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CIW OF SAN BERNARDCO - REQU~T FOR COUNCIL AcMON
From:
Ralph H. Prince
Subject: Agreement for Sewer Connection
and Sewage Treatment - John C.
Heers Development Company
Dept:
City Attorney
Date: November 22, 1985
Synopsis of Previous Council action:
11/18/85 Continued in order to have staff report pre~ared
to explain why this matter was before Councll.
Recommended motion:
Adopt Resolution.
/~ ,;;> rJ, J-4.- . /70
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Signature
Contact person:
John wilson
Phone:
5056
Supporting data attached:
Yes
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source:
N/A
N/A
Finance:
Council Notes:
75-0262
Agenda Item No. c:--3 y>,
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.CI~ OF SAN BERNARDhtO - REQU~T FOR COUNCIL Ac110N
STAFF REPORT
The agreement before the Mayor and Common Council is a
revision of that agreement originally entered into by the City
of San Bernardino, the Board of Water Commissioners, Mr. Dale
W. O'Neal and Mr. Eugene M. Malone in September of 1979. That
original agreement created a future right of access to the
City's waste treatment system for a development to be
constructed by O'Neal and Malone on property now owned by Mr.
Heers. A copy of that agreement is attached for reference. A
number of critical events have affected the ownership of the
property since the signing of the 1979 agreement. However,
the access rights pass with the real property. Mr. Heers is
entitled to exercise the access rights which attached to that
portion of the original property which he now owns.
The principal feature of the 1979 agreement is that access to
the City's waste treatment facilities was to be made available
to the proposed project. The project was outside of the City
limits but within an area which at that time was being
considered for annexation. The agreement made the sewer
access available according to a schedule which coordinated the
development of the project with the construction of a new
waste treatment facility. A secondary feature of the
agreement is that developers were to construct an oversized
sewer main to service their project and other anticipated
developments. Developers were to receive compensation for the
oversizing in the form of a set off against the cost of sewer
fees incurred at the time their project was constructed.
The agreement was needed by O'Neal and Malone to comply with a
requirement for approval of two tract maps which were being
sought from the County for their proposed project. The
agreement was relied upon by O'Neal and Malone in going forth
with those tract map applications. The agreement was relied
on by the County when it finally approved the tract maps.
After approval of the tracts by the County, but before
commencement of any construction, O'Neal and Malone
transferred their interests in the property to a developer
known as Jacobsen-Kealer Joint Ventures. Jacobsen-Kealer
completed construction of the oversized sewer main called for
in the agreement. This line was given routine inspections by
the City during its construction. On September 22, 1980, the
Mayor and Common Council adopted a motion setting the amount
to be offset against sewer fees because of the oversizing at
$50,000.00.
75-0264
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In 1983, Jacobsen-Kealer lost that portion of the property now
owned by John Heers through a judicial foreclosure. By that
time, because of the agreement and the conduct of the parties
in reliance on that agreement, the sewer access rights were an
"appurtenance" to the property. As an appurtenance, the
access rights transferred with the property. The foreclosure
had no effect on the right of any subsequent owner of the
property or any portion of the property to exercise the right
of access to the City's sewer system.
In October of 1980, the Board of Water Commissioners passed a
motion ending the practice of granting sewer access rights to
developments outside the City limits. Projects proposed for
development outside the City limits after that date have
thereby been precluded from accessing the City's sewer system.
That motion would have no effect on the 1979 agreement under
which Mr. Heers' rights were established.
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?"-T;:SOLu']'IOI\ 1\0.1"''' 7:/-:'" .~?
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RESOLUTIO~: or TilE CITY OF SJ\N BERNARDIl'O 1\U,!'HORI ZING TilE \
EXECUTlO:, or AN J\GR!:EI.:Et-;'J' \':I1'H THE BOARD OF \'1A'l'ER CO}l~llSSIONERS ;
OF TiiE CITY OF SAl'\ BERNJ\I:I;I::O AND DALE \~. O'NEi'.L 1\!l:D EUGENE 11. \
W\LONr. PROVIDING Sl~\~AGE cm;;,ECTION AND SE\';AGE TREATMEm' FOR 'l'RJ\CT
NO. 10532-1 Al\D 'l'MCT NO. 10532. - 1
!
BE IT RESOLVED BY '!'HE NAYc6R AND cmn-Io~: COU~CIL OF THE CITY
OF Sl\N BERNARDINO AS FOLLOI':S:
SZCTIO~ 1. The Mayor of the City of San Bernardino is
~9=e~~ a~~~o=iz~~ a~~ directee tc axec~t~ C~ beha!! o~ sai~ City
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Snc B~rnardino a~d Dale K. O'l\eal and Eugene M. Malone providing
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i s~'~ge connectiD~ and sewage treatrent for ~ract ~D. 053~-1 and
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Tr<lct !:o. 10532, a copy of \~hich is attached hereto roarl~ed Exhibit
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"A" and incorporated her~in be reference as fully as though set
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forth at l.:ngth_
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I HEREBY C'LRTIFY that the foregoir.g resolution was du:y
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~':~()pted by the !':?\'G:l ~-.i.~1(1 Cornman Counc iJ of the ci ty of San
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l13ernardino at a
on the ,-J(~ day
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meeting thereof, held
1'i
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of ---:.-PIJ/':,r/t.;/
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, 1979, by the following
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vote, to wit:
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Councilm~n
AYES:
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NAYS:
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..:ity Clerk
ABSE!l:T:
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The foresoi'~9 rcso)utior, is here!:)' appro-"~ c:v
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.h.ppro~ as tc ~orr," d':1 Clr ~ ~:1{ ~~rty 0: s1~'i:nurch:1(:'
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day
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of
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1\ G R
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(Sc\~cr Connection & Se'~age Treatment)
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this :t;J7/. day 01 I
OF SAN BERNARDINO, \
TillS AGREE~1l::NT is maue and entered into
." ~ ,.
~ . t~~h1"', 1979, by and bet~leen the CITY
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hereinafter called "City", the BOARD OF WATER COM:-lISSIONERS 01-'
THE CI'l'Y OF SAN BERHARIHNO, hereinafter called "Board", and DALE
~I. O'lll::AL and EUGENE M. MALOllE, hereinafter called "Developers".
In consideration of ~h~ agreements, covenants, conditions,
\ prol,lises and
\ hereto agree
1.
legal detriments herein contained, the parties
as follows:
Recitals.
(a) This agreement is entered into for th..
purpose of providing se\~er connection and sewage treatment for
proposed developr.\ent of certain real property known as Tract No.
i
I 10532-1 and Tract No. 10532, more particularly described and
1 depicted in tentative maps filed with the Co~nty of San Bernardinc
\ owned by Developers.
(b) Developers have received approval of tentative
tract maps from the County of San Bernardino subject to disposal
and treatment of liquid waste by the City of San Bernardino.
(c) The pro?osed developments are physically located
outside the corporate limits of City but within the Zone of
Influence of City, as approved by the San Bernardino Local Agency
Formation Commission.
(d) City has approved in principle the Developers'
proposed developments.
(e) Developers have prepared and submitted maps and
plans for a sewer line connecting the proposed development to the
City's sewer system west of Tippecanoe Avenue near Victoria Aver.u
.
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(f)
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Developer:, acknowledge that the sewer collection I
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system is under the jurisdiction of City and that treat~ent
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I facilities are under the jurisdiction of Doard.
I (g) Developers acknowledge that Board's treat~ent
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I plant is ~urrently under a cease and desist order of the Regional
! Water Quality Control Board of the State of California and that
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imodifications are necessary to handle additional capacity.
I (h) Board is in process of securing grant funding to
finance the necessary modifications.
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I (i) Developers acknowledge the nature of the grant
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,I proce:;s and the time invol vet, and are willing to phase the
I deve10?~ent, as shown in Section 4 of this agreement, to align
I with projected funding of the improved treatment capability of
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I Board's treatment plant.
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I rnent to the existing City se',';er collection system will be con-
I structed and paid for by Devel.opers, in accordance with Ordinance
,
!NO. 2158 of City, as amended oy Ordinance No. 3744. Developers
will construct the sewer line in accordance with City standards
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develo~
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2.
Construction.
The approved sewer line from the
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as wel.l as meeting the requirements of the County of San
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Bernardino. Developers will deed these improvements to the City
'I upon acceptance of the project by City.'
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3. Oversizing Credit. City agrees to credit Developers
24 with the cost of oversizing of the sewer line and construction of
25 a sewer line along Tippecanoe Avenue, which are to be constructed
26 by Developers. S'.1ch oversizi::g and construction is estimated to
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,cost not more than $50,000.00. Tile actual cost allocated to these
items is to be determined by the l"ayor and Common Council, bused
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i Ul'un lhe LCCOJ:llnendQions of ar.d nQoti....-_uns between Deve 10,;:::) s '
~cnyinccr and City's engineer. This credit shall be applied to
! reduce the collection syslc~ charge described in Sectio~ 6, but
,
,
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event shall City be obligated to reimburse Developers in
for any portion of such credit.
4. Timing of Develo?~en~. City and Developers agree that
lIthe development of these tracts will occur and the flow of sewage
~into the sewage collection s~stern of the City of San Bernardino
!I vlill occur no earlier than the following timetable:
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IITRAC'l'
t
110532-1
PHASE
HOIJSING UNITS
SEWAGI: FLOW i:0 EARLIER 'rHAN
'I'HE FOLLOllING DhT;:;S
1
32 (Plus Cor.~ercial
Developments)
1980
January
10532-1
2
37
June 1980
10532-1
\ 10532-1
110532
3
3
4
27
November 1980
24
November 1980
69
April 1981
September 1981
10532
5
69
J< 11
,5
Capac~ty Charge.
Developers will pay to City, for
5.
transmittal to Board, the one-tine City capacity charge of $300
per residential unit, at the time building permits are obtained,
subject to adjustments in the capacity charge as described
herein. The residential fee of $300 per unit shall be adjusted
October 1, 1980, and each October 1st thereafter in proportion
to the most recently published 12 month increase in the Con-
struction Cost Index, publis!-:ed in "EngineeringNe',,'s-Record ", a
publication of HcGraw Hill, Inc. The adjustment shall be roundec
to the nearest $5.00. The c~?acity charge shall also be subject
to change purst:ant to any duly e~acted City ordinance or resolu-
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c. t.i on
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~ I th"
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mouitying. llw caOi Ly chur<je. 0
G. ~.~J.lcclioll system C;')1.:-gc. l
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~o?crs will pay to City
one-time City collcction systcm charge 0: $200 per bedroom at
time building perini ts are obtained, the proceeds of Irlhich are
5 reserved for the repair, enlargement and cor.structioll of City's
6 sewage collection system. In the event that the present $200 per
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i bedroom fee is changeu by City ordinance or resolution, payment
I'will be made in accordance with the fee in effect at the time of
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\ actual application.
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7. Sewer Service Charg~. Pending a~nexation of the area
to City, all users of sewer service on the lines to be con-
structed shall pay a monthly sewer service c~arge pursuant to
!any City ordinance or resolution applicable ~o sewer service for
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a~eas outside the corporate limits of City.
\, IN WITNESS \mEREOF, the parties hereto have executeu this
1\ agreement on the date first hereinabove writ~en.
I A~TEST:
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City Clerk
\
BOARD OF WA?ER CO~li1ISSIONERS OF
THE CI~Y OF SA~ BEW,ARDINO
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By
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F,/i .::.// ...... !~i.~ t'l..,!, (':(: ~-;IU
;' Pres~dent
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By _ <;.;.:b::'-:C,l is C. ; 7::./ ,v.'.J.::Jd" --
Secretary
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Dl\~E.Ji'A O~!;:::;.L
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IAPproved as to form:
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\'\ Approved as to form:
\ Edward F. Taylor
, .__ r
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II '(' (( ,~ .-(, j .r: "\1 (" \
\I Attorney for Board of t
!\ \1ater Com ,issioners !
\ of the ~ity of San I'
:1 Bernardl.no
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c C AT.QNEY :)
SPECIAL POWE}{ OF
I, E. MAXWELL MALONE of 501 East San Juan, San Juan
Capistrano, California, hereby appoint DALE O'NEAL as my
attorney in fact to act in my capacity to do any and all
of the following:
To enter into an agreement with the City of
San Bernardino to provide sewer service to Tract No. 10532
located in the County of San Bernardino.
The rights, powers and authority of my attorney in
fact to exercise any and all of the rights and powers
herein granted shall be effective retroactively to cover
any agreement signed prior to this date and shall remain
in full force and effect until said agreement with the
City of San Bernardino shall be effective.
"h
WITNESS my hand this ~ day of September, 1979.
~-
E. Maxwell Malone
STATE OF CALIFORNIA
I
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COUNTY OF C,cu' n"":.
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On ;:;-",;-.,,,./.'" ,,'..' -. '7' before me, the undersigned, a
Notary Public in and for said State, personally appeared
E. Maxwell Malone, known to me to be the person whose name
is subscribed to the within instrument and acknowledged
that he executed the same.
WITNESS my hand and official seal.
. fL. 1\.) /~'.'~./..:. ,.,: ~ ," ~'
I' Notary Public
" OfflCI"'~ $~
~ JAN RENARD
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.. is: ,. ' ORANG! couNTY
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Jia IV' ~;',J ri{CY()
Seal
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