Owner Participation Agreement 1990-1890581151
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
POWAY REDEVELOPMENT AGENCY
ATTN: CITY CLERK'S OFFICE
P.O. BOX 789
POWAY, CA 92064
O -19058
n
90 APR -9 AH i0= 55
{ VERA L..YLE
1 gGClfit Y i r;sORteR
NO FEE
Space above for Recorder's use only
OWNER PARTICIPATION AGREEMENT
by and between the
POWAY REDEVELOPMENT AGENCY,
and
ADI PROPERTIES, INC.
AGENCY,
PARTICIPANT.
II
1152
TABLE OF CONTENTS
I.
[ §100]
SUBJECT OF AGREEMENT
A.
[ §101]
Purpose of Agreement
B.
[ §102]
The Redevelopment Plan
C.
[ §103]
The Site
D.
[ §104]
Parties to the Agreement
1. [ §105]
The Agency
2. [ §106]
The Participant
3. [ §107]
Relationship of Agency and Participant
4. [ §108]
Prohibition Against change in
Ownership, Management and Control of
Participant
[ §200]
ACQUISITION AND DEVELOPMENT OF THE SITE
A.
[ §201]
Acquisition of Site
B.
[ §202]
Scope of Development
C.
[ §203]
Cost of Construction
D.
[ §204]
Bodily Injury and Property Damage Insurance
E.
[ §205]
City and Other Governmental Agency Permits
F.
[ §206]
Local, State and Federal Laws
G.
[ §207]
Antidiscrimination During Construction
H.
[ §208]
Certificate of Completion
I.
[ §209]
Liquidated Damages
III
[ §300] USF OF THE SITE
A. [ §301] Uses
B. [ §302] Rights of Access
C. [ §303] Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
(i)
1153
IV. [ §400] GENERAL PROVISIONS
A. [ §401] Notices, Demands and Communications Between
the Parties
B. [ §402] Conflicts of Interest
C. [ §403] Enforced Delay; Extension of Times of
Performance
D. [ §404] Nonliability of Officials and Employees of
the Agency
V. [ §500] DEFAULTS AND REMEDIES
A. [ §501] Defaults -- General
B. [ §502] Applicable Law
1. [ §503] Institution of Legal Actions
2. [§504] Applicable Law
3. [ §505] Acceptance of Service of Process
C. [ §506] Rights and Remedies Are Cumulative
D. [ §507] Inaction Not a Waiver of Default
E. [ §508] Remedies and Rights of Termination
1. [ §509] Damages
2. [ §510] Specific Performance
VI. [ §600] SPECIAL PROVISIONS
A. [§601] Successors in Interest
C. [ §602] Amendments to this Agreement
VII. [ §700] ENTIRE AGREEMENT, WAIVERS
ATTACHMENTS
Attachment
No.
1
Site Map
Attachment
No.
2
Legal Description
Attachment
No.
3
Schedule of Performance
Attachment
No.
4
Scope of Development
Attachment
No.
5
Covenants
Attachment
No.
6
Certificate of Completion
(ii)
1154
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into by and between the
POWAY REDEVELOPMENT AGENCY (the "Agency ") and ADI PROPERTIES,
INC., a California corporation (the "Participant "). The Agency
and the Participant hereby agree as follows:
I. [ §100] SUBJECT OF AGREEMENT
A. [ §101] Purpose of Agreement
The purpose of this Agreement is to.effectuate the
Redevelopment Plan (as hereinafter defined) for the Paguay
Redevelopment Project Area by providing for the development of
certain property situated within the Project Area (the "Project
Area "). That portion of the Project Area to be developed
pursuant to this Agreement (the "Site ") is depicted on the
"Site Map ", which is attached hereto as Attachment No. 1 and
incorporated herein by reference. This Agreement is entered
into for the purpose of developing the Site (the "Project ") and
not for speculation in land holding. Completing the
development on the Site pursuant to this Agreement is in the
vital and best interest of the City of Poway, California (the
"City ") and the health, safety and welfare of its residents,
and in accord with the public purposes and provisions of
applicable state and local laws and requirements under which
the Project has been undertaken_
B. [ §102] The Redevelopment Plan
The Redevelopment Plan was approved and adopted by the
City Council of the City of Poway by Ordinance No. 117; said
ordinance and The Redevelopment Plan as so approved (the
"Redevelopment Plan ") are incorporated herein by reference.
C. [ §103] The Site
The Site is that portion of the Project Area
designated on the Site Map (Attachment No. 1) and described in
the "Legal Description ", which is attached hereto as Attachment
No. 2 and is incorporated herein by reference. The Site is to
be acquired by the Participant no later than thirty (30) days
from the execution of this Agreement, pursuant to a separate
purchase and sale agreement between Poway Land Inc. and the
Participant.
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D. [ §1041 Parties to the Agreement
1. [ §1051 The Agency
The Agency is a public body, corporate and
politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California. The principal
office and mailing address of the Agency (for purposes of this
Agreement) is located at 13325 Civic Center Drive, Poway,
California 92064.
"Agency ", as used in this Agreement, includes the
Poway Redevelopment Agency, and any assignee of or successor to
its rights, powers and responsibilities.
2. [ §1061 The Participant
The Participant is ADI Properties, Inc., a
California corporation. The primary shareholders and their
addresses of the corporation are as follows:
George H. Codling
12707 High Bluff Drive
Suite 135
San Diego, California 92130
Malin Burnham
610 West Ash
San Diego, California 92101
Tom James
12707 High Bluff Drive
Suite 135
San Diego, California 92130
3. [ §1071 Relationship of Agency and Participant
It is hereby acknowledged that the relationship
between the Agency and the Participant is not that of a
partnership nor joint venture and that the Agency and the
Participant shall not be deemed or construed for any purpose to
be the agent of the other.
4. [ §1081 Prohibition Against Change in
Ownership, Management and Control of
Participant
The Participant recognizes that, in view of
(a) the importance of the redevelopment of the
Site to the general welfare of the community;
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(b) the substantial financing and other public
aids that have been or will be made available by law and by the
government for the purpose of making such redevelopment
possible; and
(c) the fact that a change in ownership or
control of the Participant or of a substantial part thereof, or
any other act or transaction involving or resulting in a
significant change in ownership or control of the Participant
or the degree thereof, is for practical purposes a transfer or
disposition of the property then owned by the Participant; the
qualifications and identity of the Participant are of
particular concern to the City and the Agency. It is because
of those qualifications and identity that the Agency has
entered into this Agreement with the Participant. No voluntary
or involuntary successor in interest of the Participant shall
acquire any rights or powers under this Agreement except as
expressly set forth herein, or expressly permitted hereby.
The Participant shall not assign all or any part
of this Agreement without the prior written approval of the
Agency.
For the reasons cited above, the Participant
represents and agrees for itself and any successor in interest
of itself that prior to issuance by the Agency of a Certificate
of Completion and without the prior written approval of the
Agency, there shall be no significant change in the ownership
of the Participant or in the relative proportions thereof, or
with respect to the identity of the parties in control of the
Participant or the degree thereof, by any methods or means.
Notwithstanding any other provision hereof, the
Participant may in its discretion join and associate with other
entities in joint ventures, partnerships or otherwise for the
purpose of acquiring and /or developing the Site provided that
the principals of the Participant (i) remain fully responsible
to the Agency for the obligations of the Participant under this
Agreement as provided in this Agreement; (ii) retain management
and decision - making control of the Participant; and (iii)
receive no profit from such agreements prior to the issuance of
the Certificate of Completion for the entire Site by the Agency.
The Participant shall promptly notify the Agency
of any and all changes whatsoever in the identity of the
parties in control of the Participant or the degree thereof, of
which it or any of its officers have been notified or otherwise
have knowledge or information. This Agreement may be
terminated by the Agency if there is any significant change
(voluntary or involuntary) in membership, management or control
of the Participant prior to the issuance of a Certificate of
Completion for all construction and development to be completed
by the Participant on the Site as hereinafter provided.
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Excepting only to the extent as may be permitted
pursuant to the foregoing portion of this Section 108, the
Participant shall not assign all or any part of this Agreement
or any rights hereunder or add limited or general partners
without the prior written approval of the Agency. The
Participant shall promptly notify the Agency in writing of any
and all changes whatsoever in the identity of the persons in
control of the Participant and the degree thereof. All
transferees shall be bound by this Section 108 as well as the
other provisions of this Agreement.
In the absence of specific written agreement by
the Agency of an assignment requested by the Participant, no
such transfer, assignment or approval by the Agency shall be
deemed to relieve the Participant or any other party from any
obligation under this Agreement.
All of the terms, covenants and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the Participant and the permitted successors and
assigns of the Participant. Whenever the term "Participant" is
used herein, such term shall include any other permitted
successors and assigns as herein provided.
The restrictions of this Section 108 shall
terminate and be of no further force and effect after the
issuance by the Agency of the Certificate of Completion with
respect to all of the Participant Improvements.
II. [ §200] ACQUISITION AND DEVELOPMENT OF THE SITE
A. [ §201] Acquisition of the Site
Prior to or within thirty days of the execution of
this Agreement, the Participant shall have acquired title to
the Site pursuant to its agreement with the Poway Land
Development Company.
B. [ §202] Scope of Development
The Participant shall commence and complete the
development, including the construction of the Improvements (as
defined in the Scope of Development attached hereto and
incorporated herein as Attachment No. 4) according to the
Schedule of Performance (Attachment No. 3).
The development includes all plans and specifications
submitted to City and /or Agency for approval, and shall
incorporate or show compliance with all applicable mitigation
measures.
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C. [ §203] Cost of Construction
The costs of site preparation and construction of
the Improvements described in the Scope of Development shall be
borne by the Participant.
D. [ §204] Bodily Injury and Property Damage Insurance
The Participant shall defend, assume all
responsibility for and hold the Agency, its officers and
employees, harmless from all claims or suits for, and damages
to, property and injuries to persons, including accidental
death (including attorneys fees and costs), which may be caused
by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the
Participant or anyone directly or indirectly employed or
contracted with by the Participant and whether such damage
shall accrue or be discovered before or after termination of
this Agreement. The Participant shall maintain throughout the
period from the time of execution of this Agreement until
issuance of the Certificate of Completion (Attachment No. 3), a
comprehensive liability policy in the amount of One Million
Dollars ($1,000,000.00) per occurrence combined single limit
policy, including contractual liability, as shall protect the
Participant, City and Agency from claims for such damages.
The Participant shall furnish a certificate of
insurance countersigned by an authorized agent of the insurance
carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage. This
countersigned certificate shall name the City and the Agency
and their respective offices, agents and employees as
additional insureds under the policy. The certificate by the
insurance carrier shall contain a statement of obligation on
the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any
such material change, cancellation or termination. Coverage
provided hereunder by the Participant shall be primary
insurance and not contributing with any insurance maintained by
the Agency or City, and the policy shall contain such an
endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of the City and the Agency.
The Participant shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency
that any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as required
by law.
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E. [ §205] City and Other Governmental Agency Permits
Before commencement of construction or
development of any buildings, structures or other works of
improvement upon the Site or within the Project Area, the
Participant shall, at its own expense, secure or cause to be
secured any and all permits which may be required by the City
or any other governmental agency affected by such construction,
development or work. It is understood that the Participant's
obligation is to pay all necessary fees and to timely submit to
the City final drawings with final corrections to obtain a
building permit.
F. [ §206] Local, State and Federal Laws
The Participant shall carry out the construction
of the improvements in conformity with all applicable laws,
including all applicable federal immigration laws and federal
and state labor standards provided, however, Participant and
its contractors, successors, assignees, transferees and lessees
are not waiving their rights to contest any such laws, rules or
standards.
G. [ §207] Antidiscrimination During Construction
The Participant agrees that in the construction
of the improvements provided for in this Agreement, the
Participant will not discriminate against any employee or
applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin
or ancestry.
H. [ §208] Certificate of Completion
Promptly after completion of all construction and
development required by this Agreement to be completed by the
Participant upon the Site in conformity with this Agreement,
the Agency shall furnish the Participant with a Certificate of
Completion upon written request therefor by the Participant.
Such Certificate shall be substantially in the form of
Attachment No. 3 hereto. The Agency shall not unreasonably
withhold any such Certificate of Completion. Such Certificate
of Completion shall be a conclusive determination of
satisfactory completion of the construction required by this
Agreement upon the Site and the Certificate of Completion shall
so state.
If the Agency refuses or fails to furnish a
Certificate of Completion for the Improvements after written
request from the Participant, the Agency shall, within thirty
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(30) days of written request therefor, provide the Participant
with a written statement of the reasons the Agency refused or
failed to furnish a Certificate of Completion. The statement
shall also contain Agency's opinion of the actions of the
Participant must take to obtain a Certificate of Completion.
Such Certificate of Completion is not a notice of
completion as referred to in the California Civil Code,
Section 3093.
[ §2091 Schedule of Performance; Liquidation Damages
PARTICIPANT RECOGNIZES THAT ADHERANCE TO THE SCHEDULE
OF PERFORMANCE (ATTACHMENT NO. 3) IS OF CRITICAL IMPORTANCE TO
THE AGENCY AND THAT DAMAGES SUSTAINED BY THE AGENCY DUE TO
FAILURE TO ADHERE TO SAID SCHEDULE OF PERFORMANCE WOULD BE
DIFFICULT OR IMPOSSIBLE TO CALCULATE. SUCH DAMAGES WOULD
INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF
TAX REVENUES THEREFROM TO THE CITY AND THE AGENCY, THE DELAY OR
FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE
REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTHER
POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE
AGENCY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE
AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF
THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO
THEM, THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF
THREE HUNDRED AND TWENTY THOUSAND DOLLARS ($320,000.00) ON AN
ANNUALIZED BASIS, AND SUCH AMOUNT SHALL BE DUE TO THE AGENCY ON
A MONTHLY BASIS UPON FAILURE TO MEET THE DEADLINES SET OUT IN
III 14 AND III 15 OF THE SCHEDULE OF PERFORMANCE. SAID MONTHLY
PAYMENTS SHALL EQUAL THE TOTAL OF ALL LIQUIDATED DAMAGES FOR
ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT
THAT THE PARTICIPANT SHOULD CHALLENGE THE APPLICABILITY OR
EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD
TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE
FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW.
The Participant and
acknowledge this liquidated
signature below:
PARTICIPANT
the A W cy specifically
damage rovision by their
_
AGENCY Carl R. Kruse, Chairman
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III. [ §300] USE OF THE SITE
A. [ §301] Uses
The Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site or any part thereof, that during construction and
thereafter, the Participant, such successors and such
assignees, shall devote the Site to uses consistent with the
Redevelopment Plan and the Scope of Development (Attachment No.
4).
The Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status,
age, handicap, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, nor shall the Participant itself or any person claiming
under or through it establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Site. The
foregoing covenants shall run with the land.
The Participant shall refrain from restricting the
rental, sale or lease of the Site on the basis of race, color,
creed, religion, sex, marital status, handicap, national origin
or ancestry of any person. All such deeds, leases or contracts
shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through them, that
there shall be no discrimination against or
segregation of, any person or group of persons on
account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through
him or her, establish or permit any such practice
or practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall
run with the land."
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2. In leases: "The lessee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through him or her, and
this lease is made and accepted upon and subject
to the following conditions:
"There shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex,
marital status, handicap, age, ancestry or
national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment
of the premises herein leased nor shall the
lessee himself or herself, or any person claiming
under or through him or her, establish or permit
any such practice or practices of discrimination
or segregation with reference to the selection,
location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees in the
premises herein leased."
3. In contracts: "There shall be no discrimination
against or segregation of, any person, or group
of persons on account of race, color, creed,
religion, sex, marital status, age, handicap,
ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the
transferee himself or herself or any person
claiming under or through him or her, establish
or permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or
vendees of the premises."
Except for covenants against discrimination or
segregation, which shall continue in effect in perpetuity, the
covenants set forth in this Section 301 shall remain in effect
until the termination date of the Redevelopment Plan.
C. [ §302] Rights of Access
The Agency, for itself and for the City and other
public agencies, at their sole risk and expense, reserves the
right to enter the Slte or any part thereof which is owned or
controlled by the Participant, at all reasonable times for the
purpose of construction, reconstruction, maintenance, repair or
service of any public improvements or public facilities located
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on the Site. Any such entry shall be made only after
reasonable notice to Participant, and Agency shall indemnify
and hold Participant harmless from any costs, claims, damages
or liabilities pertaining to any entry. This Section 303 shall
not be deemed to diminish any rights the Agency, the City, or
any other public agencies may have without reference to this
Section 302.
D. [ §303] Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with
the land, for and in its own rights and for the purposes of
protecting the interests of the community and other parties,
public or private, in whose favor and for whose benefit this
Agreement and the covenants running with the land have been
provided. The Agreement and the covenants shall run in favor
of the Agency, without regard to whether the Agency has been,
remains or is an owner of any land or interest therein in the
Site or in the Project Area. The Agency shall have the right,
if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the
curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
After issuance of a Certificate of Completion for all
grading and improvements to be completed by the Participant
pursuant to this Agreement, all of the terms, covenants,
agreements and conditions set forth in this Agreement relating
to the Site shall cease and terminate as to that portion of the
Site for which the Certificate of Completion is issued,
excepting only the provisions listed below which shall survive
as follows:
(a) Sections 301, 302 and 303 relating to Uses,
Maintenance and Access.
(b) Section 203 (relating to indemnification and
insurance) shall remain in effect in accordance with the
terms and conditions set forth therein.
(c) Sections 500 to 510 and (relating to rights and
remedies) shall remain in effect to the extent necessary to
enforce other provisions of this Agreement.
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IV. [ §400] GENERAL PROVISIONS
A. [ §401] Notices, Demands and Communications Between
the Parties
Written notices, demands and communications between
the Agency and the Participant shall be sufficiently given if
delivered by hand (and a receipt therefor is obtained or is
refused to be given) or dispatched by registered or certified
mail, postage prepaid, return receipt requested, to the
principal offices of the Agency or Participant. Such written
notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time to
time designate by mail as provided in this Section 401.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand or if
delivered by registered or certified mail return receipt
requested.
B. [ §402] Conflicts of Interest
No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this
Agreement, nor shall any member, official or employee
participate in any decision relating to the Agreement which
affects his personal interests or the interests of any
corporation, partnership or association in which he is directly
or indirectly interested.
The Participant warrants that it has not paid or
given, and will not pay or give, any third party any money or
other consideration for obtaining this Agreement.
C. [ §403] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
in default, and all performance and other dates specified in
this Agreement and the Attachments hereto shall be extended
where delays or defaults are due to: war; insurrection;
strikes; lockouts; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority;
litigation; unusually severe weather; inability to secure
permits, necessary labor, materials or tools; delays of any
contractor, subcontractor or supplier; acts or omissions of the,
other party; acts or failures to act of the City of Poway or
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any other public or governmental agency or entity (other than
the acts or failures to act of the Agency which shall not
excuse performance by the Agency); or any other causes beyond
the control or without the fault of the party claiming an
extension of time to perform. Notwithstanding anything to the
contrary in this Agreement, an extension of time for any such
cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause,
if notice by the party claiming such extension is sent to the
other party within thirty (30) days of the commencement of the
cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Agency and
Participant.
D. [ §404] Nonliability of Officials and Employees of
the Agency
No member, official or employee of the Agency or the
City shall be personally liable to the Participant, or any
successor in interest, in the event of any default or breach by
the Agency (or the City) or for any amount which may become due
to the Participant or its successors, or on any obligations
under the terms of this Agreement.
V. [ §500] DEFAULTS AND REMEDIES
A. [ §501] Defaults -- General
Subject to the extensions of time set forth in
Section 403, failure or delay by either party to perform any
term or provision of this Agreement constitutes a default under
this Agreement. The party who so fails or delays must
immediately commence to cure, correct or remedy such failure or
delay, and shall complete such cure, correction or remedy with
diligence.
The injured party shall give written notice of default
to the party in default, as well as other persons or entities
entitled to notice hereunder, specifying the default complained
of by the injured party. Except as required to protect against
further damages, the injured party may not institute
proceedings against the party in default until thirty (30) days
after giving such notice or, provided that the party is
proceeding with diligence to cure, such greater time as may be
necessary to cure giv?n the nature of the default. Failure or
delay in giving such notice shall not constitute a waiver of
any default, nor shall it change the time of default.
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B. [ §502] Legal Actions
1. [ §503] Institution of Legal Actions
In addition to any other rights or remedies and
subject to the restrictions in Section 501, either party may
institute legal action to cure, correct or remedy any default,
to recover damages for any default, or to obtain any other
remedy consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of San Diego, State of California, in an appropriate
municipal court in that county, or in the Federal District
Court in the Southern District of California.
2. [ §504] Applicable Law
The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
3. [ §505] Acceptance of Service of Process
In the event that any legal action is commenced
by the Participant against the Agency, service of process on
the Agency shall be made by personal service upon the Director
or in such other manner as may be provided by law.
In the event that any legal action is commenced
by the Agency against the Participant, service of process on
the Participant shall be made by personal service upon an
officer of the Participant and shall be valid whether made
within or without the State of California or in such other
manner as may be provided by law.
C. [ §506] Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are
cumulative, and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
D. [ §5071
Inaction Not a Waiver of Default
Any failures or delays by either party in asserting
any of its rights and remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies, or deprive either such party of its right to
institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
06/02/89
4009n/2345/015 -13-
II67
E. [ §508] Remedies and Rights of Termination
1. [ §509] Damages.
If either party defaults with regard to any of
the provisions of this Agreement, the non - defaulting party
shall serve written notice of such default upon the defaulting
party. If the default is not cured or commenced to be cured by
the defaulting party within thirty (30) days after service of
the notice of default (or within such other period as is set
forth herein), the defaulting party shall be liable to the
other party for any damages caused by such default.
2. [ §510] Specific Performance
If either party defaults under any of the provisions
of this Agreement, the non - defaulting party shall serve written
notice of such default upon the defaulting party. If the
default is not cured by the defaulting party within thirty (30)
days of service of the notice of default, or such other time
limit as may be set forth herein with respect to such default,
the non - defaulting party at its option may thereafter (but not
before) commence an action for specific performance of terms of
this Agreement.
VI. [ §600] SPECIAL PROVISIONS
A. [ §601] Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and
inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties.
B. [ §602] Amendments to this Agreement
The Participant and the Agency agree to mutually
consider reasonable requests for amendments to this Agreement
provided said requests are consistent with this Agreement and
would not substantially alter the basic business terms included
herein. The Agency agrees to reasonably consider changes
requested in the Schedule of Performance dates where
Participant has provided evidence that the current market for
the contemplated uses is not feasible to secure the type of
tenants that the parties are intending to occupy the
development.
06/02/89
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1168
VII. [ §700] ENTIRE AGREEMENT
This Agreement may be signed in counterparts, and is
executed in five (5) duplicate originals, each of which is
deemed to be an original. This Agreement includes pages 1
through A16 and Attachments 1 through 6, which constitutes the
entire understanding and agreement of the parties.
This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiations or previous agreements between the
parties or their predecessors in interest with respect to all
or any part of the subject matter hereof.
06/02/89
4009n/2345/015 -15-
IN WITNESS WHEREOF, the Agency and the Participant
have signed this Agreement on the respective dates set forth
below.
1989 POWAY EVELOPMENT AGENCY
By:
V
Chairman
ATTEST:
Secreta y
APPROVED AS TO FORM:
Stradling, Yocca, Carlson & Rauth,
Special Counsel to the Agency
A. /t & ii! Agency Counsel
CORPORATE ACKNOWLEDGMENT
State of 112�rn 1'e.
SS.
County of so„ '21f end__
7120 122
t pzy�
SR, VtC , President
ADI Properties, Inc.
1169
"AGENCY"
1170 NO. 202
On this the 27 tlay of 7-U .Q. 19 T , before me,
C;E4 4DI`ok&4l
the undersigned Notary Public, personally appeared
F, Rex emw.o. =
W Proved to me 011 the basis of safisfactory evidence
to be the persorX who executed the within instrument as
SR. UICE 10RFSi0eAJT bCOn behalf of the corporation therein
named, and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Owner /-4r T� C Apo ties, 1�99 /'fie+ e. 'O
0/ PioperT�es
1111
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On the .2? 2— day of Sur e" , 1989, before me, the under-
signed, -T Notary Public in and for said State and County, personally
appeared Carl R. Kruse and Marjorie K. Wahlsten, personally known to me
to be the persons who executed the within instrument as the Chairman and
Secretary, on behalf of the POWAY REDEVELOPMENT AGENCY, the corporation
therein named, and acknowledged to me that such corporation executed the
within instrument pursuant to its bylaws or a resolution of its board of
directors.
WITNESS my hand and official seal.
OFFICIAL SEAL ZL O
CATHYSWKAW Notary ubl i
` Notary PUWIC Y 12
°•e"® SAN DIEGO COUNTY
i
MY Conga. ft. May 14,1909
ATTACHMENT N0. 1
STTF. MAP
COMMUNITY,
R D. —.�
-- - ' /POWAY -- --- -as: su
CIVIC CENT
MIDLAND
RD.1 . - R D.
1172
05/25/89
3977n/2345/15
ATTACHMENT N0. 1
ATTACHMENT NO. 2
LEGAL DESCRIPTION 1173
All that DOrtion of the Northwest Quarter of the Southeast Quarter of Section
13, To- r.s!ip 14 South, Range 2 West, San =ernardino Base and *teridian, in the
City of Poway, County of San Diego, State of California, according to Official
Plat_ thereof, descried as follows:
Beginning at the intersection of the Souza line of Poway Road (100.00 feet wide)
with the ;lest line of said Northwest Quarter of the Southeast Quarter; thence
South 88'42'31" East (Record South 86 041'47" East) along the South lire of said
Poway Road to a line which is parallel with and distant 40.00 feet measured at
right angles from the West line of said Northwest Quarter of the Southeast
Quarter; thence South 2 019'49" West (Record South 2'20'33" West) 1010.36 feet
along said parallel line to the TRUE POINT OP BEVIK�N G; thence leaving said
lire North 12 009145" East (Record North 12 110'29" East) 70.27 feet to a point
on a line parallel with and distant 52.00 feet East Measured at right angles
fro? said Best line; thence North 2'19149" East (Record North 2'20'33" East)
76.14 feet to Point A of this description; thence continuing North 2119'49" East,
189.26 _`eat; thence North, 2007105" East (Record North 2 107'49" East) 270.00 feet
to a point on a line parallel_ with and distant 51.00 feet East measured at right
angles fron said hest line; thence North 2'19'49" East (Record North 2 120133"
East) 386.28 feet along the last described parallel lire to the beginning of a
tangent curve concave Southeasterly and }:giving a radius of 20 feet; thence
Northerly, Northeasterly, and Easterly along the arc of said curve through a
central angle of 88057134" (Record 88257'401 a distance of 31.05 feet td a point
of cusp vita a tangent lina, a radial line through said point bears North 1117'23"
East (:Record North 1 °18'13" East) said tangent line being the South lire of said
Poway Road; thence South 66 142137" East, 1699.87 feet, along said South line
to a Doi-it distant thereon North 8S'42'37" West, 106.14 feet (Record North
89007'52" West, 105.78 feet) from its intersection with the --eat line of said
Northwest Quarter of the Southeast Quarter being the beginning of a tangent
20.00 foot radius curve concave Southwesterly in the boundsry of land described
under Parcel 481 -03 in deed to the City cf Pc -Way, recorded July 20, 10087 as
File No. 87- 404233 of Official Records. thence along said boundary as
follows: Southeasterly and Southerly along the arc of said 20.00 foot radius
curve through a central angle of 94010'15" (Record 94'09'30 ") a distance of
32.66 feet; tangent to said curve Scuth 5 127136" West (Record South 5'00'30"
We= -t) 213.79 feet to the beginning of a tangent 1042.00 foot radius curve
concave Easterly; Southerly along the arc of said curve through a central angle
of 4 008'35 ", a distance of 75.35 feet; 'tangent to said curve South 1019103" West
(Record South 0 052'03" West) 33.20 to point B of this description; continuing
South 1019103" Wcst, 228.24 feet; South 85'40157" East (Record South 69007'57"
East) 84.00 feet to a non- tangent 20.00 foot radius curve concave Southeasterly,
a radial line of said curve bears North 58 140'57" West (Record North 89`07157"
West) to said point; end Northeasterly and Easterly along the arc of said curve
through a central an.ele of 91100122" (Record 89'59'27 ") a distance of 31.77
feet to the East line of said Northwest quarter of the Southeast Quarter;
thence leaving the
e bou of said Parcel 481 -03, South 1 °19'03" hest, 723.66
feet a'_ong said East line_ to t:.= Southeast corner cf said Northwest Quarter .
of the southeast Quarter, thence along the Souati line of said Northwest Quarter
of the Southeast Quarter North 88 °47'17" West, 1259.22 feet to a point distant
ATTACHMENT NO. 2
Page 1 of 2
1174
theron South 88 °47117" East, 40.01 feet from the Southwest corner of said
Northwest Quarter of the Southeast Quarter said point being on a line parallel
with and distant 40.00 feet East measured at right angles from the West line of
said Northwest Quarter of the Southeast Quarter; thence along said parallel line
North 2 °19'49" East, 266.67 feet to the TRUE POINT OF BEGINNING.
Excepting therefrom that portion lying Northerly of the following described
line:
Beginning at the hereinabove said point A; thence South 75 000100" East, 20.50
feet; thence North 89 °18127" East, 134.59 feet; thence North 63 021'24" East,
142.74 feet; thence North 55 045154" East, 359.86 feet; thence North 62 °22'32"
East, 108.48 feet; thence North 73 °37133" East, 151.91 feet; thence North
63 029151" East, 179.93 feet; thence North 65 00510911" East, 107.81 feet; thence
North 78 023104" East, 55.77 feet; thence North 75 000100" East, 12.98 feet to the
hereinabove said point B.
6 /A /HALEY.1•t
ATTACHMENT N0. 2
Page 2 of 2
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
I. PRELIMINARY REVIEW
1175
1. Execution of Agreement by Agency. Not later than (30) days after
The Agency shall approve and execute approval by the Agency and subject
this agreement, and shall deliver to the prior execution and sub -
one (1) copy thereof to the mission of three (3) copies of this
Participant. Agreement by the Participant.
2. Submittal of Development Review
Application by Participant.
Participant shall prepare and submit
to the Agency an application for
Development Review to include pre-
liminary design drawings and
environmental assessment.
3. Agency Review of Application and
Determination of Completeness.
If Agency determines that Application
is complete, any requested revisions
to preliminary design drawings are
submitted to Participant. If
Application is incomplete, Agency
requests additional information
needed.
4. Submission of Revised Preliminary
Design Drawings.
If original submittal or resubmittal
was deemed incomplete and /or revisions
to preliminary design drawings were
requested, Participant provides
additional information as requested
and /or resubmits revised preliminary
design drawings.
Within thirty (30) days after
execution of this Agreement.
Within thirty (30) days of receipt
of Application.
Within thirty (30) days of receipt
of comments by Agency or its
designee.
5. Agency Hearing on Development Review. Within sixty (60) days of receipt
Agency prepares and schedules for of completed Application by
hearing the Development Review report Participant.
and resolution to include development
conditions.
Attachment No. 3
Page 1 of 3
Schedule of Performance 117 6
II. CONSTRUCTION DOCUMENTS AND BUILDING PERM
6. Submission of Complete Construction Within thirty (30) days after Agency
Drawings and Landscaping Plan. approval of Development Review.
Participant shall submit complete
Construction (working) Drawings and
a Final Landscaping Plan, Sign Program,
and Finishing Grading Plan.
7. Review of Complete Drawings and Plans. Within thirty (30) days after
The Agency or its designee shall submittal.
approve or disapprove the Complete
Construction (working) Drawings and
the Landscaping Plan, Sign Program,
and Finish Grading Plan.
8. Revisions, if any. Within ten (10) days after receipt
Participant shall prepare revised of comments by Agency or its
Construction (working) Drawings as designee.
necessary, and submit them to
Agency for review.
Final Review of Complete Drawings.
The Agency or its designee shall
approve the revisions submitted by
the Participant provided that the
revisions necessary to accommodate
the comments by Agency or its
designee have been made.
10. Obtaininq of Buildinq Permits.
Participant shall obtain all
building and other permits
needed to commence construction
of the Improvements.
Within ten (10) days after
submittal by Participant.
Not later than thirty (30) days
after final approval of complete
drawings.
Attachment No. 3
Page 2 of 3
Schedule of Performance
III. CONSTRUCTION PHASE
11. Commencement of Construction.
Participant shall commence
construction of the Developer
Improvements.
12. Completion of Retail Building
Shell and Restaurant Pads.
Participant shall complete
construction of the Retail
Building Shells and the
Restaurant Pads.
13. Completion of Construction.
Participant shall complete
construction sufficient to obtain
a Certificate of Completion.
Within ten (10)
approval of the
the Site.
1177
days after the
rough grading of
Not later than the earlier of (1)
twenty -one (21) months from the
vacation of the last tenant of the
Site or (2) eighteen (18) months
from the approval of rough grading
of the Site.
Not later than three (3) years from
the approval of the rough grading
of the Site.
Attachment No. 3
M /REVIEWI -3 Page 3 of 3
1178
ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically delineated on the Site
Map (Attachment No. 1) and the Legal Description (Attachment
No. 2) pursuant to Section 103 of this Agreement.
II. DEVELOPMENT
A. The Participant shall develop the Site with
retail buildings of not less than eighty thousand (80,000)
square feet of gross floor area at an approximate cost of fifty
dollars ($50.00) per square foot, suitable for operation of a
new major tenant (junior departmental store) and two family
style restaurants and with office buildings of not less than
twenty thousand (20,000) square feet of gross floor area. All
such space shall consist of buildings approved for occupancy,
fully enclosed and under roof, unless the Agency hereafter
allows deviation from such requirement in a writing referencing
this Scope of Development (Attachment No. 5). Such buildings
shall be constructed of masonry, concrete, concrete block, or
such other materials as may hereafter be approved by the
Agency; prefabricated metal components shall not be utilized on
exterior walls.
The Participant shall complete all of the
improvements set forth in this Scope of Development (Attachment
No. 4) to be constructed on the Site in one phase. All of the
improvements to be provided by the Participant on the Site
constitute the "Improvements." The Improvements include those
off -site improvements required to be provided by the
Participant, as specified in Section IV A. of this Attachment.
The Participant shall commence and complete the
Improvements and the Site Grading by the respective times
established therefor in the Schedule of Performance (Attachment
No. 3).
The Participant shall provide parking on the Site
in conformity with the specific plan, the Redevelopment Plan
and City requirements.
06/02/89 ATTACHMENT NO. 4
4009n/2345/015 Page 1 of 4
The design and configuration of the parking faciliA 9
shall be compatible with adjacent and nearby uses, as
reasonably determined by the Agency and City.
III. DEVELOPMENT STANDARDS
All development on the Site, and operations thereon,
shall conform to the development standards including any
requirements pursuant to a specific plan. In addition, the
following development standards shall also apply to the
Improvements:
A. Building Setbacks. Minimum building setbacks for
buildings and parking areas shall be as required by the
Redevelopment Plan and approved by the Agency, and shall
conform to the Poway City Code.
B. Building Coverage. The amount of land within the Site
covered by buildings shall be as required by the Redevelopment
Plan and local zoning.
C. Building Height. Buildings shall not exceed the
height as may be required by the Redevelopment Plan and local
zoning.
D. Vehicular Access. The placement of vehicular
driveways shall be coordinated with the needs of proper street
traffic flow. In the interest of minimizing traffic
congestion, the Agency will control the number and location of
curb breaks for access to the Site for off - street parking and
truck loading. All access driveways shall require written
approval of the Agency.
E. Loading. Adequate loading and unloading space shall
be provided as approved by the Agency. Loading spaces visible
from streets shall be landscaped or screened to prevent an
unsightly or barren appearance. Said requirements shall also
conform to Poway City Code.
F. Signs. Signs shall be limited in size, subdued and
otherwise designed to contribute positively to the
environment. Signs identifying the building use will be
permitted, but their height, size, location, color, lighting
and design will be subject to Agency and City approval, and
signs must conform to the Poway City Code.
06/02/89 ATTACHMENT NO. 4
4009n/2345/015 Page 2 of 4
1180
G. Screening. All outdoor storage of materials or
equipment shall be enclosed or screened to the extent and in
the manner required by the Agency and the City.
H. Landscaping. The Participant shall provide and
maintain landscaping within the public rights -of -way and within
setback area along all street frontages and conforming with the
Site Plan as approved by the City and Agency.
Landscaping shall consist of trees, shrubs and
installation of an automatic irrigation system adequate to
maintain such plant material. The type and size of trees to be
planted, together with a landscaping plan, shall be subject to
the Agency approval prior to planting.
I. Utilities. All utilities on the Site shall be
underground or enclosed at Participant's expense.
J. Painting. All exterior walls to be painted pursuant
to the Site Plan shall be painted by the Participant with
color(s) subject to Agency approval.
K. Building Design. Buildings shall be constructed such
that the Improvements be of high architectural quality, and
shall be effectively and aesthetically designed.
IV. PUBLIC IMPROVEMENTS AND UTILITIES
A. The Participant, at its own cost and expense, shall
provide or cause to be provided the following public
improvements within the time set forth for the completion of
the Improvements in the Schedule of Performance (Attachment No.
3):
1. Improvements as required by the City including curbs
and gutters, drive and curb cuts, and drives between
the property line of the Site and the public
rights -of -way abutting on the Site.
2. Installation of signs and fire hydrants in connection
with the Site as may be required.
3. Installation of public sidewalks along the frontage of
the public streets abutting on the Site or within the
rights -of -way lines of such public streets, and
appropriate street landscaping which the Agency or
City might require.
06/02/89 ATTACHMENT NO. 4
4009n/2345/015 Page 3 of 4
1181
4. Installation or relocation by the public utility
companies of such sewers, drains, water and gas
distribution lines, electric, telephone and telegraph
lines, and all other public utility lines,
installations and facilities as are necessary to be
installed or relocated on or in connection with the
Site by reason of the redevelopment contemplated by
the Redevelopment Plan and the development of the
Site; the Agency shall not be responsible for, nor
bear any portion of the cost of, installing the
necessary utility connections within the boundaries of
the Site between the improvements to be constructed by
the Participant and the water, sanitary sewer, an
storm drains, mains or other public utilities owned by
the City or by any public utility company within or
without such boundaries, or electric, gas, telephone
or other public lines owned by a public utility
company within or without such boundaries, and the
Participant shall secure any permits required for any
such installation without expense to the Agency.
B. All of the items described in Part IV.A. above, shall
be performed in accordance with the technical specifications,
standards and practices of the City. The Participant's plans
for such public improvements shall be submitted to the Agency
for review and approval prior to the advertising of bids. Once
such items are construct, Participant shall be responsible, at
its expense, for (1) any and all repairs due to damages caused
by Participant's construction, and (2) changes required by the
Participant.
V. DEMOLITION AND SOILS
The Participant assumes all responsibility for surface
and subsurface conditions at the Site, the suitability of the
Site for the Improvements and the operation of a shopping
center thereon. If, after the close of escrow, the surface and
subsurface conditions are found to be not entirely suitable for
such development, the Participant shall at its cost take all
actions necessary tc render the Site entirely suitable for such
development.
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4009n/2345/015 Page 4 of 4
1182
ATTACHMENT NO. 5
CC &Rs
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO )
AND MAIL TAX STATEMENTS TO: )
[Space above line for recorder's use only.]
DECLARATION OF ESTABLISHMENT OF
PROTECTIVE COVENANTS, CONDITIONS AND
RESTRICTI0NS AND GRANT OF EASEMENTS
THIS DECLARATION A14D GRANT is made as of , by
and between POWAY REDEVELOPMENT AGENCY (the "Agency ") and ADI PROPERTIES,
INC., a California corporation (the "Participant ").
RECITALS:
1. The parties hereto are the owners of that certain real property
located in the City of Poway, County of San Diego, State of California, more
particularly described in Exhibit "A" attached hereto, and by this reference
made a part hereof, which real property is hereinafter called the "Commercial
Center "; and
2. The parties hereto desire, effective upon the date this Declaration
is recorded in the office of the San Diego County Recorder, to subject each
and every portion of the Commercial Center to the covenants, conditions and
restrictions hereinafter set forth, and to establish the appurtenant easements
hereinafter described, pursuant to a general plan of improvement of the
Commercial Center as a shopping and service center, and for the mutual benefit
of the owners of any and all portions thereof and their respective heirs,
successors, assigns, grantees, mortgagees, tenants, and subtenants; and
3. The parties do hereby establish the
restrictions hereinafter set forth, and grant
described.
covenants, conditions and
the easements hereafter
06/02/89 ATTACHMENT NO. 5
4OO9n/2345/O15 Page 1 of 7
1183
Section 1. ADI Properties Inc. and the Agency have entered into
an agreement relating to the acquisition, disposition, development, and use of
the Commercial Center; said Agreement, which is entitled "Owner Participation
Agreement by and between the Poway Redevelopment Agency and ADI Properties
Inc." (herein, the "OPA ") is dated as of , and is on file
with the Clerk of the Agency as a public record. All signators to this
Declaration have had a full opportunity to review the OPA. The OPA is
incorporated herein by reference.
Section 2. All uses shall be conduced at the Commercial Center in
conformity with the Redevelopment Plan, all applicable laws and the OPA.
Section 3. Nondiscrimination:
(i) Each owner covenants by and for himself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin, or ancestry in the same, lease,
sublease, transfer, use, occupancy, tenure, or enjovment of the Commercial
Center, nor shall the grantee or any person claiming under or through him or
her establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the
Commercial Center. The foregoing covenants shall run with the land.
(ii) Each owner shall include in any deed with respect to all or
any portion of the Commercial Center the following language:
"The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and
assigns, and all persons claiming under or through them,
that there shall be no discrimination against or
segregation of, any person or group of persons on account
of race, color, creed religion, sex, marital status,
national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the
premises herein conveyed, nor shall the grantee or any
person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants,
sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land."
(iii) Each owner shall include in any lease with respect to all or
any portion of the Commercial Center the following language:
06/02/89 ATTACHMENT N0. 5
4009n/2345/015 Page 2 of 7
1184
"The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administators, and
assigns, and all persons claiming under or through him or
her, and this lease is made and accepted upon and subject
to the following conditions:
That there shall be no discrimination against or
segregation of any persons or group of persons, or account
of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself, of any
person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location,
number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased."
Section 4. The Agency shall have the right but not the obligation
to enforce any of the provisions of this Declaration.
Section S. The City and the Agency shall be exempt from any
obligation pursuant to this Declaration, including without limitation the
obligation to pay in connection with maintenance, taxes, or insurance,
irrespective of whether the City of Agency should acquire title to the
property described in Exhibit "A ", or any portion thereof. No City or Agency
property shall be subject to assessment or lien pursuant to this Declaration.
Section 6. The captions heading the various sections of this
Declaration are for convenience and identification only, and shall not be
deemed to limit or define the contents of their respective sections.
Section 7. All the provisions of this Declaration shall be
covenants running with the land pursuant to applicable law, including but not
limited to Section 1468 of the Civil Code of the State of California. It is
expressly agreed that each covenant to do or refrain from doing some act on
the Commercial Center (described in Exhibit "A" hereto) or any part thereof as
the covenantor:
(a) Is for the benefit of the land of the convenantee;
(b) Runs with both the land owned by the covenantor and the land
owned by the convenantee; and
(c) Shall benefit or be binding upon each successive owner, during
his ownership and thereat ter with regard to matters occurring during his
ownership, or any portion of to land affected hereby and each person having
any interest therein derived through any owner of the land affected hereby.
06/02/89 ATTACHMENT N0. 5
4009n/2345/015 Page 3 of 7
1185
Section 8. The provisions of this Declaration shall not be deemed to
constitute a dedication for public use nor to create any rights in the general
public.
Section 9. This Declaration, executed as of the date hereof, shall
take effect only upon, from, and after its recording in the office of the
County Recorder of the County in which the Commercial Center is situated.
IN WITNESS WHEREOF, this DECLARATION AND GRANT is executed as of the
day and year first above written.
Witness
06/02/89
4009n/2345/015
POWAY REDEVELOPMENT AGENCY, a
California limited partnership
Um
ATTACHMENT NO. 5
Page 4 of 7
EXHIBIT "A" i
LEGAL DESCRIPTION 1 86
All that vortion of the Northwest Quarter of the Southeast Quarter of SectiOn
13, 10.1sh_p 14 South, Rance 2 West, can rerrarcino Base and Meridian, in the
City of Poway, County cf San riiescC, State of California, according to Official
Plat_ thereof, described as follows:
Beginning at the intersection of the South line of Foway Road (100.00 feet wide)
with the nest line of said Northwest Quarter of the .Southeast Quarter; thence
South 85`42'37" East (Record South 86 °41'41" East) along the South line of said
Foway Road to a line which is parallel with and. distant 40.00 feet neasured at
right angles from the West line of said Northwest Quarter of the Southeast
Quarter; thence South 2 119'49" West (Record South 2 020133" West) 1010.36 feet
along said parallel line to the TRU_ POI`i 02 BEGINNING; thence leaving said
lire North 12 009'45" East (Record North 12 110'29" East) 70.27 feet to a point
on a line parallel with and distant 52.00 feet East measured at right angles
fro.n said l•;est line; thence North 2119149" East (Record North 2 120133" East)
76.14 fast to Point A of this description; thence continuing North 2 °19'49" East,
189.26 `eat; thence North 2 °07'05" East (Record North 2 107149" East) 270.00 feet
to a point on a line parallel with and distant 51.00 feet East measured at right
angles iron said West line; thence North 2 019'49" East (Record North 2 °20133"
East) 366.28 feet along the last_ described parallel lire to the beginning of a
tangent curve concave Southeasterly and having a radius of 20 feet; thence
Northerly, Northeasterly, and Easterly along the arc of said curve through a
central angle of 88°57134" (Record 88'57'40 ") a distance of 31.05 feet td a point
of cuso vita a tenzant line, a -radial line through said point bears North 1 017'23"
East (Record 'North 1 °18'1'3" East) said tangent line being the South lire of said
Poway Road; thence South 85`42137" East, 1699.87 feet, along said South line
to a point distant thereon North 85 °42'37" West, 106.14 feet (Record North
89 007152" 'nest, 105.78 feet) from its intersection with the East line of said
NOri}'iwESi Quarter OI the Southeast Quarter being the beginning Of a tangent
20.00 foot radius curve concave Southwesterly in the bc,=aary of land described
under Parcel 481 -03 in deed to the City of Poway, recorded July 20, 10087 as
File No. 87- 404233 of Official Records; thence along said boundary as
follows: Southeasterly and Southerly along the arc of said 20.00 foot radius
curve through a central angle of 94 °10'15" (Record 94`08'30 ") a distance of
32.86 feet; tangent to said curve South 5 027138" West (Record South 5 °00'30"
West) 213.79 feet to the beginning of a tangent 1042.00 foot radius curvy
concave Easterly; Southerly along the arc of said curve through a central angle
of 4008135 ", a distance of 75.35 feet; tangent to said curve South 1 019'03" test
(Record ;oath 0 952103" SSest) 33.20 to point B Of this description; continuing
South 1`19'03" Kest, 228.24 feet; South 65'40151" Fes'. (Record South 89'07'57"
East) 84.00 feet to a non- tangent 20.00 foot radius curve concave Southeasterly,
a radial line of said curve bears North 88 240'57" West (Record North 89107157"
West) to said point; and Northeaster!), and Easterly along the arc of said curve
through a central angle of 91100122" (Record 89159'27 ") a distance of 31.77
feet to the East line of said Northwest Quarter of the Southeast Quarter;
thenca leaving tae boundary of said Parcel L81 -03, South 1 °19'03" West, 723.66
feet along said East line to the Southeast corner of said Northwest Quarter
of the southeast Quarter; thence along the south line of said Northwest Quarter
of the Southeast Quarter North 89`47'17" West, 1259.22 feet to a point distant
ATTACHMENT NO. 5
Page 5 of 7
1187
theron South 88 047117" East, 40.01 feet from the Southwest corner of said
Northwest Quarter of the Southeast Quarter said point being on a line parallel
with and distant 40.00 feet East measured at right angles from the West line of
said Northwest Quarter of the Southeast Quarter; thence along said parallel line
North 2 019149" East, 266.67 feet to the TRUE POINT OF BEGINNING.
Excepting therefrom that portion lying Northerly of the following described
1ine:
Beginning at the hereinabove said point A; thence South 75 000100" East, 20.50
feet; thence North 89 018127" East, 134.59 feet; thence North 63 021'24" East,
142.74 feet; thence North 55 045'54" East, 359.86 feet; thence North 62 022'32"
East, 108.48 feet; thence North 73 °37'33" East, 151.91 feet; thence North
63 °29'51" East, 179.93 feet; thence North 65 °05109 "" East, 107.81 feet; thence
North 78 023104" East, 55.77 feet; thence North 75 000100" East, 12.98 feet to the
hereinabove said point B.
6 /A /HALEY.1•;
ATTACHMENT N0. 5
Page 6 of 7
COMMUNITY,
R D.-7 �
CIVIC CENT
— ,R)WAY - - -- - -R.s: s44
EXHIBIT "B"
SITE MAP
MIDLAND
RD.l ../ ' . RD .
..
05/25/89
4009n/2345/015
ATTACHMENT NO. 5
Page 7 of 7
•o
ATTACHMENT NO. 6
CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY AND )
When Recorded Mail To: )
Stradling, Yocca, Carlson )
& Rauth )
660 Newport Center Drive )
Suite 1600 )
Newport Beach, CA 92660 )
(Space Above Provided For Recorder)
WHEREAS, the Poway Redevelopment Agency, a public
body, corporate and politic, sometimes hereinafter referred to
as "Agency" and ADI Properties, Inc. (Participant) entered into
an Owner Participation Agreement (Agreement) on ,
which was recorded on as Document No. of the
Official Records of the County Recorder of the County of San
Diego, California.
WHEREAS, as referenced in said Agreement, the Agency
shall furnish the Participant with a Certificate of Completion
upon completion of construction and development, which
certificate shall be in such form as to permit it to be
recorded in the Official Records of the County Recorder of the
County of San Diego, California; and
WHEREAS, such Certificate of Completion shall
constitute a conclusive determination by the Agency of the
satisfactory completion by the Participant of the construction
and development required by the Agreement and of the
Participant's full compliance with the terms of the Agreement
with respect to such construction and development; and
WHEREAS, the Agency has conclusively determined that
the construction and development on the real property described
in Exhibit "A" required by the Agreement has been
satisfactorily completed by the Participant in full compliance
with the terms of the Agreement.
06/02/89 ATTACHMENT NO. 6
4009n/2345/015 Page 1 of 2
1190
NOW, THEREFORE,
1. As provided in the Agreement, the Agency does
hereby certify and determine that the construction and
development on the real property described in Exhibit "A" has
been fully and satisfactorily performed and completed in full
compliance with the terms of the Agreement.
2. Except as otherwise expressly provided in this
Certificate of Completion, nothing contained in this instrument
shall modify in any other way any other provisions of the
Agreement.
IN WITNESS WHEREOF, the Agency has executed this
Certificate of Completion this of , 1989.
POWAY REDEVELOPMENT AGENCY
Executive Director
06/02/89 ATTACHMENT NO. 6
4009n/2345/015 Page 2 of 2