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Agreement for Reimbursement of Costs of Permanent Public Improvements 2012-0499206U1 AGREEMENT FOR REIMBURSEMENT OF COSTS OF PERMANENT PUBLIC IMPROVEMENTS ( POWAY MUNICIPAL CODE CHAPTER 13.24) No Documentary Transfer Tax Due This Agreement is entered into this 103 day of 20 II by and between BSA Partners, LLC, a Delaware Limited Liability Company, hereinafter referred to as "Owner", and the City of Poway, a Municipal Corporation, herein referred to as "City," for the reimbursement of a portion of the costs expended by 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 Tentative Tract Map (TTM) 02 -02, 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 13.24.020 of the Poway Municipal Code. Section III. Description of Properties Affected The real properties affected by this Agreement shall be the Owner's property legally described in Exhibit 1 attached hereto and the benefiting properties described in Exhibit 2. The obligation of the owner of each benefiting property shall become a lien upon such property for the term hereof, 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. D O C # 2012-0499206 IIIIIIII 111111111111111111111111111111111111111111111111111111111 RECORDING REQUEST BY: a ', ) V IN J AUG 21, 2012 3:09 PM CITY OF POWAY ) OFFICIAL RECORDS WHEN RECORDED MAIL TO: ) SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg,Jr.. COUNTY RECORDER CITY CLERK �) ) FEES: 0.00 CITY OF POWAY , \ ) PAGES: IT POWAYXCA 92074 -0789 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIll1111llll (This space for Recorder's Use) U1 AGREEMENT FOR REIMBURSEMENT OF COSTS OF PERMANENT PUBLIC IMPROVEMENTS ( POWAY MUNICIPAL CODE CHAPTER 13.24) No Documentary Transfer Tax Due This Agreement is entered into this 103 day of 20 II by and between BSA Partners, LLC, a Delaware Limited Liability Company, hereinafter referred to as "Owner", and the City of Poway, a Municipal Corporation, herein referred to as "City," for the reimbursement of a portion of the costs expended by 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 Tentative Tract Map (TTM) 02 -02, 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 13.24.020 of the Poway Municipal Code. Section III. Description of Properties Affected The real properties affected by this Agreement shall be the Owner's property legally described in Exhibit 1 attached hereto and the benefiting properties described in Exhibit 2. The obligation of the owner of each benefiting property shall become a lien upon such property for the term hereof, 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 frontage) of all benefiting properties are set forth in Exhibit 3 attached hereto. The detailed project cost for design and construction of the improvements subject to reimbursement is set forth in Exhibit 4 attached herein. Section V. Reimbursement Schedule The Reimbursement Schedule in the form required by Poway Municipal Code §13.24.040.C, as approved by the City Council of the City of Poway after public hearing, is attached hereto as Exhibit 5. 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 5. Section VI. Term The term of this Agreement and all obligations and liens created hereby shall be fifteen (15) years from the date of this Agreement, as set forth on the first page hereof. Fifteen (15) years from the date of this Agreement is December 6, 2026. 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 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 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 the benefiting properties, those owners shall pay to the City, and the City shall reimburse to Owner those benefit charges set forth in the Reimbursement Schedule, plus interest of five percent (5 %) per year compounded annually from the date of this agreement, less the administrative charge provided 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 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 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 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 annually if the City has received payment of any benefit charges. Payments to Owner E 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 (5 0/6) of all amounts deposited plus all interest income on the full amounts deposited except the 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 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 of administrative or judicial process payable to City. Section IX. Hold Harmless by Owner 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, 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. 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. In the event of such election, Owner shall pay all of the costs related thereto, including without limitation reasonable attorney's fees and costs. 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. Owner specifically agrees 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. Voidability 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 XI Governing 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 XIII. Severability 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 3 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. Executed at Poway, California, on the date first stated above Owner: BBA Partnerp, LLC Owner / \Gary Sabin CITY OF POWAY, a Municipal Corporation By: Don Higginson, May Approved as to Form Office of the City Attorney u, l Morga L. F ley, City A orney MAengserv\11 Reports \Heights Water Reimbursement Agreement\Reimbursement Agreement of Public Improvements 6.09.docx Eli CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California'' County fof�n On l- personally appeared SHELLEY COLLINS Commission # 1787479 < t - Notary Public • California € A San Diego County My Ccrtm. E4*es Dec 25.2011 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(srwhose name(s)(5kfe - subscribed to the within instrument and acknowledged to me that lei9hekkey executed the same in jj04ert4heir authorized capacity(iea), and that by dfi li etlEheir signatures} on the instrument the person(&), or the entity upon behalf of which the person (s'r 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 r}i nd and fficiatU n' /� Signature, / -/ 0 �i4, Signawi 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 ocument Title or Type of Docl�men Document Date: 5lli Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual Corporate Officer — Title(s): J Partner —C Limited -]General ,_1 Attorney in Fact 7 Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: flIGHTTHUM EPRINT OF SIGNER Number of Pages: Signer's Name: ❑ Individual Ll Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUM'PRINT OF SIGNER m2W7 Nabwed Notary Association•9350 De Soto Ave,, PO. Box2402- Chatev ,CA 91313- 2402 -w NabonalNotary.org Item M59W Reoaler Call Toll- Rree1-W0616- 7 a'C2 LEGAL DESCRIPTION FOR PROPERTIES OF HEIGHTS SUBDIVISION TAX ASSESOR PARCEL NO.: APN 277 -230 -01 LEGAL DESCRIPTION: LOT 1 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No.15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-02 LEGAL DESCRIPTION: LOT 2 OF MY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-03 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 3 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-04 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 4 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY ,-) RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-05 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 5 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-06 OWNER BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 6 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-07 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 7 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 -230 -08 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 8 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. 2 TAX ASSESOR PARCEL NO.: APN 277 - 230-09 OWNER: BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 9 OF CITY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No.15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. TAX ASSESOR PARCEL NO.: APN 277 - 230-10 OWNER BBA PARTNERS LLC LEGAL DESCRIPTION: LOT 10 OF MY OF POWAY TRACT MAP 02 -02, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP No. 15725, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 28, 2008 OF OFFICIAL RECORDS. LEGAL DESCRIPTION FOR ALL BENEFITING PROPERTIES The following described properties are proposed lots in City of Poway Tentative Tract Map 00 -02. The current owner is Malone Edward C and Barbara J Trust. These lots have not been assigned individual tax assessor parcel number at this time. They are portions of tax assessor parcel number 277 - 070 -34, 377 -080 -22 and/or 277 - 080 -27: Lot 32, Poway Tentative Tract Map 00 -02 Lot 33, Poway Tentative Tract Map 00 -02 Lot 34, Poway Tentative Tract Map 00 -02 Lot 35, Poway Tentative Tract Map 00 -02 Lot 36, Poway Tentative Tract Map 00-02 Lot 37, Poway Tentative Tract Map 00 -02 Lot 38, Poway Tentative Tract Map 00 -02 Lot 39, Poway Tentative Tract Map 00-02 Lot 40, Poway Tentative Tract Map 00 -02 CO Q w of z LL w z w m in z Q O M J F _mw X CO W w Q z U) m D U) H w ,0001=.l 31VOS =3 o IL O � U 2 Z W O O O O W 1: � N Z O I w VE0 O y U m O fns NF OZ Z Z:) 2 U Z W W Ir D 2 W d' Ir fL W w u ' 1 o � 3 QoU K� 1 § Ir b� 2z2 U3/2 # L) if E�a)- C!) §Wzw kILkI a W<W <§CD �CO \ : o \� »\ @ 2 A Q ^ / q ~ G CL LU � § ƒ w IL W J LU W S Lo W F Z m W Sg W W LUa' m ir c o E m Q, E 0 m � a 12 :2 = w c r- :3 LL R w, am r- 0 W C a) LD R. � W Q R O j O 8 O Q O [V Z4 O O � O U Z W a F- M m H H0 3 « .0. 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