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 CITY COUNCIL AGENDA ITEM NO. 6

Meeting Date: March 22, 2005

Subject/Title: Adopt a Resolution approving a Reimbursement Agreement with Signature Properties, Subdivision No. 8537, located south of Chestnut Street and east of Garin Parkway, for costs associated with Master Plan Facility Improvements.

Prepared by: Engineering: P. Eldredge

Submitted by: Engineering: B. Grewal

RECOMMENDATION
Adopt a Resolution approving a Reimbursement Agreement with Signature Properties, Subdivision No. 8537, located south of Chestnut Street and east of Garin Parkway, for costs associated with Master Plan Facility Improvements.

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

On March 17, 1992, Planning Commission approved Planning Commission Resolution No. 92-04, which approved Vesting Tentative Subdivision Map No. 7605, a 490 single family residential project with conditions.

BACKGROUND
Subdivision No. 8537 is located south of Chestnut Street and east of Garin Parkway. The Conditions of Approval for VTSM No. 7605, which includes Subdivision No. 8537, required the Developer to make certain 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 Master Improvements that qualify for reimbursement in this agreement are in the following three facility categories:

1. Roadway Facilities
a. Sellers Avenue west side street improvements from Chestnut Street to Balfour Road.
b. Chestnut Street soundwall, south side from the approximate intersection of Chestnut Street and Oak Street easterly to the existing detention basin.
2. Wastewater Facilities
a. Nonpotable waterline from the Wastewater Treatment Plant southerly to Chestnut Street.
b. Chestnut Street sewer interceptor, 12” sewer main between Third Street and Birchwood Road.
3. Water Facilities
a. Well #13, 300 GPM capacity.
Staff has reviewed as-built plans and final contracts to confirm constructed quantities. The City Engineer has reviewed this agreement.

FISCAL IMPACT
Reimbursements will be made as cash payments from the following CIP project accounts and facility fees, which are all included as a part of the previously approved 2004/05–2008/09 CIP Budget:

CIP Project No. 592-5912, Non-potable Water Distribution System – Phase I (funded by wastewater facility fees) $861,968.29

CIP Project No. 562-5616, Well Site Improvements (funded by water facility fees) $141,324.43

CIP Project No. 592-5913, Sewer Collection System Upgrade – Downtown (funded by Redevelopment) $177,599.60

Roadway Facility Fees $130,428.72

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 SIGNATURE PROPERTIES SUBDIVISION NO. 8537 (TSM NO. 7605) LOCATED SOUTH OF CHESTNUT STREET AND EAST OF GARIN PARKWAY, FOR COSTS ASSOCIATED WITH EXCESS CAPACITY AND OFF-SITE MASTER PLAN FACILITY IMPROVEMENTS.

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

WHEREAS, March 17, 1992, Planning Commission approved Planning Commission Resolution No. 92-04, which approved Vesting Tentative Subdivision Map No. 7605, a 490 single family residential project 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 has constructed 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 Signature Properties for Improvements constructed in conjunction with Subdivision No. 8537 (TSM No. 7605), 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 22nd day of March 2005 by the following vote:

REIMBURSEMENT AGREEMENT
BRENTWOOD MASTER PLANNED FACILITIES

SUBDIVISION NO. 8537

1. PARTIES AND DATE

This Agreement is made this 22nd day of March, 2005 by and between the City of Brentwood, California, a Municipal Corporation (“City") and Signature Properties ("Developer").

2. RECITALS

2.1 The Developer owns Subdivision No. 8537 in the City ("Developer's Property") included within the original Vesting Tentative Subdivision Map No. 7605 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 offsite or excess capacity Master Plan Improvements (“Improvements”). The Improvements are identified in the CITY OF BRENTWOOD 2004 DEVELOPMENT FEE PROGRAM dated February 10, 2004. Facility plans have been completed and approved by the City pursuant to Chapter 16.120 of the City of Brentwood Minicipal Code (“Code”) and are described in more detail in Exhibit "B" attached.

2.3 Developer is willing to advance the costs of designing, financing, constructing, installing and inspecting the approved facilities subject to facility reimbursement 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 and 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 Tentative Subdivision Map No. 7605 Conditions of Approval. City shall approve the plans and specifications for the work prior to construction. The design, construction and installation of the Improvements shall be to the satisfaction of the City in its sole and reasonable exercised discretion.

3.2 Source and Method of Reimbursement. City shall reimburse Developer by check for the costs associated with construction and installation of the facilities indicated in Exhibit “B” “Reimbursable Improvements”. Reimbursement shall be made upon completion of construction to the satisfaction of the City. The total reimbursable amount is indicated in Exhibit “C” "Reimbursement Calculation" attached hereto.

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 reimbursement, unless the obligation is sooner satisfied. In the event there are insufficient funds in the facility fee fund responsible for the Improvements constructed by the Developer, and the City is unable to issue the 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 reimbursement.

3.4. Maximum Reimbursement. The total amount of the reimbursement obligation over the life of this Agreement for the type of facilities described in Exhibit "B" shall be as determined by the CITY OF BRENTWOOD 2004 DEVELOPMENT FEE PROGRAM and shall be reimbursed to developer from the following City funds:

Roadway Facilities
-Sellers Avenue – off-site improvements, west side from Chestnut Street to Balfour
Road = $77,839.72
-Soundwall – off-site improvements, Chestnut Street south side from the approximate intersection of Chestnut Street and Oak Street easterly to the existing detention basin = $52,589.00
TOTAL REIMBURSABLE ROADWAY FACILITIES $130,428.72
Funded by roadway facilities account

Wastewater Facilities
-20” Non-potable Water Line – off-site improvements, Wastewater Treatment Plant to
Chestnut Street = $861,968.29 funded by CIP Project No. 592-5912-90050
-Chestnut Street Sewer Interceptor – off-site improvements, 12” sewer main, Third
Street to Birchwood Road = $177,599.60 funded by CIP Project No. 592-5913
90050
TOTAL REIMBURSABLE WASTEWATER FACILITIES $1,039,567.89

Water Facilities
Well #13 – oversized improvements, 300 GPM capacity
Total well cost $199,084.67
Less developer’s responsibility $57,760.24
TOTAL REIMBURSABLE WATER FACILITIES $141,324.43
Funded by CIP Project No. 562-5616-90050

The parties acknowledge and agree that the reimbursements under this Agreement are to be ONE MILLION TWO HUNDRED SIXTY-SEVEN THOUSAND THREE HUNDRED SIXTY DOLLARS AND SEVENTEEN CENTS ($1,311,321.04).

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

3.6 Areas and Quantities. The reimbursable amount is 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 accordingly.

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 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. Developer shall maintain 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. 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. Developer shall maintain business automobile liability insurance or equivalent form with a limit of not less than $1,000,000.00 each accident. 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 Improvements.
iv. Maintain all insurance required herein from the time of execution of this Agreement until the acceptance of the Improvements.
v. Place all insurance required herein with insurers licensed to do business in California.

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

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

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

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

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

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

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

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

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

CITY: DEVELOPER:
City Manager Signature Properties
150 City Park Way Attn: Dave Miller
Brentwood, CA 94513 4670 Willow Road, Ste. 200
Pleasanton, CA 94588

3.17 Termination. In the event that Developer defaults in the performance of any of its obligations under this agreement or materially breaches any of the provisions of this agreement, City shall have the option to terminate this agreement upon written notice to Developer.

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

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

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

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

CITY OF BRENTWOOD DEVELOPER:

BY: BY: _______________________________ Mayor Name Title

ATTEST:

BY: ___________________________
Cynthia Garcia , Interim City Clerk

EXHIBIT "A"
"DEVELOPER'S PROPERTY"

SUBDIVISION NO. 8537 (TSM NO. 7605)

EXHIBIT “B”
REIMBURSABLE IMPROVEMENTS

SUBDIVISION NO. 8537 (TSM NO. 7605)

Roadway Facilities

Sellers Avenue – off-site improvements, west side from Chestnut Street to Balfour Road
Soundwall – off-site improvements, Chestnut Street south side from the approximate intersection of Chestnut Street and Oak Street easterly to the existing detention basin

Wastewater Facilities

20” Nonpotable Water Line – off-site improvements, Wastewater Treatment Plant to Chestnut Street
Chestnut Street Sewer Interceptor – off-site improvements, 12” sewer main, Third Street to Birchwood Road

Water Facilities

Well #13 – oversized improvements, 300 GPM capacity

EXHIBIT “C”
REIMBURSABLE IMPROVEMENTS CALCULATIONS

SUBDIVISION NO. 8537 (TSM NO. 7605)

Roadway Facilities

Sellers Avenue – off-site improvements, west side from Chestnut Street to Balfour Road = $77,839.72
Soundwall – off-site improvements, Chestnut Street south side from the approximate intersection of Chestnut Street and Oak Street easterly to the existing detention basin = $52,589.00

TOTAL REIMBURSABLE ROADWAY FACILITIES $130,428.72
Funded by roadway facilities account

Wastewater Facilities

20” Non-potable Water Line – off-site improvements, Wastewater Treatment Plant to Chestnut Street = $861,968.29 funded by CIP Project No. 592-5912-90050
Chestnut Street Sewer Interceptor – off-site improvements, 12” sewer main, Third Street to Birchwood Road = $177,599.60 funded by CIP Project No. 592-5913-90050

TOTAL REIMBURSABLE WASTEWATER FACILITIES $1,039,567.89

Water Facilities

Well #13 – oversized improvements, 300 GPM capacity
Total well cost $199,084.67
Less developer’s responsibility $57,760.24

TOTAL REIMBURSABLE WATER FACILITIES $141,324.43
Funded by CIP Project No. 562-5616-90050

TOTAL ALL REIMBURSEMENTS $1,311,321.04

 

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