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CITY COUNCIL AGENDA ITEM NO. 8

Meeting Date: April 8, 2003

Subject/Title: Final Map Approval of Subdivision No. 8515, Lone Tree Plaza, Arcadia Development Company

Submitted by: Engineering: B. Grewal/ B. Bornstein/ D. Boskovic

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution approving the Final Map of Subdivision No. 8515, Lone Tree Plaza, Arcadia Development Company, located east of Heidorn Ranch Road and south of Lone Tree Way, accepting the improvement security, approving the Subdivision Improvement and Reimbursement Agreement for costs associated with Master Plan Facility improvements, and authorizing the Mayor and City Clerk to execute the same.

PREVIOUS ACTION
On April 12, 1994, the City Council approved Resolution No. 94-63, which established a standard Reimbursement Agreement for Master Plan Facility Improvements.

On June 26, 2002, by Planning Commission Resolution No. 02-39, the Planning Commission approved Tentative Subdivision Map No. 8515, with conditions.

BACKGROUND
The Final Map is located east of Heidorn Ranch Road and south of Lone Tree Way. This Final Map has been checked for conformance with the approved Tentative Map and Conditions of Approval. The Developer has executed a Subdivision Improvement and Reimbursement Agreement, the appropriate improvement security (Faithful Performance and Labor & Material Bonds: Bond No. 395000125 in the amount of $182,400.00 for the waterline loop and Bond No. 395000126 in the amount of $706,672.77 for the water pump station) have been posted, and offers of dedication for the appropriate roadways and easements have been made.
This “Lone Tree Plaza” project is the largest retail/commercial project so far in the City. It will create jobs, tax revenue and will induce additional economic development in the area.
The Conditions of Approval for Tentative Subdivision Map No. 8515 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. The improvements, which qualify as excess capacity, are oversize roadway and landscaping improvements along the Heidorn Ranch Road and Lone Tree Way frontage, off-site roadway landscape improvements on Heidorn Ranch Road, right-of-way for Lone Tree Way and Heidorn Ranch Road, and a Zone 2 Pump Station are also a part of this agreement. This development is also paying the City’s portion of the Lone Tree Way construction costs from Heidorn Ranch Road to Jeffery Way. The Contra Costa Transportation Authority has invoiced the City for $2.6 Million for Lone Tree Way construction included in their contract to construct Segment 2 of the Bypass. Of the $2.6 Million being paid by Arcadia, $1,776,109 is fee creditable. Arcadia is also entering into an agreement with West Coast Homes, a developer on the City of Antioch side to construct Heidorn Ranch Road along their frontage to its ultimate width. The oversizing of these improvements is fee creditable. Also, this development will construct a Zone II water pump station, which will serve not only this project but is a part of the Water Master Plan.

After extensive review of the improvement plans, construction costs and development fee calculations, staff prepared the Subdivision Improvement and Reimbursement Agreement. The City Attorney has reviewed this agreement. Facility Fee credits will be given at the time of building permit issuance. The fee credits (based on proposed square footage) will be more than the development fees from Phase I and II of the project and will carry over to Phase III. Phase III of the project will pay the development fees less carry-over credits as it develops. So overall this development will construct the required public master plan improvements and will also pay a portion of their development fees after taking all the credits.

In order for the Final Map to be recorded, the City Council needs to approve the Final Map, the Subdivision Improvement and Reimbursement 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 and Reimbursement Agreement.

FISCAL IMPACT
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 02-11 has been formed for this subdivision and will be responsible for the street lighting and landscape maintenance. Facility Fee credits will be issued as building permits are pulled.

Attachments:
Resolution
Site Map
Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FINAL MAP OF SUBDIVISION NO. 8515, LONE TREE PLAZA, BY ARCADIA DEVELOPMENT COMPANY, LOCATED EAST OF HEIDORN RANCH ROAD AND SOUTH OF LONE TREE WAY, APPROVING A SUBDIVISION IMPROVEMENT AND REIMBURSEMENT AGREEMENT FOR COSTS ASSOCIATED WITH MASTER PLAN FACILITY IMPROVEMENTS, AND ACCEPTING THE OFFERS OF DEDICATION SHOWN THEREON SUBJECT TO ACCEPTANCE OF IMPROVEMENTS, ACCEPTING THE IMPROVEMENT SECURITY AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SAME

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, on June 26, 2002, by Planning Commission Resolution No. 02-39, the Planning Commission approved Tentative Subdivision Map No. 8515, with conditions; 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; and

WHEREAS, Final Map No. 8515 showing 11 parcels 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 June 26, 2002, 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. 8515, Lone Tree Plaza, Arcadia Development Company, and that the offers of dedication shown thereon are hereby accepted subject to acceptance of improvements.

BE IT FURTHER RESOLVED that the Subdivision Improvement and Reimbursement Agreement is hereby approved, that the improvement security accompanying said agreement is hereby accepted, and that the Mayor and City Clerk are hereby authorized to execute said Subdivision Improvement and Reimbursement Agreement.

BE IT FURTHER RESOLVED that the City Council of the City of Brentwood hereby authorizes the City Clerk to execute and file the Final Map and the Subdivision Improvement and Reimbursement Agreement with the County Recorder.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 8th day of April 2003 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

SUBDIVISION IMPROVEMENT AND REIMBURSEMENT AGREEMENT
Subdivision 8515
Lone Tree Plaza
THIS AGREEMENT, made and entered into this ______ day of April, 2003, by and between the CITY OF BRENTWOOD, a municipal corporation of California, hereinafter referred to as “CITY”, and ARCADIA DEVELOPMENT CO., a California corporation (“ARCADIA”), RUCKSTAHL, LLC, a California limited liability company and CENTRE POINTE ASSOCIATES, L.P., a California limited partnership, hereinafter collectively referred to as “SUBDIVIDER”.
R E C I T A L S:
A. SUBDIVIDER is the owner of that certain real property situated in the City of Brentwood, County of Contra Costa, State of California, generally known and described as “Subdivision 8515, Lone Tree Plaza” and more fully described on Exhibit A attached hereto (the “Property”).
B. CITY has granted the following approvals (the “Project Approvals”) to SUBDIVIDER for the division of the Property (the “Subdivision”) and for the development of a mixed use project (the “Project”) on the Property:
(i) Planned Development Zoning Regulations for Planned Development Zone 51 pursuant to City Council Ordinance No. 713, adopted August 5, 2002;
(ii) Design and Site Development Plan DR 01-30 pursuant to Planning Commission Resolution No. 02-39, adopted June 26, 2002, subject to the conditions of approval attached to Resolution No. 02-39 (the “Conditions of Approval”);
(iii) Tentative Subdivision Map 8515 (the “Tentative Map”) pursuant to Planning Commission Resolution No. 02-39, adopted June 26, 2002, subject to the Conditions of Approval;
(iv) Development Agreement between CITY and ARCADIA dated September 12, 2002 (the “Development Agreement”) pursuant to City Council Ordinance No. 713, adopted August 5, 2002.
C. The Project Approvals permit and provide for the development of the Project in three (3) phases (“Phase I”, “Phase II”, and “Phase III”; individually, a “Phase”, and collectively, the “Phases”). The Phasing Plan for Phases I and II is shown generally on Exhibit B attached hereto and incorporated herein by this reference. Phase III is Parcels Nos. 7 and 8 of Subdivision 8515.
D. SUBDIVIDER has presented to CITY for approval a final subdivision map entitled “Subdivision 8515, Lone Tree Plaza”, dated April __, 2003, hereinafter referred to as the “Map” and incorporated herein by this reference.
E. The Project Approvals require SUBDIVIDER to dedicate land for, and/or to design, construct, finance and/or install certain survey monuments and certain on-site and off-site public improvements to serve the Subdivision, all of which are described on Exhibit C attached hereto (collectively, the “Improvements”).
F. Certain of the Improvements (the “Master Plan Improvements”) either (i) benefit the public generally and are not required to serve the Project, or (ii) include supplemental size, length and capacity over that needed, to serve or mitigate the impacts of the Project itself. The Master Plan Improvements are noted with an asterisk on Exhibit C attached hereto.
G. SUBDIVIDER has requested approval of the Map prior to the construction and completion of all of the Improvements.
H. As a condition precedent to approval of the Map prior to the construction and completion of all of the Improvements and to accepting the offer by SUBDIVIDER to dedicate the land included within the Improvements as specified in the Conditions of Approval, CITY requires the installation or extension of certain CITY services which are part of the Improvements at SUBDIVIDER’s sole expense and certain protection for CITY on behalf of the public.
I. CITY desires to assure that the Improvements will be done in a good and workmanlike manner, in accordance with the Conditions of Approval and 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.
J. CITY and SUBDIVIDER desire to provide a mechanism pursuant to which CITY will reimburse SUBDIVIDER in the form of fee credits in accordance with CITY’s Development Fee Program for the costs incurred by the Project to provide Master Plan Improvements over and above the costs that would be incurred to provide infrastructure required and sized to serve the Project (the “Additional Improvement Costs”).
K. Following the filing of the Map, SUBDIVIDER intends to convey a portion of Phase I of the Project to Home Depot U.S.A., Inc., a Delaware corporation (“HD”) and the balance of Phase I and Phase II of the Project to Donahue Schriber Realty Group, L.P., and Donahue Schriber Asset Management Corporation, as tenants in common (collectively, “DS”). CITY and SUBDIVIDER desire to provide for the assignment of the rights under the Project Approvals and this Agreement to, and the assumption of the obligations under the Project Approvals and this Agreement by, DS, to the extent such rights and obligations apply to Phase I and Phase II of the Project.
L. Prior to the date hereof, CITY has caused to be prepared certain plans and specifications for the construction of Storm Drain Line A-5 from Jeffrey Avenue to Fairview Avenue (the “Existing Storm Drain Line A-5 Plans”).
M. Prior to the date hereof, a total of $514,233 has been raised through CITY’s Capital Improvement Financing Plan (assigned $272,443 to Subdivision No. 8470 and $241,790 to Subdivision No. 8281) to provide funds to construct Storm Drain Line A-5 from Empire Avenue to Fairview Avenue (the “Existing Storm Drain Line A-5 Funds”).
NOW, THEREFORE, for and in consideration of the approval of the Map and the acceptance of the dedications offered therein; in order to facilitate the phased development of the Project as shown on Exhibit B in accordance with the Project Approvals by SUBDIVIDER and its successors, including HD and DS; in order to insure satisfactory performance by SUBDIVIDER of its obligations concerning the Improvements under the Conditions of Approval, the Subdivision Map Act, and the Brentwood Municipal Code; in order to reimburse SUBDIVIDER for the Additional Improvement Costs; and in consideration of the mutual covenants and promises set forth in this Agreement, CITY and SUBDIVIDER agree as follows:
1. Performance of Work. SUBDIVIDER shall, at its own cost and expense, and subject to the terms and conditions of this Agreement, do and perform, or cause to be done or performed, in a good and workmanlike manner, all of the work necessary to complete the Improvements, within and/or outside the Subdivision, which are described in Exhibit C attached hereto and incorporated herein by this reference, as said Improvements are shown on the Map, or on the Approved Plans, Profiles and Specifications, as defined below.
2. Standards. All Improvements shall be installed to the satisfaction of the City Engineer. All Improvements shall be shown in detail upon plans, profiles, and specifications prepared by engineers and/or landscape architects acting for SUBDIVIDER. Following the date hereof, SUBDIVIDER shall cause plans, profiles, and specifications covering the Improvements to be submitted to the City Engineer for review and approval. No work on the Improvements shall commence until such plans, profiles, and specifications for the Improvements have been submitted to and approved by the City Engineer. Once approved, such plans, profiles and specifications shall be referred to as the “Approved Plans, Profiles and Specifications”. Improvements shall be constructed in accordance with the Approved 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 the Approved Plans, Profiles, and Specifications, or with any changes approved, required or ordered by the City Engineer, which in his opinion are necessary or required to complete the Improvements. All costs of checking the plans, profiles, and specifications, and of all inspections of the Improvements 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 19 herein.
Improvements and methods of installation in CITY rights of way shall, at a minimum, meet the standards set forth in CITY’s Standard Plans and Specifications in effect on the date hereof and shall comply with the edition of the Engineering Procedures Manual requirements in effect on the date hereof, 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, a cable TV provider, 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 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 concerning the Improvements within and outside the Subdivision, if any, and compliance with the edition of the Engineering Procedures Manual requirements in effect on the date hereof, and setting forth recommendations for or constraints on the nature of Improvements and for development of each Improvement. All clearing and earthwork shall be accomplished in accordance with the Approved Plans, Profiles and Specifications and required recommendations of the soils report described above under the supervision of a qualified 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 constituting part of the Improvements have been satisfactorily compacted. The SUBDIVIDER shall provide a certified letter of compliance from a qualified engineer, verifying that the earthwork has been completed in accordance with the Approved Plans, Profiles and Specifications and recommendations of the soils report described above.
4. Time of Commencement and Completion. Prior to commencement of construction and installation of the Improvements (the “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 SUBDIVIDER to correspond to the different Phases. Unless otherwise approved by CITY, all Improvements within a Phase shall be constructed and approved by the City Engineer prior to occupancy of any building within that Phase.
5. Time of Essence. Time is of the essence of this Agreement. The Improvements required by this Agreement to be completed by SUBDIVIDER for each Phase are listed in Exhibit C hereto. The Improvements for a Phase shall be completed within the periods specified in the Conditions of Approval. If no time period is specified in the Conditions of Approval, the Improvements for a Phase shall be completed prior to the issuance of an occupancy certificate for any building in that Phase. In any event, the City Engineer may extend the time for completion of Improvements hereunder, upon good cause being shown by SUBDIVIDER. Any such extension may be granted without notice to SUBDIVIDER’s surety. Any extension so granted shall not relieve the surety's liability on any bond to secure the faithful performance of all or a portion of SUBDIVIDER's obligation under 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 the Work, including but not limited to, payment for any materials, provisions, and other supplies used in, upon, for, or about the 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. On-Site and Off-Site Improvements. Without limitation, but subject to reimbursement for the Additional Improvement Costs in accordance with the provisions of Section 30 of this Agreement, SUBDIVIDER shall also pay, cause to be paid, or reimburse CITY for all costs and expenses related to and/or arising from the performance of any work to complete the Improvements hereunder, including, but not limited to, payment for any materials, provisions, labor, other supplies used in, upon, for, or about costs incurred by CITY or SUBDIVIDER's general contractor in connection with the Improvements. Costs and expenses shall also include, but not be 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 incurred to enforce SUBDIVIDER's obligations hereunder.
8. Storm Drain Line A-5 Right of way Acquisition

A. If SUBDIVIDER is unable to acquire the necessary right of way interests for the construction of Storm Drain Line A-5 from the Subdivision boundary to Empire Avenue, SUBDIVIDER may at any time request CITY in writing to acquire said right of way interests (the “Empire ROW”) by eminent domain. Said written request shall be accompanied by:

i. The standard City Contract for Real Property Acquisition (“Contract”) executed by SUBDIVIDER;

ii. Deposit both:

a. A faithful performance bond in a form approved by the City Attorney in an amount determined by CITY to assure performance of the obligation to reimburse CITY for Costs of Acquisition (as defined below); and

b. Deposit in the amount of $50,000 (in the form of a cashier’s or certified check) or the estimated value of the Empire ROW plus $10,000 for attorneys’ fees, whichever is the lesser amount, as an advance on the payment of all Acquisitions Costs (“Cash Advance”), as defined herein, of acquiring the Empire ROW.

B. SUBDIVIDER agrees that until the formal written request to acquire and the Cash Advance has been made in the manner provided in this paragraph:

i. CITY may, but shall be under no duty to, proceed with the proposed acquisition of the Empire ROW; and

ii. The one hundred twenty (120) day period for acquisition after filing the final Map (Govt. Code §66462.5) shall not commence to run.

C. SUBDIVIDER agrees that failure of SUBDIVIDER to make a timely written request to acquire and the Cash Advance provided in this paragraph:

i. Shall be grounds for refusing to approve permits for buildings and other improvements within the Subdivision because SUBDIVIDER has not agreed to pay the cost of acquiring the Empire ROW;

ii. Shall constitute SUBDIVIDER’s abandonment of any claim that CITY has waived any condition for the construction of off-site Improvements contained in the Project Approvals; and

iii. Shall not relieve SUBDIVIDER of the duty to construct off-site Improvements as required in the Project Approvals.

D. The terms Costs of Acquisition and Acquisition Costs, as used herein shall include, but not be limited to, costs and payments reasonably incurred for: attorneys’ fees; expert witness fees, including appraisers, whether or not said expert witnesses are called to testify at time of trial; court costs; litigation expenses as defined by Code of Civil Procedure §1235.41; relocation costs; costs and fees charged by acquisition and relocation agents; any awards or settlement in avoidance of trial of compensation and costs to the owners of the right of way interests sought to be acquired, including but not limited to, compensation for the right of way interests acquired, severance damages, if any, loss of goodwill, if any, and delay damages, if any; interest on the award or settlement and interest for immediate possession of the property acquired; litigation expenses (including but not limited to reasonable attorneys’ fees and expert witness fees); court costs awarded to the owner of the right of way interest sought to be acquired or paid to the owner in settlement of claims for attorneys’ fees and expert witness fees; expenses and costs, if any, awarded to the owner for abandonment or dismissal of any condemnation action, or in settlement of claims for costs and expenses for abandonment or dismissal; costs recoverable against a condemnor upon the filing of a memorandum of costs including but not limited to filing and process fees including costs of recordation and certification of documents, deposition fees including fees paid to deposed expert witnesses, ordinary witness fees, jury fees, mileage fees for jurors and fees for official reporting of testimony and proceedings after judgment; and all fees recoverable pursuant to Code Civ. Proc. §§1250.410 (defined as “litigation expenses” in said section) as well as pursuant to Code Civ. Proc. §§1235 and 1268.710; all arbitration, mediation, and alternative dispute resolution fees including fees paid to arbitrators or retired judges; together with staff overhead charges for the administration of the acquisition in the amount of actual overhead charges, or, at CITY’s sole option, five percent (5%) of the total costs of acquisition, an amount estimated to be standard overhead project costs.

E. Each time the balance of the Cash Advance has declined to $10,000 by reason of withdrawals by CITY to pay for Acquisition Costs, SUBDIVIDER shall deposit within ten (10) business days after posting by certified mail a written demand from CITY, an additional $40,000, or the original amount deposited minus $10,000 (whichever amount is the lesser amount) as an advance on further Costs of Acquisition.

F. SUBDIVIDER acknowledges that if SUBDIVIDER makes a request to acquire pursuant to this paragraph, CITY may be required to make an offer to the owner(s) of the Empire ROW of the amount established as just compensation after consideration of a fair market value appraisal (Govt. Code §7267.2) before commencing negotiations with said owner(s).

G. Should CITY conclude that Government Code Section 7267.2 applies, SUBDIVIDER agrees to deposit with CITY the amount of said offer and estimated relocation assistance costs, if any, as may be required by the California Relocation Assistance Act within ten (10) business days after posting by certified mail by CITY of a written demand to SUBDIVIDER stating the amount of the proposed offer and of the estimated relocation assistance costs, if any. No additional deposit shall be required in the event that the balance of the initial deposit provided for in this paragraph is in excess of the amount stated in Section A(ii)(b) after deducting the amount of said offer and estimated relocation assistance costs.

H. SUBDIVIDER acknowledges that CITY cannot file a condemnation action until after the City Council adopts a Resolution of Necessity pursuant to Code Civ. Proc. §§1245.220-1245.235 after giving the affected owner the right to be heard in opposition to the adoption of said Resolution. SUBDIVIDER acknowledges that the City Council may, after said hearing, exercise its discretion and not adopt the requisite Resolution of Necessity; and CITY cannot make an irrevocable commitment to acquire the Empire ROW by eminent domain unless and until said Resolution is adopted. SUBDIVIDER further acknowledges that the references to the acquisition of the Empire ROW by eminent domain shall be considered representations by the City Council to use its best efforts to acquire the Empire ROW and not the commitment of CITY to acquire the Empire ROW by eminent domain until such time as the City Council has exercised its discretion after said hearing to adopt said Resolution. SUBDIVIDER further acknowledges that the City Council may not commit to adopt a Resolution of Necessity until after it has heard and considered all the evidence on the issues at a duly noticed public hearing.

I. If the City Council has adopted a Resolution of Necessity, City shall apply as soon as reasonably possible after written request by SUBDIVIDER for an Order of Possession. Twenty (20) days prior to obtaining an Order of Possession for the Empire ROW, CITY shall notify SUBDIVIDER of the amount of probable compensation to be deposited with the State Treasurer’s Condemnation Fund required by Code of Civil Procedure §§1255.010 et seq. to obtain possession. Within ten (10) business days after posting by certified mail a written demand from CITY setting out the amount of the proposed deposit with the State Treasurer, SUBDIVIDER shall deposit with CITY the amount of probable compensation to be deposited less the amount previously deposited prior to said Govt. Code §7267.20 offer. No additional deposit shall be required in the event that the current balance of the Cash Advance provided for in this Section is in excess of the amount that SUBDIVIDER would otherwise be required to deposit as the amount of probable compensation under this Section 8 above.

J. In the event that CITY proposes to make an offer of settlement higher than the amount offered pursuant to Govt. Code §7267.2, CITY shall give SUBDIVIDER notice of the amount of said offer of settlement and shall give SUBDIVIDER a written request from CITY setting out the amount of the offer and requesting that SUBDIVIDER deposit an additional sum determined to be sufficient to provide for payment to the owner of the amount of the offer in the event that the offer is accepted and still leave on deposit with CITY as a Cash Advance an amount sufficient to cover the costs and expenses defined herein which are obligations of SUBDIVIDER to CITY and not a part of the proposed settlement. SUBDIVIDER shall within ten (10) business days after posting by certified mail of said demand, either deposit the amount that CITY has reasonably determined to be sufficient to provide for payment to the owner the amount of the offer in the event that the offer is accepted and still leave on deposit a Cash Advance in an amount sufficient to cover the costs and expenses which are obligations of SUBDIVIDER to CITY and not a part of the proposed settlement, or give CITY written notice of objection to the higher offer of settlement; provided, however, that SUBDIVIDER shall not object unreasonably to the higher settlement offer. In the event that an additional deposit as requested is made by SUBDIVIDER and the offer is not accepted, the additional deposit shall be held by CITY as security for the payment of any judgment after trial, but shall not relieve SUBDIVIDER of the obligation to pay the full amount of the award including interest, costs, sanctions, litigation expenses and fees (“Additional Amounts”) awarded by the court or recoverable by CITY against SUBDIVIDER as an Acquisition Cost, should the full amount awarded plus said Additional Amounts exceed the amount of all Cash Advances made as provided herein. If SUBDIVIDER objects to the amount of the higher settlement offer, the condemnation action shall proceed to trial and SUBDIVIDER shall remain liable to pay the full amount of the award including interest, costs, sanctions, litigation expenses and fees awarded by the court or recoverable by CITY against SUBDIVIDER as a Cost of Acquisition should the full amount awarded plus said Additional Amounts exceed the amount of all Cash Advances made as provided herein.

K. In the event that the owner(s) of the Empire ROW make(s) an offer to settle after receiving the Govt. Code §7267.2(a) offer in an amount greater than said Govt. Code §7267.2(a) offer, and CITY desires to accept the offer, then CITY shall give SUBDIVIDER notice of the amount of said offer of settlement and a written request from CITY setting out the amount of the offer and requesting that SUBDIVIDER deposit an additional sum in an amount reasonably determined by CITY to be sufficient to provide for payment to the owner of the amount of the offer and still leave on deposit with CITY as a Cash Advance an amount sufficient to cover the costs and expenses defined herein which are obligations of SUBDIVIDER to CITY and not a part of the proposed settlement. Upon such notice, the rights and obligations of the parties shall be as set forth in Section 8.J above.

L. CITY agrees to use its best efforts to settle any dispute over the compensation for the Empire ROW for an amount as close to what it considers to be just compensation as is reasonably possible, but in no event less than what is determined to be the fair market value of the right of way interest together with other legally compensable and reasonably probable damages, if any.

M. Failure of SUBDIVIDER to make any of the deposits required by this Section shall constitute SUBDIVIDER’s waiver of any claim that CITY has waived the Storm Drain Line A-5 Condition of Approval. No condition or term of this Agreement is waived if CITY does not demand an additional Cash Advance when authorized by this Agreement.

N. In the event that CITY is entitled not to take any steps required in a condemnation action for the acquisition of the Empire ROW as provided herein because SUBDIVIDER has not made the deposits required by this Agreement, then:

i. SUBDIVIDER shall be liable for all damages, claims, or sanctions of whatsoever kind or nature resulting from CITY not proceeding with said condemnation action; and

ii. SUBDIVIDER shall not be relieved of the duty to construct Storm Drain Line A-5 from the Subdivision boundary to Empire Avenue as required in the Project Approvals.

Consistent with CITY’s constitutional duty and its obligation created by the California eminent domain law to pay just compensation and such other compensation as may be required by law, CITY shall have sole control over the selection of attorneys, appraisers and other expert witnesses and consultants as required and shall have sole control over the conduct of any eminent domain litigation. SUBDIVIDER shall not be considered a party to said action. However, CITY shall exercise its best efforts to keep SUBDIVIDER fully informed, and to consult regularly with SUBDIVIDER, about the eminent domain litigation, and to act reasonably in connection therewith, taking into consideration the best interest of both the public and SUBDIVIDER.

O. Upon obtaining a Final Order condemning the Empire ROW or after acquiring the Empire ROW by deed, CITY shall provide SUBDIVIDER with an account of all Costs of Acquisition, and make a written demand on SUBDIVIDER for any amounts greater than the remaining balance of the Cash Advances deposited with CITY, and demanding that SUBDIVIDER deposit said additional sum. SUBDIVIDER shall within ten (10) business days after posting by certified mail of said demand deposit the amount that CITY has determined to be the remaining balance. Said demand and payment shall be a final accounting of all amounts owing hereunder, unless the owner files a motion for new trial, any post-judgment motions or a notice of appeal, in which case any additional compensation, settlement amounts, fees, expenses or costs as defined herein and required hereunder shall be the obligation of SUBDIVIDER and CITY may require additional Cash Advances to secure payment. If the Cash Advances made by SUBDIVIDER exceed the Costs of Acquisition, the balance shall be promptly refunded to SUBDIVIDER by CITY.

P. CITY will use its best efforts to cause others who will benefit therefrom to complete construction of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue so that the portion of Storm Drain Line A-5 for which SUBDIVIDER is responsible under the Project Approvals may be connected to the portion of Storm Drain Line A-5 between Empire Avenue and Fairview Avenue and the detention basin beyond Fairview Avenue in order to serve the Project. If SUBDIVIDER determines that, despite CITY’s best efforts, it is unlikely that CITY will be able to cause others to construct Storm Drain Line A-5 from Empire Avenue to Fairview Avenue in sufficient time to meet SUBDIVIDER's development schedule, SUBDIVIDER shall have the right to elect to complete construction of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue itself by giving CITY written notice of such election. Except as expressly set forth to the contrary hereinafter, SUBDIVIDER shall have no responsibility for any cost incurred in connection with the construction and completion of the portion of Storm Drain Line A-5 between Empire Avenue and Fairview Avenue or the detention basin beyond Fairview Avenue. If SUBDIVIDER gives CITY written notice of SUBDIVIDER’s election to complete construction of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue, CITY shall assign the Existing Storm Drain Line A-5 Plans to SUBDIVIDER at no cost and CITY will use its best efforts to make available to SUBDIVIDER so much of the Existing Storm Drain Line A-5 Funds as may be reasonably available or such other funds as may have been previously paid for such purpose in order to pay the costs of constructing Storm Drain Line A-5 from Empire Avenue to Fairview Avenue. SUBDIVIDER shall only be obligated to advance funds to the extent the existing funds are not available or insufficient.

In order to complete Storm Drain Line A-5 from Empire Avenue to Fairview Avenue within the timeframe set forth in this paragraph, CITY may be required to acquire a right of way interest of approximately 300 feet in length across certain real property located between Empire Avenue and Fairview Avenue (the “Fairview ROW”) through an Order of Possession in an eminent domain proceeding. If CITY has not acquired the Fairview ROW prior thereto, SUBDIVIDER may at any time give CITY written request to acquire the Fairview ROW through an Order of Possession. Subject to the provisions of Paragraph H above, CITY shall immediately commence and continue to use its best efforts to obtain an Order of Possession for the Fairview ROW as soon as reasonably possible; and upon obtaining an Order of Possession, CITY shall use its best efforts to cause others who will benefit therefrom to complete construction of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue so as to complete the work by January 1, 2004, or as soon thereafter as reasonably possible.

Should SUBDIVIDER request CITY to acquire the Fairview ROW through an Order of Possession in an eminent domain proceeding, the provisions of Paragraphs A.i, A.ii, B.i, D, E, F, G, H, I, J, K, L and O above, shall govern the rights and obligations of CITY and SUBDIVIDER in connection therewith. Should SUBDIVIDER advance funds to CITY to acquire the Fairview ROW, and/or advance funds to construct Storm Drain Line A-5 from Empire Avenue to Fairview Avenue, CITY shall establish a local benefit district under Subdivision Map Act Section 66487(c) to levy against the real property of which the Fairview ROW is a part (the “Benefited Property”) a charge at the time the Benefited Property is subdivided equal to the costs of acquisition of the Fairview ROW, and/or the funds advanced by SUBDIVIDER to construct Storm Drain Line A-5 from Empire Avenue to Fairview Avenue, together with simple interest thereon at the rate of five percent (5%) per annum (the “Rate”); and within thirty (30) calendar days following the recordation of any parcel or final map which divides the Benefited Property, CITY shall repay to SUBDIVIDER all funds advanced by SUBDIVIDER hereunder, together with interest thereon at the Rate set forth above.

SUBDIVIDER shall have no obligation to pay any part of the costs to design and construct the portion of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue or the detention basin beyond Fairview Avenue. SUBDIVIDER’s sole obligation with respect to any portion of Storm Drain Line A-5, other than the portion from the Subdivision boundary to Empire Avenue, shall be to provide interim funding for the acquisition of the Fairview ROW and/or the construction of Storm Drain Line A-5 from Empire Avenue to Fairview Avenue under this Section 8.P, with the right to reimbursement set forth herein.

9. Acceptance of Work. The City Engineer or his representative shall have the right to reject any and all of the Work to be performed under this Agreement by SUBDIVIDER if the Work does not conform, in his or his representative's reasonable judgment, with the Approved Plans, Profiles, and Specifications and with the ordinances of CITY. Final acceptance of the Improvements installed by SUBDIVIDER in each Phase of the Project shall be by the City Council; and the City Council shall consider accepting the Improvements for a particular Phase as soon as reasonably possible after the completion of all of the Improvements in that Phase
10. Warranty of Plans. Notwithstanding the fact that the Approved Plans, Profiles, and Specifications, completion of the Work, and other acts to be performed hereunder are subject to approval by CITY, it is understood and agreed that any approval by CITY shall in no way relieve SUBDIVIDER of satisfactorily performing the Work or its obligations hereunder. SUBDIVIDER expressly warrants that for a period of one (1) year after completion of the Improvements installed by SUBDIVIDER in a particular Phase of the Project, and final acceptance thereof by the City Council, that the Approved Plans, Profiles and Specifications submitted shall conform at a minimum to CITY's 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.
11. Repairs and Replacement. SUBDIVIDER shall repair or have repaired, Improvements found to have faulty workmanship or materials or not installed in accordance with the Approved Plans, Profiles and Specifications prior to final acceptance of the completed Work by the City Council. SUBDIVIDER shall also repair or have repaired, replace or have replaced, or pay to CITY the entire cost of replacement or repairs of any and all property damaged or destroyed, by reason of any work done by SUBDIVIDER hereunder, prior to final acceptance of the completed Work by the City Council, whether such property be owned by the United States, the State of California or any agency or political subdivision thereof, or by CITY, or by any public or private corporation, or by 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 CITY's utilities systems, concrete work or existing public street paving or other Improvements shown on the Map and/or the Approved Plans, Profiles and Specifications and installed by SUBDIVIDER that may occur after installation and prior to final acceptance of the completed Work.
12. Warrant. Without limiting the foregoing paragraph, SUBDIVIDER expressly warrants and guarantees all of the Work performed by SUBDIVIDER 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 Improvement or part of an Improvement furnished and/or installed or constructed, or caused to be installed or constructed by SUBDIVIDER, or any of the Work done by SUBDIVIDER under this Agreement, fails to fulfill any of the requirements of this Agreement, or the specifications referred to herein as a result of inadequate workmanship or materials, SUBDIVIDER shall, without delay and without any cost to CITY, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or Improvement or damage to existing public improvements caused by the Work or Improvements. Should SUBDIVIDER fail to commence to cure such defect within thirty (30) days from receipt of notice of such claimed defect and diligently prosecute the same to completion 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 CITY the actual costs, including a five percent (5%) overhead and administrative fee, of CITY's repair and replacement expenses.
13. 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 SUBDIVIDER should be adjudged a bankrupt, or 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 SUBDIVIDER does not begin to cure said breach within thirty (30) days of such notice and thereafter diligently prosecutes such cure to completion, 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, for the account, and at the expense of SUBDIVIDER, and the full cost and expense of said work done by CITY shall be recovered by CITY from SUBDIVIDER.
14. Estimates of Costs: Security. The Improvements for each of Phases I and II of the Project, the completion of which must be secured by a bond or bonds, or a letter of credit or letters of credit, or such other security as CITY may find acceptable (hereafter called either individually or collectively, “Improvement Security”) are listed in Exhibit C attached hereto and incorporated herein by this reference.
SUBDIVIDER has filed with CITY Improvement Security and Payment Security (as defined below) for the Zone II Pump Station and the Zone II 12-Inch Internal Loop Waterline described in Exhibit C hereto. Prior to the issuance of a permit for signal modification, or prior to the issuance of a permit for the construction of a building in Phase I of the Project, SUBDIVIDER shall file with CITY Improvement Security and Payment Security (as defined below) for the Modifications to Existing Traffic Signal at Lone Tree Way Main Entrance described in Exhibit C hereto. Prior to the issuance of permits for the construction of buildings within each of Phases II and III of the Project, respectively, SUBDIVIDER shall file with CITY Improvement Security acceptable to CITY, 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 applicable to the Improvements for that particular Phase, and a labor and material bond or bonds, or a letter of credit or letters of credit, or such other security as CITY may find acceptable in the aggregate sum of one hundred percent (100%) of the Improvement Security for that particular Phase 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 for each of Phases I, II and III, respectively, (hereafter called, either individually or collectively the “Payment Security”). Upon completion and approval of all work of Improvements for a particular Phase, or upon completion of all work of Improvement covered by a particular bond, letter of credit, or other Improvement Security or Payment Security, SUBDIVIDER shall request exoneration of the Improvement and Payment Security upon providing a maintenance bond for a period of one (1) year in an amount not less than ten percent (10%) of the actual cost of the Improvements covered by the Improvement Security, and CITY shall exonerate such Improvement and Payment Security.
SUBDIVIDER, shall provide Improvement and Payment Security for each of the respective Improvements listed in Exhibit C. In contemplation of the intended conveyances by SUBDIVIDER to HD and DS described more fully in paragraph K of the Recitals and Section 29 of this Agreement, CITY shall accept from HD Improvement and Payment Security to assure completion of the Improvements listed in Exhibit C for Phase I, and from DS Improvement and Payment Security to assure completion of the Improvements listed in Exhibit C for Phase II of the Project. In such event, CITY shall release the Improvement and Payment Security provided by ARCADIA for any Improvement that pertains to either Phase I or Phase II of the Project.
SUBDIVIDER intends to provide for the construction of Heidorn Ranch Road and related improvements as required by Conditions of Approval Nos. 25, 28 and 29 (“Heidorn Ranch Road and Related Improvements”) by paying its fair share of the cost of constructing and installing such improvements through an escrow account with an institutional escrow agent (the “Heidorn Escrow Account”) to West Coast Home Builders Inc., a California corporation (“WCHB”), which would then be obligated to construct the Heidorn Ranch Road and Related Improvements pursuant to that certain Memorandum of Agreement between SUBDIVIDER and WCHB dated August 5, 2002 (the “MOA”) as well as conditions of approval imposed by the City of Antioch on approvals that Antioch has granted to WCHB for projects located across Heidorn Ranch Road from the Project. SUBDIVIDER's fair share under the MOA for Heidorn Ranch Road and Related Improvements is set forth in Exhibit D across from the phrase “Heidorn Ranch Road Agreement” (the “Heidorn Fair Share Amount”). In accordance with the Conditions of Approval and the proposed plans for Heidorn Ranch Road and Related Improvements, the City Engineer has determined that the Heidorn Fair Share Amount constitutes an appropriate and fair contribution by SUBDIVIDER to the costs of Heidorn Ranch Road and Related Improvements.
The cash deposit by SUBDIVIDER of the Heidorn Fair Share Amount into the Heidorn Escrow Account shall constitute Improvement Security and Payment Security acceptable to CITY under this Section 14 to assure the performance by SUBDIVIDER of its obligations under Conditions of Approval Nos. 25, 28 and 29 provided that SUBDIVIDER gives the holder of the Heidorn Escrow Account irrevocable written instructions that: (i) the funds in the Heidorn Escrow Account shall not be disbursed for any purpose other than the completion of Heidorn Ranch Road and Related Improvements in accordance with the MOA without the prior written consent of CITY; and (ii) except to the extent said funds are disbursed for the completion of Heidorn Ranch Road and Related Improvements pursuant to the MOA, said funds shall be held for the account of CITY to assure performance of SUBDIVIDERS's obligations under Conditions of Approval Nos. 25, 28 and 29 until such time as Heidorn Ranch Road and Related Improvements have been completed and accepted, at which time any balance remaining in the Heidorn Escrow Account shall be refunded to SUBDIVIDER. Acceptance of Heidorn Ranch Road and Related Improvements by the City of Antioch and acceptance of CITY's waterline in the Heidorn Ranch Road right of way by CITY shall be sufficient for purposes of this Agreement, and in such event, no further acceptance by CITY shall be required.
15. 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.
16. 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 the Brentwood Municipal Code.
17. SUBDIVIDER Not Agent of CITY. Neither SUBDIVIDER nor SUBDIVIDER's contractors, subcontractors, agents, officers, or employees are agents or employees of CITY, and SUBDIVIDER's relationship to CITY, if any, arising herefrom is strictly that of an independent contractor.
18. Liability. Neither 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 of the Work to be performed under this Agreement by SUBDIVIDER. CITY and its officers, agents, and employees shall not be liable to 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 of the Work to be performed under this Agreement by SUBDIVIDER. CITY and its officers, agents, and employees shall not be liable to 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 SUBDIVIDER or from performance or failure to perform any provision of this Agreement by SUBDIVIDER. Notwithstanding the foregoing, CITY and its officers, agents and employees shall be liable to SUBDIVIDER, its contractor, subcontractors, officers, agents or employees for any claims of error, omission, personal injury, death or property damage arising from the sole negligence or willful act of CITY, or its officers, agents and employees.
19. Hold Harmless. SUBDIVIDER hereby agrees to defend 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 by SUBDIVIDER. SUBDIVIDER agrees to, and shall, defend, indemnify, and hold harmless 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, a default by SUBDIVIDER in the performance of its obligations under this Agreement.
CITY does not, and shall not, waive any rights against SUBDIVIDER which it may have by reason of the aforesaid hold-harmless clause, because of 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, or alleged to have been suffered, by reason of a default by SUBDIVIDER in the performance of its obligations under this Agreement, 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.
20. Use and Maintenance of Improvements. SUBDIVIDER agrees that the use of any and all of the Improvements to be accepted by the CITY under this Agreement, for any purpose and by any person, shall be at the sole and exclusive risk of SUBDIVIDER at all times prior to final acceptance by CITY. SUBDIVIDER agrees to assume all maintenance responsibilities for the Improvements to be accepted by CITY until one (1) year after the acceptance of the Improvements by the City Council. Notwithstanding the foregoing, SUBDIVIDER shall not be responsible for any damage or injury to the improvements caused by any third party after acceptance of the improvements by the City Council. Consistent with Section 14, above, SUBDIVIDER shall have no maintenance obligations to CITY under this Agreement or otherwise with respect to Heidorn Ranch Road and Related Improvements except for CITY's waterline in the Heidorn Ranch Road right of way. This shall in no way eliminate, discharge, or lessen any of SUBDIVIDER's obligations and undertakings with respect to Heidorn Ranch Road and Related Improvements contained in this Agreement. The issuance of any occupancy permit by CITY for any building 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.
21. Insurance.
(a) Prior to the commencement of any work within a Phase of the Project, SUBDIVIDER shall furnish to CITY, one or more certificates of insurance establishing satisfactory evidence of one or more policies of liability insurance covering the Project which shall be maintained at all times during the performance of this Agreement with respect to such Phase and until the acceptance of the Improvements within such Phase by the City Council, in form and by a responsible company reasonably satisfactory to CITY, insuring 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 with respect to such Phase by SUBDIVIDER, including all costs of defending any claim arising as a result thereof. All insurance companies affording coverage to SUBDIVIDER shall be required to add the City of Brentwood as “additional insured” under the insurance policy for all Work performed to construct and install the Improvements 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 required 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 SUBDIVIDER shall be insurance organizations 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, preferably with a Best's rating of not less than A: X. 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 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 of the Work, and in case any of the 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. SUBDIVIDER hereby indemnifies CITY for any damage resulting to it from failure of either SUBDIVIDER, its agents, employees, contractors, or subcontractors to take out or maintain such insurance.
(c) A general contractor performing work within a Phase of the Project may provide on behalf of SUBDIVIDER the insurance which SUBDIVIDER is required to provide with respect to such Phase under this Section 21.
22. Title to Improvements. Title to and ownership of all Improvements constructed hereunder shall vest absolutely in CITY for the Improvements it accepts upon completion and acceptance thereof by CITY.
23. Final Drawings. Upon completion of all Improvements and prior to final acceptance thereof by CITY, 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.
24. Notice of Completion. SUBDIVIDER shall file, or cause to be filed, one or more Notices of Completion of the Improvements for each Phase of the Project.
25. Final Inspection, Certification and Acceptance. All of the Improvements for a Phase of the Project to be accepted by CITY must be completed prior to the final inspection for that Phase. 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 Improvements for that Phase of the Project by 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.
26. Streets, Streetlights, Trees, Landscaping and Maintenance. All tree plantings, landscaping, erosion control and maintenance which are part of the Improvements shall be performed by SUBDIVIDER in accordance with the Conditions of Approval and the Brentwood Municipal Code. Prior to commencement of construction in a Phase of the Project, SUBDIVIDER shall submit a form of financial security in the amount of one hundred percent (100%) of the cost of such tree plantings, landscaping and erosion control work and improvements for that Phase that is not covered by other Improvement Security provided to CITY by SUBDIVIDER.
Issuance of any Occupancy Permits by CITY for any retail commercial, dwelling, office, or other land use within the Subdivision, at any state of development, shall not be construed to be an acceptance of Improvements by the City Council or CITY.
27. Off-site Improvements. SUBDIVIDER shall comply with all Conditions of Approval that may apply to Improvements not located within the Project. Building permit restrictions may apply for compliance with these conditions.
28. Development Agreement. In the event of any conflict between the provisions of the Development Agreement and this Agreement, the provisions of the Development Agreement shall control.
29. Assignment; SUBDIVIDER. SUBDIVIDER intends to convey a portion of Phase I to HD and the balance of Phase I and Phase II of the Project to DS, upon or after the filing of the Map. Pursuant to Development Agreement, Section 8.02, CITY has approved the Transfer Agreements between SUBDIVIDER and HD and SUBDIVIDER and DS. The Transfer Agreements assign to HD and DS the rights of SUBDIVIDER under the Project Approvals and this Agreement that pertain to their respective ownership interests in Phase I and Phase II; and in its Transfer Agreement, DS expressly assumes the obligations of SUBDIVIDER under the Project Approvals and this Agreement that pertain to Phase I and Phase II. In accordance with Development Agreement, Section 8.02(a), the DS Transfer Agreement releases SUBDIVIDER from obligations under the Development Agreement, the other Project Approvals, and the Subsequent Approvals, including this Agreement, that pertain to Phase I and Phase II. The Transfer Agreements will become effective upon the recordation of the deeds transferring a portion of Phase I of the Project from SUBDIVIDER to HD, and a portion of Phase I and Phase II of the Project from SUBDIVIDER to DS, respectively. Upon recordation of the DS deed, DS shall be the SUBDIVIDER hereunder with respect to Phase I and Phase II of the Project, and ARCADIA shall be the SUBDIVIDER with respect to Phase III of the Project. Upon such recordation, DS shall have the rights and be subject to the obligations of SUBDIVIDER that pertain to Phase I and Phase II of the Project, and neither HD nor DS shall have any obligations under this Agreement that pertain to Phase III; and ARCADIA shall have the rights and be subject to the obligations under this Agreement that pertain to Phase III, and ARCADIA shall have no obligations under this Agreement that pertain to Phases I and II of the Project.
30. Reimbursement. The Project shall be entitled to credits against Development Fees under CITY’s Development Fee Program applicable to the buildings included within each of the three Project Phases in an amount equal to the aggregate value of the real property dedications and payments which SUBDIVIDER is required to make under the Project Approvals in connection with the development of Phases I and II of the Project in order to design, finance, install and construct Master Plan Improvements; provided, however, that a credit shall not be given for a particular dedication, payment or Improvement until such time as the dedication or payment to a public agency has been made, or the Improvement has been completed, or SUBDIVIDER has given CITY Improvement Security to assure completion of the Improvement in accordance with Section 14 of this Agreement. The cash deposit by SUBDIVIDER of the Heidorn Fair Share Amount into the Heidorn Escrow Account in accordance with Section 14 of this Agreement shall constitute acceptable Improvement Security under this Section 30 so as to entitle SUBDIVIDER to add said amount to the aggregate credit against Development Fees.
If at any time the credit balance under this Section 30 is insufficient to cover all or a portion of the Development Fees with respect to a particular building permit, the applicant shall be required to pay the difference in cash at the time the permit is requested. The City Engineer shall calculate the exact amount of the Development Fees credits to which the Project may be entitled under the Development Agreement and this Agreement at any time and from time to time. The value of real property dedications and payments heretofore made is set forth in Exhibit D hereto. The City Engineer shall calculate the exact amount of funds hereafter expended by SUBDIVIDER to design, finance, install and construct Master Plan Improvements. SUBDIVIDER shall have the right to review the City Engineer’s calculations of expenditures and fee credits at any time and from time to time on reasonable prior written request. SUBDIVIDER may appeal any determination by the City Engineer directly to the City Council in accordance with the provisions of Brentwood Municipal Code, Section 16.130.070 and the appeal process set forth in Brentwood Municipal Code, Chapter 16.170. Any credit balance in excess of the aggregate amount of Development Fees necessary to obtain the issuance of building permits for all of the buildings in Phase I and Phase II shall be applied against the fees that would otherwise be due under CITY's then current Development Fee Program in order to obtain building permits for buildings in Phase III of the Project.
31. Assignment of Contract. Neither this Agreement, nor any part hereof, shall be assignable by SUBDIVIDER without the written consent of CITY, which shall not be unreasonably withheld or delayed; provided, however, that CITY hereby consents to, and no further consent from CITY shall be required for: (i) the assignment by SUBDIVIDER of its rights under this Agreement to DS with respect to Phase I and Phase II of the Project; and (ii) the assignment by SUBDIVIDER of all or a portion of its rights under this Agreement to HD should DS and HD conclude that an assignment would facilitate the timely completion and/or the efficient operation of the Home Depot Center in accordance with the Project Approvals as they may be amended from time to time.
32. 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.
33. Costs and Attorneys’ 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 its costs, including reasonable attorneys’ fees.
34. Notices. Any notice or communication required hereunder between CITY and SUBDIVIDER 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 Express 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 of 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 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, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or 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, California 94513-1396
Tel: (925) 516-5440
Fax: (925) 516-5441
With a Copy to: City Attorney
City of Brentwood
150 City Park Way
Brentwood, California 94513-1396
Tel: (925) 516-5440
Fax: (925) 516-5441
If to SUBDIVIDER, to: c/o Arcadia Development Co.
Attn: President
If by Delivery: 1115 Coleman Avenue
San Jose, California 95150-5368
If by Mail: P.O. Box 5368
San Jose, California 95150-5368
Tel: (408) 286-4440
Fax: (408) 286-4443
With Copies to: Ellman Burke Hoffman & Johnson
Attn: Michael J. Burke
One Ecker
Suite 200
San Francisco, California 94105
Tel: (415) 777-2727
Fax: (415) 495-7587
Michael P. Carbone, Esq.
Steuart Tower, Sixteenth Floor
One Market Street
San Francisco, California 94105
Tel: (415) 357-1622
Fax: (415) 357-1633
If to SUBDIVIDER, to: Donahue Schriber Realty Group, L.P.
Donahue Schriber Asset Management Corporation
200 E. Baker Street, Suite 100
Costa Mesa, California 92926
Tel: (714) 545-1400
Fax: (714) 545-4222
Attn: David W. Mossman
With Copies to: Bruce C. Stuart
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660-6422
Tel: (949) 725-4000
Fax: (949) 725-4100
35. Recording. This Agreement shall be recorded with the Office of the Contra Costa County Recorder concurrently with the Map.
36. Incorporation of Recitals and Introductory Paragraph. 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.
37. Exhibits. The following exhibits are attached to this Agreement and incorporated herein for all purposes:
Exhibit A Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza
LEGAL DESCRIPTION OF PROPERTY
Exhibit B Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza
PHASING PLAN
Exhibit C Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza
DESCRIPTION OF IMPROVEMENTS
Exhibit D Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza
CALCULATION OF DEVELOPMENT FEES CREDIT
38. Heidorn Improvements Exception. The provisions of this Agreement which apply generally to the Improvements such as, by way of example, but not limitation, provisions which apply to the payment for, acceptance and warranty of, and the maintenance, repair and replacement of Improvements, shall apply to the Improvements to be accepted by CITY, and shall not apply to Heidorn Ranch Road and Related Improvements unless this Agreement expressly provides to the contrary. The Heidorn Ranch Road and Related Improvements shall be subject only to the provisions of this Agreement that apply expressly to them.
39. Designated Remainder Frontage Improvements. Frontage improvements for the “Designated Remainder” parcel of this Subdivision which is located east of the Highway 4 Bypass right of way, shall be deferred pursuant to State Subdivision Map Act Section 66424.6.
IN WITNESS WHEROF, the parties hereto have caused this Agreement to be executed the day and year first above written.
SUBDIVIDER:
ARCADIA DEVELOPMENT CO.,
a California corporation
By: ________________________________
Eli Reinhard, President
RUCKSTAHL, LLC, a California limited liability company
By: Arcadia Development Co. a California corporation, its Manager
By:
Its:
CENTRE POINTE ASSOCIATES, L.P., a California limited partnership
By: Arcadia Development Co., a California corporation, its General Partner
By:
Its:

CITY OF BRENTWOOD:
________________________________
Brian Swisher, Mayor
ATTEST:
________________________________
Karen Diaz, CMC, City Clerk
APPROVED AS TO FORM:
________________________________
Dennis Beougher, City Attorney


EXHIBIT A
Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza

DESCRIPTION OF PROPERTY

All of that certain real property located in the City of Brentwood, Contra Costa County, California, included within the boundaries of that certain subdivision map entitled “SUBDIVISION 8515, Lone Tree Plaza”, which was recorded in the Contra Costa County Official Records on , 2003, in Map Book , at Pages et seq.
EXHIBIT B
Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza

PHASING PLAN

EXHIBIT C

Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza

IMPROVEMENTS
Phase I:
Zone II Pump Station/Dedication of Land*
Zone II 12-Inch Internal Loop Waterline (approximately 2400 lineal feet of 12” PVC pipe and 120 lineal feet of 18” PVC pipe)
Modifications to Existing Traffic Signal at Lone Tree Way Main Entrance Per Conditions of Approval

Phase II:
Storm Drain Line A-5 Land Acquisition and Construction from Project to Empire Avenue Per Drainage Area 30C
Landscaping and Irrigation Within the Public Right of Way Along the Lone Tree Way Frontage*
East Bay MUD Right of Way Regional Trail Connection From Heidorn Ranch Road To Highway 4 per Conditions of Approval (excluding landscaping)*
Heidorn Ranch Road and Related Improvements, Including Signal at Lone Tree Way and Parkway Landscaping, Per Conditions of Approval*
Traffic Signals at Project Entrances on Heidorn Ranch Road Per Conditions of Approval
(these signals are included within the Heidorn Ranch Road and Related Improvements, but are not Master Plan Improvements)

Phase III:
Landscape and Irrigation Improvements to the North 50 Feet of the East Bay MUD Right of way Along the Project’s Frontage From Heidorn Ranch Road to Highway 4 per Conditions of Approval

* Master Plan Improvement
EXHIBIT D
Subdivision Improvement and Reimbursement Agreement
Subdivision 8515
Lone Tree Plaza

CALCULATION OF DEVELOPMENT FEES CREDIT

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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