HomeMy WebLinkAboutCC Resolution 11697 (Office Rental at 1200 Fifth Ave.)RESOLUTION NO. 11697
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE EXECUTION OF AN AMENDED LEASE AGREEMENT
BETWEEN THE CITY OF SAN RAFAEL AND FIRST STATES INVESTORS
2208, LLC, OF OFFICE SPACE AT1200 FIFTH AVENUE, SAN RAFAEL,
CALIFORNIA FOR THE SAN RAFAEL POLICE DEPARTMENT
(Five year lease ending on January 31, 2010 with two three year renewal options)
Whereas, the San Rafael Police Department has leased 4801 square feet of space at
1210 Fifth Avenue since February 2000; and,
Whereas, the San Rafael Police Department currently needs additional office space for
the Youth Services Counseling Unit and such space is not available at City Hall; and,
Whereas, First States Investor 2208, LLC has 1,053 square feet in available space at
1200 Fifth Avenue; and,
Whereas, First States Investor 2208, LLC is willing to lease this space to the City at no
additional cost as a condition of an amended lease agreement for premises expansion
and for a five year term with two three year renewal options; and,
Whereas, the Municipal Code of the City of San Rafael requires City Council approval of
contracts exceeding $35,000 and this lease exceeds that amount.
NOW, THEREFORE BE IT RESOLVED, that the City Council approves and authorizes
the Vice -Mayor to execute, on behalf of the City of San Rafael, the Second Amended
Lease Agreement with First States Investors 2208, LLC, for office space in the building
located at 1200 Fifth Avenue, San Rafael, California, in a form approved by the City
Attorney.
I, Jeanne M. Leoncini, Clerk of the City of San Rafael, hereby certify that the foregoing
resolution was duly and regularly introduced and adopted at a regular meeting of the
San Rafael City Council meeting held on the 18th day of January, 2005 by the following
vote, to wit:
AYES: COUNCILMEMBERS: Miller, Phillips and Vice -Mayor Heller
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Cohen and Mayor Boro
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JEWNNE M. LEUNCINI, City Clerk
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Property: San Rafael
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this "Amendment") is
made and entered into this I ${h day of January, 2005, by and between FIRST STATES
INVESTORS 2208, LLC, a Delaware limited liability company, successor in interest to
Bank of America, N.A., a national banking association, (the "Landlord") and THE CITY
OF SAN RAFAEL, a California municipal organization (the "Tenant").
BACKGROUND
A. Landlord and Tenant are parties to an Office Lease Agreement dated as of
February 1, 2000, as amended by a First Amendment to Lease Agreement, dated January
29, 2004 (hereinafter collectively referred to as the "Lease"), wherein Landlord leased to
Tenant approximately 4801 rentable square feet of space (the "Existing Premises")
located at 1200 5`h Avenue, San Rafael, California (the "Building"), all as is more fully
described in the Lease.
B. Tenant desires, as of February 1, 2005 ("Commencement Date"), to
expand the Existing Premises to include the suite directly adjacent to the Existing
Premises, which contains approximately one thousand fifty-three (1,053) rentable square
feet of space on the 2°a floor of the Building ("New Premises", and together with the
Existing Premises, the "Expanded Premises"); and
C. Landlord and Tenant desire to amend the Lease to reflect the expansion of
Existing Premises as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, agree to amend, and do hereby
amend, the Lease as follows:
1. Capitalized Terms. Except as specifically defined in this Amendment,
capitalized terms shall have the same meaning given to such term in the Lease.
2. Expanded Premises. As of the Commencement Date, Tenant shall
occupy the Expanded Premises which shall consist of approximately five thousand, eight
hundred fifty-four (5,854) rentable square feet of space.
3. Term. Subject to the terms and conditions set forth herein, Landlord
agrees to lease the Expanded Premises to Tenant for a period of five (5) years (the
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"Expanded Premises Term"), commencing on the Commencement Date and ending on
January 31, 2010. Except as expressly set forth herein, all terms and conditions of the
Lease shall apply to the Expanded Premises Term.
4. Base Rent For Expansion Term. Base Rent for Tenant's lease of the
Expanded Premises shall, as of the Commencement Date, be as follows:
Beginning
Ending
Monthlv
Annual
2/1/2005
1/31/2006
$11,215.70
$134,588.40
2/1/2006
1/31/2007
$11,215.70
$134,588.40
2/1/2007
1/31/2008
$11,557.17
$138,686.04
2/1/2008
1/31/2009
$11,908.88
$142,906.56
2/1/2009
1/31/2010
$12,271.15
$147,253.80
5. Operating Exnenses. If the Operating Expenses, as hereafter defined, for
the Building and the land on which the Building is located (collectively, the "Property"),
in any calendar year during the Expanded Premises Term, exceed the Operating Expenses
for the 2005 calendar year ("Base Year"), Tenant agrees to pay as additional monthly rent
52.79% ("Tenant's Proportionate Share") of such excess Operating Expenses, as
estimated by Landlord from time to time. During any partial calendar year of the
Expanded Premises Term, Tenant's Proportionate Share of Operating Expenses shall be
adjusted based upon the actual number of days contained within the Renewal Period
during such partial calendar year. By April 30th of each calendar year, Landlord will
provide Tenant an itemized statement showing in reasonable detail all additional rent due
(or any overpayments made) under this Section and Tenant (or Landlord, as the case may
be) shall pay such amount within thirty (30) days after receipt of such statement;
provided, however, in no event shall Tenant be released of its obligation for such
additional rent if Landlord fails to send Tenant a statement within the time specified
above. In no event shall the Base Rent or other sums due under this Lease ever be
reduced due to the operation of this Section or to Operating Expenses being less for the
Property than the Operating Expenses for the Base Year.
The term "Operating Expenses" includes all expenses of Landlord with respect to the
ownership, maintenance, servicing, repairing and operation of the Property, including,
but not limited to: maintenance, repair and replacement costs; electricity, water, sewer,
gas and other utility charges; window washing and janitorial services (except for
janitorial services to the Premises); trash and snow and ice removal (except for trash
removal from the Premises); landscaping and pest control; management fees payable to
third parties; wages and benefits payable to employees of Landlord's property
management company whose duties are directly connected with the operation and
maintenance of the Property; all services, supplies, repairs, replacement or other expenses
for maintaining and operating the Property including parking and Common Areas, as
hereafter defined; the cost of any capital improvement made to the Property by Landlord;
the cost of installation of any device or other equipment which is installed to improve the
operating efficiency of any system and reduce Operating Expenses; all real property taxes
and installments of special assessments which accrue against the Property during the term
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of this Lease; governmental levies or charges of any kind or nature assessed or imposed
on the Property, whether by state, county, city of any political subdivision thereof, all
insurance premiums Landlord is required to pay or deems necessary to pay, including
hazard insurance and public liability insurance, with respect to the Property; all amounts
paid for liability and casualty loss pursuant to insurance deductible amounts; and any
amounts considered an operating, maintenance or management expense under generally
accepted accounting principles.
The term "Operating Expenses" does not include: expenses for repairs, restoration or
other work occasioned by fire, wind, the elements or other casualty that are paid by
insurance; income and franchise taxes of Landlord; expenses incurred in leasing to or
procuring of tenants, leasing commissions, advertising expenses and expenses for the
renovating of space for Landlord or for new tenants; interest or principal payments on
any mortgage encumbering the Property; expenses for repairs or other work occasioned
by condemnation, to the extent reimbursed by condemnation proceeds; any expense fully
reimbursed to Landlord by Tenant or any other tenant of the Property, or any expenses
billed to and paid directly by same for their own account or on Landlord's behalf, or legal
expenses incurred in connection with leasing the Property or enforcement of Property
leases. Tenant's obligations under this Section shall survive the expiration or earlier
termination of the Lease.
The term "Common Areas" shall include all areas in the Property except those areas
occupied by Landlord or leased to tenants or held for lease to tenants, including, without
limitation, parking areas, streets, driveways, aisles, sidewalks, curbs, delivery passages,
loading areas, lighting facilities, mechanical rooms, elevator areas, common areas (such as
corridors, bathrooms and similar areas) on multi -tenant floors, and all other areas situated
on or in the Property which are designated by Landlord, from time to time, for use by, or
for benefit of, all tenants and occupants of the Property in common.
Notwithstanding anything to the contrary contained in this Section 5, for purposes of
calculating Tenant's liability for its Proportionate Share of excess Operating Expenses, the
increase in Operating Expenses (excluding increases due to taxes and assessments, utilities
and any insurance expenses) in any calendar year shall not exceed a "cap" equal to one
hundred five percent (105%) of such Operating Expenses for the preceding calendar year.
6. Janitorial Services. Notwithstanding anything to the contrary contained in
the Lease, as amended hereby, Tenant shall be responsible, at Tenant's sole cost and
expense, for providing janitorial services for, and trash removal from, the Premises;
provided, however, that Landlord shall pay to Tenant, as partial reimbursement for
expenses incurred by Tenant pursuant to this Section 6, an amount equal to $1,000.00
every six (6) months commencing on the first day of the seventh (7`h) month following
the Commencement Date and continuing on the first day of every seventh (7`) month
thereafter for the remainder of the Expanded Premises Term.
lALegahBank Branchn\San RafaeMan Rafael -City of San Rafael -Second Amendment v6.doc
7. Renewal Option. Tenant is hereby granted two (2) options to renew the
Expanded Premises Term for three (3) years in accordance with the Renewal Option
Rider attached hereto.
8. Parking. Landlord hereby grants to Tenant the right to utilize thirteen
(13) parking spaces in the parking garage servicing the Building in accordance with the
Parking Lot Rider attached hereto.
9. Base Building Work. Prior to, or within a commercially reasonable time
after, the Commencement Date, Landlord shall construct, or cause to be constructed, (at
Landlord's cost and expense) certain improvements to the Building ("Base Building
Work") consisting of. (a) replacement of the carpet in the stairwell of the Building with
Building grade carpet; and (b) such work as is necessary to finish the demising work for
the Expanded Premises. Landlord will cause the Base Building Work to be constructed
in a good and workmanlike manner and in accordance with all applicable legal
requirements. In addition to the Base Building Work, within one -hundred and twenty
(120) days following the Commencement Date, Landlord shall perform, or cause to be
performed, such work as is necessary to combine the two (2) currently existing
bathrooms on the first floor of the Building into a single bathroom that complies with the
requirements of the Americans with Disabilities Act of 1990.
10. Use. The first paragraph of Section 8 of the Lease is hereby deleted and
replaced with the following:
"Tenant shall use the Premises as administrative offices for the City of San Rafael
Police Department Investigative Services Bureau (which is comprised of law
enforcement officers on rotation assignment as detectives) and for youth counseling by
the Investigative Services Bureau. Under no circumstances shall the Premises be open to
the general public; provided, however, that Tenant may expressly invite individual
members of the general public to use the Premises in connection with Tenant's permitted
use hereunder. Tenant shall not use or permit the Premises to be used for any other
purpose without the prior written consent of Landlord."
11. Entire Agreement. This Amendment sets forth all covenants,
agreements and understandings between Landlord and Tenant with respect to the subject
matter hereof, and there are no other covenants, conditions or understandings, either
written or oral, between the parties hereto except as set forth in this Amendment.
12. Broker Indemnification. As part of the consideration for the granting of
this Amendment, Tenant represents and warrants to the Landlord that no broker or agent
engaged or contacted by Tenant either negotiated or was instrumental in negotiating or
consummating this Lease other than BT Commercial Real Estate ("Authorized Broker"),
and Tenant agrees to indemnify Landlord against any loss, expense (including reasonable
attorneys' fees and costs), cost or liability incurred by Landlord as a result of a claim by
any broker or finder other than the Authorized Broker. Landlord shall pay a commission
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to the Authorized Broker equal the sum of five percent (5%) of the Base Rent for the
Expanded Premises Term.
13. Full Force and Effect. Except as expressly amended hereby, all other
terms and provisions of the Lease remain unchanged and continue to be in full force and
effect.
14. Compliance with Warranties, No Default. The representations and
warranties set forth in the Lease as amended hereby shall be true and correct with the
same effect as if made on the date of this Amendment, and no uncured default under the
Lease has occurred or is continuing on the date of this Amendment.
15. Conflicts. The terms of this Amendment shall control over any conflict
between the terms of the Lease and the terms of this Amendment.
16. Successors and Assivns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
17. Counterparts. This Amendment may be executed in multiple counterparts,
and each counterpart when fully executed and delivered shall constitute an original
instrument, and all such multiple counterparts shall constitute but one and the same
instrument.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, Landlord and Tenant agree to the Lease Amendments
set forth herein.
ATTEST:
By.ftA NE M. 'fflclily
City Clerk
FIRST STATES INVESTORS 2208, LLC
a Delaware limited liability company
S
, Vice President
THE CITY OF SAN RAFAEL
a California municipal organization
Name: BARBARA HELLER
Title: Vice -Mayor
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Renewal Option Rider
The following provisions are hereby added to the terms of the Lease. In the event
of a conflict between the terms of this Rider and the terms of the Lease, the terms of this
Rider shall control. Unless otherwise defined in this Rider, each capitalized term used in
this Rider shall have the meaning assigned to it in the Lease. As hereinafter used in this
Rider, the term "this Lease" and "the Lease" shall mean the Lease, as modified by this
Rider and the Second Amendment to Lease Agreement.
Provided the Lease is still in full force and effect and there is no uncured event of
default by Tenant under the Lease beyond any applicable cure period, Tenant shall
have the right and option to renew the Lease for two (2) additional three (3) year
terms (such terms being hereinafter called the "Renewal Terms"), on the following
terms and conditions.
2. The Base Rent (excluding Tenant's share of increases in operating expenses)
during each Renewal Term shall be determined as set forth below. The Base Rent
shall be adjusted on the first day of each lease year during the Renewal Term (the
"Rental Adjustment Date") to an amount equal to the product of the then current
Base Rent multiplied by 1.03 (the "Renewal Rate"). As used in this Rider the term
"Lease Year" means each consecutive twelve calendar month period beginning with the
first day of the Renewal Term.
Tenant shall exercise each right and option to renew the term of this Lease by
giving Landlord written notice no later than one hundred eighty (180) days prior to
the expiration of the primary term or any preceding Renewal Term, as applicable.
If Landlord does not receive such notice by such deadline, Tenant shall be deemed
to have elected not to exercise such renewal option.
4. The leasing of the Expanded Premises by Landlord to Tenant during a Renewal
Term shall be upon all terms and conditions set forth in the Lease, except as
expressly modified by this Exhibit, and except that Tenant shall have no further
rights to renew the Lease Term. Tenant, if requested by Landlord, agrees to
execute a new lease for the Renewal Term(s) on the same terms and conditions set
forth in this Lease, except (a) as modified with respect to the Renewal Rate in
accordance with the terms of this Exhibit, (b) that Tenant shall accept the Leased
Premises in its then "AS -IS" condition, and (c) that Landlord shall not be required
to perform any tenant finish or other work to the Leased Premises, or to provide
Tenant any tenant finish allowance or other allowance or inducement with respect
to the Leased Premises. At Landlord's request, instead of executing a new lease,
as set forth above, the parties shall execute an amendment to the Lease, in form
and substance acceptable to Landlord, reflecting the leasing of the Leased
Premises for the Renewal Term in accordance with the foregoing.
If Tenant fails to properly exercise any renewal option, that renewal option and all
subsequent renewal options, if any, shall terminate immediately and Tenant shall
have no right to extend the term of this Lease. The renewal option granted herein
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is personal to the Tenant named in this Lease and may not be transferred or
assigned except in connection with an assignment of the Lease approved by
Landlord in accordance with the provisions of this Lease.
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Parking Lot Rider
The following provisions are hereby added to the terms of the Lease. In
the event of a conflict between the terms of this Rider and the terms of the Lease, the
terms of this Rider shall control. Unless otherwise defined in this Rider, each capitalized
term used in this Rider shall have the meaning assigned to it in the Lease. As hereinafter
used in this Rider, the term "this Lease" and "the Lease" shall mean the Lease, as
modified by this Rider and the Second Amendment to Lease Agreement.
1. Landlord hereby grants to Tenant a non-exclusive license to use the
following number and types of parking spaces (the "Spaces") for the following initial
monthly rental fees:
Type Number of Spaces Initial Monthly Rental
Fee Per Space
Reserved Spaces 13 $0.00
The Spaces will be located in the areas designated from time to time by Landlord for
tenant parking. This license is subject to the terms and conditions set forth below.
2. The Spaces shall be used only for the purpose of parking automobiles for a
term commencing on the Rent Commencement Date set forth in the Lease and terminating
upon the expiration or termination of the Lease for whatever reason.
3. All automobiles (including all contents thereof) shall be parked in the
Spaces at the sole risk of Tenant, its employees, agents, invitees and licensees. Landlord
has no duty to insure any automobiles (including the contents thereof), and Landlord is not
responsible for the protection and security of such automobiles. Landlord shall have no
liability whatsoever for any property damage and/or personal injury which might occur as
a result of or in connection with the parking of said automobiles in any of the Spaces, and
Tenant hereby agrees to indemnify and hold Landlord harmless from and against any and
all liabilities, costs, claims, expenses, and/or causes of action which Landlord may incur in
connection with or arising out of the use of the Spaces by Tenant or its employees, agents,
invitees, or licensees pursuant to this Agreement.
4. If Tenant has a license to use Reserved Spaces, Landlord will select a
means of identifying individual Reserved Spaces, and Tenant will comply with procedures
established by Landlord to identify the particular automobile that is authorized by Tenant
to park in each individual Reserved Space. Landlord will not be liable to Tenant or any of
its employees for any unauthorized automobile parking in individual Reserved Spaces.
Landlord reserves the right, upon one (1) week prior written notice, to relocate any
Reserved or Non -Reserved parking areas or Spaces from time to time, to alter, reduce or
modify any parking areas, to use portions of the parking areas for free, visitor, or other
parking needs of landlord and to take any other actions regarding the parking areas.
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5. This Exhibit shall not create a bailment between the parties hereto. The
only relationship created between Landlord and Tenant regarding the Spaces is that of
licensor and licensee, respectively.
6. In its use of the Spaces, Tenant shall follow all of the rules and regulations
of the Building applicable thereto, as the same may be amended from time to time. Upon
the occurrence of any breach of such rules, any failure to pay when due all monthly rental
fees due hereunder or any default by Tenant under the Lease, Landlord shall be entitled to
terminate the license given hereby, by written notice to Tenant, in which event Tenant's
right to utilize the Spaces shall thereupon automatically cease.
7. Tenant shall be responsible for ensuring that its employees and agents do
not park their cars in visitor parking spaces or in parking spaces or areas, if any, reserved
or designated by Landlord for the use of other tenants or for other purposes. Tenant
agrees to furnish to Landlord the state automobile license numbers of automobiles of
Tenant and its employees who will occupy Spaces from time to time within five (5) days
from its receipt of written notice from Landlord requesting such information. Landlord
shall be entitled to utilize whatever security device Landlord deems necessary (including
but not limited to the issuance of parking stickers or access cards), to insure that only
those tenants entitled to use Spaces in the designated parking areas are using such Spaces.
If Tenant, its agents or employees wrongfully park in any of the parking areas or Spaces
designated for the use of others, then Landlord shall be entitled and is hereby authorized
to have any such automobile towed away, at Tenant's sole risk and expense, and Landlord
is further authorized to impose upon Tenant an administrative fee of $25 for each such
occurrence. Tenant hereby agrees to pay all amounts falling due under this Section 7
upon demand therefor.
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