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CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: October 14, 2003

Subject/Title: Approve a Resolution approving a Reimbursement Agreement with DeNova Homes, Subdivision No. 8352, for costs associated with Master Plan Facility Improvements

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 DeNova Homes, Subdivision No. 8352, for costs associated with Master Plan Facility Improvements.

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 July 17, 2001, the Planning Commission approved Planning Commission Resolution No. 00-80 which approved Tentative Subdivision Map No. 8352, with conditions and added development standards.

BACKGROUND
This DeNova Homes, Subdivision No. 8352 is located south of Balfour Road and the John Muir Project, west of Concord Avenue. The Conditions of Approval for Tentative Subdivision Map No. 8352 required the Developer to make certain oversized and off-site Master Plan Facility Improvements. Master Plan Facility Improvements are those improvements that have been identified in the Master Infrastructure element of the General Plan. Under most circumstances when a Developer constructs these improvements, they provide capacity in excess of the needs of their development. 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 Developer also agreed to extend John Muir Parkway south to Ventura Drive.

The Master Plan Roadway Improvements that qualify for reimbursement in this agreement are over-sized roadway improvements along John Muir Parkway from the north boundary of this project to Eagle Rock Avenue and over-size roadway improvements along John Muir Parkway from Thomas Road to Ventura Drive. Also off-site 12” waterline and 12” non-potable waterline installed in John Muir Parkway, but not needed for this subdivision.

A careful review of the plans and estimates by staff resulted in a reduction in the scope of work and a savings to the City of approximately $240,000. If the final constructed quantities or items change, the agreement shall be modified to reflect those changes. The City Engineer has reviewed this agreement.

FISCAL IMPACT
Roadway, water and wastewater facility fee credits will be given for these Master Plan Facility Improvements, and the remaining roadway reimbursement, approximately $13,000 will be paid by check after completion and acceptance by City Council, as shown in Exhibit “C”.

Attachments:
Resolution
Reimbursement Agreement with Site Map

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REIMBURSEMENT AGREEMENT WITH DENOVA HOMES, SUBDIVISION NO. 8352 FOR COSTS ASSOCIATED WITH EXCESS CAPACITY AND OFF-SITE MASTER PLAN FACILITY IMPROVEMENTS

WHEREAS, on April 12, 1994, the City Council approved Resolution No. 94-63, which established a standard Reimbursement Agreement for Master Plan Facility Improvements; and

WHEREAS, on July 17, 2001, the Planning Commission adopted Planning Commission Resolution No. 00-80 which approved Tentative Subdivision Map No. 8352 and required the Developer to make certain off-site or excess capacity 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 excess capacity and off-site 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 DeNova Homes, for Master Plan Improvements constructed in conjunction with Subdivision No. 8352 covered under Tentative Subdivision Map No. 8352, as shown on the Reimbursement Agreement Site Map.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 14th day of October 2003 the by the following vote:


REIMBURSEMENT AGREEMENT
BRENTWOOD MASTER PLANNED FACILITIES
DENOVA HOMES
SUBDIVISION 8352

1. PARTIES AND DATE

This Agreement is made this 14th of October, 2003 by and between the City of Brentwood, California, a Municipal Corporation (the “City") and DeNova Homes (the "Developer").

2. RECITALS

2.1 The Developer owns Subdivision 8352 in the City (the "Developer's Property") included within the original Vesting Tentative Subdivision Map No. 8352 described in Exhibit "A" attached hereto.

2.2 As a condition to the development of Developer's Property, City required Developer to design, construct and install off-site or excess capacity Master Plan Improvements. The Master Plan Improvements are identified in the CITY OF BRENTWOOD 2002/03 DEVELOPMENT FEE PROGRAM dated July 23, 2002. Facility plans will be completed and approved by the City pursuant to Chapter 16.04 of the Code and are described in more detail in Exhibit "B" attached hereto.

2.3 Developer is willing to advance the costs of designing, financing, constructing, installing and inspecting the approved facilities subject to facility fee credits and reimbursements over time from the City.

2.4 City has found that this Agreement is in accordance with the requirements of Sections 16.130.030 and 16.130.040 of the Code and California Government Code Sections 66485 through 66489.

3. TERMS

3.1 Design and Construction of Improvements. Developer shall be solely responsible for designing, financing constructing, installing, providing for the inspection and bonding of the improvements. The improvements shall be fully completed and ready for acceptance within the time period set forth in the Subdivision Map Conditions of Approval. City shall approve the plans and specifications for the work prior to construction. The design, construction and installation of the Master Plan Improvements shall be to the satisfaction of City in its sole and reasonably exercised discretion.

3.2 Source and Method of Reimbursement. City shall reduce facility fees collected from the Developers property by the amount of any Assessment District pre-paid fees, if any. City shall reimburse Developer in the form of roadway facility fee credits for the costs associated with the design, financing, construction, installation and inspection of the facilities indicated in Exhibit “B” “Reimbursable Improvements”, the balance of which shall be paid by check thirty days after completion of construction and acceptance by Council. The amount of the reimbursement credit shall be distributed on a pro-rata share over the developer's total units. In no event shall the fee credit exceed the fee for a given fee category. The total reimbursable amount is indicated in Exhibit “C” "Reimbursement Calculation" attached hereto. In the event that 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. As an alternative to annual payments of remaining funds, the Developer may transfer the reimbursement balance due them to any other project owned or under contract by Developer in the City, in the form of fee credits. Transferred credits shall be applied to like development fee funds and no other. The Developer may also assign the remaining fee credits to another party subject to Section 3.20 of this agreement.

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, and the City is unable to issue the annual reimbursement payment, the term of this agreement shall be extended one year for a maximum of five years. 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 cash payment and fee credit 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 are estimated to be SEVEN HUNDRED TWENTY NINE THOUSAND EIGHT HUNDRED SIXTY FOUR DOLLARS.

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 by the City Engineer 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. Developer shall take out and maintain during the life of this agreement, Worker's compensation insurance for all Developer’s employees employed at the site of the work, and in case any of the work is sublet, Developer 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 Developer. In case any class of employee engaged in work under this agreement at the site of the project is not protected under any Workers’ Compensation law, Developer shall provide and shall cause each contractor and subcontractor to provide, adequate insurance for the protection of employees not otherwise protected. Developer hereby indemnifies City for any damage resulting to it from failure of Developer, its agents, employees, contractors or subcontractors to take out or maintain such 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 Master Plan Improvements.
iv. Maintain all insurance required herein from the time of execution of this Agreement until the acceptance of the Master Plan 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 Master Plan 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 Master Plan Improvements shall be subject to inspection by City. All fees and costs to construct the Master Plan 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 Master Plan 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 Master Plan 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 Master Plan 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 Master Plan Improvements.

3.12 Liability for Work Prior to Formal Acceptance. Until the City Council has formally accepted the Master Plan 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 Master Plan 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 Master Plan 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 Master Plan 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 Master Plan 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 DeNova Homes
City of Brentwood 1849 Clayton Road
150 City Park Way Concord, CA 94520-2513
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.

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: DENOVA HOMES

BY: BY: _______________________________ Brian Swisher, Mayor Name Title

ATTEST:

BY: ___________________________
Karen Diaz, CMC, City Clerk

EXHIBIT "A"
"DEVELOPER'S PROPERTY"
DENOVA HOMES
SUBDIVISION 8352

EXHIBIT "B"
DENOVA HOMES SUBDIVISION 8352
REIMBURSABLE IMPROVEMENTS
BASED ON 2002/03 DEVELOPMENT FEE PROGRAM

ROADWAY FACILITIES

Construction of John Muir Parkway from the northern boundary of
project to Eagle Rock Avenue, one lane in each direction with median
curb and gutter

Extension of John Muir Parkway from Thomas Road south to Ventura Drive,
full westerly improvements, landscaped and irrigated median, and one lane
one the east side


WATER FACILITIES

12” Waterline in John Muir Parkway – Eagle Rock Avenue to Ventura Drive


WASTEWATER FACILITIES

12” Non-potable waterline in John Muir Parkway – Eagle Rock Avenue to Ventura Drive

EXHIBIT "C"
DENOVA HOMES SUBDIVISION 8352
REIMBURSEMENT CALCULATION
BASED ON 2002/03 DEVELOPMENT FEE PROGRAM

ROADWAY FACILITIES
John Muir Parkway – oversize only from northern boundary of project
to Eagle Rock Avenue @1,400 LF, 1 Each - 14’ wide lane in each direction,
plus median curb and gutter
Sub Total Construction Cost $ 287,294
Adjustment for Engineering, Plan Check 12 ½ % $ 35,912
Adjustment for Finance 10 % $ 28,729
Adjustment for Traffic Control 2 % $ 5,746
Mobilization and Winterization LS $ 13,000
Sub Total Construction Costs $ 370,681
Less cost of secondary access per COA ($ 116,029)
Construction Cost John Muir Parkway North $ 254,652

Southern Extension John Muir Parkway to Ventura Drive not in COA
John Muir Parkway from Thomas Road to Ventura Drive 900 LF
full westerly half improvements, full median w/landscape & irrigation,
one 14’ lane on east side
Sub Total Construction Cost $ 360,308
Adjustment for Engineering & Plan Check 12 ½ % $ 45,039
Adjustment for Finance 10 % $ 36,031
Mobilization, Winterization & Traffic Control LS $ 30,000
Sub Total Additional Work $ 471,378
Less Developers Responsibility John Muir 900 @ $265/LF ($ 238,500)
Construction Cost John Muir Parkway South $ 232,878

Total Road Facilities Reimbursements/Credits $ 487,530

Less Current Roadway Facility Fees to be taken as credits
60 Each @ $7,909.41 ($ 474,565)
Total Roadway Facility Cash Payment after Council Acceptance $ 12,965

WATER FACILITIES
12” Waterline in John Muir Parkway from Eagle Rock to Ventura
2322 LF @ $27/LF plus 7 Valves @ $1500/EA $ 73,194
Adjustment for Eng. & Plan Check 12 ½ % $ 9,149
Adjustment for Financing 10% $ 7,319
Total Water Facilities Reimbursements/Credits $ 89,662

WASTEWATER FACILITIES
12” Non-potable waterline in John Muir Parkway from Eagle Rock to Ventura Drive
2266 LF @ $55/LF plus 7 valves @ $1500/EA $124,630
Adjustment for Eng. & Plan Check 12 ½ % $ 15,579
Adjustment for Financing 10% $ 12,463
Total Wastewater Facilities Reimbursements/Credits $ 152,672

TOTAL ALL REIMBURSEMENTS/CASH PAYMENTS THIS AGREEMENT $ 729,864

 

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