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CITY COUNCIL AGENDA ITEM NO. 5

Meeting Date: July 8, 2003

Subject/Title: Approve a Resolution Approving the Transfer of Development Agreement Rights to Warmington Brentwood Associates LLC

Submitted By: Dennis Beougher, City Attorney

RECOMMENDATION
Approve a Resolution approving the transfer of all rights, duties, and obligations created by a Development Agreement between the City and Paul Martin and William Currin (“Subdividers”) concerning Subdivision Map 8281 to Warmington Brentwood Associates, LLC.

BACKGROUND
On July 17, 2001, the Planning Commission approved Mr. Martin’s and Mr. Currin’s application for a subdivision of 44 acres, generally located south of Lone Tree Way and west of the realigned Fairview Avenue. The proposed Subdivision 8281 consists of 130 single-family residential lots that are consistent with the City’s General Plan. In order to develop a large subdivision, the Subdividers requested a development agreement to reduce the economic risks of development. On September 24, 2002, the City Council approved a Development Agreement with the Subdividers.

One of the terms of the Development Agreement (Section 5.1) is that Subdivider shall have the right to sell, assign, or transfer the Agreement, subject to the City Council’s approval. Such approval shall be granted where the buyer, assignee, or transferee has demonstrated the experience, qualifications, and financial resources to complete the Project to the reasonable satisfaction of the City. The City shall not unreasonably withhold, or delay the approval of the proposed transfer. City may refuse to give its consent only, in light of the proposed transferee’s reputation, and financial resources, such that transferee would not, in City’s reasonable opinion, be able to perform all the obligations under the Development Agreement.

ANALYSIS
Construction has begun on the Property, so the Subdividers have requested that the City approve a transfer of all rights, duties, and obligations under the subject Development Agreement to Warmington Brentwood Associates, LLC as soon as possible. Based on Warmington Homes’ involvement in the transferee, staff recommends approval of the transfer based on Warmington Homes’ financial resources, experience, and qualifications to perform and complete all of the obligations stated in the Development Agreement.

Attachment:
Resolution
Assignment of Development Agreement


RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE TRANSFER OF THE DEVELOPMENT AGREEMENT BETWEEN THE CITY AND PAUL MARTIN/WILLIAM CURRIN TO WARMINGTON BRENTWOOD ASSOCIATES, LLC

WHEREAS, On July 17, 2001, the Planning Commission approved Mr. Martin’s and Mr. Currin’s (“Subdividers”) application for a subdivision of 44 acres, generally located south of Lone Tree Way and west of the realigned Fairview Avenue, within the boundaries of the Tentative Map No. 8281 (“Property”); and

WHEREAS, the proposed Subdivision 8281 consists of 130 single-family residential lots that are consistent with the City’s General Plan; and

WHEREAS, in order to develop a large subdivision, the Subdividers requested a development agreement to reduce the economic risks of development; and

WHEREAS, on September 24, 2002, the City Council approved a Development Agreement with the Subdividers; and

WHEREAS, Subdividers requests that the City consent to its transfer of the rights, duties, and obligations of the Development Agreement to Warmington Brentwood Associates, LLC; and

WHEREAS, one of the terms of the Development Agreement (Section 5.1) is that Subdivider shall have the right to sell, assign, or transfer the Agreement, subject to the City Council’s approval and such approval shall be granted where the buyer, assignee, or transferee has demonstrated the experience, qualifications, and financial resources to complete the Project to the reasonable satisfaction of the City; and

WHEREAS, the City shall not unreasonably withhold, or delay the approval of the proposed transfer and the City may refuse to give its consent only, in light of the proposed transferee’s reputation, and financial resources, such that transferee would not, in City’s reasonable opinion, be able to perform all the obligations under the Development Agreement; and

WHEREAS, based on Warmington Homes’ involvement in the transferee, staff recommends approval of the transfer based on Warmington Homes’ financial resources, experience, and qualifications to perform and complete all of the obligations stated in the Development Agreement.

NOW, THEREFORE BE IT RESOLVED the City Council finds that Warmington Brentwood Associates, LLC’s has sufficient experience and financial resources, such that transferees would, in City’s reasonable opinion, be able to perform all the obligations under the Development Agreement.

City Council further approves the transfer, as describe in the staff report for this resolution and also hereby authorizes the City Manager to execute an assignment agreement, subject to City Attorney’s approval.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 8th day of July, 2003 by the following vote:



ASSIGNMENT OF DEVELOPMENT AGREEMENT

THIS ASSIGNMENT OF DEVELOPMENT AGREEMENT ("Assignment") is made and entered into as of July 7, 2003, by and between PAUL MARTIN and WILLIAM CURRIN (collectively, "Assignor"), and WARMINGTON BRENTWOOD ASSOCIATES, a Delaware limited liability company ("Assignee").

A. Assignor, as "Developer", and the City of Brentwood, a general law municipal corporation of the State of California ("City"), entered into that certain Development Agreement dated September 24, 2002, and recorded November 27, 2002, as Document Number 2002-0450380-00 in the Official Records of Contra Costa County ("Development Agreement") concerning the development of certain real property owned by Assignor in the City more particularly described in the Development Agreement ("Property").
B. Assignor and Assignee's predecessor-in-interest have entered into that certain Purchase Agreement and Escrow Instructions dated as of November 21, 2002, as amended by that certain Amendment to Purchase Agreement and Escrow Instructions dated as of December 13, 2002, that certain Second Amendment to Purchase Agreement and Escrow Instructions dated as of December 19, 2002, and that certain Third Amendment to Purchase Agreement and Escrow Instructions dated as of May 13, 2003 (collectively, the "Purchase Agreement"), pursuant to which Assignor agreed to sell to Assignee, and Assignee agreed to purchase from Assignor, the Property.
C. In connection with the purchase of the Property by Assignee from Assignor, Assignor desires to assign and convey to Assignee, and Assignee desires to accept and assume from Assignor, all of Assignor's right, title and interest as Developer under the Development Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effective as of the date on which the City has consented to such assignment, Assignor does hereby give, grant, bargain, sell, transfer, assign, convey and deliver to Assignor all of Assignee's right, title and interest as "Developer" under the Development Agreement.
2. Assignor represents it has not transferred, conveyed or hypothecated any interest in the Development Agreement to any other party. Assignor hereby covenants that it will, at any time and from time to time upon written request therefor, execute and deliver to Assignee, its nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which Assignee, its nominees, successors and/or assigns, may request in order to fully assign an convey and protect the rights of Assignee, its nominees, successors and/or assigns in the rights of Developer under the Development Agreement intended to be transferred and assigned hereby.

3. Assignee hereby accepts the foregoing assignment in accordance with the terms and conditions hereof and agrees to assume all of the rights, title, interest and obligations of Developer under the Development Agreement accruing from and after the effective date of this Assignment. All rights, title, interest, and obligations accruing under the Development Agreement prior to the effective date of this Assignment shall inure to the benefit of and be the responsibility of Assignor.

(signature page follows)


IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the day and year first above written.


WILLIAM L. CURRIN



PAUL G. MARTIN

"Assignor"


WARMINGTON BRENTWOOD ASSOCIATES, LLC,
a Delaware limited liability company

By: Warmington Homes California,
a California corporation,
its Managing Member


By:
Its:

By:
Its:

"Assignee"

CONSENT TO ASSIGNMENT

The City of Brentwood hereby consents to the foregoing Assignment effective as of the date set forth below.


Dated: _________________________ By:_____________________________________
Its:__________________________________

 

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