Memorandum of Understanding 1994-0163888Recording Requested-by and
When Recorded Mail.to:
CITY CLERK
CITY OF POWAY
P.O. BOX 789
POWAY, CA 92074 -0789
7 2 2 1� 11A *- 1994 °0l03888
AM
OFFICIAL RECORDS
SAM DIEGO COUNTY RECORDER'S OFFICE
GREGORY SMITH, COUNTY RECORDER
FEES: 0.00
MEMORANDUM OF UNDERSTANDING F9 (OP
[Tech Business Center]
This Memorandum of Understanding ("MOU") is entered into as
of 1994, by and between TECH BUSINESS
CENTER, a California general partnership ( "Developer ") and the
City of Poway ( "City ") with reference to the following facts:
RECITALS
A. Developer is the owner and developer of real property
located in the City of Poway, County of San Diego, California,
known as the Tech Business Center (Poway Tech Center East)
( "Project "), and more particularly described in Exhibit "A"
attached hereto and "incorporated herein by reference. The
Project consists of approximately 195.5 acres and is a portion of
South Poway Business Park.,
B. On or about September 26, 1989, the City Council of
City ( "City Council ") approved and adopted Resolution No. P -89-
116,, approving, subj'ect`to certain conditions set forth therein,
Tentative Tract Map 89 -08 ("TTM 89 -0811) for development of the
Project.
C. On November:5,, 1990„ pursuant to Fees and Deposits/
Sewer Condition No. 1 set forth in Resolution No. P -89 -116,
Developer applied to City for a Letter of Availability of Sewer
Service ( "IAA") and posted with City a reservation fee equal to
$186,595.20, which amount equals twenty percent (20 %) of the
appropriate sewerage connection fee, based upon available
capacity. Poway issued LOA No. 233 to Developer on December 17',
1990. Developer paid an additional $95,277.60, which amount
equals ten percent (10 %) of such sewerage connection fee, on each
of the following dates: _September 26, 1991 and September 26,
1992. Thus,, a total of forty percent (40 %) of such sewerage
connection fee has been paid as of the date of this MOU, for a
total of $373,190.40, which shall be credited against the final
sewerage connection fee for the Project.
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D. City yrOrdinance No. 83 governs the reservation of
sewerage capacity and the payment of connection fees for service.
Section 2 of Ordinance No. 83 provides:
"Where applicant's project is a tentative
tract or parcel map; it shall be subject to
ail provisions of this ordinance except the
time limitations of Section 1.2. In such
case, the City shall represent in the LOA
that sewerage availability is assured for
applicant's project for a period of time
equal to the time of expiration of the
tentative map."
City represented.in LOA No. 233 that the LOA would expire on
September 26, 1991 unless extended pursuant to the provisions of
the Ordinance. Section 4.2 of Ordinance No. 83 provides that an
applicant for an.extension of an LOA shall-pay an additional
reservation fee for. sewerage connection. The City has
acknowledged that LOA No. 233 has been extended to September 26,
1993 as a result of the fees paid as described in Recital C
above.
E. On December 11, 1990, the City adopted Ordinance No.
330 approving the execution of the Tech Business Center
Development Agreement ( "Development Agreement") between the City
and Developer. Pursuant to Ordinance No. 330, the Development
Agreement was to be effective upon the effective date of the
Ordinance. Ordinance No. 330 became effective on January 10,
1991. Section 4 of'the'Development Agreement provides that,
pursuant to Government Code Section 66452.6(a), the Tentative
Tract Map for the Project (TTM 89 -08) shall�be extended so that
the Tentative Tract Map shall remain valid for a period equal to
the Term of the Development Agreement,, as it may be extended.
The Term of the Development Agreement is defined to be ten ('10)
years from the date of execution of the Development Agreement
(which 10 -year period expires on January 10, 2001), provided that
such 10 -year period may be extended as follows:. (1) for up to
five (5) additional years in order to complete construction of
the Project,. and (2) in addition, for any period development of
the Project has been prevented due to Enforced Delays (as defined
in the Development Agreement).
F. Developer has requested written acknowledgement of
extension of TTM 89 -08 and LOA No. 233 for the duration of the
Term of the Development Agreement. A dispute arose between the
City and Developer concerning whether Developer is required to
proceed through the public hearing process before the City
Council in order to obtain extension of TTM 89 -08 and LOA
No. 233., and whether Developer need pay the additional
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reservation fees for sewerage connection required by Ordinance
No. 83 when an LOA is extended.
G. It is the intent of the City and Developer, by entering
into this MOU,, to settle and resolve amicably this dispute._
Developer and City now desire to memorialize their understanding
with respect to extension of TTM 89 -08 and LOA No. 233 and
payment of additional reservation fees for sewerage connection
for the Project.
NOW, THEREFORE, in consideration of the recitals set forth
above, the provisions of the Development Agreement, and the
mutual covenants set forth herein, the parties agree as follows:
1. City hereby acknowledges that the duration of TTM 89 -08
and LOA No. 233 shall continue for the Term of the Development
Agreement, which shall expire on January'10, 2001 unless extended
as described in Recital E above, plus the automatic two -year
extension provided, for under Government Code Section 66452.11
(Senate Bill No. 428, 1993 Stats. Chap. 407).
2. Developer shall pay an additional ten percent (10 %) of
the sewerage connection fee, or $95,277.60, on or before
September 26, 1995, which amount shall be credited toward the
final sewerage connection fee for the Project.
3. City hereby acknowledges that receipt of the fees
described in Section 2 of this MOU constitutes full satisfaction
by Developer of any obligation which may exist pursuant to this
MOU, Resolution No. P -89 -116, LOA No. 233 and /or Ordinance No. 83
pertaining to payment of reservation fees for sewerage capacity
or sewerage connection fees prior to recordation of a final map
for TTM 89 -08.
4. Within fifteen (15) calendar days after receipt of
payment in full of the additional fees required to be paid
pursuant to Section 2 o this MOU, City shall execute and cause
to be recorded an Acknowledgement of Payment In Full and
Satisfaction of All Obligations in the form set forth on Exhibit
"B" attached hereto and incorporated herein by reference.
5. Developer and City understand and agree that this MOU
settles a dispute,,between the parties and clarifies the rights
and responsibilities of the parties. It does not constitute
either an amendment to the Development Agreement or an amendment
to TTM 89 -08,, and the Development Agreement and TTM 89 -08 shall
remain in full force and effect.
6. Any notice or instrument required to be given or
delivered to either party to this MOU may be given and delivered
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by depositing`the. same in the United States Mail, registered or
certified, postage prepaid, addressed to:
City: City of Poway
P.O. Box 789
Poway, California 92074 -0789
Attn: James L. Bowersox, City Manager
Developer: Tech Business Center
3575 Kenyon Street
San Diego, CA 92110
Attn: Paul K. Tchang
With a Copy To: Ellen B. Spellman, Esq.
Brobeck, Phleger & Harrison
550 West C Street, Suite 1300
San Diego, CA 92101
7. If either party commences legal proceedings for any
relief against the other party arising out of this MOU, the
losing party shall pay the prevailing party's court costs and
reasonable attorney's fees.
8. Developer shall have the right to assign its rights and
obligations hereunder, in writing, to a successor owner of the
Project, provided written notice of such assignment is delivered
by Developer to City. In the event of such an assignment,
Developer shall be relieved of all further obligations hereunder.
IN WITNESS WHEREOF, City and Developer have executed this
Memorandum of Understanding as of the date first written above.
CITY:
CITY OF POWAY
By
Don Higginson, _ or of
the City of Poway
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO MEMORANDUM OF UNDERSTANDING
[ -TECH BUSINESS CENTER]]
ATTEST:
dYl -� -luaL.,
Maror a C. Wahlsten,
City Clerk
TO FORM AND SUBSTANCE:
St n M. Eckis,
Ci Attorney
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STATE'OF CALIFORNIA )
COUNTY OE).
On
undersicined, a Notary
0
15W /Fel ,. before me,, the
n and Mr said State, Iperspn�
personally known thyme
to be the person whose name'ib
subscribed to the within instrument and,acknowledged to me that
hefshr, he executed the same in his / e r authorized
capacity es , and that-by �thei -r slgnatu"re�s on the
instrument the person( (O, or the entity upon behalf.of which the
person'fg acted, executed, the instrument.
WITNESS.my hand and official seal. l
OFFICIAL SEAL
M,ARIELOFION Notary Public in and for Said State
Notary Public Cai6mlo
W ®< f ,e SAN, DIEGO COUNTY
VICommlS lon:EYplibs
April 26; 1994
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DEVELOPER:
.TECH BUSINESS CENTER; a,California
general partnership
By: Techbilt Construction Corp., a
California cx oration, General
Partner �.
By:
Paul ,chang, President
By: Bothwell International, Ltd., a
California 1 -mited partnership,
General Pa ,neer
By: �z
Neville Bothwell, General
Partner
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• 0 729
STATE OF CALIFORNIA ),
`COUNTY OF San, Diego )
on j
undersigned, a
before 'ime, the
State, personally
personally known to me sa:sez
-sates sf- aetor}•- evi-denG to be the person W whose name (,,V) is /_ar-e-
subscrib.ed to the within instrument and acknowledged to me that
hie /"� °y executed the same in his /__.�'r authorized
capacity(.e ), and that by his /hetV -t /zh - signature {06 on the
instrument the person()io), or the entity upon, behalf of which the
person(jk) acted, executed the instrument.
WITNESS my hand and official seal.
MY
-SMI'JUAHY 18, 19�'S
STATE OF CALI O IIA )
COUNTY OF San Diego'
On March "3, 1994
undersigned, a Notary Pub
appeared Neville F.
personally known to me (
caitiof + e'yide pl to
sub scribed Yto the ,within
he /shkefthey. executed the
capacity(ies-),, and that. b
instrument the person(,
person (S) acted, executed
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No ry Public n and for Said State
before me, the
lic in and for said :State, personally
Bothwell
o eyed' tome' en the mssts �
fir. me 'en
be the person(,,40 whose name(, is /arre,
instrument and acknowledged to me that
same in his /her-/t -he- r ,authorized
y his /ham/ - their signature(() on the
or the entity upon behalf of which the
the instrument.
WITNESS my hand and official seal.
1 &, 1995
Nota' yy Puublici' and' for Said State
ME
730
EXHIBIT "A"
LEGAL DESORIPTION OF PROJECT,
PARCEL 1:
THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 24,
TOWNSHIP 14 SOUTH,, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE
CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO OFFICIAL PLAT THEREOF.
PARCEL 2:
LOT 4 - IN,SECTION'19, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
PARCEL 3:
LOTS I AND 2 OF SECTION 30, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN
BERNARDINO MERIDIAN;'IN THE CITY OF POWAY,, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM THE EASTERLY 300.00 FEET.
ALSO EXCEPTING THEREFROM THOSE PORTIONS CONDEMNED IN AN ACTION IN
THE DISTRICT COURT OF THE UNITED STATES IN AND FOR THE SOUTHERN
DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, CASE NO. 162, CIVIL,
ENTITLED "UNITED STATES OF AMERICA, VS. JOSEPHINE SCRIPPS, ET
AL," A CERTIFIED COPY OF THE DECREE OF DECLARATION OF TAKING
HAVING BEEN RECORDED :APRIL 16, 1942 IN ,BOOK 1342, PAGE 14 OF
OFFICIAL RECORDS OF SAN DIEGO' COUNTY
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.731
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS'SITUATED IN'THE STATE OF
CALIFORNIA, COUNTY OF SAN.DIEGO, AND IS DESCRIBED AS FOLLOWS':
PARCELS 1 THROUGH 4 OF PARCEL MAP NO. 5750,, FILED IN THE OFFICE
OF THE COUNTY RECORDER, MARCH 31, 1977 AS FILE!NO. 77- 118268 OF
OFFICIAL RECORDS,, BEING A PORTION OF THE SOUTHEAST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 19 AND THZ NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 30, TOWNSHIP 14,SOUTH, RANGE 1 WEST,,
SAN BERNARDINO'BASE AND MERIDIAN;, IN THE CITY OF POWAY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO;OFFICIAL PLAT
THEREOF.
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