Agreement for Reimbursement of Costs of Permanent Public Improvements 2012-0383764RECORDING REQUESTED BY:
CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
PO BOX 789
POWAY CA 92074 -0789
D O C ## 2012-0383764
111111111111111111111111111111111111111111111111111111111111111111 IN
JUL 02, 2012 12:06 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest,!. Dmnenburg, Jr., COUNTY RECORDER
FEES: 0.00
PAGES: 5
(This space for Recorder's Use)
APNs: 317 - 130 -42, 317 - 130 -66
AGREEMENT FOR REIMBURSEMENT
OF COSTS OF PERMANENT PUBLIC IMPROVEMENTS
No Documentary Transfer Tax Due
This Agreement is entered into this /Jt�, day of _ , 2012 by and
between Wal -Mart Real Estate Business Trust, a Delaware Stat o Trust, hereinafter referred to as
"Owner ", and the City of Poway, a Municipal Corporation, h ein 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:
The Wal -Mart expansion project (DR90- 12R(2)) is a revision to an approved Development Review
application. The approved traffic study for the project identifies the need for offsite improvements to
mitigate the impacts of increased traffic anticipated with the expansion. Specifically, the lefthand turn
movement from eastbound Poway Road onto northbound Community Road will be significantly
impacted. The City acknowledges that the length of the existing left turn pocket at the intersection is
inadequate. The Owner has agreed to construct the offsite improvements, as herein described, with
the understanding that they are responsible for 29.6% of the cost of the improvements. The City
represents that the Owner's 29.6% of the cost of the improvements is no less than the percentage
that Owner is solely responsible for improving. The City will reimburse the Owner for 70.4% of the
cost of the improvements. The City represents that such 70.4% of the cost of improvements is no
less than the percentage that the City is solely responsible for improving. The form of
reimbursement will be determined by the Director of Development Services and may include credit
on traffic development impact fees and /or cash reimbursement. Upon full execution and recordation
hereof, this Agreement shall provide the sole method of reimbursement 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. In particular, Owner's
mandatory obligation in constructing the improvements shall not be considered subject to the
Mitigation Fee Act (Cal. Gov't Code, Section 66000 et seq.).
The public improvements included as part of this agreement are limited to the following:
The modification of the median in Poway Road to accommodate additional storage of
vehicles in the dedicated left -hand turn lane, including curb and stamped concrete.
Additional pavement, including repair and /or replacement of existing pavement, required to
modify the existing median.
Agrremrnl for ReimM1ursamem 001
W 1046 -Pnw., CA — 65117
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3. Relocation and /or replacement of City facilities within the existing median, including water
meters, backflow prevention devices, irrigation appurtenances, landscaping, and regulatory
signs.
4. New striping, striping removal and striping modification.
The City will reimburse Owner for 70.4% of the total cost of the design and construction of
improvements. The remaining 29.6% of the cost is the responsibility of Owner as determined by the
approved traffic study. The reimbursement shall be made within 60 days from the acceptance of the
improvements by the City Council- Upon a determination by City's Engineer that the improvements
are constructed in compliance with the City's improvement standards, and within 60 days of a written
receipt of a request by the Owner for City acceptance of improvements, the City shall process
Owner's request for acceptance at a regular meeting of the City Council.
Owner hereby agrees to indemnify and hold harmless the City, its agents, officers, and employees
from any and all claims, actions, proceedings, damages, judgments or costs, including attorney's fees,
against the City or its agents, officers, or employees, by third parties, for actions relating to this
Agreement or the performance of this Agreement, including but not limited to any action challenging
the validity of this Agreement, or any other liability related to this Agreement, based upon any legal
theory whatsoever, except to the extent that such claims, actions, proceedings, damages, judgments
or costs are caused by the City's negligence or willful misconduct. The City will promptly notify Owner
of any claim, action or proceeding. The City may elect to conduct its own defense, participate in its
own defense, or obtain independent legal counsel in defense of any claim related to this
indemnification . Except when such election is made as a result of an actual conflict of interest under
Rule 3 -310 of the California Rules of Professional Conduct ( "Rule 3- 310 "), the City shall be solely
responsible for its costs and expenses in separate legal representation resulting from such an
election. Where the election is made following the identification of an actual conflict of interest under
Rule 3 -310, Owner shall pay all of City's legal costs and reasonable attorneys' fees related to
indemnification. In the event of a disagreement between the City and Owner regarding litigation
issues, the City shall have the authority to control the litigation and make litigation related decisions,
including, but not limited to, settlement or other disposition of the matter. However, Owner shall not be
required to pay or perform any settlement unless such settlement is approved by Owner.
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. Owner herby
waives any right to remove any litigation from San Diego County as is otherwise permitted by
California Code of Civil Procedure section 394.
If any section, sub - section, sentence, clause, or phrase of this Agreement is for any reason held to be
invalid or unconstitutional, 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, sub - section, clause,
and phrase thereof irrespective of the fact that anyone or more sections, sub - sections, sentences;
clauses or phrases be declared invalid or unconstitutional, and would have approved the same even
though any parts, sections, sub - sections, sentences, clauses, or phrases that may be held invalid had
been omitted therefrom.
At✓ea , foe Reimbursement 001
W1041PUw, CA--8511131
Executed at Poway. California, on the date first stated above.
Owner: Wal -Mart Real Estate Business Trust, a Delaware Business Trust
Its:
Approved as to Form
Office of the City Attorney
i
By:
Morg L. ole City ttorney
Agreement far Rnmhavaemenl 001
W IO46goway CA -- 65117'3 1
CITY OF POWAY, a Municipal Corporation
Don ..
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California 1
County of �at 'I 04c, J} /
On �iNaN (S At L before me, ,labi S LIZ Not. t _. lic
Oale� Her Name an, Title a Officer
personally appeared
dIMM. CAFI S. LEGG
Commission • 1934186
Notary Public - Cohfomia
San 011490 County
My +
Comm. = Apr 28,2015
Place Notary Seal Above
CIVIL CODE 9 1199
who proved to me on the basis of satisfactory
evidence to be the person jo whose name($.) is/w
subscribed to the within instrument and acknowledged
to me that he /*a/yboy executed the same in
his/W /tbwir authorized capacity(igs), and that by
his /W /thak signature(s on the instrument the
person(&), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official officiial seal.
Signature: (�G c �t3 /e_W,
Signature of Notary li
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document _ I PLC b4G
Title or Type of Document:
Document Date: 15 Number of Pages: 3
Signer(s) Other Than Named Bove:
Capacity(ies) Claimed by Signer(s)
Signer's Name: ,h�j,t U ld-f- 1h� A& &t.
El Corporate Officer — Title(s):
_- Individual
❑ Partner — _ I Limited I General Top of thumb here
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
)IIII Altbrr
2 ner Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — � Limited C General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
® 2010 National Notary Association • NationalNotary.mg • 1- 800 -US NOTARY (1- 800 -876 -6827) Item #5907
COUNTY OF BENTON �-
On la, 204_a, befo me, L') Q
a Not blic, personally appeared
, who proved t e on the basis of satisfactory evidence to be
the person(,} whose name(s'is /ari# subscribed to the within instrument and acknowledged to
me that helskelikey executed the same in his/IeMheu• authorized capacity(ies), and that by
his4wp4 €ir signature* on the instrument the persona); or entity upon behalf of which the
persorto acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Arkansas, that the
foregoing paragraph is true and correct.
WITNESS my hand and official OFFICIAL SEAL
JANE BENNETT
(Seal) BENTON COUNTY
NOTARY PUBLIC - ARKANSAS
Notary Ublic MY COMMISSION EXP. JAN. 20, 2022
COMMISSION# 12386344
STATE OF )
COUNTY OF )
On 200 before me,
a Notary Public, personally appeared
, who proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by
his/her /their signature(s) on the instrument the person(s), or entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Arkansas, that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Notary Public