HomeMy WebLinkAboutReso 200-07 Lalefar Acquisition
RESOLUTION NO. 200 - 07
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY
REQUIRE THE ACQUISITION OF CERTAIN PROPERTY INTERESTS
AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS
FOR THE CAPITAL IMPROVEMENT PROGRAM (CIP)
PROJECT NO. 95556 - DUBLIN HISTORIC PARK PROJECT
(HERITAGE CENTER EXPANSION)
DUBLIN SQUARE SHOPPING CENTER
11837 Dublin Boulevard
Simin and Hennin Lalefar dba Consignment & More, Business Owners
WHEREAS, at the August 1, 2006, meeting of the Dublin City COUl}cil, the Council adopted
Resolution 149-06 approving General Plan Amendments and the Dublin Village Historic Area Specific
Plan (with the Dublin Village Historic Area Specific Plan attached as Exhibit A to the Resolution); the
Parks and Recreation Master Plan May 2006 Update (Resolution 150-06); and, the Dublin Historic Park
Master Plan (Resolution 151..,06), all of which are incorporated herein by this reference; and
WHEREAS, the March 2004 Update to the Parks and Recreation Master Plan anticipated a 5.3
acre parkland deficit at build out of the City and identified the need to select and designate sites for new
parks to alleviate the deficit and the Dublin Square Shopping Center was one of the designated sites; and
WHEREAS, at the September 16, 2006 City Council meeting, the Dublin City Council approved
an amendment to the 2006-2011 Capital Improvement Program for the Dublin Historic Park Acquisition
Project. This Project includes and provides for the acquisition of the Dublin Square Shopping Center
(APN 941-1560-007-01) so that it may be used for the park and Project; and
WHEREAS, the City acquired fee title to APN 941-1560-007-001, the Dublin Square Shopping
Center, on May 9, 2007, and all lease agreements thereto were assigned to and accepted by the City; and
WHEREAS, the City has successfully negotiated Lease Amendments and/or Relocation
Agreements with the ten (10) other tenants of the main shopping center building; and
WHEREAS, it is desirable and necessary for the City of Dublin to acquire the leasehold interest
of the one remaining tenant within the Dublin Square Shopping Center's main building, particularly at
11837 Dublin Boulevard, of tenants Simin and Hennin Lalefar doing business as "Consignment & More,"
particularly described in the "Commercial Lease and Deposit," Exhibit A attached hereto, and made a
part hereof by reference, in order to construct and expand the Dublin Historic Park Project and Heritage
Center (the "Project"); and
WHEREAS, the City of Dublin is vested with the power of eminent domain to acquire real
property for the Project by virtue of Article 1, Section 19, of the Constitution of the State of California,
Government Code Sections 37350.5, 37353(a) and 40404, and Sections 1240.010, 1240.020, 1240.030,
1240.040, 1240.050, 1240.110, and 1240.120 of the Code of Civil Procedure of the State of California;
and
Reso No. 200-07, Adopted 11/06/07, Item 6.4
Page 1 of3
-"
WHEREAS, pursuant to the provisions of Section 1245.235 of the Code of Civil Procedure of the
State of California, notice has been duly given to all persons whose property interests are to be acquired
by eminent domain, all of whom have been given a reasonable opportunity to appear and be heard before
the City of Dublin on the following matters:
(a) Whether the public interest and necessity require the Project;
(b) Whether the Project is planned or located in the manner that will be most compatible with
the greatest public good and the least private injury;
(c) Whether the property interests sought to be acquired are necessary for the Project;
(d) Whether the offer required by Government Code Section 7267.2 has been made to the
business owner(s) of record; and
WHEREAS, pursuant to the provisions of Section 7267.2 of the Government Code of the State of
California, the City of Dublin forwarded a statutory offer to the owner or owners of the business to
I-
acquire the leasehold interest; and
WHEREAS, the City of Dublin has satisfied the provisions of the California Environmental
Quality Act (CEQA) for the Project.
NOW, THEREFORE, IT IS FOUND, DETERMINED, AND ORDERED as follows:
1. The public interest and necessity require the acquisition of the leasehold interest of Simin
and Hennin Lalefar in and to the above-identified property;
2. The Project is planned and located in the manner which will be most compatible with the
greatest public good and the least private injury;
3. The taking of the leasehold interest in and to the subject property as more particularly
described in Exhibit A is necessary for the Project;
4. The offer required by Section 7267.2 of the Government Code of the State of California
has been made to the owner or owners of the leasehold interest.
5. The City Attorney of the City of Dublin or her duly authorized designee be, and she is
hereby, authorized and directed to institute and conduct to conclusion an action in eminent domain for the
acquisition of the interests aforesaid and to take such action as she may deem advisable or necessary in
connection therewith.
6. An order for prejudgment possession may be obtained in said action and, if required, a
warrant issued to the State Treasury Condemnation Fund in fulfillment of a condition to the right of
immediate possession.
Reso No. 200-07, Adopted 11/06/07, Item 6.4
Page 2 of3
PASSED, APPROVED AND ADOPTED this 6th day of November, 2007, by the following
vote:
AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
~lf?V
Deputy City Clerk
Reso No. 200-07, Adopted 11/06/07, Item 6.4
Page 3 of3
COMMERCIAL LEASE AND DEPOSIT
RECEIVED FROM
The sum of $ 6.800.00
'II' applied as follows:
Simin Lalefar and Hermin Lalefar
Sixty Eiqht Hundred and no/100 dollars), evidenced by
Check
hereinafter referred to as LESSEE
, as a deposit which will belong to Lessor a~d
TOTAL RECEIVED BALANCE DUE PRIOR-TO OCCUPANCY
Rent for the period from March 1 to March 31. 2007 $ 6.800.00 $ $ 6.800.00
Security deposit (not applicable toward last [TIonth's rent) $ $ $
Other $ $ $
TOTAL $ 6.800.00 $ $ 6.800.00
In the event this Lease is not accepted by the Lessor within 10 days, the total deposit received Will 'be refunded.
Lessee offers to Lease from Lessor the premises situated in the Cily of Dublin , County of Alameda
State of Califomia, described as the premises located at 11837 Dublin Blvd. Dublin, CA
consisting of approximately 6.800 square feet, upon the following terms and conditions:
1. TERM. The term will commence on December 1. 2006 and end on November 30. 2009.
2. RENT. The total rent will be $224.400.00. Rent for the first three months will be free to the Lessee. Rent will be at $ 6.800.00 per month payable on the
1st day of each month. All rents will be paid to Lessoror his or her authorized agent; at the following address 321 Hartz Ave. Suite 200. Danville. OA
94526 or at such other places as may be designated by Lessor from time to time. In the event rent is not paid within -L days after due date, Lessee agrees to
pay a -late charge of $ ~Ius interest at --1L% per annum on the delinquent amount. Lessee further agrees to pay $ 15 for each dishonored bank
check. The late charge period is not a grace period, and Lessor is entitled to make written demand for any rent if not paid when due.
3. USE. The premises are to be used for the operation of Home Furnishino Store. and for no other purpose, without prior written
consent of Lessor. Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment of any tenant in the
building.
4. USES PROHIBITED. Lessee will not use any portion of the premises for purposes other than those specified. No use will be made or permitted to be made
upon the premises, nor acts done, which will increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering the
property. Lessee will not conduct or permit any sale by auction on the premises.
5. ASSIGNMENT AND SUBLETTING. Lessee will not assign this Lease or sublet any portion of the premises without prior written consent of the Lessor,
which will not be unreasonably withheld. Any such assignment or subletting without consent will be void and at the option of the Lessor, will terminate this Lease.
6. "'oq,DlNANCES AND STATUTES. Lessee will comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities now in
fc kr which may later be in force, regarding the use of the premises. The commencement or pendency of any state or federal court abatement proceeding
aftb,-"lOg the use of the premises will, at the option of the Lessor, be deemed a breach of this Lease.
7. MAINTENANCE, REPAIRS, ALTERATIONS. Unless otherwise indicated, Lessee acknowledges that the premises are in good order and repair. Lessee
will,at his or her own expense, maintain the premises in a good and safe condition, including plate glass, electrical wiring, plumbing and heating and air
conditioning installations, and any other system or equipment. The premises will be surrendered, at termination of the Lease, in as good condition as received,
normal wear and tear excepted. Lessee will be responsible for all repairs required, except the following which will be maintained by Lessor: roof, exterior walls, and
structural foundations (including any retrofitting required by governmental authorities) and: .................
Lessee &iII, Dwill not maintain the property adjacent to the premises, such as sidewalks, driveways, lawns, and shrubbery, which would otherwise be maintained
by Lessor. No improvement or alteration of the premises will be made without the prior written consent of the Lessor. Prior to the commencement of any
substantial repair, improvement, or alteration, Lessee will give Lessor at least two (2) days written notice in order that Lessor may post appropriate notices to
avoid any liability for liens.
8. ENTRY AND INSPECTION. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and' upon reasonable notice for the
purpose of inspecting the premises, and will permit Lessor, at anytime within sixty (60) days prior to the expiration of this Lease, to place upon the premises any
usual "For Lease" signs, and permit persons desiring to Lease the premises to iflspect the premises at reasonable times. .
9. INDEMNIFICATION OF LESSOR. Lessor will not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the
premises. Lessee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of the premises, and to indemnify Lessor for any
expense incurred .by Lessor in defending any such claims.
10. POSSESSION. If Lessor is unable to deliver possession of the premises at the commencement date set forth above, Lessor will not be liable for any
damage caused by the delay, nor will this Lease be void or avoidable, but Lessee will not be liable for any rent until possession is delivered. Les~ee may terminate
this Lease if possession is not delivered within ~ days of the commencement term in Item 1.
11. LESSEE.S INSURANCE. Lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee and
Lessor with minimum coverage as follows: 1 Million Dollars General Liability
Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional insured. The policy will require ten (10) day's written notice to Lessor
prior to cancellation or material change of coverage.
12. LESSOR.S INSURANCE. Lessor will maintain hazard insurance covering one hundred percent (100%) actual cashvalue of the improvements throughout
the Lease term. Lessor's insurance will not insure Lessee's personal property, Leasehold improvements, or trade fixtures.
13. SUBROGATION. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee waive any and all rights
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat and other services delivered
to th e premises I except: **************************'****************************.**lIr**********************************",*************.*..****************.* .
15- !';IGNS. Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of the premises without the express written
c( It of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
1 b. "":SANDON MENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the term of this Lease. If Lessee does abandon or
vacate the premises, or is dispossessed by process of law, or otherwise, any personal property belonging to Lessee left on the premises will be deemed to be
abandoned, at the option of Lessor.
Exhibit A
'Property Address
11837 Dublin Blvd. Dublin. CA
17. cOtJCErJlNA TION. if any part of the premises is condemned for public use, and a part remains which is susceptible of occupation by Lessee, this Lease
w',to the part taken, terminate as of the date the condemnor acquires possession. Lessee will be required to pay such proportion of the rent for the remaining
te. ,5 the value of the premises remaining bears to the total value of the premises at the date of condemnation; provided, however, that either party may, at his
or her option, terminate this Lease as of the date the condemnor acquires possession. In the event that the premises are condemned in whole, or the remainder is
not susceptible for use by the Lessee, this Lease will terminate upon the date which)hecondemnor acquires possession. All sums which may be payable on
account of any condemnation will belong solely to the Lessor; except that Lessee will be entitled to retain any amount awarded ,to him or her for his or her trade
fixtures and moving expenses. " ,
18. TRADE FIXTURES. Any and all improvements made to the premises during the term will belong to the Lessor, except trade fixtures of the Lessee. Lessee
may, upon termination, remove all his or her trade fixtures, but will pay for all costs necessary to repair any damage to the premises occasioned by the removal.
19. DESTRUCTION OF PREMISES. In the event of a partial destruction of the premises during the term, from any cause except acts or omission of Lessee,
Lessor will not promptly repair the premises. Such partial destruction will terminate this Lease. '
20. HAZARDOUS MATERIALS. Lessee will not use" store, or dispose of any hazardous substances upon the premises, except the use and storage of such
substances that are customarily used in Lessee's business, and are in compliance with all environmental laws. Hazardous substances means any hazardous
waste; substance or toxic materials regulated under any environmental laws or regulations applicable to the property. Lessee will be responsible for the cost of
removal of any toxic contamination caused by Lessee's use of the premises.
21. INSOLVENCY. The appointment of a receiver, an assignment for the benefits of creditors, or the filing of a petition in bankruptcy by or against Lessee, will
constitute a breach of this Lease by Lessee.
22. DEFAULT. In the event of any breach of this Lease by Lessee, Lessor may, at his or her option, terminate the Lease and recover from Lessee: (a) the worth
at the tirne of award of the unpaid rent which had been eamed at the time of termination; (b) the worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of the award exceeds the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the Lessee proves could be reasonably avoided; and (d) any other amount necessary to compensate Lessor for all the detriment
proximately caused by the Lessee's failure to perform his or her obligations under the Lease or which in the ordinary course of things would be likely to result
Ulerefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Lessee's right io possession, and Lessor may enforce all of
Lessor's rights and remedies under the Lease, including the right to recover the rent as it becomes due under the Lease. If said breach of Lease continues, Lessor
:nay; at any time thereafter, elect to terminate the Lease. '
These provisions will not limit any other rights or remedies which Lessor may have.
23. SECURITY. The security deposit will secure the performance of the Lessee's obligations. Lessor may, but will not be obligated to, apply all or portions of the
jeposit on account of Lessee's obligations. Any balance remaining upon termination will be retumed to Lessee. Lessee will not have the right to apply the security
jeposit in payment of the last month's rent.
24. DEPOSIT REFUNDS. The balance of all deposits will be refunded within three (3) weeks (or as otherwise required by law), from date possession is
jeli""'red to Lessor or his or her authorized agent, together with a statement showing any charges made against the deposits by Lessor.
2' !IORNEY FEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevailing party will be entitled
:0 It..~.:;onable attomey fees.
26. WAIVER. No failure of Lessor to enforce any term of this Lease will be deerned to be a waiver.
27. NOTICES. Any notice which either party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee at the premises, or to
_essor at the address shown in Item 2, or at such other places as may be designated in writing by the parties from time to time. Notice will be effective five (5)
:lays after mailing, or on personal delivery; or when receipt is acknowledged in writing.
2B. HOLDINC OVER. Any holding over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at a monthly rent of
~ 10.200.00 , payable in advance and otherwise subjectto the terms of this Lease, as applicable, until either party will terminate the tenancy by giving the
)ther party thirty (30) days written notice.
29: TIME.Time is of the essence of this Lease.
30. HEIRS, ASSIGNS, SUCCESSORS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
31. TAX INCREASE. In the event there is any increase during any year of the term of thii; Lease in real estate taxes over and above the
3mourif of such taxes assessed for the tax year during which the term of this Lease commences, Lessee will pay to Lessor an amount equal to 100 % of the
ncrease in taxes upon the land and building in which the leased premises are situated. In the event that such taxes are assessed for a tax year extending beyond
:he term of the Lease, the obligation of Lessee will be prorated. . ,
32. COST OF LIVING INCREASE. The rent provided for in Item 2 will be adjusted effective upon the first day of the month immediately following the
~xpiration of 12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter, in accordance with changes in the U.S.
::onsumer Price Index for All Urban Consumers (1982-84 = 100) ("CPI"). The monthly rent will be increased to an amount equal to the monthly rent set forth in
tem 2, multiplied by a fraction the, numerator of which is the CPI for the second calendar month immediately preceding the adjustment date, and the denominator
)f which is the CPI for the second calendar month preceding the commencement of the Lease term; provided, however, that the monthly rent will not be less than
:he amount set forth in Item 2.
33. Intentionally Left Blank.
34. AMERICANS WITH DISABILITIES ACT. The parties are alerted to the existence of the Americans with Disabilities Act, which may require costly
;tructural modifications. The partie~ are advised to consult with a professional familiar with the requirements of the Act.
35. LESSOR'S LIABILITY. In the event of a transfer of Lessor's title or interest to the property during the term of this Lease, Lessee agrees that the grantee of
;uch title or interest will be substituted as the Lessor under this Lease, and the original Lessor will be released of all further liability; provided, that all deposits will
Je transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that this
_ease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force
3W' -<fect), the amount of any security deposit, and the date to which the rent and other charges are paid in advance, if any, and [2] acknowiedging that there are,
" ,!_essee's knowledge, any uncured defaults on the part of Lessor, or specifying such defaults if any are claimed. Any such statement may be conclusively
-ehl::u upon by any prospective buyer or encumbrancer of the premises. ' ,
(b) At Lessor's option, Lessee's failure to deliver such statement within such time will be a material breach of this Lease or will be conclusive upon Lessee: [1]
.hat this Lease is in full force and effect, without modification except as may be represented by Lessor; [2] thaUhere are no uncured defaults in Lessor's
Jerformance; and [3] that not more than one month's rent has been paid in advance. '
(c) If Lessor desires to finance, refinance, or sell the premises, or any part thereof, Lessee agrees to deliver to any lender or buyer designated by Lessor such
inancial statements of Lessee as may be reasonably required by such lender or buyer. All financial statements will be received by the Lessor or the lender or
Juyer in confidence and will be used only for the purposes set forth.
Page 2 0(3
Property Address
11837 Dublin Blvd. L_._.In. CA
3" ~TIRE AGREEMENT. The foregoing constitutes the entire agreement between the parties and may be modified only in writing signed by all parties. The
fo, "lg are a part of this Lease:
Exhibit A: Floor Plan
Exhibit B: Option to Extend the Lease
Exhibit C: None
The undersigned Lessee acknowledges that he or she has thoroughiy read and approved each f the provisions contained in this
:~::F~condltl::S~~ . lesre'~0b5!)vt~/~L D'OO~
R",'pt foc d'poo't "',owl,dg"" by. . }l/;Acl _~ .. . D'''' /I /zd D'
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agrees to Lease the premises on the terms and conditions set forth above.
~~
Date
/I/U/{)k,
I
11!2/!tJ/o
L1LJ 6
(initials)
_essor
_essee acknowledges receipt of a copy of the accepted Lease on (date)
Page 3 013