CITY COUNCIL AGENDA ITEM NO.
Meeting Date: December 11, 2001
Subject/Title: Subdivision 8344, Brentwood Lakes Unit #10
Final Map Acceptance
Submitted by: Engineering: B. Grewal/D. Boskovic
Approved by: John E. Stevenson, City Manager
Approve the Final Map of Subdivision No. 8344, Brentwood Lakes Unit #10, Brookfield Homes, located north of Balfour Road and west of Concord Avenue, accept the improvement security; approve three agreements (Subdivision Improvement Agreement, Pond Maintenance Agreement, and Agreement for Golf Course Public Play); and authorize the Mayor and City Clerk to execute all documents related to this final map and associated agreements.
On March 9, 1993, by Planning Commission Resolution No. 93-27, the Planning Commission approved Tentative Subdivision Map No. 7705, with conditions.
The Final Map is located north of Balfour Road and west of Concord Avenue. This Final Map has been checked for conformance with the approved Tentative Map and Conditions of Approval. The developer has executed a Subdivision Improvement Agreement, the appropriate improvement security (Faithful Performance and Labor & Materials Bonds No. 929211935 for $764,479.00) has been posted, and offers of dedication for the appropriate roadways and easements have been made.
In order for the Final Map to be recorded, the Council needs to approve both the Final Map and the Subdivision Improvement Agreement, accept the offers of dedication as shown on the map subject to acceptance of the improvements, accept the improvement security, and authorize the Mayor and City Clerk to execute the Subdivision Improvement Agreement.
Two other agreements are required to satisfy the Conditions of Approval. In order to satisfy the requirement that the developer assume maintenance and all related drainage responsibilities for five golf course ponds and detention basins, the attached agreement was approved by the parties for recording with the final map.
The Conditions of Approval as well as the Agreement for Golf Course Public Play further required that if the golf course ever became private that at least 20% of available tee times be available for the public. The tee times shall be equitably distributed throughout tee times available within each month.
The developer is responsible for necessary repairs for any material or workmanship defects to subdivision improvements for a period of 12 months following acceptance of the improvements for maintenance. The City will then incur costs, the amount of which is unknown at this time, associated with street sweeping and necessary repairs to streets and/or utilities. Lighting and Landscape Maintenance District 97-1 has been formed for this subdivision and will be responsible for the street lighting and landscape maintenance.
Subdivision Improvement Agreement
Pond Maintenance Agreement
Agreement For Golf Course Public Play
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FINAL MAP OF SUBDIVISION NO. 8344, BRENTWOOD LAKES UNIT #10, BROOKFIELD HOMES, LOCATED NORTH OF BALFOUR ROAD AND WEST OF CONCORD AVENUE, ACCEPTING THE OFFERS OF DEDICATION SHOWN THEREON SUBJECT TO ACCEPTANCE OF IMPROVEMENTS, ACCEPTING THE IMPROVEMENT SECURITY, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT, POND MAINTENANCE AGREEMENT, AND AGREEMENT FOR GOLF COURSE PUBLIC PLAY AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SAME
WHEREAS, on March 9, 1993, by Planning Commission Resolution No. 93-27, the Planning Commission approved Tentative Subdivision Map No. 7705, with conditions; and
WHEREAS, Final Map No. 8344 showing 39 lots has been prepared for this subdivision; and
WHEREAS, City staff has checked the Final Map for conformance with the approved Tentative Map and the Conditions of Approval dated March 9, 1993, and finds that the Final Map is ready for approval.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve the Final Map for Subdivision No. 8344, Brentwood Lakes Unit #10, and that the offers of dedication shown thereon are hereby accepted subject to acceptance of improvements.
BE IT FURTHER RESOLVED that the Subdivision Improvement Agreement, Pond Maintenance Agreement, and Agreement for Golf Course Public Play are hereby approved, that the improvement security accompanying the Subdivision Improvement Agreement is hereby accepted, and that the Mayor and City Clerk are hereby authorized to execute said Subdivision Improvement Agreement, Pond Maintenance Agreement, and the Agreement for Golf Course Public Play.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 11th day of December 2001 by the following vote:
This document is recorded for the
benefit of the City of Brentwood
and is entitled to be recorded free
of charge in accordance with
Section 6103 of the Government Code.
After Recordation, Mail To:
Office Of The City Attorney
150 City Park Way
Brentwood, CA 94513
(Brentwood Lake Unit 10)
THIS AGREEMENT, made and entered into this ____ day of _________ 200_, by and between the CITY OF BRENTWOOD, a municipal corporation of California, hereinafter referred to as “CITY” and _________________________________________, hereinafter referred to as “SUBDIVIDER”;
R E C I T A L S:
WHEREAS, SUBDIVIDER is the owner and/or developer of that certain tract of land, more particularly described as Lot 10 of Subdivision 8323 filed in Book 421 of Maps Page 1, situated in the City of Brentwood, County of Contra Costa, State of California, generally known and described as “Subdivision 8344 Brentwood Lake Unit 10”; and
WHEREAS, SUBDIVIDER’S application for vesting tentative map 7705 was approved by the City of Brentwood Planning Commission on March 9, 1993, subject to various conditions; and
WHEREAS, SUBDIVIDER has presented to CITY for approval a final subdivision map entitled “Subdivision 8344 Brentwood Lake Unit 10” dated ___________ hereinafter referred to as “Map” and incorporated herein by this reference; and
WHEREAS, SUBDIVIDER has requested approval of the Map prior to the construction and completion of improvements; and
WHEREAS, said Map and subdivision of land designates streets, easements and public ways for the CITY, and SUBDIVIDER proposes to dedicate land set forth in the map to the CITY; and
WHEREAS, as a condition precedent to accepting this offer of dedication by SUBDIVIDER, CITY requires the improvements of public right of way, installation or extension of certain CITY services at SUBDIVIDER sole expense and certain protection for the CITY on behalf of the public; and
WHEREAS, CITY desires to assure that said proposed improvements will be done in a good and workmanlike manner, in accordance with the Conditions of Approval for “Subdivision 8344 Brentwood Lake Unit 10” approved by the CITY on March 9,1993, and for all other public improvements, in accordance with the laws now in force and effect in the City of Brentwood, California, particularly, but not exclusively, Titles 12, 13, 14, 15, and 16 of the Brentwood Municipal Code.
NOW, THEREFORE, for and in consideration of the approval of the Map and the acceptance of the dedications offered therein, and in order to insure satisfactory performance by SUBDIVIDER of SUBDIVIDER’S obligations under tentative map conditions of approval, the Subdivision Map Act, and the Brentwood Municipal Code, the parties agree as follows:
1. Performance of Work. SUBDIVIDER shall, at its own cost and expense, do and perform, or cause to be done or performed, in a good and workmanlike manner, all of the work and improvements, within and/or outside the subdivision, which are shown on the Map, or on improvement plans, profiles, and specifications which have been submitted to the City Engineer or his authorized representative or may hereafter be so submitted, as finally approved, or which improvements are required as conditions of approval of the subdivision by the CITY, or are required to be done by any provision of law as a condition of said subdivision. Said improvements include, but are not limited to curbs, gutters, and sidewalks, grading, signing and striping, fiber optics, pavements, water systems, joint trench, fire hydrants, sound wall, driveway approaches and pedestrian crosswalks, storm and sanitary sewers, underground utilities, signal improvements, street lighting, roadway improvements, landscaping, survey monuments, and all appurtenant improvements. Said plans and specifications are filed in the Office of the City Engineer as “Subdivision 8344 Brentwood Lake Unit 10 Improvements”, including Supplemental Conditions and Technical Specifications.
2. Standards. All work to be performed hereunder shall be done to the satisfaction of the City Engineer All Improvements have been shown in detail upon the plans, profiles, and specifications that have been prepared by engineers and/or landscape architects acting for SUBDIVIDER. Said plans, profiles, and specifications have been submitted to and approved by the City Engineer for his approval. No work on said Improvements shall commence until said plans, profiles, and specifications have been submitted to and approved by City Engineer for all other Improvements. Improvements shall be constructed in accordance with said plans, profiles, and specifications and SUBDIVIDER shall do, or cause to be done, all work and furnish all materials necessary in the opinion of the City Engineer and on his order, to complete the Improvements in accordance with said plans, profiles, and specifications, or with any changes required or ordered by the City Engineer, which in his opinion are necessary or required to complete the work. All costs of checking said plans, profiles, and specifications, and of all inspections of the work have been or shall be paid by SUBDIVIDER. Any approval under this section does not relieve SUBDIVIDER, or its engineers or landscape architects from liability under Section 16 herein.
Improvements and methods of installation in CITY right of way shall, at a minimum, meet the standards as set forth in the City’s latest Standard Plans and Specifications and in compliance with the latest edition of the Engineering Procedures Manual requirements which documents are incorporated herein by this reference, and all provisions of the Brentwood Municipal Code relating to construction in effect on the date hereof. Direct buried cable of any utility company (PG&E, Pacific Bell, AT&T, etc.) shall not be allowed. Conduit must be installed at the expense of SUBDIVIDER.
3. Soils and Geologic Tests. SUBDIVIDER shall cause to be made at SUBDIVIDER’S cost and expense, soils, and geologic tests by a qualified civil engineer and shall file, or cause to be filed a report or reports satisfactory to the City Engineer, indicating gradation, bearing and resistance value of soils within the subdivision and off-tract Improvements, if any, and compliance with the latest edition of the Engineering Procedures Manual requirements, and setting forth recommendations for or constraints on the nature of required Improvements and for development of each lot or Improvement. All clearing and earthwork shall be accomplished in accordance with the plans and required recommendations of the soils report under the supervision of the Soils Engineer. The SUBDIVIDER shall also cause to be made, at SUBDIVIDER’S cost and expense, all compaction tests necessary to determine that the utility trenches have been satisfactorily compacted. The SUBDIVIDER shall provide a soils engineer’s certified letter of compliance, verifying that the earthwork has been completed in accordance with the plans and recommendations of the soils report.
4. Time of Commencement and Completion. Prior to commencement of work, SUBDIVIDER shall obtain all required permits for grading and/or removal of major vegetation from CITY in accordance with the Brentwood Municipal Code and from other jurisdictional agencies. The permits may be phased by the applicant to correspond to the different phases of project construction. Unless otherwise approved by the CITY, all Improvements shall be constructed and approved by the City Engineer prior to occupancy of any building within the area of the Map.
5. Time of Essence. Time is of the essence of this agreement. The work and Improvements required by this Agreement to be completed by the SUBDIVIDER shall be completed within one (1) year of the above-mentioned date of this Agreement. In any event, the City Engineer may extend the time for completion of Improvements hereunder, upon good cause being shown by the SUBDIVIDER. Any such extension may be granted without notice to the SUBDIVIDER’S surety, any extension so granted shall not relieve surety’s liability on the bond to secure the faithful performance of this Agreement.
6. Payment of Costs. Without limitation, SUBDIVIDER shall pay, or cause to be paid, all costs and expenses related to or arising from the performance of any work to complete Improvements hereunder, including but not limited to, payment for any materials, provisions, and other supplies used in, upon, for, or about said work, and for any work or labor thereon of any kind, and for amounts due under the Unemployment Insurance Act of the State Of California, with respect to such work or labor.
7. Off-Site Improvements. Without limitation, SUBDIVIDER shall pay, cause to be paid, or reimburse, CITY for all costs and expenses related to arising from the performance of any work to complete Improvements, hereunder, including, but not limited to, payment for any materials. provisions, labor, other supplies used in, upon for, or about costs incurred by the CITY. Such costs and expenses shall also include, but not limited to, any engineering, plans and specifications, city personnel or consultant costs to prepare right of way maps and related documents, construction management, escrow payments, contract administration, encroachment permit costs, utility relocation costs, and legal fees.
SUBDIVIDER shall also construct and reimburse CITY for all costs and expenses related to arising from the performance of any work hereunder, including, but not limited to, payment for any materials, provisions, labor, other supplies used in, upon for, or about costs incurred by the CITY or SUBDIVIDER’S general contractor in connection with off-site Improvements, if any. Costs and expenses shall also include, but not limited to, any engineering, plans and specifications, city personnel or consultant costs to prepare right of way maps and related documents, construction management, escrow payments, contract administration, encroachment permit costs, utility relocation costs, and legal fees.
8. Acceptance of Work. The City Engineer or his representative shall have the right to reject any and all work to be performed under this agreement if such work does not conform, in his or his representative’s sole judgment, with the plans, profiles, and specifications mentioned herein and with the ordinances and standards of the CITY. Final acceptance of the Improvements shall be by the City Council.
9. Warranty of Plans. Notwithstanding the fact that SUBDIVIDER’S plans, profiles, and specifications, completion of work, and other acts to be performed hereunder are subject to approval by the CITY, it is understood and agreed that any approval by the CITY shall in no way relieve SUBDIVIDER of satisfactorily performing said work or its obligations hereunder. SUBDIVIDER warrants that the plans, profiles, and specifications submitted shall conform as a minimum to the City Standard Plans and Specifications and to applicable provisions of the Brentwood Municipal Code in effect as of the date hereof, and that they are adequate to accomplish the work in a good and workmanlike manner, and in accordance with sound construction practices.
10. Repairs and Replacement. SUBDIVIDER shall replace or have replaced, or repair or have repaired Improvements and monuments shown on the Map and/or Improvement Plans which have been destroyed or damaged prior to final acceptance of completed work by the City Council. SUBDIVIDER shall also repair or have repaired, replace or have replaced, or pay to the CITY the entire cost of replacement or repairs of any and all property damaged or destroyed, by reason of any work done hereunder, prior to final acceptance of the completed work by the City Council, whether such property be owned by the United States or any agency or political subdivision thereof, or by the CITY or by any public or private corporation, or be any person whomsoever, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer.
SUBDIVIDER shall repair, or cause to be repaired to the satisfaction of the City Engineer, any damage to the utilities systems, concrete work or street paving or other Improvements shown on the Map and/or the approved Improvements plans that may occur after installation prior to final acceptance of the completed work.
11. Warrant. Without limiting the foregoing paragraph, SUBDIVIDER expressly warrants and guarantees all work performed hereunder and all materials used therein for a period of one (1) year after completion and final acceptance thereof by the City Council. If within said one (1) year period any structure or part of structure furnished and/or installed or constructed, or caused to be installed or constructed by SUBDIVIDER, or any of the work done under this agreement, fails to fulfill any of the requirements of this agreement, or the specifications referred to herein as a result of the inadequate workmanship or materials, SUBDIVIDER shall, without delay and without any cost to the CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should SUBDIVIDER fail to act promptly or in accordance with this requirement, or should the exigencies of the situation require repairs or replacements to be made before SUBDIVIDER can be notified, CITY may at its option, make the necessary repairs and replacements or perform the necessary work, and SUBDIVIDER shall pay to the CITY the actual costs, including 15% overhead and administrative fee, of the CITY’S repairs and replacement expenses.
12. Breach of Agreement: Performance by City. If SUBDIVIDER shall refuse or fail to satisfactorily complete the work and Improvements provided for herein within the time specified above, or any extension or extensions thereof, or if delay in the construction of any portion of the Improvements shall, in the opinion of the City Engineer, endanger property outside the boundaries of said Map or if the SUBDIVIDER should be adjudged a bankrupt, or shall make a general assignment for the benefit of SUBDIVIDER’S creditors, or if a receiver should be appointed in the event of SUBDVIDER’S insolvency, or if SUBDIVIDER, or any of SUBDIVIDER’S contractors, subcontractors, agents or employees should violate any material provisions of this agreement, the City Engineer, or his designated representative, may serve written notice upon SUBDIVIDER for breach of this agreement, or any portion thereof.
In the event of any such notice, CITY may, without relieving SUBDIVIDER of any if its obligations hereunder, take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, may deem advisable, for the account, and at the expense of SUBDIVIDER, and the full cost and expense of said work done by the CITY shall be recovered by CITY from SUBDIVIDER.
13. Estimates of Costs: Security. The estimated cost for the work to be done under this agreement is Seven Hundred Sixty-Four Thousand Four Hundred Seventy-Nine Dollars ($764,479.00).
Contemporaneously with the execution of this agreement, SUBDIVIDER shall file with CITY a surety bond or a letter of credit acceptable to CITY in the sum of the estimated cost set forth above, to guarantee faithful performance of all of the provisions of this agreement and compliance with all of the provisions of the Brentwood Municipal Code, including Titles 12, 13, 14, 15, and 16 and a labor and material bond or a letter of credit acceptable to CITY in the sum of one hundred percent (100%) of the surety bond securing payment to the contractor, his subcontractor and to persons renting equipment or furnishing labor or materials to them for the Improvements required under this agreement. Upon completion and approval of all work, SUBDIVIDER shall request exoneration of this bond upon providing a Maintenance Bond in an amount not less than 10% of the estimated cost of the improvements.
14. Permits: Compliance with Law. SUBDIVIDER shall, at SUBDIVIDER’S expense, obtain all necessary permits and licenses for the work and Improvements hereunder, give all necessary notices and pay all fees and taxes required by law. In the performance of this agreement, SUBDIVIDER shall comply with all laws, ordinances, regulations, and rules of all governmental agencies having jurisdiction therefore.
15. Inspection by CITY. SUBDIVIDER shall, at all times, maintain proper facilities and provide safe access for inspection by CITY to all parts of the work subject to CITY’S acceptance. SUBDIVIDER shall pay for all engineering, inspection, and survey services in accordance with Brentwood Municipal Code.
16. SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor SUBDIVIDER’S contractors, subcontractors, agents, officers, or employees are agents or employees of the CITY and the SUBDIVIDER’S relationship to the CITY, if any, arising herefrom is strictly that of an independent contractor.
17. Liability. Neither the City nor any of its officers, agents, or employees shall be liable to SUBDIVIDER, its contractor, subcontractors, officers, agents, or employees, for any error or omission, or any obligation whatsoever, arising out of or in connection with any work to be performed under this agreement. The City and its officers, agents, and employees shall not be liable to the SUBDIVIDER or to any person, firm or corporation whatsoever, for any error or omission, or any obligation or liability whatsoever, arising out of or in connection with any work to be performed under this agreement. The CITY and its officers, agents, and employees shall not be liable to the SUBDIVIDER or to any person, firm, or corporation whatsoever for any injury or damage that may result to any person or property or any obligation whatsoever from any cause arising in, on, or about the land of the SUBDIVIDER or from performance or failure to perform any provision of this agreement by SUBDIVIDER.
18. Hold Harmless. SUBDIVIDER hereby agrees to and shall indemnify and hold CITY and its officers, agents, and employees harmless from any and all liabilities, obligations, damages, costs, injuries, or claims, thereof, including, but not limited to, claims for damage or personal injury, including death, and claims for property damage, arising in any manner from the performance or failure to perform the provisions of this agreement. SUBDIVIDER agrees to, and shall, defend, indemnify, and hold harmless the CITY, its officers, agents, and employees from any suits or actions at law or in equity for damages, liabilities, or obligations caused by or arising from, or alleged to be caused by or arising from, the performance of this agreement.
City does not, and shall not, waive any rights against the SUBDIVIDER which it may have by reason of the of the aforesaid hold-harmless clause, because of the CITY’S acceptance, or the deposit with City by SUBDIVIDER, of any of the insurance policies described in this Agreement.
The aforesaid hold-harmless clause by SUBDIVIDER shall apply to all damages and claims for damages of every kind suffered, alleged to have been suffered, by reason of any the aforesaid operations referred to in this paragraph, regardless of whether or not CITY has prepared, supplied or approved of, plans and specifications for the subdivision or off-site Improvements, or regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages.
19. Use and Maintenance of Improvements. SUBDIVIDER agrees that the use of any and all of the Improvements hereinabove specified, for any purpose and by any person, shall be at the sole and exclusive risk of the SUBDIVIDER at all times prior to final acceptance by CITY. SUBDIVIDER agrees to assume all maintenance responsibilities for the Improvements until one year after the acceptance of Improvements by City Council. This shall in no way eliminate discharge, or lessen any of SUBDIVIDER’S obligations and undertakings contained in this agreement. The issuance of any occupancy permits by CITY for dwellings or offices located within the subdivision shall not be construed in any manner to constitute acceptance or approval of any or all of the Improvements to be constructed hereunder.
(a) Prior to the commencement of any work, SUBDIVIDER shall furnish to the CITY, a certificate of insurance establishing satisfactory evidence of a project specific policy of liability insurance which shall be maintained at all times during the performance of their Agreement and until the acceptance of improvements by the City Council, in form and by a responsible company satisfactory to the CITY, insuring that the CITY, its officers, agents, and employees against loss or liability arising out of the condition of the premises or any of the work to be performed under this agreement by SUBDIVIDER, including all costs of defending any claim arising as a result thereof. All insurance companies affording coverage to the SUBDIVIDER shall be required to add the City of Brentwood as “additional insured” under the insurance policy for all work performed in accordance with this Agreement. Said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability stated in the declarations, and that if any of the CITY insureds have other insurance against the loss covered by said policy or policies, the other insurance shall be excess only. Said policy or policies shall provide for insurance in accordance with CITY requires minimum limits in the amount of Five Million Dollars ($5,000,000) for bodily injury or death, each person, and Five Million Dollars ($5,000,000) for bodily injury or death, aggregate, and Five Million Dollars ($5,000,000) for property damage, aggregate. All insurance companies affording coverage to the SUBDIVIDER shall be insurance organization authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California acceptable to the City Attorney, preferable with a Best’s rating of not less than A:VII. Each policy shall contain an endorsement that said policy shall not be cancelled or coverage reduced except upon thirty (30) days’ advance written notice thereof to the CITY.
(b) Worker’s Compensation Insurance. SUBDIVIDER shall take out and maintain, during the life of this agreement, Workers’ Compensation insurance for all SUBDIVIDER’S employees employed at the site of all public Improvements, and in case any work is sublet, SUBDIVIDER shall require any general contractor or subcontractor similarly to provide Workers’ Compensation insurance for contractor’s or subcontractor’s employees, unless such employees are covered by the protection afforded by SUBDIVIDER. In case any class of employees engaged in work under this Agreement at the site of the project is not protected under any Workers’ Compensation law, SUBDIVIDER shall provide, and shall cause each contractor and subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. Contractor hereby indemnifies CITY for any damage resulting to it from failure of either SUBDIVIDER, its agents, employees, contractor, or subcontractor to take out or maintain such insurance.
21. Title to Improvements. Title to and ownership all Improvements constructed hereunder shall vest absolutely in CITY for the Improvements it accepts upon completion and acceptance thereof by the CITY.
22. Final Drawings. Upon completion of all City Improvements and prior to final acceptance, SUBDIVIDER shall supply CITY with one permanent photo mylar, 4 mil, reverse-reading matte surface up set of “as-built” drawings and a DWG or DXF electronic file format. These drawings shall be certified by the qualified person as being “as-built” and shall reflect the job as actually constructed, with all changes incorporated therein.
23. Notice of Completion. SUBDIVIDER shall file, or cause to be filed, a Notice of Completion of the Improvements herein specified.
24. Final Inspection, Certification and Acceptance. All of the Improvements must be completed prior to the final inspection. Notice in writing, requesting final inspection, shall be submitted to the City Engineer at least five (5) days prior to the anticipated date. Upon the satisfactory completion of the City Improvements by the SUBDIVIDER, the City Engineer shall certify that the work of said Improvements has been satisfactorily completed, shall recommend formal acceptance of the Improvements by the City Council, and shall place the matter on the next available agenda for City Council action.
25. Streets, Street Lights, Trees, Landscaping and Maintenance. All tree plantings, landscaping, erosion control and maintenance shall be performed by SUBDIVIDER in accordance with the applicable conditions of approval of the Map and Brentwood Municipal Code. SUBDIVIDER shall submit a form of financial security in the amount 100% of the cost of such work and improvements.
Issuance of any Occupancy Permits by City for any dwelling, office, or other land use within the tract, at any state of development, shall not be construed to be an acceptance of Improvements, or final acceptance of said tract by the City Council or the City.
26. Assignment of Contract. Neither this agreement, nor any part hereof, shall be assignable by SUBDIVIDER without the written consent of the CITY, not to be unreasonably withheld or delayed.
27. Off-site Improvements. SUBDIVIDER shall comply with all applicable Tentative Subdivision Map 7705 Conditions of Approval that may apply to off-site improvements. Building permit restrictions may apply for compliance with these conditions.
28. Binding on Successors. The terms, covenants, and conditions of this agreement shall apply to, and shall bind the heirs, successors, executors, administrators, assigns, contractors, and subcontractors of the parties.
29. Costs and Attorney’s Fees. In the event of any litigation, alternative dispute resolution procedure, or arbitration regarding the rights or obligations of any party to this Agreement, the prevailing party in such proceeding, in the discretion of the judge or decision-maker, shall be entitled to recover cost, including reasonable attorney’s fees.
30. Notices. The address for Notices may be changed by the giving of written notice of such change in the manner provided herein. All notices certified mail, addressed as follows:
TO CITY: Office of the City Clerk
150 City Park Way
Brentwood, CA 94513
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
CITY OF BRENTWOOD )
150 City Park Way )
Brentwood, CA 94513 )
Attn: City Engineer )
This document is exempt from the payment of
a recording fee pursuant to Gov. Code §6103
THIS AGREEMENT made this day of , 2001 is by between the CITY OF BRENTWOOD, a municipal corporation (hereinafter "CITY") and BT LAKES GOLF, L.L.C., a Delaware limited liability company, (hereinafter "BT LAKES") who hereby agrees to maintain a total of five golf course ponds and detention basins on BT LAKES' property, per the terms and conditions set forth in this Agreement.
R E C I T A L S
A. The real property which is the subject of this Agreement is a golf course, owned by BT LAKES, as more particularly described and shown in attached Exhibit A, incorporated herein by this reference ("Property").
B. As part of a drainage plan that was approved subject to the execution of this Agreement, BT LAKES agreed to assume maintenance and all related drainage responsibilities for a total of five golf course ponds and detention basins as shown in the attached Exhibit B, incorporated herein by this reference ("Ponds").
C. BT LAKES is willing to expend an amount of funds to maintain these improvements in a manner beneficial to the community and the property owner.
A G R E E M E N T
Based upon the foregoing recitals, the CITY and BT LAKES hereby agree to the following terms and conditions:
1. PREMISES: The Ponds that are to be maintained by BT LAKES are shown on Exhibit B of this agreement
2. COMMENCEMENT DATE: This Agreement hereof shall commence on _____ __, 2001 (“Commencement Date”).
3. CONDITION OF PONDS: BT LAKES has inspected the Ponds and accepts them in their existing condition.
4. UTILITIES: BT LAKES agrees to accept all responsibilities for the maintenance including maintaining capacity and all pollution that may come from City streets or private residences adjacent to the Property and the utility bills, including water and electricity to BT LAKES Ponds, based upon the occurrence of its execution of this document, the recording of this document with the Contra Costa County Recorder’s Office, and the Commencement Date of this document.
5. MAINTENANCE, REPAIRS, OR ALTERATIONS: After the Commencement Date, BT LAKES shall be liable for any damage to the Ponds, including, but not limited to, damages resulting from the acts or omissions of BT LAKES or its authorized representatives.
Condition 99, Conditions of Approval, Subdivision Map No. 7705 requires that BT LAKES as successor in interest or assignee to Brookfield Homes, to design the Ponds to minimize mosquito protection. BT LAKES agrees to maintain water levels as constant as possible to avoid production of floodwater (Aedes) mosquitoes. Whenever possible, BT LAKES agrees to minimize emergent vegetation as much as economically and environmental possible as this vegetation provides a protective and nutritive habitat for immature mosquitoes. Contra Costa Mosquito Abatement District should be consulted by BT LAKES concerning channels and basins construction to permit as deep as practical and steep sloped sides to minimize mosquito production.
6. COMPLIANCE WITH LAWS: From and after the Commencement Date, BT LAKES agrees to and shall keep the Ponds in a condition acceptable to all public agencies with jurisdiction over the Ponds and as originally approved and installed, but normal repair and improvement replacement is expected. BT LAKES shall not permit any person to destroy, remove, or damage any part of the Ponds, nor shall BT LAKES do such things. Removal or substantial modification of the Ponds shall be subject to the CITY’s approval and the Contra Costa County Flood control and Water Conservation District’s (“COUNTY”) approval. BT LAKES will not allow or permit the Ponds to be used for any illegal purpose; and shall comply with all other requirements of local, state, and federal law now or hereafter in force and pertaining to the Ponds. BT LAKES shall maintain the design storage capacity of the facilities, as noted in the final report by Isakson & Assoicates, revised 3/12/96 (Summary tables from this report are included herein with attached Exhibit C). BT LAKES shall be liable for the expense of any repair caused by BT LAKES’ failure or refusal to comply with this paragraph. Subject to compliance with paragraph 8 and 9, failure to maintain the Ponds in a manner prescribed in this Agreement shall constitute a breach hereof, and shall entitle the CITY to immediately enter the Ponds and complete the maintenance or return to previous configuration of the Ponds to the standard described herein.
7. INSURANCE: BT LAKES shall obtain and keep in full force and effect throughout the term of this Agreement a policy of general liability insurance for the cost, expenses, damages, and liabilities commonly insured for such types of golf course ponds.
8. ENTRY AND INSPECTION: Representatives of the CITY and COUNTY may enter upon the Ponds at all reasonable times for purposes of inspecting the Ponds, making repairs, or any other lawful purpose. Except in cases of emergency CITY shall provide BT LAKES with a 2-day advance written notice of such entries or as far in advance of the entry as is reasonably possible. CITY’s failure to notify BT LAKES shall not be a cause for any claim, damages or other remedy by BT LAKES.
9. DEFAULT: A violation of any of the terms and conditions hereof by BT LAKES, and the failure to cure, or to commence the cure of the same within ten (10) days of BT LAKES receipt of CITY's written demand therefore shall entitle the CITY to terminate this Agreement in accordance with the terms hereof.
10. REMEDIES CUMULATIVE: If the City terminates this agreement pursuant to Paragraph 9, then the City shall maintain the subject Ponds and BT LAKES agrees to pay the City all costs for the maintenance until either BT LAKES agrees and begins to assume responsibilities for a period of more than 30 days, as stated in this Agreement.
11. NON-WAIVER: CITY's failure to take advantage of any of its remedies in the event of any default or breach of covenant by BT LAKES shall not be construed as a waiver of such default or breach by the CITY. A waiver by the CITY of a particular breach or default shall not be deemed to be a waiver of any subsequent breach or default.
12. ATTORNEYS FEES: Parties agree to pay to all expenses including reasonable attorney's fees, actually incurred by the prevailing party in any action brought to recover cost of maintenance of the Ponds, or to recover possession of the Ponds following breach, default or holding over or to enforce this Agreement.
13. TIME: Time is of the essence of this Agreement. Notwithstanding paragraph 9 , this agreement shall remain in effect as long as the ponds are in existence, unless agreed to be terminated by CITY, BT LAKES, and COUNTY.
14. AMENDMENT: This Agreement may be amended from time to time upon the mutual consent of CITY and BT LAKES, but no such amendment shall be effective unless made in writing and duly authorized by CITY.
15. ENTIRE AGREEMENT: This writing contains the entire agreement between CITY and BT LAKES. Other than as contained herein, no promises, conditions, terms or covenants, whether written, oral or implied, have been made by the parties hereto.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date first date above.
BT LAKES GOLF, L.L.C. CITY OF BRENTWOOD
A Delaware limited liability company
By: TROON BRENTWOOD, L.L.C. ____________________________
as Managing Member of BT Lakes John E. Stevenson
Golf, L.L.C. City Manager
By: TROON BRENTWOOD EQUITY, L.L.C. Attest:
an Arizona limited Liability company
as managing member of Troon Brentwood, ____________________________
L.L.C. Karen Diaz, CMC, City Clerk
Its: ____________________________ Approved As to Form:
Address: 15044 N. Scottsdale Road
Scottsdale, AZ 85254 ____________________________
Attn: General Counsel Dennis Beougher, City Attorney
WHEN RECORDED RETURN TO:
City of Brentwood
c/o City Clerk
150 City Park Way
Brentwood, CA 94513
AGREEMENT FOR GOLF COURSE PUBLIC PLAY
THIS AGREEMENT FOR GOLF COURSE PUBLIC PLAY is made this ________day of ___________, 2001 by and between the CITY OF BRENTWOOD, a municipal corporation (hereinafter “CITY”) and BT LAKES GOLF, LLC., a Delaware limited liability company (hereinafter “BT LAKES”).
A. The real property which is the subject of this agreement is a golf course, owned by BT LAKES, as more particularly described and shown in attached Exhibit “A”, incorporated herein by this reference (“Property” or “Golf Course Improvements”).
B. The CITY, per condition 30 of the Conditions of Approval contained within Brentwood City Council Resolution No. 93-27, requires that public play be allowed on the golf course constructed on the Property even if it becomes a private course, subject to the terms of this Agreement.
Based on the foregoing recitals, the CITY and BT LAKES hereby agree to the following terms and conditions:
Section 1. PUBLIC DAILY FEE FACILITY
. BT LAKES agrees to open and operate the golf course on the Property as a public, daily fee facility and thereby meeting the requirements of condition 30 of the Conditions of Approval contained within Brentwood City Council Resolution No. 93-27 regarding public play on the golf course. BT LAKES shall continue to maintain a public daily fee golf course facility until either the City of Brentwood completes the construction/purchase/lease of a municipal golf course or waives its rights by City Council resolution and finds that appropriate consideration has been provided by BT LAKES to City for such a waiver.
Section 2. PRIVATE MEMBERSHIPS
Notwithstanding any other term of this Agreement BT LAKES shall retain and reserve its right to sell private memberships in the golf club. A private membership shall be defined as the payment of a one-time membership fee (which may be equity or non-equity) along with recurring dues payments and potential additional special assessments. BT LAKES shall be entitled to sell yearly or seasonal passes that allow access to the golf course at reduced rates; however, yearly or seasonal memberships/passes that allow play at a reduced rate shall not be considered private memberships.
In the event that BT LAKES chooses to sell private memberships in the golf club, BT LAKES shall, at least 90 days prior to the date that BT LAKES makes such memberships available for sale, present to the CITY for review and approval a plan describing the allocation of tee times available for member and public play on the golf course that will allow for the availability to the general public of a minimum of 20% of the available fee times, equitably distributed throughout tee times available within each month. Rates charged for such public play shall be within 10% of those for unaccompanied guests; however, rates for public play will not be a part of the plan submitted to the CITY, nor shall the review by the CITY consider rates charged for public play. Submittal of this plan shall be to the City Manager or his designee, whose approval shall not be unreasonably withheld. BT LAKES shall be allowed to modify such plan from time to time providing that such modifications maintain the availability of a minimum of 20% of the tee times within each month for the general public. BT LAKES shall notify the CITY of any substantive changes to the approved plan a minimum of 30 days prior to making such changes and such changes shall be deemed approved by the CITY unless the CITY notifies BT LAKES in writing within 15 days after receiving the proposed modifications.
Section 3. BENEFITS AND BURDENS
All terms and conditions set forth herein shall inure to the benefit of and be binding upon all parties hereto and their respective successors and assigns and shall run with the land as a burden upon the Property.
Section 4. COMMENCEMENT DATE
This Agreement hereof shall commence on December ___, 2001 (“Commencement Date”).
Section 5. OBLIGATIONS OF BT LAKES
Section 5.01 General Obligations. The parties acknowledge and agree that the BT LAKES’ agreement to perform and abide by the covenants and obligations of BT LAKES set forth in this Agreement is a material consideration for BT LAKES’ agreement to perform and abide by its term, covenants, and obligations, as set forth herein.
Section 5.02 Protection of Rights. To the maximum extent permitted by law. CITY AND BT Lakes shall take any and all actions as may be necessary or appropriate to ensure that the Golf Course Improvements are constructed and its associated rights as provided by this Agreement can be enjoyed by the public and CITY. BT LAKES shall cooperate with CITY and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. BT LAKES and CITY shall not support adopt, or enact any law, ordinance, resolution, or take any other action which would conflict with the express provisions or intent of this Agreement and Subsequent Approvals.
Section 6. COOPERATION IN THE EVENT OF LEGAL CHALLENGES
Section 6.01 In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of the Agreement the parties shall cooperate in defending such action or proceeding. The parties shall use best efforts to select mutually agreeable legal counsel to defend such action. In the event CITY and BT LAKES are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel at its own expense.
Section 6.02 The parties agree that this Section 6 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
Section 7. CURE AND APPROVAL
Section 7.01 If as a result of any administrative, legal or equitable action or other proceeding as described in Section 6, all or any portion of this Agreement are set aside or otherwise made ineffective by any judgment (a “judgment”) in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter “Deficiencies”), the parties agree to use their respective best efforts to sustain and reenact or readopt this Agreement that the Deficiencies related to unless the Parties mutually agree in writing to act otherwise.
Section 7.02 The parties agree that this Section 7 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
Section 8 DEFAULT: REMEDIES: TERMINATION
Section 8.01 Defaults. Upon failure by either party to perform any term or provision of this Agreement, the party alleging such failure to perform shall give written notice to the other party, which notice shall specify the nature of the alleged failure with reasonable particularity and, where appropriate, the manner in which said failure satisfactorily may be cured (the “Default Notice”). Upon receipt of such Default Notice, the alleged breaching party shall have a period of ten (10) days to either (a) use good faith efforts to cure such breach, or (b) if in the determination of the alleged breaching party, such event does not constitute a breach of this Agreement, such party may deliver to the party claiming the breach a “Notice of Non-Breach” which sets forth with reasonable particularity the reasons that a breach has not occurred. If the nature of the alleged failure is such that it cannot reasonably be cured within such 10-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 10-day period. Any alleged breach that continues uncured for a period of ten (10) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), or for which no Notice of Non-Breach was received and acknowledged in writing by the non-breaching party as acceptable, shall constitute a default under this Agreement. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action.
Section 8.02 If either party finds that a possible material default has or reasonable may occur, then that party shall send a notice to the other party. If BT LAKES has a possible material or a reasonable expectation of a material default, the Brentwood City Council shall have the right to offer written and oral evidence prior to or at the time of consideration by the City council. If the Brentwood City Council determines that a material default has occurred and is continuing CITY shall give written notice to BT LAKES by certified mail.
Section 8.03 In the event CITY or BT LAKES defaults under the terms of this Agreement, CITY or BT LAKES shall have all rights and remedies provided herein or under law.
Section 8.04 In addition to specific provisions of this Agreement, the parties shall not be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations, judicial decisions, enactment or imposition against the Golf Course Improvements, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon.
Section 8.05 Either party to the agreement 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 thereof, recover damages for any default, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the purpose of this Agreement.
Section 8.06. In any legal action or other proceeding brought by either party to this agreement to enforce or interpret a provision of this Agreement the prevailing party is entitled to reasonable attorneys’ fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled.
SECTION 9. HOLD HARMLESS
BT LAKES shall hold CITY and its elected and appointed officers, agents, employees and representatives harmless from claims, costs and liabilities for any personal injury, death, or property damage which is a result of this Agreement, or of operations performed under this Agreement by BT LAKES or by BT LAKES’ contractors, subcontractors, agents, or employees, whether such operations were performed by BT LAKES or any of BT LAKES’ contractors, subcontractors, agents or employees. Nothing in this section shall be construed to mean that BT LAKES shall hold CITY harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, any sole negligence or willful act on the part of the City of Brentwood, its elected and appointed representatives, offices, agents and employees as it relates to actions taken pursuant to this Agreement.
SECTION 10. NO AGENCY, JOINT VENTURE OR PARTNERSHIP
It is specifically understood and agreed to by and between the parties hereto that: (i) CITY has no interest or responsibilities for, or duty to, third parties concerning an action related to this Agreement: (ii) BT LAKES shall have full power over and exclusive control of the golf course subject only to the limitations and obligations of BT LAKES under this Agreement; and (iii) CITY and BT LAKES hereby renounce the existence of any form of agency relationship, joint powers, joint venture or partnership between CITY and BT LAKES and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between CITY and BT LAKES.
SECTION 11. MISCELLANEOUS
The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein.
SECTION 12. ENFORCEABILITY
CITY and BT LAKES agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means).
SECTION 13. SEVERABILITY
If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision o f this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either CITY or BT LAKES may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party.
SECTION 14. OTHER NECESSARY ACTS
Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder.
SECTION 15. NOTICES
Any notice or communication required hereunder between CITY or BT LAKES must be in writing, and may be given either personally, by telefacsimile (with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt requested), or by Federal or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, property addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice of communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below:
If to CITY, to: City of Brentwood
Attn: City Manager
150 City Park Way
Brentwood, CA 94513
Tel: (925) 516-5440
Fax: (925) 516-6441
To BT LAKES: BT LAKES GOLF, LLC
c/o Troon Golf, LLC
Attn: Corporate Counsel
15044 N. Scottsdale Road, Suite 300
Scottsdale, AZ 85254
Tel: (480) 606-1000
Fax: (480) 606-1010
Section 16 ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS
This Agreement is executed in two (2) counterparts, each of which is deemed to be an original. This Agreement consists of ______ pages and ______ exhibits that constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of CITY and the BT LAKES. The following exhibits are attached to this Agreement and incorporated herein for all purposes:
Exhibit A: LEGAL DESCRIPTION
IN WITNESS WHEREOF, this Agreement has been entered into by and between BT LAKES and CITY as of the day and year first above written.
Dated:____________________ “CITY”City of BrentwoodBy:___________________________ John Stevenson City Manager
Attest:_________________________Karen Diaz, CMC, City ClerkApproved as to form:By:_______________________ Dennis Beougher City AttorneyDated:_____________________ BT LAKESBT LAKES GOLF, L.L.C.A Delaware limited liability companyBy: TROON BRENTWOOD, L.L.C.A Delaware limited liability companyAs managing Member of the BT Lakes Golf, LLCBy: TROON BRENTWOOD EQUITY, L.L.C.,An Arizona limited Liability companyAs managing member of the Troon Brentwood, LLCBy:___________________________Its____________________________