The URL can be used to link to this page

Home My WebLink AboutMINUTES - 06082004 - C.140 *1 f , t TO: BOARD OF SUPERVISORS � _�- == f i� CONTRA COSTAt FROM: John Sweeten County Administrator ` � � COUNTY 1.0c DATE: June 8, 2004 ff coup yy SUBJECT: Interim Reimbursement Agreement Between the County, the City of San Ramon, Shapell Industries and Windemere BLC Land Company for Costs of City Services in the Dougherty Valley (San Ramon Area) SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & 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 for FY 2002-03 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 Section 3 and 4 of the Agreement. 46 FINANCIAL IMPACT: There is no impact to the General Fund. County Service Area M-29 funds have been collected from property tax and CSA assessment special tax revenue. These funds are to be reimbursed to the City of San Ramon for servicesp rovided within the boundaries of CSA M-29 as part of the 1994 Settlement Agreement that allowed for development of the Dougherty Valley. r CONTINUED ON ATTACHMENT: VoeYES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITT _,,,,.APPROVE OTHER SIGNATURE(S): ` ACTION OF BOA APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A X UNANIMOUS(ABSENT Nom ) 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 jum 8, 2004 CAO JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY A MINI TRATOR BY, DEPUTY BACKGROUND/REASON(S) FOR RECOMMENDATION(S): County staff have been working with the City of San Ramon, Shapell Industries and Windemere BLC Land Company on a comprehensive Reimbursement Agreement pursuant to both the 1994 Settlement Agreement and Memorandum of Understanding relating to the development of the Dougherty Valley. On September 9, 2003, the parties approved an interim reimbursement agreement to cover the initial years of development and city services provided in M-29. Since the process for a comprehensive long-term Reimbursement Agreement has taken longer than anticipated, all parties have agreed to a second interim reimbursement agreement that covers Fiscal Year 2002-03 and provides an advance to the City for Fiscal Year 2003-04 for services provided within CSA M-29. This second interim reimbursement agreement will reimburse the City of San Ramon a total of $1,048,562. Included within this amount is $532,678 to cover the balance of actual and final costs for FY 2002-03 incurred by the City and $515,884 as an advance against anticipated FY 2003-04 City expenditures similar to the procedure utilized last year. The City of San Ramon and the two developers have approved the Agreement (attached). All parties continue to meet in order to develop a comprehensive long-term Reimbursement Agreement that can be considered by the Board of Supervisors, San Ramon City Council and the corporate officers of both Shapell Industries and Windemere BLC Land Company to reflect the intentions of the Dougherty Valley Settlement Agreement and MOU. Completion of that process in the next few months will avoid the necessity of these interim agreements in the future. CONSEQUENCES OF NEGATIVE ACTION: The City of San Ramon will not receive reimbursement for city services performed in Dougherty Valley, (CSA- M29) as agreed to under terms of the 1994 Settlement Agreement. 2 l FULL AND 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 day of 2004, 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 WINDEMERE are referred to herein collectively as the "DEVELOPERS." RECITALS A. During fiscal years 2002-2003, 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-2911). B. CITY has submitted a claim to COUNTY for fiscal year 2002-2003 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 2003-2004,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 year 2002-2003, the parties are willing to agree that COUNTY will 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 2003-2004. AGREEMENT 1. Purpose. 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 year 2002-2003. 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 COLTNTY's governing body (the "Effective Date"). 3. Payments for Fiscal Year 2002-2003. Within a reasonable time following the Effective Date, COUNTY will make each of the following payments to CITY: A. For Fiscal Year 2002-2003: $5325678; 4. Advance Payment for Fiscal Year 2003-2004. COUNTY will make an advance payment to CITY for fiscal year 2003-2004 in the amount of$515,884,which sum represents the estimated I%property tax for fiscal year 2003-2004 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 2003-2004 or thereafter. 5. Waiver of Further Claims for Reimbursement, and Challenges to Payments Made, for Fiscal Year 2002-2003. CITY hereby waives, releases and discharges COUNTY, its officers, agents and employees, from all further claims for payment for fiscal year 2002- 2003, 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 WHICH 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." 6. No Effect on Further Claims for Reimbursement. The parties have agreed to the payment set forth above for fiscal year 2002-2003 solely to facilitate payment to CITY for services provided and expenditures made during those fiscal years. The fact that the parties have agreed to make the payments set forth above, including the advance payment for fiscal year 2003-2004, shall not be construed as precedent or authorization for any payments for 2 any services provided by CITY in CSA M-29 during fiscal year 2003-2004 or any subsequent fiscal year. 7. Agreement 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 party 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 parties 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. Construction. 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. (continued on page 4) 3 12. Governing Law and Venue. This Agreement 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 Partner g g By: LENNAR HOMES OF CALIFORNIA, By: C., a California Corporation is Managi g Partner Its: t � By: Its. l By: Its: CONTRA COSTA COUNTY CIT SAN R.AMON By By County Administrator City M t ager APPROVED AS TO FORM: APPROVED AS TO FORM: Silvano B. Marchesi County Counsel By By: Deputy A,+S,1 City Attorney Full and Final Release and Settlement of Claim for Reimbursement and Agreement Regarding Advance of Funds.doc 4