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CITY COUNCIL AGENDA ITEM NO. 07


Meeting Date: July 10, 2001

Subject/Title: Brookfield Homes Reimbursement Agreement for Roddy Ranch Non Potable Waterline

Submitted by: Engineering: J. Stevenson,/B. Bornstein

Approved by: Jon Elam, City Manager



RECOMMENDATION
Approve a Resolution approving the Brookfield Homes Reimbursement Agreement for construction of the Roddy Ranch Non-Potable Waterline (“Agreement”), and authorizing the City Manager to execute the Agreement.

PREVIOUS ACTION
On March 9, 1993, by Resolution No. 93-27, the City Council of the City of Brentwood approved the Tentative Map of Subdivision 7705, with conditions.

On February 27, 2001, by Resolution No. 2245, the City Council of the City of Brentwood approved the Roddy Ranch Non-Potable Waterline Reimbursement Agreement.

On April 10, 2001, the City Council approved Resolution No. 2265 accepting Roddy Ranch’s offer of dedication of a pump station and non-potable waterline located in Deer Valley Road, Balfour Road, and Fairview Avenue right-of-way, and directing the City Clerk to file a Notice of Completion with the County Recorder.

BACKGROUND
Roddy Ranch, LLC, constructed an extension to the City’s non-potable water system along Deer Valley Road, Balfour Road, and Fairview Avenue. The extension includes the construction of a pump station located adjacent to Fairview Avenue at the ECCID canal. An appropriately sized pipeline was constructed from this pump station northerly in Fairview Avenue to Balfour Road and westerly in Balfour Road to Deer Valley Road. This pipeline will initially be used to supply ECCID surface water to Roddy Ranch, SunCal, and Brookfield Homes, for irrigation purposes. Ultimately, this line will be utilized by Roddy Ranch, SunCal, Brookfield Homes, and SPA ‘G’ and ‘H’ areas and will be connected to the new Wastewater Treatment Plant to distribute blended tertiary treated water for irrigation purposes.

The Roddy Ranch system is an integral part of the City’s overall non-potable water system. The City wide system will ultimately be capable of being fed from the Wastewater Treatment Plant, the newly installed pump station supplying ECCID surface water, and some of our potable wells that we prefer not to use for potable purposes, such as well 10A. This system sets up the infrastructure to be able to sell our tertiary water to these westerly projects. We will pay ECCID for the surface water we pump and we will bill the end users for what they use. This gives the City the opportunity to introduce a blending of the tertiary water into ECCID surface water and reuse it for irrigation to comply with the State Water Quality Control Board Wastewater Treatment Plant Expansion permit.

Brookfield Homes is required to utilize non-potable water to irrigate the golf course as well as some of the landscaping within the development per the conditions of approval for tentative subdivision map 7705. Through this agreement and the Roddy Ranch reimbursement agreement obligation, Brookfield Homes agrees to pay Roddy Ranch, LLC the fair-share costs to install the non-potable waterline system and satisfy the tentative map conditions of approval. Further, the City agrees to provide Brookfield Homes non-potable water to irrigate the Golf Course continuously at a cost not to exceed ECCID raw water charges plus the cost of electricity for pumping this water, a waterline/facility maintenance/replacement cost, and an administrative cost of 2% of the costs stated above.

The attached Agreement, if approved by Council, requires Brookfield Homes to pay Roddy Ranch, LLC back for its proportional share of the cost of the facility. Brookfield Homes is prepared to pay its proportional share to Roddy Ranch with the execution of this agreement and will be allowed to tie into this system to receive non-potable water for its irrigation, mainly the golf course. The payment of fees by the developer will satisfy the Tentative Map condition of approval to install a non-potable water system to irrigate landscaping and the golf course within the Subdivision Number 7705.

Attachments:
Resolution
Agreement
Site Map

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE BROOKFIELD HOMES REIMBURSEMENT AGREEMENT FOR RODDY RANCH NON-POTABLE WATERLINE (“AGREEMENT”), AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT

WHEREAS, On March 9, 1993, by Resolution No. 93-27, the City Council of the City of Brentwood approved the Tentative Map of Subdivision 7705, with conditions; and

WHEREAS, On February 27, 2001 by Resolution No. 2245, the City Council of the City of Brentwood approved the Roddy Ranch Non-Potable Waterline Reimbursement Agreement; and

WHEREAS, On April 10, 2001, the City Council approved Resolution Number 2265 accepting Roddy Ranch’s offer of dedication of a pump station and non-potable waterline located in Deer Valley Road, Balfour Road, and Fairview Avenue right-of-way, and directing the City Clerk to file a Notice of Completion with the County Recorder; and

WHEREAS, Roddy Ranch constructed an extension to the City’s non-potable water system along Deer Valley Road, Balfour Road, and Fairview Avenue. The extension includes the construction of a pump station located adjacent to Fairview Avenue at the ECCID canal; and 

WHEREAS, these non-potable waterline improvements are an integral part of the non-potable water system master plan; and

WHEREAS, Brookfield Homes is required to utilize non-potable water to irrigate the golf course as well as some of the landscaping within the development per the conditions of approval for Tentative Subdivision Map 7705; and

WHEREAS, Through this agreement and the Roddy Ranch reimbursement agreement obligation Brookfield Homes agrees to pay Roddy Ranch the fair-share costs to install the non-potable waterline system and satisfy the tentative map conditions of approval; and

WHEREAS, Brookfield Homes is prepared to pay its proportional share to Roddy Ranch with the execution of this agreement and will be allowed to tie into this system to receive non-potable water for its irrigation, mainly the golf course, and

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve the Brookfield Homes Reimbursement Agreement for Roddy Ranch Non-Potable Waterline (“Agreement”), and authorizes the City Manager to execute the Agreement.

PASSED, APPROVED AND ADOPTED
by the City Council of the City of Brentwood at a regular meeting on the 10th day of July 2001 by the following vote:

REIMBURSEMENT AGREEMENT

THIS AGREEMENT (“Agreement”) is entered into at Brentwood, California, this ____th day of _____________, 2001, by and between the CITY OF BRENTWOOD, a municipal corporation (“City”) and BROOKFIELD HOMES BAY AREA INC., a California corporation (“Developer”). 

A. Developer is the owner of that certain real property located in the City of Brentwood, County of Contra Costa, State of California, commonly known as Tentative Map 7705, consisting of approximately 441 acres (“Property”), as shown in the attached Exhibit A, 

B. Various public improvements are required to be constructed as a condition of Developer's approval of new development on the Property. One of these public improvements is a non-potable water line within the Balfour Road right of way that was constructed by Roddy Ranch, LLC ("Roddy Ranch Line"). Developer is required to pay 25% of the total cost of the Roddy Ranch Line as its pro-rata share of its costs, as described in the Non-Potable Waterline Reimbursement Agreement between the City and Roddy Ranch LLC, dated February 27, 2001. 

C. In connection with the development of the Property, Developer intends to pay for the design engineering of certain needed public improvements for the Property, including, the Roddy Ranch Line.

D. The City has accepted the Roddy Ranch Line and Developer has access to this public improvement. Developer desires clarification of its rights to East Contra Costa Irrigation District ("ECCID") water and the City's tertiaary non-potable water.

E. Developer is now ready to pay an amount acceptable to the City for its pro-rata share of the Roddy Ranch Line, subject to the terms of this Agreement. 

NOW, THEREFORE, it is agreed as follows: 

Section 1. Payment

As the Roddy Ranch Line was designed to benefit Developer's Property and pursuant to the Brentwood Municipal Code Chapter §16.120 and the Brentwood Development Fee Program, Developer is required to pay its pro-rata share of the Roddy Ranch Line or $584,941.

City acknowledges receipt of Lien Releases for all construction work and labor completed for the Roddy Ranch Line and agrees to defend and hold harmless Developer from any and all claims, disputes, lawsuits, and causes of actions related to the construction and its payment of its pro-rata share of the Roddy Ranch Line. 

Section 2. City Obligations

City shall reimburse Developer by providing Water Fee Credits, as determined in the City of Brentwood Development Fee Program 2000-2001, in the amount of one half of Developer's actual payment for Roddy Ranch Line, after payment is finalized pursuant to Paragraph 1. 


City agrees to cooperate with the Developer in its efforts to vacate all East Contra Costa Irrigation District ("ECCID") easements that are deemed no longer required by the ECCID, including the pump station easement adjacent to the new fire station, located on John Muir Parkway. 

Section 3 . Developer's Share

Developer's share of the costs of the construction and design of the Roddy Ranch Line shall be deemed contributed upon the City's acceptance of payment described in Paragraph 1. Developer shall be provided a right to use the Roddy Ranch Line as a result of this Agreement, but not any ownership rights shall accrue.

Section 4. Water Rights 

City agrees to charge Developer for its non-potable teritiary water the same rate as the ECCID charges for its water plus the cost of the City's electricity charge for pumping this water, a waterline/facillity maintenance/replacement cost, and an administrative cost of 2 percent of the costs stated above.

City agrees to provide Developer with either ECCID water, combination of City's non-potable tertiary water and ECCID, or only City water if the non-potable Roddy Ranch Line is interrupted continuously for a period of more than 48 hours.

Section 5. City’s Prior Approval of Water Service Connection & Water Meter Locations

Developer agrees to seek City's approval from appropriate City staff prior to the installation or placement of all water meters and service connections Landscape and Lighting District, parkway, linear park, and all park facilities.

Section 6. Disputes

Disputes arising under this Agreement shall be filed with the City Engineer, who shall be authorized to resolve such disputes. Any decision or resolution of such dispute made by the City Engineer with respect to this Agreement may be appealed to the City Council. Any such appeal to the City Council must be made in writing and addressed to the City Clerk. A final action or decision of the City Council shall be required before legal action pursuant to this Agreement may be instituted. Notwithstanding the foregoing, either party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, subject to the terms of this Agreement. 

Section 7. Successors in Interest

The terms, covenants, and conditions of this Agreement shall apply to, and shall bind the heirs, successors, executors, administrators, and assigns of the parties, including the Developer, Troon Golf LLC or any successor of the golf course ownership installed on the Property. 



Section 8. Costs and Attorney's Fees

Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of the agreement. The above $5000 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this agreement that neither party shall have to pay the other more than $5000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.

Section 9. Mediation

Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.

The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.

Section 10. Arbitration

After mediation above, and upon agreement of the parties, any dispute or claim arising out of or relating to this agreement may be settled by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by the parties.

Section 11. Applicable Law

The laws of the State of California shall govern the interpretation and enforcement of this Agreement.

Section 12. Counterparts and Exhibits

This Agreement is executed in duplicate counterparts, each of which is deemed to be an original. This Agreement and its Exhibits constitute the entire understanding and agreement of the parties. This Agreement and its Exhibits integrate all of the terms and conditions mentioned herein or incidental hereto, and constitute the entire understanding of the parties with respect to the subject matter hereof, and all prior written agreements, understandings, representations, and statements are terminated and superseded by this Agreement.

THIS AGREEMENT is executed as of the date and year first above written.

CITY OF BRENTWOOD

By: __________________
Jon Elam, City Manager

Attest:

_________________
Karen Diaz, CMC, City Clerk

Approved as to form:

____________________
Dennis Beougher, City Attorney 

DEVELOPER
BROOKFIELD HOMES
BAY AREA, INC

By:____________________
Kevin Pohlson
Vice President

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