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Current Council Agenda and Past Meeting Information



Meeting Date: July 27, 2004

Subject/Title: Authorize the City Manager to execute a Lease Agreement for temporary use of City parcel at Sunset Industrial Complex for temporary construction site. (H. Sword/G. Rozenski)

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Economic Development Director

Authorize the City Manager to execute a Lease Agreement for temporary use of City parcel at Sunset Industrial Complex for temporary construction site.

The City and Agency partnered to develop the 26.7 acre Sunset Industrial Complex for light and medium industrial users. Fifteen lots have been created thus far, and fourteen lots have either been sold or are in escrow. A single one-acre lot remains in the original subdivision, located at the end of Carrol Court (refer to map attached).

The City is currently marketing the sale of the one-acre site, and expects to select a successful buyer within three months. Execution of the necessary purchase and escrow documents, review of evidence of equity and mortgage financing necessary to complete the transaction, and close of escrow is expected two to three months thereafter.

Jeff Tamayo, owner and operator of Town and Country Roofing, has received his entitlements and permits to commence grading and construction for his industrial project located on a three-acre site in the Sunset Industrial Complex. Mr. Tamayo has requested a three-month use of the City’s one-acre parcel, located adjacent to and immediately south of his property for a temporary construction site. Construction activities would include a construction trailer and storage of building materials, equipment and spoils, and other related construction activities. The applicant has advised that he plans to place all construction site activities on his three-acre site after the three-month period expires.

Staff recommends that the Council authorize the City Manager to execute a temporary lease agreement with Tamayo for construction-related activities as an interim use of the City’s one-acre parcel, at a monthly rate of $500, in substantially the form attached.

Rent revenues of $1500 during the three-month period are expected, which will be posted as revenue to the CIP project.

Lease Agreement

THIS LEASE is made as of this _____ day of __________, 2004 (“Effective Date”) by and between, CITY OF BRENTWOOD (“ Landlord”), a California municipal corporation and TMW & ASSOCIATES (“TMW”), general contractor for Jeff Tamayo (“Tamayo”).


In consideration of the rents and covenants and subject to the terms herein set forth, Landlord hereby leases to TMW and TMW hereby leases from Landlord certain property located in the Sunset Industrial Complex, and identified as Lot 4 of Subdivision 8588, Brentwood, California, Contra Costa County, being a portion of Assessor's Parcel No 018-200-008, including access/egress easement (“Property”) containing approximately 43,560 square feet of unpaved area (hereinafter “Property” or “Demised Premises”), as more particularly designated and outlined on a plat labeled Exhibit A and incorporated herein by reference.

1. Term

The Term of this Lease shall be for a period of three (3) months commencing on the Effective Date and ending three (3) months from the Effective Date. This lease shall renew automatically in one month increments, unless terminated by either party as set forth in Section 5.

2. Rent

TMW covenants and agrees to pay Five Hundred Dollars ($500) per month, without offset or deduction, except as expressly authorized elsewhere in this Lease, to the Landlord, its successors and assigns. Rent is payable in advance on or before the fifth (5th) day of each calendar month during the Term. Notwithstanding, TMW shall pay the first month's and last month’s rent upon full execution of this Lease.

Any rent payable to Landlord by TMW for any fractional month shall be prorated based on a 30 day month. Any and all rent payments shall commence on the Effective Date of this Lease.

3. As Is Condition

Landlord shall deliver the Demised Premises in an “as-is” condition, except as provided in this Lease. Landlord acknowledges and agrees that TMW shall have complete access to the Demised Premises for the purpose of conducting temporary housing of a construction trailer, temporary depositing of spoils on the Demised Premises, storage of construction materials, and related activities of a construction site.

At expiration or termination of this Lease, TMW agrees to remove at TMW's expense any personal property, spoils, material, temporary fence, or storage of equipment and shall otherwise return the Demised Premises to Landlord in good condition, ordinary wear and tear, damage by casualty, condemnation, and/or acts of God excepted.

4. Use

TMW intends to use the Demised Premises as a temporary construction site. Landlord retains the right to inspect at any time. TMW shall orient day-to-day construction trailer activities away from the homes located west of the parcel. Spoils from Tamayo’s three-acre site north of Property shall be the only spoils stored and located on the Property. Spoils shall have a maximum height of six (6) feet and shall be watered on a regular basis for dust control. TMW, shall his own discretion, shall install a temporary fence around the perimeter of the Property.

5. Termination.

Without limitation to such rights or remedies as both parties shall otherwise have by law, both parties shall have the right to terminate this Lease for any reason upon thirty (30) days’ written notice to the other party as provided in Section 13. Upon termination or expiration of this Lease, the obligations of the parties shall cease, save and except from those provided in this Lease, including but not limited to Section 3.

6. Payments at the Landlord's Direction

All rent payable by TMW to the Landlord under this Lease shall be paid and delivered to the Landlord at the place designated by the Landlord for notices under this Lease, as provided in Section 13, or any place it so designates in writing in the future.

7. Taxes, Insurance Premiums, and Maintenance Expenses

(a) Landlord will pay annually all taxes which may be levied or assessed by any lawful authority against the Demised Property.

The term “taxes” shall mean and include all taxes, assessments and other governmental charges, general and special, including, without limitation, assessments for public improvements or benefits, which shall, during the Term, be assessed, levied, and imposed by any governmental authority upon the land that comprises the Demised Property.

(b) TMW shall pay for all utilities consumed by it at the Demised Premises.

8. Past Due Rent and Additional Sums

If the TMW fails to pay within ten (10) days of the due date thereof, any rent, or any other amounts or charges, such unpaid amount shall accrue a late charge in the amount ten percent (10%) of the unpaid amount, and shall in addition thereto bear interest from the eleventh (11th) day following the due date until the date of payment at the rate of ten percent (10%) per annum.

9. TMW's Covenants

TMW covenants and agrees as follows:

(a) Prompt Payment

That it will pay when due all Rent and other charges herein described and all water and sewer charges, gas, electricity and other utility bills attributable to the Demised Premises as the same shall become due. If the Landlord shall pay any money or incur any expenses in correction of violations of the TMW's covenants herein set forth, the amounts so paid or incurred shall, at the Landlord's option, bear interest at the rate set forth in Section 8 hereof. Charges for the foregoing shall commence on the effective date of this Lease.

(b) Refuse

TMW shall assume responsibility for litter control and cleanup of improperly discarded materials to a standard acceptable to the neighboring property owners/renters for the Demised Property.

(c) Insurance/Indemnity

All personal property, improvements, and betterments of TMW in the Demised Premises, shall be and remain at TMW’s sole risk, and Landlord shall not be liable for any damage to or loss of such personal property arising from or out of the occupancy or use by TMW of the Demised Premises, or any part thereof or any other part of Landlord's property comprising the Property, from vandalism or theft, except as due to Landlord's sole negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees.

TMW shall protect, defend and indemnify and save Landlord/City, its agents, officials, boards, and employees harmless from any and all liability, damage, expense, cause of action, suits, loss, costs, penalties, attorneys fees, claims or judgments arising from any actions, injury or loss of life to TMW or other persons or damage to property caused by TMW's, its employees, agents, invitees or licenseor contractor’s negligence and/or willful misconduct.

10. Removal of TMW's Property

Landlord agrees that a TMW fixtures which include, without limitation, construction trailer, materials, temporary fence, spoils and related equipment, used in its use of the Demised Premises, which are placed on the Demised Premises by TMW from time to time during the Term of this Lease shall be the property of TMW and at the expiration or termination of this Lease may be removed from the Demised Premises by TMW prior to termination of the Lease. TMW shall repair and restore the Demised Premises to good condition, reasonable wear and tear, damage by casualty, condemnation, and/or act of God excepted.

11. Subordination

The rights of TMW under this Lease shall be and are subject and subordinate at all times to the lien of any bank or institutional deed of trust or deeds of trust now or hereafter in force against the Property and to all advances made or hereafter to be made upon the security thereof, provided the note holder and beneficiary secured by such deed of trust or deeds of trust shall agree to recognize the Lease of TMW in writing in the event of foreclosure if TMW is not then in default beyond any applicable cure period. Within fifteen (15) business days after receipt of request therefor by Landlord, TMW shall deliver to Landlord such subordination agreement in a form acceptable to Landlord as may be required by any lender or proposed lender to evidence such subordination.

12. Landlord's Remedies

If the rent, or any other charge agreed to be paid and all other sums of money which under the provisions hereof may be due Landlord, shall be in arrears in whole or in part for ten (10) or more days following written notice, TMW shall be in default. If TMW shall violate any covenant contained herein, other than the covenant to pay rent or other sums of money due Landlord, and shall fail to comply with such covenant within thirty (30) days after being given written notice of such violation by Landlord, TMW shall be in default. In the event of TMW's default, Landlord shall have the following remedies:

(a) Landlord may continue the lease in full force and effect for so long as Landlord does not terminate the Landlord's right to possession and Landlord may enforce all of Landlord's rights and remedies under this Lease; and

(b) Landlord may terminate TMW's right to possession, in which case this Lease shall terminate and, upon such termination, the Landlord may recover from the TMW unpaid rent and any additional rent which had been earned at the time of termination.

13. Notices

All notices from TMW to Landlord required or permitted by any provision of this Lease shall be in writing and sent by registered or certified mail, postage prepaid and directed to Landlord at:

Economic Development Director
City of Brentwood
150 City Park Way
Brentwood, California 94513

All notices from Landlord to TMW so required or permitted shall be in writing and sent by registered or certified mail, postage prepaid and directed to TMW at:

Wayne Bogart
TMW & Associates, Inc.
1725 Sanguinetti Lane
Stockton, CA 95205
License No. 602019

Either party may, at any time or from time to time, designate in writing a substitute address for that above set forth, and thereafter notices shall be directed to such substitute address for that above set forth. Notices to either party shall be effective three (3) business days after depositing in the United State Postal system or on the next business day if sent by overnight courier in accordance with this Paragraph.

14. Successors and Assigns

This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon Landlord, its successors, and assigns, and shall be binding upon TMW, its successors, assigns, heirs, executors, administrators, and legal representatives, and shall inure to the benefit of TMW and only such assigns of TMW to whom the assignment by TMW has been consented to by Landlord in writing.

15. Waiver

The failure of either party to insist, in any one or more instances, upon a strict performance of any covenant of this Lease or to exercise any option or right herein contained shall not be construed as a waiver or relinquishment for the future of such covenant, right, or option, but the same shall remain in full force and effect unless the contrary is expressed in writing.

16. Holding Over

Any holding over by TMW after expiration of the Lease Term must be approved by Landlord in writing. Any holding over after the expiration of the Lease shall be construed to be a tenancy from month to month on the same terms and conditions herein specified, with the exception that monthly rent shall be twice the amount provided in Section 2.

17. Entire Agreement

This Lease sets forth all the promises, agreements, conditions, and understandings between Landlord and TMW relative to the Demised Premises, and there are not promises, agreements, conditions, or understandings, either oral or written, expressed or implied, between them other than set forth herein. Except as herein otherwise provided, no subsequent alterations, amendment, change, or additions to this Lease shall be binding upon Landlord or TMW unless reduced to writing and signed by them.

18. Construction of Agreement

This Lease shall be constructed under the laws of the State of California in which the Demised Premises are located. All headings preceding the text of the several provisions and sub provisions are inserted solely for convenience of reference and none of them shall constitute a part of this Lease or affect its meaning, construction, or effect. Venue for any action brought by Landlord and TMW relation to this Lease shall be in the courts of Contra Costa County.

IN WITNESS WHEREOF, Landlord and TMW have caused this Lease to be executed in their names by their duly authorized officers.


____________________ ___________________________
John Stevenson Wayne Bogart
City Manager TMW & Associates

Approved as to form:
Dennis Beougher
City Attorney

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441