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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 4

Meeting Date: April 13, 2004

Subject/Title: Approve the form of a Purchase Agreements and Grant Deeds for the sale of property at Sunset Industrial Complex, CIP No. 336-3128, and authorize City Manager or his designee to execute Purchase Agreements and Grant Deeds to convey City-owned property.

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Economic Development Director

RECOMMENDATION
Approve a resolution approving the following actions: (1) approve the form of a Purchase Agreements and Grant Deeds attached to the staff report used for the sale of 21.6 acres (±) of City-owned property known as the Sunset Industrial Complex, CIP No. 336-3128, and identified as a portion of APN 018-200-008 (Subdivision Map 8588 Sunset Industrial Complex), generally located on the north side of Sunset Road between Brentwood Boulevard and Sellers Avenue; and (2) authorize the City Manager or his designee to execute the Purchase Agreements and Grant Deeds for Sunset Industrial Complex, hereby conveying real property on behalf of the City to various purchasers as identified in Resolution, or their designees, and to execute such other documents as may be needed to complete the transactions.

PREVIOUS ACTION
 City Council authorized the purchase of approximately 40 acres of property located at the northeast corner of Tresch and Sunset Roads.

 City Council authorized various consultant contracts to master-plan and prepare environmental documents for approximately 132 acres of city owned land northeast of Tresch and Sunset Roads to include a 49.2 acre Wastewater Treatment Plant, 2.7 acre Solid Waste Plant, 37.7 Sports Park, 13.3 acre Corporation Yard and a 28.4 acre Industrial Complex.

 City Council authorized a consultant contract with McGill Martin Self to prepare infrastructure improvement plan for the Sunset Industrial Complex.

 In September 2001, the Brentwood Redevelopment Agency issued Tax Allocation Bonds (TAB) to refinance existing bonds and to pay for certain redevelopment and public improvement projects. One of the top three projects identified by the Agency included funding the infrastructure improvements at the Sunset Industrial Complex with TAB proceeds.

 On June 4, 2002, the Planning Commission certified the Environment Impact Report for the Sunset Industrial Complex, and on June 6 the Notice of Determination was filed with the County.

 On July 23, 2002, the City Council adopted Ordinance 710 approving the PD Zoning for Sunset Industrial Complex, and also awarded the construction contract for the Sunset Industrial Complex Improvements Project (CIP No. 336-3128) to Teichert Construction.

 On August 13, 2002, the City Council and Redevelopment Agency approved a Reimbursement Agreement wherein the Agency would loan $3,000,000 to the City for infrastructure improvements at Sunset Industrial Complex (CIP No. 336-3128).

 On November 26, 2002, the City Council approved a sales strategy for property located at the Sunset Industrial Complex and adopt criteria for the selection of successful candidates to purchase the subject property.

 On September 23, 2003, the City Council authorized the City Manager to execute a professional services agreement with Carlson Barbee & Gibson, Inc. to prepare a Survey, Tentative Map, Final Map and related work for the Sunset Industrial Complex and amend the CIP Project # 336-3128 budget.

 On October 28, 2003, the City Council approved the Sunset Industrial Complex sales strategy criteria ranking and preliminary lot layout which included the cul-de-sac site plan.

 On November 25, 2003, the City Council and Redevelopment Agency approved resolutions amending the Reimbursement Agreement between the Brentwood Redevelopment Agency and the City of Brentwood for an additional $728,000 to fund construction of cul-de-sac improvements and traffic signal improvements for the Sunset Industrial Complex.

 On January 27, 2004, the City Council amended Planned Development Zone 56 to allow for an increase in the square footage designated for retail uses with Subareas A and B, and to allow smaller lot sizes in Subarea C, in the Sunset Industrial Complex.

 On March 9, 2004, the City Council received, as an informational item, the Final Map for Subdivision 8588.

BACKGROUND
The City purchased the 40-acre parcel off Sunset Road in 1999 for the expansion of the adjacent sports complex by 13± acres, and to implement an economic development strategy by zoning the remaining acres for industrial land use. The City intends to sell parcels within the Sunset Industrial Complex to end users. The sale revenues to the City will be then used to reimburse the City for its land and development costs, and to reimburse the Agency for paying a portion of the improvement costs. Therefore, both the City and the Agency expect to receive full reimbursement for their out-of-pocket costs associated with developing the Sunset Industrial Complex as parcels are sold. Any excess receipts from the proceeds of the sales beyond the actual costs shall be shared between the City and Agency in amounts equitable to their contributions.

The development of the Sunset Industrial Complex meets the following objectives:

1. To encourage expansion of local industrial opportunities, to create high-paying jobs within the community, to achieve the greatest return on the City and Agency’s investment, and to maximize the leveraging of tax increment.
2. To provide needed improvements to revitalize the Merged Redevelopment Project Area within the Brentwood Boulevard Corridor and the Sunset Road area.
3. To improve transportation routes and enhance circulation within the Sunset Road and Elkins Way area.

Furthermore, the Sunset Industrial Complex is a benefit to the entire community, as well as the Merged Redevelopment Project Areas, in that the proposed Sunset Area is the only area within the City’s General Plan to reasonably accommodate new industrial uses and the possible relocation of non-conforming, incompatible businesses from the City’s Land Use Planning Areas and the Brentwood Boulevard Corridor.

The Sunset Industrial Complex encompasses 26.75 acres± and will be sold in two phases. The attached map reflects fifteen parcels, totaling 21.6 acres, in the first phase of sales. These parcels range in size from 1.0 acre to 3.0 acres, with thirteen purchasers. Only one parcel is still available in the first phase. A boilerplate of the Purchase Agreement and Grant Deed are attached. All purchasers have executed a Purchase Agreement and submitted security deposits. Escrows have been opened at North American Title, and upon recordation of the second Final Map, escrows should close shortly thereafter. Prior to close of escrow, the purchasers are required to provide the City with evidence of capital capability necessary to acquire the site and to complete construction of the improvements for their business operations. The necessary benefit districts have been recorded for the subdivision, including CCRs, LLD, and CFD.

The second phase of sales, totaling 5.14 acres, are located north of Elkins Way. These parcels range in size from 1.2 acres to 2.5 acres. Only one parcel is still available in the second phase. The interested buyers in the second phase include Delta Fence and Pizzagoni Towing. Staff anticipates closing escrows for the second phase in Summer 2004.

First Phase Jeff Tamayo Town & Country Roofing
Purchasers include: Kristina Pizzagoni Reynolds Pizzagoni Towing
William Henson Henson Plumbing
Gil Hagar Five-Star Plumbing
Claude & Carol Johnson Johnson Enterprises (EcoWater)
Robert Brockman Brockman Engineering
Jim Rodda Pottery World
Jim Thorpe Thorpe Design
Craig Zickenberg/Jeff Cookson California Stone Company
Bruce Wood B. Woodmore Painting
Bob & Mark Heaney HFW Construction
Rudy & Ruben Salinas R Brothers Concrete
Susan & Neils Larsen Brentwood Batch Plant

FISCAL IMPACT
The 21.6-acre, first phase of property sales at Sunset Industrial Complex, CIP No. 336-3128, will generate approximately $4.6M in sales. The development cost of Sunset Industrial Complex is approximately $4.3M, for excess receipts of $300,000.

The 5.14-acre, second phase of property sales, located north of Elkins Way and south of the City’s Corp Yard, will be the subject of a future subdivision. The future sale of the additional 5.14 acres should generate another $1.2M in excess receipts.

The City and Agency shall be fully reimbursed for their respective financial contributions to this project, and excess receipts shall be shared between the City and Agency in accordance with the Reimbursement Agreement.

Attachments: Resolution
Map
Boilerplate Purchase Agreement
Boilerplate Grant Deed

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FOLLOWING ACTIONS (1) APPROVE THE FORM OF PURCHASE AGREEMENTS AND GRANT DEEDS USED FOR THE SALE OF 21.6 ACRES (±) OF CITY-OWNED PROPERTY KNOWN AS THE SUNSET INDUSTRIAL COMPLEX, CIP NO. 336-3128, AND IDENTIFIED AS A PORTION OF APN 018-200-008 (SUBDIVISION MAP 8588 SUNSET INDUSTRIAL COMPLEX FILED APRIL 4, 2004 IN BOOK 462 OF MAPS AT PAGES 35 THROUGH 45), GENERALLY LOCATED ON THE NORTH SIDE OF SUNSET ROAD BETWEEN BRENTWOOD BOULEVARD AND SELLERS AVENUE; AND (2) AUTHORIZE THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE SEPARATE PURCHASE AGREEMENTS AND GRANT DEEDS FOR SUNSET INDUSTRIAL COMPLEX, HEREBY CONVEYING REAL PROPERTY ON BEHALF OF THE CITY TO JEFF TAMAYO, ROBERT BROCKMAN, BRUCE WOOD, CRAIG ZICKENBERG and/or JEFF COOKSON, CLAUDE and/or CAROL JOHNSON, GIL HAGAR, WILLIAM and/or SHARON HENSON, ROBERT and/or MARK HEANEY, KRISTINA PIZZAGONI REYNOLDS, JIM RODDA, RUDY and/or RUBEN SALINAS, JIM THORPE, AND SUSAN and/or NEILS LARSEN, OR THEIR DESIGNEES, AND TO EXECUTE SUCH OTHER DOCUMENTS AS MAY BE NEEDED TO COMPLETE THE TRANSACTIONS.

WHEREAS, City Council of the City of Brentwood (“City Council”) authorized the purchase of approximately 40 acres (±) of property located at the northeast corner of Tresch and Sunset Roads (“Site”); and

WHEREAS, the City Council implemented an economic development strategy by rezoning a portion of the Site for industrial land uses to encourage expansion of local industrial opportunities, to create high-paying jobs within the community, to achieve the greatest return on the City investment, and to maximize the leveraging of tax increment; and

WHEREAS, the City Council authorized various consultant contracts to master-plan and prepare environmental documents for approximately 132 acres of city owned land northeast of Tresch and Sunset Roads to include a Wastewater Treatment Plant, a Solid Waste Plant, expanded Sports Park, a relocated Corporation Yard and the development of the Sunset Industrial Complex; and

WHEREAS, the City Council authorized a consultant contract with McGill Martin Self to prepare infrastructure improvement plan for the Sunset Industrial Complex; and

WHEREAS, in September 2001, the Brentwood Redevelopment Agency issued Tax Allocation Bonds (TAB) to refinance existing bonds and to pay for certain redevelopment and public improvement projects. One of the three top projects identified by the Agency included funding the infrastructure improvements at the Sunset Industrial Complex with TAB proceeds; and

WHEREAS, on June 4, 2002, the Planning Commission certified the Environment Impact Report for the Sunset Industrial Complex, and on June 6 the Notice of Determination was filed with the County; and

WHEREAS, on July 23, 2002 the City Council adopted Ordinance 710 approving the PD Zoning for Sunset Industrial Complex, and also awarded the construction contract for the Sunset Industrial Complex Improvements Project (CIP No. 336-3128) to Teichert Construction; and

WHEREAS, on August 13, 2002, the City Council and Redevelopment Agency approved a Reimbursement Agreement wherein the Agency would loan $3,000,000 to the City for infrastructure improvements at Sunset Industrial Complex (CIP No. 336-3128); and

WHEREAS, on November 26, 2002 the City Council approved a sales strategy for property located at the Sunset Industrial Complex and adopted criteria for the selection of successful candidates to purchase the subject property, and

WHEREAS, on September 23, 2003, the City Council authorized the City Manager to execute a professional services agreement with Carlson Barbee & Gibson, Inc. to prepare a Survey, Tentative Map, Final Map and related work for the Sunset Industrial Complex and amend the CIP Project # 336-3128 budget; and

WHEREAS, on October 28, 2003, the City Council approved the Sunset Industrial Complex sales strategy criteria ranking and preliminary lot layout which included the cul-de-sac site plan; and

WHEREAS, on November 25, 2003, the City Council and Redevelopment Agency approved resolutions amending the Reimbursement Agreement between the Brentwood Redevelopment Agency and the City of Brentwood for an additional $728,000 to fund construction of cul-de-sac improvements and traffic signal improvements for the Sunset Industrial Complex; and

WHEREAS, On January 27, 2004, the City Council amended Planned Development Zone 56 to allow for an increase in the square footage designated for retail uses with Subareas A and B, and to allow smaller lot sizes in Subarea C, in the Sunset Industrial Complex; and

WHEREAS, on March 9, 2004, the City Council received, as an informational item, the Final Map for Subdivision 8588; and

WHEREAS, Purchase Agreements and Grant Deeds between the City of Brentwood and the buyers of parcels within the Sunset Industrial Complex have been developed and are necessary to convey property from the City of Brentwood to the buyers.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood authorizes the sale of 21.6-acre (±) City-owned property at Sunset Industrial Complex, CIP No. 336-3128, and identified as a portion of APN 018-200-008 (Subdivision Map 8588 Sunset Industrial Complex filed April 4, 2004 in Book 462 of Maps at Pages 35 through 45) to various purchasers.

BE IT FURTHER RESOLVED by the City Council of the City of Brentwood, that the form of Purchase Agreements and Grant Deeds for the sale of properties at Sunset Industrial Complex are hereby approved.

BE IT FURTHER RESOLVED that the City Manager and City Clerk or their designees are authorized to execute separate Purchase Agreements and Grant Deeds for Sunset Industrial Complex, hereby conveying real property on behalf of the City to Jeff Tamayo, Robert Brockman, Bruce Wood, Craig Zickenberg and/or Jeff Cookson, Claude and/or Carol Johnson, Gil Hagar, William and/or Sharon Henson, Robert and/or Mark Heaney, Kristina Pizzagoni Reynolds, Jim Rodda, Rudy and/or Ruben Salinas, Jim Thorpe, and Susan and/or Neils Larsen, or their designees, and to execute such other documents as may be needed to complete the transactions.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 13th day of April 2004 by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN :

_____________________________
Brian Swisher
Mayor

ATTEST:

_________________________________
Karen Diaz, CMC
City Clerk/Director of Administrative Services

PURCHASE AGREEMENT
AND CITY’S OPTION TO REPURCHASE

THIS PURCHASE AGREEMENT AND CITY’S OPTION TO REPURCHASE (“Purchase Agreement”) is made as of January 15, 2004 between CITY OF BRENTWOOD, a municipal corporation, (“City”) and ______________________________ (“Purchaser”).

RECITALS

A. City is the owner of certain real property situated in Contra Costa County, California, commonly known as the Sunset Industrial Complex (“Property”) which is zoned for various industrial uses; and

B. Purchaser is the owner of ____________________ (“Business Operation”); and

C. The City wishes to sell and Purchaser wishes to purchase ___________ acres or parcel of the Property (“Site”), as described in the Legal Description attached as Exhibit A and incorporated herein by reference, to locate Purchaser’s Business Operation; and

D. Purchaser has agreed to purchase the Site for the consideration provided and under the specific terms in this Purchase Agreement and subject to City’s option to repurchase the Site under certain terms, also specified in this Purchase Agreement, and in a Good Faith Deposit and Memorandum of Understanding, dated December 5, 2003, between the City and Purchaser (“MOU”), attached as Exhibit B and incorporated herein by reference.

AGREEMENT

For good and valuable consideration as stated below, the parties agree as follows:

Section 1. Purchase and Escrow

1.01 Good Faith Deposit. The Purchaser has, prior to the execution of this Purchase Agreement by the City, delivered to the City a deposit of cash or certified check satisfactory to the City in the amount of ______________________ (the “Deposit”) as security for the performance of the obligations of the Purchaser under the terms and conditions of this Purchase Agreement. Upon execution of this Purchase Agreement by Purchaser, the Deposit becomes non-refundable unless this Purchase Agreement is terminated by the Purchaser as a direct result of the City’s failure to perform any provision of this Purchase Agreement. The non-refundability of the Deposit is contingent on a fair market appraisal sufficient for the Purchaser’s lender.

The City shall be under no obligation to pay or earn interest on the Deposit.

Purchaser and City agree that City’s economic detriment if Purchaser defaults hereunder and Purchaser’s default results in the termination of this Purchase Agreement is impracticable or extremely difficult to ascertain. Accordingly, Purchaser and City agree that the Deposit is a reasonable estimate of City’s damages if Purchaser defaults and Purchaser’s default results in the termination of this Purchase Agreement. Purchaser agrees to pay such Deposit to City as liquidated damages and not as a penalty if Purchaser defaults hereunder and Purchaser’s default results in the termination of this Purchase Agreement. If this Purchase Agreement is terminated on account of Purchaser’s default, Purchaser and City hereby instruct and agree that the Deposit, together with all interest accrued thereon, if any, shall be promptly retained by
City.

If the City is in default with respect to any material provision of this Purchase Agreement, upon termination of the Purchase Agreement by the Purchaser, the Deposit shall be promptly returned to the Purchaser by the City.

The Deposit shall be applied to the Purchase Price at the close of escrow.

1.02 Purchase Price. In accordance with and subject to all the terms, covenants and conditions of this Purchase Agreement, the City agrees to sell, and the Purchaser agrees to purchase for construction of improvements for Business Operation, the Site for the sum of ____________________________________________ (the “Purchase Price”) to be paid in cash at close of escrow.

1.03 Escrow. The City has opened an escrow with North American Title Company, as escrow agent (the “Escrow Agent”) in Brentwood, California. The date of opening of escrow (“Opening Date’) is the date the City deposited the Deposit with the Escrow Agent. The close of escrow shall mean the recordation of the grant deed (“Closing Date”). The Closing Date shall occur on or before ___________, 2004.

If this escrow has not closed within the time herein prescribed, and Purchaser and City have not agreed in writing to extend the escrow period, then upon written notice to Escrow Agent by Purchaser or City to terminate this escrow, and subject to City’s rights under Section 3 hereto, Escrow Agent is instructed, without liability therefore, to cancel and terminate this escrow and to forward all funds to City and documents held by Escrow Agent to the party depositing the same.

This Purchase Agreement constitutes the joint escrow instructions of the City and the Purchaser. The City and Purchaser shall provide such additional escrow instructions as shall be necessary and consistent with this Purchase Agreement. The Escrow Agency is hereby empowered to act under this Purchase Agreement and shall carry out its duties as Escrow Agent hereunder.

The City has deposited the Deposit with the Escrow Agent. The Purchaser shall be required to deposit with the Escrow Agent the Purchase Price for the Site, less the Deposit already in escrow. The Purchaser shall also pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Purchaser of the amount of such fees, charges and costs, prior to the Closing Date:

1. One-half the escrow fee;
2. The premium for a C.L.T.A. standard title insurance policy and all other premiums for title insurance or special endorsements requested by Purchaser;
3. Any state, county or city documentary transfer tax;
4. Any ad valorem taxes and assessments, if any, upon the Site imposed after conveyance of title; and
5. Any and all other local customary fees and costs normally chargeable to a buyer.

The City shall timely and properly execute, acknowledge and deliver a deed conveying title to the Site to the Purchaser. The City shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the City of the amount of such fees, charges and costs, prior to the Closing Date:

1. Costs necessary to place the title to the Site in condition for conveyance;
2. One-half the escrow fee;
3. Recording fees;
4. Notary fees;
5. Any ad valorem taxes and assessments, if any, upon the Site for any time prior to conveyance of title; and
6. Any and all other local customary fees and costs normally chargeable to a seller.

Upon completion of the obligations by City and Purchaser, the Escrow Agent shall record such deeds and documents when title in fact can be vested in the Purchaser in accordance with the terms and provisions of this Purchase Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law and pay any transfer tax as required by law. The Escrow Agent is authorized to:

1. Pay and charge the City and Purchaser for any fees, charges and costs payable under this Section 1.03. Before such payments are made, the Escrow Agent shall notify the City and Purchaser of the fees, charges and costs necessary to clear title and close the escrow;
2. Collect and disburse funds, deliver the Purchase Price to the City, deliver a title insurance policy to the Developer, and deliver the deed and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the City and the Purchaser; and
3. Record any instruments delivered through this escrow, to vest title in the Purchaser in accordance with the terms and provisions of this Purchase Agreement.

Any amendment of these escrow instructions shall be in writing and must be signed by both the City and the Purchaser.

All communications from the Escrow Agent to the City or the Purchaser shall be directed to the addresses and in the manner established in Section 7 of this Purchase Agreement for notices, demands and communications.

City nor the Purchaser shall be liable for any real estate commissions or brokerage fees that may arise herefrom. The City and Purchaser each represent that neither has engaged any broker, agent or finder in connection with this transaction and agree to indemnify and hold harmless the other from liability from any broker or agent claiming a fee therefrom.

Section 2. Terms and Conditions

The City and Purchaser hereby agree to the following terms and conditions:

2.01 Grant Deed. The City shall take all steps necessary for City Council approval for the execution of a grant deed to convey the Site from the City to Purchaser, and City shall deposit the grant deed for the Site with the Escrow Agent.

2.02 Pre-Development Work by City. The City shall prepare and take all steps necessary to submit the necessary applications and receive necessary tentative and final map approvals for the Property and Site, and create a legal description for the Site.

The City shall take all steps necessary to establish and record the necessary benefit assessment districts, including covenants, conditions and restrictions (“CCRs”), and assessment districts (lighting, landscaping and community facilities), for the Property and Site as appropriate and prior to Closing Date.

Purchaser acknowledges that the City shall take all steps necessary to file a subdivision map that will include the Site. Purchaser agrees to take all actions requested by the City to include the Purchaser’s Site within the subdivision map, including, but not limited to, executing the Owners Certificate, as a property owner. There shall be no cost to Purchaser for the actions requested by the City related to the filing of the subdivision map as described in this paragraph.

The City shall pay the adopted agricultural mitigation fee at the time of recordation of the Final Map.

The City shall complete installation of the public infrastructure improvements, which includes roadway, water, sewer, storm drain, joint trench, landscaping, sidewalk, curb, gutter and utility stubs, along Elkins Way and within cul-de-sacs at the Property. Curb cuts for driveways needed for the Site are expressly excluded from City responsibility and shall be the responsibility of Purchaser.

2.03 Condition of Site. The City shall deliver to Purchaser a rough graded, unimproved, buildable parcel.

2.04 Submission of Evidence of Equity Capital and Mortgage Financing. The Purchaser shall provide to the City, not later than thirty (30) days prior to the Closing Date, evidence of equity capital and mortgage financing commitments (“Capital Capability”) necessary to acquire the Site and complete construction of the improvements for the Business Operation on the Site in a form acceptable to the City. The City shall approve or disapprove the Purchaser’s evidence of Capital Capability within ten (10) business days after receipt thereof by the City.

2.05 Prohibition of Further Subdivision. The Purchaser covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns and all persons claiming under or through them, as a covenant running with the land, that no application will be submitted to the City to further subdivide the Site for a period of ten (10) years from the Closing Date for the Site. This warranty extends to future owners or parties with rights or interest in the Site for a period of ten (10) years from the date of Closing Date for the Site. The City acknowledges that it shall not consider approval of an application to subdivide the Site for a period of ten (10) years from the Closing Date for the Site.

2.06 City and other Governmental Agency Permits. Before commencement of construction or development of any buildings, structures, or other work of improvement upon the Site, the Purchaser shall, at its own expense, secure or cause to be secured any and all development approvals and permits, that may be required by the City or any other governmental agency affected by such construction, development or work. Commencement of construction is defined as having a signed contract with and mobilization of a contractor.

The Purchaser shall, at its own expense, pay any and all City application and development fees, building permit fees and other government agency fees for the construction or development of any buildings, structures or other work of improvement upon the Site, including all dry and wet utilities.

The Purchaser shall obtain building permits from the City for the construction or development of any buildings, structures or other work of improvement upon the Site within eighteen (18) months after the Closing Date. Failure to obtain a building permit within eighteen (18) months after the Closing Date shall trigger the City’s option to repurchase the Site. A reasonable extension of time may be granted by the City to Purchaser if Purchaser has submitted an application to another governmental agency other than the City that is required to issue a permit for the proposed Business Operation on the Site and Purchaser has submitted all required information and the governmental agency has not issued a required permit.

2.07 Cost of Construction of Improvements. The cost of construction and development of the Site and constructing all improvements thereon shall be fully borne by the Purchaser.

2.08 Certificate of Completion. The Purchaser shall request and obtain a Certificate of Occupancy (“Certificate”) from the City within eighteen (18) months from City’s issuance of building permits for the construction or development of any buildings, structures or other work of improvement upon the Site. Failure to request and obtain a Certificate within eighteen (18) months from City’s issuance of building permits for the Site shall trigger the City’s option to repurchase the Site. Should a multi-phased development be approved by the City during the Site’s entitlement process, a Certificate from the City for the first phase of a multi-phased development of the Business Operation on the Site will satisfy this requirement. A Certificate from the City shall be conclusive determination of satisfactory completion of construction as required by this Purchase Agreement upon the Site or the applicable portion thereof and full compliance with the terms hereof as to the Site or applicable portion thereof.

The City shall not unreasonably withhold any Certificate. If the City refuses or fails to furnish a Certificate for the Site after written request from the Purchaser, the City shall, within sixty (60) business days after receipt of such written request, provide the Purchaser with a written statement of the reasons the City refused or failed to furnish a Certificate. This statement shall also contain the City’s opinion of the action the Purchase must take to obtain a Certificate. If the City shall have failed to provide such written statement within said sixty (60) business days, the Purchaser shall be deemed entitled to the Certificate.

Such Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of the Purchaser to any holder of a mortgage or any insurer of a mortgage securing money loaned to finance the improvements or any part thereof. Such Certificate is not notice of completion as referred to in California Civil Code Section 3093.

2.09 Prohibition Against Transfer of Site, the Buildings or Structures Thereon and Assignment of Agreement. The qualifications and identify of the Purchaser are of unique and particular concern to the City, and it is because of such qualifications and identity that the City has entered into this Purchase Agreement with the Purchaser. This Purchase Agreement may be terminated by the City prior to the Closing Date if there is any significant change (voluntary or involuntary) in the ownership, membership, management or control of the Purchaser.

After execution of this Purchase Agreement by the parties and prior to the issuance by the City of a Certificate pursuant to Section 2.08 (“Option to Repurchase Period”), the Purchaser shall not, except as expressly permitted by this Purchase Agreement, sell, transfer, convey, or assign the whole or any part of the Site or the buildings or improvements thereon without the prior written approval of the City. This prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Site or to prohibit or restrict the leasing of any unit when said improvements are completed. Sale, transfer, conveyance or assignment of the whole or any part of the Site or the buildings or improvements thereon by the Purchaser without the prior written approval of the City shall trigger the City’s option to repurchase the Site.

2.10 Use of Site. Purchaser covenants and agrees for itself that during construction and for a period of three (3) years from the Closing Date, the Purchaser shall devote the Site to the uses(s) specified in the Purchaser’s purchase proposal dated June 9, 2003, attached hereto as Exhibit C and incorporated herein by this reference.


Section 3. Consideration for City’s Option to Repurchase Site

3.01 Option to Repurchase. Purchaser hereby acknowledges consideration for the City’s option to repurchase the Site. The City shall have the right, at its option, to repurchase the Site during the Option to Repurchase Period if:

a. Purchaser fails to obtain building permits from the City for the construction of the improvements on the Site within eighteen (18) months after the Closing Date, pursuant to Section 2.06 herein, without prior written consent for a reasonable extension of time granted by the City;
b. Purchaser fails to obtain a Certificate from the City for the completion of the improvements on the Site within eighteen (18) months from City’s issuance of building permits for said improvements, pursuant to Section 2.08 herein, without prior written consent for a reasonable extension of time granted by the City; or
c. Purchaser sells, assigns, disposes or transfers, the whole or any portion of or any interest in the Site or the buildings or improvements thereon, after execution of this Purchase Agreement by the parties and prior to the issuance by the City of a Certificate pursuant to Section 2.09 herein, without the prior written consent of the City.

To exercise its right to repurchase, the City shall pay to Purchaser in cash or other valuable consideration:

a. The Purchase Price of the Site, plus
b. The value of the fixed real estate improvements existing on the Site at the time of repurchase, based on a fair market appraisal, less
c. Any liens on the Site and any unpaid assessments, less
d. At the option of the City, the cost to return the Site to its original condition should improvements, at the sole discretion of the City, be detrimental to the re-use and re-sale of the Site.

The City’s option to repurchase the Site shall terminate upon issuance of a Certificate from the City which shall be conclusive determination of satisfactory completion of construction of the improvements for the Business Operation on the Site or the applicable phased portion thereof as required by this Section 3. A reasonable extension of time may be granted by the City to Purchaser if Purchaser has submitted an application to another governmental agency other than the City that is required to issue a certificate of completion of the improvements for the Business Operation on the Site and Purchaser has submitted all required information and the governmental agency has not issued a required certificate of completion.

Section 4. Representations and Warranties

City warrants that City is the owner of the Site and has marketable and insurable fee simple title to the Site clear of restrictions, leases, liens, and other encumbrances, except as permitted in the Purchase Agreement. City shall convey title to the Site by grant deed. During the Option to Repurchase Period, Purchaser will not encumber the Site in any way nor grant any property or contract right relating to the Site without the prior written consent of City. City also warrants that it has not added or placed any prohibited substances or hazardous materials on the Site while it owned the Site. The City cannot make any representations concerning contaminants prior to its ownership. The Purchase Price of the Site being acquired in this transaction reflects the fair market value of the Site without the presence of contamination that the City is aware of at the time of sale. If the Site being acquired is found to be contaminated by the presence of hazardous waste which requires mitigation under Federal or State law and were placed there by an entity other than the City, the Purchaser may elect to recover its clean-up costs from those who caused or contributed to the contamination.

Performance of this Purchase Agreement constitutes the entire consideration for said document and shall relieve the City of all further obligation or claims on this account, or on account of the location or grade of the Site and that no obligation other than those set forth herein will be recognized.

Section 5. Time of Essence

Time is of the essence for this Purchase Agreement. If the City’s option to repurchase is not exercised in the manner provided in Section 3 before the expiration of the Option to Repurchase Period, City shall have no interest in the Site and the Option may not be revived by any subsequent payment or further action by City.


Section 6. Quitclaim Deed

If this Purchase Agreement is terminated, Purchaser agrees, if requested by City, to execute, acknowledge, and deliver a quitclaim deed to City with ten (10) business days after termination and to execute, acknowledge, and deliver any other documents required by any title company to remove the cloud of this option from the Site.

Section 7. Notices

All notices, demands, requests, exercises, and other communications under this Purchase Agreement by either party shall be in writing and:

a. sent by United States certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States mail, or

b. sent by nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with that courier, or

c. sent by telecopy or similar means if a copy of the notice is also sent by United States certified mail; in which case notice shall be deemed delivered on transmittal by telecopier or other similar means, provided that a transmission report is generated that reflects the accurate transmission of the notices as follows:

City: City of Brentwood
Attn: Economic Development Director
150 City Park Way
Brentwood, CA 94513-1396

Purchaser:


These addresses may be changed by written notice to the other party, provided that no notice of a change of address shall be effective until actual receipt of that notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.

Section 8. Transfer

Purchaser may not assign or transfer this Purchase Agreement and the rights under it without City’s prior written consent.

Section 9. Litigation Costs

If any action or any other proceeding, including arbitration or action for declaratory relief, is brought for the interpretation or enforcement of the Purchase Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with this Purchase Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs, in addition to any other relief to which the party may be entitled. “Prevailing party” shall include without limitation:

a. a party who dismisses an action in exchange for sums allegedly due;
b. the party who receives performance from the other party of an alleged breach of covenant or desired remedy where that is substantially equal to the relief sought in an action; or
c. the party determined to be the prevailing party by a court of law.



Section 10. Memorandum of Understanding

City shall record immediately following the execution of this Purchase Agreement by Purchaser, the Purchase Agreement and previously executed Memorandum of Understanding Agreement, attached to this Purchase Agreement as Exhibit B, with the official records of Contra Costa County, California.

Section 11. Survival

The terms of this Purchase Agreement shall survive the close of escrow of the Site. If there is a contradiction between this Purchase Agreement and any other agreement between the parties, this Purchase Agreement shall control.

Section 12. Successors

This Purchase Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assignees of the parties to this Purchase Agreement.

Section 13. Waivers

No waiver of any breach of any covenant or provision in this Purchase Agreement shall be deemed a waiver of any other covenant or provision in this Purchase Agreement, and no waiver shall be valid unless in writing and executed by the waiving party.

Section 14. Construction

Section headings are solely for the convenience of the parties and are not a part of and shall not be used to interpret this Purchase Agreement. The singular form shall include the plural and vice versa. This Purchase Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to sections are to this Purchase Agreement.

Section 15. Further Assurances

Whenever requested by the other party, each party shall execute, acknowledge, and deliver all further conveyances, agreements, confirmations, satisfactions, releases, power of attorney, instruments of further assurance, approvals, consents, and all further instruments and documents as may be necessary, expedient, or proper to complete any conveyances, transfers, sales, and agreements covered by this Purchase Agreement, and to do all other acts and to execute, acknowledge and deliver all requested documents to carry out the intent and purpose of this Purchase Agreement.

Section 16. Third-Party Rights

Nothing in this Purchase Agreement, express or implied, is intended to confer on any person, other than the parties to this Purchase Agreement and their respective successors and assigns, any rights or remedies under or by reason of this Purchase Agreement.

Section 17. Integration

This Purchase Agreement contains the entire agreement between the parties, and expressly supersedes all previous or contemporaneous agreements, understandings, representations, or statements between the parties respecting the sale of Site and also the City’s option to repurchase the Site.

Section 18. Counterparts

This Purchase Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

Section 19. Amendment

This Purchase Agreement may not be amended or altered except by a written instrument executed by City and Purchaser.

Section 20. Partial Invalidity

Any provision of this Purchase Agreement that is unenforceable or invalid or the inclusion of which would adversely affect the validity, legality, or enforceability of this Purchase Agreement shall be of no effect, but all the remaining provisions of this Purchase Agreement shall remaining full force.

Section 21. Exhibits

All attached exhibits are incorporated in this Purchase Agreement by reference.


Section 22. Authority of Parties

All persons executing this Purchase Agreement on behalf of any party to this Purchase Agreement warrant that they have the authority to execute this Purchase Agreement on behalf of that party.

Section 23. Governing Law

The validity, meaning and effect of this Purchase Agreement shall be determined in accordance with California laws with venue in Contra Costs County.

The parties have executed this Purchase Agreement as of the date first above written.

PURCHASER CITY OF BRENTWOOD

____________________________ _____________________________
Name: John Stevenson, City Manager

____________________________
Name:


ATTEST:

____________________________
Karen Diaz, CMC, City Clerk

APPROVED AS TO FORM:

____________________________
Dennis Beougher, City Attorney

Exhibits: A. Legal Description of Site
B. Memorandum of Understanding
C. Purchaser’s Purchase Proposal

EXHIBIT A
Legal Description of Site

EXHIBIT B
MEMORANDUM OF UNDERSTANDING


EXHIBIT C
PURCHASER’S PURCHASE PROPOSAL

RECORDING REQUESTED BY:
City of Brentwood
City Clerk
150 City Park Way
Brentwood, CA 94513

WHEN RECORDED MAIL TO:
City of Brentwood
City Clerk
150 City Park Way
Brentwood, CA 94513

SPACE ABOVE THIS LINE FOR RECORDERS USE

MAIL TAX STATEMENTS TO:
SAME AS ABOVE
EXEMPT PURSUANT TO
REVENUE TAX CODE 11922
Subdivision 8588
Project: Sunset Industrial Complex
GRANT DEED

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF BRENTWOOD, A MUNICIPAL CORPORATION, (Grantor) hereby grant(s) to _____________________________________________________________
(Grantee) the real property in the City of Brentwood, County of Contra Costa, State of California, described as

EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF.

Prohibition of Further Subdivision. The Grantee covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns and all persons claiming under or through them, as a covenant running with the land, that no application will be submitted to the City of Brentwood to further subdivide the real property described in Exhibit A, attached hereto and made a part hereof, for a period of ten (10) years from the recordation of this Grant Deed. This warranty extends to future owners or parties with rights or interest in the real property for a period of ten (10) years from the date of recordation of this Grant Deed. The City of Brentwood acknowledges that it shall not consider approval of an application to subdivide the real property for a period of ten (10) years from the recordation of this Grant Deed.

Option to Repurchase. For good and valuable consideration, Grantor and Grantee have entered into a Purchase Agreement and City’s Option to Repurchase dated ________________, wherein the Grantee has agreed to grant the Grantor an option to repurchase the real property described in Exhibit A. The City shall have the right, at its option, to repurchase the real property during the Option to Repurchase Period. The City’s option to repurchase the real property shall terminate upon issuance of a Certificate from the City which shall be conclusive determination of satisfactory completion of construction of the improvements for the Business Operation on the real property.

Dated: __________________ GRANTOR:


CITY OF BRENTWOOD,
A MUNICIPAL CORPORATION

__________________________________
 

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