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Home My WebLink About40-Council Office COUNCIL ACTION CORRESPONDENCE To Councilman Jack Strickler, Chairman Subject Recommendation Relative to the Legislative Review Committee City's Policy on Underground Utilities Date November 17, 1986 Meeting Date November 17, 1986 Agenda Item No. 38 Action The recommendation from the Legislative Review Committee relative to the City's policy on underground utilities, was co?t~nued tq,J:l~f..!lIbl!r 8, 1986. __..F...........".. -'~ ""--., SC:dc cc: Mayor Wilcox A1JJ/~/ City Attorney ./SHAUNA CLARK City Administrator City Clerk Public Works/Engineering ) \ ( l ~~~ -.-,. / ~TY OF SAN BERL\RDINO . . MEMORANDUM To Hon. Mayor and Common Council From Ralph H. Prince City Attorney Date November 5, 1986 Subject Continued Item No. 40, Agenda of ll/3/86, Waiver of Conditions for paraal Ha~ New 99J9 Approved Date 700.1 This agenda item was continued from the meeting of November 3, 1986, in order to resolve conditions unacceptable to the subdivider. The City Attorney was directed to provide a legal opinion concerning alternative number 3 which related to deeds containing covenants that the owners agree not to protest the creation of a future assessment district for undergrounding utilities. A memorandum from John F. Wilson, Deputy City Attorney, to Ray Schweitzer, Acting City Administrator, dated October 22, 1986, was attached to the agenda of November 3, concluding that alternative number 3 is unenforceable and should not be adopted. Councilman Hernandez has suggested that the present owners by acceptance of the deed could consent to the creation of an assessment district or a Millo-Roos district for the assessment of the properties for the improvements. At the outset it should be noted that San Bernardino Municipal Code Section l8.44.020 requires that improvement security be one or more of the following: "Il) a deposit or deposits made with the City of money or negotiable bonds of the kind approved for securing deposits of public moneys; (2) a bond or bonds by one or more duly authorized corporate sureties; (3) an instrument or instruments of credit from one or more financial institutions subject to regulation by the state or federal government pledging that the funds necessary to meet the performance are on deposit and guaranteed for payment and agreeing that the funds designated by the instrument shall become trust funds for the purposes set forth in the instrument." The San Bernardino Municipal Code does not permit other types of improvement security to be filed. Therefore, since C'J'Y Oil J'H.=MOV. alternative 3 is intented to be used as an improvement security and the subdivider desires that the final map be recorded for the purposes of effectuating a sale of the property, alternative 3 would not be in compliance with Section 18.44.020. A covenant running with the land could not impose upon the purchaser an improvement requirement by an assessment district without the consent of such purchaser at the time of the conveyance of the property. There is a serious question whether subsequent purchasers, assignees or successors in interest could be required to waive their right to protest at quasi-judicial hearings involving the assessment district. You might desire to consider implementing Government Code Section 66499(5) which permits a different type of improvement security for subdivisions as follows: "(5) Any form of security, including security interests in real property, which is acceptable to the local agency and specified by ordinance thereof." This type of improvement security interest in real property would have to be implemented by an amendment of San Bernardino Municipal Code Section lB.44.020. You should take into consideration that a second deed of trust or other interest in real property would be inadequate security when the real property is substantially indebted because the first deed of trust has a priority position in foreclosure proceedings. /{:t(,d4i/H:a~~/ RA.LPH H. PRINCE City A.ttorney cc City Administrator Director of Public Works/City Engineer Planning Director Superintendent of Building & Safety Director of Public Services , / /,'( , /~. /1; jiG . , ' ,.", c BERN ARD IN 0 POST OFFICE BOX 131B. SAN BERNARDINO. CALIFORNIA 92402 November 4, 1986 SHAUNA CLARK CITY CLERK Mr. John Day Arrowhead-Huff Company 803 East Broadway, Suite D Glendale, CA 91205 Dear Mr. Day: At the Council Meeting held November 3, 1986, your request for waiver of certain conditions attached to the approval of Parcel Map No. 9939 located on the southeast corner of Huff Street and Arrowhead Avenue, was l"ont:inued to November 7. ]QS6. The Mayor and Common Council requested the City Attorney to reevaluate his legal position regarding Alternate Plan No.3: To record the parcel map along with deeds, for the two parcels to be created, containing covenants that the owners agree not to protest the creation of a future assessment district for underground utilities. jH( Sincerely, ~;Z~~7b- SHAUNA CLARK City Clerk SC:dc cc: Mayor Wilcox Councilman Jack Strickler, Chrm. Legislative Review Committee City Attorney City Administrator Publi~ Works/Engineering PRIDE IN PROtRESS 300 NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 9241B.o121 PHONE (714) 383-5002/383-6102 -''''TY OF SAN BER~.~RDINO r - MEMORANDUN,-lIi'iO- RA Y SCHWE lTZER To Acting City Administrator Continued Item No. 38, Agenda of 10-20-86 -- Wa i ver of Cond it ions for Pa rce 1 Ilap No. 9939 ROGER G. HARDGRAVE, Dir. of REC'D; ~'l&jfl.tlu~Vc Works/Ci ty Engi neer 1988 OCT ~2te Octob~r 22, 1986 AI~",~~o. 11.051, P.M. No. 9939 Date Subject Approved This item was continued to 11-03-86, in order to afford us an opportunity to meet with the applicant and attempt to work out an acceptable solution. We met with Mr.Jo~n Day on 10-21-86. The following alternate courses of action were discussed: 1. Post an acceptable security in the amount of $l70,000 (including $125,000 for undergrounding utilities). 2. Defer recordinn parcel map until an assessment district for undergrounding utilities can be established. 3. Record the parcel map along with deeds, for the two parcels to be created, containing covenants that the owners agree not to protest the creation of a future assessment district for undergrounding utilities. Alternate No. 1 was unacceptable to Mr. Day, due to insufficient funds. Mr. Day also found Alternate NO.2 to be unacceptable, due to the cost and time involved in establishing an assessment district. Alternate No.3 would be acceptable to Mr. Day. Under this alternate, deeds containing the covenants against protesting an assessment district would be prepared by the Title Company and submitted to the City Engineer for review and approval. These deeds would be recorded concurrently with the parcel map and apply to future owners. Required street improvements adjacent to Parcel No. 1 (Arrowhead Avenue and Huff Street) would be installed or bonded for prior to recordation of the parcel map. Installation of street improvements adjacent to Parcel No.2 (Esperanza Street) would be deferred until development by addition of an Improvement Certificate to the Parcel Map. Alternate No.3 has been discussed with Mr. John Wilson, Deputy City Attorney. It is Mr. Wilson's opinion that this process would place the City in an inferior legal position, and he is unable to support this approach. any further information. Engineer RGH:rs . cc: John Day - Arrowhead-Huff Company Ralph Prince, City Attorney .i , TUlTATJVI 'Allen. ilAP }JrJ. 9939 . w""enr,.., --~--.. 6"N'" SII6011'ISI"" IV ""ltcr. I v ""..cr. MAP UGII IN TNECITI' OF SII/IIIIE__IWJ, CIJt/NTI' 11' SItN Ir_IHI/III, STATr OF CINIFiIJ/INIA. " "" liP III"CDllDEIJ IN 6_ 61. 1"/151" 77 , 7/1 11' """cr.. ",,,,.S. '" Till' OF"cr IV TNI' C_TI' ..rCIlIlIJEII IJ, SIIIII SIIN 6rANIIII0I#{1 CWNT//. 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