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CITY COUNCIL AGENDA ITEM NO. 9

Meeting Date: November 8, 2005

Subject/Title: Adopt a Resolution approving and authorizing the Mayor or Vice Mayor to execute Amendment No. 1 to the Reimbursement Agreement with McViking, L.L.C., (the “Developer” as agent for McViking, L.L.C. and Balfour Properties, L.L.C.), DR 01-34, Balfour Center for costs associated with Master Plan Facility Improvements.

Prepared by: Engineering: D. Galey

Submitted by: Engineering: B. Grewal

RECOMMENDATION
Adopt a Resolution approving and authorizing the Mayor or Vice Mayor to execute Amendment No. 1 to the Reimbursement Agreement with McViking L.L.C. (the “Developer” as agent for McViking, L.L.C., a California limited liability company and Balfour Properties, L.L.C., a California limited liability company), DR 01-34, Balfour Center, located at the southeast corner of Balfour Road and Fairview Avenue, 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 August 20, 2002, Planning Commission approved Planning Commission Resolution No. 02-49, approving Balfour Center, DR 01-34 and CUP 02-05 with conditions.

On August 26, 2003, City Council approved Resolution No. 2959, approving a Reimbursement Agreement with McViking, L.L.C. for costs associated with off-site Master Plan Facilities.

BACKGROUND
The Conditions of Approval for DR 01-34 and CUP 02-05, the 101,500 sq. ft. Safeway shopping center located at the southeast corner of Balfour Road and Fairview Avenue, 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 these improvements are constructed by a developer, they 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 or off-site improvements. To this end, City Council has previously approved a Reimbursement Agreement with the Developer for the traffic signal at Fairview Avenue and Arlington Way. During construction, field modifications were necessary to coordinate the new traffic signal with the alignment of the existing intersection. In addition, the developer, McViking, L.L.C., also upgraded and modified the traffic signal at the intersection of Balfour Road and Fairview Avenue to accommodate additional traffic and future development. This Master Planned facility upgrade has been planned and budgeted as a part of the City’s Capital Improvement Program (CIP), CIP Project No. 336-3132.

Section 3.6 of the Reimbursement Agreement states “reimbursable amount shall be based on actual areas and quantities. If it is determined that the areas and quantities have changed, the reimbursable amount may be adjusted”. Upon completion of construction, McViking L.L.C and their contractor provided actual quantities for the work, and costs incurred are for Master Planned facilities; therefore, they are reimbursable.

FISCAL IMPACT
Reimbursements will be made as cash payments since the Developer has already paid full fees at building permit issuance. Reimbursement will be made from the following facility and CIP accounts, which are included as a part of the previously approved Reimbursement Agreement and the 2005/06–2009/10 Capital Improvement Program Budget:

Roadway Facility Fees: $256,853.86
CIP Project No. 336-3132 - Signal Modifications and Upgrades: $16,000

Attachments:
Resolution
Reimbursement Agreement with Amendment No. 1

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO APPROVE AND AUTHORIZE THE MAYOR OR VICE MAYOR TO EXECUTE AMENDMENT NO. 1 TO THE REIMBURSEMENT AGREEMENT WITH MCVIKING L.L.C. (THE “DEVELOPER” AS AGENT FOR MCVIKING, L.L.C., A CALIFORNIA LIMITED LIABILITY COMPANY AND BALFOUR PROPERTIES, L.L.C., A CALIFORNIA LIMITED LIABILITY COMPANY), DR 01-34, BALFOUR CENTER, FOR COSTS ASSOCIATED WITH MASTER PLAN FACILITY IMPROVEMENTS.

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

WHEREAS, on August 20, 2002, Planning Commission adopted Planning Commission Resolution No. 02-49, which required the Developer of Balfour Center, DR 01-34, to make certain off-site 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, on August 23, 2003, City Council approved Resolution No. 2959, approving a Reimbursement Agreement with McViking, L.L.C. for Master Plan Facility Improvements; and

WHEREAS, Section 3.6 of the approved Reimbursement Agreement allows for adjustment of the reimbursable amount based on actual areas and quantities; and

WHEREAS, the Developer has constructed off-site improvements eligible for reimbursement greater than the quantities as identified in the previously approved Agreement.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve and authorize the Mayor or Vice Mayor to execute Amendment No. 1 to the Reimbursement Agreement with McViking L.L.C. (the “Developer” as agent for McViking, L.L.C., a California limited liability company and Balfour Properties, L.L.C., a California limited liability company), DR 01-34, Balfour Center, for costs associated with Master Plan Facility Improvements 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 8th day of November 2005 by the following vote:

REIMBURSEMENT AGREEMENT
BRENTWOOD MASTER PLANNED FACILITIES
MCVIKING, L.L.C. (THE “DEVELOPER” AS AGENT FOR
MCVIKING, L.L.C., AND BALFOUR PROPERTIES, L.L.C.)
DR 01-34 BALFOUR CENTER

1. PARTIES AND DATE

This Agreement is made August 26, 2003 between the City of Brentwood, California, a Municipal Corporation (the “City”) and, McViking, L.L.C. (the “Developer” as agent for McViking, L.L.C., a California limited liability company and Balfour Properties, L.L.C. a California limited liability company)

2. RECITALS

2.1 The Developer owns 10.13 Acres, known as the Balfour Center, DR 01-34 in the City (the “Developer’s Property”) included within 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 Plan(s) 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 reimbursement after completion and acceptance of facilities by City Council.

2.4 City has found 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 Master Plan 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 reasonable exercised discretion.

3.2 Source and Method of Reimbursement. City shall reimburse the Developer for the costs associated with the design, financing, construction, installation and inspection of the facilities indicated in Exhibit “B”, “Reimbursable Improvements”. The amount of the reimbursement shall be distributed 30 days after completion and acceptance by City Council of the Master Plan Improvements. The total reimbursable amount is indicated in Exhibit “C”, Reimbursement Calculation”, attached hereto. Reimbursements shall be made from like development fee funds and no other. Reimbursement shall be made from the facility fees collected from the Developer’s property.
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, the term of this agreement shall be extended one year. 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 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 DEVELOPMENT FEE PROGRAM. The parties acknowledge and agree that the reimbursement under this Agreement is estimated to be TWO HUNDRED FORTY NINE THOUSAND DOLLARS AND 00 CENTS ($249,000.00).

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 and areas. If it is determined 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 forms 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 additional 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, Workers’ 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. 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. Workers’ 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. All insurance companies affording coverage to Developer and/or general contractor or subcontractor 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 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 with a rating as stated in (i) above.

3.8 Commencement of Construction and Inspection. Developer and its contractor or subcontractors shall not commence construction of the Master Plan Improvements 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. The Developer shall require its employees, contractors, subcontractors and agents to comply with all instructions given by City during construction of the Master Plan Improvements. 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, its agents or 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 McViking, L.L.C.
City of Brentwood c/o McNellis Partners, L.L.C.
150 City Park Way 7423 Winding Way
Brentwood, CA 94513 Fair Oaks, CA 95628

with a copy to: McViking L.L.C.
c/o McNellis Partners, L.L.C.
419 Waverly St.
Palo Alto, CA 94301
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 of default to developer with a 30 day opportunity for developer to cure.

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.
DEVELOPER:
CITY OF BRENTWOOD MCVIKING, L.L.C. (as agent for McViking L.L.C. and Balfour Properties, L.L.C.)

BY: BY: ________________________
Brian Swisher, Mayor Name & Title

ATTEST:
BY: _____________________________
Karen Diaz, CMC, City Clerk

EXHIBIT "A"
"DEVELOPER'S PROPERTY"
MCVIKING, L.L.C.
DR 01-34 BALFOUR CENTER

MAP TO BE INSERTED HERE

EXHIBIT “B”
REIMBURSABLE IMPROVEMENTS
MCVIKING, L.L.C.
DR 01-34 BALFOUR CENTER

ROADWAY FACILITIES

Traffic Signal with interconnects Arlington Way and Fairview Avenue

EXHIBIT “C”
REIMBURSABLE IMPROVEMENTS CALCULATIONS
MCVIKING, L.L.C.
DR 01-34 BALFOUR CENTER

ROADWAY FACILITIES

Traffic Signal – Fairview Ave. and Arlington Way 1 EA @ $200,000/EA $ 200,000.00
Adjustment for Eng., Plan Check 12.5% $ 25,000.00
Adjustment for Financing 10% $ 20,000.00
Traffic Control 2% $ 4,000.00

Total Roadway Facilities Reimbursement $ 249,000.00

TOTAL ALL PRE-PAID FEES AND REIMBURSEMENTS $ 249,000.00

AMENDMENT NO. 1
REIMBURSEMENT AGREEMENT
BRENTWOOD MASTER PLANNED FACILITIES
MCVIKING, L.L.C. (THE “DEVELOPER” AS AGENT FOR
MCVIKING, L.L.C., AND BALFOUR PROPERTIES, L.L.C.)
DR 01-34 BALFOUR CENTER


3.4 Maximum Reimbursement. The total amount of the reimbursement obligation for the facilities described in Exhibit “B” is hereby revised to be TWO HUNDRED SEVENTY TWO THOUSAND EIGHT HUNDRED FIFTY THREE DOLLARS AND EIGHTY SIX CENTS ($272,853.86).

Exhibit “B” Reimbursable Improvements.

1. Traffic Signal with interconnects Arlington Way and Fairview Avenue
2. Traffic Signal controller upgrade Balfour Road and Fairview Avenue


Exhibit “C” Reimbursable Improvement Calculations.

Traffic Signal – Fairview Ave. and Arlington Way 1 EA @ $200,000/EA $ 200,000.00
Adjustment for Eng., Plan Check 12.5% $ 25,000.00
Adjustment for Financing 10% $ 20,000.00
Traffic Control 2% $ 4,000.00
Amendment 1
Field adjustments during construction $ 7,853.86

Total Roadway Facilities Reimbursement $ 256,853.86

Amendment 1
Traffic Signal Controller upgrade Balfour Road and Fairview Avenue $ 16,000.00
Funded by CIP Project 336-3132

TOTAL ALL PRE-PAID FEES AND REIMBURSEMENTS $ 272,853.86

CITY OF BRENTWOOD DEVELOPER
MCVIKING, LLC (as agent for McViking L.L.C. and Balfour Properties, L.L.C.)

By:_________________________ By:________________________________
Mayor Name and Title


Attest:_______________________
Margaret Wimberly, CMC, City Clerk
 

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