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Development Agreement 1991-0282464! 10 61 D�OC* 0 L 1991 - � 13-JON-1991 08 :30 RECORDING REQUESTED BY: ) SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EVANS, COUNTY RECORDER City of Poway ) RF: 33.00 FEES: 65. 00 AF: 31.00 WHEN RECORDED, MAIL TO: ) CIF: 1.00 City Clerk ) City of Poway ) P.O. Box 789 ) Poway, CA 92064 ) No Transfer Tax Due (This space for Recorder's use) DEVELOPMENT AGREEMENT Dated as of June 13, 1991 by and between CITY OF POWAY and MCMILLIN EQUITY PARTNERS II 0 TABLE OF CONTENTS 1. RECITALS . . . . . . . . . . . . . . . 0 100 1.1 Statutory Authority. . . . . . . . . . . . . . . 1.2 Interest in Property . . . . . . . . . . . . . . . . 1.3 Intent of the Parties. . . . . . . . . . . . . . . 1.3.1 General Intent . . . . . . . . . 1.3.2 Infrastructure Costs and Need for Certainty . . . . . . . . . . . . . . . . 1.3.3 Applicable Standards . . . . . . . . . . 1.3.4 Satisfaction of Tentative Map Condition . 1.4 Mutual Consideration . . . . . . . . . . . . . . . 1.5 Reliance of Developer . . . . . . . . . . . . . . . 1.6 Notice . . . . . . . . . . . . . . . . . . . . . . 1.7 City Council Findings . . . . . . . . . . . . . . . 1.8 City Ordinance. . . . . . . . . . . . . . . . . . 2. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 3. 1 1 1 1 2 2 2 3 3 3 3 4 4 2.1 Binding Effect of Development Agreement . . . . . . 4 2.2 Exercise of Governmental Powers . . . . . . . . . . 4 2.3 Relationship of the Parties . . . . . . . . . . . . 5 2.4 Duration of this Agreement . . . . . . . . . . . . 5 2.4.1 Delay, Extension of Time for Performance . . 5 2.5 Discretion to Encumber . . . . . . . . . . . . . . 6 DEVELOPMENT OF THE PROPERTY AND VESTING OF DEVELOPMENT RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.1 General Statement . . . . . . . . . . . . . . . . . 6 3.2 Existing Rules to Govern . . . . . . . . . . . . . 6 3.3 Permitted Uses . . . . . . . . . . . . . . . . . . 7 3.4 Permitted Density of Development . . . . . . . . . 7 3.5 Maximum Height and Size of Structures . . . . . . . 7 3.6 Reservations and Dedications of Lands for Public Purposes . . . . . . . . . . . . . . . . . . . . . 7 3.7 Timing of Development . . . . . . . . . . . . . . . 8 3.8 Public Improvements . . . . . . . . . . . . . . . . 8 3.8.1 Obligations of the Developer . . . . . . . . 8 3.8.2 Obligations of the City . . . . . . . . . . 9 3.9 Water and Sewer Service . . . . . . . . . . . . . . 10 3.10 Permissions from Adjacent Property Owners . . . . . 10 3.11 Permitted Conditions and Fees . . . . . . . . . . . 10 3.12 Processing of Applications and Permits . . . . . . 10 3.13 Cooperation in Securing Government Permits . . . . 11 3.14 Development Review . . . . . . . . . . . . . . . . 11 0: \5 \5546 \41858 \AGTDEVEL.V11 — i — 5/15/91 (10:30am)- CLE:sh 10 6 3.15 Amendments to Development Documents . . . . . . . . 11 3.16 Benefit of Earlier Vesting . . . . . . . . . . . . 11 3.17 Moratoria . . . . . . . . . . . . . . . . . . . . . 12 4. FINANCING OF PUBLIC FACILITIES . . . . . . . . . . . . . 12 4.1 Restriction on Special Districts . . . . . . . . . 12 4.2 Reimbursement Agreements . . . . . . . . . . . . . 12 5. CHANGES IN LAW . . . . . . . . . . . . . . . . . . . . . 13 5.1 Requirements in Conflict with The Development Plan . . . . . . . . . . . . . . . . . . . . . . . 13 5.2 Changes in Federal and State Law . . . . . . . . . 13 5.3 Application of Subsequently Revised Application, Processing and Inspection Fees . . . . . . . . . . 14 5.4 Subsequent Approvals and Permits of City . . . . . 14 5.5 Periodic Review of Compliance . . . . . . . . . . . 14 6. AMENDMENT, ASSIGNMENT OR DELEGATION . . . . . . . . . . 15 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . 15 6.1 .1 Public Hearing . . . . . . . . . . . . . . . 15 6.1.2 Future Development Approvals . . . . . . . . 15 6.1.3 Non - substantial Amendments . . . . . . . . . 16 6.2 Assignment . . . . . . . . . . . . . . . . . . . . 16 6.3 Delegation . . . . . . . . . . . . . . . . . . . . 16 6.4 Transfer to McMillin Communities, Inc. . . . . . . 16 6.5 Release of Obligation . . . . . . . . . . . . . . . 17 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 17 7.1 Venue . . . . . . . . . . . . . . . . . . . . . . . 17 7.2 Applicable Law . . . . . . . . . . . . . . . . . . 17 7.3 Attorneys' Fees . . . . . . . . . . . . . . . . . . 17 7.4 No Waiver . . . . . . . . . . . . . . . . . . . . . 17 7.5 Private Project . . . . . . . . . . . . . . . . . . 17 7.6 No Agency Created . . . . . . . . . . . . . . . . . 17 7.7 No Third Party Beneficiaries . . . . . . . . . . . 18 7.8 Covenant of Good Faith and Fair Dealing . . . . . . 18 7.9 Consent . . . . . . . . . . . . . . . . . . . . . . 18 7.10 Enforcement . . . . . . . . . . . . . . . . . . . . 18 7.11 Notices . . . . . . . . . . . . . . . . . . . . . . 18 7.12 Remedies . . . . . . . . . . . . . . . . . . . . . 19 7.12.1 Exception . . . . . . . . . . . . . . . . . 19 7.13 Entire Agreement . . . . . . . . . . . . . . . . . 19 7.14 Severability . . . . . . . . . . . . . . . . . . . 19 7.15 Counterparts . . . . . . . . . . . . . . . . . . . 19 0: \5 \5546 \41858 \AGTDEVEL.V11 - ii - 5/15/91 (10:30am)- CLE:sh 0 0 100.7 THIS DEVELOPMENT AGREEMENT ( "Development Agreement ") is made and entered into by and between the CITY OF POWAY, a municipal corporation organized and existing under the laws of the State of California ( "City "), and MCMILLIN EQUITY PARTNERS II, a California limited partnership ( "Developer "). 1. RECITALS 1.1 Statutory Authority. California Government Code Sections 65864, et seq., provide that the legislative body of a city may enter into a binding development agreement for the development of real property in order to vest certain rights in the developer and to meet certain public purposes of the local government. The City Council for the City has previously adopted Ordinance No. 177 establishing procedures and requirements for the approval of development agreements. Such ordinance has been made a part of the Poway Municipal Code as Chapter 17.53. The Developer has applied to the City pursuant to California Government Code Sections 65864- 65859.5 and the City's Ordinance No. 177 for approval of a development agreement providing for the agreements of the parties set forth herein. 1.2 Interest in Property. The Developer has the entire legal interest in the real property located in the City and in the County of San Diego, California, known as the McMillin South Poway Project (the "Development "), and more particularly described in Exhibit "A" attached hereto (the "Property ") and incorporated herein by reference, which is the subject of this Development Agreement. 1.3 Intent of the Parties. 1.3.1 General Intent. The City and the Developer desire to enter into this Development Agreement in order to achieve the development of the residential, commercial, recreational, open space and public uses of the Property, and the provision of public services, public uses and urban infrastructure all in the promotion of the health, safety, and general welfare of the City. Such development shall be in accordance with the City of Poway General Plan ( "General Plan "), approved by the City pursuant to Resolution No. 83- 066, on September 20, 1983, and on file with the City Clerk and incorporated herein by reference; the South Poway Planned Community Development Plan ( "Development Plan "), approved by the City pursuant to Resolution No. P- 85 -44, on July 30, 1985, and on file with the City Clerk and incorporated herein by reference; the final Environmental Impact Report ( "EIR ") for the Development Plan, approved by the City pursuant to Resolution No. P- 85 -45, on July 30, 1985, and on file with the City Clerk and incorporated herein by reference; the EIR 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 — 5/15/91 (10:30am)- CLE:sh 0 i 1063 Addendum for the Development, approved by the City pursuant to Resolution No. 87 -157, on December 22, 1987, and on file with the City Clerk and incorporated herein by reference; the Subsequent EIR for the Development Plan, approved by the City pursuant to Resolution No. 88 -074, on July 26, 1988, and on file with the City Clerk and incorporated herein by reference; the updated Environmental Initial Study for Tentative Tract Map ( "TTM ") 88 -04R, approved by the City pursuant to Resolution No. P- 90 -35, on May 15, 1990, and on file with the City Clerk and incorporated herein by reference; the Environmental Notice of Determination for TTM 88 -04R, issued by the City on May 15, 1990; TTM 88 -04R, approved by the City pursuant to Resolution No. P- 90 -35, on May 15, 1990, and on file with the City Clerk and incorporated herein by reference; and the "Interim Agreement Among the Poway Redevelopment Agency, City of Poway and McMillin Communities, Inc. Regarding Tentative Tract Map 88 -04R," ( "Interim Agreement "), adopted by the City by minute reference on March 19, 1991, attached hereto as Exhibit "B" and incorporated herein by reference. 1.3.2 Infrastructure Costs and Need for Certainty. The City and the Developer desire to enter into this Development Agreement in order to reduce or eliminate uncertainties in the development and construction process over which the City has control. Development of the Property will require the Developer to construct or contribute to the construction of substantial permanent public improvements early in the development and construction process. Certain development risks and uncertainties associated with the long- term nature of the Development, including the cost of the portion of those public improvements required to be installed at the inception of the Development, could discourage and deter the Developer from making the long -term commitments necessary to fully develop the Property. 1.3.3 Applicable Standards. The City and the Developer desire to establish as the standards in effect throughout the term of Development contemplated herein, the applicable zoning regulations, design guidelines, building standards, and all other development policies or regulations relative to the Development as the same exist as of the date of execution of this Development Agreement. 1.3.4 Satisfaction of Tentative Map Condition. The City and the Developer desire to enter into this Development Agreement to satisfy General Requirement and Approval Condition Number 20 of TTM 88 -04R which states: "It is intended that Developer be required to pay only their fair share of the costs (determined pursuant to the Subdivision Map Act) of satisfying the South Poway Parkway and Pomerado Road Conditions set forth above. Developer and the Poway Redevelopment Agency or City shall negotiate in good faith an 0: \5 \5546 \41858 \AGTDEVEL.V11 —2 — 5/15/91 (10:30am)- CLE:sh • • 106-4 Owner Participation Agreement (between Developer and the Agency), Development Agreement and /or Reimbursement Agreement (between the Developer and the City) which results in the financing and construction of the required improvements." 1.4 Mutual Consideration. The City will receive substantial benefits as a result of development of the Property in accordance with the Development Plan, including: residential housing of a low density that promotes the aesthetic quality desired by the City and the community; commercial improvements; dedication of undisturbed open space; dedication of master - planned equestrian /pedestrian trails; dedication of right -of -way for South Poway Parkway from Pomerado Road to the western boundary of the Property; dedication of right -of -way for Pomerado Road from South Poway Parkway to the City's southerly limits; improvement of Pomerado Road to four lanes from South Poway Parkway to the City's southerly limits; enhancement of the financial base of the City through increased assessed valuation for the Redevelopment Agency of the City; the installation of needed public infrastructure improvements, including a total infrastructure system for roads, water, sewer, utilities, and drainage. This Development Agreement also will promote and encourage the development of the Property by providing the Developer and its creditors with a greater degree of certainty of the Developer's ability to complete expeditiously and economically the development effort. The parties agree that the consideration to be received by the City pursuant to this Development Agreement and the rights secured to the Developer hereunder constitute sufficient consideration to support the covenants and agreements of the City and the Developer. 1.5 Reliance of Developer. The Developer is relying on the rights vested by this Development Agreement and the City recognizes that the Developer might be subject to substantial liability if the City were to alter or interfere with such rights. 1 .6 Notice. The City has given notice of intention to adopt this Development Agreement and has conducted public hearings thereon pursuant to California Government Code Section 65867, and the City's Ordinance No. 177. .7 City Council Findings. The City Council finds that: (a) The provisions of this Development Agreement are consistent with the General Plan and the Development Plan. (b) This Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Development Plan. (c) This Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located. 0: \5 \5546 \41858 \AGTDEVEL.V11 —3 — 5/15/91 (10:30am)- CLE:sh • 1p;j (d) This Development Agreement is in conformity with public convenience, general welfare and good land use practice. (e) The Development will promote the health, safety and general welfare of the City. (f) The Development will promote the orderly development of the Property and the preservation of property valued. (g) This Development Agreement provides for an efficient use of resources, moderates the cost of housing and other development to the consumer, and encourages investment in and commitment to comprehensive planning which makes maximum efficient utilization of resources at the least economic cost to the public. (h) This Development Agreement strengthens the public planning process, encourages private participation in comprehensive planning, and reduces the economic costs of development and government. (i) This Development Agreement insures that adequate public facilities will be built to meet the needs of new housing within the Development, including, but not limited to, streets, sewerage, transportation, drinking water, school and utility facilities. 1.8 City Ordinance. On May 14, 1991, the City adopted Ordinance No. 340 approving this Development Agreement. The ordinance became effective on June 13, 1991. 2. GENERAL PROVISIONS 2.1 Binding Effect of Development Agreement. This Development Agreement pertains to the Property as described in Exhibit "A ". The burdens of this Development Agreement are binding upon, and the benefits of this Development Agreement inure to, all successors -in- interest of the parties to this Development Agreement, and constitute covenants which run with the Property, and in order to provide continued notice thereof, this Development Agreement will be recorded by the parties. 2.2 Exercise of Governmental Powers. The City acknowledges that by electing to enter into contractual agreements such as this one, the obligations of which shall survive beyond the term or terms of the present City Council members, that such action will serve to bind the City and future City Councils to the obligations thereby undertaken, and this Development Agreement shall limit the 0: \5 \5546 \41858 \AGTDEVEL.V11 —4 — 5/15/91 (10:30am)- CLE:sh • 0 10 %1 future exercise of certain governmental and proprietary powers of the City. By obligating the City pursuant to this Development Agreement, the City Council has elected to exercise certain governmental and proprietary powers at the time of entering into this Development Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Development Agreement have undergone extensive review by the City and its City Council and have been found to be fair, just and reasonable, and the City has concluded that the economic interests of its citizens and the public health, safety and welfare will be best served by entering into this obligation. 2.3 Relationship of the Parties. It is hereby specifically understood and acknowledged that the Development is a private project and that neither the City nor the Developer will be deemed to be the agent of the other for any purpose whatsoever. 2.4 Duration of this Agreement. The original term ( "Term ") of this Development Agreement is ten (10) years from its effective date; provided, however, that this Development Agreement shall be deemed cancelled and of no further force or effect with respect to any legal lot within the Development upon the completion of all building and related improvements within the individual phase of development which includes any such lot. Upon any such completion, either party may request the other to execute documentation confirming such cancellation, the approval of which shall not be unreasonably withheld or delayed. It has been, and continues to be understood and agreed that, if, at the end of the Term, the Developer is in the process of developing the Property and the construction of at least fifty percent (50%) of the required infrastructure improvements has been completed, the Term shall be extended until such construction is completed, not to exceed an additional five (5) years after expiration of the Term. Pursuant to California Government Code Section 66452.6, TTM 88 -04R shall also be extended so that it shall remain valid for a period equal to the Term, as may be extended by this Development Agreement. 2.4.1 Delay, Extension of Time for Performance. If the Developer has proceeded in good faith, but has been prevented from developing the Property within the time frames set forth in this Development Agreement by circumstances beyond the Developer's control, including but not limited to, strikes, lockouts, unavailability of materials, unavailability of water, riots, civil insurrection, abnormal forces of elements, judicial injunctions, Acts of God, or delays caused by the City, or other local, State or Federal agencies, the Term shall be extended for an additional period equal to the period of such delay or delays. 0: \5 \5546 \41858 \AGTDEVEL.V11 —5 — 5/15/91 (10:30am)- CLE:sh � • l 0;, 2.5 Discretion to Encumber. This Development Agreement shall not prevent or limit the Developer in any manner, at the Developer's sole discretion, from encumbering the Property or any portion of any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain modifications to this Development Agreement and the City agrees, upon request, from time -to -time, to meet with the Developer and /or representative of such lenders to negotiate in good faith any such request for modification. The City further agrees that it will not unreasonably withhold its consent to any such requested modification. 3. DEVELOPMENT OF THE PROPERTY AND VESTING OF DEVELOPMENT RIGHTS 3.1 General Statement. As a material inducement to the Developer and its lenders to continue with diligent efforts to promote the development of the Property, the City desires to cause all development rights which may be required to develop the Property consistent with the Development Plan to be deemed vested in the Developer as of the date of execution of this Development Agreement. Except as expressly provided in this Development Agreement, the Developer is free of all discretionary rights of the City or any body or agency thereof to impose any subsequent restrictions or building moratoria on the Property or Development. The City may impose only those restrictions or moratoria which it has adopted in accordance with State law for the public health and safety in the case of emergency. 3.2 Existing Rules to Govern. The Developer shall have the vested right, to the fullest extent allowed under the State Development Agreement legislation (Government Code Section 65864, et seq.) and except as expressly restricted in this Development Agreement, to develop the Project in accordance with the rules, regulations, policies, fees (including development impact fees), exactions, conditions, design, improvement and construction standards, growth management requirements, environmental rules, and phasing controls of the City and its special districts and agencies ( "Existing Development Policies ") which govern development of the Property and which are in effect as of the date of execution of this Development Agreement. No amendment to any of the Existing Development Policies of the City adopted by the City Council or other body or agency authorized to make such determination on behalf of the City shall be effective or enforceable by the City with respect to the Development, its design, grading, construction, remodeling, use or occupancy, schedule of development, or with respect to the Developer or its successors or assigns. 0: \5 \5546 \41858 \AGTDEVEL.V11 —6— 5/15/91 (10:30am)- CLE:sh • l4i 3.3 Permitted Uses. The Developer shall have the vested right to use and develop the Property for residential, commercial, recreational, open space and public purposes, in accordance with the Development Plan and TTM 88 -04R, and for such other uses that may be mutually agreed upon by the parties hereto in accordance with the applicable provisions of the Government Code relating to the amendment of development agreements. The City acknowledges that, from time to time, the Developer may seek to obtain, in accordance with the applicable provisions of state and local law, minor amendments to the Development Plan and TTM 88 -04R without the need for an amendment to this Development Agreement; provided, however, that any amendment which changes land use or increases the overall density or intensity of use shall require an amendment to this Development Agreement pursuant to Paragraph 6.1 herein. 3.4 Permitted Density of Development. The Developer shall have the vested right to develop the Property to the density or level of intensity indicated in the Development Plan, TTM 88 -04R, and applicable zoning ordinances in effect as of the date of execution of this Development Agreement. With respect to any building(s) which the Developer proposes to construct as part of the Development which would result in a density or intensity which is equal to or less than that set forth in the Development Plan, no consent or approval of the City or any department thereof shall be required; provided, however, development review shall be conducted pursuant to Chapter 17.52 of the Poway Municipal Code and all required building permits shall be obtained. 3.5 Maximum Height and Size of Structures. The maximum height and size of structures to be constructed upon the Property shall be governed by the provisions of the Development Plan, TTM 88 -04R, and applicable zoning ordinances in effect as of the date of execution of this Development Agreement. With respect to any structure(s) which the Developer proposes to construct as part of the Development and for which the proposed size and height is equal to or less than that set forth in the Development Plan, no consent or approval of the City or any department thereof shall be required; provided, however, development review shall be conducted pursuant to Chapter 17.52 of the Poway Municipal Code and all required building permits shall be obtained. 3.6 Reservations and Dedications of Lands for Public Purposes. The Developer shall reserve and /or dedicate for public purposes those portions of the Property designated in TTM 88 -04R. The City and the Developer further understand and agree that except for the conditions imposed in connection with the approval of TTM 88 -04R, no reservations or dedications of land within the Development shall be required by the City, nor shall the City require the Developer to install and /or pay for any on -site or off -site improvements or facilities except as expressly provided in TTM 88 -04R as part of the conditions imposed in connection with 0: \5 \5546 \41858 \AGTDEVEL.V11 —7 — 5/15/91 (10:30am)- CLE:sh 0 0 10,�, I the approval of TTM 88 -04R, or as otherwise agreed to in writing by the City and the Developer. 3.7 Timing of Development. The City acknowledges that the most efficient and economic development of the Property depends upon numerous factors such as market orientation and demand, interest rates, competition, and similar factors and that it is most economically beneficial to the ultimate purchasers to have the rate of development determined by the Developer. Accordingly, the timing, sequencing, and phasing of development shall be as determined by the Developer in its sole discretion, based upon its business judgment and discretion. 3.8 Public Improvements. 3.8.1 Obligations of the Developer. The Developer shall develop the Property in accordance with the conditions contained in Resolution No. P -90 -35 for TTM 88 -04R, including the public improvements described therein. The Developer's contributions to public improvements shall include the following: 3.8.1.1 The Developer, in complete satisfaction of the obligations under TTM 88 -04R to contribute to the construction of South Poway Parkway from Pomerado Road to the westerly boundary of the City shall contribute to the Poway Redevelopment Agency ( "Agency ") a portion of the costs of construction as follows: DATE CONTRIBUTION April 1, 1992, or upon the $ 459,000.00 completion and acceptance by the City of that portion of the South Poway Parkway road improvements which are the responsibility of the Agency, whichever is later.$ 459,000.00 Unit 2 Final Map Recording $ 918,000.00 Total Contribution $1,377,000.00 The City and the Developer further agree that in the event that the conditions in existence as of March 19, 1991, substantially change so as to make it infeasible for the Developer to perform in a timely manner, the contribution schedule contained in this Paragraph 3.8.1.1 may be considered for amendment. 0: \5 \5546 \41858 \AGTDEVEL.V11 —8 — 5/15/91 (10:30am)- CLE:sh 1° 3.8.1.2 In anticipation of this Development Agreement, the Developer has dedicated to the City the necessary right -of -way for South Poway Parkway, and has provided easement plats, slope rights documents and permission to grade as needed to facilitate the construction of the South Poway Parkway road improvements located along the Property's frontage. 3.8.1.3 The Developer shall allow the City, subject to the provisions and conditions of this Agreement, to dispose of as much excess dirt generated by the South Poway Parkway grading operation as is feasible and consistent with the Developer's development plans for the Property, subject to a finding of substantial conformance with approved TTM 88 -04R. 3.8.1.4 The Developer shall construct the improvements necessary to complete Pomerado Road from Creek Road to the southerly boundary of the City, as the design for such improvements existed as of March 19, 1991. 3.8.1.5 In anticipation of this Development Agreement, the Developer has assigned to the City any rights the Developer has (without warranty) in the Church Engineering plans and specifications for South Poway Parkway. 3.8.2 Obligations of the City. In connection with the Developer's contributions to public improvements, the City shall: 3.8.2.1 Cause the construction of the road improvements for all of South Poway Parkway from Pomerado Road to the westerly boundary of the City according to a schedule to be determined by the City and the Developer. The City shall have the responsibility for paying all costs of construction, including costs of preparation of that portion of the Property designated in the Church engineering plans and specifications to accept excess dirt generated by the South Poway Parkway grading operation, costs of placement and compaction of all excess dirt to the satisfaction of the Developer, in its sole discretion, and costs of inspection and certification by a licensed soils engineer acceptable to the Developer. 3.8.2.2 Cooperate with the Developer to achieve the vacation and /or acquisition of all portions of Old Pomerado Road needed to facilitate the completion of the Development in a timely manner. 0: \5 \5546 \41858 \AGTDEVEL.V11 —9 — 5/15/91 (10:30am)- CLE:sh 0 • to 'e s 3.8.2.3 Allow the Developer the right to review any revisions to the plans and specifications for the construction of South Poway Parkway, in order to assure, to the Developer's satisfaction, that the revisions are compatible with the design of the Development. Additionally, the City shall cooperate with the Developer during the construction of road improvements to assure, to the Developer's satisfaction, that the improvements are compatible with the design of the Development. 3.8.2.4 Process for approval the application for Boundary Adjustment No. 90 -07 to Lots 119, 120, and 121 of TTM 88 -04R as previously agreed between the City and the Developer. 3.8.2.5 Grant a credit to the Developer, to the extent allowed under the City's Traffic Mitigation Impact Fee Ordinance, for the Developer's construction of, or contribution toward, the construction of Pomerado Road. 3.9 Water and Sewer Service. Subject to the mandates of the County Water Authority, the City shall provide both adequate water (including construction water) and sewer service upon request for efficient development of the Property. In the event that the City is unable because of the mandates of the County Water Authority to provide water to development under construction within the City's jurisdiction, the City may be excused from this requirement during the period of such inability. The City considers the Development to be necessary to the public welfare. The Development will provide public infrastructure necessary to the protection of the public health and safety. It is thus the intent of this Paragraph to give the Developer an equal status with existing customers under any water allocation system imposed. 3.10 Permissions from Adjacent Property Owners. The City shall cooperate with the Developer as needed to obtain necessary permissions from adjacent property owners in order to locate /place temporary power facilities and to grade on adjoining properties. 3.11 Permitted Conditions and Fees. The City agrees that at the time of granting any subsequent discretionary approvals, or issuing any permits, in connection with the Development or any part thereof, it shall not impose assessments, fees, taxes or exactions, except for those application, processing and inspection fees identified in Paragraph 5.3 of this Development Agreement and the assessments, fees, taxes or exactions specifically included in the City's ordinances, resolutions and written policies in effect as of the date of execution of this Development Agreement. 3.12 Processing of Applications and Permits. The City shall accept the processing and review of all development applications and permits or other entitlements with respect to the development 0: \5 \5546 \41858 \AGTDEVEL.V11 —10— 5/15/91 (10:30am)- CLE:sh • • 1° %/P and the use of the Property on an expedited basis and in accordance with this Development Agreement. It is understood by the parties to this Development Agreement that, pursuant to existing law, certain permits and development review approvals may not remain valid for the term of this Development Agreement. Accordingly, the Developer shall have the right to file extensions or new permit or development review applications on portions of the Development where such previously approved permits or development review approvals are about to expire or have expired. Any such permit or development review application filed for the Development shall be reviewed in accordance with the Development Plan and the laws in effect as of the date of execution of this Development Agreement. Notwithstanding the foregoing, the expiration date of TTM 88 -04R shall be extended for the term of this Agreement. 3.13 Cooperation in Securing Government Permits. The City shall cooperate with the Developer in securing for the Developer all permits which may be required by the City or any other federal or state governmental agency. 3.14 Development Review. Nothing set forth herein shall impair or interfere with the right of the City to require the processing of building permits as required by law and to conduct its development review of any specific improvements proposed for the Development pursuant to Chapter 17.52 of the Poway Municipal Code; provided, however, no such review shall authorize or permit the City to impose any condition and /or withhold approval to any proposed building the result of which would be inconsistent with any term or provision of this Development Agreement. It is hereby further agreed that the basis for the City's development review shall be limited to architectural design and compatibility with the remainder of the Development. 3.15 Amendments to Development Documents. Any amendments or revisions of TTM 88 -04R, or any existing or subsequently granted development approvals that are consistent with the Development Plan, shall be made in conformance with those rules, regulations, policies, initiatives and ordinances in effect as of the date of execution of this Development Agreement. No amendment or revision of TTM 88 -04R or any development approval shall include any conditions or any requirements for reservation or dedication of property not previously provided for in TTM 88 -04R. 3.16 Benefit of Earlier Vesting. Nothing in this Development Agreement shall be construed as affecting the Developer's earlier vested right, if any, to the development and use of the Property in the manner specified in this Development Agreement pursuant to the provisions of California's constitutional, statutory and decisional law; provided, however, that such vesting shall be consistent with the terms of the Interim Agreement and this Development Agreement as they pertain to General Requirement and Condition Number 20 of TTM 88 -04R. 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 1 — 5/15/91 (10:30am)- CLE:sh 3.17 Moratoria. Moratoria which are adopted by the City in accordance with State law for the public health and safety in the case of emergency and which are imposed on the Property or Development, shall toll the time periods for performance by the Developer set forth in this Development Agreement. 4. FINANCING OF PUBLIC FACILITIES 4.1 Restriction on Special Districts. The City and the Developer do hereby covenant and agree that during the term of this Development Agreement, no special tax or assessment district which includes property owned by the Developer in the Development will be created by the City or any agency or instrumentality of the City by ordinance, resolution, initiative or any other mechanism, other than the existing Paguay Redevelopment Area and those Landscape and /or Lighting Districts formed pursuant to the conditions of approval for TTM 88 -04R, unless the Developer expressly grants such authority and concurs in the creation of said district and the terms and conditions of assessments or special taxes to be levied thereunder. 4.2 Reimbursement Agreements. In connection with the development of the Property, the Developer shall comply with the obligations under TTM 88 -04R to advance the costs of design and construction of improvements to Pomerado Road from South Poway Parkway to the southerly City limits, a pressure reducing station between the 715 zone and the 865 zone, and other regional facilities required by TTM 88 -04R, to construct these facilities, and to accelerate their construction. The City recognizes that the Developer's responsibility, as a condition of proceeding with development of the Property, to fund or construct the facilities identified in this Paragraph 4.2 is not limited to facilities based upon the need for the specific facility created by development of the Property. The ultimate financial responsibility for a specific facility may be allocated among the owners of real property benefited by the facility pursuant to a formula or method which fairly distributes the net amount to be assessed among all accessible lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements, as established by Chapter 13.24 of Title 13 of the Poway Municipal Code ( "Chapter 13.24 "). The Developer may request the City to require subsequent developers /owners of property benefited by the facility to reimburse the Developer pursuant to the provisions of Chapter 13.24. Upon receipt of such request and subject to the public hearing process set forth in Chapter 13.24, the City shall require other developers /owners within the area of benefit to reimburse the Developer in proportion to the estimated benefit to be received by each lot or parcel. 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 2 — 5/15/91 (10:30am)- CLE:sh • 5. CHANGES IN LAW go '100�1 5.1 Requirements in Conflict with The Development Plan. The Developer shall be entitled to develop the Property in accordance with the Development Plan. The Property shall not be subject to any subsequently enacted amendment of the General Plan or similar plan which alters, or is in conflict with, the Development Plan. Additionally, development of the Property shall not be subject to any subsequently enacted development ordinances, policies, rules, regulations or standards. Finally, development of the Property shall be exempt from any subsequently enacted initiative or ordinance which limits the number of building permits which may be issued in any year. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties to provide for the timing of development resulted in a later- adopted initiative restricting the time of development to prevail over the development agreement of the parties. It is the intention of the parties to this Development Agreement to cure that deficiency by specifically providing that the Developer shall have the right to develop the Property in such order, at such rate, and at such time as the Developer deems appropriate subject only to the provisions of this Development Agreement. As a material part of this Development Agreement, the City agrees that it will not, except as otherwise specifically authorized by this Development Agreement, determine, or seek to have a judicial determination made, that the Property is subject to any subsequently enacted initiative or ordinance regulating the number of building permits which may be issued in any year. 5.2 Changes in Federal and State Law. The Property may be subject to subsequently enacted state or federal laws or regulations which preempt local regulations, or mandate the adoption of local regulations, and are in conflict with the Development Plan, or this Development Agreement. Upon discovery of a subsequently enacted federal or state law meeting the requirements of this section, each of the parties to this Development Agreement shall provide the other party with written notice of the state or federal law or regulation, provide a copy of the law or regulation, and a written statement of conflicts with the provisions of this Development Agreement. Promptly thereafter the parties shall meet and confer in good faith in a reasonable attempt to modify this Development Agreement, as necessary, to comply with such federal or state law or regulation. In such negotiations, the parties agree to preserve the terms of this Development Agreement and the rights of the Developer as derived from this Development Agreement to the maximum feasible extent while resolving the conflict. The City agrees to cooperate with the Developer in resolving the conflict in a manner which minimizes any financial impact of the conflict upon the Developer. 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 3 — 5/15/91 (10:30am)- CLE:sh • • lD J 5.3 Application of Subsequently Revised Application, Processing and Inspection Fees. The Developer is subject to application, processing, and inspection fees that are revised during the term of this Development Agreement, provided that: (1) such fees apply to all similar projects or permits within the City; (2) their application to the Property is prospective only as to application for building and other development permits or approvals of tentative subdivision maps not yet accepted for processing; and (3) their application would not prevent development in accordance with Section 3 of this Development Agreement. 5.4 Subsequent Approvals and Permits of City. The City shall not require the Developer to obtain any further discretionary approvals or discretionary permits for the development of the Property in accordance with the applicable Development Plan during the terms of this Development Agreement unless such approvals or permits, other than those allowed by the Development Plan, are required by the rules, regulations and official policies of the City in force at the date of execution of this Development Agreement or by the Development Plan. In the event any further approvals or permits are required by the City for the development of the Property during the term of this Development Agreement, the City agrees to grant all such approvals or permits to the Developer provided (i) the development authorized by such approvals or permits is in substantial conformance with the Development Plan and (ii) the Developer has complied with the rules, requirements and regulations for obtaining such approvals or permits in force at the date of execution of this Development Agreement, or as otherwise provided in this Development Agreement. The City agrees that the terms, conditions and requirements for such approvals or permits shall be established in light of the law existing at the date of execution of this Development Agreement and such terms, conditions and requirements shall not prevent development of the Property in substantial accordance with the Development Plan. 5.5 Periodic Review of Compliance. In accordance with California Government Code Section 65865.1, the City shall review this Development Agreement at least once each calendar year hereafter. At such periodic reviews, the Developer must demonstrate its good faith compliance with the terms of this Development Agreement. The Developer's duty to demonstrate may be satisfied by the presentation to the City of (1) a written report identifying the Developer's performance or the reasons for its excused performance, of the requirements of this Development Agreement, or (2) oral or written evidence presented at the time of review. The parties recognize that this Development Agreement and the documents incorporated herein could be deemed to contain thousands of requirements (i.e construction standards, landscape standards, etc.) and that evidence of each and every requirement would be a wasteful exercise of the parties' resources. Additionally, the parties recognize and acknowledge that this Development Agreement 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 4 — 5/15/91 (10:30am)- CLE:sh is not intended to impose on the Developer any specific schedule for the development, but rather is intended to enable the Developer to develop the Property consistent with the General Plan and Development Plan. Accordingly, the Developer shall be deemed to have satisfied its duty of demonstration when it presents evidence of its good faith effort to avoid the violation of any term of the Development Plan. In this regard, it is hereby agreed and acknowledged that the Developer shall be deemed to be in compliance with this Development Agreement notwithstanding the fact that subsequent to the most recent periodic review, the Developer has not undertaken any development on the Property or has undertaken development which is slower than that set forth in any published schedule, so long as market, financing, building or other conditions and factors then prevailing suggest that the schedule actually followed by the Developer is reasonably prudent under the circumstances. Generalized statements of evidence shall be accepted in the absence of evidence that such evidence is untrue. Either party may address any requirements of this Development Agreement provided, however, that the City shall provide ten (10) days notice of any requirement that it desires to be addressed by the Developer prior to taking action on the annual review. At the conclusion of such periodic annual review, the City's finding of good faith compliance by the Developer shall conclusively determine said issue up to the date of such findings for the purposes of future periodic reviews or legal action between the parties. The City further agrees to permit the Developer a reasonable period of time within which to effect the cure of any failure on the Developer's part to comply in good faith with the terms of this Development Agreement. M AMENDMENT, ASSIGNMENT OR DELEGATION 6.1 Amendment. This Development Agreement may be amended or cancelled in whole or in part only by mutual consent of the parties and in the manner provided in California Government Code Sections 65868, 65867 and 65867.5. The term "Development Agreement" herein shall include any such amendment properly approved and executed. 6.1.1 Public Hearing. Any amendment to this Development Agreement which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation of land, conditions, the terms, restrictions and requirements relating thereto, subsequent discretionary actions, or any conditions or covenants relating to the use of the Development shall not require a public hearing before the parties execute an amendment hereto. 6. 1 .2 Future Development Approvals. The f u t u r e approval of any discretionary or ministerial approval will not 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 5 — 5/15/91 (10:30am)- CLE:sh • • log ti require an amendment to this Development Agreement, provided that such approvals are substantially in conformance with the Development Plan and TTM 88 -04R. 6.1.3 Non - substantial Amendments. Any non - substantial deviation from the terms of this Development Agreement do not require an amendment to this Development Agreement. Before any such non - substantial deviation is implemented, the other party must be given notice of such contemplated deviation. Such deviations which are not consented to will require submission to the amendment process. 6.2 Assignment. The Developer has the right to transfer, sell, convey, lease or otherwise assign, all or a portion of its interest in the Property along with all or a portion of its right, title and interest in and to this Development Agreement to any person, firm or corporation at any time during the term of this Development Agreement without the consent of the City. 6.3 Delegation. The Developer, after receiving the prior written consent of the City, shall have the right to delegate or transfer all or a portion of its obligations under this Development Agreement to third parties acquiring an interest or estate in the Property. Upon receipt of a written request from the Developer, the City shall have thirty (30) days within which to grant or deny written consent. If the City is reasonably satisfied that the proposed transferee of the obligations is or will be financially able to fulfill the obligations of the Developer under this Development Agreement, the City must grant written consent within the thirty -day period. Delivery to and acceptance by the City of a written assumption of the Developer's obligations under this Development Agreement by a transferee for which the Developer has received written consent shall relieve the Developer of the obligations under this Development Agreement to the extent the obligations have been expressly assumed. 6.4 Transfer to McMillin Communities, Inc. The Developer has the right to transfer all or a portion of its legal interest in the Property along with all or a portion of its right, title and interest in and to this Development Agreement to McMillin Communities, Inc., or to any entity in which McMillin Communities, Inc. is a partner, and to transfer all or a portion of its obliga- tions under this Development Agreement to McMillin Communities, Inc., or to any entity in which McMillin Communities, Inc. is a partner, during the term of this Development Agreement. The City hereby finds that it is reasonably satisfied that McMillin Communities, Inc., or any entity in which McMillin Communities, Inc. is a partner, is or will be financially able to fulfill the obligations of the Developer under this Development Agreement, and hereby gives its written consent to a transfer of all or a portion of the Developer's obligations under this Development Agreement to 0: \5 \5546 \41858 \AGTDEVEL.V11 — 1 6 — 5/15/91 (10:30am)- CLE:sh • • McMillin Communities, Inc., or to any entity in which McMillin Communities, Inc. is a partner. 6.5 Release of Obligation. Upon the payment of fees by the Developer or its successor -in- interest, the City shall release the lots to which said fees are applicable from the obligations of this Development Agreement by causing a release of obligation for said lot or lots to be recorded. Additionally, upon the payment of all fees and performance of all the requirements and conditions required of the Developer by this Development Agreement with respect to the Property, the City shall cause a release of obligation for the Property to be recorded. 7. MISCELLANEOUS 7.1 Venue. In the event of any legal or equitable proceeding to enforce or interpret the terms or conditions of this Development Agreement, the parties agree that venue shall lie only in the federal or state courts in the County of San Diego, State of California. 7.2 Applicable Law. This Development Agreement, and any disputes relating to this Development Agreement, shall be construed under the laws of the State of California. 7.3 Attorneys' Fees. In the event of any legal or equitable proceeding to enforce or interpret the terms of this Development Agreement, the prevailing party shall be entitled to all reasonable attorneys' fees and costs in addition to any other relief granted by law. 7.4 No Waiver. The failure of either party to enforce any term, covenant or condition of this Development Agreement on the date it is to be performed shall not be construed as a waiver of that party's rights to enforce this, or any other term, covenant or condition of this Development Agreement at any later date or as a waiver of any term, covenant or condition of this Development Agreement. 7.5 Private Proiect. It is specifically understood and agreed between the parties that development of the Property is a private project and that the Developer shall have full power and exclusive control of the Property. 7.6 No Agency Created. Nothing in this Development Agreement is intended to create a joint venture, partnership, agency or common enterprise relationship of any kind between the parties. Each party has determined to enter into this Development Agreement as an independent contracting entity with respect to the terms, covenants and conditions contained herein. 0: \5 \5546 \41858 \AGTDEVEL.V11 —17 — 5/15/91 (10:30am)- CLE:sh • 10.1 7.7 No Third Party Beneficiaries. This Development Agreement is entered into for the sole protection and benefit of the parties and their successors and assigns. No person who is not a party to this Development Agreement shall have any right of action based upon any provision of this Development Agreement. 7.8 Covenant of Good Faith and Fair Dealing. Neither party shall do anything which shall have the effect of harming or injuring the right of the other party to receive the benefits of this Development Agreement. Each party shall further refrain from doing anything which would render its performance, or the performance of the other party, under this Development Agreement infeasible. Each party agrees to do everything which this Development Agreement contemplates that party shall do to accomplish the objectives and purposes of this Development Agreement. 7.9 Consent. Where the consent of either party is required by this Development Agreement, such consent shall not be unreasonably withheld. 7.10 Enforcement. Unless amended, cancelled, or terminated as provided in Section 6 of this Development Agreement this Development Agreement shall continue to be enforceable by any party to it, notwithstanding a change in the General Plan or Development Plan, zoning, subdivision, building or other regulations adopted by the City which alter or amend the rules, regulations or policies applicable to the Development. 7.11 Notices. Any notice or instrument required to be given or delivered to either party to this Development Agreement may be given or delivered by depositing the same in the United States mail, certified mail, postage prepaid, addressed to: City: City of Poway Post Office Box 789 Poway, California 92074 -0789 Attn: James L. Bowersox, City Manager Developer: McMillin Equity Partners II 2727 Hoover Avenue National City, California 92050 Attn: James H. Ondler With a Copy to: James R. Dawe, Esq. Seltzer Caplan Wilkins & McMahon 3003 -3043 Fourth Avenue San Diego, California 92103 0: \5 \5546 \41858 \AGTDEVEL.V11 —18 — 5/15/91 (10:30am)- CLE:sh IUD Notice of a change of address shall be delivered in the same manner as any other notice provided herein, and shall be effective three days after mailing by the above - described procedure. 7.12 Remedies. In the event a breach of this Development Agreement occurs, irreparable harm is likely to occur to the non - breaching party and damages may be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that specific enforcement of this Development Agreement is a proper and desirable remedy. 7.12.1 Exception. The City's sole remedy for the Developer's failure to satisfy any requirements of Paragraphs 3.6 and 3.8 of this Development Agreement is that the City may terminate this Development Agreement by giving notice of intent to terminate to the Developer, providing a ninety (90) day period within which to cure the specified default and an opportunity to be heard. 7.13 Entire Agreement. This Development Agreement and the exhibits herein contain the entire agreement between the parties, and is intended by the parties to completely state this Development Agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties of any party in relation thereto not expressly set forth in this Development Agreement is null and void. 7.14 Severability. If any term, provision, condition, or covenant of this Development Agreement, or the application thereof to any party or circumstances, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Development Agreement shall be valid and enforceable to the fullest extent permitted by law. 7.15 Counterparts. This Development Agreement has been executed in one or more counterparts, each of which has been deemed an original, but all of which constitute one and the same instrument. 0: \5 \5546 \41858 \AGTDEVEL.V11 _19— 5/15/91 (10:30am)- CLE:sh 0 IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above written. "City" CITY OF POWA Ja Gol Ci�.y of ATTEST: V AaAAt�— Marjor e K. Wahlsten, City C e k APPROVED AS TO FORM AND SUBSTANCE: r _ Stephen M. Eckis, City Attorney "Developer" ith, Mayor of the way MCMILLIN EQUITY PARTNERS II, a California limited partnership By:McMILLIN DEVELOPMENT, INC. General Partner By: Its: 0: \5 \5546 \41858 \AGTDEVEL.V11 —20— 5/15/91 (10:30am)- CLE:sh STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) • 10� r On May 16, 1991 , before me, the undersigned, a Notary Public in and for said State, personally appeared Robert L. Jones-------------- - - - - -- and Robert M. McGill-- - - - - -- , personally known to me (or proved bu me orr-t-h-e to be the persons who executed the within instrument as Senior Vice President - - - - -- and Senior Vice President---- - - - - -- on behalf of -------- - - - - -- McMillin Development, Inc.----- - - - - -- , the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by -la oi._ ?''sn-l�ti f P �(. � board of directors. 9 . ► OFFICIAL SEAL WITNESS my hand and official seal Signature STATE OF CALIFORNIA ) ss. COUNTY OF ) M personally appeared JOYCE A FROCK Notary Publio- California i SAN DIEGO COUNTY :•My Caw. Exp. Mar. 31, 11163 his area for of icial notaria sea before me, _,the undersigned Notary Public, personally known to me (or proved to satisfactory evidence) to be the persons instrument as and municipal corporation named herein. Witness my hand and official seal. Signature me on the basis of who executed the within of the (This area for official notarial seal) 0: \5 \5546 \41858 \AGTDEVEL.Vll — 21 — 5/15/91 (10:30am)- CLE:sh EXHIBIT "A" PROPERTY LEGAL DESCRIPTION PARCEL 1: 0 10,13 THE NORTHWEST QUARTER OF SECTION 26, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPTING THAT PORTION OF THE EAST HALF OF SAID NORTHWEST QUARTER LYING NORTHEASTERLY OF THE CENTER LINE OF THAT 60 FOOT EASEMENT FOR ROAD PURPOSES DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED APRIL 4, 1924 IN BOOK 751, PAGE 369 OF DEEDS. ALSO EXCEPTING THAT PORTION OF THE NORTH HALF OF SAID NORTHWEST QUARTER DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 26; THENCE ALONG THE NORTHERLY LINE OF SAID SECTION 26, NORTH 89° 42' 00" EAST 542.42 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00° 18' EAST 470.50 FEET; THENCE NORTH 89° 42' EAST 613.07 FEET; THENCE NORTH 210 28' EAST 248 FEET; THENCE NORTHEASTERLY IN A STRAIGHT LINE TO THE INTERSECTION OF THE NORTHERLY LINE OF SAID SECTION 26 WITH THE CENTER LINE OF THAT CERTAIN 60 FOOT EASEMENT FOR ROAD PURPOSES (KNOWN AS POMERADO ROAD) DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED APRIL 4, 1924 IN BOOK 751, PAGE 369 OF DEEDS, RECORDS OF SAN DIEGO COUNTY; THENCE ALONG THE NORTHERLY LINE OF SAID SECTION 26, SOUTH 89° 42' 00" WEST TO THE TRUE POINT OF BEGINNING. PARCEL 2: THAT PORTION OF THE SOUTHWEST ONE — QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 2 WEST, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: THE WESTERLY 271.22 FEET OF THE SOUTHERLY 195 FEET OF THE SOUTHWEST ONE — QUARTER OF SAID SECTION 23, EXCEPT THE WESTERLY 203.42 FEET THEREOF. PARCEL 3: PARCEL 1 OF PARCEL MAP NO. 15915 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON DECEMBER 21, 1989 AS FILE NO. 89- 692072. 0: \5 \5546 \41858 \AGTDEVEL.V11 —22— 5/15/91 (10:30am)- CLE:sh 0 EXHIBIT "B" i 106,4 INTERIM AGREEMENT AMONG THE POWAY REDEVELOPMENT AGENCY, THE CITY OF POWAY AND McMILLIN COMMUNITIES, INC. REGARDING TENTATIVE TRACT MAP 88 -04R This Agreement is entered into as of March 19, 1991 among the POWAY REDEVELOPMENT AGENCY ( "Agency "), the CITY OF POWAY ( "Poway ") and McMILLIN COMMUNITIES, INC. ( "McMillin ") who agree as follows: 1. Concurrently with execution by Agency and Poway of this Interim Agreement, McMillin shall dedicate to Poway that portion of the South Poway Parkway right -of -way within the McMillin South Poway Project boundaries and shall assign to Poway any rights McMillin has (without warranty) in the Church Engineering plans and specifications for South Poway Parkway. 2. Subject to the public hearing process, Poway and McMillin shall use their best efforts to enter into a Development Agreement, no later than May 1, 1991, wherein Poway grants McMillin the vested right, to the fullest extent allowed under the State Development Agreement legislation (Government Code Sections 65864 et seq.), to develop the South Poway Project in accordance with Tentative Tract Map 88 -04R ( "TTM 88 -04R ") and the rules, regulations and ordinances (including fee schedules) in effect on the effective date of the Development Agreement. The Development Agreement also shall include the provisions attached to this Interim Agreement as Attachment "A ". 3. Subject to the public hearing process, Agency and McMillin shall use their best efforts to enter, no later than May 1, 1991, into an Amendment to "The Owner Participation Agreement by and between the Poway Redevelopment Agency, and McMillin Communities, Inc.," executed on June 18, 1990 ( "Owner Participation Agreement ") which Amendment shall include the following provisions: a. Agency, rather than McMillin, will, at Agency's expense, construct or cause to be constructed the public roadway improvements scheduled for South Poway Parkway and described in Attachment No. 3 to the Owner Participation Agreement. b. McMillin, in complete satisfaction of the obligations under TTM 88 -04R to contribute to the construction of South Poway Parkway, will contribute to Agency a portion of the cost of the roadway improvements to South Poway Parkway in accordance with the schedule attached hereto as Attachment 0: \5 \5546 \41858 \AGTDEVEL.V11 —23— 5/15/91 (10:30am)- CLE:sh 10 .9 "B ". Should the conditions that were in existence at the time that this Agreement was executed substantially change, all parties agree that such contribution schedule may be considered for amendment. 4. Poway shall grant a credit to McMillin, to the extent allowed under its traffic mitigation impact fee ordinance, for McMillin's construction of or contribution toward the construction of Pomerado Road. 5. Subject to the mandates of the County Water Authority, Poway shall provide water (including construction water) and sewer service upon request for development of the property governed by TTM 88 -04R. In the event Poway is unable because of the mandates of the County Water Authority to provide water to development under construction within Poway's jurisdiction, then Poway may be excused from this requirement during the period of such inability. Poway considers the McMillin South Poway Project to be necessary to the public welfare. The project will provide public infrastructure necessary to the protection of the public health and safety. It is thus the intent of this provision to give McMillin an equal status with existing customers under any water allocation system imposed. Any obligation owed from McMillin to Poway or Agency contained within this Interim Agreement, the proposed Development Agreement and /or the proposed Amendment to the Owner Participation Agreement shall be tolled for any period in which there is a development moratorium (Government Code Section 66452.6) which affects McMillin's South Poway Project. 6. Poway shall continue to process on behalf of Agency the Boundary Adjustment on Lots 119, 120 and 121 of TTM 88 -04R as previously agreed between Poway, Agency and McMillin. 7. If, after proceeding through the public hearing process, Poway or Agency fails to enter by May 1, 1991, into a Development Agreement and an Amendment to the Owner Participation Agreement, respectively, which substantially comply with all provisions of this Interim Agreement: a. Poway shall reimburse McMillin no later than July 31, 1991, Eighty Thousand and 00/100 Dollars ($80,000.00) for the plans and specifications for South Poway Parkway; and, b. Poway shall pay to McMillin no later than July 31, 1991, fair market value for the right -of -way to that portion of South Poway Parkway within the property governed by TTM 88- 04R. C. McMillin, in complete satisfaction of TTM 88 -04R, General Requirements and Approvals Item 20, shall be required only to contribute its "fair share of the costs (determined by the Subdivision Map Act)" of satisfying the South Poway 0: \5 \5546 \41858 \AGTDEVEL.V11 —24— 5/15/91 (10:30am)- CLE:sh • i 10j1 Parkway conditions contained in TTM 68 -04R. In the event that by July 31, 1991, Poway and McMillin are unable to agree to the amount of such fair share, Poway and McMillin hereby agree to submit the controversy to binding arbitration in accordance with the rules of the American Arbitration Association. Date 3 As i I Date: 3 - )-S -II I Date:_ 37�( — —!' POWAY BE Its. CITY OF POWAY corporif t i or) I AN D NT AGENCY A0,-) "Agency" a municipal of Poway" MCMILLIN COMMUNITIES, INC., a California corporation By Its � C By. Its: I• P "Mct•7i 11 i n" 0: \5 \5546 \41858 \AGTDEVEL.V11 —25— 5/15/91 (10:30am)- CLE:sh ..)� ATTACHMENT "A" TO THE INTERIM AGREEMENT AMONG AGENCY, POWAY AND MCMILLIN PROVISIONS TO BE INCLUDED IN THE DEVELOPMENT AGREEMENT 1. Poway shall allow McMillin the right to review any revisions to the plans and specifications prepared by Church Engineering for the construction of South Poway Parkway prior to construction in order to assure that the revisions are compatible with the design of McMillin's South Poway Project. Additionally, Poway shall cooperate with McMillin during the construction of road improvements to assure that the improvements are compatible with the design of McMillin's South Poway Project. 2. McMillin shall dedicate to Poway the necessary right -of -way for South Poway Parkway plus easement plats, slope rights documents and permission to grade as needed to facilitate the construction of the road improvements. 3. McMillin shall allow Poway to dispose of as much excess dirt as is feasible and consistent with McMillin's development plans for the property, subject to a finding of substantial conformance with approved TTM 88 -04R. 4. McMillin shall construct the improvements necessary to complete Pomerado Road as currently designed from Creek Road to the southerly Poway boundary. 5. Poway shall cause the construction of the road improvements for all of the South Poway Parkway from Pomerado Road to the westerly Poway boundary according to a schedule to be determined. Poway shall have the responsibility for costs of construction to include preparation of that portion of McMillin's South Poway property designated to accept excess dirt generated by the South Poway Parkway grading operation, placement and compaction of all excess dirt to the satisfaction of McMillin, in its sole discretion, and inspection and certification by a licensed soils engineer acceptable to McMillin. 6. Poway shall cooperate with McMillin to achieve the vacation of all portions of old Pomerado Road needed to facilitate the completion of the McMillin South Poway Project in a timely manner. 0: \5 \5546 \41858 \AGTDEVEL.V10 A-1 4/17/91 -sh 8:30am -26- 0 1* J 3 7. Poway shall cooperate with McMillin as needed to obtain necessary permissions from adjacent property owners in order to locate /place temporary power facilities. 8. Poway shall grant McMillin an extension of time for TTM 88- 04R if needed, in accordance with applicable provisions of the Subdivision Map Act and Development Agreement legislation. 9. Subject to the mandates of the County Water Authority, Poway shall provide water (including construction water) and sewer service upon request for development of the property governed by TTM 88 -04R. In the event Poway is unable because of the mandates of the County Water Authority to provide water to development under construction within Poway's jurisdiction, then Poway may be excused from this requirement during the period of such inability. Poway considers the McMillin South Poway Project to be necessary to the public welfare. The project will provide public infrastructure necessary to the protection of the public health and safety. It is thus the intent of this provision to give McMillin an equal status with existing customers under any water allocation system imposed. Any obligation owed from McMillin to Poway or Agency contained within this Interim Agreement, the proposed Development Agreement and /or the proposed Amendment to the Owner Participation Agreement shall be tolled for any period in which there is a development moratorium (Government Code Section 66452.6) which affects McMillin's South Poway Project. 10. Poway acknowledges that community and Poway are a development agreement the benefits of the development to the sufficient to warrant entering into 0: \5 \5546 \41858 \AGTDEVEL.V10 A— 2 4/17/91 -sh 8:30am -27- ATTACHMENT "B" TO THE INTERIM AGREEMENT AMONG AGENCY, POWAY AND MCMILLIN CONTRIBUTION SCHEDULE Date April 1, 1992 or upon the completion and acceptance of that portion of the South Poway Parkway Road Improvements which are the responsibility of Poway, whichever is later Unit 2 Final Map recording 0: \5 \5546 \41858 \AGTDEVEL.V11 TOTAL CONTRIBUTION B -1 IM-12 Contribution $ 459,000.00 $ 918, 000.00 $1,377,000.00 5/15/91 -sh 10:30 a.m.