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Home My WebLink AboutMINUTES - 09092003 - C.130 S, TO: BOARD OF SUPERVISORSt: - CONTRA �:1.. . ,, {• COSTA OUNTY FROM: John Sweeten, County Administrator a DATE: September 9, 2003 SUBJECT: Interim Reimbursement Agreement Among the County, the City of San Ramon, ShapeN Industries and Windemere BLC Land Company in Dougherty Valley SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION(S): 1. APPROVE and AUTHORIZE the County Administrator or his designee to sign the full and final Settlement and Release of Claim and Agreement regarding advance of funds in the form attached hereto on behalf of the County. 2. DIRECT the Auditor-Controller to issue warrants in the amount of the payments set forth in Sections 3 and 4 of the Agreement. BACKGROUNDIREASOWS) FOR RECOMMENDATIONS): County staff, Shapell Industries and Windemere BLC Land Company have been working on a comprehensive Reimbursement Agreement pursuant to both the Settlement Agreement and Memorandum of Understanding relating to the development of the Dougherty Valley. Since the process has taken longer than anticipated, all parties have agreed to an interim reimbursement agreement that covers the initial years of development and City services provided within CSA M- "29. This interim reimbursement agreement will reimburse the City of San Ramon $1,024,843 for services beginning in FY 97-98 through FY 01-02. Included within this amount is $347,520 as an advance against FY 02-03 City expenditures, which will be submitted in the next three months. All parties will be meeting over the remainder of the year in order to develop a comprehensive long-term Reimbursement Agreement that can be considered by the Board of Supervisors, City Council and corporate officers to reflect the intentions of the Settlement Agreement and MOU. CONTINUED ON ATTACHMENT: —YES SIGNATURE: _ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMOF BOARD COMMITTEE ENDATION APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON September 9. 24013 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A X UNANIMOUS(ABSENT V ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ABSENT: ABSTAIN: ON MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: ATTESTED SPptamber 9, 2003 - JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR cc: CAO , Y BY EPUTY FULL ANIS FINAL SETTLEMENT AND RELEASE OF CLAIM AND AGREEMENT REGARDING ADVANCE OF FUNDS This FULL AND FINAL SETTLEMENT AND RELEASE OF CLAIM AND AGREEMENT REGARDING ADVANCE OF FUNDS ("Agreement"), effective as of the qday of T ey', 2403, is entered into by and among the COUNTY OF CONTRA COSTA, a political subdivision of the State of California("COUNTY"), the CITY OF SAN RAMON, a municipal corporation("CITY"), SHAPELL INDUSTRIES, INC., a Delaware corporation ("SHAPELL") and WINDEMERE BLC LAND COMPANY LLC, a California Limited Liability Company("WINDEMERE"). SHAPELL and WINDE.MERE are referred to herein collectively as the"DEVELOPERS." RECITALS A. During fiscal years 1999-2004, 2000-2001 and.2441-2402, CITY provided services to, and expended funds to operate and maintain infrastructure and facilities located in, Contra Costa County Service Area M-29 ("CSA M-29"), B, CITY has submitted,a claim to COUNTY for fiscal years 1999-2040 through 2401-2442 for reimbursement of the portion of CITY's expenditures related to CSA M-29 that exceed revenues previously received by CITY to offset its expenditures for those years. C. CITY has not yet submitted a claim to COUNTY"for reimbursement of CITY expenditures for services provided in CSA M-29 during fiscal year 2042-2403, but has requested an advance payment (prior to submission of its claim)to reimburse a portion of those expenditures. D. In order to facilitate payment to CITY for services provided to CSA M-29 during fiscal years 1999-2000, 2000-2001 and 2401-2042, the parties are willing to agree that COUNTY willl make the payments to CITY that are set forth below, and to waive any and all claims for additional payment or contesting the amount of payment. E. The parties are also willing to agree that COUNTY will advance certain sums to CITY, on the terms and conditions provided herein, for services provided during fiscal year 2042-2003. AGREEMENT 1. Pose. The purpose of this Agreement is to provide for payment to CITY of the sums set forth below and to fully and finally settle any claims by CITY for payment for fiscal years 1997-1998 through 2001-2002. 1 2. Effective Date. This Agreement is subject to approval of the DEVELOPERS and the governing bodies of COUNTY and CITY. This Agreement shall first be submitted to DEVELOPERS and CITY for approval, and, if approved, shall be submitted to COUNTY's governing body for approval. This Agreement shall be effective on the date approved by COUNTY's governing body(the"Effective Date"). 3. Payments for Fiscal Yens 1999-2000, 2000-2001 and 2001-2002. Within a reasonable time following the Effective Date, COUNTY will make each of the following payments to CITY: A. For Fiscal Year 1999-2004: $48,569; B. For Fiscal Year 20 00-2001: $100,386; . C. For Fiscal Year 2001-2-442: $528,368. 4. Advance Payment for Fiscal Year 2002-2003. COUNTY will make an advance payment to CITY for fiscal year 2002-2003 in the amount of$347,520, which sum represents the estimated I% property tax for fiscal year 2002-2003 allocable to CSA M-29, and which sum shall be applied as a credit against any claim submitted by CITY for reimbursement for services provided by CITY in CSA M-29 during fiscal year 2002-2003 or thereafter. 5. Waiver of Further ClaimsforReimbursement, and Challenges to Pa eats M4de, for Fiscal Years 1997-1998-through-2001-2002. CITY hereby waives, releases and discharges COUNTY, its officers, agents and employees, from all ftirCher claims for payment for fiscal years 1997-1998, 1998-1999, 1999-2000, 2000-2001 and 2001-2002, including all claims for services provided to, or funds expended to operate and maintain infrastructure and facilities located in, CSA M-29, CITY and DEVELOPERS hereby waive, release and discharge COUNTY, its officers, agents and employees, from any and all rights, claims, demands, causes of action, obligations, damages and liabilities, . including without limitation, attorneys' fees and costs, which CITY or DEVELOPERS now have or could assert now or at any time in the future against COUNTY arising from the payments made by COUNTY in accordance with this Agreement. CITY and DEVELOPERS expressly waive all rights under Section 1542 of the Civil Code of the State of California,which CITY and DEVELOPERS understand provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WI-1ICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 2 6, No Effect on Further Claims for Reimbursement, The parties have agreed to the payments set forth above for fiscal years 1999-2000, 2000-2001, and 2001-2002 solely to facilitate payment to CITY for services provided and expenditures made during those ffical years. The fact that the parties have agreed to make the payments set forth above, including the advance payment for fiscal year 2002-2003, shall not be construed as precedent or authorization for any payments for any services provided by CITY"in CSA M-29 during fiscal year 2002-2003 or any subsequent fiscal year. 7, A regiment Modification. This Agreement shall be subject to modification only with the written consent of the DEVELOPERS and the legislative bodies of CITY and COUNTY. No pasty shall unreasonably withhold its consent to modification for the implementation and accomplishment of the overall purpose for which this Agreement is made. 8. Entire Agreement. This Agreement, including the Recitals, contains the entire understanding of the parties relating to the subject matter of this Agreement. Any representation or promise of the pasties shall not be enforceable unless it is contained in this Agreement or in a subsequent written modification of this Agreement executed by the DEVELOPERS and the legislative bodies of CITY and COUNTY. 9, Counterparts. The parties hereto recognize and agree that separate counterpart signature pages may be used but that all such pages constitute one and the same Agreement, 10. Const_action. The section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the parties to this Agreement. The section headings, captions and arrangement of this instrument do not in any way affect, limit, amplify or modify the terms and provisions of this Agreement. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if all parties have prepared it, The parties to this Agreement and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement, The Recitals are, and shall be enforceable as, a part of this Agreement. 11. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected. r. (continued on page 4) 3 12. Govert inLaw and Venue. This Agreement shall be governed and construed in accordance with California lave. The venue of any litigation pertaining to this Agreement shall be Contra Costa County, California. SHAPELL INDUSTRIES, INC., WINDEMERE BLC LAND COMPANY a Delaware corporation LLC, a California Limited Liability Company By: r- t-z• By: LEN-OBS WINDEMERE LLC, a Delaware Limited Liability Company Its: /� 47 Its Managing Member By: LENNAR HOMES OF CALIFORNIA, By: W �� INC., a California Corporation Its: k'c VIts Managing Member �. By: Its: By: Its: CON COSTA C 'C TNTY" CITY OF SAN RAMON By By Co Administrator City Manager APPROVED AS TO FORM: APPROVED AS TO FORM: Silvana B. Marchesi County Counsel By `r rn ,tl� By: Deputy City Attorney HADougherty valteff ull and Final Release and SeWenvrA ofClaim for Reimbursement and Agreement Regarding Adva=ofFunds.wpd 4 12. Governing Law and Venue. This ALyreement shall be governed and construed in accordance with California law. The venue of any litigation pertaining to this"Agreement shall be Contra Costa County, California. SHAPELL INDUSTRIES, INC., WINDEMERE BLC LAND COMPANY a Delaware corporation LLC, a California Limited Liability Company By: By: LEN-OBS WINDEMERE LLC, a Delaware Limited Liability Company Its: Its Managing Member By: LENNAR HOMES OF CALIFORNIA, By: C0�a ' ornia Corporat'onI*ks ember Its: B ° Its: { By: A VA,&AAA --b w4r- — -- Its: Vita. ' Csit� CONTRA COSTA COUNTY CITY OF SAN RAMON By By County Administrator City Manager APPROVED AS TO FORM: APPROVED AS TO FORM: Silvana B. Marchesi County Counsel By By: Deputy City Attorney HADougherty valley\Full and Final Raleasa and Settlement ofClaiin for Relmbursement and Agreauout Regarding Advance ofFun&.wo 4 09/04/2003 15:12 9259060118 CITY OF SAN RAMON PAGE 05/05 SEP-04-2003 11:38 Contra Ccs'ca County 925 335 1096 P.05/OS 12. Govern` a Law=d V ue. This Agreement shaU be governed and constmed in accordatce with Caffonia law. The v=ue ofaaY litigation pertaining to this'Agrec mesa shall be Contra Costa County, California. SHAPELL D;DUSTRMS, INC., WLNDFNFRE BLC LAND CONTAN'Y a Delaware corpcn'ation LLC, a California Limited Liability Company By: By: LEN-OBS WR4DENi1WRE LLC, a Delaware Limited LiablitY ConIpany ,Its: Its Mana, g Member By: LENNAR HOMES OF CALIFORNIA, By: INC., a Cali bmia Corporation Its Managing Member Its: By: Its., By: Its: CONTRA COSTA COUNTY CITY gy SANRAM By By o-� County Administrator , ity Mager APPROVED AS TO FORM: APPROVED AS TO FORM: Silvano B. Marchesi County Counsel By By:c&, ', Deputy City Attorney H:0ou0hc 3y V'allz)AF0 asd Final Release a®d 5cW=vn9ofClaim SirRcimbuts=0&Ad AWkm WntPaWx&ng Advam of2'undawpd 4 T07AL P-05