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
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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
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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
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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
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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.
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(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
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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.
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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.
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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
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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.
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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.
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• 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
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• • 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.
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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.
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•
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.
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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
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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
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• • 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
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•
•
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.
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• 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
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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.
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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:
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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)
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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.
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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
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• 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"
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..)�
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.
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-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
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-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
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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.