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Item 7 - Financing Improvements in Conjunction with TTM 89-13R - AGENDA REPORT SUMMARY - ..- TO: Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Redevelopment Agency FROM: James L. Bowersox, City Manager/Executive D~or INITIATED BY: John D. Fitch, Assistant City Manager/Assistant Executive Director ~warren H. Shafer, Director of Redevelopment Services DATE: July 11, 1995 SUBJECT: Adoption of Resolutions by the City of Poway and Poway Redevelopment Agency Approving an Owner Participation Agreement Between the Poway Redevelopment Agency and Environmental Development, Ltd. Regarding the Financing of Improvements in Conjunction with Tentative Tract Map No. 89-13R ABSTRACT This report recommends the adoption of Resolutions by the City and Redevelopment Agency approving an Owner Participation Agreement (OPA) with Environmental Development, Ltd. to assist in financing public improvements in conjunction with their Tentative Tract Map (TTM) No. 89-13R (Old Coach Road Estates). - ENVIRONMENTAL REVIEW This action is not subject to CEQA review. FISCAL IMPACT The Agency's cost under the OPA is estimated to be between $600,000 and $850,000. The Agency will borrow the funds internally and repay the loan from the tax increment generated by the completion of TTM 89-13R. ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE A Notice of Public Hearing was published in the Poway News Chieftain. Attorney D. Wayne Brechtel has received a copy of this report. RECOMMENDATION It is recommended that the City of Poway/Redevelopment Agency close the Public Hearing and adopt the resolutions approving an OPA with Environmental Development, Ltd. ACTION - II c:\date\egenda\opa-edev.cov JUL 11 1995 ITEII 7 .,. 1 of 43 - AGENDA REPOR.L CITY OF POW A Y TO: Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Redevelopment Agency FROM: James L. Bowersox, City Manager/Executive D~r INITIATED BY: John D. Fitch, Assistant City Manager/Assistant Exec~irecto Warren H. Shafer, Director of Redevelopment Services ~s DATE: July 11, 1995 SUBJECT: Adoption of Resolutions by the City of Poway and Poway Redevelopment Agency Approving an Owner Participation Agreement Between the Poway Redevelopment Agency and Env i ronmenta 1 Development, Ltd. Regarding the Financing of Improvements in Conjunction with Tentative Tract Map No. 89-13R BACKGROUND The Redevelopment Plan adopted for the Paguay Redevelopment Project Area established owner participation rules and regulations which authorize owners of property within the project area to enter into binding agreements with the Agency to provide for the development or use of the property in conformity with the provisions of the Redevelopment Plan. The purpose of the Owner Participation Agreement (OPA) (Attachment I) is to effectuate the Redevelopment Plan by providing for the development of Tentative Tract Map (TTM) No. 89-13R and to provide for Redevelopment Agency ass i stance in financi ng the construction of certain public improvements. Environmental Development, Ltd., the developers of TTM 89-13R, have proposed to develop a residential subdivision within the Paguay Redevelopment Project Area. Due to the significant costs associated with developing this project, including the costs of the proposed public improvements, the developers have requested that the Redevelopment Agency ass i st the project wi th the cost of some of the improvements. FINDINGS Due to the extensive site development costs that were required of this development, including the construction of one-half of Espola Road, the developers have applied for financial assistance from the Agency. As a result, staff reviewed the finances for the project and determined that Agency assistance is justified. In determining how to best match the developer needs and the level of Agency assistance, several discussions were held. It was determined the best method was for the Agency to provide the assistance as outlined in Section 205 ACTION: l JUL 11 1995 trm )) 2 of 43 7 .. - - - OPA - Poway Redevelopment Agency and Environmental Development, Ltd. July 11, 1995 Page Z of the OPA. These items include the construction of one-half of the street improvements, the undergrounding of all utilities, installation of street lights, and construction of offsite sewer improvements. All these improvement designs will be completed and paid for by Environmental Development, ltd. The Agency will design and install the traffic signal at Espola and Old Coach Roads. Since the actual plans are still being finalized, the estimated value of these items is between $600,000 and $850,000. The Agency will recover this expense through tax increment when the tentative map is developed. The OPA contains several conditions to ensure the Agency doesn't incur any liability until the development of the map is ensured (see Section 206). By providing the recommended assistance, the Redevelopment Agency is ensuring the timely development of this project and also that the necessary pub 1 i c improvements will be provided. ENVIRONMENTAL REVIEW This item is not subject to CEQA review. FISCAL IMPACT The Agency's cost under the OPA is estimated to be between $600,000 and $850,000. The Agency will borrow the funds internally and repay the loan from the tax increment generated by the completion of TTM 89-13R. ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE A Notice of Public Hearing was published in the Poway News Chieftain. Attorney D. Wayne Brechtel has received a copy of this report. RECOMMENDATION It is recommended that the City of Poway/Poway Redevelopment Agency close the Public Hearing and adopt the resolutions (Attachments 2 and 3) approving an OPA with Environmental Development, Ltd. Attachments: 1. Owner Participation Agreement 2. Poway Redevelopment Agency Resolution 3. City of Poway Resolution c:\data\agenda\opa-edev.rpt - JUL 11 1995 ITEM 7 .... 3 of 43 RECORDING REQUESTED BY: ) ) City of poway ) ) WHEN RECORDED, MAIL TO: ) ) City Clerk ) City of Poway ) P.O. Box 789 ) Poway, CA 92064 ) ) No Transfer Tax Due (This space for Recorder's use) OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY AND ENVIRONMENTAL DEVELOPMENT, LTD. c,\envdev\OWNPART5.AGT Attachment 1 JUL 11 1995 ITEM 7 .,. 4 of 43 - - - TABLE OF CONTENTS ~ I. [UOO] SUBJECT OF OWNER PARTICIPATION AGREEMENT 1 A. [U01] Purpose of Owner Participation Agreement 1 B. [U02] The Redevelopment Plan . 1 C. [U03] The Site . 1 D. [!i104] Parties to the Owner Participation Agreement 1 l. [UOS] The Agency . . 1 2 . [U06] The Participant . . . 2 3 . [U07] Change in Ownership, Management and Control of the Participant . . 2 II . [!i200] DEVELOPMENT OF IMPROVEMENTS BY THE PARTICIPANT 3 A. [!i201] Scope of Development , 3 B. [!i202] Cost of Development 3 1. [!i203] Participant Cost " .... 3 2 . [!i204] Agency Assistance .. .... 3 (a) [!i20S] Agency Assistance Procedure 3 (b) [!i206] Conditions Precedent To Agency and Participant's Obligations To Construct Participant and Agency Improvements 4 3. [!i207] Construction Schedule . 5 4. [!i208] Indemnity, Bodily Injury and Property Damage Insurance . . S S . [!i209] Rights of Access . . 6 6 . [!i210] Local, State and Federal Laws . 6 7. [!i211] Antidiscrimination During Construction 6 8 . [!i212] Taxes and Assessments 7 9. [!i213] Certificate of Completion . . 7 10. [!i214] [intentionally omitted] 7 1l. [!i21S through !i221] [intentionally omitted] 7 III. [!i300] USE OF THE SITE . 7 A. [!i301] [intentionally omitted] 7 B. [!i302] Uses in Accordance with Redevelopment Plan; Nondiscrimination . 8 c. [!i303] Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction 9 IV. [!i400] GENERAL PROVISIONS 10 A. [!i401] Notices, Demands and Communications Among the Parties . . 10 B. [!i402] Conflicts of Interest 10 C. [!i403] Enforced Delay; Extension of Times of Perfor- mance . . 10 D. [!i404] Inspection of Books and Records 11 E. [HOS] Estoppel Certificates 11 - V. [!iSOO] DEFAULTS AND REMEDIES 11 A. [!iS01] Defaults -- General 11 - .dev\OWNPAATS.AGT i ITEM 7 It 5 of 43 JUL 11 1995 Paoe B. [11502] Legal Actions 12 l. [11503] Institution of Legal Actions 12 2 . [11504] Applicable Law 12 3 . [11505] Acceptance of Service of Process 12 C. [11506] Rights and Remedies Are Cumulative 12 D. [11507] Inaction Not a Waiver of Default 12 E. [11508] Remedies and Rights of Termination After Construction of Agency Improvements 13 l. [11509] Damages 13 2. [11510] Specific Performance 13 3. [11511] Termination by the Agency . . 13 F. [11512] Remedies of the Parties for Default After Construction of Agency Improvements and Prior to Construction of Public Improvements . 14 l. [11513] Termination and Damages . 14 2. [11514] Action for Specific Performance 14 G. [11515] Foreclosure on Site [intentionally omitted] 14 VI. [11600] SPECIAL PROVISIONS 14 A. [11601] Real Estate Commissions . . 14 B. [11602] Successors In Interest 14 C. [11603] Amendments to this Owner Participation Agree- ment 15 VII. [noo] ENTIRE AGREEMENT, WAIVERS 15 VIII. [11800] TIME FOR ACCEPTANCE OF OWNER PARTICIPATION AGREEMENT BY AGENCY . . 16 c,\envdev\OWNPART5.AGT ii JUL 11 1995 ITEM 7 '~ 6 of 43 - - -. ATTACHMENTS Attachment No. 1 Site Map Attachment No. 2 Legal Description Attachment No. 3 Scope of Development Attachment No. 4 Schedule of Performance Attachment No. S (intentionally omitted) Attachment No. 6 Certificate of Completion - iii JUL 11 1995 ITEM 7 . III -. \ .._n-'_..\OWNPART5 .AGT 7 of 43 ---- -- OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ("Agreement" ) is entered into by and between the POWAY REDEVELOPMENT AGENCY (the ("Agency" ) and ENVIRONMENTAL DEVELOPMENT, LTD. , a California limited partnership (the "Participant") . The Agency and the Participant hereby agree as follows: 1. (HOD] SUBJECT OF OWNER PARTICIPATION AGREEMENT A. (HOl] Purpose of Owner Participation Aareement The purpose of this Agreement is to effectuate the Redevelop- ment Plan (as hereinafter defined) for the paguay Redevelopment Project ("Project") by providing for the improvement of certain property situated within the Project Area ( "proj ect Area") of the Project by the Participant including the installation by the Participant of certain onsite public improvements associated with a residential development planned by the Participant. The public improvements are referred to herein as the lISitell and the area where the same are planned is shown on Attachment 1 ("Site Map"). The property identified on the Site Map is owned by the Participant. Completing the public improvements and encouraging the development of the Site pursuant to this Agreement is in the vital and best interest of the City of Poway ( "City") and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken. B. (H02] The Redevelopment Plan The Redevelopment Plan was approved and adopted by Ordinance No. 117 , of the City Council of the City of Poway; said ordinance and the Redevelopment Plan as so approved (the "Redevel- opment Plan") are incorporated herein by reference. C. Uil03 ] The Site The Site is that portion of the Project Area designated on the Site Map (Attachment No. 1) and described in the "Legal Description," which is attached hereto as Attachment No. 2 and is incorporated herein by reference, and all public improvements thereon. D. (H04] Parties to the Owner Participation Aareement l. (UOS] The Acrencv The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at City Hall, l332S Civic Center Drive, Poway, California 92064. c; \er.vdev\OWNPAR':"S. AGT 1 JUL 11 1995 ITEM 7 .... 8 of 43 - - "Agency, " as used in this Agreement, includes the Redevelopment Agency of the City of Poway, and any assignee of or successor to its rights, powers and responsibilities. 2. [U06] The Particioant The Participant is Environmental Development, Ltd., a California limited partnership, of which the general partner is Planned Real Estate Investments, Inc. , a California corporation. The principal office and mailing address of the Participant for the purposes of this Agreement is 401 West "A" Street, Suite 1815, San Diego, California 92101 Attn: Bruce E. Tabb. 3 . [U07] Chanae in Ownershio. Manaaement and Control of the Particioant The qualifications and identity of the Participant are of particular concern to the City and the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Participant. No voluntary or involuntary successor in interest of the Participant shall acquire any rights or powers under this Agreement except as expressly set forth herein. The Participant shall not assign all or any part of this Agreement or any rights hereunder or add additional general partners without the prior written approval of the Agency, which consent shall not be unreasonably withheld. The Agency shall grant an assignment to (1) a partnership which includes Participant as general partner or (2) an assignee entity that is financially capable of performing the duties and discharging the obligations it is assuming and which expressly assumes the obligations of the Participant pursuant to this Agreement in writing satisfactory to the Agency. The Participant shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the persons in control of the Participant and the degree thereof. This Section 107 shall not be deemed to prohibit the addition of general or limited partners or shareholders without further consent of the Agency so long as those partners or shareholders holding interests as of the approval by the Agency of this Agreement retain operational and managerial control and not less than a fifty-one percent (51%) interest in profits and losses of such partnership or corporation. All of the terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Participant and the permitted successors and assigns of the Participant. Whenever the term "Participant" is used herein, such term shall include any other permitted successors and assigns as herein provided. ,... \ ......,.l...,\OWNPARTS. AGT 2 JUL 11 1995 ITEM 7 .... 9 of 43 II . [~200] DEVELOPMENT OF IMPROVEMENTS BY THE PARTICIPANT A. [~201] Scope of Development Subject only to the conditions precedent set forth in this Agreement, the Participant shall at its expense construct or cause to be constructed those particular public improvements ( "Participant Improvements" ) described on Attachment No. 3 within the time periods set forth on Attachment No. 4. The term "Participant Improvements" includes any improvements that are not specifically described where their construction is necessary to meet City standards in order to construct those Participant Improvements which are described. The Participant shall construct or cause to be constructed the Participant Improvements in compliance with all the zoning, planning and design review requirements and approval procedures of the City of Poway. The term "Participant Improvements" does not include private improvements to be constructed on the Site. B. [~202] Cost of Development 1. [~203] Participant Cost All costs for planning, designing and constructing the Participant Improvements shall be borne exclusively by the Participant. The Participant shall also bear all costs related to discharging the duties of the Participant set forth in this Agreement. The Participant shall be responsible for all fees associated with development of the Participant Improvements including, without limitation, school facilities fees and impact fees unless otherwise set forth herein or deemed satisfied pursuant to the Development Agreement between the City of poway and Environmental Development, Ltd. , as amended. t. The Participant assumes all risks associated with soil and subsurface conditions on the Site and shall undertake at its cost all investigation of such conditions as it deems appropriate. If the soil conditions are not entirely suitable for the use to which the Site will be put, then it is solely the responsibility and obligation of the Participant to take such action as may be necessary to place the Site in a condition entirely suitable for such use and to commence and complete the Participant Improvements described herein. 2. [~204] Aoencv Assistance (a) [~205] Aoencv Assistance Procedure In consideration for the Participant agreeing to construct the Participant Improvements required as conditions of approval of Revised Tentative Tract Map 89-13-R for the Site, the Agency agrees to construct the following public improvements ( "Agency Improvements") ; , nu.....,v\:JWNP.ART6 _AG": 3 JUL 11 1995 ITEII 7 .'.. 10 of 43 - - (i) The Agency shall install half-width street improvements, including curbs, gutters, and fire hydrants, to Espola Road from the easterly boundary of the Site to the westerly boundary of the Site. (ii) The Agency shall underground all utility transmission lines, including but not limited to electrical, telephone, and cable, running east and west along the frontage of the Site and all transmission lines, including but not limited to electrical, telephone, and cable, originating along the frontage of the Site and running south across Espola Road and serving residences south of Espola Road. (iii) The Agency shall construct a public street light system on Espola Road and the intersection of Espola Road and Old Coach Road in conformance with City of Poway standards. (iv) The Agency shall design and install a traffic signal at the intersection of Espola Road and Old Coach Road. (v) The Agency shall construct off-site public sewer improvements as needed to maintain or attain City of poway sewage disposal standards. (b) [~206] Conditions Precedent To Aqencv and Particioant's Obliqations To Construct Particioant and Aqencv Imorovements The Agency's obligation to construct the Agency Improvements and Participant's obligation to construct the Participant Improvements are subject to satisfaction or waiver {waiver must be by both Agency and Participant) of each of the following conditions precedent: (i) The City's and Participant's approval of detailed plans and specifications for the Participant Improvements for the Site. (ii) The recordation of a final map for the Site and the Participant having provided the City with a subdivision improvement agreement in the form customarily required by the City together with either (i) subdivision bonds or (ii) a letter of credit customarily required by the City to assure completion of the Participant Improvements for the Site. (iii) Neither party shall be in material _. default of any of the outstanding provisions of the Agreement or the Attachments incorporated thereto, or the Development Agreement between the City and the Participant. c \envdev\QWN?ART6.AGT 4 JUL 11 1995 ITEM 7 ... 1 1 (' f I, ~ 3. [~207] Construction Schedule The Participant shall commence and complete the Participant Improvements by the respective times established therefor in the Schedule of Performance which is attached hereto as Attachment No. 4 and incorporated fully herein by this reference. The Agency shall commence and complete the Agency Improvements by September 31, 1997. 4. [~208] Indemnitv. Bodil v Inlurv and Propertv Damaqe Insurance The Participant shall defend, assume all responsi- bility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Participant's activities under this Agreement, if such activities were negligent and whether such activities or performance thereof be by the Participant or anyone directly or indirectly employed or contracted with by the Participant and whether such damage shall accrue or be discovered before or after termination of this Agreement. The Participant shall take out and maintain until (i) the completion of the Participant Improvements as determined by the Agency pursuant to Section 210 of this Agreement (if an "occurrence" policy is obtained) or (ii) the second anniversary of the completion of the Participant Improvements (if a "claims made" policy is obtained) , a comprehensive liability policy in the amount of One Million Dollars ($1,000,000.00) combined single limit policy, including contractual liabili ty, as shall protect the Participant, the City and the Agency from claims for such damages. Insurance coverage furnished by the Participant pursuant to this Section 208 shall conform to this Section 208 and shall pertain to all activities on the Site and adjacent public right-of-way surrounding the Site and all work, if any, on off-site public improvements. Participant shall furnish Agency a certificate of insurance from the insurer evidencing compliance with this Section 208 and providing that the insurer shall not cancel or modify the policy without thirty (30) days' written notice to Agency. Participant shall give Agency prompt and timely notice of any claim made or suit instituted. Agency, City and their officers, employees and agents, shall also be named as additional insured in any policies of Participant's contractors covering work under this Agreement, and such policies shall comply with this paragraph. Coverage need not be primary or contributing with any policy or coverage maintained by or obtained by the Agency, and an appropri- ate endorsement may so state. The policy need not contain a waiver of subrogation. c:\envdev\OWNPARTS.AGT 5 JUL 11 1995 ITEM 7 '11 12 of 43 - - - Participant shall comply with all of the provisions of the Worker's Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Divisions 4 and 5 of the California Labor Code, and all amendments thereto, and all similar State or Federal acts or laws applicable, and Participant shall hold Agency and City harmless from any claims arising thereunder. Participant shall furnish to Agency a certificate of Worker's Compensation insurance providing that the insurer shall not cancel or modify the policy without thirty (30) days' prior written notice to Agency. In the alternative, Participant may show proof of a certificate of consent to self-insure issued by the Director of Industrial Relations according to California Labor code Section 3800. 5. [~209] Riqhts of Access Representatives of the Agency and the City shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement including, but not limited to, the inspection of the work being performed in the construction of the Participant Improvements. 6. [~2l0] Local, State and Federal Laws The Participant shall carry out the construction of the Participant Improvements in conformity with all federal, state, local and other applicable laws including, without limitation, the provisions of the poway Municipal Code. The Participant assumes full responsibility for and shall comply with all provisions of the Subdivision Map Act and the local subdivision ordinance applicable to the development or financing of the Participant Improvements. Before commencement of construction or development of any buildings, structures or other improvements upon the Site, the Participant shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. 7. [~211] Antidiscrimination Durina Construction Pursuant to Section 33435 of the California Community Redevelopment Law, the Participant for itself and its successors and assigns, agrees that in the rehabilitation and/or construction of Participant Improvements on the Site or otherwise provided for in this Agreement, the Participant will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry or _ national origin. c lenvdev\OWNPARTSAGT 6 JUL 111995 ITEM 7 ~ 13 of 43 8. [~212] Taxes and Assessments The Participant shall pay when due all real estate taxes and assessments on the Site so long as the Participant retains any interest therein. The Participant shall remove or have removed any levy or attachment made on any of the Site or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. 9. [~213] Certificate of Comoletion Promptly after the completion of the Participant Improvements in conformity with this Agreement (as determined by the Executive Director of the Agency) and upon the written request of the Participant, the Agency shall furnish the Participant with a Certificate of Completion, substantially in the form attached hereto as Attachment No.6, which evidences and determines the satisfactory completion of such construction and carries forward those provisions and covenants specified in this Agreement, the Redevelopment Plan and the California Community Redevelopment Law. The issuance and recordation of the Certificate of Completion (Attachment No.6) with respect to the Participant Improvements shall not supersede, cancel, amend or limit the continued efficacy of any obligations relating to or the maintenance of uses, payment of monies or any other obligations except for the obligation to complete construction of the Participant Improvements as of the time of the issuance of such certificate. If the Agency refuses or fails to furnish a Certificate of Completion with respect to the Site substantially in the form of Attachment No. 6 after written request from the Participant, the Agency shall, within forty-five (45) days of the written request, provide the Participant with a written statement of the reasons the Agency refused or failed to furnish such Certificate of Completion. Upon issuance of a Certificate of Completion (Attachment No.6) for the Participant Improvements, construction of such Participant Improvements shall be deemed to have been completed in conformity with this Agreement. The Certificate of Completion (Attachment No.6) is not a notice of completion as referred to in Se~tion 3093 of the California Civil Code. 10. [~214] [intentionally omitted] 11. [~215 through ~221] [intentionally omitted] III. [~300] USE OF THE SITE A. [~301] [intentionally omitted] c, \envdev\OWNPAR~5 AGT 7 JUL 11 1995 ITEII . "I 14 of 43 7 - - _ B. [~302] Uses in Accordance with Redevelooment Plan: Nondiscrimination 1. Participant agrees, for itself and on behalf of its successors, its assigns and every successor in interest to the Site or any part thereof, that during construction and thereafter the uses of the Site will be consistent with the Redevelopment Plan. However, changes in the Redevelopment Plan shall not by reason of this covenant require changes to improvements made to the Site. The Participant covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Participant itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the Site. The foregoing covenants shall run with the land. The Participant shall refrain from restricting the rental, sale or lease of the property on the basis of race, color, creed, religion, sex, marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subj ect to the following conditions: "There shall be no discrimination against or - segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national c 'er.vdev\OWNPARTS.AG7 8 JUL 11 1995 ITEM 7 '; 15 of 43 origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessee, subtenants or vendees in the premises herein leased." (c) In contracts: "There shall be no discrimina- tion against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the premises." The covenants established in this. Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Site, together with any property acquired by the Participant pursuant to this Agreement, or any part thereof. The covenants contained in this Agreement shall remain in effect until the termination date of the Redevelopment Plan. The covenants against racial discrimina- tion shall remain in perpetuity. C. [!l303] Effect of Violation of the Terms and Provi- sions of this Aqreement After Comoletion of Construction The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running wi th the land have been provided. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. c \envdev\OWNPARTS AGT 9 JUL 11 1995 ITEM 7 .... 16 of 43 - - IV. [!i400] GENERAL PROVISIONS A. [!i401] Notices. Demands and Communications Amonq the Parties Written notices, demands and communications between the Agency and the Participant shall be sufficiently given if delivered by hand (and a receipt therefor is obtained or is refused to be gi ven) or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Participant. Such written notices, demands and communications may be sent in the same manner to such other addresses as such party may from time to time designate by mail as provided in this Section 401. Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the tenth day from the date it is postmarked if delivered by registered or certified mail. B. [!i402] Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. No member, official or employee of the Agency shall be personally liable to the Participant, or any successor in interest, in the event of any default or breach by the Agency or the Participant, or for any amount which may become due to the Participant or successor or on any obligations under the terms of this Agreement. The Participant warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. C. [!i403] Enforced Delav: Extension of Times of Perfor- mance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in defaul t, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidem- ics, quarantine restrictions, freight embargoes, lack of transpor- tation, governmental restrictions or priority, litigation, unusually severe weather, acts or omissions of another party, acts or failures to act of the City of Poway or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which shall not excuse performance by the Agency), or any other causes beyond the control or without the c "envd~v\OWNPAR-:'S. AGT 10 JUL 11 1995 ITEM 7 .~ 17 of 43 fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. The party claiming that such cause exists shall send notice of the extension to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and Participant. Participant is not entitled pursuant to this Section 403 to an extension of time to perform because of past, present or future difficulty in obtaining suitable temporary or permanent financing for the acquisition or development of the Site. D. [~404] Insoection of Books and Records The Agency has the right at all reasonable times to inspect the books and records of the Participant pertaining to the Site as pertinent to the purposes of this Agreement. The Partici- pant has the right at all reasonable times to inspect the public records of the Agency pertaining to the Site as pertinent to the purposes of the Agreement. E. [~405] Estoooel Certificates Either party shall, within thirty (30) days after written request from the other party, provide a signed written statement setting forth and describing any known defaults by the other party or stating that the responding party knows of no such defaults. The statement shall be in recordable form if the requesting party so specifies. A party shall only make a request for an estoppel statement if requested to do so by a lender or other third party or if reasonable grounds exist to question the existence of a default. V. [~500] DEFAULTS AND REMEDIES A. [~501] Defaults - General Subject to the extensions of time set forth in Section 403, failure or delay by any party to perform any term or provision of this Agreement after the conveyance constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with diligence. The injured party shall give written notice of default to the party in default, specifying the default complained of by the inj ured party. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not consti- tute a waiver of any default, nor shall it change the time of default. c,\envdev\OWNPARTSAG7 11 JUL 111995 ITEM 7 . 18 of 43 - - ._ B. Ui502] Leoal Actions 1. [~503] Institution of Leoal Actions In addition to any other rights or remedies and subject to the restrictions in section 501, either the Agency or the Participant may institute legal action within the applicable statute of limitations to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Southern District of California. 2. [!l504] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [!l505] Acceptance of Service of Process In the event that any legal action is commenced by any party against the Agency, service of process on the Agency shall be made by personal service upon the Director or in such other manner as may be provided by law. In the event that any legal action is commenced by any party against any of the Participant, service of process on such party shall be made by personal service upon a corporate officer or partner of such party and shall be valid whether made within or without the State of California or in such other manner as may be provided by law; provided that service upon or notice to any of the Participant shall conclusively be deemed to constitute service upon and notice to all Participant. C. [!l506] Riqhts and Remedies Are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by any other party. D. [!l507] Inaction Not a Waiver of Default Any failures or delays by any party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive any party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. c \.nvd.v\OWNPAROS AGO 12 JUL 11 1995 ITEM 7 19 of 43 E. [~508] Remedies and Riqhts of Termination After Construction of Aqency Improvements 1. [~509] Damaqes If, after construction of the Agency Improvements by the Agency, any party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon all other parties, provided that notice upon any related person shall be conclusively deemed to effect notice upon the Participant. If the default is not cured or commenced to be cured by the defaulting party within thirty (30) days after service of the notice of default (or within such other period as is set forth herein), the defaulting party shall be liable to each other party for any damages caused by such default (except that Section 503 shall be enforceable according to its terms) . 2. [~510] Specific Performance If, after the construction of the Agency Improvements by the Agency, any party defaults under any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days of service of the notice of default, or such other time limit as may be set forth herein with respect to such default, the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of terms of this Agreement. 3. [~511] Termination by the Aqency In the event that prior to the construction of the Agency Improvements by the Agency: (a) The Participant (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement; or (b) There is a change in the ownership of the Participant contrary to the provisions of Section 107 hereof; or (c) The Participant does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement therefor, and any such default or failure shall not be cured within forty-five (45) days after the date of written demand therefor by the Agency; or (d) The Participant fails to satisfy the Conditions Precedent to the construction of the Agency Improvements by the time established therefor in this Agreement then this Agreement and any rights of the Participant or any assignee or transferee in the ::: \envdev\OWNPARTS AGT 13 JUL 11 1995 ITEM 7 . ,.. 20 of 43 - - -- Agreement, or arising therefrom with respect to the Agency shall, at the option of the Agency, be terminated by the Agency, thereupon neither the Agency nor the Participant shall have any further rights against the other under this Agreement. F. [!lS12] Remedies of the Parties for Default After Construction of Aaencv Imorovements and Prior to Construction of Particioant Imorovements 1. [!lS13] Termination and Damaaes Prior to the recordation of a Certificate of Completion, if the Participant or the Agency defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the default- ing party. If the default is not cured by the defaulting party within thirty (30) days after service of the notice of default, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [!lS14] Action for Soecific Performance If the Participant or the Agency defaults under any of the provisions of this Agreement after the construction of the Agency Improvements and prior to the recordation of a Certificate of Completion for the Participant Improvements, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured by the defaulting party within thirty (30) days after service of the notice of default, the non-defaulting party, at its option, may institute an action for specific performance of the terms of this Agreement. G. [!lSlS] Foreclosure on Site [intentionally omitted] VI. [!l600] SPECIAL PROVISIONS A. [!l601] Real Estate Commissions The Participant represents to the Agency that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker's fees or finder's fees which may accrue by means of the acquisition of the Site, and agrees to hold harmless the Agency from such commissions or fees as are alleged to be due from the party making such representations. B. [!l602] Successors In Interest The terms, covenants, conditions and restrictions of this Agreement shall extend to and shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and _ assigns of the Participant. c:\@nvdev\OWNPAR':'S.AG7 14 JUL 11 1995 ITEM 7 . 21 of 43 All of the terms, covenants, conditions and restrictions of this Agreement which do not terminate upon the issuance by the Agency of the Certificate of Completion for the entire Site shall be deemed to be, and shall, constitute terms, covenants, conditions and restrictions running with the land; provided, however, in no event will any of the provisions of this Agreement be binding upon individual lot purchasers. C. [~603] Amendments to this Owner particioation Aoree- ment The Participant and Agency agree to mutually consider reasonable requests for amendments to this Agreement which may be made by lending institutions, or Agency's counselor financial consultants, provided said requests are consistent with this Agreement and would not substantially alter the basic business terms included herein. D. [~604] Agency and Participant each affirm to one another that neither party knows of any reason why this Agreement would not be enforceable according to its terms. E. [~605] Participant agrees to indemnify and defend the Agency for any claims which may be asserted against the Agency, by reason of the actions of Participant or its agents or employees, which claims arise under the Comprehensive Environmental Response and Compensation And Liability Act, as amended, (42 U.S.C. ~9601, et seq.) and/or any related state law which claims are based on contamination on the portion of the Site owned by Participant, including, but not limited to land transferred to Participant by the Agency. VII. [~700] ENTIRE AGREEMENT, WAIVERS This Agreement is executed in five (5) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 21 and Attachments 1 through 6, which constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotia- tions or previous agreements between the parties or their predeces- sors in interest with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Participant, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Participant. Each individual signing below represents and warrants that he has the authority to execute this Agreement on behalf of an bind the party he purports to represent. ,envdev.JWNP'"RTS AGT 15 JUL 11 1995 ITEM 7 . 'It 22 of 43 - - .. In any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld. VIII . [!laDD] TIME FOR ACCEPTANCE OF OWNER PARTICIPATION AGREEMENT BY AGENCY This Agreement, when executed by the Participant and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before ten (10) days after signing and delivery of this Agreement by Participant or this Agreement shall be void, except to the extent that the Participant shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. - c:\envdev\OWNPARTS.AGT 16 JUL 11 1995 ITEM 7 .". 23 of 43 IN WITNESS WHEREOF, the Agency and the Participant have signed this Agreement on the respective dates set forth below. July _, 1995 POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic By: Chairman "Agency" ATTEST: Secretary APPROVED AS TO FORM: Stephen M. Eckis, City Attorney July _, 1995 ENVIRONMENTAL DEVELOPMENT, LTD. , a California limited partnership By: Planned Real Estate Investments, Inc. t a California corporation, general part~ By: ~~ J-L Bruce E. Tabb, President "Participant" c,\e::.vdev\OWNPARTS.AGT 17 JUL 11 1995 ITEM 7 ~.. 24 of 43 - - ) STATEOF;--~ }S.S. COUNTY OF '<...} - On ~~.Al.. &-;l., ICJ"7S-,beforem/-~ ft...,aNotaryPUbIiCinandfor said Coun and State, personally appeared . personally known to me (or 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/shellhey executed the same in hislherllheir authorized capacityOes), and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official saal. Elizabeth N. Lee ~ Comm. '1~ L~j)1. =r~ Nf'f PU&IC . _IlIIGOCOUNTY 0 Signature U _.---".... (This.... far offtciIJ _ _1 ) STATE OF }S.S. COUNTY OF } On , before me, , a Notary Public in and for said County and State, personally appeared personally known to me (or 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/shellhey executed the same in hislherllheir authorized capacityOes). and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official sael. Signature (This .... far official notarilll _I) } STATE OF )S.S. COUNTY OF } On , before me, , a Notary Public in and for said County and State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) isIare subscribed to the within instrument and acknowledged to me that helshe/they executed the same in hislherllheir authorized capacityOes), and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted. executed the instrument. WITNESS my hand and official saal. - Signature (This area for official notarial seal) 25 of 43 JUL 11 1995 ITEM 7 i1I ATTACH!o!ENT NO. 1 CIT',' OF POWAY 1264 Site Map-Parcel - (Parcel AI 0: Parcel Map 92-C~ :ll 0 BOUNDARY ADJUSI'MENT ", ,. . t"l lkiDi . boo""'..,. odj"-'~" of &bore potUcas of PIlUb 1 aad 2 aad JI-.;-Aer PucoI o' of Pated Map No. 17.33 Iza lbe City of Poway. Coumy of SaIl Die.... SlaIe of CA1ifcmiL CD ;:: 00( ", 0 ,lS.~~OR'S PARCEL NUMBERS: 277.171,0+ THfW Ie 7 BASIS OF BEAlUNGS THIlIlASIS OF aE.AlUI<<iS POR THIS Pl..AT 15 THIl c:c:s 13. ZONE 6. GIUD aE.AlUI<G aEI'WUN STATIOH 'UI_' AIm STA'nON '_2-I'..u SAID STATIONS AIl.E I'\1BUSHED ll'I THE SAN DIEGO COUNTY HOIUZCKTAL COHnOL BOOK. LE.. NJ'S9'42"W. QUOTEl) aE.AlUI<<iS FIlOW RECQIIJ) WAPSlDEEDS IolA Y OR. IolA Y Nor BE ll'I TEltMS OF SAID SYST'EIoI. CClNlUI<ED SCALI! FACTOR AT STA'nON '\31_'1$ 0.9999251 AIm AT STAncN '_2-\'15 0.9999319. GIUD DISTANCE - Gl!.OUND OISTANCE. C'OMBll'IEI:l SCAI..E FACTOR. LEGEM> HIGHuWO e-r: 120. (R) lDd:-'- radial bearin, -0 '" VALL ", c NEW ~ PARCEL , EXISTING LOT AREA LOT AREA ,. t"l -< PARCEL A 145.24 AC. _ I, PM 17'33) 146.73 AC. e PARCEL B 140..54 AC. 0 % 141.81 AC._ 2. PM 174] ,. '" PARCEL C 15.12 AC. (11_ .... .... 17'33) 15.66 AC. -< 00( ", - r cx..o COACH RoaD .., Z ,. ,... VICINITY MAP ,. t"l -< AlO SC1-' ,. -SHEET f OF !5 e 0 % ~ CD HEAL TH DEPARTMENT CERTlFJC.(T1Cfl FOR DEPARTMENTAL USE ONLY 00( ", - PREUM. FEE ::-FINAL FEE SlOOO.oo REC. NO. REe. NO. OWN'ER.: BR~ E. TAlI.. G.NV1RQNME.MiAL. ""v. LTO. - Z"L -+0 . or ADDRESS: 1 'NUT A STRII.ET'. CUI~ ,.... crrr, SAM D~r,o CA 9'2101 .~ PHONE MO.: ASt9\ ~7.:!SS CD_ APP'tJC.ANT: RJC:X ENCl'N'1:'nfNt': co. )> ADDRESS: 5620 nu~ ROAD <.D CITY: !AH'DmoQ CA 9'2110 PHONE NO..: I'll'" 191~ ~ MAP PREPARm BY, CHllIS D. ClR&lELE ...- I T1lIS PlAT Vi.u PREPARED 0 AD~ $620 F'R1AJt.S ROAD wrI1I WY IOlOWUtlOB ANtl ~ !;., CITY: SAH D~. eA 91110 CONSENT. ~-'~-~ - ~J co PHONE NO.: 1&19'\ 191.a707 L 5..5267 SIllNAlllRI JUL 11 1995 ITEM 7 ." 26 of 43 - 12.85 Z. - .- 0 GO _ ~ea #CD ..$CD 6&IQ trc::a::t 5CA1 F: ('": 5Ct)" __ r0 I..:U8DN/S/ON BOul./OARY ::;;;Q "'I \ I CXlsrlNG '--~ n~ F"'Q.ol" I UNe I -.. - . I j'~ Z \ I I VA LLi:: 'vERGE ' ,~ I \ I / ~..lt:.o I I \ I / ,- ...... I ...,... .... 01 .:1.~ c:."".\ .. 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DA1"AIP..... 1'1..03) (JtEC, OATAIP..M. 1703) UNIi DIL OISl'. OIL DISl'. LINE DIL DISl'. OIL DISl'. , .- 1<<ll)"16'", 1299..11" 1<<lO"lO'1O"E 1299..1.. 60 NCl:l.40'02"E 139.11' I'OS.S.""Xl"E 139.11' '"'''33''36''''', 1191.11" 1lU~"W 1191.1)<' 1 NJ9.1.....E 166.19' 53'''I'46"W 161.19' NQ2 "2D"01"1l 1306.65' H01"'"3."E 1306..... _"30'I2"E %7.10' NDJ"'"'JO"E %7.6!' '. -..""..". IJOj.ClO' 1lU.,I'SI"W IJOS.ocr NOD"I7' WE 1'12.33' NOO.OI,..E 1'12.46' NOI.O'I'.I lJOI.76' 1I01.57'Ql'E 130\.62' N12"S4~"W m.46' NIl.40"19"W m,42" 6 NU.S1"JO"W 131'.00' ml.....II.w 1311.'1" 5 NoOO"19'02'E '1.00' l'f40-""'06c 90.116' 1 HI7." '3O"E S41.'" !(I1.S"15" S41.7]' Na2"33'"::l"W 69.116' NI2-15'S4'"W 70.00' 1 N:tl "D:l'J2"E 611.01' !'fD.16.,....E 611.09' lr($1"""':11'"W 120.29' Pl52' U'Soc"W 1:0.00' 9 NOQ.S3'I'.E m.J6' 1'01 "09"'E m.3.' Nlr7"26'I2"E 101.01' 1'01....,... 1Cl:l.29' o ,",'59'05"'" 16.29' NU.'I"Q5'"W 16.31' 69 NII.,7'02"W 111.!.' 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PQ DOC ""29627 RfC. ann9 ~0 \VLY UN"E OF " SCGlcE EASE. II: 1117 'PCi 122. REC. 911I')0 0 12S'WlDEAQUEDOCTEASE. II: 1""1 REC. 1112114SBK 33I9'426REC. I1n1149BX 5611J2LS REC. 411"" 0 CIl.... WIDE SDGaE EASE. PEa DOC. S7011 REC. "/3161 0 CIL 30' WIDE SDGU EASE. PQ u: 701. PO 12. lEe. <ltSlU 0 O'L 12' Wl'DE S~ EASE. PER _ 1117. PCi 122. Jt.EC. '11I)O @ ClL4... 11' VttDE SDGAE EASE PER. DOC. 74-06S'7i7.JtEC. ,run.. @ CJL4CI" POWAT wt1Nt. WA!D. msT. EASE PER. DOC. ana. Rf!C. In?,.1 @ CIl. W PVT. ItD A tmt. WI. uc. Sil,m AS PER. IXX. 7'2-126163 @ CIL" " 12' SDGAE EASE I'D. DOC ".lI""l lEe IIlUn 0 C"L 12" wmE S:X;U EASE. PD ooc. 1""11 REC. 1111165 @ C1L:r,. ,,. POWAT wtnil WA1'D 0lST. EASE. PEI.:xx. 76-IGHI6.uc.....", @ ClLLS. n:2.PD._ 'TZIPO Jl:ZUC I.So'I. POR'nONVACA'rEI) PElOOC. %509ZS.UC 10n.tf7I.CBi'AlJrfCOHSTRUC"TION" U'11UTT EASE. IIGKn _......-m. @ CIL 20' wtDE mYA1E lOAD EASE. PEl. 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IOQQ.OO' '''.112' SHeer saF5 SA 94-08 30 of 43 JUl 11 1995 ITEM 7 i. - ATTACHMENT NO, 2 - Legal Descr~pt~on for 1259 Parcel 1 (Parcel A) - of Parcel Map 92-04 PARCEL A Those portions of Parcels 1, 2 and Remainder Parcel of Parcel Map No. 17433, recorded October 14, 1994 as File No. 1994-605766 Page 17433, in the City of Poway, County of San Diego, State of California, in the Office of the County Recorder of said County, being more particularly described as follows: Beginning at the Easterly terminus of that certain line designated as "North 88 Q46'25" West 81.25 feet" on the Westerly line of said Parcel 1; thence leaving said Westerly line North 53010'29" East 375.77 feet; thence South 54053'25" East 108.00 feet; thence North 52005'58" East 285.45 feet; thence South 51008'33" East 256.62 feet; thence South 17047'33" West 276.00 feet; thence South 09010'20" West 80.91 feet; thence South 72 012'27" East 361.87 feet; thence South 28036'28" East 425.71 feet; thence South 59018'01" West 334.94 feet; thence North 50012'53" West 211.68 feet; thence South 69057'46" West 512.51 feet; thence North 51047'33" West 215.00 feet; thence South 38012'27" West 282.95 feet to the beginning of a tangent 1271.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 24029'08" a distance of 543.17 feet; thence South 27018'24" East 5.00 feet; thence South 62041 '36" West 151.66 feet to the beginning of a tangent 974.00 foot radius curve concave Southeasterly; thence Southwesterly along the arc of said curve through a central angle of 07000'14" a distance of 119.06 feet; thence South 55041 '21" West 232.43 feet to the beginning of a tangent 174.00 foot radius curve concave Southeasterly; thence Southwesterly along the arc of said curve through a central angle of 68054' 41" a distance of 209.28 feet; thence South 13013'20" East 104.88 feet to the beginning of a non-tangent 520.00 foot radius curve concave Northerly, to which a radial line bears South 05004'17" East; thence Easterly along the arc of said curve through a central angle of 09041'13" a distance of 87.92 feet; thence North 75014'30" East 243.79 feet; thence South 12047'50" East 1040.09 feet; thence South 06009'55" West 1351.76 feet; thence South 57057' 11" West 155.00 feet; thence South 32002' 49" East 92.00 feet to the beginning of a tangent 174,00 foot radius curve coneave Northeasterly; thence Southeasterly along the arc of said curve through a central angle of 71 059' 5 2" a distance of 218.65 feet; thence North 75057'19" East 163.25 feet; thence South 14002' 41" East 52.00 feet; thence South 75057' 19" West 163.25 feet to the beginning of a tangent 226.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 00058'57" a distance of 3.88 feet to the Easterly line of said Parcel 2 being the beginning of a non-tangent 1000.00 foot radius curve concave Southeasterly, to which a radial line bears North 61031'40" West; thence Southwesterly along the arc of said curve through a central angle of 02054'52" a distance of 50.87 feet; thence continuing along the boundary lines of said Parcels 1 Page 1 JUlll 1995 ITEM 7 .,. 31 of 43 1260 and 2 the following courses: North 64029'41" West 234.90 feet (North 64014'33" West 234.83 feet Record); thence South 25029'31" West 241.51 feet (South 25045'01" West 241.69 feet Record); thence South 37026'05" East 355.93 feet (South 37012'13" East 355.94 feet Record); thence South 05040'02" West 71.98 feet (South 05054'33" West 71.88 feet Record); thence North 82054'02" West 249.89 feet(North 82040'29" West 249.91 feet Record); thence North 89011 '24" West 273.82 feet (North 88058'04" West 273.30 feet Record); thence North 89009'59" West 1 277.18 feet (North 88056'35" West 1277.25 feet Record); thence North 00016'47- East 1299.57 feet (North 00030'30" East 1299.58 feet Record); thence along the Westerly line of said Parcel 1 the following courses: South 88033'36- East 1291.17 feet (North 88020'06" West 1291.04 feet Record); thence North 02020'01" East 1306.65 feet (North 02033'38" East 1306.44 feet Record); thence North 88045'5r West 1305.00 feet (North 88031'58" West 1305.00 feet Record); thence North 01 043'19" East 1301.76 feet (North 01057'00" East 1301.62 feet Record); thence South 88057'30" East 1319.00 feet (North 88044'18" West 1318.97 feet Record); thence North 87045'30" East 548.79 feet (North 87059'15- East 548.73 feet Record); thence North 23003'32" East 681.01 feet (North 23016'34" East 681.09 feet Record); thence North 00053'19" East 222.36 feet (North 01009'29" East 222.38 feet Record); thence South 88059'45" East 76.29 feet (North 88041'05" West 76.31 feet Record); thence North 03008'35" East 130.13 feet (North 03019'52" East 130.21 feet Record) to the Point of Beginning. . - Page 2 JUL 11 1995 ITEM 7 '. 32 of 43 - - 1263 - PARCEL C That portion of "Remainder Parcel" as shown in the most Southeasterly portion of Parcel Map No.1 7433 recorded October 14, 1994 as File No. 1994-605766, Page 17433, in the City of Poway, County of San Diego, State of California in the Office of the County Recorder of said County, being more particularly described as follows: Beginning at the Northerly terminus of that certain line designated as "North 03039'30" East, 27.65 feet" on the most Northeasterly line of said "Remainder Parcel"; thence along said line South 03030'12" West 27.80 feet (North 03039'30" East 27.65 feet Record) to an angle point on the Easterly line of said "Remainder Parcel"; thence continuing along said Easterly line South 00027'14" West 1412.33 feet (North 00041'06" East 1412.46 feet Record) to the Southeast corner of said "Remainder Parcel"; thence along the Southerly line of said "Remainder Parcel" North 82054'02" West 777.46 feet (North 82040'29" West 777.42 feet Record) to the Southwest corner of said "Remainder Parcel"; thence along the Westerly line of said "Remainder Parcel" North 05040'02" East 139.11 feet (North 05054'33" East Record) to the beginning of a tangent 1000.00 foot radius curve concave Southeasterly; thence continuing along said Westerly line Northeasterly along said curve through a central angle of 22048'18" an arc distance of 398.02 feet to the beginning of a non-tangent 226.00 foot radius curve concave Northerly to which a radial line bears South 13003'44" East; thence leaving said Westerly line Easterly along said 226.00 foot radius curve through a central angle of 00058'57" an arc distance of 3.88 feet; thence North 75057'19" East 163.25 feet; thence North 14002'41" West 52.00 feet; thence South 75057'19" West 115.86 feet; to the beginning of a non-tangent 1000.00 foot radius curve concave Southeasterly being the Westerly line of said "Remainder Parcel" to which a radial line bears North 57020'14" West; thence Northeasterly along said curve through a central angle of 06039'29" an arc distance of 116.20 feet; thence continuing along said Westerly line North 39018'48" East 866.89 feet (North 39031'46" East 867,29 feet Record) to the Point of Beginning. - Ck j) (' ~mdt Chris D. Ciremele L.S. 5267 1-24-95 Page 3 33 of 43 Jull1 1995 ITEM 7 ... ATTACHMENT NO. 3 SCOPE OF DEVELOPMENT I. GENERAL DESCRIPTION The Site is specifically delineated as Parcel 1 on City of poway Parcel Map No. 92 - 04 (Attachment No. 1) and the Legal Description (Attachment No. 2) pursuant to Section 103 of this Agreement. II . DEVELOPMENT The Participant shall be permitted to develop the Site as a residential community in accordance with City of poway Tentative Tract Maps 89-13 and 89-13-R (collectively "TTM") approved by the City of Poway. The Participant shall complete all of the improvements. set forth in this Scope of Development (Attachment No.3). All of the public improvements to be provided by the Participant which are required in connection with development of the Site pursuant to the Subdivision Improvement Agreement to be entered into between Participant and the City for the Site shall constitute the "Participant Improvements. " All of the Participant Improvements shall conform in design, configuration and appearance to the City's standard development requirements. The Participant shall commence and complete the Participant Improvements by the respective time frames established therefor in the Schedule of Performance. (Attachment No. 4) III . PUBLIC IMPROVEMENTS AND UTILITIES Subject to the provisions concerning agency assistance set out in this Agreement, the Participant shall, at its own cost and expenses, provide or cause to be provided the following Participant Improvements within the time frames set forth in the Schedule of Performance. (Attachment No. 4) A) Roadways All of the following roadway construction and improvements required as a portion of this project shall include the appropriate streets, catch-basins, curbs, gutters, drive and curb cuts, street lighting, signs, fire hydrants, and appropriate street landscaping. l. Old Coach Road - Old Coach Road shall be dedicated and constructed as a two-lane road from the intersection of Espola Road north to the Site. B) Water and Sewer l. Public Water System - Installation of a public water system within the Site. c,\envdev\OWNPARTS.AGT 3 JUL 11 1995 ITEII 7 .. 34 of 43 - - 2 . Public Sewer System - Installation of a public sewer ~- system within the Site. 3. Reclaimed Water Line - Installation of a trunk reclaimed water line in or along streets within the Site necessary to irrigate common area slopes and nonresidential landscaping. IV. DEMOLITION AND SOILS The Participant assumes all responsibility for surface and subsurface conditions at the Site, and the suitability of the Site for the Participant Improvements thereon. If the surface and subsurface conditions are not entirely suitable for such development, the Participant shall, at its cost, take all actions necessary to render the Site entirely suitable for such development. The Participant shall undertake at its cost all demolition required in connection with the development of the Participant Improvements. - c,\envdev\OWNPARTS.AGT 4 JUL 11 1995 ITEM 7 't'f 35 of 43 ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE I. CONSTRUCTION DOCUMENTS 1. Submission of Construction Drawinqs and Final Man. Participant shall on or before September 1, 1996 submit to the Agency and the City a Final Map for the Site and complete construction (working) drawings, including Improvement Plans, Grading Plans, and Landscaping Plans. 2 . Initial Review of Construction Drawinqs and Final Man. The Agency shall review the Final Map, Improvement Plans, Grading Plans and Landscaping Plans and transmit comments to Participant within 45 days after initial submittal and will use its reasonable efforts to cause the City to do likewise. 3. Revisions. Participant shall prepare revised Final Map, Improvement Plans, Grading Plans, and Landscaping Plans as necessary, and re-submit them to Agency and the City for continued review wi thin 30 days after receipt of Agency's or City's comments. The Agency shall review the revisions submitted by the Participant within four weeks (and will use its reasonable efforts to cause the City to do likewise) provided that the Participant has adequately addressed the City's or Agency's comments. The Agency and the City shall have the right to make such comments and request revisions on more than one occasion. 4. Final Review. The Agency shall approve the revisions submitted by Participant, provided the Agency's comments have been accommodated, within two weeks after re- submittal by Participant. The Agency will use its reasonable efforts to cause the City to do likewise. 5. Securitv and Subdivision Imnrovement Aareement. Once Agency and City have approved Final Map, Improvement Plans, Grading Plans and Landscaping Plans and Partici- pant has completed all conditions required to obtain the Final Map to the satisfaction of the City, the City will be notified by Agency so that a Council meeting can be scheduled. A Subdivision Improvement Agreement will be entered into between City and Participant and Participant will post all required security with the City. 6 . Delav To Extend Period of Construction. Any unreasonable delay by the Agency or the City in their review and approval of the Final Map, Improvement Plans, Grading Plans or Landscaping Plans shall extend by the number of days of such delay the period by which the Participant Improvements must be completed pursuant to II below. c:\envdev\OWNPARTS,AG7 1 JUL 11 1995 ITEM 7 36 of 43 - - II . CONSTRUCTION PHASE - 7. Commencement of Construct ion. Participant shall commence construction of the Participant Improvements (See Attachment No. 3 ) after the bonds have been posted by Participant and the City has approved the Subdivision Improvement Agreement, or the issuance of a grading permit, whichever occurs first. 8. Comoletion of Construction. Participant shall complete construction of all the Participant Improvements located on the Site by September 1, 1998. Participant's obligation to construct and complete the Participant Improvements is subject to the Agency or City obtaining all necessary easements and any delay in the obtaining of such easements shall extend such time limit if such delay resulted in delays in road construction. III. GENERAL CONDITIONS 9. Submittal of the construction drawings for the Participant Improvements, more fully described in Attachment No. 3, need not occur concurrently. 10. Upon mutual written consent by both Participant and Agency, this Schedule of Performance may be modified. 11. Upon the execution of the Agreement by the Participant and the Agency, the Agency shall cause the Agreement to be recorded. Upon recording of the Agreement, the Agency shall deliver one (1) copy thereof to the Participant no later than thirty (30) days after the date of recording. - c:\envdev\OWNPARTS.AGT 2 JUL 11 1995 ITEM 7 ..""...i 37 of 43 ATTACHMENT NO. S (intentionally omitted) c,\envdev\OWNPARTS.AGT 1 JUL 11 1995 ITEM 7 11 38 of 43 - - ATTACHMENT NO. 6 -- CERTIFICATE OF COMPLETION (to be attached) - -- c:\envdev\OWNPARTS.AGT 1 JUlll1995 ITEII 7 .. 39 of 43 RESOLUTION NO. R- A RESOLUTION OF THE POWAY REDEVELOPMENT AGENCY OF THE CITY OF POWAY, CALIFORNIA, APPROVING AN OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE AGENCY AND ENVIRONMENTAL DEVELOPMENT, LTD. DETERMINING THAT THE CONSTRUCTION AND ACQUISITION OF CERTAIN PUBLIC IMPROVEMENTS ON OR ADJACENT TO THE SITE IS OF BENEFIT TO THE PAGUAY REDEVELOPMENT PROJECT AND THE IMMEDIATE NEIGHBORHOOD IN WHICH THE PROJECT IS LOCATED; DETERMINING THAT THERE ARE NO OTHER REASONABLE MEANS OF FINANCING SAID IMPROVEMENTS; AND AUTHORIZING THE EXECUTION AND DELIVERY OF SAID OWNER PARTICIPATION AGREEMENT WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to carry out the redevelopment of the Paguay Redevelopment Project Area ("Project Area") and; WHEREAS, the Redevelopment Plan for the Project area authorizes and directs the Agency to pay all or part of the cost of the acquisition of certain public improvements; and WHEREAS, the Agency desires to enter into an Owner Participation Agreement ("OPA") with Environmental Development, Ltd. ("Participant"), substantially in the form presented to the Agency at the meeting at which this resolution was adopted; and WHEREAS, pursuant to the OPA, the Agency is required to provide financial support toward the construction of those certain public improvements referenced in the OPA, particularly Section 205; and WHEREAS, the "Site" (as defined in the OPAl and the immediate adjacent area is deficient in respect to infrastructure to such an extent that it is not finanCially feasible for the necessary improvements to be provided either by private enterprise acting alone or by means of assessment district without direct Agency contribution toward the efforts of such a district; and WHEREAS, California Health and Safety Code Section 33445 provides that a redevelopment agency may, with the consent of the legislative body, pay all or part of the value of publ ic buildings, facil ities, structures or other improvements upon a finding that such public improvements are of benefit to the project area or the immediate neighborhood in which the project is located and that there are no other reasonable means of financing such publiC improvements available to the community. NOW, THEREFORE, THE POWA Y REDEVELOPMENT AGENCY DOES HEREBY RESOLVE AS FOLLOWS: Section 1: The Agency hereby approves the form of the OPA wh i ch the Participant presented to the Agency at the meeting at which this resolution was adopted, and hereby authori zes the Cha i rman and Secretary of the Agency to execute said OPA and any and all documents and instruments required in order to consummate the improvement transactions contemplated by the OPA on behalf of the Agency. Section 2: The Agency hereby determines that the acquisition, construction and installation of the Public Improvements is of benefit to the Project Area and the surrounding neighborhood in which the project is located. JUL 11 1995 ITEM 7 40 of 43 Attachment 2 - - Resolution No. R-95- Page 2 Section 3: The Agency hereby determines that it is appropriate to cause the construction and installation of the public improvements, that it is appropriate to acquire the publ ic improvements, and that there are no other reasonable means of financing the public improvements. Section 4. This resolution shall become effective upon the adoption of a resolution by the City Counc il of the City of Poway, finding that the construction and acquisition of the public improvements by the Agency is of benefit to the Project Area and the immediate neighborhood in which the project is located, and that there are no other reasonable means of financing the public improvements. PASSED, ADOPTED AND APPROVED by the Redevelopment Agency of the City of Poway, California at a regular meeting thereof this 11th day of July, 1995. Don Hig9inson, Chairman ATTEST: -- Marjorie K. Wahlsten, Secretary STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, Secretary of the Poway Redevelopment Agency, do hereby certify that the foregoin9 Resolution No. R 95- was duly adopted by the Poway Redevelopment Agency at a meeting of said Agency on the 11th day of July, 1995, and that it was so adopted by the following vote: AYES: NOES: ABSTAIN: ABSENT: MarJorie K. Wahlsten Secretary - c; \dat8'egenda\opaedevr. res 41 of 43 JUL 11 1995 ITEM 7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA APPROVING AN OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY AND ENVIRONMENTAL DEVELOPMENT, LTD. DETERMINING THAT THE CONSTRUCTION AND ACQUISITION OF CERTAIN PUBLIC IMPROVEMENTS ON OR ADJACENT TO THE SITE IS OF BENEFIT TO THE PAGUAY REDEVELOPMENT PROJECT AND THE IMMEDIATE NEIGHBORHOOD IN WHICH THE PROJECT IS LOCATED; DETERMINING THAT THERE ARE NO OTHER REASONABLE MEANS OF FINANCING SAID IMPROVEMENTS; AND AUTHORIZING THE EXECUTION AND DELIVERY OF SAID OWNER PARTICIPATION AGREEMENT WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to carry out the redevelopment of the Paguay Redevelopment Project Area ("Project Area") and; WHEREAS, the Redevelopment Plan for the Project area authorizes and directs the Agency to pay all or part of the cost of the acquisition of certain public improvements; and WHEREAS, the Agency desires to enter into an Owner Participation Agreement ("OPA") with Environmental Development, Ltd. ("Participant"), substantially in the form presented to the Agency at the meeting at which this resolution was adopted; and WHEREAS, pursuant to the OPA, the Agency is required to provide financial assistance toward the construction of those certain public improvements referenced in the OPA, particularly Section 205; and WHEREAS, the "Site" (as defined in the OPAl and the immediate adjacent area is deficient in respect to infrastructure to such an extent that it is not financially feasible for the necessary improvements to be provided either by private enterprise acting alone or by means of assessment district without direct Agency contribution toward the efforts of such a district; and WHEREAS, California Health and Safety Code Section 33445 provides that a redevelopment agency may, with the consent of the legislative body, pay all or part of the value of public buildings, facil ities, structures or other improvements upon a finding that such public improvements are of benefit to the project area or the immediate neighborhood in which the project is located and that there are no other reasonable means of financing such public improvements available to the community. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES HEREBY RESOLVE AS FOLLOWS: Section 1: The City Council hereby approves the form of the OPA with the Participant presented at the meeting at which this resolution was adopted. Section 2: The City Council hereby determines that the acquisition, construction and installation of the public improvements is of benefit to the Project Area and the surrounding neighborhood in which the project is located. JUL 11 1995 ITEM 7 , 42 of 43 Attachment 3 - Resolution No. 95- Page 2 - Section 3: The City Council hereby determines that it is appropriate for the public improvements to be acquired, or cause the construction and installation of the public improvements, and that there are no other reasonable means of financing the public improvements. Section 4. The City Council consents to the provisions of assistance by the Agency for the development of the public improvements. PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway, California at a regular meeting thereof this 11th day of July, 1995. Don Higginson, Mayor ATTEST: Marjorie K. Wahlsten, City Clerk STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby certify that the foregoing Resolution No. 95- was duly adopted by the City Council at a meeting of said Council on the 11th day of July, 1995, and that it was so adopted by the following vote: AYES: NOES: ABSTAIN: ABSENT: MarJorie K. Wahlsten City Clerk c: \dat.'8gende\opaedeVC. res JUL 11 1995 ITEM 7 ...., 43 of 43