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
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RECORDING REQUEST BY:
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AUG 21, 2012 3:09 PM
CITY OF POWAY
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OFFICIAL RECORDS
WHEN RECORDED MAIL TO:
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SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg,Jr.. COUNTY RECORDER
CITY CLERK
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FEES: 0.00
CITY OF POWAY
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PAGES: IT
POWAYXCA 92074 -0789
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(This space for Recorder's Use)
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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
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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
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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
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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
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