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CITY COUNCIL AGENDA ITEM NO. 11

Meeting Date: August 26, 2003

Subject/Title: Approve a Resolution approving a Reimbursement Agreement with Brentwood Union School District for Amber Lane Improvements

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

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution approving a Reimbursement Agreement with Brentwood Union School District (“School District”) concerning public improvements along the School District’s Amber Lane frontage.

PREVIOUS ACTION
The School District is the property owner of land along Amber Lane. As the fee owner of the property that fronts Amber Lane, the School District has agreed to pay for the public improvements along its Amber Lane frontage. Mission Peak, as part of its conditions of approval, is required to construct this segment of Amber Lane due to need for public safety by providing increased public access for this 177 lot residential subdivision. Mission Peak as part of its Subdivision Agreement agreed to construct the off-site public improvements related to Amber Lane. The City and School District are proposing the attached agreement to address the need for the cost of Amber Lane improvements along the School District’s Amber Lane frontage.

In connection with the development of School District property, School District would be required to construct certain needed public improvements along its Amber Lane frontage, including, but not limited to, Amber Lane frontage and other related public improvements as more fully described in Exhibit “A” of the Reimbursement Agreement (collectively, “Improvements”). The Improvements will not contain supplemental width, length, size and capacity in excess of the demand generated by the School District. As Mission Peak will construct oversized improvements that will benefit the School District, Mission Peak is entitled to, pursuant to the Subdivision Map Act (Government Code section 66410, et seq.), Brentwood Municipal Code Chapter §16.120 and the Brentwood Development Fee Program, reimbursement for that portion of the costs of the construction of the Improvements, including amounts attributable to interest and administration costs. City agrees to administer the reimbursement of costs from the School District, a benefited property owner, as set forth in the conditions of approval for Mission Peak’s subdivision.

The City has already contracted for the design of the Improvements and obtained all environmental permits, rights of entry and right of ways, and has established a reasonable schedule for completion of these items to prevent project delays or possible project cost overruns. Mission Peak has agreed to the conditions of approval and has also agreed to manage the construction of the Improvements and establish a reasonable schedule for the construction with the City.

The City has reviewed the cost estimates and recommends the approval, as reviewed and approved by the City Engineer, of construction management costs, preliminary administration and engineering costs and interest carrying costs.

FISCAL IMPACT
The Reimbursement Agreement for the public improvements along the School District’s Amber Lane frontage will be funded by the Brentwood Union School District and then paid to Mission Peak as a reimbursement for its off-site improvements due to over sizing and need for Amber Lane construction for public safety reasons.

Attachments:
Resolution
Reimbursement Agreement

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REIMBURSEMENT AGREEMENT WITH BRENTWOOD UNION SCHOOL DISTRICT FOR AMBER LANE FRONTAGE IMPROVEMENTS

WHEREAS, the Brentwood Union School District (“School District”) is a fee owner of real property, located in the City’s Northwest Quadrant area; that has frontage on an unimproved Amber Lane that does not have needed public sewer and water for its proposed elementary school on its site; and

WHEREAS, various off-site public improvements are required to be constructed by Mission Peak, as a condition of approval of its subdivision that exceeds the current public infrastructure requirements for its subdivision; and

WHEREAS, as Mission Peak is required to construct certain needed public improvements for the property, including, but not limited to, Amber Lane and related public improvements (“Improvements”) that will benefit the School District property; and

WHEREAS, the Improvements will contain supplemental width, length, size and capacity relative to the demand generated by the Mission Peak property that can be used by the School District; and

WHEREAS, pursuant to the Subdivision Map Act (Government Code Section 66410, et seq.), Brentwood Municipal Code Chapter §16.120 and the Brentwood Development Fee Program, Mission Peak has requested and is entitled to reimbursement for that portion of the costs of the construction of the improvements, including amounts attributable to interest and administration costs.

NOW, THEREFORE BE IT RESOLVED that the City Council approves the Reimbursement Agreement with the School District for its public improvements along its Amber Lane frontage, attached hereto as Exhibit “A,” and authorizes the City Manager to execute the Reimbursement Agreement for approximately $637,890.00 with the School District.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 26h day of August, 2003 by the following vote:

AGREEMENT FOR REIMBURSEMENT
FOR OFF-SITE IMPROVEMENTS
BY AND BETWEEN
BRENTWOOD UNION SCHOOL DISTRICT
AND THE
CITY OF BRENTWOOD


THIS AGREEMENT is entered into this _____ day of _________________, 2003, by and between the Brentwood Union School District (hereinafter “District”) of Contra Costa County and the City of Brentwood (“City”).
R E C I T A L S
WHEREAS, District is a public school district organized and existing under the laws of the State of California;
WHEREAS, City and District agree that it is in their mutual best interest to provide for the timely design and construction of the roads and related improvements for Amber Lane along District’s frontage to serve the Empire School site;
WHEREAS, City and District agree that the construction of the roads and related public improvements along District’s frontage, by City subject to a right of reimbursement from District, in the manner provided below, is the most efficient method of providing such facilities, economically and with respect to timing.
WHEREAS, by entering into this Agreement, the parties wish to set forth their understanding relating to the standards, timing, construction of the roads and related improvements as well as reimbursement from the District to City for actual costs incurred for constructing the Improvements.
NOW, THEREFORE, District and City agree as follows:
1. Definitions.
1.01: "Improvements" means those improvements set forth in Exhibit “A” attached hereto and incorporated herein by this reference.
2. Provision of Improvements.
2.01: City’s Obligation to Construct Improvements and Seek Reimbursement.
The parties agree that it is in their mutual best interest to provide for the timely construction of the roads and related public improvements along District’s Amber Lane frontage (“Improvements”) to provide access and service to the Empire School site to serve the residents of the District and City. As a result, the parties agree that City shall commence the construction of the Improvements and complete the same not later than July 1, 2004 and District shall reimburse City for actual costs incurred in constructing the Improvements, up to the agreed upon cap set forth in Paragraph 3.01 below.
2.02: Improvements to Be Constructed To Government Standards.
The parties understand and agree that City shall construct the Improvements to any applicable governmental standard required by any agency having jurisdiction over the project.
3. District’s Reimbursement Obligation.
3.01: Budget/Actual Costs Reimbursable:
The total estimated Budget for the design, engineering, and construction of the Improvements is Six Hundred Thirty-Seven Thousand, Eight Hundred and Ninety Dollars ($637,890.00), which has been approved by the District. District shall reimburse City for the actual costs incurred by City in constructing the Improvements, not to exceed $637,890.00;
3.02: Change Orders: In the event that District elects during the course of construction of

the Improvement to include items not called for in Exhibit “A” or contemplated by the approved Budget/Estimate of Cost, the cost of constructing such additional improvements shall be borne by the District and the maximum costs of Improvements as set forth in Paragraph 3.01 shall be adjusted accordingly. In the event that circumstances beyond the control of the District or City result in the need for a change order, which increases the approved Budget/Estimate of Cost for the Improvements, then the parties shall meet and confer in good faith as to how to allocate the costs that exceed the approved Budget/Estimate of Cost set forth in Paragraph 3.01 above.
3.03: Accounting of Costs: At such time as the construction of Improvements are complete and accepted by City and the Notice of Completion has been filed, City shall provide to District an itemized breakdown of the actual costs incurred by City as part of such construction, which shall not exceed $637,890.00 unless adjusted in accordance with the provisions of Paragraph 3.02 above.
3.04: Timing of Reimbursement Payment.
District agrees to reimburse City as discussed herein for construction of the Improvements within thirty (30) calendar days of submission of the Accounting of Costs as set forth in Paragraph 3.03 above.
4. Indemnification.
City shall indemnify, defend and save the District, its officers, agents and employees harmless from any and all claims, damages, losses, causes of action and demands, including reasonable attorney fees and costs, incurred in connection with or in any manner arising out of any claim by any individual or entity against District arising out of City’s design, engineering and construction of the subject roads and related improvements. City shall, at City’s own expense and risk defend any and all actions, suits, or other legal proceeding that may be brought or instituted against District, its officers, agents, and employees for any such claims, damages, losses, demands, liabilities, costs or expenses.
5. Complete Agreement.
This Agreement supersedes any and all agreements, either oral or in writing, between the parties with respect to the subject matter herein. Each party to this Agreement acknowledges that no representation by any party which is not embodied herein or any other agreement, statement or promise not contained in this Agreement shall be valid and binding.
6. Attorney Fees.
In the event of any action or proceeding brought by any party against any other pursuant to this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including the actual fees of its attorneys, including in-house counsel, incurred for prosecution, defense, consultation or advice in such action or proceeding, not limited to but including costs of expert witnesses, attorney preparation, court reporting fees, etc.
7. Binding Agreement.
Except as otherwise set forth herein, the terms and conditions of this Agreement shall be binding upon the parties hereto and upon their successors and assigns, and shall inure to the benefit of said parties and their successors and assigns.
8. Invalid Term.
If any provision of this Agreement is declared or determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining parts, terms and provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term or provision will be deemed not to be a part of this Agreement.
9. Modification.
This Agreement may not be altered, amended or modified or changed in any respect or particular whatsoever except by a writing duly executed by all parties hereto.
10. Representation of Comprehension of Document.
Each party has reviewed and revised, or had the opportunity to review and revise this Agreement; accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment of it.
11. Interpretation of Agreement.
The article, section and other headings of this Agreement are for convenience of reference only and shall not be construed to affect the meaning of any provision contained herein. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter.
12. Authorization.
Each person executing this Agreement represents that the execution of this Agreement has been duly authorized by the party on whose behalf the person is executing the Agreement and that such person is authorized to execute the Agreement on behalf of such party.
13. Work on District Property-Insurance.
To the extent City is required to perform work on District property as part of City’s obligations hereunder, City shall coordinate such work with the designated District representative and City, shall maintain, or require that its contractors and subcontractors working on District property maintain general liability insurance in the minimum amount of $1,000,000 with the District named as an additional insured, with thirty (30) days pre-cancellation notice to the District. The indemnification obligations set forth in paragraph four (4) above apply to all construction related activities including those conducted on District’s property.
14. Governing Law.
This Agreement is entered into in the State of California and shall be construed and interpreted according to the laws of that state.
IN WITNESS WHEREOF, the District has caused this Agreement to be properly executed and City has caused this Agreement to be properly executed, as of the date hereinabove set forth.

BRENTWOOD UNION CITY OF BRENTWOOD
SCHOOL DISTRICT


By: By:
Dr. J. Douglas Adams Name:
Superintendent Title:




EXHIBIT “A”

REIMBURSABLE IMPROVEMENTS


Amber Lane (930’ Empire School site frontage):

Reimbursable improvements including, but not limited to, paving, curb, gutter, sidewalk, sewer, water, joint trench, etc.

 

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