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CITY COUNCIL AGENDA ITEM 06

Meeting Date: February 26, 2002

Subject/Title: Approve a Resolution authorizing the City Manager to implement a contract with Myles Sexton in an amount not to exceed $6,000 per year for the rental of the parcel that houses the free cardboard drop-off bins. 

Submitted by: Paul Zolfarelli, Public Works Director and Jon Carlson, Solid Waste Manager

Approved by: John Stevenson, City Manager


RECOMMENDATION 
Approve the contract to allow the rental of the parcel for the cardboard drop-off bins to continue for at least an additional two years.

PREVIOUS ACTION
None 

BACKGROUND
Large quantities and large pieces of cardboard that newly-moved residents have and businesses generate on a regular basis is not easily picked up by the City’s automated service. Thus, the need for a method to collect and to recycle this material arose. The City of Brentwood Solid Waste Division began utilizing the space behind the Brentwood Café in the mid-1990’s as a free cardboard drop-off. As the usage has increased over the last several years, so have the illegal dumping and litter problems. The City erected a fence last year to contain the litter from spilling into neighboring lots and this has helped tremendously and improved the aesthetics of the site as well. 

In the past, staff has considered other alternatives, such as relocating the bins to a City-owned site. But the centralized location and the city-wide familiarity with the free cardboard drop-off site and built-in name recognition of Brentwood Café have too many advantages over other sites. 

Utilizing the lot without an agreement and without just compensation for the owner, jeopardized the possibility of continued use of the free drop-off site for residents and businesses. Staff had a one-year agreement and now wants to provide a longer-term solution by entering into a contract that secures the site for two years, with a built-in renewal clause. The contract also compensates Mr. Myles Sexton, owner of the parcel, for housing the bins on his site and for taking on the responsibility for keeping the site clean. 

FISCAL IMPACT
The annual impact on the Solid Waste Enterprise is $6,000 per year.

Attachment(s)
· Resolution
· Myles Sexton Contract

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER TO IMPLEMENT A CONTRACT WITH MYLES SEXTON IN AN AMOUNT NOT TO EXCEED $6,000 PER YEAR FOR THE RENTAL OF PROPERTY THAT HOUSES A FREE CARDBOARD DROP-OFF FOR LOCAL RESIDENTS AND BUSINESSES.

WHEREAS, the City of Brentwood Solid Waste Division has utilized the property behind Brentwood Café for many years and intends to continue its free cardboard drop-off program for residents and businesses at that site; and

WHEREAS, Myles Sexton, owner of the Brentwood Café restaurant, has agreed to continue renting the City the lot behind his restaurant for $500 per month; and

WHEREAS, the City shall renew the agreement for two years with a renewal clause included; and

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby approves the attached contract for rental of real property with Myles Sexton, owner of property.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 26th day of February, 2002 by the following vote:

AYES: 
NOES: 
ABSENT: 




_____________________________
Michael A. McPoland, Sr.
Mayor



ATTEST:



__________________________________
Karen Diaz, CMC
City Clerk

LEASE FOR RECYCLING
DROP OFF AND COLLECTION STATION

THIS LEASE is made as of this first day of February, 2002 (“Effective Date”) by and between, MYLES SEXTON, (“Landlord”), and CITY OF BRENTWOOD, a California municipal corporation (“City”).

WITNESSETH:

In consideration of the rents and covenants and subject to the terms herein set forth, Landlord hereby leases to City, and City hereby leases from Landlord certain property located at the southwest corner of Birch Street and Diablo Way, Brentwood, California, Contra Costa County, being a portion of Assessor's Parcel No 013-160-002, including access/egress easement (“Property”) containing approximately 4,000 square feet of unpaved area (hereinafter “Property” or “Demised Premises”), as more particularly designated and outlined on a plot labeled Exhibit A and incorporated herein by reference. 

1. Term

The Term of this Lease shall be a period of two (2) years commencing on the Effective Date and ending 24 months late from the Effective Date, unless extended by mutual agreement of the parties.

2. Rent

City covenants and agrees to pay $500 per month, without offset or deduction, except as expressly authorized elsewhere in this Lease, to the Landlord, its successors and assigns. Rent is payable in advance on or before the fifth (5th) day of each calendar month during the Term. Notwithstanding, City shall pay the first (1st) month's rent upon full execution of this Lease.

Any rent payable to Landlord by City for any fractional month shall be prorated based on a three hundred sixty-five (365) day year. Any and all rent payments shall commence on the effective date of this Lease.

3. As Is Condition 

Landlord shall deliver the Demised Premises in an “as-is” condition, except as provided in this Lease. Landlord acknowledges and agrees that City shall have complete access to the Demised Premises for the purpose of conducting recycled materials drop off and collection. 

At expiration or termination of this Lease, City agrees to remove at City's expense any collection bins or related personal property shall otherwise return the Demised Premises to Landlord in good condition, ordinary wear and tear, damage by casualty, condemnation, and/or acts of God excepted. 


4. Use

City intends to use the Demised Property as a temporary recyclable materials drop off point available to the public and related uses needed to properly and effectively operate a recycling station. 

Landlord retains the right to use for overflow public parking at any time.

5. Termination

This Lease shall terminate on the day immediately preceding the 24 month anniversary of the effective date of this Lease, unless City notifies Landlord of its intent to holdover for a period of not more than 24 months. 

Without limitation to such rights or remedies as both parties shall otherwise have by law, both parties shall have the right to terminate this Lease for any reason upon thirty (30) days’ written notice to the other party as provided in Section 16. Upon termination or expiration of this agreement, the obligations of the parties shall cease, save and except from those provided in this Lease. 

6. Payments at the Landlord's Direction

All rent payable and all statements deliverable by the City to the Landlord under this Lease shall be paid and delivered to the Landlord at the place designated by the Landlord for notices under this Lease, or any place it so designates in writing in the future.

7. Taxes, Insurance Premiums, and Maintenance Expenses

(a) Landlord will pay annually all taxes which may be levied or assessed by any lawful authority against the Demised Property. 

The term “taxes” shall mean and include all taxes, assessments and other governmental charges, general and special, including, without limitation, assessments for public improvements or benefits, which shall, during the Term, be assessed, levied, and imposed by any governmental authority upon the land that comprises the Demised Property. 

(b) City shall pay for all utilities consumed by it at the Demised Premises. 

8. Past Due Rent and Additional Sums

If the City fails to pay within ten (10) days of the due date thereof, any rent, or any other amounts or charges, such unpaid amount shall accrue a late charge in the amount ten percent (10%) of the unpaid amount, and shall in addition thereto bear interest from the eleventh (11th) day following the due date until the date of payment at the rate of ten percent (10%) per annum.


9. The City's Covenants

The City covenants and agrees as follows:

(a) Prompt Payment

That it will pay when due all Rent and other charges herein described and all water and sewer charges, gas, electricity and other utility bills attributable to the Demised Premises as the same shall become due. If the Landlord shall pay any money or incur any expenses in correction of violations of the City's covenants herein set forth, the amounts so paid or incurred shall, at the Landlord's option, bear interest at the rate set forth in Paragraph 10 hereof. Charges for the foregoing shall commence on the effective date of this Lease.

(b) Refuse

Landlord shall assume responsibility for litter control and cleanup of improperly discarded materials to a standard acceptable to the neighboring property owners/renters or City Manager for the Demised Property. 

(c) Insurance/Indemnity

All personal property, improvements, and betterment's of City in the Demised Premises, shall be and remain at its sole risk, and Landlord shall not be liable for any damage to or loss of such personal property arising from or out of the occupancy or use by City of the Demised Premises, or any part thereof or any other part of Landlord's property comprising the Property, from vandalism or theft, except as due to Landlord's negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees.

Except in the case of City’s own negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees, Landlord shall protect, defend and indemnify and save City, his agents and employees harmless from any and all liability, damage, expense, cause of action, suits, loss, costs, penalties, attorneys fees, claims or judgments arising from any injury or loss of life to the person of City or other persons or damage to property caused by Landlord's negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees.

10. Removal of City's Property

Landlord agrees that all city fixtures which include without limitation all collection bins and related equipment, used in the operation of collection station, which are placed on the Demised Premises by City from time to time during the Term of this Lease shall be the property of City and at the expiration of termination of this Lease may be removed from the Demised Premises by City. City shall repair and restore the Demised Premises to good condition, reasonable wear and tear, damage by casualty, condemnation, and/or act of God excepted.

11. Subordination

The rights of City under this Lease shall be and are subject and subordinate at all times to the lien of any bank or institutional deed of trust or deeds of trust now or hereafter in force against the Property and to all advances made or hereafter to be made upon the security thereof, provided the note holder and beneficiary secured by such deed of trust or deeds of trust shall agree to recognize the Lease of City in writing in the event of foreclosure if City is not then in default beyond any applicable cure period. Within fifteen (15) business days after receipt of request therefore by Landlord, City shall deliver to Landlord such subordination agreement in a form acceptable to City as may be required by any lender or proposed lender to evidence such subordination.

12. Landlord's Remedies

If the rent, or any other charge agreed to be paid and all other sums of money which under the provisions hereof may be due Landlord, shall be in arrears in whole or in part for ten (10) or more days following written notice, City shall be in default. If City shall violate any covenant contained herein, other than the covenant to pay rent or other sums of money due Landlord, and shall fail to comply with such covenant within thirty (30) days after being given written notice of such violation by Landlord, City shall be in default. In the event of City's default, Landlord shall have the following remedies:

(a) Landlord may continue the lease in full force and effect for so long as Landlord does not terminate the City's right to possession and Landlord may enforce all of Landlord's rights and remedies under this Lease; and 

(b) Landlord may terminate City's right to possession, in which case this Lease shall terminate and, upon such termination, the Landlord may recover from the City unpaid rent and any additional rent which had been earned at the time of termination.

13. Notices

All notices from City to Landlord required or permitted by any provision of this Lease shall be in writing and sent by registered or certified mail, postage prepaid and directed to Landlord at:

Myles Sexton
8500 Brentwood Blvd
Brentwood, California 94513

All notices from Landlord to City so required or permitted shall be in writing and sent by registered or certified mail, postage prepaid and directed to City at:

John Stevenson, City Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513

Either party may, at any time or from time to time, designate in writing a substitute address for that above set forth, and thereafter notices shall be directed to such substitute address for that above set forth. Notices to either party shall be effective three (3) business days after depositing in the United State Postal system or on the next business day if sent by overnight courier in accordance with this Paragraph.


14. Successors and Assigns

This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon Landlord, its successors, and assigns, and shall be binding upon City, its successors, assigns, heirs, executors, administrators, and legal representatives, and shall inure to the benefit of City and only such assigns of City to whom the assignment by City has been consented to by Landlord.

15. Waiver

The failure of either party to insist, in any one or more instances, upon a strict performance of any covenant of this Lease or to exercise any option or right herein contained shall not be construed as a waiver or relinquishment for the future of such covenant, right, or option, but the same shall remain in full force and effect unless the contrary is expressed in writing.

16. Holding Over

Any holding over by City after expiration of the Lease Term shall constitute a renewal or extension of the Lease. Any holding over after the expiration of the Lease without the consent of Landlord shall be construed to be a tenancy from month to month on the same terms and conditions herein specified with rent continuing as $500 per month, until it is re-negotiated by both parties.

17. Entire Agreement

This Lease sets forth all the promises, agreements, conditions, and understandings between Landlord and City relative to the Demised Premises, and there are not promises, agreements, conditions, or understandings, either oral or written, expressed or implied, between them other than set forth herein. Except as herein otherwise provided, no subsequent alterations, amendment, change, or additions to this Lease shall be binding upon Landlord or City unless reduced to writing and signed by them.

18. Construction of Agreement

This Lease shall be constructed under the laws of the State of California in which the Demised Premises are located. All headings preceding the text of the several provisions and sub provisions are inserted solely for convenience of reference and none of them shall constitute a part of this Lease or affect its meaning, construction, or effect. Venue for any action brought by Landlord and City relation to this Lease shall be in the courts of Contra Costa County.

IN WITNESS WHEREOF, Landlord and City have caused this Lease to be executed in their names by their duly authorized officers.

LANDLORD CITY


______________ ___________________________
Myles Sexton John Stevenson, City Manager

EXHIBIT A

APN 013-160-002 located at SW corner of Birch Street and Diablo Way.

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