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CITY COUNCIL AGENDA ITEM NO. 9

Meeting Date: January 25, 2005

Subject/Title: Approve an Agreement and Authorize the City Manager to Execute the Approved Agreement with Brentwood Ready Mix concerning Water Provision to Parcel No. 018-200-017, also known as 2170 Elkins Way.

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Community Development Director
Dennis Beougher, City Attorney

RECOMMENDATION
Approve an Agreement and Authorize the City Manager to Execute the Approved Agreement with Brentwood Ready Mix concerning Water Provision to Parcel No. 018-200-017 - 2170 Elkins Way.

PREVIOUS ACTION
On October 8, 2002 the City Council approved Resolution No. 2684 and the Redevelopment Agency of the City of Brentwood approved Resolution No. RA-62 both authorizing the City Manager and the Executive Director to execute a Memorandum of Understanding with Brentwood Ready Mix for voluntary relocation assistance to Sunset Industrial Complex and directed the City Attorney to prepare and authorized the City Manager/Executive Director to Execute a Purchase and Sale Agreement.

On June 16, 2003, a Purchase Agreement and City’s Option to Repurchase between the City of Brentwood and Brentwood Ready Mix was executed. The voluntary relocation of Brentwood Ready Mix from its existing site on Brentwood Boulevard to a more appropriately zoned area in the Sunset Industrial Complex is viewed as a catalyst to the revitalization of Brentwood Boulevard. Further, a voluntary relocation of this industrial use, as well as other industrial users along Brentwood Boulevard, serves as the first implementation effort to attain the goals and objectives set by the Council to revitalize the Brentwood Boulevard corridor as the gateway to our City.

BACKGROUND
Brentwood Ready Mix is owned by Susan and Niels Larsen. The concrete batch plant business is a heavy water operation, and the current location on Brentwood Boulevard uses well water to supply its needs. The Larsen’s are aware that drilling a well at the new location is not an option. As part of the Larsen’s due diligence in determining the feasibility of relocating their business operations to Sunset Industrial Complex, the Larsen’s and City staff have had ongoing discussions of different ways to provide a reliable source of water to Brentwood Ready Mix.

The Larsen’s and City have agreed to connect the concrete batch plant to the City’s potable and non-potable water system in lieu of development of a well at 2170 Elkins Way. The Larsen’s agree to use the non-potable (recycled) water as their primary water source for its operations. The price of the recycled water is set by the City Council, recently at $1.08 per 1,000 gallons. The Larsen’s are aware that the water rate for recycled water is subject to change as determined by Council.

In the high unlikelihood that recycled water is unavailable, or the Larsen’s require potable water for contractual reasons as determined by Larsen’s customers or end users, the City agrees to supply potable water to the concrete batch plant through a bypass valve located upstream from the disinfection system at City’s Water Well No. 15. Well No. 15 is located in the corner of 2170 Elkins Way. Since the potable water being supplied by Well No. 15 is untreated by the City, the staff recommends that the water rates for the potable water supply be the same rates as recycled water in effect at the time of water delivery from Water Well No. 15.

Brentwood Ready Mix agrees to pay costs associated with connecting to the recycled water system and Well No. 15.

This proposed agreement represents the best efforts of the City to continue working with Brentwood Ready Mix to assist in its voluntary relocation from Brentwood Boulevard to Sunset Industrial Complex.

FISCAL IMPACT
None, since Brentwood Ready Mix will be charged for its use of water at the recycled water rates set by City Council, and will pay their own connection costs.

Attachment: Water Provision Agreement

AGREEMENT CONCERNING
WATER PROVISION TO PARCEL NO. 018-200-017
GENERALLY KNOWN AS BRENTWOOD READY MIX SITE
AT 2170 ELKINS WAY

THIS AGREEMENT CONCERNING WATER PROVISION TO PARCEL NO. 018-200-017 (“Agreement”) is entered into at Brentwood, California, this ________ day of ________________, 2005, by and between the CITY OF BRENTWOOD, a municipal corporation (“City”) and SUSAN LARSEN and NIELS LARSEN (collectively “Owner”).

Recitals

A. City is the owner of certain real property situated in Contra Costa County, California, commonly known as the Sunset Industrial Complex, and more particularly described in the Legal Description attached as Exhibit A incorporated by reference (“Property”), consisting of approximately 2.5 acres in area and identified as 2170 Elkins Way, APN 018-200-017; and

B. The City and Owner wish to participate in the voluntary relocation of the Owner’s existing concrete batch plant use, currently located at 6923 Brentwood Boulevard, to the Property within the Sunset Industrial Complex; and

C. Owner has agreed to purchase the Property for the consideration provided and under the specific terms in the Purchase Agreement, dated June 16, 2003, and subject to City’s option to repurchase the Property under certain terms, also specified in the Purchase Agreement and in the Memorandum of Understanding, dated September 23, 2002, among the City of Brentwood, the Redevelopment Agency of the City of Brentwood, and Susan and Niels Larsen (“MOU”); and

D. Owner seeks connection to the City’s potable and non-potable water system in lieu of development of water well on the property. The Property has a recorded deed restriction that prohibits the Owner from developing a water well and the City is in the process of completing a water well for community use immediately adjacent to the Property; and

E. As the Owner’s business, a concrete batch plant and related uses, requires a dependable water source, the City is willing to provide an unchlorinated potable water supply from the City’s Water Well No. 15 which is located adjacent to the Property and non-potable water from the adjacent distribution system.

F. This Agreement does not apply to the Property’s use of potable water for office and restroom or other domestic uses.

NOW, THEREFORE, it is agreed as follows:

Section 1 Non-Potable Water.

The Owner agrees to connect, pay construction costs and primarily use as its water source for its concrete batch plant on the Property the City’s non-potable water. The price of the non-potable water shall be established by the Brentwood City Council. At the time of this agreement, non-potable water rates have been established as $1.08 per 1,000 gallons and are subject to change as the cost to provide this service changes with time.

Section 2 Potable Water Usage.

The City agrees to supply potable water to the Owner’s concrete plant on the Property through a bypass valve located upstream from the disinfection system at the City’s Water Well No. 15 in emergency situations. Emergency situations are defined as:

1. If non-potable water is unavailable from the City for the Owner’s use in the operation of their concrete batch plant; or
2. If the Owner requires potable water for contractual reasons, as determined by the Owner’s customer and end user contractual requirements.

In emergency situations occurring during normal business hours, the Owner shall contact the City’s Public Works Department to request water delivery from the City’s Water Well No. 15. In emergency situations occurring after normal business hours, the Owner shall contact the stand-by operator in the City’s Public Works Department to request water delivery from the City’s Water Well No. 15. This protocol is subject to change by written notice from the City to the Owner, and such change shall not require an amendment to this Agreement. The City shall use its best efforts to provide potable water to the Property from the City’s Water Well No. 15 immediately upon request by Owner in emergency situations.

The Owner agrees to pay for and perform the necessary connection work from the City’s Water Well No. 15 to supply the Owner’s concrete plant on the Property in emergency situations. Performance of work shall be in accordance with City Engineer’s direction.

The City shall charge the Owner at the City’s non-potable water rates in effect at the time of water delivery from Water Well No. 15.

The City and Owner agree to the following facts:

1. The City cannot guarantee a dedicated water supply to Owner from Water Well No. 15 due to unforeseen conditions, malfunctions and interruptions.
2. Delivery from and use of the water supply from City’s Water Well No. 15 to the Brentwood potable water system is paramount to the requirements of the Owner.
3. The delivery of water to Owner by City from Water Well No. 15 is subject, but not limited to, the following exceptions as determined by the City Engineer:


a. Water Well No. 15 is inoperable or being serviced.
b. Water Well No. 15 becomes uneconomical for City use.
c. Water Well No. 15 is unable to produce potable water.
d. Public safety or public need requires the potable water from Water Well No. 15.

At the City’s discretion, Water Well No. 15 may be abandoned. If such abandonment occurs, the Owner shall have no rights to the water supply from Water Well No. 15 or from any other City water source to satisfy the intent of this Section 2.

Section 3 Indemnity and Insurance.

Owner 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 City’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 Owner or Owner’s agents. This indemnity shall extend to any claims arising because Owner has failed to properly secure any necessary easements, land rights, appropriate wages, contracts, and approvals, but shall not extend to any claims arising of the sole negligence or willful acts of the City.

Owner shall require all persons, contractors, and subcontractors doing work on the connection to the City’s Water Well No. 15 site to obtain and maintain insurance of the types and in the amounts normally required for City public works projects.

Section 4 Applicable Laws.

Owner shall insure that all work performed on Owner’s connections to City’s Water Well No. 15 and to the City’s non-potable water supply system is performed in a manner which complies with all applicable federal, state, county and local governmental laws, regulations, including all rules and regulations of the City, as these rules and regulations may be modified or changed from time to time. All work performed on the City’s Water Well No. 15 and City’s non-potable water supply connections shall be done only by contractors licensed in the State of California and currently qualified to perform the type of work required.

Section 5 Disputes.

Either party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, subject to the terms of this Agreement.

Section 6 Costs and Attorney’s Fees.

Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5,000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of the agreement. The above $5,000 limit is the total of attorney’s fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorney’s, trials, appeals, or actions. It is the intent of this agreement that neither party shall have to pay the other more than $5,000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.

Section 7 Arbitration.

Upon agreement of the parties, any dispute of claim arising out of or relating to this agreement may be settled by arbitration in accordance with the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by the parties.

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

CITY OF BRENTWOOD

By:______________________
Donna Landeros, City Manager

Attest:
________________________
Karen Diaz, CMC, City Clerk

Approved as to form:
_________________________
Dennis Beougher, City Attorney

OWNER
SUSAN LARSEN
________________________

NIELS LARSEN

________________________
EXHIBIT A
LEGAL DESCRIPTION

The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:

LOT 8, AS SHOWN ON THAT CERTAIN MAP ENTITLED TRACT 8588, SUNSET INDUSTRIAL COMPLEX, RECORDED APRIL 2, 2004, IN BOOK 462 OF MAPS, AT PAGES 35-45, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY.

EXCEPTING THEREFROM:

ALL OIL, GAS, CASINGHEAD GAS, ASPHALTUM, AND OTHER HYDROCARBONS, AND ALL CHEMICAL GAS, NOW AND HEREAFTER FOUND LYING MORE THAN FIVE HUNDRED FEE (500’) BELOW THE SURFACE OF SAID REAL PROPERTY, TOGETHER WITH THE RIGHT TO SLANT DRILL FOR AND REMOVE ALL OR ANY OF SIAD OIL, GAS, CASINGHEAD GAS, ASPHALTUM AND OTHER HYDROCARBONS AND CHEMICAL GAS LYING BELOW A DEPTH
OF MORE THAN FIVE HUNDRED FEET (500’) BELOW THE SURFACE OF SAID REAL PROPERTY OR UPON ANY PART OF SAID LANDS WITHIN FIVE HUNDRED FEET (500’) VERTICAL DISTANCE BELOW THE SURFACE OF SAID REAL PROPERTY, AS RESERVED IN THE DEED FROM RONALD ELLIS NUNN, ETAL RECORDED JANUARY 15, 1999, INSTRUMENT NO. 99-12522.

EXCEPTING THEREFROM ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES, AND MINERALS IN, UNDER OR RECOVERABLE FROM THE PORTION OF SUBSURFACE OF THE LAND LYING BELOW A PLANE PARALLEL TO AND 500 FEET VERTICALLY BELOW THE SURFACE OF SIAD LAND; AND THE RIGHT TO REMOVE THEREFROM SUCH OIL AND MINERALS FROM SAID SUBSURFACE SUBJECT TO AND COMPLYING WITH ALL APPLICABLE LAWS, INCLUDING LAWS OF THE CITY OF LAND LYING ABOVE A DEPTH OF 500 FEET FROM THE SURFACE. THE RIGHTS RESERVED HEREIN DO NOT AND SHALL NOT INCLUDE THE RIGHT TO ENTER UPON THE SURFACE OF SAID LAND OR ANY PORTION HEREOF LYING ABOVE A PLANE PARALLEL TO 500 FEET VERTICALLY BELOW THE SURFACE OF SAID LAND, AS RESERVED IN THE DEED FROM GEORGE STANLEY NUNN JR. & MEREDITH FITZGERALD NUNN RECORDED JANUARY 15, 1999, INSTRUMENT NO. 99-125-23.

ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY:

BEGINNING AT THE NORTHEASTERN CORNER OF SAID LOT 8; THENCE, FROM SAID POINT OF BEGINNING, ALONG THE EASTERN LINE OF SAID LOT 8, SOUTH 01° 23’ 00” WEST 50.02 FEET; THENCE LEAVING SAID EASTERN LINE, SOUTH 89° 40’ 33” WEST 30.01 FEET; THENCE, NORTH 01° 23’ 00” EAST 50.02 FEET TO A POINT ON THE NORTHERN LINE OF SAID LOT 8; THENCE, NORTH 89° 40” 33” EAST 30.01 FEET TO SAID POINT OF BEGINNING. CONTAINING 1,500 SQUARE FEET OF LAND, MORE OR LESS.

RESERVING TO THE GRANTOR ALL INTEREST IN SUBSURFACE WATER RIGHTS WITH NO RIGHT OF SURFACE ENTRY.

BEING A PORTION OF LOT 8, AS SAID LOT 8 IS SHOWN AND SO DESIGNATED ON THE OFFICIAL MAP OF SUBDIVISION 8588, AMENDED, RECORDED JUNE 7, 2004, IN BOOK 465 OF MAPS AT PAGE 21, IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY.

APN: 018-200-017
 

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