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Development Agreement 1997-0209582ro RECORDING REQUESTED BY: City of Poway WHEN RECORDED, MAIL TO: City Clerk City of Poway P. O. Box 789 Poway, CA 92074 No Transfer Tax Due � 39 r ) J 0 L 06 -- AY -10 11-0:08 A OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY SMITH, COUNTY RECORDER RF: 20.00 FEES: 52.00 AF: 31.00 MF: 1.00 �J )1'\ (This space for Recorder's use) DEVELOPMENT AGREEMENT of April 29 1997 by and between CITY OF POWAY and POWAY PARTNERS, L.L.C. & a saa DEVELOPMENT AGREEMENT 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 Poway Partners, L.L.C., a limited California limited liability company ( "Developer "). I. 1.1 Statutory Authority. California Government Code Sections 65864, et se 4., provides that the legislative body of a city may enter into a 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 - 65869.5, and City's Ordinance No. 177 for approval of a development agreement providing for the agreements of the parties set forth herein. 1.2 Subject Property and Appraisals. The City and the Developer desire to enter into this Development Agreement in order to facilitate the development of certain property (the "Property ", a portion of Assessor's Parcel No. 323 - 090 -73) known as the WET`n WILD WATER PARK PROJECT (the "Development ") and more fully described in Exhibit "A" and shown on the map set forth on Exhibit `B ", both attached hereto. Such development shall be in accordance with the South Poway Specific Plan including amendment SPA 84 -01 DD and any subsequent amendments or revisions thereto ( "Specific Plan ") and the Final Subsequent Environmental Impact Report ( "FSEIR" - State Clearinghouse No. 96071095) for the WET`n WILD WATER PARK PROJECT, certified by the City Council pursuant to Resolution No. 97 -022 on March 18, 1997, and on file with the City Clerk and incorporated herein by reference, Resolution of Approval No. 97 -023 for South Poway Specific Plan Amendment SPA 84 -01DD, Resolution of Approval No. P -97 -11 for Tentative Tract Map ( "TTM") 96 -01, Resolution of Approval No.P -97 -12 for Conditional Use Permit ( "CUP ") 96 -05 and Development Review ( "DR ") 96 -02 (all collectively, "the Approvals ") adopted and approved by the City Council on March 18, 1997. 1.3 Notice and Consistency. The City has given notice of intention to adopt this Development Agreement, has conducted public hearings thereon pursuant to California Government Code Section 65867, and the City's Ordinance No. 177 and has found that the provisions of this Development Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in the City's general plan and Specific Plan. 1.4 Infrastructure Costs and Need for Certainty. The Property is a large area lacking in many required infrastructure improvements. Development of the Property will require the -1- 641 Developer to construct 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 these 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 develop fully the Property; therefore, the parties desire to enter into this Development Agreement in order to reduce or eliminate uncertainties over which the City has control. 1.5 Applicable Standards. The City and the Developer desire to establish as the standards for the Approvals, 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 approval of this Development Agreement. 1.6 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. 1.7 Mutual Consideration. The City will receive substantial benefits as a result of development of the Property including enhancement of the financial base of the City through increased assessed valuation for the Redevelopment Agency of the City and the installation of needed public infrastructure improvements, including a completed infrastructure system for 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 great degree of certainty of the Developer's ability to complete expeditiously and economically the development effort, and 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. H. 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 of which shall survive beyond the term or terms of the -2- 642 present City Councilmembers, 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 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 Reservations and Dedications. It is understood and agreed that except in connection with the conditions imposed in connection with the approval of TTM. 96 -01, or CUP 96 -05, and except as expressly provided in Section 3 hereof, 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 96 -01, or CUP 96 -05 as part of the conditions imposed in connection with the approval of TTM 96 -01 or CUP 96 -05, or as otherwise agreed to in writing by the City and the Developer. 2.5 Term. The original term ( "Term ") of this Development Agreement is ten (10) years from the date of execution; provided, however, this Development Agreement shall be deemed canceled 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. 2.6 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- 643 DEVELOPMENT OF THE PROPERTY 3.1 Allowed Uses. For the term hereof, the Developer shall be entitled to develop the Property in accordance with the Approvals adopted by City Council on March 18, 1997. 3.2 Height. Size and Densijy of Use. The height and size of buildings and structures and the density of use shall be established by the Approvals. As set forth therein, the tower water rides and water slide attractions in the Development may be eighty -five feet in height, as measured from grade, but not greater in height, and buildings may not exceed forty-five feet in height, as measured from grade. 3.3 Storm Drain Improvements. The Developer agrees that within one year of the issuance of the mass grading permit for the Development, Developer will commence and complete construction of the Kirkham Way storm drain improvements in accordance with the engineering plans approved by the Department of Engineering Services, and will dedicate the same to the City. 3.4 Detention Basin Improvements The Developer agrees that within one year of the issuance of the mass grading permit for the Development, Developer will commence and complete construction of the detention basin and outlet improvements in accordance with the engineering plans approved by the Department of Engineering Services, and will dedicate the same to the City. 3.5 Kirkham Way Sewer Improvements. The Developer agrees that within one year of the issuance of the mass grading permit for the Development, Developer will commence and complete construction of the Kirkham Way sewer improvements in accordance with the engineering plans approved by the Department of Engineering Services, and will dedicate the same to the City. 3.6 Scripps Poway Parkway Water Improvements. The Developer agrees that within one year of the issuance of the mass grading permit for the Development, Developer will commence and complete construction of the Scripps Poway Parkway water improvements in accordance with the engineering plans approved by the Department of Engineering Services, and will dedicate the same to the City. 3.7 Resolution of Completion. Promptly after completion of any public improvements, facilities, or services set forth in this Development Agreement, the City shall provide the Developer with an instrument so certifying, in the form and substance to enable it to be recorded in the official records of the City. The certification is a conclusive determination that the -4- 644 obligation of the Developer under the Development Agreement has been met with respect to the public improvements, facilities or services for which the certificate is issued. 3.8 Processing of Applications and Permits. The City will accept the processing and review of all development applications and permits or other entitlements with respect to the development and the use of the Property on an expedited basis and in accordance with this Development Agreement. It is understood that in the absence of this Agreement, certain permits and development review approvals would not remain valid for the term of this Development Agreement. The Developer shall have the right to file and obtain extensions or new permits or development review approval on portions of the Development for such previously approved permits or development review approvals as 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 Specific Plan and the law in effect as of the date of approval of this Development Agreement. 3.9 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. 3.10 Eminent Domain. If, as a condition of any map or other approval, the City requires the vacation or relocation of existing easements or the improvement of, or entry upon, land not owned by the Developer or the City, the Developer will make a good faith effort to secure the property through a negotiated purchase. Upon notice from the Developer that the Developer has been unable to secure the required property by purchase, the City shall promptly commence eminent domain proceedings to secure the property. In the event the City fails to exercise its right of eminent domain to the extent authorized by law, the condition requiring the property, or entry, upon property, shall be deemed waived without further action of either party to this Development Agreement. Costs of acquisition of land or any interest in land not owned by the Developer shall be paid by the Developer in accordance with the terms of a reimbursement agreement which the City and the Developer shall enter into prior to the City taking any action under this paragraph. 3.11 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 by Development Review ( "DR ") 96 -02; provided, however, no such review shall authorize or permit the City to impose any condition and/or 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. 3.12 Amendments to Development Documents. Any amendments or revisions of TTM 96 -01, DR 96 -02, CUP 96 -05, or any existing or subsequently granted development approvals, that are consistent with the Specific Plan, shall be made in conformance with those rules, regulations, policies, initiatives and ordinances in effect as of the date of approval of this Development Agreement. No amendment or revision of TTM 96 -01, DR 96 -02, CUP 96 -05, or any development approval shall include any conditions, or any requirements for reservation or 511 645 dedication of property, not previously provided for in TTM 96 -01, DR 96 -02, or CUP 96 -05. IV. DEVELOPMENT TIMING REQUIREMENTS 4.1 Completion of the Development. The Developer shall commence and complete construction of the private improvements within the Development in accordance with the approvals within two years of the issuance of permits for the mass grading of the Development. V. CHANGES IN LAW . 5.1 Requirements in Conflict with Approvals. For the term hereof, the Developer shall be entitled to develop the Property in accordance with the Approvals. The Property shall not be subject to any subsequently enacted amendment of the City's general plan, specific plan, public facilities plan, or similar plan which alters, or is in conflict with, the Specific Plan. Additionally, development of the Property shall not be subject to any subsequently enacted development ordinances, policies, rules, regulations or standards that conflict with the Specific Plan. 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 Specific 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 MI • M 646 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. 5.3 Application of Subsequently Revised Application Processing. and Inspection Fees. The Developer shall pay fees to the City for the work to be performed pursuant to the Approvals in accordance with City fee schedules in effect as of the date hereof provided, however, that such fees shall not exceed $608,000, except as provided in (b) and (h) below, as follows: a. Water fees, including meter base capacity and SDCWA fees. b. Sewer connection fees shall initially be $155,496. At the conclusion of the first 12 months of operation, the City will determine an average daily flow, divide that figure by 240 gallons and multiply that number by $2,356. If the resultant cost exceeds $155,496, Wet`n Wild will pay the additional amount not to exceed $127,224. If the resultant cost is less than $155,496, Wet`n Wild will receive a refund. c. Drainage fees. d. Engineering plan check and inspection fees, including grading. e. Building inspection fees. f. Traffic mitigation fees. g. Miscellaneous fees including: 1. Grading permit fee 2. Geotechnical review fee 3. Improvement plan administrative fee 4. Water system analysis fee 5. Easement processing fee 6. Right -of -way permit fee and necessary inspection fee 7. Plan review fee for construction changes 8. Sewer cleanout fee 9. Sewer cleanout inspection fee 10. Street light advanced energy fee h. Fees not included in $608,000 cap: 1. Fees for finalling TTM 96 -01 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 Specific Plan, CUP 96 -05 and DR 96 -02 during the terms of this Development Agreement unless such approvals or permits, are required by the rules, regulations -7- 0 0 647 and official policies of the City in force at the date of this Development Agreement or by the applicable Specific Plan. In the event any further approvals or permits are required by the City for development of the Property during the term of this Development Agreement in addition to, or which is not authorized by the Specific Plan, CUP 96 -05 or DR 96 -02, 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 Specific 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 this Development Agreement, or as otherwise provided in this Development Agreement. The Developer agrees that the terms, conditions and requirements for such approvals or permits shall be established in accordance with the law existing at the date of such application. 5.5 Annual Review of Development Agreement. In accordance with California Government Code Section 65865. 1, the City Council shall review this Development Agreement at least once each calendar year hereafter for so long as this Agreement is in force and effect. As 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 Council 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 or 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 is intended to enable the Developer to develop the Property consistent with the Specific 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 Specific Plan. At the conclusion of such periodic annual review, the City Council's findings 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. VI. VESTING OF DEVELOPMENT RIGHTS 6.1 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 to be deemed vested in the Developer as of the date of approval of this Development Agreement. 6.2 Existing Rules to Govern. In accordance with the terms of California Government In M i Code Section 65866, the City and the Developer agree that except as provided in this Development Agreement, the ordinances, rules, regulations and official policies of the City and its special districts and agencies, including the Specific Plan (collectively, the "Existing Development Policies ") in effect as of the date of this Development Agreement governing the design, density, permitted land uses, improvement and construction standards applicable to the Development shall govern during the Term 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 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 of its successors or assigns, except as provided herein. VII. AMENDMENT, ASSIGNMENT OR TERMINATION 7.1 Amendment. This Development Agreement may be amended or canceled 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. 7.1.1 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, terms, restrictions and requirements relating to, 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; 7.1.2 Nonsuhstantial Amendments. Any Nonsubstantial deviations from the terms of this Development Agreement do not require an amendment to this Development Agreement. Before any nonsubstantial 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. 7.2 Assignment. The Developer has had and continues to have the right to sell, assign, or transfer all of its interest in the Property along with all 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. I a$ X49 VII. MISCELLANEOUS 8.1 Venue. In the event of any legal or equitable proceeding to enforce or interpret the term 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. 8.2 Applicable Law. This Development Agreement, and any disputes relating to this Development Agreement, shall be construed under the laws of the State of California. 8.3 Attorney's 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 attorney's fees and costs in addition to any other relief granted by law. 8.4 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. 8.5 Private Project. 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. 8.6 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. 8.7 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. 8.8 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. -10- i *6 50 8.9 Consent. Where the consent of either party is required by this Development Agreement, such consent shall not be unreasonably withheld. 8.10 Enforcement. Unless amended, canceled or terminated as provided in Section VII of this Development Agreement, this Development Agreement shall continue to be enforceable by any party to it, notwithstanding a change in general or specific plans, zoning, subdivision, building or other regulations adopted by City which alter or amend the rules, regulations or policies applicable to the Development. 8.11 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, address to: City: City of Poway Post Office Box 789 Poway, California 92074 -0789 Attn: James L. Bowersox, City Manager Developer: POWAY PARTNERS, L.L.C. Notice of 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. 8.12 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. 8.12.1 Exception. The City's sole remedy for the Developer's failure to satisfy the requirements of any of Paragraphs 3.2 through 3.11 by the dates specific in those Paragraphs is that the City may void this Development Agreement by giving notice to that effect to the Developer within thirty (30) days of such specified date. 8.13 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 the 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. 8.14 Severability. If any term, provision, condition or covenant of this Development Agreement, of the application thereof to any party or circumstances, shall to any extent be held -11- • 0 invalid or unenforceable, the remainder of the instrument or the application of such term, 651 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. 8.15 Counterparts. This Development Agreement has been executed in one or more counter -parts, each of which has been deemed an original, but all of which constitutes one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above written. "City" City of Poway ATTEST: k va*-s Marjorie K. Wahlsten, City Cle k APPROVED AS TO FORM: StepVr�,l'GI. Eckis, City ttorney "Developer" By: Don Higginson, Mayor he City of Poway POWAY PARTNERS, L.L.C. M, otarization Required) *&,,4ApA jP Xco e4 -12- CALIFORNIA ALL- PURPOSPACKNOWLEDGMENT State of ­7-e n a-5 County of f On /� /`� before me, Cat -�)IU4 l) . Stu f ��ta.r� 7,u6hc Date J Name and Title of Officer (e.g., "Jane Doe, Notary Publ' personally appeared J Oh n L hc1VV e-41 Name(s) of Signer(s) personally known to me – OR – ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, CAROLYN D. STUART executed the instrument. Notary Public, State of Texas t �7 My Comm. Exp.10-19.98 WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: i Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER Signer's Name: El El El Number of Pages: Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER of • © 1994 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309 -7184 Prod. No. 5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 653 EXHIBIT "A" LEGAL DESCRIPTION WET'N WILD WATERPARK THAT PORTION OF LOT 4 OF SECTION 19 OF TOWNSHIP 14, RANGE 1 WEST OF THE SAN BERNARDINO MERIDIAN IN THE CITY OF POWAY, COUNTY OF SAN DIEIGO, STATE OF CALIFORNIA, DESCRIBED IN THE CERTIFICATE OF COMPLIANCE RECORDED JULY 8, 1993 AS DOC. NO. 1993 - 0436552 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID SECTION 19; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF SAID SECTION 19, SOUTH 88 °15'43" EAST (RECORD N. 88'15'21" W. PER PARCEL MAP 5750) 6.00 FEET TO A POINT ON THE EASTERLY LINE OF AN EASEMENT GRANTED TO SAN DIEGO GAS AND ELECTRIC COMPANY PER DEED RECORDED SEPTEMBER 30, 1930 IN BOOK 1819, PAGE 78, OF DEEDS, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID SOUTHERLY LINE, SOUTH 88 015'43" EAST 1487.90 FEET; THENCE LEAVING SAID SOUTHERLY LINE, NORTH 00 °14'51" EAST (RECORD N. 00 °15'46" E. PER PARCEL MAP 5750) 1265.31 FEET TO A POINT ON THE SOUTHERLY RIGHT -OF -WAY LINE OF SCRIPPS POWAY PARKWAY AS DEDICATED PER DEED RECORDED SEPTEMBER 26, 1995 AS DOC. # 1995 -0428362 OF OFFICIAL RECORDS; THENCE WESTERLY ALONG SAID RIGHT -OF -WAY LINE AND RIGHT -OF -WAY LINE OF SCRIPPS POWAY PARKWAY AS DEDICATED PER DEED RECORDED AUGUST 25 , 1993 AS DOC. NO. 1993 - 0554187 OF OFFICIAL RECORDS, NORTH 88 019'17" WEST 1503.90 FEET TO A POINT ON SAID EASTERLY LINE OF EASEMENT GRANTED TO THE SAN DIEGO GAS AND ELECTRIC COMPANY; THENCE SOUTHERLY ALONG SAID EASTERLY LINE SOUTH 00°28'46" EAST 1264.27 FEET TO THE TRUE POINT OF BEGINNING. EXHIBIT "B" PLAT WET'N WILD WATERPARK SCALE: 1" = 500 FT. CITY OF POWAY TRACT NO, 87-131 UNIT I MAP NO, 12656 FOUND STREET SURVE`( MONU- MENT MKD. L.S. 5292 PER MAP 12556 & 17607 STOWE 17 48 44 I 45 � I 48 1 66 1 67 DRIVE N I I I T 4Q 3 Q �� N87'39 01 `W I 1172.29 N8897777.1 0.� � r, 1503.90 ` I 8.33 Lo PAR, 2 r FOUND 1 1 f 2" I.P. MKD. b — P,M, 17607 N "L. S. 1344 PER R. OF S. >- C-53 p �' 1107 & 6521, P.M. 5750 'cry �' rnP Q U cv AND MAP 12556 C) w Z z O °D Zll 3 z N �' WET'N WILD WATERPARK U � N87'21'18 "W v 688.64 - Q N N 24.5' PAR, i -'r S � z M _ P,M, 17607 o co M N87'21'18`yy�� �♦ Ek2 24 Z 653.83' W24 10 . . �- N 8 7'21 "18 "W KIRKHAM KIR" "1' 1 �v Y8 AY PlOR, RL 114, SAC, 251 T, 14 S,, R, 2 W,, S,S,M, CURVE DATA CURVE RADIUS LENGTH DELTA C1 34.50 52.16 86'3717 - 52.17' 86'3818 84.33 C2 299.50 30.64 05'5145 - 30.65' N00 8'46 "W LINE DATA LINE DIRECTION DISTANCE L1 R N89$ 57E R - L2 R ) � NO3-30-46-W(R) - NO3'29'39 "W R - L3 N86'2914 E 84.33 z 84.36' L4 R NO2 "20 59 E R - L5 N00 8'46 "W 53.54' L6 N00'1 4'51 "W 53.52' 654 �—/ N88'15'43 "W 1493.90' 1 3�' {N88'15'21 "W 1493.72'} 1 N m I P DR, N, W, 114, S� C, 30, ,, I I �o T, 14 S,, R, 'I W,, S,B,M, i 4 0. to I I L6 co 0 cd rn co LaJ W 1.0 CD C5 zz.� r � U t� Soo 0 450 600 1000 1500 GRAPHIC SCALE: 1 "= 500' I I FD. 2" I.P. W/ DISC STAMPED "S.D. I N co CO. ENG. DEPT. 1984" PER R.O.S. 9942 & 11778 AND PAS. 16103 & 17607 NN -'�- 653 83' N87'21'18 "W z 1487.90' -� IN 0'28'46 "W 5 30 N88'1543 "W 1493.90' -~-- 32.55' N881 5' 43 "W N87'21'1 8 "W I 6.00' 6.01' Soo 0 450 600 1000 1500 GRAPHIC SCALE: 1 "= 500'