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.
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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.
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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
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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
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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
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Notary Public in and for Said State
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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
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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
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Notary'P,ubliciVand for Said State
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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.
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