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 City Council Agenda Item No. 14


Meeting Date: June 11, 2002

Subject/Title: Reimbursement Agreement for the Liberty High School Parking Lot, CIP Project No. 336-3133, between the City of Brentwood, Schuler Homes and the Liberty Union High School District

Submitted by: Engineering: B. Grewal / P. Eldredge

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve as to form a Resolution authorizing the City Manager to execute a Reimbursement Agreement between the City of Brentwood, Schuler Homes and the Liberty Union High School District for the construction costs associated with the Liberty High School Parking Lot expansion project, CIP Project No. 336-3133, and authorize the City Manager to execute change orders in the amount of 10% of project cost.

PREVIOUS ACTION
None

BACKGROUND
The City desires to increase the amount of available parking around City Hall and the downtown area and is currently exploring and evaluating many different alternatives. One alternative that would provide some immediate relief at a minimal expenditure is the expansion of the high school student parking lot. As the high school attendance increases so does the number of student vehicles, and the current number of parking spaces available is inadequate, therefore, students are utilizing the public parking. 

Schuler Homes has a residential project immediately adjacent to the High School and the downtown area and has agreed to facilitate the construction of this project on behalf of the City and the School District. This allows an accelerated construction schedule to ensure that the improvements are completed during the summer school break (June 10 - July 27). This is imperative to minimize costs and to ensure that the parking problem is not compounded by trying to accommodate this construction while school is in session and not allowing students access to the existing parking spaces. This project will expand the parking lot from approximately 188 spaces to 345 spaces. In addition to minimizing the impact to the City Hall and downtown parking sanitation, the high school parking lot is frequently utilized by the City and other organizations for event parking and overflow parking during non-school hours.

FISCAL IMPACT
The cost of this project has been accounted for in the approved CIP budget (CIP Project No. 336-3133) and the cost of the construction is to be shared equally between the City and the School District. The developer shall receive fee credits for each building permit pulled from the school impact fees the City collects on behalf of the School District and City’s “Community Facilities” Development Fee category. The total cost of the improvements have been estimated at approximately $350,000.

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Attachments:
Resolution
Site Map
Reimbursement Agreement 

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AS TO FORM THE REIMBURSEMENT AGREEMENT FOR LIBERTY HIGH SCHOOL PARKING LOT, CIP PROJECT NO. 336-3133 

WHEREAS, the City Hall area has an immediate need for additional public parking spaces to accommodate the many public uses around City Hall; and

WHEREAS, Liberty High School also has an immediate need for additional parking spaces for its students and has an area that would accommodate additional parking spaces by expanding its existing parking lot adjacent to the City Hall area; and

WHEREAS, the Liberty High School District is willing to fund fifty percent (50%) of the cost of the parking lot expansion and the City is willing to provide funding for the other fifty percent (50%) of the parking lot expansion; and

WHEREAS, Schuler Homes has executed a Reimbursement Agreement for repayment for the construction costs of an off-site improvement for Liberty High School parking lot expansion.

NOW, THEREFORE BE IT RESOLVED the City Council approves the Reimbursement Agreement, attached hereto as Exhibit A, and authorizes the City Manager to execute the agreement and to approve change order in the amount of a maximum of $35,000 (10% of the total estimated cost of the Liberty High School Parking Lot Expansion project). 

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 11th day of June 2002 by the following vote:



REIMBURSEMENT AGREEMENT 


THIS AGREEMENT (“Agreement”) is entered into at Brentwood, California, this ____th day of _____________, 2002, by and among the CITY OF BRENTWOOD, a public entity (“City”); SCHULER HOMES, a California limited liability corporation (“Schuler”), and LIBERTY UNION HIGH SCHOOL DISTRICT, a public entity”(“School”).

A. Developer is a fee owner or has an interest in that certain real property located in the City of Brentwood, County of Contra Costa, State of California, commonly known as Subdivision No. 8413,” consisting of approximately 25.2 acres (referred to as “Property”), as shown in the attached Exhibit B, entitled "Map." Various public improvement or payment of in lieu fees are required to be constructed or paid as a condition of approval of new development on the Property.

B. In connection with the development of the Property, Developer intends to construct certain needed improvement in lieu of payment of school impact fees, as permitted by Government Code §53080 to 65970, §65995, et seq., including, but not limited to, Liberty High School Parking Lot expansion and related public improvement, as more fully described in Exhibit A attached hereto and incorporated herein by this reference (collectively, “Improvement”) that will benefit the School and other properties in the City’s downtown. 

C. Pursuant to the City’s need for increased parking around its city hall area and downtown area, the Developer has requested and is entitled to reimbursement for that portion of the costs of the Improvement, including amounts attributable to interest and administration costs, that increases parking in downtown Brentwood area. 

NOW, THEREFORE, it is agreed as follows:

Section 1. Design of Improvement.

The Improvement will benefit the City’s parking situation around its city hall area as well as benefit the School by providing increased parking in an area with the City’s downtown area. The design engineering of the Improvement and other related work, which are subject to reimbursement pursuant to this Agreement, are more fully described in Exhibit A.

Section 2. Reimbursable Costs.

The Improvement and other related items costs are set forth in Exhibit A. City agrees to pay fifty percent (50%) of the actual Improvement costs and the School agrees to pay the other fifty percent (50%) of the actual Improvement costs. City Engineer of the City of Brentwood (“City Engineer”) shall review the actual costs to determine if the same exceeds the bid amount of costs set forth in Exhibit A. For those costs exceeding the bid amount set forth in Exhibit A, the City Engineer shall review such excess costs for appropriateness using a standard of reasonableness based upon normal and accepted costs in the industry. The City Engineer shall make the final determination as to permissible costs. Reimbursement from City and School shall be based upon the bid amount, set forth in Exhibit A, but the total costs shall not exceed the amount stated in this Agreement, Section 2, except as approved by City Engineer and School. Excess costs found to be reasonable and appropriate by the City Engineer will be a reimbursable cost to the Developer.

Section 3. Ownership of Design.

School shall own the design of the Improvement. Thereafter, School shall have the right to use the design or any portion of the design of the Improvement in accordance with School regulations, as provided herein, after the Improvement is accepted by School and City.

Section 4. Reimbursement.

City shall reimburse Developer actual costs and any City Engineer and School authorized extra work and any accrued interest, as provided in this Agreement, so long as the costs do not exceed the bid stated in Exhibit A. Costs may exceed the bid amount set forth in Exhibit A, provided that the Developer has obtained prior written approval of both the City Engineer and School before commencing any work that would exceed the stated total amount of the Agreement. City payments shall be made within sixty (60) days of acceptance of Improvement by the School and City, subject to the terms of this Agreement. It is understood and agreed that the City shall distribute any payments for Improvement as hereinafter defined to Developer, or its successors in interest or assigns.

It is understood by the Developer that the School shall reimburse Developer from school impact fees that will only be collected (credited) from Developer when Developer requests a building permit, subdivision or parcel maps, or related development approval(s). City will reimburse Developer with Community Facility Development Fee Credits payable to Developer (or its affiliate Western Pacific Housing) on any of its projects in the City at the time Developer requests building permits and shall be due and payable within sixty (60) days of the acceptance of the Improvement by City and School.

Section 5. Interest.

If the City fails to make payments as described in this Agreement, City shall pay Developer simple interest at the rate of seven percent (7%) per annum added to the outstanding balance owed to Developer, herein beginning with the date following the School's acceptance of the Improvement.

Section 6. Manner of Disbursement.

The right to the payment based on this Agreement shall be personal to Developer and shall continue notwithstanding the subsequent sale or transfer of the Property. Developer shall have the right, in its sole discretion, to assign its interest to this Agreement to another person or entity at any time by providing the City and School written notice of such assignment.

Developer hereby direct that any payments due to Developer shall be payable in the percentages stated in Exhibit A and mailed, respectively to:

Developer Name Schuler Homes
1210 Central Boulevard 
Brentwood, CA 94513

Developer may change the payee and/or address of payments by notice in writing to City, such notice to be effective upon receipt by City.


Section 7. Term.

Developer agrees to construct the Improvement by July 27, 2002 subject to an extension of time agreed to by both the City Engineer and School. The Improvement shall commence no later than June 12, 2002 and be completed by July 27, 2002. Developer agrees that the construction period is critical to this Agreement as the Improvement must be completed within this time period given the School calendar.

It is understood by the Developer that the Improvement shall be a first or concurrent priority of the Developer. In other words, the Developer agrees to complete the construction of Improvement first or concurrently with its in tract private or public improvements. 

Section 8. 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 Manager. Any such appeal to the City must be made in writing and addressed to the City Clerk. A final action or decision of the City Manager 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. The prevailing party in any legal action shall be entitled to its attorneys' fees and costs, if any, in addition to any other relief to which such party may be entitled.

Section 9. Applicable Law.

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

Section 10. 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.

Section 11. Force Majeure

The time for commencement and completion of the Improvements shall be extended by any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor or materials or reasonable substitutes therefore, governmental actions, civil commotions, fire or other causality, and other causes that are beyond the reasonable control of the Developer.


Section 12. Developer’s Responsibility.

The parties acknowledge that the Developer is constructing the Improvements pursuant to plans and specifications prepared for and approved by City and School. The parties further acknowledge that Developer will not construct the Improvements but instead will contract with a qualified and experienced licensed contractor to the do the work required by the contract. Upon the acceptance of the Improvements by School and City, Developer shall assign to School and City all warranties between Developer and its general contractor there under with respect to the Improvements and if problem(s) arise with respect to quality of the construction and during the one year warranty period, Developer agrees to fully cooperate with City and School to enforce such warranties. Developer shall require the general contractor to name the City and School as additional insured, primary coverage, and in an appropriate amount normally required by this type of work.

Notwithstanding any other term of this Agreement, City shall assume responsibilities for all claims, disputes, lawsuits, and actions related to the design of the Improvements.

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

CITY OF BRENTWOOD



By: __________________
City Manager
Attest:


_________________ 
Karen Diaz, CMC, City Clerk

Approved as to form:

____________________ 
Dennis Beougher, City Attorney 
DEVELOPER

SCHULER HOMES

a Delaware limited 
By __________________
Its Authorized Agent

SCHOOL
LIBERTY UNION SCHOOL
DISTRICT


_______________________
Dan Smith, Superintendent
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