HomeMy WebLinkAboutMINUTES - 02132007 - C.14 J Q
___
TO: BOARD OF SUPERVISORS, AS GOVERNING Contra
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BOARD OF THE FLOOD CONTROL & WATERY: `.
CONSERVATION DISTRICT = _ s Costa
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FROM: MAURICE M. SHIU, CHIEF ENGINEER County
DATE: February 13, 2007
SUBJECT: Approve a Reimbursement Agreement between the Contra Costa County Flood Control and Water
Conservation District and DS Lone Tree Plaza, LLC, and Donahue Schriber Asset Management
Corporation for Drainage Area 30C Improvements, Brentwood area. (Drainage Area 30C Funds)
(District III)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDED ACTION:
APPROVE a reimbursement agreement of$191,810 between the Contra Costa County Flood Control and Water
Conservation District (Flood Control District) and DS Lone Tree Plaza, LLC, and Donahue Schriber Asset
Management Corporation effective February 13, 2007, through February 13, 2017, as stated in Exhibit`B"of the
Agreement, and AUTHORIZE the Chair of the Board to execute the agreement on behalf of the Flood Control
District.
FISCAL IMPACT:
Drainage fees on hand will pay this reimbursement from Drainage Area 30C funds.
CONTINUED ON ATTACHMENT: ❑x SIGNA
RECOMMENDATION OF COUNTY ADMINISTRATOR ECOMMENDAT OF BOARD ITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOD / &A+��' w !/ ,*VED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS: a I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT
o Y COPY OF AN ACTION TAKEN AND ENTERED ON
V/— UNANIMOUS(ABSENT �j}'fr/�/� .4 ) MINUTES OF THE BOARD OF SUPERVISORS ON T14E
AYES: NOES: DATE SHOWN.
ABSENT: ABSTAIN:
Contact: Bob Faraone(925)313-2390
RVF:TJtMoar y Z'?
G:\F1dCtl\Board Orders 2005 Onward\2007 BO\DA 30C Line AS Reimbursement ATTESTED gk/�r
Agreement BO 2-13-07.doc JOHN CULLEN,CLE OF THE BOARD OF
SUPERVISORS
cc: CAO
County Counsel
Tim Jensen,Flood Control
BY: DEPUTY.
SUBJECT: Approve a Reimbursement Agreement between the Contra Costa County Flood Control and Water
Conservation District and DS Lone Tree Plaza, LLC, and Donahue Schriber Asset Management
Corporation for Drainage Area 30C Improvements, Brentwood area. (Drainage Area 30C Funds)
(District III)
DATE: February 13, 2007
PAGE: 2 of 2
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
DS Lone Tree Plaza,LLC,and Donahue Schriber Asset Management Corporation constructed Drainage Area 30C
Line A5 planned facilities as part of Subdivision 8515, in the City of Brentwood. DS Lone Tree Plaza, LLC, and
Donahue Schriber Asset Management Corporation is entitled to reimbursement of the drainage facility construction
costs in excess of its drainage fees, as provided for in the Flood Control District's Drainage Area Credit and
Reimbursement Policy.
CONSEQUENCES OF NEGATIVE ACTION:
Non-approval of the agreement would be inconsistent with the adopted Credit and Reimbursement Policy.
i
CONTRA COSTA COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT
REIMBURSEMENT AGREEMENT
1. PARTIES. Effective Eel ru arV iQ7 , the Contra Costa County Flood
Control and Water Conservatioi�trict, a body corporate and politic of the State of
California, (hereinafter called "DISTRICT"), and DS Lone Tree Plaza, LLC, a California
limited liability company, and Donahue Schriber Asset Management Corporation; a
Delaware corporation,as tenants-in-common,(hereinafter called"DEVELOPERS")mutually
agree as follows:
2. INTRODUCTION.
A. DEVELOPERS are subdividing the property designated as Subdivision 8515 within
Drainage Area 30C (DA 30C). Said development is within the jurisdiction of the
City of Brentwood (hereinafter called "CITY). To satisfy CITY's conditions of
approval for said development,DEVELOPERS must install a portion of the drainage
facilities (specifically,DA 30C Line A5 from the project site located west of Jeffery
Way to Empire Avenue) shown on the adopted Drainage Plan for DA 30C.
B. The cost to install these facilities exceeds the amount of drainage fee required by the
drainage fee ordinance for said drainage area, Ordinance No. 98-57.
C. DISTRICT has adopted a Drainage Area Credit and Reimbursement Policy for said
drainage area.
D. Since DISTRICT has an effective Drainage Plan and a Drainage Area Credit and
Reimbursement Policy for said drainage area,DEVELOPERS has requested that the
DISTRICT enter into this agreement with DEVELOPERS, pursuant to said policy.
3. TERMS. DISTRICT shall reimburse DEVELOPERS for eligible costs exceeding the
amount of fees required by said ordinance, in accordance with the terms of this agreement
and the DISTRICT's above-mentioned Drainage Plan and the Drainage Area Credit and
Reimbursement Policy for said drainage area, which policy is attached as Exhibit "A," and
made a part hereof by this reference.
4. ELIGIBLE COSTS. The drainage facilities, right-of-way, and other items eligible for
reimbursement and,their estimated costs are outlined on Exhibit "B", attached hereto and
incorporated herein by this reference.
Page 1
5. DEDICATION OF EASEMENTS. Easements containing the drainage facilities covered by
this agreement shall be offered for dedication to CITY.
6. CONFORMANCE TO PLANS AND SPECIFICATIONS. The drainage facilities covered
by this agreement shall be installed in conformance with the plans and specifications
prepared by DEVELOPERS and approved by CITY. DISTRICT shall be under no obligation
to perform under this agreement unless the drainage facilities are accepted as complete by
CITY.
7. HOLD HARMLESS. DEVELOPERS shall defend,indemnify,save and hold DISTRICT,its
governing body, officers, agents and employees absolutely free,clear,and harmless from any
claims, actions, or costs arising from any property and/or rights acquisition which may be
necessary hereunder, or arising from any and all damage to property, injury to persons,
including death, or any other type of liability arising as a result of DEVELOPERS'
installation of the drainage facilities required by the conditions of approval for said
development.
8. NON-RESPONSIBILITY OF DISTRICT. The installation of drainage facilities covered by
this agreement is the sole responsibility of DEVELOPERS,except for the rnonnal inspection
provided by the CITY. DISTRICT assumes no responsibility whatsoever for construction
procedures and methods utilized by DEVELOPERS in constructing the drainage facilities.
9. PAYMENT. Payment terms are set forth in Exhibit "A", except that the first payment shall
not be made until the DEVELOPERS submit to DISTRICT acceptable evidence that
DEVELOPERS has paid for installation of the drainage facilities covered by this agreement.
10. TERMINATION. This agreement shall remain in effect either(1)for the time as provided in
Section V.B. of Exhibit "A" or (2) until DEVELOPERS has been reimbursed for the total
eligible reimbursement amount, whichever first occurs. Non-submittal of the acceptable
evidence of payment required by Section 9 shall not result in an extension of the termination
date.
11. NO OTHER RECOURSE AGAINST DISTRICT.
A. This agreement constitutes the total statement of rights between DISTRICT and
DEVELOPERS concerning payment or reimbursement for costs of installing the
drainage facilities exceeding the required drainage fees.
Page 2
B. If, after the expiration of the time described in Section V.B. of Exhibit "A",
DEVELOPERS has not received the total reimbursement amount,DEVELOPERS shall
have no right to further reimbursement by DISTRICT from any drainage fees thereafter
collected by the DISTRICT, or from any other source of DISTRICT funding.
CONTRA COSTA VAD
ONTROL DS LONE TREE PLAZA, LLC
AND WA'T'ER CONCT a California limited liability company
By: Donahue Schriber Realty Group,L.P.,
,. a Delaware limited partnership,its manager
Yrair of the B fing body of By: Donahue Schriber Realty Group, Inc.,
the sta nd Water a Maryland corporation, its general partner
Conservation District a4 �)1&4j6t
�4 y .�j o2"7 BY
ATTEST: �'� '-V
John Cullen, Clerk of the oard of Supervisors and Name: Mark L.Whitfield
County Administrator Executive Vice President
Title:
By _ And B (j r
eputy Clerk
. Name:
RECOMMENDED FOR APPROVAL:
Maurice M.,Shiu Title:
Chief Engineer
DONAHUE SCHRIBER ASSET MANAGEMENT
CORPORATION, a Delaware corporation
Y vd�5 BY
cud
OVED AS TO FORM: Name: Mark L.Whitfield
Silvano B. Marchesi Executive Vice President
County Co isel Title:
And wvv
Y
p y Nam .
Title:
Exhibit "A" - Drainage Area Credit and Taxpayer I.D. # 3 3 —:03 7 Z 8�b
Reimbursement Policy
Exhibit "B" - Calculation of Reimbursement
Amount
* Corporations require two signatures, one by the
President or Vice President,and one by the Secretary or
Treasurer.Signatures by Developers must be notarized.
Page 3
State of
County of
On before me
DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC
personally appeared
NANIE(S)SIGNER(s)
in the capacity as
INDIVIDUAL,GRN ERAL PARTNER,CORPORATE -FICER- NICE PRESIDENT
Opersonally known to me -OR- 0 proved to 5e on tl as of satisfactory evidence to
be the pe of(s)whose name is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
/same in his/her/their authorized capacity(ies), and that by
�(�//1 is/her/their signature(s)on the instrument the person(s),or the
entity upon behalf of which the person(s)acted,executed the
instrument.
He/She/They also iowledge to me that such corporation executed the within instrument pursuant to its
by-laws or a resolu ' n of its Board of Directors.
WITNESS my hand and official seal,
Signature of Notary
SIGNATURE REQUIREMENTS
Signatures required on documents must comply with the following to be acceptable to Contra Costa County.
1. FOR ALL SIGNATURES -The name and interest of the signer should be typed or printed in the space provided. The
name must be signed exactly as it is typed or printed.
I1. SIGNATURES FOR INDIVIDUALS-The name must be signed exactly as it is printed or typed. The signer's interest in
the property must be•stated.
Ill. SIGNATURES FOR PARTNERSHIPS-Signing party must be either a general partner or be authorized in writingto have
the authority to sign for and bind the partnership.
1V. SIGNATURES FOR CORPORATIONS
Documents should be signed by two officers,one from each of the following two groups:
GROUP 1. (a)The Chair of the Board GROUP 2. (a)The Secretary
(b)The President (b)An Assistant Secretary
(c)Any Vice-President (c)The Chief Financial Officer
(d)The Assistant Treasurer
If signatures of officers from each of the above two groups do not appear on the instrument,a certified copy of a resolution
of the Board of Directors authorizing the person signing the instrument to execute instruments of the type in question is
required. A currently valid power of attorney,notarized,will suffice.
Notarization of only one corporate signature or signatures from only one group,must contain the following phrase:
and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of
its Board of Directors."
J L:TJ
September 12,2006
G:\F1dCtl\CurUev\CI"TIES\13rentwo0d\Sub 5515-Areadia Mixed Use\ReimbAgrmt DA 30C Line A5(REVISED).doc
Page 4
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On October 23, 2006, before me, Becca Burns, Notary Public, personally
appeared MARK L WHITFIELD and JANET L. PETERSEN, personally known to me Of
provedto ,r n the basis of satisf eter-y e viae„^o to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same
in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the,instrument.
WITNESS my hand and official seal.
.�..�r,l !�
cam �lon*16olt12e
Notary Pubk-Cditnft
aarveCOU* ecca Burns
C011f1 '��' My Commission No. 1601826
My Commission Expires 08/20/2009
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On October 23, 2006, before me, Becca Burns, Notary Public, personally
appeared MARK L. WHITFIELD and JANET L. PETERSEN, personally known to me
�proved to m n the basis of satisfaetery evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same
in their authorized capacities, and that by their signatures on the instrument the persons,
or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
s6commbsion#F 1601826
Notary Mft-catom+a
orange coUr#y ecca Burns
M'CO"v'• AW20, My Commission No. 1601826
My Commission Expires 08/20/2009
EXHIBIT "A"
DRAINAGE AREA CREDIT AND REIMBURSEMENT POLICY
Adopted June, 1989
Revised December 1999
The following policy adopted by the.Board of Supervisors, as the governing body of the Contra Costa
County Flood Control and Water Conservation District, shall be used to determine credits and
reimbursements as provided for in various Drainage Area Fee Ordinances.
I. Definitions:
1. Drainage Area Plan: The engineering plan, which shows and lists the size, length, and location
of drainage facilities adopted for a Drainage Area.
2. Drainage Area Fee Ordinance: An ordinance adopted for a Drainage Area specifying the
drainage fee necessary to complete construction of the planned facilities.
3. Drainage Area Fee Obligation: The drainage fee due on a development as determined from the
Drainage Fee Ordinance.
4. Eligible Costs: The cost of installing drainage facilities, which are part of the Drainage Area
Plan_
5. In-tract Drainage Facilities: Drainage facilities required within the limits of the development.
6. Off:-tract Draina,�,e Facilities: Drainage facilities required outside the limits of the
development:
7. Credit: When a Drainage Fee Ordinance allows construction of drainage facilities in lieu of the
payment of drainage fees, the eligible construction costs may be applied as a credit against the
drainage area fee obligation.
8. Reimbursement: Payment to the developer for the eligible cost of installing drainage area
facilities in excess of the drainage area fee obligation.
II. GENERAL: Installation of drainage facilities required as a condition of property development
can be very costly, and in many cases benefits other properties within the watershed. A
Drainage Fee Ordinance spreads the costs of the drainage facilities to all of the benefiting
properties and ensures, tihrough a system of fees, credits, and reimbursements, equitable
financial participation.
The drainagefee ordinance creates a fee obligation on all properties within the Drainage Area.
The ordinance becomes operative upon a request to develop or improve a parcel of land. The
drainage area fee obligation is limited to the fee due and is payable either in the form of cash or
the installation of a portion of the drainage facilities shown on the adopted drainage plan.
When a cornditio> of development requires the construction of drainage facilities with a cost in
excess of the drainage fee obligation imposed by the fee ordinance,'a portion of the excess cost
may be eligible for reinlbursenlent.
IIL Eli,,ible Costs: A portion of the cost to install drainage facilities shown on the.adopted drainage
area plan may be eligible for credit against the required drainage fees and for reimbursement of
costs in excess of the drainage fee obligation. Credit or reimbursement shall be limited to the
following eligible costs:
I Actual in-tract and off-tract construction costs plus a fixed amount of 7 percent of the in-
tract construction cost and 14 percent of the off-tract construction cost for allowance of
miscellaneous developer's costs, including contract preparation, engineering, bonding, etc.
Construction costs do not include utility relocations or the acquisition of rights of way.
2. Actual public agency project inspection.fees for only those drainage area facilities shown
on the adopted drainage plan.
3. Actual off-tract utility relocation costs.
4: Actual off-tract right of way acquisition costs needed for the installation of drainage area
facilities, provided the developer does not have a beneficial interest in the off-tract
property.
The determination of construction cost will be based on at least three independent bids. The
developer shall submit said bids to the District for review and concurrence. Upon
District concurrence with the bids, the lowest bid shall be the basis for determination of the
credit alld rellllbUrSelllellt aillollllt.
The District reserves the right to reject the developer's bids or any other proposed value of
said eligible costs and to calculate said costs and the fixed markups using then current prices.
If the developer elects to install a more costly drainage system than shown on the adopted
1-1
drainage area plan, the District reserves the right to calculate said eligible costs using the then
current prices for only the facilities shown on the adopted plan.
IV. Credit: The developer nlay apply as a credit toward the drainage fee obligation the eligible
costs to construct drainage area facilities.
V. ReinlbU1`SC111CIIt:
A. Where the amount of said eligible costs exceed the drainage fee due, the developer, upon
enterin(y into a reinlbursenlent agreement with the District, shall be eligible for a percentage
reimbursement oil the amount of the eligible costs determined by Section III above, in
excess of the drainage fee due as follows:
Of(-tract work: 100% (One hundred percent)
In-tract work: 50°/, (.Fifty percent)
2
Prior to the application of the above percentages, the eligible costs in excess of the drainage
fee due shall be prorated between off-tract work and in-tract work in the same proportion as
the total eligible costs for off-tract work and in-tract work are to the total eligible costs.
B. The reimbursement shall be subject to the following limitations:
1. Reinnbursements shall be paid only from drainage fees collected pursuant to a Drainage Fee
Ordinance.
2. If more than one reimbursement agreement is in effect in a Drainage Area, the
I eimbursement payment to each agreement shall be based on the ratio of each agreement's
original amount to the total original amount of all-outstanding reimbursement agreements.
3. The District reserves the right to utilize not more than 80 percent of the drainage fees
collected annually, on a fiscal year basis, for the purpose of making reimbursement
payments.
4. Reimbursement payments shall be made quarterly, except that, during any quarter the
.District reserves the right not to male said payments if the amount of available funds to be
disbursed is less than $5,000.00.
5. Reimbursement agreements shall remain in effect for a base period of ten years (forty
quarters). The first quarter shall be the one following the quarter in which the first
reimbursement payment is made. The developer shall forfeit any outstanding balance owed
at the end of the ten years if 80% or more of the money has been reimbursed. If at the end
of the ten years, less than 80`X, of the money has been reimbursed, the agreement shall be
extended for five years. I f after a period of five years the developer has not been
reimbursed 80'Yo of the amount dire, the agreement shall be extended for another period of
five years. Any remaining balance owed after twenty years shall be forfeited.
6. Reinnbw-sement,agreennents executed Subsequent to a government loan(s) shall have
payments "calculated" using the pro-rata basis of paragraph B.2. above. However, in order
to accelerate repayment of the government loan(s),the "calculated" payment shall be
applied to repayment of the government loan(s), rather than be disbursed to the subsequent
reimbursement agreement(s). Upon full repayment of the government loan(s),
reimbursement payments shall commence to the subsequent reimbursement agreement(s).
The 40 quarter time limit for a subsequent reimbursement agreement shall not start until the
date the first payment is made to the reimbursement agreement.
VI. Applicability: Upon adoption by a drainage area, this policy shall be the basis for all
subsequent reimbursement agreements in that drainage area. This policy will not alter any
reimbursennent agreement executed pursuant to a different policy.
G:\GrpData\FldCtl\Adminisu:,tion\FC forms\RcimhA;grmt-Lx HI BIT A.doc
2/2000
3
EXHIBIT "B "
DRAINAGE AREA: 30C
DEVELOPMENT: Subdivision 8515 Lone Tree Plaza
DEVELOPERS: . DS Lone Tree Plaza,LLC,and
Donahue Schriber Asset Management Corporation
200 East Baker Street,Suite 1000
Costa Mesa, CA 92626
Attn: Jan Petersen
ASSESSOR'S PARCEL NUMBER: 01.9-020-003, 004,030,and 031 (parent)
IN-TRACT COST:
Item No. Description Eligible Unit Unit Price Total Cost
Quantity
1 36"CIPP 500 LF $ 80.00 $ 40,000.00
2 42" CIPP 500 LF $ 85.00 $ 42,500.00
3 54"RCP 64 LF $ 143.00 $ 9,152.00
4 Type III Manhole 3 EA $ 2,400.00 $ 7,200.00
5 Type V Manhole 1 EA $ 2,400.00 $ 2,400.00
Subtotal $ . 101,252.00
In-Tract Engineering*(7%)* $ 7,087.64
Inspection (3.5% In-Tract Subtotal+$540)** $ 4,083.82
In-Tract Subtotal $ 112,423.46
OFF-TRACT COST:
Item No. Description Eligible Unit Unit Price Total Cost
Quantity
From project site to Jeffrey Way
1 54"RCP 300 LF $ 143.00 $ 42,900.00
2 54" CIPP 438 LF $ 95.00 $ 41,610.00
3 60"CIPP 370 LF $ 110.00 $ 40,700.00
4 Type IV Manhole 5 EA $ 2,900.00 $ 14,500.00
CO CCWD Crossing 1 LS $ . 15,866.00 $ 15,866.00
CO SR4 Bypass Crossing 1 LS $ 17,532.00 $ 17,532.00
From Jeffrey Way to Empire
1 60" CIPP 500 LF $ 110.00 $ 55,000.00
2 66" CIPP 800 LF $ 125.00 $ 1.00,000.00
3 72" RCP 1368 LF $ 140.00 $ 191,520.00
4 Type SD-3 Manhole 7 EA $ 2,100.00 $ 14,700.00
CO Property Restoration-LDS 1 LS $ 14,502.00 $ 14,502.00
CO Property Restoration-Joaquin 1 LS $ 2,237.00 $ 2,237.00
CO Realign storm drain due to 1 LS $ 23,944.00 $ 23,944.00
G:\FldCll\QII'De\,\CITIES\nrcntwoud\Sub X515-A I CUdia Mixed Usc\RcimbAunlit DA 30C Line Ai-Exhibit 13(REVISED)-Exhibit E Printed:9/12/2006
Page I
Subtotal $ 532,111.00
Off-Tract Engineering* (14%)* $ 74,495.54
Inspection (3.5% In-Tract Subtotal + $540)** $ 19,163.89
R/W Acquisition-LDS Church $ 25,700.00
R/W Acquisition-Beard Property $ 40,000.00
R/W Acquisition-Appraisals $ 10,500.00
Off-Tract Subtotal $ 701,970.43
SUMMARY:
In-Tract Cost Subtotal 14% $ 112,423.46
Off-Tract Cost-Subtotal 86% $ 701,970.43
Total Construction Cost 100% $ 814,393.89
FEE OBLIGATION/CONSTRUCTION CREDIT:
Total FCZ1 DA 30C
DA 30C Fee Ordinance % 100% 40.48% 59.52%
Fee Obligation $ (1,1.51,120.80) $ (465,929.85) $ (685,190.95)
Fee Paid $ 560,481.49 $ 226,861.56 $ 333,619.93
Total Construction Cost $ 814,393.89 $ - $ 814,393.89
Subtotal $ (239,06829) $ 462,822.87
REIMBURSEMENT-PRORATED:
FCZ1 DA 30C
In-Tract Reimbursement(In-Tract% x Subtotal x 50%)*** $ - $ 31,945.32
Off-Tract Reimbursement(Off-Tract % x Subtotal x 100%)*** $ - $ 398,932.23
Total Reimbursement(In-Tract Reimbursement+Off-Tract $ - $ 430,877.55
Reimbursement)
REIMBURSEMENT-ADJUSTED (deduct FCZ 1 fee portion):
FCZ1 DA 30C
Total Deficiency and Reimbursement $ (239,068.29) $ 430,877.55
Transfer funds to FCZ1 to DA 30C $ 239,068.29 $ (239,068.29)
Total Reimbursement after deducting I�CZ 1. fee portion $ - $ 191.,809.26
TOTAL REIMBURSEMENT (ROUNDED) $ 191,810.00
*Engineering is TY,of SUI,'I'OTAL for In-Tract work or"14"6 of SUI>r0"CAL for Off-Tract Wank
**City of Brentwood Inspection Cost is 3.5'%of SUBTOTAL+$540
***Reimbursable Amount In-Tract at 50%and Off-Tract at 100',,. Amount payable are calculated in the proportion each is to the total eligible work.
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