MAINTENANCE AND REIMBURSEMENT AGREEMENT
HERCULES TRANSIT CENTER
BART REPLACEMENT PARKING FACILITY
HERCULES, CALIFORNIA
RECITALS
A. The Hercules Transit Center (HTC), a park and ride facility (“the facility”) in the City of Hercules, California (Exhibit A), has been maintained and operated under a joint agreement between the City of Hercules, BART, and the Western Contra Costa Transit Authority (WestCat) for more than a decade. Proper operation, maintenance, and repair of the facility are in the best interests of and will benefit the Parties to this Agreement and the region.
B. The facility moved to its present location on Willow Ave after BART and Hercules entered into an Exchange Option Agreement (the "EOA") on April 10, 2006, whereby BART agreed to exchange a 6.25 acre park and ride site (site 15) and several undeveloped acres of land located at the corner of Sycamore and San Pablo Avenues for the present 8.69 acre parcel of land owned by Hercules, commonly described as Contra Costa County Assessor's Parcel #406-070-043 (the "C-1 Parcel"). The C-1 parcel was developed into a new park-and-ride facility owned by BART, and is subject to parking prices as approved by the BART Board of Directors Resolution No. 4965 (September 25, 2005).
C. In July 2009, BART, WCCTA, and the Redevelopment Agency of the City of Hercules entered into a one-year Maintenance and Reimbursement Agreement (the "Original Agreement") describing responsibilities for facility maintenance and operation. The Redevelopment Agency was dissolved on February 1, 2012 and all money remitted to them was redirected to the State of California. The City of Hercules applied for the release of these funds back to BART, but the request was denied.
D. The terms of the July 2009 Original Agreement were never continued by written agreement of the Parties as required by Section 1.03 of the Original Agreement. The parties agreed that the Original Agreement had effectively expired and that since the Redevelopment Agency had dissolved, the City of Hercules should be party to a new agreement. BART, the City of Hercules and WCCTA then executed a new agreement on June 21st, 2018, in which Hercules assumed primary responsibility for maintaining the facility and operating the paid parking program. Hercules and its vendors have continued facility operation to date.
E. Following the COVID-19 pandemic, which significantly reduced parking revenue, the parties sought to reduce facility operating costs while improving the customer experience. The parties agreed that BART could more cost-effectively collect parking revenues than Hercules’ vendor and BART can provide an improved and modernized parking payment experience through the BART Official App. The parties further agreed that Hercules is best positioned to maintain the facility given its location within the City, allowing for the inclusion of the site in existing city maintenance contracts, and allowing for closer oversight due to the relatively small size of the facility and the distance from other BART facilities.
The parties therefore seek to create a new agreement whereby BART operates the parking program and collects parking revenues, and Hercules continues to maintain the facility.
NOW, THEREFORE, the Parties agree as follows:
Article 1. Term of this Agreement
1.1 Term. The term of this Agreement is 4 years, from July 1st, 2023 to June 30th, 2027. Upon expiration of the 4-year term, the Agreement shall automatically be extended for six successive 1-year terms, unless a Party provides notice to the other two Parties to terminate the automatic extension. Notice to terminate the automatic extension is to be in writing and received 180 days before the automatic extension would become effective on July 1.
1.2 Termination. This Agreement may be terminated by any of the parties by providing 180-day notice of termination. Such written agreement shall include provisions for wind-down of operations and final settlement of all financial matters, including payback of the initial cash advance provided by BART, as provided in Section 3.6.
1.3 Extension. This Agreement may be extended beyond its term for an additional length of time by written mutual agreement of the Parties.
Article 2. Operation of the BART Paid Parking Program
2.1 Operation by BART. The paid parking program will be operated by BART. This will include:
• Setting parking rates within limits set by the BART Board of Directors. Hercules and WCCTA will be informed in advance of any planned parking rate changes; • Collecting parking fees;
• Implementing parking policies including determination of which parking products to offer (daily fee, carpool, monthly, reserved) and the designation of different parking areas within the facility (e.g. for free parking, Reserved parking); • Informing the public of changes to the parking program; and • Enforcement of parking compliance and collection of parking citation revenues.
Article 3. Maintenance and Repair of the Replacement Parking Facility
3.1 Maintenance by Hercules. Hercules will be primarily responsible for day-to-day maintenance and repair activities, except where handled by BART or WCCTA as described below.
3.2 Hercules maintenance and repair responsibilities. Hercules’ maintenance and repair responsibilities will initially include the following:
• Monitor for trash and emptying receptacles;
• Maintain in good order the portable restrooms, bus shelters and lighting fixtures; • Provide or pay for water and wastewater services;
• Provide for landscape maintenance services including, but not limited to, plant, tree and shrub and sprinkler system maintenance and repair;
• Remove trash and graffiti from all surfaces as needed; including via regular street sweeping;
• Repair fencing and benches as required;
• Conduct power-washing of the facility;
• Manage maintenance contracts required to keep the facility in good order.
BART will reimburse Hercules for these maintenance and repair activities. The specific activities may be adjusted during the biennial budgeting process (Section 3.5).
Hercules agrees to require its maintenance and repair contractor to include BART and WCCTA as additional insured parties for liability resulting from the acts or omissions of said contractor in connection with maintenance and repair of the facility.
BART shall, at its sole cost and expense, cause its self-insurance policies to include full coverage for liability arising from the ownership, use, maintenance and repair of the facility, to the extent that such liability is not a result of the acts or omissions of Hercules' contractors for the paid parking program or maintenance and repair, and to the extent that such liability is not a result of the active negligence or willful misconduct of an Indemnitee (other than BART) as defined in Section 7.1.
3.3 BART maintenance and repair responsibilities. BART will:
• Provide and install replacement parking and wayfinding signage • Provide for and install bicycle lockers; and
• Provide power.
BART will cover its own costs for these maintenance and repair activities.
3.4 WCCTA maintenance and repair responsibilities. WCCTA will:
• Clean, stock, maintain and repair operator restrooms.
WCCTA will cover its own costs for these maintenance activities.
3.5 Budgeting of maintenance and repair. Every other year, by November 1st, Hercules shall submit to BART a budget for anticipated maintenance and repair costs, as described in Article 3, for the ensuing two fiscal year starting July 1st. The Parties shall thereafter negotiate and confirm any proposed changes to the submitted budget by February 1st. The budget will include at least a 10 percent contingency. BART will not be obligated to reimburse for expenses not agreed upon in advance. Exhibit B provides the proposed budget for the two-year period beginning July 1st, 2023. The parties will meet annually to discuss the budget and consider possible adjustments if needed.
3.6 Invoicing of maintenance and repair. Once a purchase order is issued by BART for the approved budget amount, Hercules shall incur costs within budget and submit invoices in accordance with the budget to BART on a quarterly basis. Within 90 days of agreement execution, BART will provide 50% of the adopted FY24 budget less contingency (or $33,500) to Hercules to be kept as a revolving fund. Subsequent invoice payments by BART will then replenish this fund, so that Hercules will not need to use its own cash resources to cover maintenance expenses. Upon termination of the agreement, the initial cash advance must be returned to BART within 90 days.
3.7 Damage and Repair. Notwithstanding anything to the contrary in this Agreement, if a Party or any person acting under the authority of that Party, including any licensee, invitee, agent, employee, tenant, guest or family member thereof, damages the facility, the responsible Party shall pay all costs to repair or replace the damaged portion of the facility.
Article 4 – Capital Improvements and Fund Balance Closeout
4.1 BART primarily responsible for capital improvements. BART will be primarily responsible for undertaking any major capital improvements to the site, and such improvements will be prioritized within BART’s agency-wide capital budgeting process. If unusual pavement or striping wear occurs in the areas traveled by buses, the parties will meet and confer on how to cover the cost, and WCCTA may be asked to contribute. Any of the parties may also serve as the lead agency for a capital project at the facility upon the written agreement of BART.
4.2 Fund balance closeout. Under the 2018 Agreement, Hercules accumulated parking revenues.
Within 90 days of the execution of this agreement, Hercules will remit the remaining fund balance to BART.
Article 5 – Provision of Transit Transfer Discounts
5.1 Discounts provided for transit transfers to BART. Those purchasing daily parking from the HTC will receive two free one-way bus trips to BART (currently, the JL/JR and JX/JPX lines connecting to the El Cerrito del Norte Station). Riders will show proof of parking purchase to receive a fare discount, and the driver will record the number of discounted trips offered. BART and WCCTA will share the cost of the free trips where BART will pay $1.3575 of the cost and WCCTA will pay the remainder. BART’s contribution to the subsidy, and the type of subsidies offered, may be adjusted during the bi-annual budgeting process.
5.2 Budgeting of transit transfers. Every two years, by November 1st, WCCTA shall submit to BART a budget for anticipated transit transfers for the ensuing two fiscal years starting July 1st.
The Parties shall thereafter negotiate and confirm any proposed changes to the submitted budget by Feb 1st of the following year. BART will not be obligated to reimburse for unapproved costs.
Exhibit B provides the proposed budget for the first two years of operation commencing July 1st, 2023. The budget will include a 10% contingency.
5.3 Invoicing of transit transfers. WCCTA will invoice BART quarterly for BART’s share of the discounts provided in the prior quarter. The invoice will show the total number of one-way trips recorded on the subject bus lines, the total number of discounts provided, and the cost of the discounts.
Article 6 Ongoing Coordination, Auditing
6.1 Appointed representative. Each party will designate a main point of contact for coordination.
6.2 Ongoing coordination. BART will convene the parties to review and confirm the two-year budget. The parties will meet as needed outside of the budget process.
6.3 Audit. BART reserves the right to examine the City and WCCTA’s books, work, documents, papers, materials, payrolls, records, accounts and data during the three (3) year period following the final payment under this Agreement and until all pending matters are closed; and City and WCCTA shall in no event dispose of, destroy, alter or mutilate said books, work, documents, papers, materials, payrolls, records, accounts and any and all data in any manner whatsoever for three (3) years after the final payment under this Agreement, or until all pending matters are closed, whichever is later. Pursuant to California Government Code Section 8546.7, the parties to this Agreement shall be subject to the examination and audit of the State Auditor, at the request of BART or as part of any audit of BART by the State Auditor, for a period of three (3) years after final payment under this Agreement. The examination and audit shall be confined to those matters connected with the performance of this Agreement, including, but not limited to, the cost of administering this Agreement.
Article 7. Alternative Dispute Resolution Procedures
7.1 Resolution notice. If any dispute arises between Parties regarding the rights or duties of the Parties under this Agreement, any Party may submit a written request to the other Parties to have the dispute resolved in accordance with the provisions of this Article 7 (the "Resolution Notice"), The Resolution Notice shall specify the nature of and basis for the dispute for which resolution is sought.
7.2 Resolution meeting. No later than 20 business days following the receipt of the Resolution Notice by the other Parties, duly authorized representatives of all Parties shall meet and negotiate in good faith in an effort to resolve the dispute. Each representative shall be duly authorized to bind the Party it represents to a resolution of the dispute and shall be prepared to devote a full day to the negotiations. If a Party refuses or fails to meet for any reason or if the dispute cannot be resolved as a result of the meeting, the Parties shall in good faith attempt to resolve the dispute in accordance with the procedures described in Section 7.3.
7.3 Mediation. Any dispute that remains unresolved after the Resolution Meeting described in Section 7.2 above shall immediately be submitted to non-binding, neutral mediation before a mutually acceptable, neutral retired judge or justice at the Walnut Creek or San Francisco Offices of the Judicial Arbitration and Mediation Services ("JAMS"). If within five (5) days after the Resolution Meeting the Parties are unable to agree upon the selection of a neutral mediator, then the first available retired judge or justice at JAMS shall serve as the neutral mediator. The Parties agree to dedicate at least one full day (8 hours) to the mediation process. Each primary contact, or the duly authorized person acting in their absence, shall attend the mediation and shall have full authority to resolve the dispute. Additionally, to expedite the resolution of any dispute that is not resolved by mediation, the Parties agree to each bring to the neutral mediation a list of at least five ( 5) neutral arbitrators, including their resumes, whose availability for an arbitration hearing within fifteen ( 15) days after the mediation has been confirmed.
The mediation shall be held in Contra Costa County or such other county mutually agreed upon by the Parties, The mediation shall be subject to the provisions of California Evidence Code sections 1115 through 1128, or any successor statues thereto, except as the Parties may agree otherwise in writing or orally in accordance with the requirements of California Evidence Code section 1118. There shall be no stenographic record of the mediation process. The expenses of person participating in the mediation at the request of any Party shall be paid by that Party.
The expenses of the mediator shall be borne equally by the Parties unless they agree otherwise. If mediation is unsuccessful, the parties may pursue their respective remedies at law or equity.
Article 8 Indemnification
8.1 Indemnification. Each of the Parties here to (each, an "lndemnitor") agrees to defend, indemnify, and hold harmless each of the other Parties hereto, their directors, officers, agents, and employees (each, an "lndemnitee"), from all claims, demands, suits, loss, damages, injury, and liability, direct or indirect (including any and all costs and expenses in connection therewith), to the extent incurred by reason of any act or failure to act, of lndemnitor, its directors, officers, agents, or employees and contractors, under or in connection with this Agreement. Each Indemnitor agrees at 'its own cost, expense, and risk to defend any and all claims, action, suits or other legal proceedings brought or instituted against Indemnitees, their directors, officers, agents and employees, arising out of or resulting from any activity related to this Agreement, and to pay and satisfy any resulting judgments. The foregoing indemnification shall be applicable regardless of BART's appointment of Hercules as its Agent for the paid parking program. The foregoing indemnification obligation shall not apply to liability arising solely from active negligence or willful misconduct of an Indemnitee, its directors, officers, agents, or employees.
Article 9 Miscellaneous
9.1 No Joint Venture; No Public Rights. No provision of this Agreement shall be deemed to constitute the Parties as partners or joint venturers of one another, or in any way to obligate any Party for the performance of any obligation of the other Party not expressly assumed in this Agreement.
9.2 Binding Effect. All of the terms, covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns. Any person accepting a deed or other instrument conveying, granting or assigning any property affected or benefited by this Agreement or any portion thereof or interest therein shall take title subject to this Agreement and such person shall be deemed to have assumed all of the applicable obligations imposed on the Parties with regard to such property regardless of whether this Agreement is mentioned in such deed or other instrument.
9.3 Amendments. This Agreement may be amended only by a written instrument which is executed by the Parties. No other method of amendment or termination of this Agreement will be effective for any purpose.
9.4 No Waiver. No waiver of, acquiescence in or consent to any breach of any term, covenant or condition hereof shall be construed as, or constitute a waiver of, acquiescence in or consent to, any other, further or succeeding breach of the same or any other term, covenant or condition.
9.5 Interpretation. If any term or provision of this Agreement shall, to any extent, be invalid or unenforceable under applicable law, then the remaining terms and provisions of this Agreement shall not be affected, and each such remaining term and provision shall be valid and enforced to the fullest extent permitted by applicable law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
9.6 Notices. All notices and payments required under the terms of this Agreement shall be sent to the Parties at the addresses set forth below:
Hercules:
City of Hercules
111 Civic Drive
Hercules, California 94547
Attention: City Manager
BART:
San Francisco Bay Area Rapid Transit District
Real Estate and Property Development Department
2150 Webster Street, 9th Floor
Oakland, California 94612
Attention: Department Manager
WCCTA:
General Manager
Western Contra Costa Transit Authority
601 Water Avenue
Pinole, California 94564
Any notice or payment shall be deemed given and received when personally delivered or seventy-two (72) hours after deposit into the United States mail, certified or registered, return receipt requested, addressed to the appropriate foregoing address, or to such other address as a Party may specify by written notice delivered as provided in this paragraph.
City of Hercules
By: _________________________
Its: _________________________
Date: ________________________
San Francisco Bay Area Rapid Transit District
By: _________________________
Its: _________________________
Date: ________________________
West Contra Costa Transit Authority
By: _________________________
Its: _________________________
Date: ________________________
The parties have executed, acknowledged and delivered this Agreement as of the date first above written.
Exhibit A – Hercules Transit Center Facility Location
Exhibit B – Budgets for FY2024 & FY2025
Fiscal Year 2024 (July 1, 2023 – June 30, 2024)
and Fiscal Year 2025 (July 1, 2024-June 30, 2025)
City of Hercules Maintenance Budget
Item Description Budgeted Cost
FY24
Budgeted Cost
FY25
Program
administration
City of Hercules staff time for
management of maintenance
contracts. 24 hrs/year
$4,000 $5,000
Street Sweeping Street sweeping - annually $4,000 $5,000 Water (EBMUD) Water & wastewater costs $18,000 $20,000 Landscape
maintenance
Plant, tree, shrub and sprinkler
system maintenance and repair.
$13,300 $15,000
Trash removal Trash receptacles checked daily
and cans emptied as needed.
Graffiti removed as needed (work
performed by the City at 5
hrs/week)
$19,000 $19,000
Restrooms Two porta potties cleaned weekly. $6,200 $7,000 Power washing Power washing twice annually $2,500 $3,000 Subtotal $67,000 $74,000
Other expenses /
contingency
Miscellaneous repair (e.g. damage
to fencing, benches and lighting
fixtures).
$15,000 $15,000
Total budget $82,000 $89,000
West Contra Costa County Transit Authority Transit Transfer Discounts
Item Description Budgeted Cost
FY24
Budgeted Cost
FY25
Transit Transfer
Discounts
BART will reimburse WCCTA
$1.3575 on every access trip.
$7,500 $10,000