Memorandum of Understanding 1994-0163889C
Recording Requested by and
When Recorded Mail to:
CITY CLERK
CITY OF POWAY
P.O. BOX 789
POWAY, CA 92075 -0789
4z # 1994 1 QJ r- Q
14-'MAR-1994 08 ._2 AN
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER55 OFFICE
GREGORY SMITH, COUNTY RECORDER
FEES: 0.00
MEMORANDUM OF UNDERSTANDING
[Poway Corporate Center]
This Memorandum of Understanding ("MOU") is entered into as
of V�eWwa.N , 19940, 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) ( "Project "), and more particularly described in
Exhibit "A" 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)11) 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 for a 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, 1990, 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. City Ordinance 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
all 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. 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 an applicant for an extension of an LOA
shall pay an additional reservation fee for sewerage connection.
E. On December 11, 1990, the City adopted Ordinance No.
331 approving the execution of the Poway Corporate Center
Development 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)] 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 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 memorialize 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 amendment 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
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.
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. 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
ATTEST:
Yhg�� )</- 7UAA-9�11 T[�--
Marjo ie K. Wahlsten,
City C r
APPRO#� D AS TO FORM AND SUBSTANCE:
. Eckis,
City
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i •
STATE OF CALIFORNIA )
COUNTY OFa )
On �f before me, the
undersign", a Notary Publi& in i4rd said State, pe sonally
appeared L*L
personally known tb me
to be the person s whose name tsl'�
subscribed to the within instrument and acknowledged to me that
executed the same in ei authorized
cah pac t es , and that by ham, ei signature on the
instrument the person on, or the entity upon behalf of which the
person to acted, executed the instrument.
WITNESS my hand and official seal.
MARSEAL
IE LOHON
Notary Public- Cdifomia
SAN DIEGO COUNTY
My Commias(on Expires
•• A A 26,1994
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 cgiZporation, General
Partner
By:
Paul Tcliang, President
By: Bothwell International, Ltd., a
California limited partnership,
General Pa tner
Neville Bothwell, General
Partner
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STATE OF CALIFORNIA )
COUNTY OF San Diego )
On March 3, 1994 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared Paul K. Tchang ,
personally known to me (or proved *° me on the basis
-t ..f..etery evidene ) to be the person W whose name W is /-a-re
subscribed to the within instrument and acknowledged to me that
he /41xe /tlay executed the same in his /hsw-/,their authorized
capacity (ies) , and that by his /b r lthe Y_ signaturekes on the
instrument the person W, or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
.. „: � E
t .i_ riLr s-Gi � �i-O
cxp ;,Os
STATE OF CALIFO )
COUNTY OF San Diego )
NoEry Publi in and for Said State
On March 3, 1994 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared Neville F. Bothwell ,
personally known to me ( f
Gat s €actor •e) to be the person(* whose name (,fir) is /4-re
subscribed to the within instrument and acknowledged to me that
he /shejt?rMy executed the same in his/ authorized
capacity (i,es) , and that by his /ker7lt e r signature (-V on the
instrument the person(g), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
c
Notary Public i and for Said State
¢ a'° OFFVAL .SAL
,!.;Ci.1! Ef�4CE
Expire
:ors ,a?'A'
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EXHIBIT "A"
LEGAL DESCRIPTION OF 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 SECTION 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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