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19941011 1994-26ORDINANCE NO. 1994-. 26 AN ORDINANCE AUTHORIZING THE EXECUTION OF A DEED OF LEASE BETWEEN THE CITY OF FAIRFAX, VIRGINIA AND THE NORTHERN VIRGINIA REGIONAL PARK AUTHORITY PERMITTING THE AUTHORITY TO USE A PORTION OF REAL PROPERTY OWNED BY THE CITY AT THE INTERSECTION OF PICKETT ROAD AND OLD PICKETT ROAD, TAX MAP PARCEL NUMBER 48-3-02-015, FOR A PERIOD OF FORTY (40) YEARS FOR A REGIONAL PARK. 1. BE IT ORDAINED, by the city Council of the City of Fairfax, Virginia, that the city of Fairfax is hereby authorized to lease to the Northern Virginia Regional Park Authority a portion of real property owned by the City of Fairfax at the intersection of Pickett Road and Old Pickett Road, Tax Map Parcel Number 48-3-02-015, for a period of forty (40) years to develop, maintain and operate thereon a regional park. The terms and conditions of the Deed of Lease for such property are as follows: 1. Premises. The Landlord hereby leases to the Tenant a portion of a parcel of real property, designated as Tax Map Parcel Number 48-3-02-015, owned by the Landlord and located in the City of Fairfax at the southwest quadrant of the intersection of Pickett Road and Old Pickett Road. Such portion contains 1.275 acres, more or less. A plat entitled "Plat Showing A Portion The Property of city of Fairfax, Virginia," prepared by Fairfax Surveys, Inc., dated September 20, 1994, indicating the location of the parcel and portion thereof to be leased is attached hereto designated as Attachment A and made a part hereof (the "Plat"). The portion of the parcel to be leased is hereinafter referred to as the ,'Demised Premises". This Lease is of the land only, which land is presently unimproved. The Tenant shall own all buildings, structures, improvements and fixtures constructed on the Demised Premises after the date of this Lease until such buildings, structures, improvements and fixtures are conveyed to or become the property of the Landlord as hereinafter provided. 2. Term. The term of this Lease shall be for forty (40) years beginning on October 14, 1994 and ending on October 13, 2034 (the "Lease Term"). 3. Use of Demised Premises Generally; Development Plan. The Demised Premises may be used by the Tenant to develop, maintain and operate thereon, at the Tenant's expense, a regional park in general accordance with a development plan (the "Plan") for the Demised Premises. A copy of the Plan entitled "Gateway Regional Park, A Trailhead Facility For the City of Fairfax" (sheet 2), prepared by Stephen Allen Smith, Architect, dated March 17, 1994, is attached hereto designated as Attachment B and made a part hereof. Included in the Plan is the construction of a deck, walkway, and related improvements; the installation of a park sign identifying the facility the contents of which sign shall be determined by the Tenant; the limited clearing of the woodland understory in accordance with the City Tree Management Policy, dated May 10, 1994, and the trimming of the lower tree branches in order to improve access and visibility into the Demised Premises; the planting of 1994-26 decorative plantings and appropriate screening material, and other landscaping determined by the Tenant to be appropriate for the Demised Premises; and the establishing of foot paths and interpretive signs upon the Demised Premises. With the exception of the previously described improvements, it is the intention of the Landlord and the Tenant that the Demised Premises be maintained substantially in its present natural and wooded state. Implicit in the Plan is an intent to extend, along the east side of Pickett Road between Route 50 and Old Pickett Road, the Tenant's trail known as W&OD/City of Fairfax Connector Trail. It is understood that this Lease is not applicable to the real estate encompassing the proposed trail, nor have the Landlord and the Tenant arrived at any agreement in implementing that portion of the Plan. 4. Rent. The Tenant agrees to pay One Dollar ($1.00) per year as rent to the Landlord for the Demised Premises. All rent shall be payable to the City of Fairfax, Virginia and payable at the Office of the City Manager, City Hall, 10455 Armstrong Street, Fairfax, Virginia 22030 or to such other person or at such other address as may be hereafter designated in writing by the Landlord to the Tenant. Rent shall be paid annually, in advance, before the annual anniversary date of this Lease. 5. Care of Demised Premises. The Tenant shall be solely responsible for the operation, control, repair, and maintenance of the Demised Premises and improvements constructed or located thereon. The Tenant shall operate, repair and maintain the Demised Premises in a safe, clean and wholesome manner. All structures and landscaping shall be properly maintained and repaired by the Tenant so as to not become an eyesore or a nuisance. The Tenant agrees to operate and use the Demised Premises in accordance with all applicable ordinances, and governmental regulations of the City as they now exist or may hereafter be adopted. 6. Initial Development of Demised Premises. The Tenant has budgeted in excess of $100,000 for development of the Demised Premises during the 1993-94 fiscal year and is prepared to commit and expend at least such amount immediately upon commencement of the Lease Term or as soon thereafter as the required construction approvals are obtained. The Tenant has budged an additional $15,000 for such purposes during the 1994-95 fiscal year. It is the intention of the parties that the initial development will consist of construction of a deck and walkway and related features shown on the Plan, together with the trimming of lower tree branches to improve access and visibility into the site. Anticipated improvements in the fiscal year 1994-95 include development of interpretive and informational displays within the deck structure. 7. Future Development of Demised Premises. While the Tenant will undertake in good faith to develop the Demised Premises as a regional park in accordance with the Plan, with the exception of the Initial Development described above, the Tenant is not obligated to adhere strictly to such Plan or to develop all or any of the improvements shown on such Plan within any particular period of time or at any time. The Tenant shall obtain from the Landlord approval of any substantial subsequent changes to the Plan prior to implementation thereof. 1994-26 8. Use and Maintenance of Demised Premises. Subject to the following conditions, the Tenant may construct or establish on the Demised Premises such improvements, structures, facilities and other amenities as are shown on the Plan and any subsequently approved changes thereto. The Tenant shall operate and maintain the Demised Premises and improvements in a manner, quality and state of repair comparable to the Tenant's similarly developed regional parks in Northern Virginia. Notwithstanding the foregoing, the Landlord will assist the Tenant in preparing and updating interpretive displays and material which describe, promote and interpret the Landlord's trails system and points of interest and scheduled activities in the City of Fairfax. The Tenant shall keep the park on the Demised Premises open to the public at hours and days generally comparable to the Tenant's similarly developed regional parks. 9. Damage to Buildings, Structures, Improvements or Fixtures. If the buildings, structures, improvements or fixtures on the Demised Premises are either damaged, destroyed or rendered unfit for use by fire, the elements, unavoidable accident or other casualty, then the Tenant shall, at its sole expense, either cause such buildings, structures, improvements or fixtures to be promptly repaired to a condition suitable for public recreation , or removed. If the Tenant fails to promptly repair or remove such facilities, then the Landlord may terminate this Lease at the Landlord's sole option, after ninety (90) days prior written notice from the Landlord to the Tenant. 10. Repairs. The Tenant shall, at its sole expense and at all times, maintain all buildings, structures and improvements on the Demised Premises in good condition and repair, in a clean, sanitary, and safe condition in accordance with all applicable ordinances and governmental regulations. 11. Easements and Riqhts of Way for Development of the Demised Premises. To the extent permitted by law, the Landlord agrees to join with the Tenant in the granting of such utility easements, rights of way, ingress and egress easements, and such other easements and licenses to third parties as may reasonably be necessary for the orderly development of the Demised Premises by the Tenant as a regional park so long as the nature or the extent of the easement, right of way or license does not, in the opinion of the Landlord, unreasonably detract from the value of the Demised Premises. 12. Excluded Property, Access. There is excluded from the Demised Premises the drainage channel known as Accotink Creek which borders the Demised Premises on the south. The Demised Premises further excludes the public streets and sidewalks and those improvements such as ditches, drainage facilities and traffic control devices associated with Pickett Road, Old Pickett Road and the portion of the Old Pickett Road (previously known as "Scheurman" or "Scherman's" Road) bordering the Demised Premises on the west. The Landlord grants to the Tenant non-exclusive access across such excluded property to the extent that such access has been granted to the public at large and to the extent that such access is not inconsistent with rights previously granted by the Landlord to others. 13. Improvements and Surrender. The Tenant may, at its cost and expense, construct or cause to be 3 1994-26 constructed upon the Demised Premises such temporary or permanent structures and improvements as are indicated on the Plan and any changes thereto approved by the Landlord. All such buildings, structures and improvements shall at all times during the Lease Term be the exclusive property of the Tenant. The Tenant may, at its expense, from time to time, make any alterations, additions, improvements or deletions to the Demised Premises as the Tenant deems appropriate, provided that no substantial alterations, additions, improvements or deletions shall be performed without the prior consent of the Landlord which consent shall not be unreasonably withheld. The Tenant agrees to comply with all applicable laws, ordinances and governmental regulations in constructing, altering, adding to or deleting from such buildings, structures and improvements. At the expiration of the Lease Term or upon earlier termination of the Lease, the Tenant shall have the right, but not the obligation, to remove at the Tenant's sole expense, the buildings, structures or improvements then existing, so long as the Tenant leaves the Demised Premises in at least as good condition as at the commencement of the Lease Term. Any buildings, structures or improvements not removed within ninety (90) days of the expiration of the Lease Term or effective date of termination, shall pass to and become absolutely vested in the Landlord without compensation paid to the Tenant. The Tenant agrees to execute any and all documents which the Landlord deems to be necessary to transfer such title in such buildings, structures and improvements to the Landlord. 14. Utilities, Miscellaneous Costs and Expenses. The Tenant shall promptly pay all service and user fees for electricity, gas, fuel, power, water, sewer, communications, and all other utilities used on or in regard to the Demised Premises. The Tenant shall obtain and pay for such separate meters or lines as may be needed to obtain separate billing. The Tenant shall pay all costs and expenses of every kind incurred by or on behalf of the Tenant in connection with the use, operation and maintenance of the Demised Premises and all activities conducted thereon. The Tenant shall not be required to pay for or reimburse the Landlord for public services provided by the Landlord to the public generally without charge. 15. Indemnification and Hold Harmless. The Tenant agrees to protect, indemnify and save harmless the Landlord, its elected officials, officers and employees from and against any and all liability or claims by or on behalf of any person or governmental authority arising from the conduct, management or condition of the Demised Premises as a regional park during the term of this Lease or any extension thereof, or arising from any breach or default on the part of the Tenant, its officers and employees, or arising from any act or negligence of the Tenant or any of its contractors, licensees, agents, servants or employees or arising from any accident, injury or damage whatsoever caused to any person or property occurring during the term of this Lease or any extension thereof in connection with the rights and obligations of the Tenant under this Lease. 16. Insurance. The Tenant shall acquire and maintain in full force and effect at all times during the Lease Term, general liability insurance covering the construction, operation and use of the facility for the joint and separate protection of the Tenant and the Landlord, its elected officials, officers and employees 4 1994-26 in the minimum amount of $2,000,000.00 per occurrence for bodily injury and property damage. Such insurance shall contain an endorsement naming the City of Fairfax, Virginia, its elected officials, officers and employees as additional named insureds. Such insurance shall be primary as to any other insurance that the Landlord may have. Such insurance may not be canceled or coverage reduced without the Tenant first giving thirty (30) days prior written notice to the Landlord. If such insurance is canceled or if coverage is changed or reduced, then the Tenant shall obtain, prior to the effective date thereof, insurance coverage (if such insurance coverage is obtainable) to meet the requirements of this paragraph and shall provide written evidence thereof to the Landlord. The Tenant agrees to increase such policy limits, if requested by the Landlord, provided that such increases shall not be unreasonable in view of the uses of the Demised Premises and provided that such increased insurance coverage is obtainable. Prior to commencement of the Lease Term, the Tenant shall deliver to the Landlord a certificate of insurance, in standard industry form, evidencing that the applicable requirements of this paragraph have been satisfied. The Tenant shall pay all deductibles and amounts not covered by insurance. 17. Laws, Ordinances, and Governmental Requlations. The Tenant, or itself and its employees, agree to comply with all applicable city, State and Federal laws, ordinances, and governmental regulations applicable to the Demised Premises and to the Tenant's planning, development, construction, occupation and activity thereon and related thereto. 18. Warranty of Title and Quiet Possession. The Landlord covenants that it holds fee simple title to the Demised Premises subject to the rights of way, easements and encumbrances shown on the Plat and in the land records in the Clerk's office of the Fairfax County Circuit Court. The Landlord has the full right to enter into this Lease. The Landlord further covenants that the Tenant shall have quiet enjoyment of the property during the Lease Term in accordance with the terms hereof. 19. Condemnation. A. Effect of Total Condemnation. If the entire Demised Premises is appropriated or taken under the power of eminent domain by any public or quasi-public entity, this Lease shall terminate and expire as of the date of such taking, and the Landlord and the Tenant shall thereupon be released from any liability thereafter occurring hereunder. B. Effect of Partial Condemnation. If a portion of the Demised Premises is so appropriated or taken and the remainder of the Demised Premises, in the opinion of the Tenant, is not suitable for use as a regional park, then the Tenant shall have the right to terminate this Lease, without liability. Such termination shall become effective ninety (90) days after receipt by the Landlord of the Tenant's termination notice. C. Condemnation Award. If the Lease is terminated by reason of the total or partial condemnation of the Demised Premises, then in any such condemnation proceedings, the Landlord and the Tenant shall be entitled to make a claim against the condemning authority for the amount of any damage done to such parties as a result of the take. 5 1994-26 20. Transfer or Assignment; Sale of Buildin~sL Structures, Improvements or Fixtures. The Tenant shall ~either transfer nor assign this Lease, in whole or in part, without the prior written consent of the Landlord, which consent shall not be unreasonably withheld. The Tenant shall have the right to grant licenses, concessions and other similar rights to vendors and others in connection with the operation of the park on the Demised Premises. The Tenant shall have the right to pledge its leasehold interest in the Demised Premises to secure financing for development of the park facilities. 21. Termination. Upon expiration of the Lease Term or termination of the Lease, the Tenant shall, unless otherwise provided herein, surrender the Demised Premises to the Landlord together with all building, structures, improvements and fixtures then located on the Demised Premises. If, at any time, the Tenant ceases to exist as a public body politic and corporate, then this Lease shall immediately terminate and the buildings, structures, improvements and fixtures shall become the property of the Landlord without compensation. 22. Landlord's Remedies.. If, there is a substantive default by Tenant hereunder, which continues for ninety (90) days after receipt by the Tenant of notice of such default and the Tenant fails to take reasonable steps to promptly cure the default, then the Landlord may terminate this Lease and recover possession of the Demised Premises without further notice or demand upon Tenant. Notwithstanding anything herein to the contrary, if a default occurs during the Lease Term and the Lease is terminated as a result of the default, then the buildings, structures, fixtures and improvements shall become the property of the Landlord without compensation, provided that the Tenant shall have the right to remove such buildings, structures, or improvements within the time period provided in Section 13 of this Lease. All remedies granted in this section or otherwise provided by law shall be cumulative and, unless inconsistent, may be exercised separately, concurrently or successively. 23. Notices. All notices by either party to the other shall be in writing and shall be deemed to be duly given if delivered personally or mailed by registered or certified mail in a post-paid envelope, return receipt requested, addressed (a) if to Tenant, to the Executive Director, Northern Virginia Regional Park Authority, 5400 Ox Road, Fairfax, Virginia 22039 and (b) if to the Landlord, to the city Manager at city Hall, 10455 Armstrong Street, Fairfax, Virginia 22030, or to either party at such addresses as the Tenant or the Landlord, respectively, hereafter designate in writing. Notices shall be effective upon receipt. 24. Amendments to this Leas~. No amendment to any provision of this Lease shall be made except by written agreement executed by persons duly authorized to bind the Landlord and the Tenant, respectively. 25. Waiver and Severabilit¥. Any waiver of a default hereunder shall not be deemed a waiver of any subsequent default. Any invalid, illegal, or unenforceable clause in this Lease shall neither be construed as invalidating the Lease nor any other clause herein. 26. Applicable Law. This Lease shall be governed by the laws of the Commonwealth of Virginia. This Lease 6 1994-26 expresses the entire understanding and agreement of the Landlord and Tenant. Neither party shall be bound by any agreement or representation not expressly described herein. 27. Recordatio__ n. This Lease or a memorandum thereof shall be promptly recorded in the Clerk's office of the Fairfax County circuit Court by the Tenant at the Tenant's expense. 2. BE IT ORDAINED by the City Council of the City of Fairfax that the Mayor is authorized and directed to execute a Deed of Lease from the city to the Northern Virginia Regional Park Authority, including the terms and conditions contained herein. This ordinance shall become effective as provided by law. INTRODUCED PUBLIC HEARING ADOPTED : September 27, 1994 : October 11, 1994 : October 11, 1994 MAYOR ATTEST: ITY CLERK DATE