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Agreement for Reimbursement of Costs of Permanent Public Improvements 1990-172156 Recording Requested By: 9 0 I 7 2 1 5 6 City of Poway ) 14 4 0 _t: R11_ 1 IN J When Recorded Mail To: ) ) 90 MAR 30 PM I: 58 City C1erk City of Poway ) V L. LYLc ERA P.O. Box 789 ) _ =... Poway, California 92064 ) ) NO FEE AGREEMENT FOR REIMBURSEMENT OF COSTS OF PERMANENT PUBLIC IMPROVEMENTS (POWAY MUNICIPAL CODE CHAPTER 13.24) This Agreement is entered into this 47H day of JA,iARy 1990, by and between POWAY RESIDENTIAL PROPERTIES LIMITED PARTNERSHIP, a CALIFORNIA LIMITED PARTNERSHIP , hereinafter referred to as "Owner'"and the City of Poway, a municipal corporation, hereinafter referred to as "City," for the reimbursement of costs expended by the Owner for the installation of permanent public improvements. The parties hereto agree as follows: Section I . Authority The City is authorized by its general police powers and by statutory and case law to require Owner to install those certain permanent improvements hereinafter described as a condition of approval of SUNRISE RANCH - TM 4185 which improvements benefit those properties hereinafter described as "benefiting properties" not participating in the cost thereof The City is authorized to provide a method for partial reimbursement for the costs of such improvements from such nonparticipating property owners in accordance with Chapter 13.24 of the Poway Municipal Code. Upon ful ' execution and recordation hereof, this Agreement shall provide the sole method of reimbursement through the City to Owner for a portion of the cost of said improvements. The City shall have no payment or reimbursement obligation to Owner for the cost of said improvements, except as specifically provided herein. . Section II . Definition of Terms The terms used in this Agreement shall be defined as set forth in Section 13.24.02 of the Poway Municipal Code. - > - • • I441 S SECTION III . Description of Properties Affected The real properties affected by this Agreement shall be the property Owner legally described in Exhibit ONE attached hereto and the benefiting properties legally described in Exhibit TWO. The obligation of the owner of each benefiting property shall become a lien upon such property for the term hereof, payable only as a condition of approval of any development of the benefiting property, provided that the imposition of such condition shall be reasonably related to such development. Suchobligation shall be a lien upon and run with the land and shall be binding upon the subsequent owners of the benefiting property during the term hereof. SECTION IV. Description of Improvements The precise locations of all improvements subject to reimbursement and the complete dimensions (including frontage) of all benefiting properties are set forth in Exhibit THREE attached hereto. SECTION V. Reimbursement Schedule The reimbursement Schedule in the form required by Poway Municipal Code $13.24.040c, as approved by the City council of the City of Poway after public hearing, is attached hereto as Exhibit FOUR. All references in this Agreement to reimbursement or to a reimbursement schedule shall mean reimbursement in accordance with the terms of this Agreement and Exhibit FOUR. SECTION VI Term The term of this Agreement and all obligations and liens created hereby shall be ten ( 10) years from the date of this Agreement as set forth on the first page hereof. Upon expiration of said term, Owner shall be entitled to no further reimbursement pursuant to the terms hereof, owners of benefiting properties shall be under no obligation to Owner pursuant hereto, and any lien created hereby shall automatically and without any further administrative or judicial process whatsoever, be null and void and of no further force or effect. SECTION VII . Agreement of Payment for Reimbursement After public hearing as provided in Poway Municipal Code 13.24, and upon execution hereof by City, City agrees during the term hereof to collect from the owners of the benefiting properties, those owners shall pay to the City, and the City shall reimburse to Owner those benefit charges set forth in the Reimbursement Schedule, plus interest of five percent (5i) per year compounded annually, less the administrative charge provided - 2 - 1442 a in Chapter 13. 24; provided, however, the City shall neither collect nor reimburse any sum which is not reasonably related to the development of a benefiting property. The method and obligation to reimburse Owner shall be subject to the terms of Chapter 13. 24 of the Poway Municipal Code, as the same may, from time to time be amended. Any amendement or repeal of Chapter 13. 24 decreasing the entitlement of Owner herein shall be binding upon Owner herein immediately upon the effective date of such amendment or repeal . Owner agrees that this Agreement shall be automatically amended by such repeal or amendment of Chapter 13. 24, effective the effective date of such repeal or amendment. No amendment of Chapter 13 . 24 purporting to increase the liability of a benefiting owner shall be binding upon a benefiting owner herein or upon the City hereinunder. In the event of a conflict between the terms hereof and the requirements of Chapter 13. 24, the requirements of Chapter 13. 24 shall control. Benefit charges shall be paid, collected, and reimbursed in accordance with the terms of Section 13 . 24. 070 of the Poway Municipal Code . in effect at the time of such payment, subject to the terms of this Section VII . Section VIII . Trust Agreement Promptly upon collection of all or any part of a benefit charge, the City shall deposit such funds in a local financial institution in a separate account in the name of the City in trust for Owner and City. Payments from such account by City to Owner and to City in accordance with the terms of Chapter 13 . 24 shall be made at such times as are convenient to the City, but in no event less often than annually if the City has received payment of any benefit charges. Payments to Owner shall include interest at the rate of five percent (5%) per annum from the date of deposit on the principal portion of such deposit to which Owner is entitled to payment. City shall be entitled to payment of its administrative charges of five percent (5%) of all amounts deposited plus all interest income on the full amounts deposited except the 5% . interest payable to Owner. The right of Owner to payments from said trust account shall be personal and shall not run with the property of Owner, be assignable by Owner, or survive the death or dissolution of Owner. In the event of death or dissolution of Owner, all monies on deposit in said trust account shall be automatically, immediately, and without notice or administrative or judicial process payable to City. Section IX. Hold Harmless by Owner Owner hereby agrees to indemnify and hold harmless the City from any liability whatsoever, based upon any legal theory whatever, for any loss or damage direct or consequential, to Owner resulting from the failure of the City to collect all or any part of any benefit charge collectible hereunder or resulting from the failure of the City to pay to Owner in timely manner any trust funds to which Owner is entitled. Owner specifically agrees - 3 - r. 1443 lib • ' that it is within the sole discretion of the City to determine that payment of the entire benefit charge would not be reasonably related to the nature and extent of development of a benefiting property. If, in the event of such a determination by City, City collects less than the full benefit charge at the time of development, City retains the right to collect the balance of the benefit charge upon further development, and Owner waives and releases City from any claim it may otherwise have to require City to collect the full amount of such benefit charge at the time of the first down payment. Section X. Recordation This Agreement shall be recorded by the City after full execution hereof and promptly following acceptance of the subject improvements by the City. If for any reason this Agreement is not recorded, Owner holds City harmless from any loss or damage arising therefrom. Section XI . Voidability In the event that Owner fails or refuses to complete the subject improvements in timely manner to the satisfaction of the City in its sole discretion, this Agreement shall be unilaterally voidable by adoption of a resolution of the City Council declaring this Agreement null and void for failure of performance by Owner. Section XII . Governing Law and Venue This Agreement shall be governed by the laws of the State of California. Jurisdiction and venue for any litigation arising herefrom shall be the County of San Diego, State of California . Section XIII . Severability If any section, subsection, sentence, clause, or phrase of this Agreement is for any reason held to be invalid or unconsti- tional, such decision shall not affect the validity of the remaining portions . The parties agree that they would have entered into this Agreement and each section, subsection, clause, and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional, and would have approved the same even though any parts, sections, subsections , sentences, clauses, or phrases that may be held invalid had been omitted therefrom. E uted at oway, California, on the date first stated above A OWNER: POWAY RESIDENTIAL PROPERTIES, LIMITED Gary M. Szy -.1 E 2 0:0 PARTNERSHIP, A California Limited Partnership BY: CONNOLE CONSTRUCTION CO. ImC.A California roration-- BY: CITY OF POWAY, a Municipal Tim J. Connol , Presi •ent corlan BY: _� � Mayor 4 • S • 1444 STATE OF CALIFORNIA) S.S. COUNTY OF SAN DIEGO) L ON i , ,1990, BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE, PERSONALLY APPEARED TIM J. CONNOLE PROVED TO ME ON THE BASIS OS SATISFACTORY EVIDENCE TO BE THE PRESIDENT OF CONNOLE CONSTRUCTION COMPANY, INC., A CALIFORNIA CORPORATION, THE CORPORATION THAT EXECUTED THE WITHIN INSTRUMENT AND PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE PERSON WHO EXECUTED THE WITHIN INSTRUMENT ON BEHALF OF SAID CORPORATION, SAID CORPORATION BEING PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE GENERAL PARTNER OF POWAY RESIDENTIAL PROPERTIES LIMITED PARTNERSHIP, THE LIMITED PARTNERSHIP THAT EXECUTED THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT SUCH CORPORATION EXECUTED THE SAME AS SUCH PARTNER AND THAT SUCH PARTNERSHIP EXECUTED THE SAME. WITNESS MY HAND AND OFFICIAL SEAL OFFICIAL SEAL , fMOKF BRIIEY W$ +"1 NOTARY P SUC.CALFOR Wg. SAN DUO COUNTY MIA r"", 1y Comm.✓ ire:July 16,1193 AL ill '/ I • Signature / 5 • • 1445 State of California) )ss. County of San Diego) On this the —;L. day of f& before me, Nancy N. Neufeld the undersigned Notary Public, personally appeared Don Higginson, personally known to me to be the persons who executed the within instrument as President of the municipal corporation named herein. Witness my hand and official seal . OFFICIAL SEAL a, lry NANCY N NEUFELD ..i, ,:.? hc>a�Pubic-cali4c�m?a j (seal ° - siPi D'.ECOI:(JiJN1Y /u4/ Tit !M Comm.Exp.Dee.21,1? ? 14 4 6 .ORIGINAL SUNRISE RANCH SEWER REIMBURSEMENT AGREEMENT Prepared Rc: Szytel Engineering and Surveying, Inc. 935 West Mission Avenue • Suite H Escondido, California 92025 (7a) 741-6979 //i 0/B8 Gary M. Szyt'I RCE24080 LS4458 DATE /Ev //¢/yo 1447 INDEX 1 REIMBURSEMENT AGREEMENT A. Exhibit One: Owner B. Exhibit Two: Benefitting Properties C. Exhibit Three: Reimbursement District Plat D. Exhibit Four: Reimbursement Schedule and Criteria E. Exhibit Five: Construction Costs II PLANS AND SPECIFICATIONS Sheets 1 , 10 & 11 of TM 4185 Improvement Plans • • 1448 EXHIBIT ONE SUNRISE RANCH REIMBURSEMENT AGREEMENT The Owner which was required by the City to install a sewer trunk main as a condition of Approval of Sunrise Ranch I - TM 4185 is: POWAY RESIDENTIAL PROPERTIES LIMITED PARTNERSHIP, a California Limited Partnership By: CONNOLE CONSTRUCTION COMPANY, INC. , a California Corporation, General Partner 13616 Poway Road Suite 11100 Poway, California 92064 (619)486-2151 OR (619)695-0410 • 14 • 49 • w Cp t� O J J ••O O O O P P J O O O O NO M 'O M M M J J J NO Min J to J J 'O . • W M N c U Q N N W - Cr W A p W O O p C re re W J to N w U - U U U 'D V W C C C W O) > w m )o w cD m )o fD CO m m a) cO c0 c0 > > o: O O O O O O O O O O L J J J W a) L rl CY CC K OC K OC O! K a CC r T T N �T fn p CO N (1.3 ca W N CO N f0 CO CO a7 > 0 0 O Y Y > 3 3 3 3 3 3 3 3 3 3 L L to >- 0 0 0 0 0 0 0 0 0 0 — W a) W fo m a a n a d CL CL U. 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W P �`" 14-I OL - C 0 3 Y a rn A 3 C N y C Co C w Y (0 0) t Cl) 0 L C Y N N Y X 2 L L •,_ 7 t C Y -' C 4) X .0 4- CO r •.- 4-' -' •.• C W 1- 41 4) f 4) C 41 3 4) (1) w U • CO v CC .- N Ni III 1452 III EXHIBIT FIVE SUNRISE RANCH I REIMBURSEMENT AGREEMENT CONSTRUCT I O N COSTS The following is a cost breakdown for the construction of the eight inch sewer trunk main, based upon the actual prices paid for the various items as supplied by the Owner. ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE COST 1 . Offsite sewer - 8" PVC L.F. 1416 $ 65. $ 92,040. 2. Offsite tie to existing manhole EA. 1 1 ,200. 1 ,200. 3. Onsite sewer - 8" PVC L.F. 495 19. 9,405. 4. Sewer manhole EA. 6 1 ,500. 9,000. 5. Temporary patch of sewer trench on Poway Road L.S. L.S. L.S. 7,000. 6. Permanent A.C. repair of sewer trench L.S. L.S. L.S. 12,735. 7. Traffic control L.S. L.S. L.S. 2,000. 8. Restriping of Poway Road L.S. L.S. L.S. 5,000. 9. Inspection; 3% of cost $138,380 L.S. L.S. L.S. 4, 151 . 10. Engineering and surveying L. S. L.S. L.S. 5,669. T O T A L $ 148,200. (. 1453 • ORDINANCE NO. 158 • AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA ESTABLISHING CHAPTER 13.24 CF TITLE 13 OF THE POWAY MUNICIPAL CODE ESTABLISHING REIMBURSEMENT PROCEDURES FOR PERMANENT IMPROVEMENTS THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN THAT there is added to the Poway Municipal code Chapter 13.24 as follows: Section 13.24.010: Policy The City Council does hereby find and determine that where property owner(s) desire or are required to extend or develop permanent improvements that benefit other properties not participating in the cost of the improvements, the owner(s) may be eligible to enter into a reimbursement agreement as provided in this Chapter. This Chapter shall not be applicable to mandatory reimbursement for improvements of supplemental size, capacity, number or length as required by Government Code Section 6648f . Section 13.24.020: Definitions A. Administrative Cost - means expenses and services provided by the City in the management of the reimbursement agreements. B. Agreement - means an agreement to reimburse property owner(s) for deve- lopment or extension of permanent improvements that benefit other proper- ties. C. Benefit Area - means the area of benefit approved by the City Engineer that would be assessed for the cost of the permanent improvement. D. City - means the City of Poway. E. Council - means the Mayor and City Council of the City of Poway. F. Engineering Report - the reimbursement report prepared by a State licensed Civil Engineer outlining the benefited area and proposed reimburse- ment payments. G. Estimated Constru-:tion Cost - means the estimated cost of construction as outlined in the engineering report and approved by the City Engineer. H. Public Improvements -- means City drainage, sewer and water systems and public and private streets constructed to City standards. I. Reimbursement Payment - means the payment to the property owner(s) who paid for the in ti al construction of the permanent improvement. J. Trust Fund - an account established for the deposit of the reimbursement funds during the life of the reimbursement agreement. 1454 • Ordinance No. 158 Page 2 • Section 13.24.030: Pre-Construction Requirements The owner(s) shall provide to the City Engineer a completed reimbursement agreement. The completed agreement shall be submitted at the same time as the standard agreement and bonding for the construction of the permanent improve- ments along with a deposit to cover the estimated City administrative costs to review, process and approve the agreement. Section 13.24.040: Form and Content of Agreement • The form and content of the reimbursement agreement shall be prepared to the satisfaction of the City Engineer and City Attorney. The agreement must be pre- pared with the assistance of a State of California licensed civil engineer and contain the following: A. A legal description of all benefiting properties including the owner's property. B. ' A detailed plat drawn at an engineering scale on legal size papershowing the precise locations of all improvements and complete dimensions (including frontage) of all benefiting property. C. A reimbursement schedule to include a list of all benefiting properties with current Tax Assessor 's parcel number, owner's name, property's street address, acreage of benefiting parcels and a benefit charge. The amount of the benefit charge assigned to each benefiting parcel shall be subject to the approval of the City Council . The benefit charge assigned to each parcel shall bear a reasonable relationship to the benefit conferred upon that parcel by the improvements and shall bear interest at the rate of five percent ( 5%) per annum, compounded annually. D. A detailed estimated cost of the design and construction of the per- manent improvement. E. Terms, conditions, and covenants of reimbursement and a trust agreement consistent with the requirements of this Chapter. Section 13.24.050: Notice and Hearing • Upon receipt of the agreement proposed by the owner(s), the same shall be referred to the City Engineer, together with a preliminary estimate of the total cost of such improvements. Upon receipt of the application, the City Engineer will review and recommend approval, disapproval, or modification thereof . The proposed area of benefit shall include all parcels of land, or parts thereof, within the City, which may be conveniently served by the proposed improvement (' i 14 5 5 Ordinance No. 158 Page 3 extension or development. Not less than ten (10) days prior to the hearing the City Clerk shall notify the owner, or owners, of the land within the benefitted area, of a public hearing to be conducted by the City Council of the City of Poway on the question of the feasibility and the necessity for the construction of the subject improvements, and the approval, conditional approval, or denial of the reimbursement agreement. The property owner shall provide address labels for all affected properties and shall pay all fees necessary for notice of the hearing at which the repayment agreement is considered. Section 13.24.060: Decision of City Council After the hearing provided above, the City Council shall determine in its sole judgement and discretion whether or not the construction of said improvements would be in the best interest of the City and whether the proposed reimbursement agreement shall be approved, conditionally approved, or denied. In any case the City Council will have the final determination as to the amount to be reimbursed through each agreement and the allocation thereof amongst the benefiting parcels. Section 13.24.070: Payment for Reimbursement The approved Agreement shall provide that the City of Poway shall agree for a period of ten (10) years from the date of the agreement, to reimburse to applicant the following sums: A. The amount received by the City as a benefit charge, if any, which is collected by the City from owners of benefiting parcels for the privi- lege of using such improvements, less the administrative cost set forth in 13.24.080. The benefit charge for a parcel shall be collected by the City as a condition of approval of any development of the benefited parcel, provided that imposition of such condition shall be reasonably related to such development. B. The benefit charge for each parcel of land within the benefitted area will be determined based upon the engineer's report prepared by the applicant engineer using standard assessment district formulas, as that report may be approved by the City Council. C. The City Council retains the right to determine, in its sole discre- tion, both the total cost of the permanent improvement as well as the fixing of the benefit charge for each parcel. D. Applicant shall be entitled to receive the reimbursement provided in this section for the period of time herein specified, or until all payments as specified in the reimbursement agreement shall have bp-n repaid to applicant, whichever occurs first. Following full reimbur- sement to applicant as provided herein, or upon automatic termination of the agreement at the end of ten (10) years from its date, applicant shall be entitled to no further reimbursements arising out of benefit charges which might be charged by the City, and all payments thereafter accruing shall be and become the property of the City. • 14 5 b trance No. 158 Page 4 • E. A11 reimbursement funds shall be deposited to a trust fund in a local institutional depository. and shall not the ram with or the to assignable therefrom shall personal with, the lands owned by the applicant. F. Payments shall be made at such times as are convenient to the City, but in no event, less often than annually if the City has received any benefit charges. G. Payment to the applicant include � l ra� r� benefited owner assessed against the benefit chargeaa rate of five percent (5%) compounded per year. Section 13.24.080: Administrative Cost An administrative charge of five percent (5%) shall be assessed on all reimbur- sements to cover administrative cost incurred by the City. • Section 13.24.090: Information t owner(s) applying for reimbursement shall be solely responsible for The property errors or all information needed to process the reimbursement agreement. Any errors inaccuracies may constitute grounds for the denial of the owner 's application. Section 13.24.110: Recordation of Agreement This agreement will be recorded with the County Recorder following full execu- tion of the agreement by all parties. Section 13.24.120: Severability If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions. The �sCity Council chapter of the seityoof Poway hereby declares that it would have passed subsection, clause, and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional, and would have passed and adopted the samethateven rraythough held parts, sections, subsections, sentences, clauses, or phrases invalid had been amitted therefrom. This ordinance shall take effect and be in force thirty ( 30) days after the date of its passage; and before the expiration of fifteen (15) days after its passage, it shall be published once with the names and membervoting data d against the same in the Poway News Chieftain, a newspaper of published in the City of Poway. • . 1 4 5 7 Ordinance No. 158 Page 5 Introduced and first read at a regular meeting of the City Council of the City of Poway held the 19th day of February, 1985, and thereafter PASSED AND ADOPFED at a regular meeting of said City Council held the 26th day of February, 1985, by the following roll call vote: AYES: COUNCIIl'E24 RS: KRUSE, ORAVEC, SKEPARDXON, TARZY, EMERY NOES: OOUNCIIl : NONE ABSENP: COUNCILMEMBERS: NONE Robert C. Mnery, Mayor / Lnl K 01) 0._ Marjorie, K. Wahlsten, City Clerk • •