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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: October 25, 2005

Subject/Title: Resolution approving, and authorizing the City Manager to sign, a settlement and release agreement with the John A Continente Jr. Family Trust for the termination of a lease agreement for the property located at suites C and F, 8440 Brentwood Blvd, Brentwood, California, Suite C and F.

Prepared by: Lt. James Martinez, Police Department

Submitted by: Michael R. Davies, Chief of Police

RECOMMENDATION
Adopt a Resolution approving, and authorizing the City Manager to sign, a settlement and release agreement with the John A Continente Jr. Family Trust for the termination of a lease agreement for the property located at 8440 Brentwood Blvd, Suites C and F, Brentwood California.

PREVIOUS ACTION
On or about February 24th, 1999, the City of Brentwood (“City”) executed a lease agreement (the “Lease”) with the John A Continente Jr. Family Trust (“Landlord”) for space located at Suites C and F, 8440 Brentwood Boulevard, Brentwood California (the “Premises”).

BACKGROUND
Pursuant to the Lease, the City made, with Landlord’s permission, certain tenant improvements to the Premises. Also, pursuant to the Lease, in the event that the Improvements restrict the Landlord’s ability to re-lease the Premises, the City must restore the Premises to their original condition upon termination of the Lease. The Landlord has informed the City (September 2005) that the Premises cannot be re-leased in their current condition. City staff had an appraisal done on the cost to restore the Premises to the original condition. The appraisal suggested that the restoration costs would exceed $100,000. In lieu of having the Premises restored to their original condition the Parties have agreed to the attached settlement and release agreement by which the City will pay Landlord $27,550 and Landlord will not require the Premises to be restored to their original condition.

FISCAL IMPACT
The fiscal impact of this Settlement and Release agreement for John A. Continente Jr. Family Trust is Twenty Seven Thousand Five Hundred Fifty Dollars ($27,550.00).

Attachments:
Resolution
Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING, AND AUTHORIZING THE CITY MANAGER TO SIGN, A SETTLEMENT AND RELEASE AGREEMENT WITH THE JOHN A CONTINENTE, JR. FAMILY TRUST FOR THE TERMINATION OF A LEASE AGREEMENT FOR PROPERTY LOCATED AT 8440 BRENTWOOD BOULEVARD, SUITES C AND F, BRENTWOOD, CALIFORNIA.

WHEREAS, on or about February 24TH, 1999, the City of Brentwood (“City”) executed a lease agreement (the “Lease”) with the John A Continente, Jr. Family Trust (“Landlord”) for space located at 8440 Brentwood Boulevard, Suites C and F, Brentwood, California (the “Premises”); and

WHEREAS, pursuant to the Lease and Exhibit “C” thereto, City made, with Landlord’s permission, certain tenant improvements to the Premises (the “Improvements”); and

WHEREAS, City now wishes to terminate the Lease; and

WHEREAS, pursuant to the Lease and Exhibit “C” thereto, in the event that the Improvements restrict Landlord’s ability to re-lease the Premises, City must restore the Premises to their original condition; and

WHEREAS, Landlord has informed City that the Premises cannot be leased in their current condition; and

WHEREAS, City has determined that it may cost more than One Hundred Thousand Dollars ($100,000) to restore the Premises to their original condition; and

WHEREAS, in lieu of having the Premises restored to their original condition, the Parties have agreed to settle any outstanding matters as set forth in the Agreement attached hereto as Exhibit “A”.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood approves, and authorizes the City Manager to sign, a settlement and release agreement with Landlord related to the Premises.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a meeting held on the 25th day of October 2005 by the following vote:

AYES:
NOES:
ABSENT:
___________________________________
Brian Swisher
Mayor
ATTEST:
__________________________
Margaret Wimberly, CMC
City Clerk
SETTLEMENT AND RELEASE AGREEMENT

This Settlement and Release Agreement (“Agreement”) is entered into as of the ___day of October, 2005, by and between the City of Brentwood, a municipal corporation of the State of California (“Lessee”), and John A. Continente Jr. Family Trust (“Lessor”) (hereinafter referred to collectively as “Parties”).

Recitals

A. On or about February 24th, 1999, the Parties executed a lease agreement (the “Lease”) for space located at 8440 Brentwood Boulevard, Suites C and F, Brentwood, California (the “Premises”).

B. Pursuant to the Lease and Exhibit “C” thereto, Lessee made, with Lessor’s permission, certain tenant improvements to the Premises (the “Improvements”).

C. Lessee now wishes to terminate the Lease.

D. Pursuant to the Lease and Exhibit “C” thereto, in the event that the Improvements restrict Lessor’s ability to re-lease the Premises, Lessee must restore the Premises to their original condition.

E. Lessor has informed Lessee that the Premises cannot be leased in their current condition.

F. Lessee has determined that it may cost more than One Hundred Thousand Dollars ($100,000) to restore the Premises to their original condition.

G. In lieu of having the Premises restored to their original condition, the Parties have agreed to the following:

Terms

1. The Lease will terminate on December 1, 2005.

2. No later than fourteen (14) calendar days from the date first written above, Lessee shall pay Lessor the sum of Twenty Seven Thousand Five Hundred Fifty Dollars and No Cents ($27,550.00) (“Payment”) in the form of a cashier’s check, wire transfer, or City check payable to “John A. Continente Jr. Family Trust.”

3. Upon payment of the sum required by paragraph 2, Lessor, on behalf of themselves, their successors and assigns, and in consideration of the terms and conditions set forth herein, hereby releases and forever discharges all claims, causes of actions, and damages it now has or may have, known or unknown, against Lessee, its council, boards, commissioners, officers, employees and agents, and their respective successors and assigns, that arise out of or in connection with the Improvements or Lessee’s use of the Premises, whether said claims, assertions, or allegations were made or not, and hereby covenants not to sue Lessee, its council, boards, commissioners, officers, employees and agents, in connection therewith.

4. Lessor hereby agrees to defend, indemnify, and save harmless Lessee, its council, boards, commissioners, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or descriptions, which may be brought against, or suffered or sustained by Lessee, its council, boards, commissioners, officers, employees and agents arising out of or in connection with the Improvements or Lessee’s use of the Premises.

5. The Parties agree that in entering into this Agreement, they are not relying on any representations or promises not contained in this Agreement. This Agreement contains the entire agreement of the Parties and supersedes any prior agreement or agreements, written or oral, the Parties may have regarding this matter. The Parties agree that they have had a full opportunity to consult with attorneys, accountants, tax accountants, or other advisers before entering into this Agreement.

6. The Parties agree that the general rule of construction is that ambiguities in the drafting of a document are to be resolved against the drafting party and that this general rule of construction shall not apply to the interpretation of this Agreement.

7. Lessor certifies that they have read Section 1542 of the Civil Code, as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH DEBTOR.

LESSOR HEREBY WAIVES APPLICATION OF CIVIL CODE SECTION 1542 (the “1542 Release”).

Lessor understands and acknowledges that the significance and consequence of the 1542 Release is that even if Lessor should eventually suffer additional damages arising out of or in connection with the Improvements or Lessee’s use of the Premises, Lessor will not be permitted to make any further claim for those damages. Furthermore, Lessor acknowledges that they intend these consequences even as to unknown claims for damages arising out of or in connection with the Improvements or Lessee’s use of the Premises that may exist as of the date of this Agreement, and which, if known, would have materially affected Lessor’s decision to execute this Agreement, regardless of whether Lessor’s lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause on their part and/or their agent’s part.

8. Any notice under this Agreement shall be sent to the Parties as follows:

Lessor: John Continente Jr. Trust
112 Sandy Lane
Oakley, CA 94561

Lessee: City of Brentwood
Attn: Donna Landeros, City Manager
150 City Park Way
Brentwood, CA 94513

9. This Agreement shall inure to the benefit of, and shall be binding upon, the heirs, successors and assigns of the Parties, and each of them. Except as otherwise provided herein, this Agreement is intended to release and inure to the benefit of the Parties' successors, agents, employees, employees, and attorneys individually as well as in the capacity indicated.

10. In the event that any provision of this Agreement should be held to be void, voidable, or unenforceable, the remaining portions shall remain in full force and effect.

11. This Agreement shall not be modified in any respect except by an instrument in writing signed by all parties hereto.

12. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of California. Venue shall be in the County of Contra Costa, California.

13. The warranties and representations of this Agreement are deemed to survive the date of execution hereof.

14. The recitals in this Agreement are material terms of this Agreement and are incorporated herein by this reference. Each Party hereto represents and warrants to the other Parties that each recital is true and correct.

15. Each Party hereto will execute all further and additional documents as may be necessary and reasonable to effectuate and carry out the provisions of this Agreement.
16. The individuals executing this Agreement and the instruments referenced in it on behalf of Lessee and Lessor each represent and warrant that they have the legal power, right and actual authority to bind Lessee and Lessor to the terms and conditions of this Agreement.

THIS AGREEMENT IS A RELEASE – READ CAREFULLY BEFORE SIGNING

I have read the foregoing Agreement releasing claims and know it contents. I sign of my own act on the date next to my signature.

LESSEE:

CITY OF BRENTWOOD, a municipal corporation of the State of California

Date: October ___, 2005. By:
Donna Landeros, City Manager

ATTEST:

Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

Damien B. Brower, City Attorney

LESSOR:

JOHN A. CONTINENTE JR. FAMILY TRUST

Date: October ___, 2005. By:
John A. Continente Jr.
 

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