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CITY COUNCIL AGENDA ITEM NO. 12

Meeting Date: August 12, 2008

Subject/Title: Adopt a Resolution Approving and Authorizing the City Manager or Designee to Execute the Lease Agreement Between the Gill E.F. Trust and the City of Brentwood for the Second Street Parking Lot

Prepared by: Gail Leech, Management Analyst

Submitted by: Karen Chew, Assistant City Manager

RECOMMENDATION
Adopt a Resolution Approving and Authorizing the City Manager or Designee to Execute the Lease Agreement Between the Gill E.F. Trust and the City of Brentwood for the Second Street Parking Lot

PREVIOUS ACTION
On June 26, 2002, by authority under the Purchasing Policy, the City Manager entered into a three-year lease for real property identified as portions of 715 and 739 Second Street and 219 Oak Street, further identified as APN 013-080-005, 006 & 008, generally located on the south side of Second Street across from City Park.

On November 12, 2002, by Resolution No. 2739, City Council awarded a contract to construct the Second Street Parking Lot, CIP No. 336-3135.

On June 28, 2005, by Resolution No. 2005-156, City Council approved the renewal of the parking lot lease with the Gil E.F. Trust for the Second Street parking lot.

BACKGROUND
As part of the City’s desire to make more parking available around City Hall and the downtown business area, staff explored and evaluated different alternatives several years ago. During the time frame of 2001 to 2003, the City constructed two parking lots in the downtown area; both funded by the Redevelopment Agency. Continuing the efforts to improve parking availability, the City entered into a three-year lease of the subject property from the Gill E. F. Trust (private property owner), which made it feasible for the City to pave what was a gravel lot being leased on a monthly basis and the City added additional lighting for safety and benefit of the general public. This added a desirable 60 parking spaces to the downtown business area, reducing parking congestion around City Hall and the downtown area. This parking lot is providing major relief until a permanent downtown parking structure or other alternative becomes available.

In addition to providing overflow parking for downtown, once the Civic Center construction is underway, this lot will be needed to provide parking for City staff and others. It is staff’s intention to secure this lease through completion of the Civic Center.

FISCAL IMPACT
This is a three year contract, with an option to renew for a fourth year if there are no approved plans to develop the Premises as of May 30, 2011.

The terms are: $31,200.00 for the first year upon execution of this Lease. On or before July 1, 2009, City shall pay as annual rent for the second year the sum of $32,760.00. On or before July 1, 2010, City shall pay as annual rent for the third year the sum of $34,398.00. The total cost of this lease, without a fourth year renewal will be $98,358. Should the option be exercised to extend for a fourth year, the annual rent will be negotiated in good faith at the end of the third year. Funding for the lease is included in the FY 2008/09 budget in the Non-Departmental General Fund account.

Attachments:
Resolution
Lease

RESOLUTION NO.

A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE LEASE AGREEMENT BETWEEN THE GILL E. F. TRUST AND THE CITY OF BRENTWOOD FOR THE SECOND STREET PARKING LOT

WHEREAS, on June 26, 2002, by authority under the Purchasing Policy, the City Manager entered into a three-year lease for real property identified as portions of 715 and 739 Second Street and 219 Oak Street, further identified as APN 013-080-005, 006 & 008, generally located on the south side of Second Street across from City Park), which made it feasible for the City to pave what was a gravel lot being leased on a monthly basis and the City added additional lighting for safety and benefit of the general public; and;

WHEREAS, on November 12, 2002, by Resolution No., 2739, City Council awarded a contract to construct the Second Street Parking Lot, CIP No. 336-3135; and

WHEREAS, on June 28, 2005, by Resolution No. 2005-156, City Council approved the renewal of the parking lot lease with the Gil E. F. Trust for the Second Street parking lot; and

WHEREAS, as part of the City’s desire to make more parking available around City Hall and the downtown business area, staff explored and evaluated different alternatives several years ago. During the time frame of 2001 to 2003, the City constructed two parking lots in the downtown area; both funded by the Redevelopment Agency; and

WHEREAS, this parking lot is providing major relief until a permanent downtown parking structure or other alternative becomes available; and

WHEREAS, in addition to providing overflow parking for downtown, once the Civic Center construction is underway, this lot will be needed to provide parking for City staff and others. It is staff’s intention to secure this lease through completion of the Civic Center; and

WHEREAS, the terms are: $31,200.00 for the first year upon execution of this Lease. On or before July 1, 2009, City shall pay as annual rent for the second year the sum of $32,760.00. On or before July 1, 2010, City shall pay as annual rent for the third year the sum of $34,398.00. The total cost of this lease, without a fourth year renewal will be $98,358. Should the option be exercised to extend for a fourth year, the annual rent will be negotiated in good faith at the end of the third year; and

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood approves and authorizes the City Manager or Designee to Execute the Lease Agreement between the Gill E.F. Trust and the City of Brentwood for the Second Street Parking Lot.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 12th day of August 2008 by the following vote:


PARKING LOT LEASE
(715 and 739 2nd Street, 219 Oak Street)

THIS PARKING LOT LEASE (the “Lease”) is dated _______________________ 2008, and entered into by and between THE GILL E. F. TRUST (“Landlord”), and the CITY OF BRENTWOOD, California (‘Tenant).

1. Premises. Landlord leases to Tenant and Tenant leases from Landlord that real property owned by Landlord in the City of Brentwood, County of Contra Costa, California, commonly known as portions of 715 and 739 2nd Street and 219 Oak Street, and more particularly described in Exhibit A, attached hereto and made a part hereof. The leased real property (‘Premises”) is diagrammed on Exhibit B attached hereto and made a part hereof.

2. Use. Tenant shall have the exclusive use of the Premises for the purpose of providing vehicle parking. Landlord shall ensure the access points to the Premises, as depicted on Exhibit B, remain open and accessible to Tenant. Tenant shall continue to reserve and mark ten parking spaces a private parking, 221 Oak St., as they are presently and diagrammed on Exhibit B.

3. Term and Option. The term of possession under this Lease shall commence on July 1, 2008, and shall continue for three years until June 30, 2011. Tenant has an option to renew the Lease for one additional year if Landlord is the record-owner of the Premises and there are no approved plans to develop the Premises as of May 30, 2011. This option shall be exercised by the Tenant giving Landlord notice by May 30, 2011, of the Tenant’s intent to extend the Lease one-year. Landlord shall have 10 days after receipt of the notice to reject the extension by providing evidence that either Landlord is not the record-owner or there are approved plans to develop the Premises. After such 10-day period, the option exercise shall be deemed a valid extension of the Lease. During the three-year term, as may be extended, there will be no right to terminate the Lease except for remedies set out below in sections 8 and 12.

4. Rent. Tenant shall pay to Landlord as annual rent the sum of Thirty One Thousand, Two Hundred Dollars ($31,200.00) for the first year upon execution of this Lease. On or before July 1, 2009, Tenant shall pay as annual rent for the second year the sum of Thirty Two Thousand, Seven Hundred and Sixty Dollars ($32,760.00). On or before July 1, 2010, Tenant shall pay as annual rent for the third year the sum of Thirty Four Thousand Three Hundred and Ninety Eight Dollars ($34,398.00). Should the option be exercised to extend for a fourth year, the annual rent will be negotiated in good faith at the end of the third year. Checks should be made payable to Garrett Gill at the address set forth in section 15.

5. Taxes and Assessments. Landlord shall pay all real and personal property taxes, general and special assessments, and other public agency charges levied against the Premises or improvements located thereon.

6. Utilities. There are no utility services to the Premises.

7. Repairs and Maintenance.

A. Condition of Premises. It is understood that the Premises are not paved, consisting of a layer of gravel covering the surface.

B. Tenant’s Obligation. At all times during the term of this Lease, Tenant shall, at its cost and expense, maintain the Premises in a clean, sanitary, orderly and attractive condition and take any and all necessary actions to provide public parking. Tenant may, but is not required to, establish paved all weather striped parking stalls, place posts, signs and wheel stops, and treat the Premises with an oil sealant.

C. Landlord’s Obligation. Landlord has removed an above-ground oil tank located on the Premises. In all other respects, Tenant does not know the environmental condition of the Premises. Landlord shall be solely responsible for compliance with state and federal environmental reporting, disclosure and clean-up laws to the extent applicable. Landlord as of the end of the Lease shall take the Premises back subject to any Tenant improvements made to permit public parking.

8. Damage or Destruction. If, during the Term, the Premises or any improvements on the Premises are totally or partially destroyed from any cause, rendering the Premises totally or partially inaccessible or unusable for vehicle parking use, Landlord shall restore the Premises to substantially the same condition as they were in immediately before destruction. If restoration cannot be made in ninety (90) days, then either party can terminate the Lease immediately by giving notice to the other party.

9. Assignment and Subletting. Tenant shall not voluntarily assign or otherwise transfer its interest in this Lease, or sublease all or any part of the Premises, without the prior written consent of Landlord, which consent will not be unreasonably withheld.

10. Condemnation. Landlord acknowledges that Tenant is not acquiring a leasehold interest in the Premises through any exercise of its powers of eminent domain. This is a voluntary transaction whereby the rent represents all fair market value, however construed, for the term of this lease.

11. Default. The occurrence of any one or more of the following events shall constitute a default under this Lease by Tenant:

A. Failure to pay an installment of rent when due; or

B. Failure to perform or breach of any other specific provision of this Lease.

12. Remedies in Event of Default. In the event a default occurs due to the failure of Tenant to make the payment of any installment of rent when due, and in the event Tenant fails to remedy such default within thirty (30) days after written notice to do so, or in the event that Tenant shall fail to commence corrective action to remedy other defaults with thirty (30) days after written notice from Landlord specifying the nature of such default, then Landlord shall have the right to terminate this Lease by providing written notice to Tenant.

13. Ownership of Improvements. At the expiration or sooner termination of the term of this Lease, all improvements on the Premises installed by Tenant shall become the property of Landlord, if not removed by Tenant.

14. Miscellaneous.

A. Attorney’s Fees. In the event any action is brought by Landlord or Tenant against the other to enforce, or for the breach of, any of the terms, covenants or conditions contained in this Lease, the prevailing party shall be entitled to recover reasonable attorneys’ fees to be fixed by the Court, together with costs of sit therein incurred.

B. Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Lease shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof.

C. Lease Binding Upon Successors and Assigns. Subject to the limitations on assignment and subleasing, each of the terms, covenants and conditions of this Lease shall extend to and be binding on and inure to the benefit of not only Landlord and Tenant, but each of their successors and assigns. Whenever in this Lease reference is made to either Landlord or Tenant, the reference shall be deemed to include, wherever applicable, the successors and assigns and such parties the same as if in every case expressed.

D. Entire Agreement. This Lease contains the entire agreement of the parties hereto with respect to the matters covered hereby, and not other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid.

E. Indemnification of Landlord. Landlord will not be liable for any damage or injury to Tenant, any person, or any property, occurring on the premises except to the extent such damage or injury is attributable to the negligent or intentional misconduct of Landlord. Tenant, agrees to hold Landlord harmless from any and all claims for damages caused by Tenant’s use of the Premises, and to indemnify Landlord for any expense incurred by Landlord in defending any such claims, excepting to the extent resulting from the negligent acts or intentional misconduct of Landlord or environmental issues related to property ownership, except those arising solely from parking improvements constructed by Tenant. Tenant represents that it carries personal and property liability insurance through Municipal Risk Management Insurance Authority and will maintain such coverage through the term of this Lease, as may be extended.

15. Payments and Notices. Any notice to be given or other document to be delivered by either party to the other party may be given by personal delivery or may be deposited in the United States mail in the State of California, with first-class postage prepaid, and addressed to the party for whom intended as follows:

TO LANDLORD: TO TENANT:

The Gill E. F. Trust City of Brentwood
C/0 Garrett Gill Attn: City Manager
P.O. Box 782 150 City Park Way
Brentwood, CA 94513 Brentwood, CA 94513

Either party may, by written notice to the other party, designate a different address which shall be substituted for the one specified above. If any notice or other document is sent by registered or certified mail, as provided above, the same shall be deemed served or delivered seventy-two (72) hours after the mailing thereof.

IN WITNESS WHEREOF, the parties execute this Lease, as follows:

LANDLORD: TENANT:
THE GILL E. F. TRUST THE CITY OF BRENTWOOD

By: By:
Name: Garrett Gill, Trustee Name: Donna Landeros, City Manager
 
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