19950110 1995-1ORDINANCE NO. 1995- 1
AN ORDINANCE AUTHORIZING THE CITY MANAGER
TO EXECUTE A FIRST AMENDMENT TO LEASE AGREEMENT
BETWEEN THE CITY AND ROBERT J. LEWIS, TRUSTEE AND
INDIVIDUALLY, FOR PARKING AT THE FORMER
FAIRFAX ELEMENTARY SCHOOL ANNEX SITE
1. BE IT ORDAINED by the City Council of the City of
Fairfax, Virginia, that the City of Fairfax hereby
agrees to amend the Lease Agreement, dated April 21,
1986, between the City of Fairfax, Virginia and Robert
J. Lewis, Trustee and Individually. The terms and
conditions of such lease amendment are described in the
following First Amendment To Lease Agreement:
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this
"First Amendment") is made and entered into this
day of , 1995, between the
CITY OF FAIRFAX, VIRGINIA, a Virginia municipal
corporation, ("Lessor") and ROBERT J. LEWIS, Trustee,
and ROBERT J. LEWIS, Individually (collectively
"Lessee").
RECITALS
R-1. Lessor and Lessee entered into a Lease dated
April 21, 1986 (the "Lease") pursuant to which Lessor
leased to Lessee and Lessee leased from Lessor certain
parking areas on the premises of the former Fairfax
Elementary School Annex as more particularly described
in the Lease (the "Leased Premises").
R-2. Pursuant to the terms of the Lease, Lessee
constructed on the Leased Premises (i) the first phase
of structured parking and (ii) footings for a second
phase of structured parking.
R-3. Lessor desires (i) to exclude from the Leased
Premises an area of approximately two hundred and
seventy (270) square feet, as more particularly
depicted as the "Area of Exclusion" on the plat,
entitled "Revised Lease Line for Parking at Rear of
Museum and Visitors Center Site," prepared by James
Harris, Jr., dated December, 1994, attached hereto and
made a part hereof by reference designated as "Exhibit
A" (the "Plat"), and (ii) to include within the Leased
Premises an area of approximately one thousand two
hundred and sixty (1,260) square feet, as more
particularly depicted on the Plat as the "Area of
Inclusion.,, The Leased Premises so modified are
referred to herein as the "Modified Leased Premises."
Lessor and Lessee acknowledge that the Area of
Exclusion includes one (1) of Lessee's footings
intended for a second phase of structured parking on
the Leased Premises. Lessor intends to pay to the
Lessee, as set forth herein, a sum of money to defray
the cost of constructing four (4) replacement footings
(the "Replacement Footings") within the modified Leased
Premises.
NOW, THEREFORE, in consideration of the premises
of this First Amendment, the payment of the sum of Ten
Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are
1995-1
hereby acknowledged, the parties hereby agree as
follows:
1. By this reference, the Recitals are
incorporated in their entirety in this First Amendment.
2. The area of the Leased Premises under the
Lease is hereby modified by (i) removing and excluding
from the Leased Premises that area, consisting of two
hundred and seventy (270) square feet, depicted on the
Plat as "Area of Exclusion" and (ii) adding to the
Leased Premises that area, consisting of one thousand
two hundred and sixty (1,260) square feet, depicted on
the Plat as "Area of Inclusion."
3. If Lessee elects to construct the second
phase of structured parking on the Leased Premises,
Lessor after receipt of the required notice from the
Lessee intends to request an appropriation funds from
the City Council of the City of Fairfax (the "City
Council") to pay to Lessee a sum certain to defray the
cost to the Lessee to construct the Replacement
Footings (the "Footings Payment"). This obligation is
subject to the following terms and conditions:
a. The Replacement Footings shall be
located within the Modified Leased Premises. The
construction of the Replacement Footings shall be the
sole responsibility of Lessee, its successors or
permitted assigns.
b. Lessee shall provide Lessor with at
least one hundred eighty (180) calendar days' prior
written notice of Lessee's intent to commence
construction of the Replacement Footings. After
Lessor's receipt of such notice, the City Manager for
the City of Fairfax shall request the City Council to
appropriate funds for the Footings Payment. The
Footings Payment shall not exceed the principal sum of
Four Thousand Dollars and Zero Cents ($4,000.00),
provided, however, that the principal sum shall be
increased by three percent (3%) for each full or
partial fiscal year of Lessor after Fiscal Year 1995
until such sum is paid or the obligation to pay such
sum is terminated, whichever event occurs first.
c. The Footings Payment shall not be due
and owing to Lessee unless and until such time as
Lessee commences and diligently pursues the
construction of the Replacement Footings, as evidenced
by invoices for such work or other documents required
by the Lessor.
d. The parties hereby acknowledge that
Lessor is not empowered to make any binding commitment
to appropriate of public funds beyond the current
fiscal year. Notwithstanding anything herein to the
contrary, Lessor's obligation to pay the Footings
Payment shall be subject to and dependent upon
appropriation of such sum of money by the City Council
for such specific purpose.
4. If, within ninety (90) calendar days after
Lessor's receipt of written notice pursuant to
Paragraph 3(b), above, the City Council fails to
appropriate funds for the payment of the Footings
Payment, this First Amendment shall terminate and the
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1995-1
parties shall have no further obligation to one another
under this First Amendment. Thereafter, the terms of
the Lease shall be in full force and effect as if the
First Amendment had never been executed and became
effective.
5. Except as specifically modified by this First
Amendment, the Lease shall continue in full force and
effect.
6. This First Amendment shall be governed and
construed in accordance with the laws of the
Commonwealth of Virginia.
7. If any provision of this First Amendment is
determined to be illegal or unenforceable, such
provision shall be considered severable, and this First
Amendment is determined to be illegal or unenforceable,
such provisions hall be considered severable, and this
First Amendment and the Lease, as amended, shall remain
in full force and effect and shall be binding upon the
parties as though the illegal or unenforceable
provision had not been included in this First
Amendment.
8. The individuals executing this First
Amendment on behalf of Lessee hereby represent and
warrant that they are duly authorized to execute and
deliver this First Amendment.
IN WITNESS WHEREOF, Lessor and Lessee have caused
this First Amendment to the Lease to be executed as of
the date stated above by persons duly authorized to
bind such parties.
2. BE IT FURTHER ORDAINED by the City Council of the
City of Fairfax that the City Manager is authorized and
directed to execute the First Amendment To lease
Agreement between the City and Mr. Robert J. Lewis,
containing the above provisions and any other
additional provisions deemed necessary by the City
Manager and approved as to form by the City Attorney.
3. BE IT FURTHER ORDAINED by the City Council of the
City of Fairfax that the previously described Lease
Agreement dated April 21, 1986, is hereby ratified and
reaffirmed.
This ordinance shall become effective as provided
by law.
INTRODUCED: December 13, 199,4.
PUBLIC HEARING: Januar.¥ ]0, ]995
ADOPTED: January ]0, ]995
ATTEST:
~ City Clerk
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Mayor