Agreement to Be Recorded Affecting Real Property 1997-0161589
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DO~ " 1997-0161589
OB-APR-1997 91-iP PM
OFFICIAL RECOROS"l.('.~
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY SMITH. COUNTY RECOROER
FEES: O. 00
9.53
POW A Y REDEVELOPMENT AGENCY
13325 Civic Center Drive
Poway. California 92064
Attention: Executive Director
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This. document is exempt from a recording fee pursuant
to Govt. Code ~ 6103.
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
THIS AGREEMENT TO B~RECORDED AFFECTING REAL PROPERTY (this
"Agreement") is entered into this;;tt <lay of~. 1997 by and between the POWAY
REDEVELOPMENT AGENCY, a public body, corporate and politic (the" Agency") (and the
City of poway shall be an intended third party beneficiary of this Agreement), and McMILLIN
4S BUSINESS PARK, INC., a California corporation (the "Participant"), with reference to the
following recitals which are deemed to be a substantive part hereof:
A. The Participant is the fee owner of that certain real property in the City of Poway
and legally described in the Legal Description which is attached hereto as Exhibit" A" and
incorporated herein by this reference (the "Site").
B. The Site is within the Paguay Redevelopm.ent Project in the City and is subject to
the provisions of the Redevelopment Plan.
C. The Ag~ and ~1iciPant have entered that certain Owner Participation
Agreement dated as of (.J..( . , 1997 (the "OPA") concerning the development, use and
operation of improvements upon the Site, which agreement is available for public inspection at
the Agency's offices located at 13325 Civic Center Drive, Poway, California 92064.
D. Participant has agreed with Agency to execute and record this Agreement in order
to bind itself and future owners of the Site to certain obligations regarding the on-going use,
operation and maintenance of the Site and certain other covenants, all as more particularly set
forth herein.
E. The enforcement of the covenants and requirements set forth herein will ensure
the proper implementation of the Paguay Redevelopment Plan and will, therefore, benefit the
Participant, the City of Poway, the Agency and the properties located within the Paguay
Redevelopment Project.
F. Capitalized terms shall have the respective meanings set forth in the OP A unless
the context in which they are used clearly requires otherwise.
PUBL,48855_11424122345.0016
954
Section 1. Pnrpose of Agreement. The purpose of this Agreement is to set forth the
general use and operations covenants, maintenance standards and obligations of Participant in
their use, operation and maintenance of the improvements on and within the Site.
Section 2. Constrnction Covenants. The Participant shall construct the
Improvements in phases in accordance with the OPA, the City Municipal Code and the plans,
drawings and documents submitted by the Participant and approved by the Agency as set forth in
the OPA.
Section 3.
Use and Operations Covenants.
3.1 Use in Accordance with Redevelopment Plan. The Participant covenants
and agrees for itself, its successors, assigns, and every successor in interest to the Site or any
part thereof, that upon the Closing and during construction, operation, and thereafter, and ending
upon the expiration of the Redevelopment Plan, as applicable to the Site, the Participant shall
devote the Site to the uses specified in the Redevelopment Plan and this Agreement for the
periods of time specified therein. All uses conducted on the Site, including, without limitation,
all activities undertaken by the Participant pursuant to the OPA and this Agreement, shall
conform to the Redevelopment Plan and all applicable provisions of the City Municipal Code.
3.2 Covenant to Pay Taxes and Assessments. The Participant shall pay prior
to delinquency all ad valorem real estate taxes, special taxes, assessments and special assessments
on the Site, subject to the Participant's right to contest in good faith any such taxes, including,
without limitation, the special assessments imposed by CFD 88-1. The Participant shall remove
or have removed any levy or attachment made on any of the Site or any part thereof, or assure
the satisfaction thereof within a reasonable.
3.3 Covenant re Assessed Valuation of the Project. The Participant shall
perform the Construction of the Improvements in such a manner that the initial reassessed value
of the Site, together with the improvements and equipment located thereon, is not less than the
assessed valuation for the Site for fiscal year 1996-1997. For a ten (10) year period beginning
upon the first assessment of the Site after the completion of the construction of the Phase 1
Improvements, the Participant shall not take any action (or direct any other person to take any
action) to decrease the property tax assessment of the Site below the initially assessed sum.
3.4 Maintenance Covenants. The Participant shall maintain the Site and all
improvements thereon, including lighting and signage, in good condition, free of debris, waste
and graffiti, and in compliance with the terms of the Redevelopment Plan and with all applicable
provisions of the City of Poway Municipal Code. Participant shall maintain in accordance with
the "Maintenance Standards," as hereinafter defined, the Improvements and landscaping on the
Site. Such Maintenance Standards shall apply to all buildings, signage, lighting, landscaping,
irrigation of landscaping, architectural elements identifying the Site and any and all other
Improvements on the Site. To accomplish the maintenance, Participant shall either staff or
contract with and hire licensed and qualified personnel to' perform the maintenance work,
including the provision of labor, equipment, materials, support facilities, and any and all other
items necessary to comply with the requirements of this Agreement.
PUBL,48855 _11424122345.0016
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955
The following Maintenance Standards shall be complied with by Participant and its
maintenance staff, contractors or subcontractors:
a. The Improvements shall be maintained in conformance and in
compliance with reasonable commercial development maintenance standards for projects of a
similar type in San Diego County, including but not limited to: painting and cleaning of all
exterior surfaces and other exterior facades comprising all private improvements and public
improvements to the curb line. The Improvements shall be maintained in good condition and in
accordance with the custom and practice generally applicable to comparable facilities located
within San Diego County, California.
b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road
conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials;
control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for support of trees.
c. Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior
to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which
the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other
debris are properly disposed of by maintenance workers.
Agency agrees to notify Participant in writing if the condition of the
Improvements do not meet with the Maintenance Standatds and to specify the deficiencies and the
actions required to be taken by Participant to cure the deficiencies. Upon notification of any
maintenance deficiency, Participant shall have thirty (30) days within which to correct, remedy or
cure the deficiency. If the written notification states the problem is urgent relating to the public
health and safety of the City or the Agency, then Participant shall have forty-eight (48) hours to
rectify the problem. In the event Participant does not maintain the Improvements in the manner
set forth herein and in accordance with the Maintenance Standards, Agency shall have, in
addition to any other rights and remedies hereunder and under the OPA, the right to maintain
such Improvements, or to contract for the correction of $uch deficiencies, after written notice to
Participant, and the Participant shall be responsible for the payment of all such costs incurred by
the Agency.
3.5 Nondiscrimination Covenants. The Participant covenants by and for
itself and any successors in interest that there shall be no discrimination against or segregation of
any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall the Participant itself or any person claiming under or through
Participant establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sub lessees or vendees of the Site. The foregoing covenants shall run with the land.
PUBL,48855_11424122345.oo16
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956
The Participant shall refrain from restricting the rental, sale or lease of the Site on
the basis of race, color, religion, sex, marital status, amcestry or national origin of any person.
All such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land. "
b. In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions:
"That there shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, religion,
sex, marital status, national origin, or ancestry in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under
or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the premises herein leased. "
c. In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons on account of race, color. creed, religion, sex,
marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the premises."
3.6 Covenant to Repay City Loan.
a. Repayment of Portion of City Loan Upon Sale of the Project.
Participant covenants and agrees that upon the Sale of the Project after the Date of this
Agreement, the Participant shall pay to the Agency an amount equal to the sum derived by
dividing $850,000.00 by the total net usable square footage of the Site multiplied by the net
usable square footage sold [($850,000.00 + total net usable footage of the Site) X net usable
square footage sold] for each portion of the Site sold from the proceeds of such sales (the "City
Loan Repayment Amount Upon Sale"). In the event that the calculation of the Initial City Loan
PUBL,48855 _11424122345.0016
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957
Repayment Amount results in an amount ending in a percentage of a cent, such amount shall be
rounded up to the next whole cent.
b. Deferred City Loan Repayment Amount. In addition to the City Loan
Repayment Amount, upon each issuance of Project Bonds, the Participant further covenants and
agrees that the Participant shall pay to the Agency in the manner elected by the Agency pursuant
to Section 206.3 hereof both: (i) an amount equal to the sum derived by dividing $850,000.00
by the total net usable square footage of the Site multiplied by the net usable square footage sold
[($850,000.00 + total net usable footage of the Site) x net usable square footage sold] which
amount shall be equal to, but not exceed, Eight Hundred and Fifty Thousand Dollars
($850,000.00) (the "Guaranteed City Loan Repayment Amount"); and (Ii) an amount equal to
twenty five percent (25 %) of the amount by which the S,lies Income to the Participant from the
Sale of the Project exceeds the amount of Three Dollars and Seventy-Five Cents ($3.75) which
Three Dollars and Seventy-Five Cents ($3.75) amount s&all be increased by Five Cents ($0.05)
for every calendar quarter commencing in January 1998 which amount shall not exceed the
amount of One Million Five Hundred Thousand Dollars ($1,500,000.00). The amounts set forth
in sub-sections (i) and (ii) of the preceding sentence of this Section 3.6(b) shall be referred to
herein as the "Additional City Loan Repayment Amounts." In the event that the calculation of
any Additional City Loan Repayment Amount results in any amount ending in a percentage of a
cent, such amount shall be rounded up to the next whole cent.
c. Veritication of Sales Income. Upon the Sale of the Project, the
Participant shall provide to the Agency's Executive Director, or his/her designee, true and
correct copies of all applicable sales documents referencing the amount of the Sales Income with .
respect to that portion of the Project so sold by the Parti~ipant, including without limitation, a
copy of the Closing Statements, and such other documentation regarding such sale as may be
reasonably requested by the Agency's Executive Director in order to allow the Agency to
calculate the amount of the City Loan Repayment Amount Upon Sale and the amount of the
Additional City Loan Repayment Amounts. The Agency shall maintain an accounting of the
amount of the Additional City Loan Repayment Amounts which shall be paid to or credited by
the Agency in accordance with Section 206.4 of the OPA.
e. Instrument Affecting and Imposing a Lien on Real Property. The
Participant's obligations under this Section 3.6(e) shall be set forth in the Instrument Affecting
and Imposing a Lien on Real Property which shall be recorded against the Site. The Agency
agrees to release the lien of the Instrument Affecting and Imposing a Lien on Real Property with
respect to individual portion of the Site which are sold upon the written request of the Participant
and following the receipt by the Agency of the City Loan Repayment Amount Upon Sale
required pursuant to this Section 3.6.
3.7 Effect of Violation of the Terms ,and Provisions of this Agreement
After Completion of Construction. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its own right
and for the purposes of protecting the interests of the conununity and other parties, public or
private, in whose favor and for whose benefit this Agreement and the covenants running with the
land have been provided, without regard to whether the Agency has been, remains or is an owner
of any land or interest therein in the Site. The Agency shall have the right, if the Agreement or
covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits
PUBL,48855_11424122345.oo16
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958
at law or in equity or other proper proceedings to enforce the curing of such breaches to which it
or any other beneficiaries of this Agreement and covenants may be entitled. The covenants
contained in this Agreement shall remain in effect as follows:
a. The covenants pertaining to use and operation of the Site which are
set forth in Section 3.1 shall remain in effect until the expiration of the Redevelopment Plan, as
applicable to the Site.
b. The covenants pertaining to the payment of ad valorem taxes on the
Site which are set forth in Section 3.2 shall remain in effect for a ten (10) year period beginning
upon the first assessment of the Site after the completion of the construction of the Phase 1
Improvements.
c. The covenants pertaining to the assessed valuation of the Site which
are set forth in Section 3.3 shall remain in effect for the term of the Redevelopment Plan.
d. The covenants pertaining to maintenance of the Site and all
improvements thereon, as set forth in Section 3.4 shall remain in effect until the termination date
of the Redevelopment Plan.
e. The covenants against discrimination, as set forth in Section 3.5,
shall remain in effect in perpetuity.
f. The covenants pertaining to the repayment of the City Loan, as set
forth in Section 3.6, shall remain in effect until Participant sells each and every portion of the
Site.
Section 4. Compliance with Law. Participant shall comply with all local, state and
federal laws relating to the uses of or condition of the Site. Local laws for the purposes of this
section shall include only those ordinances which are nondiscriminatory in nature and applicable
to the public welfare, health, safety and aesthetics. If any new local laws relating to uses of or
condition of the improvements create a condition or situation that constitutes a lawful
nonconforming use as defined by local ordinance with respect to the Site or any portion thereof,
then so long as the lawful nonconforming use status remains in effect (Le., until such lawful
status is properly terminated by amortization as provided for in the new local law or otherwise),
Participant shall be entitled to enjoy the benefits of such lawful nonconforming use pursuant to
the lawful nonconforming uses ordinance.
Section 5. Covenants Run with the Land. The Improvements and the maintenance
thereof touch and concern the Site and inure to the benefit of any and all present or successive
owners of the Site. Therefore, whenever the word "Participant" is used herein, it shall include
the owner as of date of execution of this Agreement, and any and all successive owners or
assigns of the Site, and the provisions hereof are expressly binding upon all such successive
owners or assigns, and the parties agree all such provisions shall run with the land. Agency or
City shall cause a fully executed copy of this Agreement to be recorded in the Office of the San
Diego County Recorder. Notwithstanding the foregoing, in the event Participant or its successors
or assigns, shall convey their fee interest in all or any portion of the Site, the conveying owner
shall be free from and after the date of recording such conveyance of all liabilities, respecting the
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959
performance of the restrictions, covenants or conditions contained in this Agreement thereafter to
be performed with respect to the Site, or any part thereof, it being intended that the restrictions,
covenants and conditions shall be binding upon the record owners of the Site only during such
time as they own the same, provided that the conveying owner shall remain liable for any actions
prior to the date of the conveyance. The requirements of this Agreement shall terminate upon the
date of expiration of the effectiveness of the Poway Community Redevelopment Plan, as
applicable to the Site.
Section 6. Indemnification. Participant agrees to protect, defend, indemnify and
hold harmless City and Agency and their elective and appointive boards, officers, employees,
agents, representatives and volunteers from any and all claims, liabilities, expenses or damages of
any nature, including reasonable attorneys' fees, (a) for injury to, or death of, any person, and
for injury to any property, including consequential dama~es of any nature resulting therefrom,
arising out of or in any way connected with the performance of this Agreement by Participant or
their agents, servants, employees or contractors, but not from (i) the sole negligence or
intentional acts of the City or Agency, or their agents, servants, employees or contractors in
connection with supervision or direction of the work, or (ii) third parties unrelated to Participant
or their agents, servants, employees or contractors, but not by the City or Agency or their
respective agents, servants, employees or contractors and (b) from violation of any statute, law
regulation or other legal requirement concerning a safe place for employment of workers by
Participant or their agents, servants, employees or contractors, but not by (i) the City or the
Agency or their respective agents, servants, employees or contractors or (ii) third parties
unrelated to Participant or its agents, servants, employees or contractors.
Participant shall comply with all of the provisions of the Workers' Compensation
Insurance and Safety in Employment laws of the State of California, including the applicable
provisions of Divisions 4 and 5 of the California Labor Code and all amendments thereto, and all
similar state, federal or local laws applicable; and shall indemnify and hold harmless City and
Agency from and against all claims, liabilities, expenses, damages, suits, actions, proceedings
and judgments of every nature and description, including reasonable attorneys' fees, presented,
brought or recovered against City or Agency, for or on account of any liability under any of said
laws which may be incurred by reason of work performed under this Agreement by Participant or
their agents, servants, employees, contractors, but not by the sole acts of City and/or the Agency
or if available, their respective agents, servants, employees or contractors.
City and Agency do not, and shall not, waive any rights against Participant which they
may have by reason of the aforesaid hold harmless agreements because of the acceptance by
Agency or City or the deposit with the Agency or City by Participant of any insurance policies or
certificate of insurance purporting to indemnify for the aforesaid losses. The aforesaid hold
harmless agreements by Participant shall apply to all liabilities, claims, expenses and damages of
every kind, including but not limited to reasonable attorney fees, suffered or alleged to have been
suffered, by reason of the aforesaid operations by Participant or any of their agents, servants,
employees or contractors, regardless of whether or not such insurance policies are applicable.
Similarly, the Agency shall protect, defend, indemnify, and hold harmless Participant, its
successors and assigns, and/or if available, its respective boards, officers, agents and employees
from any and all claims, liabilities, expenses or damages of any nature, including reasonable
attorneys' fees, (a) for injury to, or death of, any person, and for injury to any property,
PUBL:48855_11424122345.0016
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960
including consequential damages of any nature resulting therefrom, arising out of or in any way
connected with the acts or inactions taken by the Agency pursuant to the terms of this
Agreement, but not the negligence or intentional acts of Participant, or its agents, servants,
employees or contractors; and (b) from violation of any statute, law, regulation, or other legal
requirement concerning a safe place for employment of workers by the Agency, or their
respective agents, servants, employees or contractors but not by (i) Participant or its agents,
servants, employees or contractors or (ii) third parties umelated to the Agency or their respective
agents, servants, employees or contractors.
The Agency shall comply with all the provisions of the Workers' Compensation Insurance
and Safety and Employment Laws of the State of California, including the applicable provisions
of Divisions 4 and 5 of the California Labor Code an all amendments thereto, and all similar
state, federal or local laws applicable; and shall indemnify and hold harmless Participant and its
successors and assigns, from and against any and all claims, liabilities, expenses, damages, suits,
actions, proceedings and judgments of every nature and description, including reasonable
attorneys' fees, presented, brought or recovered against Participant or its successors and assigns,
for or on account of any liability under any of said laws which may be incurred by reason of any
work performed under this Agreement by Agency, or its agents, servants, employees or
contractors, but not by (i) Participant or its agents, servl\llts, employees or contractors or (ii)
third parties unrelated to the City or Agency or their respective agents, servants, employees or
contractors.
Participant or its successors or assigns do not, and shall not, waive any rights against the
City and/or the Agency which it (they) may have by reason of the aforesaid hold harmless
agreement because of any insurance policies or certificat~ of insurance purporting to indemnify
for the aforesaid losses. The aforesaid hold harmless agreement by the Agency shall apply to all
liabilities, claims, expenses and damages of every kind, including, but not limited to, reasonable
attorney's fees, suffered or alleged to have been suffered, by reason of the aforesaid operations
by the Agency, or its agents, servants, employees or contractors, regardless of whether or not
such insurance policies are applicable.
Section 7. Workers' Compensation InsurlUl.ce Requirements. Participant shall
obtain and maintain during the life of this Agreement workers' compensation insurance and if any
work is sublet by Participant, then Participant shall require the subcontractor similarly to provide
workers' compensation insurance. Participant agrees to indemnify City and Agency for any
damages resulting to them from failure of either Participl\llt or any subcontractor to obtain or
maintain such insurance.
Section 8.
Condition of the Site.
8.1 Hazardous Materials. Participant shall not cause or permit the presence,
use generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in,
or about, or the transportation of any Hazardous Materials to or from, the Site in violation of
applicable Environmental Law.
8.2 Indemnity. Participant agree to and hereby do indemnify, defend and
hold Agency and the City and their respective officers, employees and agents harmless from and
against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty,
PUBL,48855_11424122345.oo16
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punitive damage, or expense (including, without limitation, attorneys' fees) (hereinafter
collectively the "Claims"), resulting from, arising out of, or based upon (i) the presence, release,
use, generation, discharge, storage, or disposal of any Hazardous Materials on, under, in, or
about, or the transportation of any such materials to or from, the Site in violation of applicable
Environmental Law before and after the Conveyance, whether discovered before or after the
Conveyance or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule,
regulation, permit, judgment, or license relating to the use, generation, release, discharge,
storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from,
the Site before and after the Conveyance, whether discovered before or after the Conveyance.
This indemnity shall include, without limitation, any Claims for personal injury including
sickness, disease or death, tangible or intangible property damage, compensation or lost wages,
business income, profits or other economic loss, damag'1 to the natural resource or the
environment, nuisance, pollution, contamination, leak, sPill, release, or other adverse effect on
the environment. This indemnity shall not include any Claims resulting from, arising out of, or
based upon the activities of Agency, City, or any of their officers, employees, or agents.
Section 9. Bodily Injury and Damage Insurance Requirements. The Participant
shall defend, assume all responsibility for and hold the Agency and the City and their officers,
employees, agents, representatives and volunteers harmless from, all claims or suits for, and
damages to, property and injuries to persons, including ,/ccidental death (including attorneys fees
and costs), which may be caused by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the Participant or anyone directly or
indirectly employed or contracted with by the Participant and whether such damage shall accrue
or be discovered before or after termination of this Agreement.
Section 10. Waiver. Failure or delay by either party to perform any term or provision
of this Agreement constitutes a default under this Agreement. The aggrieved party shall give
written notice of the default to the party in default as set Jorth in Section 13 hereof. The
defaulting party must within a reasonable time commence to cure, correct, or remedy such
default, and shall complete such cure, correction or remedy with reasonable and due diligence,
and during such period or curing shall not be in default. The waiver by one party of the
performance of any covenant, condition, or promise shall not invalidate this Agreement nor shall
it be considered a waiver by such party of any other covenant, condition or promise hereunder.
The exercise of any remedy shall not preclude the exercise of other remedies City, Agency, or
Participant may have at law or at equity.
Section 11. Modification. This Agreement may be modified only by subsequent
mutual written agreement executed by Participant and the Agency.
Section 12. Attorneys' Fees. In the event of litigation arising out of any breach of
this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys'
fees.
Section 13. Representatives of the Parties and Service of Notices. The
representatives of the respective parties who are authorized to administer this Agreement and to
whom formal notices, demands and communications shall be given are as follows:
PUBL,48855_11424122345.oo16
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Agency:
Poway Redevelopment Agency
13325 Civic Center Drive
Poway, California 92064
Attention: Executive Director
Participant:
McMillin 4S Business Park, Inc.
2727 Hoover Avenue
National City, California 91950
Attention: Michael Binkle
Formal notices, demands and communications to be given hereunder by any party shall be
made in writing and may be effected by personal delivery, telecopy, overnight delivery service or
by registered or certified mail, postage prepaid, return receipt requested. Any written notice,
demand or communication is effective upon receipt.
If the name of the person designated to receive the notices, demands or communications
or the address is changed, written notice shall be given, in accord with this section, within five
(5) working days of such change.
Section 14. Remedies. The Agency, in an event of any breach of any of the
covenants contained herein, shall have the right to exercise all the rights and remedies and to
maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of
the breach.
Section 15. Severability. If any term, provision, condition or covenant of this
Agreement or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest
extent permitted by law.
Section 16. Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement.
Section 17. Priority. This Agreement shall be a lien against the Site prior and
superior to the lien of the Primary Construction Loan and any permanent financing, if any, and
this Agreement shall not be subordinated.
Section 18. Agreement Binding Upon Successors. The terms and conditions,
covenants and agreements set forth herein shall apply to ;md bind the heirs, successors,
executors, administrators, assigns and grantees of Participant with respect to the Site and of
Agency.
PUBl.:488S5 _11424]22345.0016
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dal) ~
year first written above.
AGENCY:
POWAY REDEVELOPMENT AGENCY, a
public body, corporate and politic
Dated:
'3/~J.(
, 1997
B;--L2. --\:d.
Chairman
. .
vtf
ATTEST:
k~k
retary
APPROVED AS TO FORM:
~..~O--- ".r-.~
Stra 'ng, cca, Carlson auth
Agency Special Counsel
PARTICIPANT:
McMILLIN 4S BUSINESS PARK, INC.,
a California corporation
Dated:
5/:)'1
I
, 1997
By:
1HM~
Its: e ,
~~/
4- - iJJJ r
PUBLA8855 _11424122345.0016
11
9(;4
State of California
)
/\ fj ) ss.
County of tDI tA./101. A .P cJ.D. )
On ~ :JLj ,1992, before me, k'o..rPh 1. ;jfAh{j'lP1 !I/o h.r;, PiA b~ c
(name, title of 0 cer. e.g., "Jane Doe, No ry Publ,c")
personally appeared rn i c/" u\.f' I k,.Ai n (L/",1s) ;$ siJt.h v Ul LJ
;; IA .AJ
/
o personally known to me -OR-
o proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
person(s) acted, e"ecuted the instrument.
Witness my hand and official seal.
~);{ ~(N)<j3/
(Signature 0 Notary)
Capacity claimed by signer:
o Individual
o Corporate Officer(s):
o Partner(s):
o General 0 Limited
o Attorney-in-fact
o Trustee(s)
o Guardian/Conservator
o Other:
([his section is OPTlONAL.)
1.- - - ~~WQe I
J . ~.~..._'
Mr:='~~:'
~---- - _I
Signer is representing:
(name 01 person(s) or entlty(les))
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE
MUST BE ATTACHED
TO THE OOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other than Named Above
PUBL,48855 _11424122345.0016
965
State of California )
f ,1' ) ss.
County of dr>vol.!ff) .
On 77J~';;6, 1997-' befor: me, ~~.~:. 7Z.~~
personally appeared .t)crn/ ~
(name(s) of signer(s))
J( personally known to me -OR-
o proved to me on the basis of satisfactory evidence
to be th;~son~ whose nam~~e subscribed to tile within instrument and acknowledged to
me that e/ he/they executed the same i@her/their authorized capacity!les,. and that by
~er/their signature~on the instrument the personoo, or the entity upon behalf of which
personOO acted, executed the instrument.
~ Witn......~, 1o~_..l~...1 Af"'~;"lTL
I~......:.. VMANMAC2IS
~:. .. ~ COMM. "1039231 I
00( ~ . ,
z ,-. Notary PIbIIc - CaIl_ ~
z '.' SAN DIEGO COUMY
L : _ _~C~.~_~21~1~.l
~~ -' ??1C4l~
(Signature of Notary)
Capacity claimed by signer:
o Individual
o Corporate Officer(s):
o Partner(s):
o General 0 Limited
o Attorney-in-fact
o Trustee(s)
o Guardian/Conservator
o Other:
(!his section is OP'l10NAL.)
Signer is representing:
(name oJ person(s) or entlty(les))
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE
MUST BE ATTACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other than Named Above
PUBL,48855_11424122345.oo16
966
LEGAL DESCRIPTION
THE REAL PROPERTY SITUATED WITHIN COMMUNITY FACILITIES DISTRICT NO.
88-1 OF THE CITY OF POWAY, LOCATED IN THE CITY OF POWAY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
LOT 22 OF THE CITY OF POWAY TRACT 87-13, UNIT 1, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8,1990. (APN 17171-317-280-34-00)
LOT 44 OF THE CITY OF POWAY TRACT 87-13, UNIT 1, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN l7i71-317-280-37-00)
LOT 45 OF THE CITY OF POWAY TRACT 87-13, UNIT 1, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN 17171-317-280-38-00)
LOT 46 OF THE CITY OF POWA Y TRACT 87-13, UNIT 1, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8,1990. (APN 17171-317-280-39-00)
PARCEL 108 OF PARCEL MAP 16320 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER ON DECEMBER 10, 1990 AS FILE NO. 90-655448 OF OFFICIAL
RECORDS. (APN 17171-317-280-51-00)
PARCEL 109 OF PARCEL MAP 16320 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER ON DECEMBER 10, 1990 AS FILE NO. 90-655448 OF OFFICIAL
RECORDS. (APN 17171-317-280-52-00)
PARCEL 33 OF PARCEL MAP NO. 16700 FILED IN THE OFFICE OF THE SAN DIEGO
COUNTY RECORDER ON DECEMBER 2, 1991 AS FILE NO. 91-619281 OF OFFICIAL
RECORDS. (APN 17171-317-810-31-00)
LOT 49 AND A PORTION OF LOT 48 OF CITY OF POWAY TRACT 87-13 UNIT 1,
ACCORDING TO MAP THEREOF NO. 12556, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON FEBRUARY 8, 1990, IN THE CITY OF
POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS DESCRIBED IN
CERTIFICATE OF COMPLIANCE RECORDED DECEMBER 3, 1993 AS FILE NO. 1993-
0814099 OF OFFICIAL RECORDS, BEING DESCRIBED AS FOLLOWS:
(page 1 of 4)
Be'?
BEGINNING AT A POINT ON THE NORTH BOUNDARY OF SAID LOT 48
DISTANT THEREON SOUTH 87"10'17" EAST 53.94 FEET FROM THE
NORTHWEST CORNER THEREOF; THENCE LEAVING SAID BOUNDARY
SOUTH 01000'16" WEST 307.71 FEET TO A POINT IN THE SOUTHERLY
BOUNDARY OF SAID LOT 48 AND THE TRUE POINT OF BEGINNING, SAID
POINT BEING A POINT ON A 394.50 FOOT RADIUS CURVE CONCAVE
SOUTHWESTERLY, THE RADIAL TO SAID POINT BEARS NORTH 31013'02"
EAST; THENCE RETRACING THE AFOREMENTIONED COURSE NORTH
01000'16" EAST 307.71 FEET; THENCE ALONG THE BOUNDARY OF SAID LOTS
48 AND 49 AS FOLLOWS, SOUTH 87"10'17" EAST 71.90 FEET TO THE
BEGINNING OF A TANGENT 617.50 FOOT RADIUS CURVE CONCAVE
SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG SAID CURVE
THROUGH AN ANGLE OF 31019'39" A DISTANCE OF 337.63 FEET TO THE
NORTHEAST CORNER OF SAID LOT 49; THENCE CONTINUING ALONG SAID
BOUNDARY SOUTH 46028'20" WEST 408.65 FEET TO THE SOUTHEAST
CORNER THEREOF AND A POINT IN A 394.50 FOOT RADIUS CURVE
CONCA VE SOUTHWESTERLY, THE RADIAL TO SAID POINT BEARS NORTH
49051'50" EAST; THENCE WESTERLY ALONG SAID CURVE AND SAID
BOUNDARY THROUGH AN ANGLE OF 18038'48" A DISTANCE OF 128.39 FEET
TO THE TRUE POINT OF BEGINNING. [APN 317-810-35 (LOT 48) and 317-810-22
(LOT 49)].
LOT 50 OF THE CITY OF POW A Y TRACT 87-13, UNIT I, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN 17171-317-810-23-00)
LOT 51 OF THE CITY OF POWAY TRACT 87-13, UNIT I, ACCORDING TO MAP
THEREOF NO. 12556. FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN 1717i-3l7-810-24-00)
LOT 55 OF THE CITY OF POWAY TRACT 87-i3, UNIT 1, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN 17171-323-090-62-00)
TOGETHER WITH THOSE PORTIONS OF SOUTH POWAY PARKWAY AND
STOWE DRIVE ADJACENT TO AND ABUrrlNG SAID LOT 55 AS VACATED
AND CLOSED TO PUBLIC USE BY RESOLUTION NO. 92-062, RECORDED MA Y
12, 1992 AS FILE NO. 1992-0284902 OF OFFICIAL RECORDS, AND BEING
FURTHER DESCRIBED AS FOLLOWS:
BEGINNING AT THE WESTERLY POINT OF TERMINUS OF THE 34.50 FOOT
RADIUS CURVE CONCA VE NORTHWESTERL Y ALONG THE SOUTHEASTERL Y
LINE OF LOT 57 OF SAID MAY NO. 12556, SAID POINT BEING ON THE
WESTERL Y LINE OF THE RIGHT OF WAY OF SAID STOWE DRIVE; THENCE
EASTERL Y ALONG SAID WESTERLY LINE AND ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 26006' 58" A DISTANCE OF 15.73
FEET TO A POINT OF CUSP WITH A 34.50 FOOT RADIUS CURVE
(Page 2 of 4)
968
CONCAVE EASTERLY, A LINE RADIAL TO SAID CURVE THROUGH SAID
POINT BEARS SOUTH 34001' 58" EAST; THENCE LEA VING SAID WESTERLY
LINE OF THE RIGHT OF WAY OF SAID STOWE DRIVE WESTERLY ALONG
THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 350 48' 41" A
DISTANCE OF 21.56 FEET; THENCE TANGENT TO SAID CURVE, NORTH 880
19' 17" WEST 467.56 FEET TO A POINT ON THE NORTHERLY LINE OF TIlE
RIGHT OF WAY OF SAID SOUTH POW A Y P ARKW A Y; THENCE ALONG SAID
NORTHERLY LINE SOUTH 880 40' 07" EAST 165.00 FEET; SOUTH 890 16' 35"
EAST, 120.02 FEET; SOUTH 880019' 17" EAST 187.56 FEET TO THE POINT OF
BEGINNING.
LOT 56 OF THE CITY OF POWAY TRACT 87-13, UNIT I, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. (APN 17171-323-090-63-00)
THE EAST HALF OF THE WEST HALF OF THE NORTHEAST QUARTER OF SECTION
19, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN,
ACCORDING TO OFFICIAL PLAT THEREOF (APN 17001-323-091-02-00)
THE WEST HALF OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER
AND THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 19,
TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, ACCORDING
TO OFFICIAL PLAT THEREOF (APN 17169-323-090-17-00)
LOT 2 OF SECTION 19, TOWNSHIP 14, SOUTH, RANGE I WEST, SAN BER.~ARDINO
MERIDIAN, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM
ANY PORTION THEREOF LYING WITHIN CITY OF POWAY TRACT 87-13, UNIT 1,
ACCORDING TO MAP THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN
DIEGO COUNTY RECORDER, FEBRUARY 8,1990. (APN 17169-323-090-43-00 and 17169-
323-090-66-00)
LOT 3 AND THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 19, TOWNSHIP 14, SOUTH, RANGE I WEST, SAN BERNARDINO MERIDIAN,
ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM ANY
PORTION THEREOF LYING WITHIN CITY OF POW A Y TRACT 87-13, UNIT I,
ACCORDING TO MAP THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN
DIEGO COUNTY RECORDER, FEBRUARY 8, 1990. (APN 17171-323-090-65-00)
THE WEST HALF OF THE SOUTHEAST QUARTER OF SECTION 19, TOWNSHIP 14,
SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO OFFICIAL
PLAT THEREOF. EXCEPTING THEREFROM ANY PORTION THEREOF LYING WITHIN
CITY OF POWAY TRACT 87-13, UNIT I, ACCORDING TO MAP THEREOF NO. 12556,
FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, FEBRUARY 8,
1990. (APN 17171-323-091-03-00)
(Page 3 of 4)
969
LOT 15 OF THE CITY OF POWAY TRACT 87-13, UNIT I, ACCORDING TO MAP
THEREOF NO. 12556, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY
RECORDER ON FEBRUARY 8, 1990. EXCEPTING THEREFROM THAT PORTION OF
LOT 15 LYING WESTERLY OF A LINE DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF SAID LOT 15; THENCE
ALONG THE SOUTHERLY LINE THEREOF NORTH 870 40' 02" WEST, 299.00
FEET TO THE SOUTHEAST CORNER OF LAND CONVEYED TO THE BURNHAM
FOUNDATION BY DEED RECORDED DECEMBER 29, 1992 AS FILE NO. 1992-
0833279 OF OFFICIAL RECORDS; THENCE ALONG THE EASTERLY LINE
THEREOF NORTH 200 19' 58" EAST 438.85 FEET TO THE NORTHEAST CORNER
OF SAID LAND. (APN17l88-317-280-58-00, formerly 17188-317-280-27-00)
(Page 4 of 4)