COUNCIL AGENDA ITEM NO. 7
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.
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
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.
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.
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.
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
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.
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.
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
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
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.
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
(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.
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:
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.
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
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: