City of Brentwood
Home PageContact Us!Back

City Administration

2010 Council Goals and Strategic Plan | City Council Members | Calendar of Events | Elections
eNotification | Sub-Committees| Pledge of Allegiance Sign Ups | Invocation Sign Up
Live Streaming Council Meeting | Streaming PC Help |
Streaming Mac Help |

Current Council Agenda and Past Meeting Information


NOTICE AND CALL OF SPECIAL MEETING

Pursuant to Section 54956 of the California Government Code, a special meeting of the Brentwood City Council is hereby called for:

Date/Time: Wednesday, September 17, 2003 at 6:00 p.m.

Location: City Council Chambers
734 Third Street
Brentwood, CA 94513

Purpose: SPECIAL MEETING AGENDA

1. Call to Order

2. Roll Call

3. 6:00 P.M. – Citizen comments concerning Comcast

4. 7:00 P.M. –Administrative Hearing concerning Comcast Franchise

5. Approving a Resolution confirming the City Manager’s authorization to execute a purchase agreement and note and deed of trust for property located at 9100 Brentwood Boulevard.

6. Adjournment

Dated: September 15, 2003
 


/s/_______________________
Brian Swisher
Mayor

NOTICE

In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Chief Building Official (925) 516-5405. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. {28 CFR 35.102-35.104 ADA Title II}

CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: September 17, 2003

Subject/Title: Approve a Resolution confirming authorization for the City Manager to execute a Purchase Agreement for a note and deed of trust secured by property located at 9100 Brentwood Boulevard, New Police Station CIP Project #337-3142 and related actions.

Submitted by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution confirming authorization for the City Manager to execute a Purchase Agreement for a Promissory Note secured by property located at 9100 Brentwood Boulevard, APN #010-160-015, New Police Station CIP Project #337-3142 and also authorize the City Manager to accept the Allonge of Promissory Note and Assignment of Deed of Trust from General Electric Capital Business Asset Funding Corporation for recording with Contra Costa Recorder’s Office.

PREVIOUS ACTION
On September 9, 2003, Council instructed staff to complete the purchase of 9100 Brentwood Boulevard, APN #010-160-015, pursuant to certain terms.

BACKGROUND
The City Council had directed staff to evaluate the viability of utilizing the vacant structure at 9100 Brentwood Boulevard, APN #010-160-015, for public purposes. Staff conducted that evaluation, and reported to the Council that it was staff’s recommendation to proceed with the purchase, based on terms approved by the City Council. Council then directed staff to confirm through an opinion of value, that the property was worth the agreed-upon price. That opinion of value was delivered to staff at 6:00 p.m. Tuesday, September 9, 2003. Staff presented that information to Council in Closed Session at 6:30 p.m. that same evening and Council directed the City Manager and City Attorney to complete the purchase, based upon certain terms.

This staff report and attached Resolution is intended to memorialize those instructions.

FISCAL IMPACT
The immediate fiscal impact is approximately $6,410,000, which includes the purchase price of $6 million, plus $20,000 in projected foreclosure and legal costs and $390,000 in back taxes.

Attachments:
Resolution
Purchase Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD CONFIRMING AUTHORIZATION FOR THE CITY MANAGER TO EXECUTE A PURCHASE AGREEMENT FOR A PROMISSORY NOTE AND ALL OTHER ASSOCIATED DOCUMENTS WITH GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION SECURED BY REAL PROPERTY LOCATED AT 9100 BRENTWOOD BOULEVARD, APN #010-160-015, NEW POLICE STATION CIP PROJECT #337-3142 AND AUTHORIZING THE CITY MANAGER TO ACCEPT FOR THE CITY OF BRENTWOOD THE ALLONGE OF PROMISSORY NOTE AND ASSIGNMENT OF DEED OF TRUST FROM GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION FOR RECORDING WITH THE CONTRA COSTA COUNTY RECORDER’S OFFICE

WHEREAS, a portion of the real property identified as APN #010-160-015 is needed for public purposes; and

WHEREAS, a purchase agreement, Allonge of Promissory Note, and an Assignment of Deed of Trust between the City of Brentwood and General Electric Capital Business Asset Funding Corporation (“Documents”) have been prepared and signed in conformance with City Council’s direction to the City Manager; and

WHEREAS, the Documents are necessary to secure the property for public purposes.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood, that the City Manager is hereby directed to execute a Purchase Agreement for a Promissory Note secured by property located at 9100 Brentwood Boulevard, APN #010-160-015, New Police Station CIP Project #337-3142 and the City Manager is hereby authorized to accept for the City of Brentwood the Assignment of Deed of Trust from General Electric Capital Asset and Funding Corporation to the City of Brentwood as well as the Allonge of the Promissory Note for purposes of recording with the Contra Costa County Recorder’s Office.

BE IT FURTHER RESOLVED by the City Council of the City of Brentwood, that the Purchase Agreement is hereby approved.

BE IT FURTHER RESOLVED that the Mayor or City Manager and City Clerk or any of their designees are authorized to execute the agreement and any related escrow documents related to the recording of Documents.

BE IT FURTHER RESOLVED that the City of Brentwood hereby accepts both the Allonge of Promissory Note from General Electric Capital Business Asset and Funding Corporation as well as the Assignment of Deed of Trust from General Electric Capital Asset and Funding Corporation to the City of Brentwood.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a special meeting held on the 17th day of September 2003 by the following vote:

AGREEMENT REGARDING PURCHASE OF PROMISSORY NOTE ANDASSIGNMENT OF DEED OF TRUST

On this 11th day of September, 2003, City of Brentwood, a municipal corporation, ("Brentwood") and General Electric Capital Business Asset Funding Corporation, a Delaware corporation, ("GE Capital"), agree as follows:

ARTICLE 1. GENERAL.
1.01. The Note. GE Capital is the holder of a promissory note dated January 21, 2000 (the "Note") in the principal amount of $5,625,000 made by USPRINT CORPORATION, a California corporation (“US Print”), a copy of which is attached as Exhibit A. GE Capital asserts that the balance due pursuant to the Note is reflected in Exhibit D attached The default interest rate under the Note is 15%. The Note is secured by a Deed of Trust dated as of January 21, 2000 (the "Deed of Trust") in favor of GE Capital as Beneficiary, a copy of which is attached as Exhibit B, recorded January 24, 2000, as Document 2000-0014664-00, of Official Records of Contra Costa County against property located at 9100 and 9050 Brentwood Boulevard, Brentwood, CA 94513, more particularly described in Exhibit C (the "Property”).
1.02. Purpose. The purpose of this Agreement is to provide for the purchase of the Note by Brentwood and the assignment of the Deed of Trust by GE Capital to Brentwood.

ARTICLE 2. PURCHASE AND SALE.
2.01. Purchase and Sale. GE Capital shall sell the Note to Brentwood, Brentwood shall purchase the Note from GE Capital, and GE Capital shall assign the Deed of Trust to Brentwood on the terms and conditions specified in this Agreement. All payments shall be in lawful money of the United States of America.
2.02. Purchase Price. The purchase price for the Note shall be $6,000,000 (the "Purchase Price"), payable in cash at closing.
2.03. Loan in Default. Brentwood acknowledges that US Print is in default under the terms of the Note and is a debtor in a Chapter 7 proceeding pending as case number 02-44040 in the United States Bankruptcy Court for the Northern District of California, Oakland Division. Pursuant to applicable order of the Bankruptcy Court, the Property has been abandoned by the Chapter 7 Trustee for US Print. In addition, US Print has stipulated to relief from the automatic stay to allow GE Capital to foreclose on the Property. The Bankruptcy Court has approved that stipulation.
2.04. Closing. The purchase of the Note shall be consummated by means of an escrow which is to be opened, concurrent with the execution of this Agreement, with North American Title Company, Attn: Mary Weidmark, 101 Sand Creek Road B, Brentwood, CA 94513, Escrow Number 54709-53901396-MEW ("Escrow Holder").
2.05. Outside Closing Date. The closing of the purchase (the “Close of Escrow”) shall be consummated on or before September 19, 2003.
2.06. Costs. Except as expressly provided herein, costs and expenses related to the purchase and sale of the loan shall be paid by Brentwood, including costs of escrow, title insurance, if any, transfer taxes, if any, and recording fees. Notwithstanding the foregoing, each party shall be responsible for its own attorney fees and any income tax liability arising out of the purchase.
2.07. Instructions. The escrow instructions given to Escrow Holder shall be consistent with the terms of this Agreement, and, as between the parties, the terms of this Agreement shall prevail if there is any inconsistency, unless the typewritten rather than printed portion of the instructions specifically provide to the contrary.

ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
3.01. Ownership. GE Capital represents (i) that it is the holder of the Note and Deed of Trust (ii) that it is authorized to transfer the Note and Deed of Trust, and (iii) that the sale of the Note and Deed of Trust does not violate any agreement to which GE Capital is a party related to the Loan Documents, including any loan servicing agreement.
3.02. Loan Documents. The Loan Documents consist of the following items: the Note, Deed of Trust, a security agreement, a guaranty executed in favor of GE Capital by Keith Hylton, a Guarantor’s Certificate, a Borrower’s Certificate, a UCC-1 Financing Statement recorded with the Secretary of State of California, a UCC-1 Financing Statement recorded with the County Recorder’s Office for Contra Costa County, an Environmental Indemnity Agreement, and an opinion letter from counsel for US Print (the “Loan Documents”). The Loan Documents constitute all material documents, instruments and agreements securing the obligations of US Print to GE Capital. The Deed of Trust has not been modified or amended. The principal and interest amounts in Section 1.01 are a true and correct representation of the amount owed by USPRINT Corporation as of September 12, 2003.
3.03. Exclusive Representations and Warranties. The representations and warranties set forth in this Article III are the sole and exclusive representations and warranties made by GE Capital, its representatives, agents, officers, directors and other employees, with respect to the Note and Deed of Trust, the sale thereof to Brentwood hereunder or otherwise. Without limiting the generality of the foregoing, it is expressly acknowledged and agreed by GE Capital that no covenant, agreement, representation or warranty made by GE Capital or any such other person, herein or otherwise, shall be construed as a warranty, representation, guaranty or other agreement or acknowledgement as to, nor does GE Capital or any such other person assume any responsibility for:
(a) The creditworthiness of US Print or the collectibility of the Note by reason of US Print’s ability to make payments with respect thereto; or
(b) The value of or title to the Property, the environmental condition thereof or existence of hazardous materials thereon or the perfection or priority of any lien or security interest purported to be created by the Note and Deed of Trust or any related agreements; or
(c) The capacity of authority of Brentwood to purchase or hold the Note and Deed of Trust; or
(d) The conformity of the Note and Deed of Trust with laws and regulations binding upon GE Capital or Brentwood; or
(e) The genuineness, legality, validity or enforceability of the Note, the Deed if Trust, whether by GE Capital or otherwise.

ARTICLE 4. CONDITIONS TO CLOSING.
4.01. General. The provisions of this Article are conditions precedent to the closing described in Article 2 and, unless otherwise provided expressly or by context, are covenants.
4.02. Conveyance and Assignment. GE Capital shall convey the Note to Brentwood by delivering all of the original Loan Documents listed in Section 3.02 of this Agreement, duly endorsed to Brentwood, to Escrow Holder prior to the Close of Escrow, together with an assignment ("Assignment") in recordable form assigning the Deed of Trust to Brentwood. GE shall deliver assignments of any additional Loan Documents requested by Brentwood. GE Capital shall further verify, as of closing, that no principal or interest has been paid on the Note, except as set forth in Section 1.01 above.4.03. Title Insurance. Escrow Holder shall be in a position to issue to Brentwood a CLTA Lender's Policy of Title Insurance in the amount of the Note, ensuring Brentwood that it has a valid first lien on the property which is encumbered by the Deed of Trust.
4.03. Note, Assignment and Cash. Brentwood shall cause Escrow Holder to be ready, willing and able to deliver to GE Capital the Purchase Price. GE Capital shall cause Escrow Holder to be ready, willing and able to deliver to Brentwood the original Note, duly endorsed to Brentwood, to record and deliver to Brentwood the duly executed and notarized Assignment(s), and to issue the title insurance policy. Brentwood shall deposit any additional cash required to cover closing costs.

ARTICLE 5. INDEMNIFICATION
5.01 GE Capital's Indemnity. GE Capital shall indemnify, defend and hold Brentwood harmless against any and all claims, losses, liabilities and recoveries, including interest, penalties and reasonable attorneys' fees, that Brentwood may incur arising out of or resulting from (i) any breach of or failure by GE Capital to perform under this Agreement, including, but not limited to breach of representations and warranties and (ii) relating to the Loan Documents occurring prior to the Close of Escrow except that in no case shall GE Capital be liable for claims caused by Brentwood’s gross negligence or willful misconduct.
Brentwood shall promptly notify GE Capital of the existence of any matter to which the indemnification obligations would apply and shall give GE Capital a reasonable opportunity to defend at GE Capital's own expense and with counsel of the GE Capital's own selection; provided that Brentwood shall at all times also have the right to fully participate in the defense at Brentwood's own expense. Brentwood may defend, compromise or settle (exercising reasonable business judgment) any matter on behalf of GE Capital if GE Capital fails to defend. If the claim is one that cannot be defended by one party, the other party shall make available all information and assistance that the party may reasonably request. This indemnity shall survive the Close of Escrow or termination of this Agreement.
5.02. Brentwood's Indemnity. Brentwood shall indemnify, defend and hold GE Capital harmless against any and all claims, losses, liabilities and recoveries, including interest, penalties and reasonable attorneys' fees, that GE Capital may incur (i) arising out of or resulting from any breach of or failure by Brentwood to perform under this Agreement and (ii) relating to the Loan Documents occurring after the Close of Escrow, except that in no case shall Brentwood be liable for claims caused by GE Capital’s gross negligence or willful misconduct.
GE Capital shall promptly notify Brentwood of the existence of any other matter to which the indemnification obligations would apply and shall give Brentwood a reasonable opportunity to defend at Brentwood's own expense and with counsel of Brentwood's own selection; provided that GE Capital shall at all times also have the right to fully participate in the defense at GE Capital's own expense. GE Capital may defend, compromise or settle (exercising reasonable business judgment) any matter on behalf of Brentwood if Brentwood fails to defend. If the claim is one that cannot be defended by one party, the other party shall make available all information and assistance that the party may reasonably request. This indemnity shall survive the Close of Escrow or termination of this Agreement..

ARTICLE 6. MISCELLANEOUS.
6.01. Notices. All notices, requests, demands and other communications given or required to be given hereunder shall be in writing and personally delivered or sent by United States registered or certified mail, return receipt requested, or sent by nationally recognized courier service such as Federal Express, duly addressed to the parties as follows:

BRENTWOOD: City of Brentwood
Attn: John Stevenson, City Manager
708 3rd Street
Brentwood, CA 94513
Fax: (925) 516-5441

With a copy to: Nancy Park, Esq.
McDonough Holland & Allen PC
555 Capitol Mall, Suite 950
Sacramento, CA 95814
Fax: (916) 444-5918

GE CAPITAL: GE Capital Business Asset Funding Corporation
Attn: Barbara Atkinson
10900 NE 4th Street, Suite 500
Bellevue, WA 98004
Fax: (425) 709-9220

With a copy to:
Sarah E. Petty, Esq.
Snell & Wilmer, LLP
1920 Main Street, Suite 1200
Irvine, CA 92614
Fax: (949) 955-2507
Delivery of any notice or other communication hereunder shall be deemed made on the date of actual delivery thereof to the address of the addressee, if personally delivered, and on the date indicated in the return receipt or courier's records as the date of delivery or as the date of first attempted delivery to the address of the addressee, if sent by mail or courier service. Notice may also be given by facsimile to any party having a facsimile machine compatible with the facsimile machine of the party sending the notice. Any notice given by facsimile shall be deemed delivered when received by the facsimile machine of the receiving party if received before 5:00 p.m. (Pacific Time) on the business day received, or if received after 5:00 p.m. (Pacific Time) or on a day other than a business day, then such notice shall be deemed delivered on the next following business day. The transmittal confirmation receipt produced by the facsimile machine of the sending party shall be prima facie evidence of such receipt. Any party may change its address or facsimile number for purposes of this Section by giving notice to the other party as provided in this Section.
6.02. Interpretation. The captions of paragraphs used in this Agreement are for convenience only. The provisions hereof shall be binding upon and inure to the benefit of the successors and assigns of GE Capital and Brentwood.
6.03. Time of Essence. Time is of the essence of this Agreement and of the closing provided for herein.
6.04. Attorneys' Fees. In the event either GE Capital or Brentwood shall commence legal proceedings for the purpose of enforcing any provision or condition hereof, or by reason of any breach arising under the provisions hereof, then the successful party in such proceeding shall be entitled to reasonable attorneys' fees to be determined by the Court. 6.05. Integration. This Agreement contains the entire agreement of the parties hereto, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. There are no representations, agreements, arrangements or understandings, oral or written, relating to the subject matter which are not fully expressed herein.
6.05. Further Assurances. Following the consummation of the purchase and sale, GE Capital and Brentwood shall cooperate with the other and shall take such actions as may be reasonably requested (and which actions are consistent with the provisions of this Agreement) to obtain for the requesting party the benefit of the transaction contemplated hereby; provided, however, that the requesting party shall bear all costs and expenses associated with the requested actions and shall defend, indemnify and hold harmless the party of whom such actions are requested against any claims assessed against or incurred by such party in complying with such request (other than claims directly resulting from such party’s gross negligence or willful misconduct).
6.06. Dependency and Survival of Provisions. The respective warranties, representations, covenants, agreements, obligations and undertakings of each party hereunder shall be construed as dependent upon and given in consideration of those of the other party and shall survive the closing and delivery of the Note, MOA and Assignment.
6.07 Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but which together shall constitute a single document. Signatures transmitted by facsimile shall be binding, and the party receiving a signature by facsimile shall be entitled to rely on such signature; provided, however, that any person transmitting his or her signature by facsimile shall promptly send an original signature to the other parties.

[SIGNATURE BLOCKS APPEAR ON FOLLOWING PAGE]

GE CAPITAL:

General Electric Capital Business Asset Funding Corporation, a Delaware corporation

DATED: September__, 2003. By:
Name: Barbara D. Atkinson
Its: Vice-President

BRENTWOOD:

City of Brentwood, a municipal corporation

DATED: September__, 2003. By:
Name: John E. Stevenson
Its: City Manager


Attest:

By:
City Clerk

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