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 CITY COUNCIL AGENDA ITEM NO. 04


Meeting Date: February 11, 2003

Subject/Title: Reimbursement Agreement with Meritage Homes, Tentative Subdivision Map No. 8453

Submitted by: Engineering: B. Grewal/L. Vargas
Finance: P. Ehler 

Approved by: John Stevenson, City Manager


RECOMMENDATION
Approve a Resolution approving a Reimbursement Agreement with Meritage Homes, Tentative Subdivision Map No. 8453, for costs associated with Master Plan Facility Improvements.

PREVIOUS ACTION
On April 12, 1994, the City Council approved Resolution 94-63, which established a standard Reimbursement Agreement for Master Plan Facility Improvements.

On June 5, 2001, the Planning Commission approved Resolution 01-47, which approved Tentative Subdivision Map No. 8453 with conditions.

BACKGROUND
The Conditions of Approval for Tentative Subdivision Map No. 8453 required the developer to make certain Master Plan Facility Improvements. Master Plan Facility Improvements are those improvements that have been identified in the Master Infrastructure element of the General Plan. These facilities are considered backbone infrastructure and form the basis of the facility fee structure. Under most circumstances when these improvements are required to be constructed by a developer, they would provide capacity in excess of the needs of their development alone. The Subdivision Map Act requires that the City enter into a reimbursement agreement when requiring the developer to construct improvements with excess capacity or off-site improvements. The roadway improvements that qualify as excess capacity along their Fairview Avenue frontage are ten feet of parkway landscaping, median curb and gutter. Also, drainage catch basins and paving overlay on the west side of Fairview Avenue across from their frontage. The construction of 400 linear feet of off-site roadway improvements north of their subdivision for the new Fairview Avenue Realignment, consisting of paving, median curb and gutter, median landscaping, sidewalk, and five feet of landscaping on the east side. The Developer requested $590,000.27; however, a careful review of the Conditions of Approval, bid quantities, and finalized plans by staff has resulted in a savings to the City of $280,515.00. The final reimbursement for these Roadway Master Plan Improvements is $309,485.27. The City Engineer and City Attorney have reviewed this agreement.


FISCAL IMPACT
Roadway Facility Fee Credits will be given for these Roadway Master Plan Improvements for a total amount of $309,485.27.

Attachments:
Resolution
Reimbursement Agreement (includes Site Map)


RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REIMBURSEMENT AGREEMENT WITH MERITAGE HOMES, TENTATIVE SUBDIVISION MAP NO. 8453, FOR COSTS ASSOCIATED WITH MASTER PLAN FACILITY IMPROVEMENTS


WHEREAS, on June 5, 2001, the Planning Commission of the City of Brentwood adopted Resolution No. 01-47, which required the Developer, Meritage Homes, Tentative Subdivision Map No. 8453, to make certain Master Plan Facility Improvements; and

WHEREAS, on April 12, 1994, the City Council approved Resolution 94-63, which established a standard Reimbursement Agreement for Master Plan Facility Improvements; and

WHEREAS, certain Master Plan Facility Improvements are reimbursable under the City of Brentwood Master Plan Facility Fee Program; and

WHEREAS, the Developer will construct the improvements eligible for reimbursement.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve a Reimbursement Agreement with Meritage Homes for Master Plan Improvements constructed in conjunction with Subdivision No. 8453 covered under Tentative Subdivision Map No. 8453, as shown on attached Exhibit ‘A’.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 11th day of February 2003 by the following vote:
















fee credits are insufficient to provide full reimbursement, the City shall reimburse the remaining funds from subsequent development fees paid by other development. Reimbursements shall be made from like development fee funds and no other. Reimbursements from fees of subsequent development shall be made on an annual basis in November of each year. The first annual reimbursement shall be given one year after all fee credits have been exhausted for that category of fee credits. The amount reimbursed on an annual basis shall be ten percent of the reimbursable balance after credits. 

3.3 Term of Reimbursement Obligation. The City's obligation to reimburse the Developer shall continue for ten years from the date the Developer is first eligible for an annual reimbursement, unless the obligation is sooner satisfied. In the event there are insufficient funds in any given year in the facility fee fund responsible for the improvements constructed by the Developer, the term of this agreement shall be extended one year. In no event shall the term of this agreement exceed fifteen years from the date the Developer is first eligible for an annual reimbursement.

3.4. Maximum Reimbursement. The total amount of the reimbursement obligation over the life of this Agreement for the type of facilities described in Exhibit "B" shall be as determined by the CITY OF BRENTWOOD 2002/03 DEVELOPMENT FEE PROGRAM. The parties acknowledge and agree that the reimbursements/pre-paid fees under this Agreement is estimated to be THREE HUNDRED NINE THOUSAND FOUR HUNDRED EIGHTY FIVE DOLLARS AND 27 CENTS.

3.5 Inspection. The City shall have the right at all times to inspect the construction of the improvements to measure compliance with City plans and specifications.

3.6 Areas and Quantities. The areas and quantities used to develop this reimbursement agreement are the best estimates available at the time. The actual areas and quantities may change at the time of dedication and/or construction. The reimbursable amount shall be based on actual areas and quantities, using the approved improvement plans for exact lengths. If it is determined that the areas and quantities have changed, the reimbursable amount may be adjusted.

3.7 Indemnity And Insurance. 

(1) Developer shall defend, indemnify and hold City, its elected officials, officers, employees, and agents free and harmless from any and all liability from loss, damage, or injury to or death of persons or property in any manner arising out of or incident to Developer's performance of this agreement, including without limitation all consequential damages, attorney's fees and court costs, whether or not resulting from the negligence of Developer or Developer's agents. This indemnity shall extend to any claims arising because Developer has failed to properly secure any necessary easements, land rights, contracts, or approvals, but shall not extend to any claims arising out of the sole negligence of City. This indemnity shall also extend to any legal action commenced by any third party against the City challenging the terms of this agreement or seeking judicial review.
(2) Developer shall require all persons doing work on the improvements, including its contractors and subcontractors, to obtain and maintain insurance of the types and in the amounts described below in a form and with carriers satisfactory to City.
a. Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent form with a limit of not less than $2,000,000.00 (or as otherwise approved, in writing, by the City) each occurrence shall be maintained. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two times the occurrence limit. Such insurance shall:

i. Name City, its officials, officers, employees and agents as insured by endorsement with respect to performance of this agreement. The coverage shall contain no special limitations on the scope of its protection afforded to the above-listed insured.
ii. Be primary with respect to any insurance or self-insurance programs covering City, its officials, officers, employees and agents.
iii. Contain standard separation of insured provisions.

b. Business Automobile Liability Insurance. Business automobile liability insurance or equivalent form with a limit of not less than $1,000,000.00 each accident shall be maintained. Such insurance shall include coverage for owned, hired and non-owned automobiles and shall contain the provisions set forth in subsections (a) (i) - (iii) set forth directly above.

c. Worker's Compensation Insurance. Worker's compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000.00 each accident shall be maintained.

d. Other insurance Requirements. Developer shall:

i. Prior to taking any actions under this Agreement, furnish City with properly executed certificates of insurance which shall clearly evidence all insurance required in this section and provide that such insurance shall not be canceled, allowed to expire or be materially reduced in coverage except on thirty (30) days prior written notice to City.
ii. Provide to City certified copies of endorsements and policies if requested by City, and properly executed certificates of insurance evidencing the insurance required herein.
iii. Replace or require the replacement of certificates, policies and endorsements for any insurance required herein expiring prior to completion and acceptance of the improvements.
iv. Maintain all insurance required herein from the time of execution of this Agreement until the acceptance of the improvements.
v. Place all insurance required herein with insurers licensed to do business in California.

3.8 Commencement of Construction and Inspection. Developer and its contractor or subcontractors shall not commence construction of the Improvement until Developer has received written authorization from City to proceed. All work performed on the improvements shall be done in strict compliance with City approved plans, specifications and the contract documents and in a good and workmanlike manner. All work performed by Developer, its contractor or agents to construct the improvements shall be subject to inspection by City. All fees and costs to construct the improvements shall be borne solely by Developer, subject to reimbursement as provided herein. Inspection by City or its employees or agents shall not relieve Developer of its liability for design defects or improper or inadequate workmanship.

3.9 Compliance with Applicable Laws. Developer shall insure that all work performed on the improvements is performed in a manner which complies with all applicable federal, state, county and local government laws, regulations and rules, including all rules and regulations of City, as these rules and regulations may be modified or changed from time to time.

3.10 Contractor Licenses. All work performed on the improvements shall be done only by contractors licensed in the State of California and qualified to perform the type of work required and comply with the City's Business License Ordinance.

3.11 Acceptance of Work. Upon completion of the improvements to the satisfaction of City, the improvements shall be presented to the City Council for dedication and acceptance and for authorization to file a Notice of Completion. The City Council may accept the improvements if it determines that the Improvements were constructed in accordance with the approved plans, specifications and contract documents that they operate satisfactorily, and that all other requirements of this agreement have been satisfied. Immediately upon, and as a condition of the expiration of the guarantee period set forth in Section 3.13, Developer shall assign to City all of Developer's rights and remedies, including warranties, as set forth in the approved contract documents, and thereafter City shall have the same recourse under said contract documents that City would have had if City itself had engaged Developer's contractor to construct the improvements.

3.12 Liability for Work Prior to Formal Acceptance. Until the City Council has formally accepted the improvements, Developer shall be solely responsible for all damage to the work, regardless of cause, and for all damages or injuries to any person or property at the work site, except damage or injury due to the sole negligence of City, or its employees.

3.13 Guarantee. Developer shall guarantee all work and materials for the improvements to be free from all defects due to faulty materials or workmanship for a period of one (1) year after the date of formal acceptance of the work by City. A guarantee bond in the amount of 10 percent of the total cost of the improvements as determined by the City and satisfactory to the City in its sole reasonably exercised discretion shall be posted with the City prior to its acceptance of the improvements. Developer shall repair or remove and replace and all such work, together with any other work which may be displaced in so doing, that is found to be defective in workmanship or materials within the one (1) year period, without any expense whatsoever to City. In the event Developer fails to comply with the above-mentioned provisions within thirty (30) days after being notified in writing (or in cases of emergency, immediately) City shall be authorized to proceed to have the defects remedied and made good at the sole cost and expense of Developer, who is hereby contractually bound to pay the costs and charges therefore immediately upon demand. Such action by City will not relieve Developer of the guarantee required by this section. This section shall not, in any way, limit the liability of Developer or any other party for any design or construction defects in the work subsequently discovered by City.

3.14 Record Drawings. Prior to acceptance of the improvements by the City Council, Developer shall provide City with one mylar copy of record drawings with certification by a licensed engineer in the State of California as to accuracy and completeness. Developer shall be solely responsible and liable for ensuring the completeness and accuracy of the record drawings.

3.15 Ownership of the Improvements. From and after acceptance of the improvements by formal action of the City Council, ownership of the Improvements shall be vested exclusively in City.







3.16 Notice. Any notices required or desired to be sent pursuant to this agreement shall be addressed as follows:

CITY: DEVELOPER:
City Manager Meritage Homes
City of Brentwood 1800 Sutter Street Suite 500
150 City Park Way Concord CA 94520
Brentwood, CA 94513 
3.17 Termination. In the event that Developer defaults in the performance of any of its obligations under this agreement or materially breaches any of the provisions of this agreement, City shall have the option to terminate this agreement upon written notice to Developer.

3.18 Attorney's Fees. In the event, any action is commenced to enforce or interpret any term or condition of this agreement, in addition to costs and any other relief, the prevailing party shall be entitled to reasonable attorney's fees. Jurisdiction over the authority in any dispute shall be maintained in Contra Costa County.

3.19 Entire Agreement. This agreement contains the entire agreement of the parties hereto with respect to the matters contained herein.

3.20 Assignment. This agreement shall not be assigned without the written consent of 
the parties hereto, and any assignment without such written consent shall be void and ineffective. The written notice shall become effective within thirty days upon delivery to the City, provided that the City shall not be responsible for any misdirected written notices under this section.

3.21 Time of Essence. Time is of the essence for this Agreement.

CITY OF BRENTWOOD DEVELOPER: MERITAGE HOMES 

By:___________________________ By:__________________________ 
Brian Swisher, Mayor


ATTEST:

BY:_____________________________
Karen Diaz, CMC, City Clerk



EXHIBIT “B”
REIMBURSABLE IMPROVEMENTS
MERITAGE HOMES
SUBDIVISION 8453



ROADWAY FACILITIES

Fairview Avenue Frontage Oversizing
Fairview Avenue Re-Alignment offsite construction






EXHIBIT “C”
MERITAGE HOMES 
SUBDIVISION 8453
REIMBURSEMENT CALCULATION
BASED ON 2002 DEVELOPMENT FEE PROGRAM


ROADWAY FACILITIES

Fairview Avenue Frontage Oversizing Parkway Landscape 10’,
Median Curb & Gutter $109,100.00
Adjustment for Financing 10% $ 10,910.06
Adjustment for Traffic Control 2% $ 2,182.01
6’ Additional right of way (36’ total) 153 AC $ 15,358.00
Subtotal Fairview Avenue $137,577.67

Fairview Avenue Offsite Construction 400 LF
Construction of 20’ pavement, median, overlay on west
side, sidewalk and 5’ landscape on east side $171,907.60

Total Roadway Facilities Reimbursement $309,485.27



City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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E-mail allcouncil@brentwoodca.gov