the premises, then Lessor and Lessee
shall negotiate in good faith for an amendment to this _Lease
to provide for construction of the capital improvements and to
provide for allocation of the costs of those capital
-2-
I
improvements betwlen Lessor and Lessee through direct payment
of the costs of those improvements, adjustments in rent or
amendment of other provisions of this Lease. If Lessor and
Lessee cannot agree upon an acceptable amendment within sixty
(60) days following the final action of the County of Contra
Costa imposing requirements to construct capital improvements,
then either Lessor or Lessee may terminate this Lease by
giving thirty (301) days prior written notice of such
termination. For�lthe purposes of this Section 7, capital
improvements shall include improvements made pursuant to
Section 18 or improvements made as a condition of use of the
portion of the premises described in the attached Exhibit "4",
provided, howeverM; that the exclusion of improvements of the
portion of the premises described in the attached Exhibit "4"
from the provisions of this Section 7 shall not be deemed to
preclude Lessee from requesting amendments to this Lease as a
condition to undertaking improvements to the portion of the
premises described in the attached Exhibit "4".
8. Late Charges: If any rent is not paid to the Lessor
within fifteen (15) days after due date, a late charge of ten
percent (10%) of the payment due shall be added to the payment
and the total suml'. shall become immediately due and payable to
Lessor.
9. Delinquent Rent: In the event that Lessee shall become
delinquent in paying to Lessor any payment (including late
charges) due under Section 6 (Rental) , or Section 8 (Late
Charges) herein, for a period of thirty (30) days or more,
Lessee shall pay to Lessor interest on said unpaid balance at
a rate of one and''; nine tenths percent .(1.9$) per month, from
the date said payment was due and payable until paid.
10 . Records and Audit: Lessor or its agents or employees
shall have the right to inspect the books and records of
Lessee or any subtenant of Lessee from which the statement of
gross receipts islprepared at any reasonable time upon
twenty-four (24) hours prior notice to Lessee. For this
purpose, Lessee or any subtenant of Lessee shall, for a period
of two (2) years rafter submission to Lessor of any such
statement, keep safe and intact all of said records, books,
accounts, and other data and shall upon request make the same
available to Lessor, Lessor' s Auditor representative or agent
for examination a't any time during said two (2) year period.
The cost of said 'audit shall be borne by Lessor unless the
audit reveals a discrepancy of more than four percent (4%)
between the rent due as reported by Lessee in accordance with
this lease and the rent due as determined by said audit. In
the event of saidjigreater discrepancy, the full cost of the
audit, as determined by the Lessor's Auditor Controller, shall
be paid by Lessee. If the results of an audit indicatethat
additional rent is due, Lessor shall give Lessee notice, of
such additional raent and Lessee shall pay such additional rent
within ten (10) d?ays of receipt of such notice together with
-3-
the applicable late charges and interest specified in Section
8 and Section 9.
Lessor shall, be provided with a copy of any audit of
Lessee's business, if requested by Lessee from a' public
accountant of its, own selection and at Lessee's own cost and
expense.
11 . Utilities: Lessee shall pay for all water, gas, light,
power, telephone service, sewer service and all other services
supplied to the said premises, including installation and
connection of said services.
12 . Cancellatiomwby Lessor: Lessor may cancel this Lease
with respect to all or portions of the premises as specified
below by giving Lessee sixty (60) days prior written notice
under any of the 'following conditions:
a. Jones Road: If Lessor, at its sole discretion,
determines that a portion of the premises shown in
Exhibit ,"3" attached hereto and made a part hereof is
needed for the Jones Road extension, Lessor may
cancel this Lease with respect to that portion of the
premises shown in Exhibit "3" or a portion thereof.
b. Recreational Vehicle Parking Area: If Lessee has not
obtained''''jall required permits and approvals and
completed improvements required to use the area
described in Exhibit "4" attached hereto and made a
part hereof for vehicle storage prior to December 31,
1987, Lessor may cancel this Lease with respect to
that portion of the premises shown in Exhibit "4" .
c. Trail: if Lessor, at its sole discretion, determines
that a portion of the premises is needed for a trail,
pedestrian and/or bicycle, Lessor .may cancel this
Lease with respect to that portion of the premises
necessary for such trail. In selecting a location
for suchltrail Lessor shall make good faith efforts
to select a location which will, to the extent
physically and economically feasible, cause the least
disruption with Lessee's operations on the remainder
of the premises.
d. Transportation Corridor: If Lessor, at its sole
discretion, determines that all or a portion of the
premises lis needed for a transportation corridor,
Lessor may cancel this Lease with respect to all or
the portion by the premises needed for such
transportation corridor.
13. Cancellation„',,by Lessee: Lessee may cancel this Lease
with respect'”,Ito all of the premises by giving Lessor
sixty (60) days prior notice. ;
-4-
14. Constructionl, of Improvements by Lessee:
a. Lessor's'I� Consent. No extlrnal structures,
improvements or facilities shall be constructed,
erected,`IIaltered or made within the demised premises
without Lessor's prior written consent. Any
conditions relating to the manner, method, design and
construction of said structures, improvements or
facilities fixed by Lessor shall be conditions hereof
as though originally stated herein'.
b. Szrict' C,ompliance with Plans and Specifications.
All improvementd constructed by Lessee within the
demised 'premises shall be constructed in good and
workmanlike manner and in strict compliance with
detailed'' plans and specifications approved by
Lessor.
C. "As-Built" Plans. Within sixty (60) days following
completion of any substantial improvement within the
demised premises, Lessee shall furnish Lessor a
complete' set of "As-Built" plans.
I
d. Freedom from Liens. All improvements and
facilities constructed or placed within the demised
premisesiby Lessee must, upon completion, be free and
clear ofa' all liens, claims or liability for labor or
material.
Lessee shall at all times defend, indemnify and save
Lessor harmless from all claims for labor or
materials in connection with construction, repair,
alteration or installation of structures,
improvements, equipment or facilities within the
demised premises, and from the cost of defending
against such claims, including attorney's fees, save
and except for claims or liability arising from the
sole negligence of LessorL
'I
e. Signs. Lessee agrees not to construct, maintain or
allow any sign upon the demised premises, except
those signs approved in writing by Lessor.
Unapproved signs, banners; flags, etc. , may be
removed by the Lessor at Lessee 's expense. All signs
so approved shall comply with any applicable sign
ordinance.
15. Bonds: Prior to the commencement of any construction
hereunder and within fourteen (14) days after Lessor's final
approval of the plans and specifications, Lessee, at its sole
cost and expense, jshall furnish to Lessor a surety bond
executed by a surety company licensed to transact business in
the State of California, or other type of bond security
satisfactory to the Lessor, with Lessee's contractor or
i
-5-
contractors as principals, in a sum of not less than fifty
percent (50%) of the total estimated cost of the construction
contracts for the 11 improvements and other necessary
appurtenances specified herein, guaranteeing the payment for
all labor, materials, provisions, supplies and equipment used
in, upon, for or about the performance of said construction
work or labor done thereon of any kind whatsoever and
protecting the Lessor from any liability, losses or damages
arising therefrom. Lessee shall also provide Lessor a similar
surety bond in any amount equal to the estimated cost of the
construction of the improvements, guaranteeing faithful
performance of said construction contracts. If Lessee obtains
from its contractor or contractor such bond or bonds in like
amount which are satisfactory to the Lessor, the Lessor, upon
application to Lessor by Lessee and upon naming Lessor as an
additional obligee of Lessee 's principal and surety under such
bond or bonds, may release Lessee from and consent to the
cancellation of the bond or bonds originally furnished by
Lessee.
16. Maintenance and Repairs:
a. Lessee' s ',Obligation. Lessee shall, at its sole cost
and expense, keep and maintain the demised premises
and all improvements of any kind which may be
erected, 'i installed or made thereon in substantial
repair. It shall be Lessee's responsibility to take
all steps necessary or appropriate to maintain such a
'standard -'of condition and repair.
Lessee expressly agrees to maintain the demised
premises '-'in a safe, clean, wholesome and sanitary
condition to the complete satisfaction of Lessor and
in compliance with all applicable laws. Lessor shall
have the right to enter upon and inspect the demised
premises "''at any time for cleanliness and safety.
Lessee acknowledges that it has inspected the
premises and that the premises are in good condition.
b. Lessor' s ;+IRight to Repair. If Lessee fails to
maintain '",or make repairs or replacements as required
herein, or
may notify Lessee in writing of said
failure. '' Should Lessee fail to correct the situation
within a reasonable time thereafter, as established
by Lessor, Lessor may make the necessary correction
and the cost thereof, including, but not limited to,
the cost of labor, materials and equipment and
administration, shall be paid by Lessee within ten
(10) days of receipt of a statement of said cost from
Lessor. '!Lessor may, at its option, choose other
remedies available herein or by law.
-6-
17 . Waste, Quiet Conduct: Lessee shall not commit or suffer
to be committed any waste upon said premises, or any nuisance
or other act or f�hing which may disturb the quiet enjoyment of
the surrounding and adjoining property.
18 . Unlawful Use,: Lessee agrees that no improvements shall
be erected, place upon, operated or maintained within the
demised premises,;j' nor any business conducted or carried on
therein or therefrom, in violation of the terms of this Lease,
or of any statutel, ordinance , regulation or other rule of any
governmental agency having jurisdiction.
19. Damage To Or, Destruction Of Improvements: In the event
of damage to or destruction of Lessee's improvements or in the
event Lessee's improvements located on the demised premises
are declared unsafe or unfit for use or occupancy by a public
entity with the authority to make and enforce such
declaration, including Lessor, Lessee shall, within thirty
(30) days, commen"ce and diligently pursue to completion, the
repair, replaceme"nt or reconstruction of improvements
necessary to permit full use and occupancy of the demised
premises for the purposes permitted by this lease. Repair,
replacement or re;°construction of improvements within the
demised premises shall be accomplished in a manner and
according to plans approved by Lessor.
20. Insurance: Lessee shall procure and maintain, at its
sole cost and expense, and at all times during the term of
this lease, the following coverage:
a. Public Liability and Property Damage Insurance:
Lessee shall obtain and maintain owner's landlord's
and tenant's public liability insurance covering and
insuring all parties hereto (including Lessor and the
County of Contra Costa and their respective officers
and employees as additional insureds under the
policy) with a minimum combined single-limit coverage
of One Million And No/100 Dollars ($1 ,000,000. 00) for
all damages due to bodily injury, sickness or
disease,''!, or death to any person and/or damage to
property,;; including the loss of use thereof, arising
out of each accident or occurrence. Evidence of such
insurance shall be provided by the Lessee by filing
with Lessor a copy of the policy or policies, or a
duly executed certificate to the effect that the
insurance required by this lease is extended. Said
policy or policies or certificates shall contain the
provision that written notice of cancellation or of
any material changes shall be delivered to Lessor at
least thirty (30) days in advance of the effective
date thereof. From time to time, Lessor may require
Lessee to adjust amount of said coverage.
-7-
b. Worker' s�,lCompensation Insurance: Lessee shall
obtain and maintain insurance to protect him from
claims under worker' s or workmen's compensation acts
and othe,'r employee benefit acts, claims for damages
because of bodily injury, including death, and from
claims for damages to property which may arise out of
or result from the Lessee 's operation under this
Lease, whether such operations be by himself or by
any sublessee or anyone directly or indirectly
employed'�lby any of them. This insurance shall be
written for not less than any limits of liability
required,,; by law. Certificates of such insurance
shall be''! filed with the Lessor prior to the
commencement of 'the Lease.
21 . Condemnation:
a. If any part of the premises shall be taken as a
result of the exercise of the power of eminent domain
or be conveyed to any entity having such power under
threat of exercise thereof (both of such actions
being hereinafter referred to as "condemnation") ,
this Lease shall automatically terminate as to the
portion of the premises which is condemned, as of the
date physical possession of such portion is taken by
the condemnor.
b. If the remaining part of the premises will not be
reasonably suitable for the operation of Lessee's
facility! this Lease may be terminated by either
Lessor or Lessee at any time within thirty (30) days
after the date possession of the condemnation portion
is taken`'Jby the condemnor, and any unearned rent
theretofore paid by Lessee shall be refunded. If the
remaining part of the premises will be reasonably
suitable',",'; for the operation of Lessee' s facility, this
Lease may continue in full force and effect as to
such remaining part.
C. Lessee hereby waives any rights it has now or in the
future to receive any portion of any award made or
compensation payable by reason of the condemnation of
the premises, portion thereof interest therein or
improvements thereon. In addition, Lessee hereby
assigns to Lessor any claim Lessee may have with
respect of loss of goodwill caused by the taking of
the premises a portion thereof. Lessee further
agrees to co-operate with Lessor in asserting or
litigating any claim for loss of goodwill so assigned.
22. Taxes: ThisILease may result in the creation of
possessory interests subject to property taxation and Lessee
may be subject to the payment of property taxes levied on such
interest. Lessee''' agrees that this provision complies with the
-8-
notice provisions; of Revenue and Taxation Code Section 107.6,
and waives all rights to further notice or to damages under
that or any comparable statute.
i
Lessee shall,,, promptly pay all taxes and assessment which
shall become due and payable during the occupancy of said
demised premises under any levy or assessment by County or
other legally authorized governmental authority upon the
improvements, equipment, fixtures and personal property which
Lessee may erector place therein.
23. Inspection And Notice: Lessor or its agents shall at
any and all times°' have the right to go upon and inspect the
land and premises�; hereby ' leased and any and every improvement
erected or constructed or in the course of being erected or
constructed, repaired, added to, rebuilt or restored thereon
and also to serve'' or to post and to keep posted thereon, or in
any part thereof, jnotices of nonresponsibility, or any other
notice or noticesj',! that may at any time be required or
permitted by law.
24 . Assignment, ;Subletting And Encumbrances: Lessee shall
not assign this Pease, or any interest therein, and shall not
sublet the demised premises, or any part thereof or any right
or privilege appurtenant thereto, without the prior written
consent of Lessor!. Any such assignment or subletting without
such prior consen''t shall be void and Lessor shall have the
option to terminate this Lease therefor. Lessee shall not
mortgage or encumber its interest created hereby or any part
thereof, unless written consent of Lessor is first obtained.
The above assignment provisions do not apply to heirs by
will, devise or intestacy or other transfers by operation of
law or to an assignment to Samuel P. Young, Inc. or Helix &
Associates, Inc. ! The above provisions regarding subleasing do
not apply to leasing parking or vehicle storage as provided
for in this Lease'.
Lessor agreejs that it will not arbitrarily withhold its
consent to any requested assignment or sublease of Lessee 's
interest herein, gbut Lessor may withhold consent, at its sole
discretion, if any of the following conditions exist:
1 . Lessee or any of his successors or assigns are in
default ,!in any term, covenant or condition of this
lease whether notice of default has or has not been
given b Lessor.
2 . The prospective' assignee, sublessee or other
transferee has not agreed in writing to keep, perform
and be bound by all the terms, covenants and
conditions of this lease .
-9-
3. The processing fee required by Lessor and set out
below has not been paid to Lessor by delivery of said
fee to Lessor; a fee (which may be adjusted from time
to timcsiat the sole discretion of the Lessor) of
Seven Hundred And No/100 Dollars ($700.00) shall be
paid to ''Lessor for processing each application for
assignment, transfer or sublease submitted to Lessor
as required by this lease . This processing fee shall
be deemed earned by Lessor when paid and shall not be
refundable.
4 . The prospective assignee, sublessee or transferee has
demonstrated to!the reasonable satisfaction of
Lessor, the ability to manage and operate the
facilities on the premises.
25. Bankruptcy And Insolvency: If the Lessee be adjudicated
as bankrupt or become insolvent, or if possession of any
interest in the demised premises shall be taken by virtue of
any attachment, execution or receivership, the Lessor may, at
its election, unless, within ninety (90) days such bankruptcy
proceedings be terminated in favor of lessee and/or such
insolvency be cured and/or such possession regained,
immediately term hate this Lease by service of notice to such
effect upon any adult person found in possession of said
premises, or as provided in Section 33, Notices, below.
26. Surrender OfiPossession: Lessee agrees to yield all
improvements and (facilities constructed or placed within the
demised premises ,,and shall become the property of Lessor at
the expiration of this lease or upon earlier termination or
cancellation hereif, and deliver to Lessor possession of the
premises leased herein at the termination of this lease by
expiration or otherwise, in good condition, normal wear and
tear excepted. Lessee shall promptly remove all signs and
other personal property from the premises.
27. Default: The occurrence of any of the following shall
constitute a default by Lessee:
1. Failure to pay when due rent or any other payment
required' under this Lease, if the failure continues
for fifteen (15) days after notice has been given to
Lessee.
2. Abandonment and vacation of the premises. Failure to
occupy and operate the premises for ten (10)
consecutive days shall be deemed and abandonment and
vacation.
3. Failure to perform any other provision of this lease
if the failure to perform is not cured within thirty
(30) days after notice has been given to Lessee. If
the default cannot reasonably be cured within thirty
-10-
(30) days, Lessee shall not be in default of this
lease if Lessee commences to cure the default within
the thirty (30) day period and diligently and in good
faith continues to cure the default; provided,
however, that in no event shall Lessee be permitted
more than thirty (30) days to cure a default arising
from the failure to perform pursuant to Section 5 of
this Lease.
Notices given „under this section shall specify the
alleged default and the applicable lease provisions, aiid shall
demand that Lessee perform the provisions of this lease or pay
the rent that is in arrears, as the case may be, within the
applicable period of time, or quit the premises. No such
notice shall be deemed a forfeiture or a termination of this
lease unless Lessor so elects in the notice.
The purpose of the notice requirements set forth in this
paragraph is to extend the notice requirements of the unlawful
detainer statutes of California.
No waiver of Lessor of default by Lessee of any of the
terms, covenants or conditions hereof to be performed, kept
and observed by Lessee shall be construed to be or act as a
waiver by Lessor of any subsequent default of any of the
terms, covenants and conditions herein contained to be
performed, kept and observed by Lessee.
28. Lessor' s Remedies: If Lessee is in default hereof,
Lessor shall have 'the right, at any time thereafter, in ,
accordance with the due process of law, to terminate this
Lease and Lessee's right to possession hereunder and recover
damages as specified in Civil Code Section 1951 .2 or to treat
the Lease as continuing in effect and seek the remedies
specified in CivilCode Section 1951 .2 .
Lessor' s remedy herein is not exclusive, but is
cumulative and in °,addition to all other remedies in favor of
Lessor existing in law, equity or bankruptcy.
29. Hold Harmless And Indemnity:
a. Lessor shall not be liable to Lessee and Lessee
hereby waives all claims and recourse against Lessor,
including the right to contribution, for any loss,
injury or damage to any person or property on or
about the leased premises by or from any cause
whatsoever, including any latent defects existing on
or about the leased premises or any part thereof,
except claims arising from the sole negligence of
Lessor, its officers, agents and employees.
b.. Lessee shall indemnify, hold harmless and . defend
Lessor, the County of Contra Costa and their
-11-
respective officers, agents and employees against any
and all claims, demands, damages, costs, expenses or
liability costs arising out of, either in whole or in
part, whether directly or indirectly, the
organization, development, construction, operation or
maintenalnce of the leased premises, except for
liability arising out of the sole negligence of
Lessor, its officers, agents and employees.
C. The provisions and agreements in this section are not
conditioned or dependent on whether or not Lessor has
prepared'y supplied, reviewed or approved any plan (s)
or specification(s) in connection with the leased
premises;, its operation or repairs, maintenance or
improvements relating thereto, or has insurance or
other indemnification covering any of these matters.
30. Disposition Of Abandoned Personal Property: If Lessee
abandons the demised premises or is dispossessed thereof by
,
process of law or'' otherwise, title to any personal property
belonging to Lessee and left on the demised premises
forty-five (45) days after such abandonment or dispossession
shall be deemed to have been transferred to Lessor. Lessor
shall have the right to remove and to dispose of such property
without liability' therefor to Lessee or to any person claiming
under Lessee, and'° shall not be required to account therefor.
31. Holding Over: In the event Lessee shall continue in
possession of the, demised premises after the term of this
Lease, such posse',''ssion shall not be considered a renewal of
this Lease, but aJtenancy from month to month, and shall be
governed by the conditions and covenants contained in this
lease.
32. Invalid Provision - Severability: It is expressly
understood and agreed by and between the parties hereto that
in the event any covenant, condition or provision contained
herein is held tobe invalid by a court of competent
jurisdiction, thejinvalidity of any such covenant, condition
or provision herein contained shall not invalidate any other
covenant, condition or provision of this agreement; provided
that the invalidity of any such covenant, condition or
provision does not materially prejudice either the Lessor or
the Lessee in their respective rights and obligations
contained in a valid covenants, conditions and provisions in
this agreement.
33 . Notices: Any and all notices to be given under this
Lease, or otherwise, may be served by enclosing the same in a
sealed envelope addressed to the party intended to receive the
same, at its address, and deposited in the United States Post
Office as registered mail with postage prepaid. When so given
such notice shall' be effective from the date of the mailing of
the same. For the purposes thereof, unless otherwise provided
-12-
I
in writing by the parties hereto, the address of the Lessor
and the proper party to receive any such notices on its behalf
is:
Contra Costa county Public Works Department
Lease Management
651 Pine Street, 6th Floor
Martinez, CA, 94553
and the address of the Lessee is:
Park & Rail
or to such other address either party shall hereafter specify
by written notice'''lto the other.
35. Time: Time,, is of the essence of this lease.
35 . Binding On Successors: The covenants and conditions
herein contained ''shall, subject to the provisions as to
assignment, apply, to and bind the heirs, successors,
executors, administrators and assigns of all the parties
hereto.
36 . Utility Construction. Lessor utilities companies or
entities approved" by Lessor shall have the right to enter the
Property for the purpose of installing or replacing
underground utilities. Lessor shall or shall cause the
utility company or entity to undertake such utility work in a
manner which minimizes to the extent feasible the disruptions
to Lessee's operations on the Property and to restore Lessee 's
improvements to at least the condition they were in prior to
commencement of the utility work.
37. State of Title. Lessee understands and agrees that its
interest in the Property pursuant to this Lease is subject and
subordinate to all liens, encumbrances, easements or clouds on
title of record as of the effective date of this Lease and to
all rights to use or occupy the Property that would be
apparent from inspection of the Property.
38 . Compliance With Existing Lease. As noted in Section 2
above, Lessor islleasing a portion of the premises from
others. Said Lease is dated , 1983 and is by and between
Lessee under this' Lease as lessee and Randall, Earle and
Craig, a Nevada Corporation, Norvall A. Ballard, Allan M.
Ballard and Florence Parsons as Lessors ("REC Lease") Lessee
has assigned the ,;REC Lease to Lessor pursuant to separate
agreement between Lessor and Lessee. So long as the RFC Lease
or portions thereof have not been terminated as specified in
Section 2 above, ':Lessee shall observe all terms and conditions
-13-
I
v
of the REC Lease which are for the benefit of the Lessors
under the REC Lease.
39. Right of First Refusal. Should Lessor determine to
lease the premises within one year following the expiration of
the term for the uses provided for under this Lease, then
before entering into such lease for the premises with a third
party, Lessor shall offer to Lessee in writing the right to
lease the premisesc,' on the same terms and conditions as are
acceptable to the Lessor and such third party. Such offer
shall be accepted or rejected by Lessee in writing within
thirty (30) days of the date of mailing the offer and if not
accepted within said thirty (30) day period, such offer shall
be deemed to have been rejected.
LESSOR LESSEE
CONTRA COSTA COUNTY PARK & RAIL, a
REDEVELOPMENT AGENCY, California partnership
.a political subdivision of By its partners
the State of California Helix & Associates, Inc.
By: By:
Phil Batchelor, Executive
Director
Title
Samuel P. Young, Inc.
By:
Title
#027/A15301 ,
-14-
4 i
EXHIBIT D
Note
$400,000 ,1985
Martinez, California
For value received, the Contra Costa County Redevelopment
Agency promises to pay, seven (7) years from the date of this
note, the principal amount of Four Hundred Thousand Dollars
($400,000) to Park & Rail, a California partnership or order
together with interest at twelve percent (12%) per annum.
Interest shall bei''! payablE4 monthly beginning on the fifteenth
day of the month "which first begins following the date of this
note. Each monthly payment of interest shall be one-twelfth
of the annual interest owing except that the first payment of
interest shall bei prorated on the basis of the number of days
between the date of this note and the date the first interest
payment is due. This note may not be prepaid in whole or in
part. This note is given with the intent of complying with
Internal Revenue Code Section 103 (a) resulting in the interest
payable on this n'"ote being exempt from federal income
taxation. The Contra Costa County Redevelopment Agency,
however, makes no'" representation or warranty as to the
treatment of payments of principal and interest under this
note for federal '`income tax purposes.
CONTRA COSTA REDEVELOPMENT AGENCY
By:
Phil Batchelor, Executive
Director
#026/A15301
•