Agreement for Reimbursement of Costs of Permanent Public Improvements 1990-171176Recording Requested B }.
City of Poway
When Recorded Mail To:
City Clerk
City of Poway
P. O. Box 789,
Poway, CA 9206'4
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AGREEMENT FOR REIMBURSEMENT
OF COSTS OF PERMANENT PUBLIC IMPROVEMENTS
(POWAY MUNICIPAL CODE CHAPTER 13.24)
This Agreement is entered into this 20th day of March
190 90 , by and between West Odyssey ,
a(n) California Corporation hereinafter
referred to as "Owner" and the City of 'Poway, a municipal corporation,
hereinafter referred to as "City -," for the reimbursement of costs
expended by Owner for the installation of permanent public
improvements. The parties hereto agree as follows:
Section I. Authori
The City is authori'ze'd by its general police powers and by
statutory and case law to require Owner to install those certain
permanent improvements hereinafter described as a condition of
approval of Development Review 87 -14, West Odyssey Corporation
which improvements benefit those properties hereinafter described
as "benefiting properties" not participating in the 'cost thereof.
The City is authorized to provide a method .for reimburse -
ment for the costs of such improvements from'such nonparticipating
property owners in accordance with Chapter 13.24 of the Poway
Municipal Code. Upon full execution and recordation hereof, this
Agreement shall provide the sole, method of reimbursement through
the City to Owner for a por -tion of'.the cost of said improvements.
The City shall have no payment or reimbursement obligation to
Owner for the cost of said improvements, except as specifically
provided herein.
Section II. Definition of Terms
The terms used in this Agreement shall be defined as set
forth in Section 13.24.02 of the Poway Municipal Code.
1.579
Section III. Description of Properties Affected
The real properties affected by.this Agreement shall be the
property Owner legal -ly described in Exhibit l attached hereto
and the benefiting properties legally described.in Exhibit 2.,
The obligation of the owner of each bene'fit'ing property shall
become a lien upon such property for the term payable
only as a condition of approval of any development of the
benefiting property, provided that the imposition of such
condition shall be reasonably related to such development.
Such obligation shall be a lien upon and run with the land and
shall be binding upon the subsequent owners of the benefiting
property during the term hereof.
Section IV. Description of Improvements
The 'precise locations of all improvements subject to
reimbursement and 'the complete dimensions (including fr_onfage)
of all benefiting properties are set forth -in Exhibit 3 attached
hereto.
Section V. Reimbursement Schedule
The Reimbursement Schedule in the form required by Poway
Municipal Code §13'.,24.0'40c, as approved by the City council of
the City of Poway after public hearing, is attached hereto as
Exhibit 4. All references -in this Agreement to reimbursement
or to a reimbursement schedule shall mean reimbursement in
accordance with the terms of this Agreement and Exhibit 4:
Section VI. Term
The term of this Agreement and all obligations and liens
created 'hereby shall be ten (10) y ears from, the date of this
Agreement as set forth' on the first page hereof.. Upon expiration
of.said term, Owner shall be entitled to no further reimbursement
pursuant to the terms hereof, owners of benefiting properties
shall be under no ob'l'igation to Owner pursuant hereto, and any
lien created hereby,shall automatically and without any further
administrative or judicial process whatsoever, be null and void
and'.of no further force or effect.
Section VYI. Agreement of Payment Tor Reimbursement
After public hearing as provided in Poway Municipal Code
13.24, and upon execution hereof by City, City agrees during
the term he to collect from the owners of the benefiting
rpoperties, those owners shall pay to the City,, and the City
shall reimburse to Owner those benefit charge's set forth in the
Reimbursement Schedule, plus interest of five "percent (5%) per
year compounded annually, less the administrative charge' provided
\ - 2 -
158
in Chapter 13.24; provided, however, the City shall neither
collect nor reimburse,any,sum,which is not 'reasonably related
to the development-of a benefiting property. The method and
obligation to reimburse Owner shall be subject to the terms of
Chapter 13.24, bf the Poway Municipal Code, as the same may„
from time to time be amended. Any amendement or repeal of
Chapter 13.24 decreasing the entitlement of Owner herein shall
be binding upon Owner herein immediately upon the effective
date of such amendment or repeal. Owner agrees that this
Agreement shall be automatically amended by such repeal or
amendment of Chapter 13.24, effective the effective date of
such repeal or amendment. No amendment of Chapter 13.24
purporting to increase the liability of a benefiting owner
shall be binding upon a benefiting owner herein or upon the City
hereinu;ider. In the event of a conflict between the terms hereof
and the requirements of Chapter 13.24, the requirements of
Chapter 13.24 shall control.
Benefit charges shall be paid, collected, and reimbursed
in accordance with the terms of Section 13.24.070 of the Poway
Municipal Code in effect at the time of such,payment, subject to
the terms of this Section VII.
Section VIII. Trust Agreement
Promptly upon collection of all or any part of a benefit
charge, the City shall deposit such funds in a local financial
institution in a separate account in the name of the City in
trust for Owner and City. Payments from such account by City
to Owner and to City in.accordance with the terms of Chapter 13.24
shall be made at such times as are convenient to the City, but in
no event less often than annually if the City has received payment
of any benefit charges.. Payments to Owner shall include interest
at the rate of five percent (5 %) per annum from the date of
deposit on the principal portion of such deposit to which Owner
is entitled to payment.. City shall be entitled to payment of
its administrative charges of five percent (51) of all amounts
deposited plus all interest income on the full amounts deposited
except the 5% interest payable to Owner. The right o,f Owner to
payments from said trust account shall be personal and shall not
run with the property of Owner, be assignable by Owner, or
survive the death or dissolution of Owner. In the event of,
death or dissolution of Owner, all monies on deposit in said
trust account shall be. automatically, immediately, and without
notice or administrative or judicial process payable to City.
Section IX. Hold Harmless by Owner
Owner hereby'agrees to indemnify and hold harmless the City
from any liability whatsoever, based upon any legal theory
whatever, for any loss or damage direct or consequential, to
Owner resulting from the failure of the City to collect all or
any part of any benefit charge collectible hereunder or resulting
from the failure of the City to pay to Owner in timely manner any
trust funds to which Owner is entitled. Owner specifically agrees
- 3 -
that it is within the sole discretion of the City to determine
that payment of the entire benefit charge would not be reasonably
related to the nature and extent of development of a benefiting
property. If, in the event'of such a determination by City, City
collects less than ,the full benefit charge at the time of
development, City retains the right to collect the balance of
the benefit charge upon further development, and Owner waives
and releases City from any claim it may otherwise have to require
City to collect the full amount of such benefit charge at the
time of the first down payment.
Section X. Recordation
This Agreement shall be recorded by the City after full
execution hereof and promptly following acceptance.of the subject
improvements by the City. If for any reason this Agreement is
not recorded, Owner holds City harmless from any loss or damage
arising therefrom.
Section XI_ Voidabili
In the event that Owner fails or refuses to complete the
subject improvements in timely manner to the satisfaction of the
City in its sole discretion, this Agreement shall be unilaterally
voidable by adoption of a resolution of the City Council declaring
this Agreement null - and void for failure of performance by Owner.
Section XII. Governing Law and Venue
This Agreement shall be governed by the laws of the State.of
California. Jurisdiction and venue for any litigation aris =ing
herefrom shall be the County of San Diego, State of California.
Section XIII. Severability
If any section, subsection, sentence, clause, or phrase of
this Agreement is for any reason held,to be invalid or unconsti-
tional, such decision shall not affect the validity of the
remaining.portions. The parties agree that they would have
entered into this Agreement and each section, subsection, clause,
and phrase thereof irrespective o,f the fact that any one or more
sections, subsections, sentences, clause's or phrases be declared
invalid or- unconstitutional, and would have approved the same
even,th'ough any parts, sections, 'subsections, sentences, clauses,
or phrases that may be held invalid had been omitted therefrom.
Executed at Poway, California, on the date first stated
above.
OWNER:
CITY OF POWAY, a Municipal
cotion
By
on iggin _ n Mayor
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15(-
that it is within the sole discretion of the City to determine
that payment of the entire benefit charge would not be reasonably
related to the nature and extent of development of a benefiting
property. If, in the event of such a determination by City, City
collects less than the full benefit charge at the time of
development', City retains the right to collect the balance of
the benefit charge upon - further development,,, and Owner waives
and releases City from -any claim it may otherwise have to require
City to collect the full amount of such benefit charge at the
time of the first down payment.
cPnrinn X_ Recordation
DOLT.: REIMBURSEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS COC
CRPORAT'E ALA CWLEDa�gM POWAY COUNTRY PLAZA 11 Q
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *,* * * * # 5`L 2i
* State of CALIFORNIA On this the 13th day of March 19.'90 , before me, +
coup of N D I EGO ) SS. * �' SA ) Isabella Gelmi ,
* the undersigned No
* 4 tart' Public, personally appeared
JAIME BENREY ;
4
*
•
*
• OFFICIAL ` PAI,
* ISABRI -A GELMI
m' NOTARY PUBLIC - CALIFORNIA I
• SAN DIEGO COUNTY l
f 4a�u A.1v rnmm nrm•ne 1111 fnn.
personally known tome •
❑ proved to me on the basis of satisfactory evidence to +
L the person(s) who executed the within instrument as +
_President or- en- teal €.of the corporation
there named, and acknowledged to me that the : corporation +
executed it. +
WI S my hand and official seal.
s
*
Notary's Signature
f *•! 4 ** 4 f R •. A+ A 4•♦ f R R R ++ R R• A + ++ R R! R R R * *• f R* f * R* #•
(6/84)
* State of On this the day of 19 90 , before me
# ) SS.
County of Al. A1,1
the undersigned Notary Public, personally appeared
R . 9d . / �I
f. ! !{I�0 /AfOA
JJ
*
q— personally known
to me
K.
.Y Pd basis
of sa isfactary
evi a to
FC01
be the person(,s4 who
executed the within
ee-
in 1�t a or
on behalf of
theycoipozation
•
_T.
t, e : ;, ; ;n
therein named, and acknowledged to me that the corporatieo
•
executed it.
•
* * *
(6/84)
R *** f f! A* b R R• R R A R+ A+ R+ A! R R R f '! ++ R f•• R* R R f•*
WITNESS my hand and official seal_
15.83
9
EXHIBIT I
WEST ODYSSEY CORPORATION REIMBURSEMENT AGREEMENT
The owner who was required by the City to install a sewer main
as a,condi.tion o.f approval of West Odyssey Corporation (Poway
Country Plaza), Development Review 87 -14 is:
WEST ODYSSEY CORPORATION,Ia California Corporation
Jaime tsenrey,, vresiaenc
West Odyssey Corporation
3211 Holiday Court, Suite 203
La Jolla, CA 92D37
State of California )
) SS:
County of San -Diego )
ISABELLA,GELMI +
,NOTARY P 8 C -CALIFORNIA y
.y SAN DIEGO ,TAUNT!
My comet: e xpires JUL.29, 1991 �•>
On this the 13thday of March 1990, . before me,
Isabella Gelmi
the undersigned Notary Public„ personally appeared
JAIME BENREY
® personally known to me
❑ proved to me on the basis : satisfactory
evidence
to be the person(s) who executed the within
instrument a's PreS'ldent on behalf of
the corporation theri,n named, and acknowledged to
me that the corporation' executed .it. WITNESS my
hand and official seal.
s Signature
1584
EXHIBIT 2
BENEFITING PROPERTY OWNER
FOR
SEWER MAIN CONSTRUCTION
Assessor's
Parcel Property Current
on
Number Descripti Owner /Address
317 - 540 -64 Parcel 1, Pm 3710 Mir K. &,Habibeh S.,Kashani
9862 La Jolla Farms Road
La JolPa, CA 92037
1585
SO PD
O * P�
P �
APN 3/7- 590 -,4
AF// 3/7 590.26
i
I
.y
z
"fZE /M�URSE.(4EyT AREA zoavG)9Ry
8" SeWer Main
(Subject for reimbursement)
OAK Ked.OLL ROAD
PLAT FOR REIMBURSEMENT A'G'REEMENT
FOR SEWERI MAIN.'INSTALLATION IN POR. OF SE QUARTER
OF SW QUARTER OF SECTION 14, T14S, R'2W, SSM
-rur+ r4 17-
1586
EXHIBIT 4
WEST ODYSSEY CORPORATION (POWAY COUNTRY PLAZA'),
REIMBURSEMENT AGREEMENT
REIMBURSEMENT SCHEDULE
Benefiting Property Benefit Charge
Parcel 1, PM 3710 $11,,950.50