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Memorandum of Understanding - Poway Corp Center 1994-0163889Recording Requested by and When Recorded'Mail to:. CITY CLERK" CITY ,OF POWAY P.O. :BOX 7,89 POWAY;, .CA 92075 -0789 1-04 1,7899 etc 14 1994 14 -MAR -1994 08 Aft OFFICIAL RECORDS SAN, DIEGO `COUNTY RECORDER'S. OFFICE GREGORY SMITH, COUNTY RECORDER FEES: 0.00 FS gP MEMORANDUM OF UNDERSTANDING. [Poway Corporate Center] �This Memorandum of Understanding ("MOU";) .is entered into as L! of -P.ADV1..4.N!d F ' 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„ as successor in interest to American Newland Associates ( "American Newland ") , is the Owner- and developer of real property located,in, the City of Poway, County of San Diego, California, known as the Poway Corporate Center (Poway Tech Center West) ( "Proj'eot" -)', and more particularly described in Exhibit "All attached hereto and incorporated herein by reference. The Project consists of approximately 160 acres and is a portion of South Poway Business Park. B. On or'about February 27, 1990, the City Council of City (, "City Council") approved and adopted Resolution No. P -90 -20 approving, subject to certain conditions set forth therein, Tentative Tract Map :86- 02R(2) ("TTM 86= 02R(2) ") for development of the Project. C. On March 20, 1990, pursuant to Sewer Condition No. ,6 set _forth in Resolution No. ,P -89 -116, American. Newland applied to City fora- Letter of Availability of Sewer Service ( "LOA ") and posted -with City a reservation fee equal to $.102,721.60, which amount equals. twenty percent (20 %) of- the appropriate sewerage connection fee,; based upon,available capacity Poway issued LOA No: 226 to American Newland on March 23, 199 -0, and LOA No. 226 was executed by the City on October 4, 1993. Developer "paid an additional $154'.,082.40, which amount equals thirty percent (30%) of such sewerage connection fee, on July 30, 1991-. Thus, a total of fifty percent (50 %) of such sewerage connection fee has been paid as of the,date of this MOU,.for'a total of $256,804, which shall be. credited against the :final sewerage connection fee for the Project. BPHSD\EBS \0058552,04 02/04/94. 734 D. Cty'.Ord`nance 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 %ls project is a tentative tract or' parcel map;, it shall be, subject to all provisions of this, ordinance} except the tiMeL limitations of 'Section 1:2:: fn 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. 226 that the LOA would 'expire on February 27, 1992 unless extended pursuant to the provisions of the Ordinance. By payment of the additional fees'described above, LOA No. 226 has been extended. Section 4.2 of Ordinance No.. 83 provides that ah applicant for an extension ,of an LOA shall pay an additional reservation fee for sewerage connection. E. On December'll, 1990, the City adopted Ordinance No. 331 approving 'the execution of the Poway Corporate Center Deveiopment_- Agreement ( "Development Agreement ") between the City and Developer. Pursuant to Ordinance No. 33, 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 86- 02R'(2)j 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 1:0 -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 86- 02R(_2) and LOA No. 226 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 86- 02R (2) and LOA No. 226;,, and whether.Developer need pay the additional reservation fees for sewerage connection required by Ordinance No. 83 when an LOA is extended. WHSMEWD056552.04 02/04/94 -.2 7 ^3�4 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, smemoriali'ze their, understanding with respect to extension of TTM 86- 02R`(2) and'LOA No. 226,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 86- 02R(2') and LOA No. 226 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. City hereby acknowledges that.Developer has paid in full all required.fees and has satisfied any obligation which may exist. pursuant to; this MOU Resolution No. P- 90 -20, LOA No'. 226 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 86- 02R(2). 3. 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 amendinent'to the Development Agreement or an amendment to TTM 86- 02R(2 :), and the Development Agreement and TTM 86- 02R(2) shall remain in full force and effect. 4. Any notice.or instrument required to be given or delivered to either party to this MOU may be given and delivered 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 SPHSD \EBS \0056552.04 02/04/94 -3- - 715 5. If either- party commences legal proceedings for any reli ef , against the ,other party arising out of this MOU, the losing party 'shall pay the preva'ili:ng. party's court costs and reasonable attorney's fees. 6. 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. fin 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. ATTEST: 7U",-t,, Marjo'ie K. Wahlsten, City er t APPR D AS TO 11 FORM AND SUBSTANCE: .__ `.� s, City SPHSD \EBS \0056552.04 02/04/94 CE CITY: CITY OF POWAY. By Don H_gginson, ffi4or of the City of Poway 0 STATE OF CALIFORNIA ) COUNTY`OFD U ) re me, the personally' known t46 me ) to be the person whose name sT� subscribed to the within instrument and acknowledged to me that hefshe executea'the,same in ei authorized capacit es and that'by hisfher ei signature(fP:on the instrument the person's, or the entity upon behalf of which the person (p acted, executed the instrument. WITNESS my hand and official seal. OFFICIALSEAL MARIE LOFTON Notary FUINIc'Callfomia SAN DIEGO COUNTY,' W Ca nmisdon Wres Apm 26:;1994 BPHSD \EBS \0056552.04 02/94/94 Notary Public in and for Said State -5- 7 3'6 • • 731 DEVELOPER: TECH BUSINESS CENTER, a California. general partnership By: Techbilt Construction Corp., a California cgxpora tion, General Partner By: Paul 1kY _ TcHang, President By: Bothwell International, Ltd., a California limted, partnership, General Pa tner By: Neville Bothwell, General Partner BPHSD \EB5\0056552.04 02/0494 -6- 7318 STATE OF CALIFORNIA ) COUNTY 'OF'San D eda ) On March 3, 1994 before me, the undersigned',.a Notary Public in and for said 'State, personally appeared Paul x. ''Tchana °personally known to me (or proved to _�e- b�as=is -o-f- sati fa&e y- eft- ideaee) to be the person'(k 'whose name(A is /-a-re subscribed to the within instrument.and' acknowledged to me that he /51ie %they executed the same in his /kar/4 it authorized capacity(;Ees) , and that by his /: ^r=4t4el= signature { -s-} on the instrument the person'(=Q-p,, or the entity upon 'behalf of which the person(s) acted, executed'the instrument. WITNESS my hand and official seal. a ' rLMt e �S co rILEN ICE , �'� +Croc;ur•!rti' Notary Publi in and for Said State < �•:'� s� -) Moirrmssiom Expires S.4NUAP'YI&1995 STATE OF CALF OA ) COUNTY OF San .Diego ) On March :3', 1944 before me,, the undersigned,. a.Notary Public in and for said State, personally appeared Nev llei F.:-1Bothwell, , personally known to me (Gr satis-f.act ry 4 nee) to: be the person (V whose; name( c) is; ar subscribed'to the within instrument and acknowledged to me that he /shelth-ey executed the same in his /he ke-r authorized capacity (ies), and that by his /u,g hel .signature(r<) on the instrument the person(%),., or the entity upon; ,behalf of which the persons) acted, executed the instrument. WITNESS my hand and official seal. f)Fr C� SEAL ELIZAKT'H J t,<?UI:ERICE yXS n I ARYPUBLP CALIFORNIA' SF,is G'E_ OC) ,CUtd7V, my conimission' Expires ---. I�a;uAr�s,3ss5 BPHSD \EBS \0056552.04 02/04/94 Notary'P,ubliciVand for Said State -7- EXHIBIT "A" LEGAL DESCRIPTIONOF 'PROJECT REAL PROPERTY SITUATED IN. THE! CITY OF POWAY,. COUNTY OF' SAN, DIEGO, STATE'OF CALIFORNIA, AND.DESCRIBED AS FOLLOWS: 'THE SOUTHWEST 'QUARTER'OF THE SOUTHEAST,QUARTER OF SECTION ;24; THE NORTH HALF OF THE NORTHWEST'QUARTER OF BECTION..25 AND THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 26, 'ALL BEING IN ,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. BPHSD \ESS \0056552.04 02/0494 A -1 73 9