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1994-0118_FORSTER, THOMAS A._Reimbursement AgreementRecorded at Request of and When • Recorded Mail to: City Clerk, City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 DO « 4fi,Jd.�f;-; r D4rdC CVVJ .11 "'I IaLIGi t�LVi V. a,.,.. - IBJC 1 Y,r. I tY ICC3• YY va aV! i v•. �a �v MASTER PLAN STORM DRAIN FORSTER PROPERTIES THIS AGREEMENT, dated the At day of 6fylua.r , 1994, is by and between Thomas A. Forster, owner of property located at 32532 Alipaz Street, San Juan Capistrano (AP Nos. 121-171-46 and 121-171-47), whose official mailing address is P. O. Box 146, San Juan Capistrano, CA 92693, hereinafter referred to as "DEVELOPER", and the City of San Juan Capistrano, hereinafter referred to as "CITY". WITNESSETH WHEREAS, the CITY has heretofore adopted the Master Plan of Drainage for the San Juan Capistrano -Capistrano Beach Area (hereinafter called "Master Plan") which establishes drainage fee assessment areas throughout the CITY; and • WHEREAS, in connection with the development of its land located at 32532 Alipaz Street in the City of San Juan Capistrano, DEVELOPER applied for and was granted approval of General Plan Amendment 88-2, Rezone 88-1 and Conditional Use Permit 88- 10 on condition that it meets the requirements of the aforesaid Master Plan; and WHEREAS, in accordance with the Master Plan, DEVELOPER is required to pay a drainage assessment fee of $15,642.90. This fee shall be exempted only upon successfully completing the drainage facility to the City's satisfaction; and WHEREAS, DEVELOPER agrees to design and construct, at its sole cost and expense of an estimated amount of $344,100 (as referenced in Exhibit "A"), a master -planned storm drain system hereinafter referred to as "storm drain'; and WHEREAS, the aforementioned storm drain system benefits other areas of development, and the DEVELOPER is entitled to reimbursement for a portion of those costs of construction; and WHEREAS, DEVELOPER desires to enter into this agreement to provide a means for allowing the construction of the storm drain system and related appurtenances and to provide a mechanism for crediting the DEVELOPER, Thomas A. Forster, for the reimbursable costs incurred in constructing such facilities against available drainage - mrisces{�ecaed3of' iaa Asft a Area r0r;"and- WHEREAS, the proposed storm drain system. provides a benefit to the CITY and property owner, the CITY is, therefore, willing to share in the costs for areas of benefit •to CITY, including portions of the drain that provide protection to downstream development; and rL REIMBURSkMENT AGREEMENT Forster Page 2 • WHEREAS, in accordance with the Area of Benefit (Exhibit "B") and proportionate cost calculation (Exhibit "C"), the DEVELOPER agrees to be reimbursed for 50% of the selected construction bid, concurred with by the CITY, for the drainage facility. This 50% is approximately $172,050; WHEREAS, CITY will use its best efforts with County to assist DEVELOPER in securing the necessary permits to connect to the County's facilities. NOW, THEREFORE, in consideration of the premises hereinafter set forth, CITY agrees to reimburse DEVELOPER an aforesaid sum of $172,050 from drainage fees collected from Drainage Assessment Area LO1 under the following terms and conditions: 1. Reimbursements: A. The reimbursement by the CITY for its share of $172,050, representing 50% of above-mentioned total cost estimate will be paid over a period of ten (10) years from date of completion and acceptance of work for this Master Plan storm drain system. B. As to the remaining reimbursement from future developments' shares of $25,739 representing 7.48% of the total cost estimate, this reimbursement agreement shall remain in effect for an initial period of fifteen (15) years from the date of execution and upon the expiration of said period shall be subject to extension for an additional period of five (5) years as provided in Section 4 of this agreement. • 2. Priority in Claims: It is hereby specifically understood and agreed that the reimbursement payment contemplated herein shall come solely from funds paid into the aforesaid Drainage Assessment Area LOl, and in the event that there should be other parties claiming refunds, the priority of any payments made from said fund shall be determined by the date of the respective reimbursement agreements. 3. Completion of Master Planned Facilities: CITY shall not be required to reimburse DEVELOPER until all master planned facilities within the Drainage Assessment Area LOI have been constructed unless City Council determines that the payment of such reimbursement will not jeopardize the improvement or construction of master planned facilities, except as provided in Section 4 of this agreement. 4. Term of Reimbursements: A. Reimbursement by the City: Upon expiration of the ten (10) year term of Reimbursement A for the City's share as specified in Section 1-A above, and provided that DEVELOPER is otherwise entitled to reimbursement as provided in Section 2, CITY shall reimburse to DEVELOPER so much of the unpaid balance as is then available as said term is hereinafter defined, from Drainage Assessments for Drainage Assessment Area LO1, whether or not all of the master planned facilities within said area have been constructed. If DEVELOPER is not fully reimbursed prior to the expiration date, then upon the expiration of said date CITY shall reimburse to DEVELOPER so much of the unpaid balance as is then • available from drainage assessments for Drainage Assessment Area LO1, whether or not all of the master planned facilities within said area have been constructed. REIMBURSEMENT AGREEMENT Forster Page 3 B. Reimbursement from Future Development: • Upon expiration of the initial term of Reimbursement B from future development as specified in Section 1-B above, and provided that DEVELOPER is otherwise entitled to reimbursement as provided in Section 2, CITY shall reimburse to DEVELOPER so much of the unpaid balance as is then available as said term is hereinafter defined, from Drainage Assessments for Drainage Assessment Area LO1: If funds are not available to reimburse DEVELOPER fully and, if the City Council does not find and determine that the master drainage plan will be jeopardized, then, at the written request of the DEVELOPER and at the CITY'S sole and absolute discretion, the term of this agreement may be extended for an additional period of five (5) years. 5. Alterations: The City Engineer of the CITY of San Juan Capistrano may make such changes, alterations or additions to the plans and specifications for said work and improvements which do not exceed ten percent (10%) of the total estimated cost as may be determined necessary and desirable by him for the proper completion of said work and improvement or as required for the safety and welfare of the public and no such changes, alterations or additions shall relieve the DEVELOPER from the faithful performance of this agreement. All such additions shall be at the written direction of the City Engineer and eligible for 50% reimbursement as specified in Section la. 6. Completion Date: A. DEVELOPER agrees to complete all of said work and improvements within • a period of two years from the date of this agreement. If additional time is needed, an extension may be granted by the City Engineer on the showing of good cause. Any such extension shall, however, be subject to all of the terms and conditions of this agreement, and any surety or other security shall continue in full force until the work and improvement has been accepted by the CITY. B. DEVELOPER agrees that CITY may, without any notice and at its sole option, at any time after the time for completion has passed, complete, or cause to be completed, all or any part of the said work, and DEVELOPER shall pay to said CITY, upon demand, all of the costs of any of said work done by the CITY, its agents and contractors, or any of them, to complete all or any part of said work. DEVELOPER hereby consents to entry on the property by the CITY and its forces including contractors in the event the CITY proceeds to complete and/or maintain the work. Liability/Insurance: A. DEVELOPER agrees to pay CITY such sum as the court may adjudge as reasonable for the legal services of any attorney representing the CITY in any action brought to enforce or interpret the obligations of this instrument, and such sum shall be made a part of any judgment in such action against the DEVELOPER if such action is determined in favor of the said CITY. • REIMBURSEMENT AGREEMENT Forster Page 4 • B. CITY, its officers and employees, except for their own acts, shall not be liable or responsible for any accident, loss or damage happening or occurring to the improvements specified in this agreement prior to the completion and acceptance of said improvements by the CITY. C. DEVELOPER shall perform all work in a safe, workmanlike manner and shall take such precautions as may be necessary to warn and protect the public from any dangerous condition caused by the construction of said improvements. D. DEVELOPER shall hold CITY, its officers and employees harmless from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of, the acts or omissions of the DEVELOPER, his contractor, subcontractors, agents or employees in the performance of this agreement. E. DEVELOPER agrees to maintain liability insurance during the construction of the storm drain system in the following amounts: 1. Comprehensive General Liy. DEVELOPER shall maintain in full force and effect comprehensive generalabilitliability coverage, including premises operations, products/completed operations, broad form property damage, and i blanket contractual liability in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/ • not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 11. Worker's Compensation. If DEVELOPER employs employees or subcontractors to perform services under this agreement, DEVELOPER shall obtain and maintain, during the life of this agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. These above stated policies shall not terminate, nor shall they be cancelled, nor the coverage reduced, until after 30 days written notice is given to the CITY. DEVELOPER shall provide an endorsement to CITY establishing that CITY has been legally added as an additional insured to the liability policy required under this agreement. a. Surety Bonds: The DEVELOPER shall post Labor and Material and Performance surety bonds each in an amount equal to CITY approved Engineer's construction estimate prior to commencement of any construction work or issuance of permits on standard form approved by the City Attorney to insure all of the DEVELOPER'S obligations as noted in this agreement. 0 REIMBURSEMENT AGREEMENT Forster Page 5 • 9. Guarantee and Warranty of Work: DEVELOPER guarantees that said work shall be free from defects in material or workmanship and shall perform satisfactorily for a period of one year from and after the CITY'S acceptance of the work as completed in accordance with the Municipal Code. DEVELOPER agrees to correct, repair or replace at his expense any defects in said work. 10. Force Majeure: None of the parties hereto shall be deemed to be in default if performance of the obligations required by this agreement is delayed or becomes impossible because of any act of God, earthquake, fire, strike, sickness, accident, civil commotion, epidemic, act of government, its agencies or officers, or any legitimate cause beyond the control of the parties. 11. Notices: All notices, requests, demands, consents and other communications under this agreement shall be in writing, including telex and facsimile transmission, and shall be deemed to have been duly given on the date of service if served personally, by telex, or facsimile transmission, or 48 hours after mailing if mailed by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows: To: Thomas A. Forster d/b/a Rancho Storage P. O. Box 146 San Juan Capistrano, CA 92693 To: City of San Juan Capistrano Attn: City Clerk • 32400 Paseo Adelanto San Juan Capistrano, CA 92675 12. Assignment: This agreement shall be binding upon and inure to the benefit of the parties hereto and their respective representatives, assigns and successors in interest. 13. Entire Agreement: This agreement contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein. There are no representations, agreements, arrangements or undertakings, oral or written, between or among the parties hereto relating to the subject matter contained in this agreement, which have not been fully expressed herein. 0 REIMBURSEMENT AGREEMENT Forster Page 6 IN WITNESS THEREOF, the parties hereto have executed this agreement on the • date first above written. ATTEST; ERYL ��FlTy,LERK DArE AS O FORM; A K. ENHA TER CI Y ATTORNEY a �jq DEVELOPER "-x-%� ���� THOMAS A. FO STER DATE CITY OF SA 7UAN CAPISTRANO OLLENE BELL, MAYOR /i8 9� DATE • yY`a.MV.�Y�}}'�YWX1Ri.it!P"1"Gtiiw 'F'1PtG�.:�NMK.1iAY61 f♦�cc�,y`py� +) yg�Y ...� • • EXHIBIT "A" FORSTER PROPERTY - DRAINAGE REIMBURSEMENT AGREEMENT SUMMARY OF QUANTITY AND COST ESTIMATE EARTH WORKS/IMPORT - GRADING (PER ATTACHED) $142,000 STORM DRAIN CONSTRUCTION (PER ATTACHED) $130,800 CONTINGENCY (10%) $27,200 ENGINEERING AND INSPECTION (14.7%) $44,100 TOTAL COST ESTIMATE $344,100 Earth work is required to produce positive drainage. About 44,000 cubic yards of imported material for controlled compacted fills are necessary to create the basic inlet sump elevations and to divert runoff to drain onto such sumps. � � 0 EXzaZ2 a § 2> &` a® y�. ■,� ;? ■%7 !§� j ■ \|� .+ � 7 §}y � i N, .k§kN) �2 N !! 7«§! EXzaZ2 a § • EXHIBIT "C" FORSTER PROPERTY - DRAINAGE REIMBURSEMENT AGREEMENT SUMMARY OF THE AREA OF BENEFIT AND PROPORTIONAL COST CALCULATION In evaluating the drainage reimbursement proportions, based on benefited areas, the following has been determined: There are areas of direct benefit (areas that are tributary to the proposed storm drain) and areas of indirect benefit (areas for which the proposed storm drain provides a reduction in storm runoff). While the direct benefit areas are counted 100 percent, the indirect benefit areas are discounted as there is a reduction in runoff. The methodology used to calculate the indirect area is as follows: The reduction can be calculated by determining the flow prior to the storm drain versus the flow after the storm drain and applying this as a reduction factor to the total benefited acreage. Flow picked up by storm drain = 32.3 CFS Flow contributed by trailer park 2.6 x 21.15 = 55.0 CFS Total Q 87.3 CFS % benefit = 32.3/87.3 x 100 = 37.% • This applied to the various acreages results in the following percentages: AREA RESPONSIBLE ACREAGE x FACTOR TOTAL AC % COST ALLOW I Calle Rolando (devel.) Sic 5.26 1.0 5.26 14.57 $50,135 2 Calle Rolando (undevel) Pitts 2.70 1.0 2.70 7.48 25,739 3 Forster Forster 13.37 1.0 13.37 37.05 127,489 4 CVWD CVWD 1.03 1.0 1.03 2.85 9,807 5 Rancho Del Avion (dir) SJC 5.9 1.0 5.9 16.35 56,260 6 R. Del Avion (indirect) SJC 21.17 0.37 7.83 21.70 74,670 36.09 100% 344,100 It was acceptable by Mr. T. Forster to have the City be responsible, through a ten year period reimbursement mechanism from date of acceptance completed work, for a 50% of cost share (in lieu of the 52.62% for items 1, 5 and 6). It was also acceptable by Mr. T. Forster to be responsible for the other 50% of cost share provided he gets reimbursed for Item 2: Calle Rolando (undeveloped land), if funds are available during a 20 year period from date of Agreement execution. •