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 CITY COUNCIL AGENDA ITEM NO. 25 



Meeting Date: November 12, 2002

Subject/Title: Authorize the City Manager to execute a Development Agreement for the City 
to Contribute $100,000 of Planned Employment Center Funds and to execute a Standard Commercial, Office and Industrial Development Fee Payment Agreement with New Point Development, LLC. Authorize Staff to revise the Standard Commercial, Office and Industrial Development Fee Payment Agreement to reflect future changes in standard fee calculation.

Submitted by: Howard Sword, Director of Economic Development

Approved by: John Stevenson, City Manager


RECOMMENDATION 
Authorize the City Manager to execute a Development Agreement for the City to contribute 
$100,000 of Planned Employment Center funds and to execute a Standard Commercial, Office 
and Industrial Development Fee Payment Agreement with New Point Development, LLC, for a 
50,000 square foot commercial development located on the east side of the Guthrie Lane and 
Harvest Park Boulevard intersection. Authorize Staff to revise the Standard Commercial, Office 
and Industrial Development Fee Payment Agreement to reflect future changes in standard fee 
calculation.

PREVIOUS ACTION
 City Council directed Staff at its August 27, 2002 meeting to return with Development
Agreements with New Point Development, LLC, for a $100,000 contribution from Planned Employment Center (PEC) Funds and a Deferred Fee Agreement. The PEC Agreement was to specifically address the timing of building construction and a method of verification of number of jobs produced.

 Recommendation of the Economic Development Sub Committee at the April 18, 2002 meeting to grant the New Point project $100,000 in PEC funds and approve a standard fee deferral agreement.

 City Council referred this item back to the Economic Development Sub Committee at the March 26, 2002 City Council Meeting.

 Previous approvals for use of PEC Funds:

Original PEC Fund Account Balance $588,000.00

 Jeffery/Sciortino $101,773.10
 Precision Cabinets $175,000.00
 Commitment to Purcell Brackets $ 90,000.00

Current PEC Fund Account Balance $221,226.90


BACKGROUND
The PEC Fund Account was established in 1999 through funds paid by Kaufman & Broad to improve Brentwood’s Jobs / Housing Balance as a condition of approval to rezone planned employment property to residential zoning. Criteria to evaluate requests for these funds were adopted by the City Council August 10, 1999.

The New Point project did not rank high in the numeric evaluation of criteria as established by the PEC policy. However, City Council determined that the project qualified for a contribution from these funds because it does increase our very low inventory of space available for businesses to locate in Brentwood and would be a very nice adjacency to Harvest Business Park. It should also be noted that in the past three years, no new commercial / industrial projects have been constructed without some form of assistance from the City. Also the project is expected to produce approximately 155 jobs, and the proposed PEC contribution of approximately $645 per job is substantially less than the $1,500 to $2,500 per job that was granted to the Precision Cabinet and the $2,126 per job granted to Purcell Brackets. 

The attached Development Agreement for $100,000 grant of PEC Funds specifies the following terms.

 A $100,000 job creation grant to be credited against infrastructure fees defined as Water, Wastewater and Community Facilities, Roadway and Administration fees. And will be applied at time of building permit issuance:

1. Bldng. A 19,984 s.f. $39,968

2. Bldng. B 19,984 s.f. $39,968

3. Bldng. C 10,032 s.f. $20,064

 Timing:

1. Bldng. A; foundations poured by April 1, 2003.

2. Bldng. C; foundations poured by September 1, 2003.

3. Bldng. B; foundations poured by June 1, 2004.

 Trigger for Contribution:

1. Fee reduction at time of building permit issuance, as stated above.
2. Re-payment by New Point to City if "timing" is not met on building-by-building 
basis. 

 Job Verification. New Point to submit annual reports to the Economic Development and Finance Departments for five years commencing on February 1, 2004. These reports shall list the tenants and / or owners of the buildings and the number of each company's employees. New Point shall pay the City back its full $100,000 contribution if the total number of employees for all three buildings is less than 100 for two consecutive years.

The Standard Commercial, Office and Industrial Development Fee Payment (“Fee Deferral”) program has been used by several developers of recent projects and has benefits that address the cash flow of the infrastructure fees. The Fee Deferral program could reduce the initial infrastructure fee payment to 10% with 10% payments annually for the following nine years at a very low interest rate. The infrastructure fees for the proposed New Point Project are approximately $6.43 per s.f. for commercial use in Building A and $8.51 per s.f. for office use in Buildings B and C as reflected in the following table.



Project S.F Total Fees Less Fees Due Deferred
Fees PEC at Permit Fees
Bldng. A 19,984 128,557.06 88,589.06 8,858.91 79,730.15
Bldng. B 19,984 170,175.74 130,207.74 13,020.77 117,186.97
Bldng. C 10,032 85,428.50 65,364.50 6,536.45 58,828.05
Total 50,000 384,161.30 284,161.30 28,416.13 255,745.17

FISCAL IMPACT
Expend $100,000 of the PEC fund for the New Point Project. Delay of Infrastructure Fee payment to 10 equal annual payments.

ATTACHMENTS
 Development Agreement for contribution of PEC Funds.
 Standard Commercial, Office and Industrial Fee Payment Agreement Building A
 Standard Commercial, Office and Industrial Fee Payment Agreement Building B
 Standard Commercial, Office and Industrial Fee Payment Agreement Building C
 Exhibit 1 – Fee Sheet
 Exhibit 2 - Legal Description
 Site Map







When Recorded Return to:

City Clerk
City of Brentwood
150 City Park Way
Brentwood, CA 94513

________________________________________________________________

AGREEMENT

THIS AGREEMENT is made this 12th day of November, 2002, by and between the CITY OF BRENTWOOD, a municipal corporation (“City”) and NEW POINT DEVELOPMENT, LLC., a limited liability corporation, or its successors in interest, heir, beneficiaries, or assignees collectively referred to as “New Point Development ”.

RECITALS

A. The City created a Job Creation Incentive Program (“Program”) pursuant to a request to rezone an area located within the Planned Employment Center (PEC) zoning district to assist in the creation of an employment center in the City;

B. The City Council at its August 10, 1999 meeting approved Resolution 99-185 establishing criteria for a Job Creation Program and to direct the use of PEC funds accumulated through Development Agreements; 

C. At its November 12, 2002, the City Council approved New Point Development’s request for $100,000 to be credited from the its Capital Improvement Fees when New Point Development requests various building permits on parcel that it owns, as more fully described in this Agreement; 

NOW THEREFORE, the parties hereto for consideration hereby acknowledge agree as follows:

1. City’s Obligations. City agrees to credit $100,000 to New Point Development, as a property owner, from its Capital Improvement Fee obligation when it applies for various building permits as follows:

Building* Area of Building Amount of Fee Credits 
a) Building A 19,984 sq. ft. $39,968
b) Building B 19,984 sq.ft. $39,968
c) Building C 10,032 sq.ft. $20,064 

* All reference to the buildings is to the Approved Design Review Application, No. DR 01-04.

The right to receive the money shall be personal to the Recipient. 

2. Job Verification. New Point Development shall submit an annual report to both the City’s Director of Economic Development and to the Director of Finance and Information Services for five years commencing on February 1, 2004. The five annual reports shall list the tenants and/or owner of each of the buildings and shall verify the number of full time or full time equivalent employees each tenant/owner employs. If New Point Development falls to have at least 100 employees for two consecutive years during this five year period, New Point Development or its assigns, successors in interests, or beneficiaries shall pay to the City its $100,000 that was waived during its building permit application as provided in Paragraph 1. Therefore after 5 years, the City Fee Credits would be reduced to zero and New Point Development would have no monetary obligation to City. 

2. New Point Development’s Obligations. New Point Development agrees to purchase property in Brentwood, obtain three building permits on the land that it purchases, and agree to construct and occupy the three buildings as follows:

a) Building A Foundation Poured by April 1, 2003
b) Building B Foundation poured by September 1, 2003
c) Building C Foundation poured by June 1, 2004

If New Point Development fails to obtain the required building permits and pour foundations for the buildings within specified in this Paragraph 2, New Point Development agrees to repay the City the portion of the $100,000 that pertains to the building that failed to meet time obligations. $100,000 plus interest at the rate of 8% per year beginning from the date the Fee Credits in the same amount is provided to New Point Development when it has been issued a building permit. 

3. New Point Development Obligations Runs With the Land. If the New Point Development its successors in interest, assigns, beneficiaries, or heirs fail to obtain the building permit and occupy the facility within the time specified, New Point Development and its successors in interest, assigns, beneficiaries, or heirs grant the City the right to enforce repayment of the subject money owed to the City through any lawful means, including, but not limited to, imposition of lien on the property and the rights of foreclosure upon its property. 

4. Notice. Any notices required or desired to be sent pursuant to this Agreement shall be addressed as follows:



City: City Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513

New Point Development: Matt Ellison
605 Harvest Park, Suite D
Brentwood, CA 94513

5. Attorney’s Fees. In the event any action is commenced to enforce or interpret any term or condition of this Agreement, in addition to costs and any other relief, the prevailing party shall be entitled to reasonable attorney’s fees. Jurisdiction in any dispute shall be filed and remain in Contra Costa County. 

6. Recording. New Point Development shall cause this Agreement to be recorded with the Contra Costa County Recorder’s Office as a condition of the receipt of money or credit provided at the time the building permit is issued. 



CITY OF BRENTWOOD


________________________
John Stevenson, City Manager

Attest:

______________________
Karen Diaz, CMC, City Clerk


Approved As to Form:

________________________________
Dennis Beougher, City Attorney 


NEW POINT DEVELOPMENT, LLC

By: __________________ 
Matt Ellison




New Point Development

[Attach cover sheet for recording this agreement with County Recorder]

CITY OF BRENTWOOD
STANDARD COMMERCIAL, OFFICE AND INDUSTRIAL DEVELOPMENT FEE PAYMENT AGREEMENT

This Agreement is entered into as of the 12th day of November 2002 by and between the City of Brentwood (“City”) and Matt Ellison (“Owner”), the Owner of Property located at Guthrie Lane in the City of Brentwood (the “Property”). The Property is further described by A.P.N. 010-150-34 Building A, and its legal description is attached hereto as Exhibit 4.


RECITALS

WHEREAS, the Property is permitted under the City’s laws, or has obtained entitlements from the City, to develop for new commercial, office or industrial uses and the Owner desires to develop a project consistent with such uses (“project”); and

WHEREAS, the Property is obligated under the City’s laws to pay development fees to offset the impacts of the project on the community’s system of infrastructure such as roads, water facilities and sewer facilities; and

WHEREAS, the Owner accepts this obligation and desires to enter into this agreement whereby a portion of the development fees will be payable immediately by the Owner and the City will allow the Owner to pay the balance of the fees over time. Payment over time will be accomplished by imposing the balance as a special assessment upon the secured real property tax roll, creating a lien to secure payment, and collecting the balance in the same manner as ordinary municipal taxes are collected; and

WHEREAS, the Owner acknowledges his obligation to pay the fees in full, and through this agreement, consents to making part of such obligation a special assessment against the Property, with a lien imposed against the Property to further secure collection. This Agreement shall be recorded in the Contra Costa County Recorder’s Office to provide record notice of the special assessment, lien and other provisions herein.

WHEREAS, this agreement is authorized by, and shall be interpreted consistently with, the City’s standard form agreement adopted by Resolution No. 2016 adopted on February 8, 2000. 




AGREEMENT

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS OF THE PARTIES HERETO, THE PARTIES AGREE AS FOLLOWS:




1. DEVELOPMENT FEE OBLIGATION.

1.1 Owner is obligated to pay to City the amount of $88,589.06 in developer impact fees. Provided the pre-conditions set forth in Section 2 are met, Owner and City shall be bound to the payment plan set forth in Section 3, as is summarized in Exhibit 1. In all other respects, Owner shall pay such developer fees in accordance with the City’s laws and City’s conditions placed upon the project.

2. PRECONDITIONS.

2.1 As a precondition to City’s obligations hereunder, Owner shall have obtained all necessary permits and entitlements needed for the project, that is the office, commercial or industrial development of the Property, with the exception of building permits and certificates of occupancy. As a further precondition, Developer shall submit one or more applications for building permits in a manner satisfactory to the City.

2.2 The Owner shall deliver sufficient proof of ownership of the Property to the City, with a title report showing all right, title and interests held in the Property and encumbrances against the Property.

2.3 The Owner shall be current on all other financial obligations which may be owing to City and shall be current in the payment of all property taxes for the Property. In addition, the Owner shall not have or allow encumbrances against the Property which are senior to the obligations to pay development fees set forth in this agreement (for example, federal or state tax liens). At the request of the City, the Owner shall submit proof to the City of compliance with this Section 2.3.

3. DEVELOPMENT FEE PAYMENT PLAN.

3.1 The Owner shall pay to the City, concurrently with the issuance of the first building permit, an amount equal to 10% of the development fee obligation set forth in Section 1.1. This amount is $8,858.91 which is also shown on the summary sheet attached hereto as Exhibit 1. The remaining 90% of the fees plus an annual interest charge of 3% and an annual City Administration charge of 1% shall be compounded on the outstanding principal. An administration charge by the County Assessor’s Office shall be collected annually as a special assessment. The annual interest charge and the special assessment shall be payable as part of the property tax bill over the following nine-year period.

3.2 The City and Owner agree that the remaining development fee balance is denominated a special assessment and shall be placed by City on the Contra Costa County Secured Real Property Tax Roll as a special assessment to be imposed, collected and enforced in the same manner as ordinary municipal and other taxes. Including the amounts set forth in Sections 3.3 and 3.4, the total amount of this special assessment is $79,730.15. This total amount is subject to change if additional sums are incurred pursuant to Sections 3.3 and 3.4. This total amount shall be apportioned to be fully paid by Owner in nine (9) years, with each pro rata payment due at the same time as Owner pays ordinary municipal and other taxes and assessments, twice each year. The schedule for each pro rata payment of the special assessment is shown on Exhibit 1. Notwithstanding the schedule, Owner shall pay the special assessment and other property taxes on time and in the manner required by the County Auditor-Controller.

3.3 The Owner agrees to pay any and all costs, fees, penalties, late charges or interest imposed by the County Auditor-Controller and the costs of recordation of this agreement imposed by the County Recorder’s Office.

3.4 The Owner agrees to pay the City’s administrative and or legal costs in preparing, administering and enforcing this agreement, which amounts may be imposed upon the issuance of each building permit or placed as additional amounts to the special assessment.

3.5 A lien for the amounts provided for in this agreement is hereby established upon the Property.

3.6 All amounts provided for in this agreement shall be fully paid to the City within nine (9) years of the effective date of this agreement, as set forth above.

3.7 Any and all amounts due hereunder shall be immediately due and payable, at City’s election, upon the sale of the Property. This due on sale clause shall not inhibit the City’s choice of alternate remedies available by law.

3.8 In the event Owner fails to pay any amount owing hereunder, the City and/or the County on its own or the City’s behalf, has the right to exercise all rights and remedies and to maintain any action in law or equity to enforce the terms and covenants of this agreement. Without limiting the foregoing, the City shall have the right to proceed with foreclosure of the lien against the Property and the sale of the Property on execution as in other cases of the sale of real Property for all delinquent amounts, including interest, costs, attorneys’ fees and costs of the foreclosure proceedings.

3.9 The Owner and all persons claiming a right, title or interest to the Property shall be forever barred from any equity of redemption in and to the Property if the Property is sold as a result of foreclosure proceedings.



4. MISCELLANEOUS.

4.1 The covenants made in this agreement, particularly the special assessment and lien, shall be covenants which run with the land and shall bind all successors in interest to Owner, if applicable. This section does not limit the effect of Section 3.7, nor the effect of Section 4.2.

4.2 This agreement shall not be assigned without the express written consent of the City. It is understood that the personal financial history of Owner and promises made by Owner in this agreement are some of the inducements for City to enter into this agreement. There are no third party beneficiaries to this agreement, except for the County of Contra Costa.

4.3 If any action or proceeding is instituted by either party to interpret, challenge, enforce or which relates in any other way to this agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief adjudged by the court.

4.4 In the event that an action or proceeding shall be brought by either party hereunder, the parties agree that venue of such action shall be held exclusively in a state court in the County of Contra Costa, California. This agreement shall be interpreted in accordance with, and governed by, the laws of the State of California.

4.5 If any provision of this agreement is for any reason held to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.

4.6 Owner shall defend, indemnify and hold harmless the City, its officials, employees and agents for any and all actions, proceedings, damages, claims, costs and attorneys’ fees arising out of, or related to this Agreement, or for personal injury or property damage which may occur which is not solely attributable to the intentional misconduct or sole, active negligence of the City.

4.7 All parties have been invited to seek legal counsel in the review of this agreement. Should disputes arise concerning this agreement, the agreement shall be deemed to have been drafted mutually by all parties herein. This agreement including its attachments represents the entire, fully integrated, understanding of the parties and supersedes any prior understandings. It shall not be amended in any way except through a separate writing executed by all parties.


IN WITNESS WHEREOF, the City and the Owner have executed this Agreement as of the date first above written.

OWNER [Attach Notarial Acknowledgments]



By:_________________________

Title:_______________________




CITY OF BRENTWOOD


By:_________________________
John Stevenson

Title: City Manager 





New Point Development

[Attach cover sheet for recording this agreement with County Recorder]

CITY OF BRENTWOOD
STANDARD COMMERCIAL, OFFICE AND INDUSTRIAL DEVELOPMENT FEE PAYMENT AGREEMENT

This Agreement is entered into as of the 12th day of November 2002 by and between the City of Brentwood (“City”) and Matt Ellison (“Owner”), the Owner of Property located at Guthrie Lane in the City of Brentwood (the “Property”). The Property is further described by A.P.N. 010-150-34 Building B, and its legal description is attached hereto as Exhibit 4.


RECITALS

WHEREAS, the Property is permitted under the City’s laws, or has obtained entitlements from the City, to develop for new commercial, office or industrial uses and the Owner desires to develop a project consistent with such uses (“project”); and

WHEREAS, the Property is obligated under the City’s laws to pay development fees to offset the impacts of the project on the community’s system of infrastructure such as roads, water facilities and sewer facilities; and

WHEREAS, the Owner accepts this obligation and desires to enter into this agreement whereby a portion of the development fees will be payable immediately by the Owner and the City will allow the Owner to pay the balance of the fees over time. Payment over time will be accomplished by imposing the balance as a special assessment upon the secured real property tax roll, creating a lien to secure payment, and collecting the balance in the same manner as ordinary municipal taxes are collected; and

WHEREAS, the Owner acknowledges his obligation to pay the fees in full, and through this agreement, consents to making part of such obligation a special assessment against the Property, with a lien imposed against the Property to further secure collection. This Agreement shall be recorded in the Contra Costa County Recorder’s Office to provide record notice of the special assessment, lien and other provisions herein.

WHEREAS, this agreement is authorized by, and shall be interpreted consistently with, the City’s standard form agreement adopted by Resolution No. 2016 adopted on February 8, 2000. 




AGREEMENT

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS OF THE PARTIES HERETO, THE PARTIES AGREE AS FOLLOWS:




1. DEVELOPMENT FEE OBLIGATION.

1.1 Owner is obligated to pay to City the amount of $130,207.74 in developer impact fees. Provided the pre-conditions set forth in Section 2 are met, Owner and City shall be bound to the payment plan set forth in Section 3, as is summarized in Exhibit 1. In all other respects, Owner shall pay such developer fees in accordance with the City’s laws and City’s conditions placed upon the project.

2. PRECONDITIONS.

2.1 As a precondition to City’s obligations hereunder, Owner shall have obtained all necessary permits and entitlements needed for the project, that is the office, commercial or industrial development of the Property, with the exception of building permits and certificates of occupancy. As a further precondition, Developer shall submit one or more applications for building permits in a manner satisfactory to the City.

2.2 The Owner shall deliver sufficient proof of ownership of the Property to the City, with a title report showing all right, title and interests held in the Property and encumbrances against the Property.

2.3 The Owner shall be current on all other financial obligations which may be owing to City and shall be current in the payment of all property taxes for the Property. In addition, the Owner shall not have or allow encumbrances against the Property which are senior to the obligations to pay development fees set forth in this agreement (for example, federal or state tax liens). At the request of the City, the Owner shall submit proof to the City of compliance with this Section 2.3.

3. DEVELOPMENT FEE PAYMENT PLAN.

3.1 The Owner shall pay to the City, concurrently with the issuance of the first building permit, an amount equal to 10% of the development fee obligation set forth in Section 1.1. This amount is $13,020.77 which is also shown on the summary sheet attached hereto as Exhibit 1. The remaining 90% of the fees plus an annual interest charge of 3% and an annual City Administration charge of 1% shall be compounded on the outstanding principal. An administration charge by the County Assessor’s Office shall be collected annually as a special assessment. The annual interest charge and the special assessment shall be payable as part of the property tax bill over the following nine-year period.

3.2 The City and Owner agree that the remaining development fee balance is denominated a special assessment and shall be placed by City on the Contra Costa County Secured Real Property Tax Roll as a special assessment to be imposed, collected and enforced in the same manner as ordinary municipal and other taxes. Including the amounts set forth in Sections 3.3 and 3.4, the total amount of this special assessment is $117,186.97. This total amount is subject to change if additional sums are incurred pursuant to Sections 3.3 and 3.4. This total amount shall be apportioned to be fully paid by Owner in nine (9) years, with each pro rata payment due at the same time as Owner pays ordinary municipal and other taxes and assessments, twice each year. The schedule for each pro rata payment of the special assessment is shown on Exhibit 1. Notwithstanding the schedule, Owner shall pay the special assessment and other property taxes on time and in the manner required by the County Auditor-Controller.

3.3 The Owner agrees to pay any and all costs, fees, penalties, late charges or interest imposed by the County Auditor-Controller and the costs of recordation of this agreement imposed by the County Recorder’s Office.

3.4 The Owner agrees to pay the City’s administrative and or legal costs in preparing, administering and enforcing this agreement, which amounts may be imposed upon the issuance of each building permit or placed as additional amounts to the special assessment.

3.5 A lien for the amounts provided for in this agreement is hereby established upon the Property.

3.6 All amounts provided for in this agreement shall be fully paid to the City within nine (9) years of the effective date of this agreement, as set forth above.

3.7 Any and all amounts due hereunder shall be immediately due and payable, at City’s election, upon the sale of the Property. This due on sale clause shall not inhibit the City’s choice of alternate remedies available by law.

3.8 In the event Owner fails to pay any amount owing hereunder, the City and/or the County on its own or the City’s behalf, has the right to exercise all rights and remedies and to maintain any action in law or equity to enforce the terms and covenants of this agreement. Without limiting the foregoing, the City shall have the right to proceed with foreclosure of the lien against the Property and the sale of the Property on execution as in other cases of the sale of real Property for all delinquent amounts, including interest, costs, attorneys’ fees and costs of the foreclosure proceedings.

3.9 The Owner and all persons claiming a right, title or interest to the Property shall be forever barred from any equity of redemption in and to the Property if the Property is sold as a result of foreclosure proceedings.



4. MISCELLANEOUS.

4.1 The covenants made in this agreement, particularly the special assessment and lien, shall be covenants which run with the land and shall bind all successors in interest to Owner, if applicable. This section does not limit the effect of Section 3.7, nor the effect of Section 4.2.

4.2 This agreement shall not be assigned without the express written consent of the City. It is understood that the personal financial history of Owner and promises made by Owner in this agreement are some of the inducements for City to enter into this agreement. There are no third party beneficiaries to this agreement, except for the County of Contra Costa.

4.3 If any action or proceeding is instituted by either party to interpret, challenge, enforce or which relates in any other way to this agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief adjudged by the court.

4.4 In the event that an action or proceeding shall be brought by either party hereunder, the parties agree that venue of such action shall be held exclusively in a state court in the County of Contra Costa, California. This agreement shall be interpreted in accordance with, and governed by, the laws of the State of California.

4.5 If any provision of this agreement is for any reason held to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.

4.6 Owner shall defend, indemnify and hold harmless the City, its officials, employees and agents for any and all actions, proceedings, damages, claims, costs and attorneys’ fees arising out of, or related to this Agreement, or for personal injury or property damage which may occur which is not solely attributable to the intentional misconduct or sole, active negligence of the City.

4.7 All parties have been invited to seek legal counsel in the review of this agreement. Should disputes arise concerning this agreement, the agreement shall be deemed to have been drafted mutually by all parties herein. This agreement including its attachments represents the entire, fully integrated, understanding of the parties and supersedes any prior understandings. It shall not be amended in any way except through a separate writing executed by all parties.


IN WITNESS WHEREOF, the City and the Owner have executed this Agreement as of the date first above written.

OWNER [Attach Notarial Acknowledgments]



By:_________________________

Title:_______________________




CITY OF BRENTWOOD


By:_________________________
John Stevenson

Title: City Manager 



















New Point Development

[Attach cover sheet for recording this agreement with County Recorder]

CITY OF BRENTWOOD
STANDARD COMMERCIAL, OFFICE AND INDUSTRIAL DEVELOPMENT FEE PAYMENT AGREEMENT

This Agreement is entered into as of the 12th day of November 2002 by and between the City of Brentwood (“City”) and Matt Ellison (“Owner”), the Owner of Property located at Guthrie Lane in the City of Brentwood (the “Property”). The Property is further described by A.P.N. 010-150-34 Building C, and its legal description is attached hereto as Exhibit 4.


RECITALS

WHEREAS, the Property is permitted under the City’s laws, or has obtained entitlements from the City, to develop for new commercial, office or industrial uses and the Owner desires to develop a project consistent with such uses (“project”); and

WHEREAS, the Property is obligated under the City’s laws to pay development fees to offset the impacts of the project on the community’s system of infrastructure such as roads, water facilities and sewer facilities; and

WHEREAS, the Owner accepts this obligation and desires to enter into this agreement whereby a portion of the development fees will be payable immediately by the Owner and the City will allow the Owner to pay the balance of the fees over time. Payment over time will be accomplished by imposing the balance as a special assessment upon the secured real property tax roll, creating a lien to secure payment, and collecting the balance in the same manner as ordinary municipal taxes are collected; and

WHEREAS, the Owner acknowledges his obligation to pay the fees in full, and through this agreement, consents to making part of such obligation a special assessment against the Property, with a lien imposed against the Property to further secure collection. This Agreement shall be recorded in the Contra Costa County Recorder’s Office to provide record notice of the special assessment, lien and other provisions herein.

WHEREAS, this agreement is authorized by, and shall be interpreted consistently with, the City’s standard form agreement adopted by Resolution No. 2016 adopted on February 8, 2000. 




AGREEMENT

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS OF THE PARTIES HERETO, THE PARTIES AGREE AS FOLLOWS:




1. DEVELOPMENT FEE OBLIGATION.

1.1 Owner is obligated to pay to City the amount of $65,364.50 in developer impact fees. Provided the pre-conditions set forth in Section 2 are met, Owner and City shall be bound to the payment plan set forth in Section 3, as is summarized in Exhibit 1. In all other respects, Owner shall pay such developer fees in accordance with the City’s laws and City’s conditions placed upon the project.

2. PRECONDITIONS.

2.1 As a precondition to City’s obligations hereunder, Owner shall have obtained all necessary permits and entitlements needed for the project, that is the office, commercial or industrial development of the Property, with the exception of building permits and certificates of occupancy. As a further precondition, Developer shall submit one or more applications for building permits in a manner satisfactory to the City.

2.2 The Owner shall deliver sufficient proof of ownership of the Property to the City, with a title report showing all right, title and interests held in the Property and encumbrances against the Property.

2.3 The Owner shall be current on all other financial obligations which may be owing to City and shall be current in the payment of all property taxes for the Property. In addition, the Owner shall not have or allow encumbrances against the Property which are senior to the obligations to pay development fees set forth in this agreement (for example, federal or state tax liens). At the request of the City, the Owner shall submit proof to the City of compliance with this Section 2.3.

3. DEVELOPMENT FEE PAYMENT PLAN.

3.1 The Owner shall pay to the City, concurrently with the issuance of the first building permit, an amount equal to 10% of the development fee obligation set forth in Section 1.1. This amount is $6,536.45 which is also shown on the summary sheet attached hereto as Exhibit 1. The remaining 90% of the fees plus an annual interest charge of 3% and an annual City Administration charge of 1% shall be compounded on the outstanding principal. An administration charge by the County Assessor’s Office shall be collected annually as a special assessment. The annual interest charge and the special assessment shall be payable as part of the property tax bill over the following nine-year period.

3.2 The City and Owner agree that the remaining development fee balance is denominated a special assessment and shall be placed by City on the Contra Costa County Secured Real Property Tax Roll as a special assessment to be imposed, collected and enforced in the same manner as ordinary municipal and other taxes. Including the amounts set forth in Sections 3.3 and 3.4, the total amount of this special assessment is $58,828.05. This total amount is subject to change if additional sums are incurred pursuant to Sections 3.3 and 3.4. This total amount shall be apportioned to be fully paid by Owner in nine (9) years, with each pro rata payment due at the same time as Owner pays ordinary municipal and other taxes and assessments, twice each year. The schedule for each pro rata payment of the special assessment is shown on Exhibit 1. Notwithstanding the schedule, Owner shall pay the special assessment and other property taxes on time and in the manner required by the County Auditor-Controller.

3.3 The Owner agrees to pay any and all costs, fees, penalties, late charges or interest imposed by the County Auditor-Controller and the costs of recordation of this agreement imposed by the County Recorder’s Office.

3.4 The Owner agrees to pay the City’s administrative and or legal costs in preparing, administering and enforcing this agreement, which amounts may be imposed upon the issuance of each building permit or placed as additional amounts to the special assessment.

3.5 A lien for the amounts provided for in this agreement is hereby established upon the Property.

3.6 All amounts provided for in this agreement shall be fully paid to the City within nine (9) years of the effective date of this agreement, as set forth above.

3.7 Any and all amounts due hereunder shall be immediately due and payable, at City’s election, upon the sale of the Property. This due on sale clause shall not inhibit the City’s choice of alternate remedies available by law.

3.8 In the event Owner fails to pay any amount owing hereunder, the City and/or the County on its own or the City’s behalf, has the right to exercise all rights and remedies and to maintain any action in law or equity to enforce the terms and covenants of this agreement. Without limiting the foregoing, the City shall have the right to proceed with foreclosure of the lien against the Property and the sale of the Property on execution as in other cases of the sale of real Property for all delinquent amounts, including interest, costs, attorneys’ fees and costs of the foreclosure proceedings.

3.9 The Owner and all persons claiming a right, title or interest to the Property shall be forever barred from any equity of redemption in and to the Property if the Property is sold as a result of foreclosure proceedings.



4. MISCELLANEOUS.

4.1 The covenants made in this agreement, particularly the special assessment and lien, shall be covenants which run with the land and shall bind all successors in interest to Owner, if applicable. This section does not limit the effect of Section 3.7, nor the effect of Section 4.2.

4.2 This agreement shall not be assigned without the express written consent of the City. It is understood that the personal financial history of Owner and promises made by Owner in this agreement are some of the inducements for City to enter into this agreement. There are no third party beneficiaries to this agreement, except for the County of Contra Costa.

4.3 If any action or proceeding is instituted by either party to interpret, challenge, enforce or which relates in any other way to this agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief adjudged by the court.

4.4 In the event that an action or proceeding shall be brought by either party hereunder, the parties agree that venue of such action shall be held exclusively in a state court in the County of Contra Costa, California. This agreement shall be interpreted in accordance with, and governed by, the laws of the State of California.

4.5 If any provision of this agreement is for any reason held to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.

4.6 Owner shall defend, indemnify and hold harmless the City, its officials, employees and agents for any and all actions, proceedings, damages, claims, costs and attorneys’ fees arising out of, or related to this Agreement, or for personal injury or property damage which may occur which is not solely attributable to the intentional misconduct or sole, active negligence of the City.

4.7 All parties have been invited to seek legal counsel in the review of this agreement. Should disputes arise concerning this agreement, the agreement shall be deemed to have been drafted mutually by all parties herein. This agreement including its attachments represents the entire, fully integrated, understanding of the parties and supersedes any prior understandings. It shall not be amended in any way except through a separate writing executed by all parties.


IN WITNESS WHEREOF, the City and the Owner have executed this Agreement as of the date first above written.

OWNER [Attach Notarial Acknowledgments]



By:_________________________

Title:_______________________




CITY OF BRENTWOOD


By:_________________________
John Stevenson

Title: City Manager 







Exhibit 2


LEGAL DESCRIPTION


Description:

The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:

PARCEL C AS SHOWN ON PARCEL, MAP RECORDED NOVEMBER 6, 1973, IN BOOK 30 OF PARCEL MAPS, PAGE 50, INSTRUMENT NO. 107235, OFFICIAL RECORDS OF CONTRA COSTA COUNTY.

EXCEPTING THEREFROM: AN UNDIVIDED ½ INTEREST IN ANDTO THE MINERALS AND MINERAL RIGHTS RESERVED IN THE DEED FROM GLADYS M. LANE, ET AL, RECORDED NOVEMBER 5, 1963 (FILE NO. 98767), AS FOLLOWS:

“ALL OIL, GAS, CASINGHEAD GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES BELOW A POINT 500 FEET BELOW THE SURFACE OF SAID LAND TOGETHER WITH THE RIGHT TO TAKE, REMOVE, MINE, PASS THROUGH AND DISPOSE OF ALL SAID OIL, GAS CASINGHEAD GASOLINE AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LAND OR UPON ANY PART OF SAID LAND WITHIN 500 FEET THEREOF.”

ALSO EXCEPTING THEREFROM: AN UNDIVIDED ½ INTEREST IN THE REMAINING UNDIVIDED ½ INTEREST IN AND TO ALL OIL, GAS, CASINGHEAD GASOLINE, AND OTHER HYDROCARBON AND MINERAL SUBSTANCES BELOW A POINT 500 FEET BELOW THE SURFACE OF SAID LAND TOGETHER WITH THE RIGHT TO TAKE, REMOVE, MINE, PASS THROUGH AND DISPOSE OF ALL SAID OIL, GAS, CASINGHEAD GASOLINE AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, BUT WITHOUT ANY RIGHT WHATSOEVER TO ENTER UPON THE SURFACE OF SAID LAND OR UPON ANY PART OF SAID LAND WITHIN 500 FEET THEREOF AS RESERVED IN THE DEED RECORDED APRIL 15, 1966 IN BOOK 500, PAGE 155, OFFICIAL RECORDS.

ASSESSOR’S PARCEL NUMBER: 010-150-034
City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov