Agreement for Reimbursement of Costs of Permanent Public Improvements 1992-0579965GP= pc - I a9 .l2
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I F-199-1
RECORDING REQUESTED BY
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P.O. BOX 789
POWAY, CALIFORNIA 9,206'4
Yf�1HETTF `. LI_
AGREEMENT FOR REIMBURSEMENT
OF COSTS OF PERMANENT PUBLIC- IMPROVEMENTS
( POWAY MUNICI -PAL CODE CHAPTER,13:24)
This Agreement is entered in to this 9STU day of AllGUST.
1991, by and between 'CF POWAY, LTD., - a California 1•imited
partnership, 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 the Owner `for the
installation of permanent public improvements. The parties hereto
agree as follows':
Section I: Authority
The City -is 'authorized 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 Pomerado Business Park - Tentative Tract Map 85 -04
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 partial
reimbursement 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 portion 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.
135:4
The real properties,.affected.' this Agreement al1blthe
Owner's property legally described in- Exhibit One a ached hereto
and the Benefiting Properties leg ly described ` Exhibit Two.
The obligation of the owner of eac g roperty sha
become a lien upon such property for the term hereof, paya _ e 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 imps men ubject to
reimbursement and the 'complete dimension (including fro t_age), of
all these improvements 'are set forth 'n Exhibit Three ttached
hereto.
Section V. Reimbursement Schedule
, The. imbursement schedule in the ,form required by Poway
MuniciIpa- Co_ Section 13..24.040C,'as approved 'by the City councii
of the City o Poway after public hear -ing, is attached- hereto as
Exhibit.Four,. All references in this Agreement to reimbursement or
to a reimb sement schedule shall mean reimbursement in accordance
with t erms of this Agreement and Exhibit Four.
Section VS,. Term
The term of this Agreement and all obligations and liens
created hereby, shall be ten 10) years 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 'obligation to owner pursuant thereto, and any lien
created hereby shall automatically and without, any further
,administrative or judicial process whatsoever, null and void and
of no; further force or effect.
Section.VII. Agreement of Payment for. Reimbursement
After public hearing as provided in Poway 'Municipal Code
13.24, and'upon execution hereof by City, City agrees during the
term hereof to collect from the owners of t__he Benefiting
Properties, those owners' shall. pay to the City., and the City shall
reimburse to Owner those benefit charges set forth in the
Reimbursement 'Schedu'l'e ;(Exhibit Four) , plus interest of five
percent (5$) per year compounded annually, less the administrative
charges provided - in Chapter 13.24; provided, however, the City
PA
1355
shall neither collect nor reimburse any sum which is not reasonably
related to the,development of a Benefitt -ing Property. The method
and obligation to reimburse owner shall be:subject,to the terms of
Chapter 13.24, of the 'Poway Municipal, Code, as the same may, from
time to time be amended. Any amendment or repeal of Chapter 13.24
decreasing the entitS'ement 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 '1-ab l-ity of a benefiting
owner shall be binding upon 'a benefiting owner herein or , upon the
City hereunder. 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'annualiy 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 administrative
charges of five percent ( of all amounts deposited plus interest
income on the full amounts deposited except the five percent (5 %)
interest payable to Owner. The right of 'Owner to payments from
said trust account ,shall be personal and shall not run with the
property of Owner, be assignable by Owner, or service 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
jud'icial payable to City.
Section IX. Hold Harmless by Owner
Ownen 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
r-esulting'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
3
13.6
funds to which,Own_er is entitled. Owner specifically agrees that
it - is within the sole discretion of the 'City to determine that
payment of 'the, enfire 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: Gover-nirfa Law and Venue
This Agreement shall be governed by the ; laws of the State of
California. Jurisdiction and venue for any litigation arising
herefrom shall.be the'County of San Diego, State of California.,
Section XII.,Severability
If any section, .subsection, sentence„ clause, or of
this Agreement is for any reason held to be invalid or
unconstitutional,, such decision shall not7 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 of the fact that any one -or : more
sections subsections, sentences, clauses or, phrases be declared
invalid or unconstitutional, and would have approved the same even
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STAI E OF CALIFORNIA,
COUNTY OF Li IIyJ
On I I 15ci )— , before me, the undersigned, a Notary Public in antl for
said State, personally appeare CYLi'1cue� V •, C!- alit}`
personally known to me (w
sac to be the persons who executed the within instrument as
N + �'L - _ President Secretary, on behalf of
the corporation therein' named, and acknowledged tome that said
corporation executed the wdhin:instrumenbpursuant to its by-
laws or a resolution of its board of directors; said corporation being _
known to me to be the eneral panner of LE . RICHARDSON
- t COMM # :CALIF , m
� NOTARY PUBCI6CALIFORNIA o
the limited partnership that exe` uted the within instrument, and °',� SAN DIEGU'CDUNTY
acknowledgedto me that such corporation execu led the same as My Comm. Exp..Aug.,l4, 1996
sucFdpartnnr and that such partnership executed the same -
WITNESS my h a o seal J
Signature `(This area for.official notarial seal)
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EXHIBIT'ONE
LEGAL DESCRIPTION OF OWNER'S PROPERTY
(Known as Pomerad'o Business Park)
Portion of the south half of the northeast quarter and the
southeast quarter of ,Section 23 and the west half of Section 24,
and those portions of the north half of the northeast quarter and
the, west half of said Section 23 and the southeast quarter of the
"southwest :quarter and the southwest quarter of the southeast
quarter of Section 14, all in Township 14 south, Range 2 west,
San Bernardino Base.and'Meridian, in the City of Poway, County of
San Diego, State of California, according to United states
Government Survey approved September 11, 18979 to 100 lot's,
regularly came before the City Council for public hearing and
action on November '12, 1985.
ASSESSOR'S PARCEL NUMBERS:
3.17- 222 -08, 09
317- 251 -32, 33, 3A;
317- 270 -03, 04
317 - 281 -03, 04
c: \mp \rdm \c(po ay \exhibiu.113
135
EXHIBIT TWO
LEGAL DESCRIPTION BENEFITING PROPERTY
Parcel 1 of Parcel Map No. 15915, in the City of Poway,•
County of San Diego, State of California, filed in the Office of
the County Recorder of San Diego County on.December 21, 1989, as
File No. 89'- 692072 of official Records.
(See Exhibit Two -A)
Parcel 1: The Northwest Quarter of Section 26, Township 14
South, Range 2 West -, San Bernardino Meridian, in the City of
Poway, county of. San Diego, State of California., according to The
Official Plat Thereof.
Excepting that portion of the East Half of said Northwest
Quarter lying Northeasterly of the center line of that 60 foot
easement for road purposes described in deed to the County of San
Diego, recorded April 4, 1924 , in Book 751, page 369 of Deeds.
Also excepting that portion of the North Half of said
Northwest Quarter described as follows:
Commencing at the Northwest corner of said .Section 2,6,
thence along the Northerly line of said Section 26„ North 89
degrees 42' 00" East 542.4'2 'feet to the True Point of B'eginn ng ;'
thence South 0 degrees 18" East 470.50 feet - thence 89 . deg
42' East 613.07 feet; thence North 21 degrees ,28' East 248 feet;
thence Northeaster,ly -in a straight line to the.iniersection of
the Northerly, line of said Section 26 with'the center line- of
that certain 60 foot easement for road purposes .(known as
Pomerado Road) described in to the County of San Diego,
recorded April 4, 19 in Book 751, page 369 of Deeds, records of
San Diego County; thence along the Northerly line of said Section
26, South 89 degrees 412 -' 00" West to the True Point of Beginning.
(See Exhibit Two -B)
c:lwpWm \cfpowaylezhtbm E 113
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EXHIBIT THREE
(Including Improvement Drai4ings 8, 9
12, 13. 14, 15, 16, 17 and 18, on file at the City)
INTRODUCTION
When the C_it,ies of Poway and San Diego agreed in 1987 to the
realignment of south Poway Parkway and Pomerado Road
( "SPA /Pomerado "),, the water system was redesigned. The redesign
incorporated routing and size changes which benefitted the
McMillin Equity Partners II ( "Benefiting Property",) located
southwest -of the SPA %Pomerado intersection.
Approximately' 4,209 linear feet of fourteen ('14) inch A.C.P.
pipe (clas's 200 and :150'1),, was added to replace the previously
planned twelve (12) ,inch pipe, from Kirkham Road to Pomerado Road
for the benefit of the Benefiting Property. In addition, five
(.5) additional fourteen (14) inch butterfly valves, sixty (60)
linear feet of ten (10.) 'inch water main and:one (1) ten inch
water valve were added:
The delta markings on the attached improvement drawings,
include the changes to the water system which benefit the
Benefiting Property.
The value of these improvements built for the benefit of the
Benefiting Property was $197,342.
c. \wp\rdm\dpoway \ezhibiti 113
1_j3
EXHIBIT FOUR
REIMBURSEMENT SCHEDULE
Name of Benefiting Property: McMillin Equity Partners II, a
California Limited Partnership
Tax Assessor's Parcel Numbers: 320 - 011 -01
320 - 011 -07
Property's Street Address: Not available at this time
Acreage_: 1.993 acres,(see Exhibit Two -A)
135.27 acres (see Exhibit Two -B)
Benefiting Charge:
Construction Costs (as detailed in the
Engineers report attached as Exhibit Four -A)
Engineering Costs (10 %)
Plan Check (2% of Subtotal 1)
Inspection (2% of Subtotal 1)
Insurance (1.95% of Subtotal 1)
Subtotal 1
Subtotal 2
Administrative Charge (5% of Subtotal 2)
TOTAL
$161,264
16,126
177,390
3,548
3,548
3,459
187,945
9,397
$ 197 3 342
Interest of 5% per annum on the outstanding balance is payable to
the Owner pursuant to Sections VII and VIII herein and Section
13.24.040(C) of the Poway,Municipal Code,.
City is entitled to payment of the 5% Administration Charge
pursuant to Sections VII and VIII herein and Section 13.24.080 of
the Poway Municipal Code.
c. \wp \rdm\cfpoway \cxhibiL .113
, 64
EXHIBIT FOUR -A
ENGINEERS'REP.ORT
DETAILED COST OF THE CONSTRUCTION
OF THE•PERMANENT.IMPROVEMENT WORK
BENEFITTING THE "BENEFITTED PROPERTY"
Total cost of the Improvement Work
14 -inch pipe (water main) 4,209 linear feet @ $36.00 =
14 -inch water valve 5 @ $2,,500.00 =
10 -inch pipe (:eater main) 60 linear feet @ $35.00 =
10 -inch water valve 1 @$1,500.00 =
TOTAL
Owner's Share of the Costs.
12 -inch pipe
12 -inch butterfly valve
2 -inch Blow Off
12 -inch Tee
12 -inch Cap
$151,524
12,500
2,100
1,500
$167,624
120 feet @ $28.00 = $ 3,360
1 each @ $1;800..00 = 1,800
1 each @ $950.00 = 950
i each @ c�nn.nn = 200
1 each @ $50.00 = 50
TOTAL = $ 6,360
TOTAL COST OF THE IMPROVEMENT WORK $167,624
MINUS OWNER'S SHARE OF COSTS - 6,360
OF $161,264
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Gary L a Date
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