Development Agreement 2004-0147275
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100'76 ' FE,13 25. 2004 8::':'5 ;~t1
RECORQING,REQUESTED BY, ,OFFICIAl RECORDS' \
SAN DIEGO COUNTY RECORDER' SOFFICE
CITY,cLERK,;CITY OFPOWAY GRffilRYJ.,.SMITH, COUNT,Y:RECORDER I
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FEES: 206,00 ,
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W8EN RECORDED MAIL TO' I
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CITY CLERK
,. CITYOFPOWAY ,
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<<,<6 13325 CIVIC CENTER DRIVE , 1111111111111111111111111111111111111111111111111111111111111111111111
, ,POW A Y, CA 92064 '!;~._.._.. ~,.:.2qq4:q.14?275 ,"j J
@'A~ THIS SPACE FOR RECORDER'S USE ONLy
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\bdi Recording Fees Exempt Per Government Code Section 27383
DEVELOPMENT AGREEMENT
between
CITY OF POWAY
and
COST60 WHOLESALE CORPORATION
September 2, 2003
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Table of Contents
Page
ARTICLE I
Recitals .2
11 Code Authorization..................,..".....................,..,............."."........,.............."..............,....,..... ..,...,....2
1.2. Interest of Owner c....,.........."."..........,...,............,.............,.....................,.....,.......,...2
1.3. .Intent of Parties ,.......,.,................,.........,..,..........",......,......,..........,..".,.......".............,..3
14.. Entitlements 4
ARTICLE II
Definitions ..........................-..5
2.1 "Effective Date" ...........................................5
2.2. "Entitlements" ............".,..,...,..,.............,.."..,............................,...............................6
2.3. '''Exaction'' .,............."..,.......,..",.........",..,....,.6
2.4 "Existing Laws" iO.....'.....................".,..,........."..............,.............,.,...........,......,........,...;"........6
2,5. "Future Exaction" .,.,.....c;;........6
2.6.. "Future Laws" "............,,:.,....6
2.7 ,iF,uture Entitlements" 7
2.8. "General Fees" .0...-0.......7
2.9. "General Plan" .. ...,
2.10. "Project" 7
ARTICLE III
General Provisions 7
3.1 Term of Agreement 7
3.2. Assignment .8
3.3. Amendment of Agreement.....................,.....,............................ ........,..................................................9
3.4 Enforcement.....,...,..........,..,..,.............,.............,............,..............,..".,.....,.,...,.,...,.......... ...............,.,1 0
3.5. Hold Harmless 10
3.6. Third Party Challenges........,......................., ............,..................,......,.............. ..........., ....................10
3.7 Notices .......................,.............................................10
3.8. Conflict of State or FedeniIL<iws. ....................................................11
ARTICLE IV
Development,ofthe Property ............, ...............................".............................................12
4 1 'Applicable Rules, Regulations, and Po"ficies, 12
4.2. Entitlement tq Develop 12
4.3.. . Generally",..., ...,......., ,....,...,.,................,...,..,.......,...,.,........................,....,...,......,.........,.....". 12
44 Public Safetyigules 13
4.5. Existing.Laws 13
4.6. Future Laws ........,.......... ..................,........................,.........., ,........,........".....................................13
47.. Future'Entitlements 14
48. Building, Permits........... ........,............................................,................".......................,.........,......... 14
4.-9. Parcel Maps:. ........,..................,..........,...................,.........., 15
4 10., l!1odification,ofApprovals 15
411 Pennilted Uses and Density:...........................................................................................................16
412. Permitted Fees. ........................................................................................:..............., 16
4 13. Time for Construction and Completion of tneproject. ;........... ................16
4 14 Moratorium 17
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Table of Contents
(continued)
Page
4,15.0peratingMemoranda. ...............................................................................................18
416. Term ofMap(s) and Other'Pfbject Approvals 19
4,1 TI)1frastructure Capacity 19
4,18. Termination or Modification............................... ................... c................................ ........... ..... ........ ,. ,19
ARTICLE V
Provision of Public Benefits 19
5c 1 Description of Public Benefits .20
5.2. Timing of the Public Improvements 20
ARTICLE VI
Construction and Reimbursement of Public Improvements .20
6.1 OwnerHespohsibilites.... ....... ........................ ...... ,....... ..,.... ..c. .,. ....... ....................... .... ............ ..........20
6.2. City Responsibilities .20
ARTICLE VII
Annual Review,.. ... '" ... .,.. '.. ,.... ... ,...,.. ... ... ......... ,.... ..." ,.,.... ,.. ...,... .... ... .... .,...... .... ....,....... ... .... .,............ ..,.". ... 21
71 City,Responsibilities. .21
7.2. Owner Responsibilities:, .21
7.3. Opportunity to be Heard ,.,........,.,.."........,..."...............................................,.............................,.21
7 4 Information to be Provided io Owner .........21
7.5. Annual Review Letter .2"2
7.6. Estoppel Certificates ..... .......;........ .....................,...."......,....................................... ............. .... ...c .......22
77 Failure of Annual Review ,............,..........................,........................................................................23
ARTICLE VIII
Delay, Default, Remedies,'cmdTermination .23
8.1 Notice and Cure of IDefaulL :...................23
8.2. Option to Institute [.egal'Proceedings'or to Terminate. ,23
8,3. Notice of Termination. .............24
8.4 Waiver .24
8,5. Default by Owner 24
86. Default by City .24
8:7. Enforced Deiay, Extension ofTime of Perl'ormance. .25
8:8. Institutiorl,ofLegal Action. ..........................................,.,...........25
8.9:. FutUre Litigatioh'Expenses.,..,. ..........,..".................,............... :.......,.........,.. ..................,........ .........26
ARTICLE IX
Encur1')brance.s and Releases on Property .27
9 1 .IDiscretion.to'Encumber .27
9,2. EntiilementtO.Written Notice of Default .27
93, Additiona'l Mortgagee Protection .28
ARTICLE X
Miscellaneous Provisions 28
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TaBle of Contents
(continued)
Page
10,1 Rules. of, Construction,.".,.................,...,........................,..,..,.........,.............".,..,................."..,.., .,28
10,2, Severability .28
10.3. Entire Agreement .29
10.4 Waivers 29
10,5, Amendments .29
10:6. Recording .29
10.7 Project asa Private Undertakirig ,,30
10,8. Incorporation of Recitals 30
10.9. Captions 30
1 OA O. Consent. ". ",,". .". .".. "............. ."... ."......................" ...". ...... ''', .................... .......... ....... ".""."...... 30
10.11 Covenant of Good Faith,and'Fair Dealing...."""......""".........,............"........................"."..........30
10,12, Coveriant of,Cooperation 30
10,13, Further Actions and Instruments ......"".,..,...................",."",.............31
10,14 Successors.and Assigns 31
10,15. Time.oUhe Essence ................"..".,.....................,.."..,....................,..,..,..,..............".."..,.32
1 0.16, Applicable Laws" :,.,..,.,............,,,.,....,....,......,...........,".............................,,,..,...........32
1 0 17 No Waiver of Existing R'ights or Applicable Laws ,.,."...................,.....,...................,..,.....~
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Table of Contents
(continued)
Page
LIST OF EXHIBITS
A. Description ofProper:tY
B. Construction and Reimbur.sementAgreement
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DEVELOPMENT AGREEMENT
This Development Agreement~.("Agreement") is entered into by and between the
CITY OF POWAY, a municipai corporation C'City"), and COSTCO WHOLESALE
CORPORATION, a Washington Corporation ("Owner").
ARTICLE I
Recitals
This Agreement is entered into oh the basis ofthe following facts, understanding
intentions of the Parties:
1.1. Code Authorization, Government Code Sections 65864 through
65869.5 and Chapter 17.53 of City's Zoning Code (the "Development Agreement
Legislation'!) authorize City to enter into binding .development agreements with persons
or entities having legal or equitable interests in real property for the purposes of
establishing certainty in the development process 'fOr both the City and the property
owner, to provide for the financing and reimbursement of necessary public facilities,
and to enable specific terms regarding property development to be negotiated and
agreed upon.
1,2, Interest of. Owner, Owner is the legaL and/or equitable owner of certain
real property totaling approximately 31 49 acres, .Iocated in the City and more
specificaliywithinthe South Poway Specific Plan ("SPSP") area identified in the City's
General Plan, The Property is described in Exhibit "A" (the "Property"), which is
attached and incorporated by this reference. Owner intends to develop the Property
with a project that willconsistofa discount club store of approximately 149,000 square
feet with a gasoline'service station (the "Club Component") and a home .improvement
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store with garden center of approximately 134,000 square feet (the "Home
Improvement Componerit"), and to construct such other improvements: as are required
by the conditions of approval of the Entitlements, Future Entitlements and this
,.
Agreement (the "Project"). in order to assure the orderly installation of public
improvements necessary for the Project, the Owner will construct necessary 'public
facilities that will serve not only the Project but also th~ region, community, and SPSP
,
area, and will be reimbursed the cost thereof, not to exceed a.sum certain.
1.3, Intent of Parties. By this Agreement, the City and Owner intend to
accomplish the following:
a. Eliminate uncertainty in the planning and development of the
Project by assuring the Owner that it may develop the Property, in accordance with
Existing Laws, subjectto the terms.and conditions contained"in this Agreement;
b, Assure the orderly installation of necessary improvemerits in the
public right-of-way arid provide f9r public services appropriate for the development of
the Project;
c. Enable the City to obtain substantial public benefits by virtue of the
construction.of the Project, including,. without limitation,. the following:
(1) Fiscal benefits to City's'General Fund,
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"
- (2) Both short-term construction employment and long-term
permanent. employri}ent within City;
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(3) Necessary public street andtrafficfc9ntrol improvements that
will serve the Project, region, community, and SPSP area, as Identified in that certain
Construction and Reimbursment Agreement attached hereto as Exhibit B (the "Public
Improvements"),
d. p'rovide for the financing of the Public Improvements
through reimbursement of design and construction costs by the City as authorized by
Government Code Section 65865.2 and as set forth in Exhibit B,
The execution of this Agreement by the City and Owner shall constitute
conclusive evidence that the duly noticed public hearing before the City Council
required by the Development Agreement Legislation has been held, and that the City
Council has introduced (first rE;l.?ding) and adopted (seci::rrid reading) an Ordinance
approving this Agreement and containing the findings required by the Development
Agreement Legislation. The effective date ("Effective Date") of this Agreement shall be
the date upon which this Agreement is approved by the Poway City Council.
1.4. Entitlements, The City has also approved or certified various
environmental and land use approvals and other. entitlements relating to the
development of the Project and the' Property These actions are collectively referred to
as the "Existing Entitlements" and include without limitation. the following:
a. CEQA. The environmental inipacts bfthe Project and the Property,
including all Entitlements and Future Entitlements and this Agreement, have been
prop"erly. reviewed 'and assessed by the City pursuant to the California Environmental
Quality Act,. ,the "CEQA Guidelines" and the City's local guidelines Rrbmulgated
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thereunder (hereinafter collectively referred to as "CEQA"), Ata duly noticed public
hearing on or about March 4, 2003, the City Council approved a Mitigated Negative
Declaration ("MND") in accordance with the requirements of CEQA. In approving this
Development Agreement, the City Council has (a) reviewed the MND, (b) considered
the information contained therein, and (c) determined that there are no substantial
changes to the proposed project or the circumstances under which the Project is
undertaken, nor any new information of substantial importance which would require
preparation of a subsequent MND or other documentation pursuant to CEQA. A Notice
of Determination was duly filed with the County Clerk of the City of San Diego on March
14, 2003 with respect to the Specific Plan Amendment and the Project.
b, Specific Plan, On March 4, 2003, following a duly noticed public
hearing the City adopted the South Poway Specific Plan Amendment No. 84-01 III (the
"Specific Plan Amendment") designating the Property as "South Poway Commercial."
c. Development Review Permit. On August 2JL, 2003, the City
approved Development Review 03-13, applying the development standards established
by the Specific Plan Amendment to the Property
NOW, THEREFORE, in consideration of the Recitals and the mutual covenants
conditions seUorth herein, the Parties agree as follows:
ARTICLE II
Definitions
2,1, "Effective Date" refers to the date on which the Adopting Ordinance
became effective.
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2.2. "Entitlernimts" refers to all approvals and permitsmecessary or incidental
to the development of the Project or any portion thereof, whether discretionary or
ministerial, including but not limited to, those Existing Entitlements listed in Section 1 4
above, project plans, grading perniitS, building perniits, and this Agreement.
2,3. "Exaction" refers to any fee, tax, requirerT)ent, condition, dedication,
restriction, or limitation imposed by the City upon the development of the Property at
any time in accordance with the Existing Laws.
2,4, "ExistinQ Laws" refers to the ordinances, resolutions, codes, rules,
regulations and official polieie's of City governing the development of the Property,
including, but not limited to the permitted uses of the Property, the density or intensity of
use, the design, improvement and construction standards and specificatiQns for the
Project! including the maximum height and size of proposed buildings, and the
provisions for reservaiionand dedication of land for public purposes, in effect on the
Effective Date
2.5, "Future Exaction" refers to Exactions imposed after the Effective Date,
whether by ordinance, initiative, resolution, rule, regulation, policy, order or otherwise,
2.6, "Future Laws" refers to all ordinances; resolutions, codes; rules,
regulations,1:ln,.d offleialpolieies implemented by City after the Effective Date, whether
by ordinance, initiative, resolution, rule, regulation,policy, order or otherwise, "Future
Laws" includes changes to the Existing Laws,
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2.7. "Futu"re, Entitlements" refers to all Entitlements approved or adopted by
the City after the EffectiveDate,
2.8. "General i=ees~' refers to all general development fees which City may
levy pursuant to the Government Code Sections 66000 at seq, ("the Mitigation Fee
.A:ct"), including, but not limited. to. application fees, processing fees, utility connection
fees, inspeCtion fee-s, capital facilities fees, development impact fees, traffic impact
fees, park fees and such other similar fees as maybe ena_cted from time to time and
generally applied ttiroLJghoutthe City
2.9. "GeneraIRlan" refers to the City's General Plan 'in effect on the Effective
Date..
2:'10, "Proiect" shall' mean and refer to all 'improvements described' in the
Existing Entitlements, Future Entitlements, and this, Agreement, including iall onsite
buildings and all on" and off"sife improvements and appurtenances in connection
therewith as described in Article I, 'Section 2 above.
ARTICLE. III
Ge[ll~ral Prpvisions
3:1, Term of AQreement. The terrnof; ttiis Agreement (the "Term") shall
c6mmence.owthe.Effective Date and shali continue until the date of payment in full of
all reimbursement to which Owner is entitled under this Agreement and the
Construction an.<:l Reimbursement Agreement i:iJtCl<::hed hereto 'and marked Exhibit "B,"
unless terminated, modified, or extended as permitted by this Agreement; provided,
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however, 1n no event shall the Term be less than three. (3) years or' be in excess of five
(5) years,
Following the expiration,'of the Term, this Agreefrlentshall be deemed terminated
and of no further forc.eor eftect; provided, however, such termination shall. not affect
any right or duty arising from City approvals, including, without limitation, the
Entitlements, the Future Entitlements and surviVing from the Construction and
Reimbursement Agreement,attached hereto,
City shall, upon OWner's .request following expiratipn of the Term, cooperate with
Owner in the execution of .any release document necessary to clear the recordation of
this Agreem~ntfromOwner;stitle.
3.2, Assiqnment. The rights and obligations of Qwner'under this Agreement
may be assigned by Owner as part of an assignment,:of;.all ora portion ofthe Property
only with the express, prior'W'ritten consent of City; provided, however, that no such
consent shall be required for partial assignment of this Agreement to the owne(of the
Rome Improvement CO[Tlpohentas to the rights and obligations under such Home
Improvement Component, provided that the assignee is either Lowe's or Rome Depot.
No assignment shall be effective unless (1) such assignment is in wriHngand expressly
provides thaethe assignment shall be subject to this Development Agreement;- (2) the
Assignee assumes'all of'Owner's. rights and obligations with respect to the property or
parC8lassighed; and (3) the City has determined', as to any assignment other than .the
above-described assignment oftheHome Improvement Component, to Home Depot or
Lowe's that the ;assighment will not affect the timely completion or fulfillment of any
requirem"ents. in the Entitlements, the Future Entitlements' or this Agreement relating to
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the "PUblic Benefits" (a!; herein?fter defined). Owner shall provide thirty (30) days' ,
advance written hotlce to the, City of' any requested assignment,as to any assignment
other than the above-described assigl1ment or the Home Improvement Component, to
Home Depot or Lowe's, Iii determining whether an assignment will affect the timely
completion or fulfillment of any requirements relating to:the Public Benefits, City agrees
,
(a) not to unreasonably withhold its determination that tne assignment will not affect the
timely completion orfulfillinent 6hequirements relating to the Public Benefits and (b) to
approve any assignment where itcan be demonstrated to the reasonable satisfaction of
City that the proposed assignee has the finahcial capi3bility to complete in a timely
fashion and fulfill any uricompieted requirements relating 'tel the Public Benefits, has a
commercial reputation comparable to that of Owner, Home. Depot or Lowe's and cC,3n
provide Public Benefits comparable to those provided bY 'Owner Upon the making, of
anyas-signment permitted hereunder, the assignee shall be deemed to be a "Party"
herel:Jnderand to be the Owner as to the Property, or portion of the PfopertYi:a'cquired
by such assignee, Without limitation upon the foregoing, this Agreement may not be
amended or modified without the joinder or any s'uch assignee.
3,3, Amendment of ,Aareement. This .Agreement may be amended by the
mutual writt,encoD,sent of the Parties in the man her provided by the Development
Agreement Legislation. This "Agreement" shall include any amendment properly
approved ahcj eX"ecLited Minor modifications in the manner of performance" including,
but not limited to changes which relate to the design of the Project shall not constitute
an Amendment to this Agreement and may be accomplished through the City
Manager's'qffice or the Department of DevelopmentServices
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3.4. Enforcement. Unless .amended or lerriii6ated as prQvided 'herein, this
Agreement is enforceable by either Party or it's successors and assigns,
notwithstanding any Future Laws, which alter or.amend thehExisting Laws.
3,5. Hold' Harmless. Owner agrees to protect, defend, indemnify, and hold
harmless the City, its officers, agents, and employees<from any and all claims, liabilities,
expenses or damages of ',any nature arising out of or in any way connected to any
challenge, in litigation or othe'rwise, by Owner or any third party asserting that:all or any
part orthis Agreement'is invalid'orlegally inadequate.
3.6, Third PartvChallenQes. In the event the validity, applicability, or
implementation of this Agreernent is challenged by means of legal proce-edings by any
party other than the City and -Owner, it shall be the option of Owner, in its <sole and
absolute discretion and at its sole expense, to defend the validity, applicability, or
implementation of this Agreern.ent in the proceeding. City and Owner agree to
cooperate in the defense of any such challenges.
3.7. Notices. All notices or communication between the City' and Owner
pursuant to this Agreement shall be in writing and shall be given by personal delivery
(in'ciuding commercial express delivery services providing acknowledgments of receipt),
registered, certified; express mail, facsimile or tEllecopy, or telegram to the addresses
set forth below, Receipt'shall be deerned cornplete as follows:
a. For personal delivery, upon actual receipt;
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b. For registered, certified, or expre'ssrflail, upon; the delivery date or
attempted deliverydAte,as shown on the return receiptj and
c. For facsllllile, upon transmission ,ofthe facsimile or, if transmitted
after business hours, then the,next busir:less day
Notices shall be addressed as follows:
To the City' Jame$ L.,Bovversox
CjtyManClger
City of Po way
13325 Civic Center Drive
Poway, CA 92064
FAX (858) 679A226
To the Owner' Costco;Wholesale Corporation
999'Lake Drive
'lssaquah,.'WA98027.~5367
FAX (425):313~8t05
With copy to. Greenberg,GliJsker, Fields, Claman,
Machtlnger.&Kinsella LLP
1900 Avenue oftheStars, Suite.2100
Los Angeles; C,II. 90067
Attn~HenfyD Finkelstein, Esq.
The addresses to which notices shall be sent may be,changed by giving ten (10) days'
written notice of change of address in the manner set'. forth above. Following any
assignment permitted hereunde~, each Party shall also provide notice as aforesaid to
each such assignee .in the same manner a~ to each original OWherand to the
addresses provided by such assignee to the Parties.
3,8. Conflict of State or Federal Laws. If State or Federal laws or
regulations enacted after the Effective Date prevent compliance with any provision of
this Agreement or recjuire chal}ges in the Entitlements or any Future Entitlements, the
State or Federal law or regulation shall be controlling and theParties shall.make a good
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faith and objeCtively reasonable attempt to modify this Agreement to comply. both'with
the intent of this Agreement and with the new law.orregulatibn.
The' City shall timely assist Owner in securing any permits, including permits from
other public agencies, which may be required as ai, result of the modifications,
suspensions, or alternatecburse of action.
ARTICLE IV
Development of the Property
.
4:1. Applicable Rules. Reaulations, and Policies, The rules, refflJlations,
and policies applicable to the development of the Property-shall be those setforth in the
Entitlements.
. 4,2, Entitlementto"Develop. Owner shall have:the vested right, to the fullest
extent allowed under the Development Agreement Legislation, and except as expressly
restricted in this Agreement, to develop the Property in accordance with the
Entitlements subject to the Future Entitlements and the Existing Laws, During the Term,
the Entitlements, Future Entitlements, Existing Laws and this Agreement shallcohtrol
the overall design, development and construction of the Project
4.3, Generally Future Laws shall not apply to the Project except as'expressly
provided in this Agreement Owner may give City written notice of its eiection to have
any Future Law .applied .to the Property, in which case such Future Law shall be
deemed to be an Existing Law
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4:,4, Public:': Safety ,Rules. 'Notwithstanding the 'foregoing,. nothing in this
Agreement-shall preclude City from applying changes'occu~ring from tirne to time in the
Uniform Building Code, Uniform Electrical 8o'de, Uniform Fire Code, Uniform
Mechanical Code, or Uriiform Plumbing Code, provided that such changes (i) are found
by City to be necessary to the health or safety of the ,citizens of City, (ii) are generally
applicable to all similar types.ofproperty in City, and (iii)do.notprevent or unreasonably
delay o(adversely economicafiy impact development'of'the Projectifl accordance with
this Agreement. In the. event of'any inconsistency between.the Existing LClWS and this
Agreement, the provisionsofthis Agreement shall controL
4.5. ExistinQLaws, Prior to the Effective Date, City and Owner shall use
reasonable efforts to iaentify two Identical sets of the Existing Laws, one set for City
, '
and one set for Owner, so 'that' if it becomes necessary in the future to refer to any of
the Existing Laws, there Will bea 'common set ofthe Existing Laws available.to both
parties.
4,6, Future .Laws. The Future Laws, including, without limitation, any change
in any applicable general plan or specific plan, zO"ning, subdivision or building
regUlation, adopted or .oecomingeffectlve after the Effective Date, inCluding, withou!
"
limitation., any such change by means of an 9rdinalice, initiative, referendum,
resolution, policy,. order or moratorium, initiated or instituted for any reason whatsoever
and adopted .bytheCity Councilor any other bOClrd,cbri;1"mission or department of the
City, or ariy'officeroremployee ther(3of, or by the electorate; as the case may be, which
would, absent this Agreement, otherwise .be applicable to the Property, shall not be
applied by the8ity, to any part of the Property Owner may, in its"sole discretion, give
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the City written 'notice of its election to have any Subseq'Uent Rule applied to such
portion of the Property as it may own, in which case such Subsequent Rule shall be
deemed to be an Applicable Rule insofar as that portion of the Property is concerned.
4.7. Future Entitlements, Provided that Developer's applications for any
Future Entitlements are consistent with this Agreement and the Existing Laws, the City
shall promptly consider and grant all Future Entitlements which are-a logical evolution of
and which will further the goals, objectives, policies and plans contemplated by the
Agreement in accordance with the Existing Laws and shall authorize the development
of'the Property for the uses and to the density and intensity as described herein. The
City shall have the right to impose reasonable conditions in connection with Future
Entitlements; provided, however, such conditions shall not be inconsistent with the
Existing Laws nor inconsistent with the development of the project as contemplated by
this Agreement and provided such conditions do not impose additional dedications,
infrastructure or other public improvements which would not be required by the Existing
Entitlements,
4,8. Buildina Permits, Because the Project has already been extensively
analyzed in the MND, no new CEQA analysis for individuai buildings or phases of the
Project shali be required, provided that such building or phases comply with' the terms
and conditions of the Existing Laws, any applicable Future Entitlements, and this
Agreement
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4.9. Parcel Maps. Developer intends to prepare one,or mote' Patcel Maps fo~
the Property (collectively; the "Parcel Maps") each of which shall be considered a
Future Entitlement under Section 4,8 above,
4,10. Modification of Approvals. Throughout the term of this Agreement, the
Developer shall have the right, at its election and without risk to any right that is vested
pursuant to this Agreement, ,to apply to the City for minor modifications to the Existing
Entitlements and Future Entitlements. The processing, review and approval by the City
of, any such modifications shall proceed in accordance with Section 4,8 hereof The
approval or conditional approval of any such minor modific?tion shall not require an
amendment to this Agreement, provided that, in addition to any other findings that may
be required in order to approve or conditionally approve t~.e modification, a firiding is
made that the modification is consistent with this Agreement. Without limiting the
foregoing, the City acknowledges and agrees that the development standards and
guidelines in the Specific Rlanare primarily conceptual in nature arid that modifications
and refinements to these standards and guidelines will b~ necessary in the 'normal
course of their application to the Rroject. Such modifications and refinements shall be
considered to be minor modifications which do riot require .an amendment to this
Agreement, provided that such refinements and modifications are consistent herewith.
The' Development Services Director shall have the authority to consider requests for
such modifications and refinements and shall render his:or hE;r decision within thirty (30)
days of receipt of'such request. Any disapproval by the Development Services Director
of a request for a modification and refinement may be appealed by the Developer to
the City Couricil.
15
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. . i
10Qi9:5
.4,11. Permitted. Uses. ,and Density, This! Agr,e,E'iment shall Vest the right to
develop the Prope[:tyto the fullest extent allowed uriper the Development Agreement
kegislatiohand the Entitlemerits with'tespect to the permitted uses of land, density and
intensity of uses, and timing and phasing of development as described in the
Entitlements and Future Entitlements. The permitted uses, density, and intensity of use
ofthe Project, the maximum height and size of proposed buildings and provisions for
reservation or dedication of land for public purposes, shall substantially conform to
those specified in the Entitlem-eht and Future Entitlement conditions of approval,
Existing Laws anq ,this Agreement. All other aspects ofthe'Project that are not specified
in the Entitlement or Future Entitlement conditions of aRproval shall be determined by
the Existing Laws, except as'expressly provided herein,
To the extent the City retains discretion in the Future Entitlements concerning'
future permitted land uses; density, and intensity oJ use(s), City agrees, absent
conditions that the City deterll1ines are dangerous to the health or safety'of the
residents of the City, not to exercise that discretion in such a way as to alter the timing
of development or modify the he@htand design features of the Project as described in
the Entitlements, Future Entitlements and this Agreement.
4.12., Permitted Fees, Except as otherwise provided in this Agreement, and
specifically excli.Jdingf~es set by eritities not controlied by City that are collected by
City, City 'shall ,only charge and impose those General Fees and Exactions, including,
withoutlimifation, dedicatiohs and any other'fee.or tax (including excise, construction or
any other tax) relating to development or the privilege of developing, Which are in effect
on a City-wide basis as of the Effective Date. This paragraph shall not be construed to
16
71825,,00136,,1368513.2
. . 10096
limit the authority of City to charge normal and customary application, processing, and
permit fees for land use approvals, building permits'ar;1d other ,similar permits, which
fees are designed to reimburse City's expenses aWibutable to such application,
processing and permitting and are in force and effecton a City-wide. basis at such time
as said approvals and permits are granted by City
4.13. Time for Construction and Completion of the Proiect. Owner cannot
predict when or the rate or the order in which the Property or the parcels will be
developed, if at all. Such deCisions depend upon numerous factors that are not within
the control of the Owne,.r, such as market orientation and demand, interest rates,
absorption, completion, and other similar factors, Therefore,' Owner or its assignees
shall have the right to develop the Property in phases, in such order, at such rate, and
at such times as Owner of its assignees deems appropriate in Owner's business
judgment, subject only to.the provisions of this Agreement. Owner or its assignees shall
be entitled to apply for and receive approval of permits, building permits, and other
Entitlements and Future Entitlements; for use at anY'time and for any or all portions or
phases of the Project, provided that application is made in a manner consistent with this
Agreenient.
4,.14, Moratorium, No City-imposed moratorium or other limitation (whether
relating to tlje rate, 'timing or sequencing of the development or construction of all or
any part of the Property, whether imposed by qrdinance, initiative, resolUtion, policy,
order or otherwise, and whether enacted by the City Council, an agency of City, the
electorate, Of otherwise) affecting parcel or subdivision maps (whether tentative, vesting
tentative, or final), building permits, ()ccupancy certificates or other entitlements to use
17
71825-00136-1368513.2
. . 100:9:7
or service (including, without limitation, water and sewer) approved, issued or granted
within City, or po.rtions of City"shall apply to the Property"to the extent such moratorium
or other limitation isin conflict with'this Agreement; provided. however, the provisions of
this Section shall notaffec!City's compliance with moratoria or other limitations
mandated by other governmental agencies or court-imposed moratoria or other
limitations.
4,15. OoeratinaMemoranda, The Parties acknowledge that the provisions of
this Agreement require cooperation 'between City and Owner, and that the refinements
and further development of the Project hereunder may' demonstrate that changes are
appropriate with respect to "the details of performance of the Parties hereunder The
Parties desire, therefore, to retain a certain degree of flexibility with respect to those
items covered in general terms under this Agreement If and when, from time. to time
during the Term, the Parties find that such changes or adjustments are necessary or
appropriate; they shall effectuate such changes or adj0stments thr6ugti;'Operating
Memoranda" approved by the Parties, which, after execution, shall be attached hereto
as addenda and become a part'hereof,and may befurther changed and amended from
time to time as necessary with further approval by City and Owner No such Operating
Memoranda shall req'uire prior notice or heaiing, or constitute an amendment to this
Agreement; and in.the case of City such Operating Memoranda may be acted upon by
City's Development Services DireCtpf Failure of the Parties to enter into any such
Operating Memoranda shall not -affect or abrogate any of the rights; duties or
obligations of the Parties hereunder or the provisions of this'Agreement.
..
18
71825'00136.1368513.2
. .. 1009B
4.16. Term of Map(s} and Other Proiect Approvals. Pursuant to California
Government Code Sections 66452.6(a) and 65863:9, the term of the parcel map that is
processed on all or any portion of the Property and the term of each of the Entitlements
and Future Entitlements shall be extended for a period oftime through the scheduled
termination date of.this Agreement as set forth in Section 3.1 above.
4,17, Infrastructure Capacity, Subject to Owner's construction of tile Public
Improvements in accordance, with this agreement and Exhibit "B" attached hereto, City
hereby acknowledges that as ofthe Effective Date hereof it has sufficient capacity in its
infrastructure services and utility systems, including, without limitation, traffic circulation,
flood control, sewer collection, sewer treatment, sanitation service and, except for
reasons beyond City's control, water supply, treatment, distribution and service, to
accommodate the Project. To, the ,extent that City renders such services or provides
such utilities, City hereby agrees that it will serve the Project and that there shall be no
restriction on hOOKUps or ,service for the Project except for reasons beyond City's
control.
4,18, Te'rmination or Modification. City's right to terminate or modify this
Agreement may be exercised only after a public hearing and only if City determines
that the failure of City to terminate or modify this Agreement would place the residents
of City in.a condition dangerous to their health or safety
ARTICLE V
Provision of Public Benefits
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,
i
,-
. . 10099
5,1. Description of Public Benefits, The parties acknowledge that the
following public benefits ("Public Benefits") will result from the construction of the
Project in accordance with the terms and conditions of this Agreement:
(a) Fulfilling long-term economic goals for City and the community
(b) Fiscal benefits, including but not limited to sales and property
taxes, will be provided to City's General'Fund,
(c) Both short4erm construction emplqyment and long-term permanent
employment will be provided within the City,
(0) The Public Improvements will be financed and constructed
5,2. Timina of the Public Improvements, The Public Improvements will be
constructed by Owner only if Owner proceeds with the Project, but will be completed
before final occupancy of any part of the Project.
ARTICLE VI
Construction and Reimbursement ot'PlIblic Improvements
6,1, Owner Responsibilites, The Public Improvements will be constructed by
Owner in accordance with this Agreement and the Construction and Reimbursement
Agreement attached hereto as Exhibit "B"
6,2, City Responsibilities. The cost of the Public Improvements shall be
reimbursed to Owner by City in accordance with the Construction and Reimbursement
Agreemerit attached hereto as Exhibit "B "
I
I
20'
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71825-00136-1368513.2
,
. . I
10100
I
ARTICLE VII
Annual Review
7,1. City Responsibilities. At least every twelve (12) months during the Term, I
City shall review the extent of good faith substantial compliance by Owner with the
terms of this Agreement (the "Annual Review"). At the conclusion of the Annual Review,
the City's finding of good faith substantial c?mpliance by Owner with the terms of this
Agreement shall be conclusive up to the date of such finding for the purposes of future
Annual Reviews or legal action between the Parties.
7.2. Owner Responsibilities, At the Annual Review, it shall be the
responsibility of Owner to demonstrate, in general fashion, good faith substantial
compliance with the major provisions of this Agreement and to provide, to the best
extent possible, the status and timing of development of'the, Project and construction of
the Public Improvements. If requested by City, Owner shall provide any additional detail
or information necessary to demonstrate good faith compliance with any particular
provision of this Agreement identified by the City,
7,3, OpportunitY to be Heard, Owner shall be permitted an opportunity to be
heard orally and in writing at any noticed public hearing regarding its performance
under this .Agreement. Owner shall be heard before each appropriate board agellcy or
commission arid the City Council at any required public hearing concerning a review of
performance under this Agreement.
7.4, Information to be Provided to Owner, City shall mail to Owner a copy
of staff reports and related exhibits concerning Agreement performance, a minimum of
21
71825-00136-1368513,2
.
. . 10101
ten (10) calendar days prior to consideration and review'by the City Council as required
by the DevelopmentAgreement'Legislation.
7,5. Annual Review Letter. If Owner is found to be in substantial compliance
with this Agreement after the Annual Review, City shall issue, upon written request by
Owner, a letter to Owner (the "Review Letter") stating that, based upon information
known or made known to the City Council, and/or the City Manager, this Agreement
remains in effect and Owner is in compliance, Owner may record the Review Letter in
the. Official Records of the County of San Diego
7,6, Estoppel Certificates, Any Party may at any time, and from time to.time,
deliver written notice to any other Party requesting that the other Party certify in writing
that tcithe knowledge of the.certifying Party'
a. This Agreement is in full force and effect and is a binding obligation
of the Parties,
b, This Agreement has not been amendecior modified either orally or
in writing or, if so amended, identifying the amendments,
c. There exists no material default in the performance of the
requesting Party!s obligations under this Agreement. or, if in default, the nature and
amount:of'any material default.
A Party receiving a request under this Paragraph shall execute and return a
certificate within thirty (30) days following receipt of the request. The failure to deliver
such certificate within such time shall be conclusive upon the party whicb fails to deliver
22
71825,,00136-1368513,2
. . 1010'2
such certificate that this Agreement is in full force and effect without modification and
that there are no uncured defaults in the performance of the requesting party A
certificate given pursuant to this Paragraph may be relied upon by assignees and
mortgages.
7.7, Failure of Annual Review, City's failure to perform the Annual Review of
Owner's substantiai compliance with the terms and conditions of this Agreement shall
not constitute or be asserted as a default by Owner or be deemed as a waiver of further
Annual Review
ARTICLE VIII
Delay, Default, Remedies, and Termination
8,1, Notice and Cure of Default. In the event .of a material default, the Party
alleging a default shall give the defaulting Party a notice of default in writing. The notice
of default shall specify the nature of the alleged material default, and the manner and
period of time of not less than thirty (30) days in which the default must be cured (the
"Cure Period"), The Cure Period must provide sufficient and reasonable time for the
default to be cured During th"e Cure Period, the Party charged shall not be considered
in default. If the default is cured within the Cure Period; then no default shall be
deemed to exist.
8,2, Option to Institute leqal Proceedinas or to Terminate. If a material
default .is not cured within the Cure Period, the noticing Party may institute legal
proceedings as 'provided in this Section 8,8 and/or give to the defaulting Party'a notice
o(intent to terminate this Agreement. If a notice of intent to terminate this Agreement is
23
71825-00136-1368513,2
. . 10103
given, the City Council, within thirty (30) days after the giving of the Notice, shall hold a
public hearing in 'the manner set forth in the Developm~nt Agreement Legislation, as
amended, to consider and review the matter
8,3. Notice of Termination. Following consideration of the evidence
presented before the City Council and its determination that a default exists, the Party
alleging a material default by another Party, at its option, may give written notice of
termination of this Agreement to the other Party and this Agreement shall be terminated
immediately upon the giving of the Notice, The validity of the basis for such a
termination may be challenged pursuant to Section 8.8 by the Party alleged to be in
default.
8.4, Waiver, Failure or delay in giving notice of default pursuant to Section 8.1
shall not constitute a waiver of any other material default. Except as otherwise
expressly provided in this Agreement, a failure or delay in asserting any rights or
remedies as to any defaulUshall not operate as a waiver of any default or of any rights
or remedies otherwise available to a Party or deprive a Party of the right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert,or
enforce any rights or remedies it may have.
8,5, Default by Owner, An Annual Review may result in amendment or
termination of this Agreement provided a material default has been established by
substantial evidence and such default has not been cured within the Cure Period,
8.6., Default by City, Upon a material default by City, Owner, without limiting
any of its other remedies, shall not be obligated to complete any of its'obligations under
24
71825-00136-1368513.2
. . .
10104
this Agreement. ,Upon a.City default, any resulting delaysiin Owner's performance shall
not be construed as a defi:lUlt. Such default shall berefered to a referee for a report,
finding ,and judgmentlthereol1 and issuance of all legal and equita61e relief appropriate
under the circumstances of the controversy before such referee, If Own~r and City are
unable to agree on a referee within ten days ofa written request to do so by either party
material clefault by Owner nor'constitute grounds for.termination or cancellation of this
Agreementby Cityand,the,Term shall be extended for the period of any such' delay
8:7. Enforced Oelav; 'Extension of Time of Rerformance. Neither Party shall
be deemed to be in default' where delays or d efalJ Its are due to war, terrorism,
bioterrdrism, insurrection"strikes, walkouts, riots, floods, .earthquakes, fires, casualties,
acts of nature, unavailability of materials, governmental restrictions impQsed or
mandated by other applicable governmental entities; suspension of rights in
accordance with the existence of unforeseen circumstances, litigation (other than
litigation arising between or among the Parties):qrsimilar bases fb.r excUsed
performance, If written notice of such delay is given to the other Party following the
commencement of such delay, an extension of time for performance shall be granted ili
writing fqr the periodoDhedelay, or longer as n'lay' be mutually agreed upon. An
extension shall commence to run from time of commencement of the cause of delay
. .. I
8,8~ Institution of LeQal Action, In addition to any other rights or 'remedies,
,.
any Party r'riay institute legal action to cure, correct, or remedy any default, to enforce
any provision of this Agreement, to'enjoin :anythreatened or attempted violation of this
Agreement, to recover damages for any default; or to 'obtain any'remedies consistent
with the purpose of this Agreement. No such aCtion shall Qe, commenced withou(first
25'
71825-00136,;'368513,2
. . 1 OJ 0 5
seeking mediation of the dispute through the Superior Court of 'the County of San
Diego, Legal actions shall be instituted in the Superior Court of the County of San
Diego, State of California.
Pursuant to Code of Civil Procedure Section 638, et seq" all legal actions shall be
heard bya referee who shall be a retired judge from either the San Diego County
Superior Court or the California Court of Appeal, provided that the selected referee
shall have experience .in resolving land use and real property disputes. Owner and City
shall agree upon a single referee who shall.then try all issues; hereto, either party may
seek to have one appointed pursuant to Code of Civil Procedure Section 640 The cost
of such proceeding shall initially 'be borne equally by the parties. Any referee selected
pursuantto this Section 8.8 shall be considered a temporaiyjudge appoiritedpursuant
to Article 6, Section 21 of the California Constitution, Notwithstanding the provisions of .
this Section 8.8, either party shall be entitled to seek declaratory and injunctive relief in
any'court of competent jurisdiction to enforce the terms of this Agreement, or to enjoin
,. the other party from an asserted breach thereof, pending the selection of a referee as
provided in this Section 8.8, on a showing that the moving party would otherwise suffer
irreparable harm.
8,9, Future LitiQation Expenses,
(a) Payment to prevailing party, If City or Owner brings an action or
proceeding (including, without limitation, any motion, order to show cause,
,
cross-complaint, counterciaim, or third-party claim) by reason of defaults, breaches,
tortious acts, or otherwise arising out of this Agreement, tbe prevailing party in such
26
71825,,00136-1368513.2
. . " 1.0106
. action or proceeding' shall be entitled to itscosts@dexpensesof sUilinduding, but not
limited to, reasonableiatlorneys' fees and expert witness fees,
,
(b) Scope of fees, Attorneys' fees under this Section shall include
attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees, shall be
entitled to all other reasonable costs and expenses, incurred in c6nnecti()n with, such
action, In addition to the 'foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any
post-judgment proceedings to collect or enforce the judgment. This provision is
separate and several and shall survive the merger of this Agreement into any judgment
.
on this.Agreement.
ARTICLE IX
Encumbrances and Releases on Property
9,1, Discretion to Encumber. This Agre~m'eht shall not prevent or limit
Owner, in any manner, from'ehcumbering the Property or any portion of the Property or
any improvement on the Property by any mortgage, City acknowledges that lenders
providing financing may reQuire modifications to this AgrElement and City agrees, upon
request, from time to time, to meet with Owner and/or rewesentatives of lenders to
negotiate ihgood faith any lender request for rriodificatiOrt City agrees that it will not
unreasonably withhold its consent to any tender requested modification to this
Agreement.
9,2, Entitlement to Written Notice of Default. Any mortgagee and its
successors and assigns, upon writtehrequestto City, shall be entitled to receive from
27
71825-00136'1368513.2
~
. . 10107
City written notice of any Owner default at the same time'Owner is provided with such
notice pursuarit to.Section,8 1 above.
9,3, Additional Mortaaaee Protection, Any mortgagee of a mortgage or a
beneficiary of a deed of trust of the Property (or a portion thereof) shall be entitled to
the following rights and privileges:
a, Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or
deed of trust on the Property-made in good faith and for valu,e.
b, Any mortgagee receiving the notice referred to in Section 8.2
above shall have the right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agre~ment.
ARTICLE X
Miscellaneous Provisions
10.1, Rules of Construction. The singular includes the plural; the masculine
gender includes'the'feminine, "shall" is mandatory; "may" is permissive,
10.2,Severabilitv. If any non-material provision of this Agreement shall be
adjudged by a court.of competent jurisdiction to be invalid, void, or illegal, it shall in no
wayaffed, impair, or invalidate any other provision of this Agreement. If any material
.
part of .this Agreement is adjudged by a court of competent jurisdiction to be invalid,
void, or illegal, the Parties shall take all steps necessary to modify this Agreement to
implement the original intent ofthe. Parties in a valid and binding manner These steps
28
71825-00136-1368513.2
C,;,ij
. . i
10108
may include the waiver by either of the Parties of their right under the unenforceable
provision, If, however, this Agreement objectively cannot be mo.dified to implemeht the
'original intent of the Parties and the Party substantially benefited by the material
provision does not waive its rights under the unenforceable provision, the entire
Agreement shall become void.
10.3, Entire Aqreement. ,Except as this Agreement expressly refers to and/or
incorporates other agreements between the City and Owner, this Agreement constitutes
the entire understanding and agreement of the Parties with respect to the subject
matter of this Agreement This Agreement supersedes all other negotiations and
previous agreements between the Parties with respect to that subject matter
10A, Waivers. All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate agents of City or of Owner
10.5. Amendments, All. amendments to this Agreement must be in writing
signed by the appropriate agents of City and Owner, in a formsuita~le for recording in
the Official Records of San Diego County, California.
10.6. Recordinq, The City Clerk shall cause a copy of this Agreement to be
recorded,with the'Office of-the County Recorder of San Diego County, Califomia within
ten (10) days following the Effective Date, Upon the completion of performance of this
Agreement or its revocation or termination, a statement evidencing completion,
revocation, or termination signed by the appropriate agents of Owner and City shall be
recorded in the.Officlal Records of San Diego County, California,
29
71825-00136-1368513,2
[;i
. .
l01,(J 9
10.7, Proiect! asa Private UndertakinCl. It is speCifici'!lIyunderstood .by the
Parties, tlia! tne Project is 'a private development anq 'that OWner shall have the full
power and exclusive control anhe Propertysubjectto 'the provisions of this Agreemeht.
10,8, Incorporation of 'Recitals, The Recitals set forth in Article I of this
Agreement are part of this Agreement.
10,9. Captions. The captions of this Agreement-are for convenience and
reference only and shall not' define, explain, modify;. cori'strue, limit, amplify or aid in the
interpretation, construction or meaning of any of the provisions of thisAgreement.
10.10" Consent. Where the consent or approval of 'a Party is required: or
necessary under this Agreemeht, the consent or approval shall hot be withheld
unreasonably
10;11, Covenant of Good Faith and Fair DealihQ. 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 Agreement. Each Party shall refrain 'from doing anything,
which would renderjts performance under this Agreement impossible. Each Par\y,shall
do everything which this Agreement contemplates that such Party shall do to
accomplish'the:objectives and purposes.oNhis Agreement. ;
10.1'2'..Covenant of Cooperation. The Parties shall cooperate'with and assist
each other in theperf()rmance of the provisions of this Agreement, including assistance
in obtaining p-ermitsfor the development of the Property which maybe required from
public agencies ,other' than City The covenant of cooperation shall include, to the
30
'71825-00136.,1368513,2
. .
10.110
maximuni extent permitted by law, that CityshalJ !:l~f3 its best efforts. to prevent any
ordinance, measure, moratorium or other limitation:. from. invalidating or prevailing over
any provision of this Agreement, and City shall cooperate with Owner to keep this
Agreement in full forceahci effect Owner reseivesthe right to challe'ngeany such
ordinance, measure" moratorium, or other limitation in, a court of law if it becomes
necessary to protect the development rights vested in the Property pursuant to this
Agreement:
10.13, Further Actions and Instruments, Each of the Parties shalj cooperate
with and provide reasonable ,assistance to the other in the performance of all
obligations under this Agr~,ement and the satisfaction of the c;onditions of this
Agreement including the8xecution and perf6rmimce of the Construction and
Reimbursement Agreement attach.ed as Exhibit "8.." Upon the request of either Party,
the other Party shall promptlY- execute, with acknowl~dgh1erit or affidavit if reasonably
required, and file or record such required instruments'and writings and take any actiohs
as may be reasonably neces(lary under the terms 'of this Agreement to carry out the
intent and to fulfill the'provisions of this Agreement m to evidence or consummate the
transactions contemplated by 'this Agreement. The Mayor of the City shall sign this
Agreemehton'orbefore!the Effective Date.
10;1~, Successors and Assians,Subjectto Section.3.2 above, the burdens of
this Agreement shall be binding upon, and the benefits of this Agreement inure to, all
successors"in-interest and a~signs of the Parties.
31
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,':
. . 10111
10.15. Time of the' Essence. Time is of the essence of this Agreement and of
each and every t13rm an<,l condition hereof
10,16. Applicable Laws. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. All statutory references are to
California statutes,
10,17, No Waiver of Existlna Riahts or Applicable Laws, This Agreement
shall not constitute a waiver of any of Owner's existiri'g rights or applicable laws nor
shall it limit or expand Owner's right to challenge any General Fee as being contrary to
applicable law or to challenge any existing or future Exaction as being in excess of
Exactions permitted by applicable law
This Agreement has been executed by the Parties as of the dates set forth
below'
CITY
By' Dated CJ-2-"$/{J')
Its:
'"
CITY OF POWAY
By: Dated q .c1.3 .tJ -3.
Lori Apnl:) peoples
Its: City Clerk
C~ST~ CORPORATION Dated I / ~jII1
~s: RICtlARO I nllH .
~~ffll~~ssistant Secreta"
APPROVED AS TO . CONTENT
32
71825-00136-1368513.2.
..-:
. . 10112
By' Dated q;a3-o~
. Its:
By. Dated 1/70 ItJf
~ltS:
33
71825-00136-1366513,2
. . 10113
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT No. 5907
State of
County of 0~D
On
DATE
personally appeared ,
NAMEis) OF SlGNEA(S)
~rSOnallY known to me - OR - D proved to me on the ;Gf satisfactory ~e~
to be the person whose name isl e
subscribed to the within instrument and ac-
knowledged to me that he/$.ll67tm(y executed
the same in his/i).ef/~r au~ed
capacity~, and that by hisl r/tp.efr
signature, on the instrument the person(~
or the entity upon behalf of which the
person~cted, executed the instrument
)- - - - ~~~-J
ie NolaryPubllc-C'''' .oIw I
San DIego CounIv -
j _ _ _ ~~:.~_~2~~f.
OPTIONAL
-<'.. '- .,
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D INDIVIDUAL
D CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S}
D PARTNER(S) D LIMITED
D GENERAL
D ATTORNEY-IN-FACT NUMBER OF PAGES
D TRUSTEE(S)
D GUARDIAN/CONSERVATOR
D OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES) .
SIGNER(S) OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION. 8236 Remmel Ave., P.O. Box 7184. Canoga Park, CA 91309-7184
.,
. . 10114
CALIFORNIA ALL.PURPOSE,ACKNOWLEDGMENT No.S9D7
\
State of
On before me, S
DA E I;llQ; Y D \rJNAT LE OFOFFICER EG, JANE DOE NOTARY PU LI
personally appeared . VYle.... U)v t1. \;l, ,
~ NAME(SiOF.SIGNER(SI
personally known to me - OR - 0 proved to me on the basis of satisfactory evidence
to be the personj-sYwhose namej2{is/~
subscribed to the within instrument and ac-
knowledged to me that,PEifshe/!J:l.eS' executed
the same inj).i-S/her/tl;J.ei1 authorized
capacity~ and that by ~er/t~
signatureM on the instrument he personW'
or the entity upon behalf of which the
'~&- -~cOwNs- - J personjP')aeted; executed the instrument.
-. CommIsaliln #.1446353 WITNESS my h" rid and o~icial seal.
i.; NoIaJy I'IlblIc - call1oinla f
. Sari DIego~-
j _ _ _ ~~:.fJ.o.~"'_~2~2~jf
OPTIONAL
Though the data below is not required by law...itmay prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form,
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
o INDIVIDUAL
o CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
o PARTNER(S) o LIMITED
o GENERAL
o ATTORNEY.IN-FACT NUMBER OF PAGES
o TRUSTEE(S)
o GUA8Di~N/CONSERVATOR
o OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
SIGNER(S) OTHER THAN NAMED ABOVE
@1993NATIONALNOTARY ASSOCIATION. 8236 Remmet Ave., P.O. Box 7184. Canoga Park. CA 91309-7184
. . 10115
CALIFORNIA ALL.PURPOSE.ACKNOWLEDGMENT No. 5907
State of
County of ~
On \~c
DATE . P. NAME JTl
personally appeared. .. t I.. ,
~ NAMEISI OF SIG ERISI
personally known to me- OR " D proved to me on the basis of satisfactory evidence
to be the personwwhose nam$ris/~
subscribed to the within instrument and ac-
knowledged to me that he/~tReY executed
the same in his/Mr/tt).eir aU=:fr
capacity(i)7s"), and that by his/ r/th;(,'
signatur~ on the instrument the person ,
or the ~ity upon behalf of which the
person acted, executed the instrument
~ ~~ - - -HUtYcOums - .. f WITNESS my hand and official seal.
_. Commllsllln # 1446353 .
~. Notary PublIc - CaIIfooJlia f ~t~a. tl"Nv,)
San DIego County -
j _ _ _ ~~ _EMjl~"'_o.:2~ 2~7f
OPTIONAL - I NATURE OF NOTARY
Though the data below is not ",quiredby law, it may prove valuable to persons relying. on the document and could prevent
fraudulent reattachment of thisform.
CAPACITY CLAIMED BY'SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D INDIVIDUAL
D CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE{S)
D PARTNER(S) D LIMITED
D GENERAL
D ATTORNEY-IN-FACt NUMBER OF PAGES
D TRUSTEE(S) .
D GuiIRPIANlCONSE"RVATOR
D OTHEFt . .. '.
DATE OF DOCUMENT
SIGNER IS REPRESENTING.
NAME OF PEASON(S) OR ENTITY(IES)
SIGNER(S) OTHER THAN NAMED ABOVE
@1993NATIONALNOTARY ASSOCIATION. 8236 Remmel Ave., P.O, Box 7184. Canoga Park, CA 91309.7184
. . lO'11-6
STATE,0FWASI:IINGToN ,)
) ss.
COUNTYOE KmG )
On January 20; 2004,.bef6te hie, Tricia A. L. Wiiblir,irNotary Public in and forsai'ci State,
persohally,aRpeated Richard J "Glin, pe"fsonally knownitome to beJhe person whose name is
subscribe_d to"the"attached..docum~ntanc! acknowledged to me:thathe.exeCljled. the sameiih his
authoriz,eii' capacity,!and that by his signature.on the instrumen't the person acted, or the entity upon
behalf:ofwhich the'person'.acted, .executed the instrument.
WITNESS my hand and official seal.
TRICIAAL WILBUR tJJ~
NQT~RY PUBLIC STATE OF WASHINGTON Tricia A. L. Wi . ur
. COMMISSION'EXPIRES Notary Public in and for,the
OCTOBER'9' ,2007 ~ State of Washington
Residing at: Covington
My commission expires: 10/9/07
....---
. . 10117
EXHIBIT A
;Le2alDescriptiim of tile Propertv
Thelandrefe[fed,to hereinis~situated in the State,of California, Collhty of San Diego,
and is ref~rred to as follows:
All of Parcel 2 ofPai'cel Map No, .17607, filed' in the Office'oftheCounty Recorder,
OctoiJer20, 1995, as.FileN6'1995-0473968 of Official Records;that,portion ofLof4 of
Section 19, Township 14 South, Range 1. West, San Bem'JIclil1oMeridjan and that portiori ofthe
Southeast:Quarter of the Southeast Quarter of SectionJ24, T~ownship"l4 South;.Range 2 West,
San Bernardino Meridian, in the QityofPoway, County of San' Diego, State ofCa:Iifornia,.inore
particularly-described' as follows:
Beginning attheSouth\vesterlycorner of said. Section W; .thence along the most
Southerlyline.ofsaid Pafcel'2,]\[ortI1' 87.62 I '18" West, 6.01 feet; thence North'OQ~28'46"West,
32:55feetto a poirit on the.Northerly right-of-way line of Kir)d1am Way-as ded,.icated p(':r said
Patcef'MapNo. 17607, thence Westerly along said right~of;'Y,!y.lin,e, North 87021' 18" West,
653.83feet; thence North 02038'42~"East, 385 00 feet; thence N<irth87021 '.18" West 688.64 feet
to a point onthe Easterly rigllt'Of'wayline of,Tech Center Drive.as dedicated pel' Deed recorded
Ma.rch 22,1993; as Doc.,N(), 1993,.0174230 of Official Recofdsif,thence.NortherIY'along said
rigl1t~oFway line, North 00008"03" West (record North 00007'57" West per said Deed) '792,99
feet to the begriming a'tangent 34,50 foot radius curve concave.Southeasterly;thence
Northeasterly. along the arc ofsaid curve through a centra.langl~of86037' 17" (record 86038 '18"
per said.Deed) a distance 'of 57.16 feet (record 52.17' per said Deed) toa point on the Southerly
right-of-way line of Scripps p'O\vayPafkway as dedicated pef Deed recorded August 25, 1993, as
D()c, No, 1993-0554187 Of OffiCial Records; thence Easterly along said right-of~way line and
tangent to said curve, North 86'29'.14" East 8433 feet (record'8436' per said Deep) to the
beginning of atangent299,50 foot radius curve concave Southerly; thence Easterly. along the arc
of said curve through a central angle of 05051' 45" a distance of 30 .t:j4 feet (record 30.65 'per
Deed); thence tangent to said curve and continuing along said right-of-way line, South
87039'01" East; to the Northea.st comer of Parcel 2 of said Patcei'MapNo. 17607, thence
leav~ngsaid right-of~wayJine N6rth'00028' 46" East to the Southerly line of City ofPoway
Tract 87'13 Unit 1, accofdihg'to Map thereof No. 12556, thence along said Southerlyline South
87039'01" East to a point on tlieEastIine of said Section 24, thence South 88019' 17" East 833
feet;theI!ce lt~aying said Southerlyh~eSouth.00028'46';East to.a.point on the Southerly line of
said SeCtion 19, distant thereonSouth'88015 '43" East 6:00 feet from the Southwest comer
thereof; then~eNorth 88015'43"West6 00 feet to the point of beginning. .
APN 3.17-280-67'00
Exhibit "A"
71825-00136,,1374907.1
. . 1011'8
EXHIBIT B
CONSTRUCTI0N AND REIMBURSEMENT AGREEMENT
THIS. CONSTRUCTI0NAND REIMBURSEMENT AGREEMENT ("Agreement")
is made as of September 16, '2003, by and between theCrry OF POWAY, a general
law city ("City"), and COSTCO WHOLESALEC0RPORATI0N, a Washington
corporation CDeveloper").
I
RE~ITALS
The following r~citals are a substantive part of this.Agr~ement:
A Developer has. entered into a Purchase .Agreement dated February 14,
2003, to acquire from Applied Micro Circuitry C.orporati()n certain real property
consisting of approJSi.!nate.!y 31 49 acres, located at the 'southeast corner of the
intersection of Scripps Poway Parkway and Tech Center Drive in the City of Poway,
referred to herein as the "Property"
B DeVeloper has appiied for and on August 28., 2003, obtained approval.
from the City for DevelopmentReview No 03-13 (the "Development Review") tordevelop
a portion of the Property with a Costco Warehouse and a portion of the Property with a
home improvement store (the "Development"). Various' conditions of ClPproval of the
D.evelopment Review require the Developer to construct'certain st~eet and traffic control.
improvements foi-the benefit of the Development (the "Public Improvements')
C, The City's ,South poway Specific Plan requires for the benefit of'the entire
South PQwaySpecifbPlan area the same Public Improverjlents required aston'ditions
of approval of the Development Review 03-13 to Scripps Poway Parkway and Tech
Center Drive in the vicinity of, but offsite from, the Property. The Public Improvements
. . .,'
are referenced. in the South. PowaySpecific Plan and described in detail in Exhibit "A-1"
attacl1~5ther~J.o. An engir]eer'sestimate of the.cost<ofsuch Public Improvements in the
sum of $560,922.00 is attached hereto as Exhibi!,"A-2."
D The City and the DevelClper have executed? Development Agree[T1ent for
the development of the Property, dated 'as of September' 16, 2003 (the "Gevelopment
Agreement"), pursuant to Government Code Section 658.65 ei. seq. By the tennsof the
Development Agreement the parties have. agreed pursuant to Government Code S
958.69.2,,'~hat the peveloper-sh'all construct and finance the Public Improvements, and
the City shall reimburse the Developer the cost of those Public Improvements.
E. The City and the Dei/eloper agree that the Public Improvements and
certain other on-site improlielller;Jts which are the Developer's responsibility must be
.. .
coordinated, and all must be completed before the DevelQper takes occupancy of the
1
.-
. . 10119
Costco store :portion of the Development and op~i1sfor husiness. The Developer
desires to proceed promptly with construction of the Development. The City is not
prepared to cOl'1struclthe I;'LJblic Illlprovements asa public work at this time. The
Developer:aesire.s ~ti:l ce6h~tN9t .the Public Improvements as a condition of approval of
the Developmeht ReView in 'accordance with the Development Agreement, and be
reimbursed therefore on specified ferms and conditions,
F The City has determined that public safety would best be served if the
Developer and its contractor(s) constructed the Public Improvements, subject to
reimbursement of the cost thereof by the City pursuant hereto. The Public
Improvements which City desir,Elli peveloper to construclare the Public Improvements
sometimes ..hereafter called tbe-"ReifDbursablelmprovements."
G. The peyeloPt3[ cl~stres this Agreement govern its construction of the
Public Improvernents'aha the City's reimbursement to the Developer of the cosUhereof
pursuahtlo this Agreement.
NOW, THEREFORE,:.the eityandthe Developer agree asfollow.s:
. 1. Construction, of Public Improvements. The Developer shall c.allse tile
Public Improvements to be constructed in their en(ir.ety within. 18.0 days after the
comme[1cementof construction ,thereof, .subjec;l lQ delays beyond the, reasonable
control of the Developer Tb.i:l Developer fully assumes all obligations, requirements
and c6nditiciilS,undefthe I?~veiopment Agreement with respect to the completion of the
Pilblic Improvements, and the Developer agrees:to construct:the Public 11T1P~oveJ'nents
in accordance with the "Approved Plans" (as defined in-iSection 5'below).
2. Reimbursement. Subject to the terms.of this Agreement, the City sba)1
reimburse the' Developer the actual direct and indirec;t c.c~~t_sattril5utable to the -Pilblic
Improvements, including theact!Jal. costs of design, plan check, and inspection,
constructiol] ?ndoltwrout-6f"Jigcket costs for the design and construction of the Pl:lblic
.Improv_elTlef.lts. LJPOI;J colllpletion .of the Public Improvements, the Developer shall
submit the final accol.ihtfng required by'Section 15..hereof for the review and apprQyal of
the City The amount of the actual costs approved. by ttle,'Cityshall be the,ApproVed
Reimbursable Amount. Upon approvaJ of the TIDal a,ccQunting and issuance of a
certificateofoccupancY'f6r theC6stco . store , the City shail, within thirty (30) days pay to
the Deveioper an -'amount" equai to the lesser of. the Approved Reimbursement Amount
or Four.Hundred EightyThousand Dollars ($48.0,000). Upon issu_anceofthe,ceitificate
of occupancyJorthe home. improvement~tore portion of th~Developlllent; the balance
of the ApprciveQ,ReimbU"rsei1Je~t Ambunt,if any,/shali be p~id to Developer within thirty
(30) days; prqvlded h<?,Never, the totai reimbursemeritpaid by the Cityto thelDeveloper
for"lhe cost of the, Public Improvements shell I not,. in' any event, exceed Eight Hundred
Thol:lsand .Dbllars($8.dO,OOO) (the "Maximum.~eimbursableAmount").
3. Costof0ther fmprovements. Except for the reimbursement provided
for in Section 2 above~, Developer shall bear all costs'of any and all improvements
required of the Development under 'the Development Review. Notwithstanding any
other provision of :ttlis .Agreement to the contrary, the City shall contribute, and the
2
71825'i)0136-1368517.2
. . 10120
Developer insists that the City contribute, DO more money, or the equivalent of money,
to the public improvements' or to the overall project (the Development) than is required
to perform the public improvement work, and shall, without demand, be entitled to
repayment from Developer of any overpayment therefore.
4. Engineering and Construction Management CosJs. Subject to
reimbursement by the City pyrsuant hereto, Developer shall engage and pay for a
licensed third party civil engineer to prepare the construction drawings and detailed
plans and specifications for the Public Improvements as required by the City
5; Approval of Plans. The Developer shali submitto the City for-its review
and approval all plans, specifications, and drawings required by the City for construction
of the Public Improvements, which, once approved, .shall constitute the '!Approved
Plans."
6. Bidding and Award. The Developer may enter into a so-called
"negotiated bid" with an ihdepenaent third party general contractor; provided that any
such negotiated charg~s which are .not based on_ subcontracts shall not exceed
customaf;y amounts in the, building industry and provided the general contractor shall
solicit not fewer than three bids for each subcontracted portion of the Public
Improvements exceeding ten percent (10%) of the total cost ("Major Subcontracts"), and
shall selectthe 10westTesponsible bidder for each such Major Subcontract portion ofthe
Public Improvements. Such general contactor is hereiha.fter referred to as the
"Contractor" Upon the ~~quest of the City, the Developer shall submit to the City copies
of all bid solicitations, bids, 'andconstruction contracts within ten (10) days of the City's
request.
7. Stop. Notices. The Dev?loper shall include in each construction contract
a provision authorizing the withholding of payments otherwise due to such Confractors
for work on the Public Improve,ments in the event that stop notices are filed with the
City. In the event that a stop_notice, which is valid on its fac~,. is timely filed with the
City, the City will prompJly notify the Developer. In the event that any apparently valid
stop notices are on file with the City when the Developer renders its final account to,the
City in accordance with,SectiOl'115 herein, the City shall withhold from the amount 01iVed
to the Developer under this Agreement a sum equal to 125% of the amount claimed in
each stop notice until the Developer provides the City proof of payment and
unconditiijnal release,; conditional release and payment" expiration by operation of law,
Or disposition pursuant to cOllI! order of such stop notice.
8. Bonds. The Developer shailobtain and maintain, or require each
Contractor or subcontractor to obtain and maintain, faithful performance and labor and
material bonds in'a forlll approved by the City, each with an admitted corporate surety
business. within the State of California and a Best's rating of at least AN or better, in
amounts equal to 100% of the estimated cost to construct the Contractor's or
subcontrClctor's portion of the Public Improvements for the faithful performance bond
and 100% of the estimated cost to construct the Contractor's or subcontractor's portion
of the Public Improvements for the labor and material bond. In the absence of
3
71825-00136.1368517.2
. . 10121
unresolved claims, the f.~itbful performance bond, shall be released l1inel9 (90) days
after .the Deyel6peror Contractor records a notice ,of completion, and tbe: labor and
mCjteriC!1 p0T19 ,S.hall 'be, released ninety (90) days after tbe Deyeloper or Contractor
records. a notice of completion pursuant to Civil Code'Section 3093.
9. Insurance. The Developer shall no! permit designer(s), engineer(s), or
C6ritractor(s) to commence work until each hasobtl:iined the.insurance required herein
issued by companies.with aBest's rating of AN or better and such insurance has been
approved by the City as to. form and amount.
The Developer shall requir~ each designer, engineer, and Contractor to obtain
and maintain, during the tElr;,.m .of this Agreement, Workers' Compensation Insurance;
and, if a[1Y work is sybcontracted, the Developer shall requite alJsubcontractors to
pJ;oyide Workers'Compensation Insurance. The Wbr!<ers'Compensation .Insurance
sha!lprovide that the 'insurance may not be cancelled until thirty (30) days:after written
notice of, such cancellation is provided to City
The Developer shall obt?in and maintain, or require.each designer, engineer, and
Contractor to obtain and Illaintairi, during the life of this Agreement the following
insurance coverage:
GommerCiC!1 C3,eliera( Liability and Automobile Liability with limits not less than
one million dollars ($1.,000,000) combined single limit, and per occurrence for each
design and engineering firm and three million dollars ($3,000;000) for each Contractor
Errors andoniissionscoverage with limits not less than one million dollars
($1,000,000) for each design and engineering firm.
An endorsement ,shall be obtained for the Commercial General Liability policies
providing the above insurance naming the City, its officers, agents and employees as
additionalinsmed's and providihgl for thirty (30) days advance notice of cancellatioh,
The Developer sl1a~ provide,to the City proof satisfactory to the City showibg the
above insurance coverage prior 'to permitting ~uch desigl1er; engineer, or Contractor to
begin work .under this Agreement. Any certificate of insurance must be in a form and
contentapproved by the Gity.
10, :Hold Harmless,. The Developer agrees to protect, defend, :indemnify and
hold -harmle~s the City and its elective and appointive boards, officers, agents .arid
empl6yee~trom any and all claims, liabilities,. expenses or damages of ~nynature,
includingatlorneyfees, forinjiJry to or de?tti'ot' ftny person, and for injury to any
property, including consequential dam?ges of' any n'ature resuiting there from, arising
out of'or in any'way connecte9 foith~ design.. engineering, or construction of the Public
Improvements, by or on tiehalfof DeVeloper, .inCluding damages resulting, or allegediy
resulting from violC!l.ion ofaQyStatute, regUlatfonorotherlegal requirement concernil1g'a
safe platelfo.r employmentofworkers, except to the extent of damages resulti.!m from
the sols 'negligence of the City Nothing contained in this Section, however, shall be
4
71825'DOI36.136851'i"i'
. . 10122
deemed to! be a warranty against construction def.ects, the only such warranty being
c.ohtair]ed in Section 1"1 below
The Developer shall comply with and shall req1J.ire designers, engineers, and
Contractors' to comply with all. of the provisions of the Workers' Compensation
Insurance and Safety in Employment Laws of the State of Califomia, including the
applicable provisions of Divisions 4 and 5 of the, California Labor Code anqall similar
state, federal orjlocal laws, i3pplicable, and shall indemnity and hold harmless City from
and against all claims, liabilities., expenses, damages, suits, actions, proceedings and
judgments of every nature and description', including reasonable attorney's fees,
presented; brought or recovered against the City or its 'officers , employees, and agents,
for or on account of any liability under any of said laws which may be incurred by reason
of any work performed wider this Agreement by the Developer or on behalf of the
Developer
The Developer agrees to protect, defend, indemnity, and hold harmless th,e City
and its officers, agents, and employees from any and all claims, liabilities, expenses or
damages resulting or allegedly resulting from any legCiI action or other assertion by the
Developer or any third party challenging the validity or legal ade.quacy of this Agreement
or any provision hereof
The City does not, and shall not, waive'any rights against the Developer which it
may have by reason of the aforesaid hold harmless agreements because of the
acceptance by the City or the geposit with the City by the Developer of any insurance
policies orcertificates'ofinsurance purporting to indeninityforthe aforesaid losses. The
aforesaid hold harmless agreements shall apply to all liabilities, claims, expenses, and
damages of every kind including but not limited to attorney 'fees, suffered or alleged to
have been suffered, by ~eason ofthe aforesaid contractual agreements qr op,erations of
the Developer or any contractor or others performing on behalf of the Developer,
regardless of whether or not such insurance policies are applicable.
11. Contract(s) Warranty. The Developer shall. include in its agreement with
Contractor(s) the following provision:
Contractor(s) warrants to Developer and to the Qjty <:>f Poway that all materials
used in the work and all labor perfonned shall be in conformity with the plans and
specifications. Contractor(s) shall, at their own expense, make any and all repairs and
replacements that shall become necessary as. the result of any .failure of the work to
conforr]l to the aforementioned plans, specifications; provided, however, that Contractor
shall be obligated under this provision only to the extent of those failures or defects of
which it is given notice within a period of twelve (12) months from the date that the
Notice.. of Completion is recorded
--
12. Administration of Contract and Schedule of Performance. The
Developer shall administer and supervise the performance of the Contract(s). The
Developer shall use reasonable ,efforts to complete the Public Improvements as
provided in Section 1 Any material changes in the scope of the work to be performed
by Contractor(s) or other change orders under the Construction Contract relating to the
5
71825-00136-1368517.2
. . 101"23
PUblic Impr6~ertJE,!nt~ sliall be reviewed and ~PRroveg by City in writing prior to
. -. , . - ,
ContrCjctor's c.brpnjengement of such work.
,13. Compli~nce:L"bcirCode. With res.pect'totheworkqomprisingthe fubjic
Improvements, .th~ Develof:>~r shall De responsible for Contractors' compliance 'with the
prevailing wage requirements pursuant to Labor Code Section 1720; et seq., the
keeping .of all records' required pursuant to Labor Code Seclion1776 and the maximum
hours requirements of Labor Code Sections 18.10 through 18.15 Developer shall certify
to the Qityat the time that it i>ubmitsithe final accounting ar:1d requesUoNeilllbursement
that it IS in cofnpliapce,witti1h:e,(equirements ofthis'Seetion 13. Prevailing wClges shall
be paid for all w()rl<. performed 9h the Public Improvements. The parties acknowledge
and agree that Public Improvements are a requiremenlofthe;regulatory approval of the
Developer's project, that .no more money or the equivalentofmoney has been (or shall
be) ,contributed to Developer's Project than is required to perform ~he Public
Improvements, and that the City has no proprietary in~erest in the Development.
Accordingly, pursu?ritlo LCl~6r!C6de 9 1720(c)(2) only'the Public Improvements work is
required to be subjecfto.such prevailing wage requirements.
14. Ihspection. Construction inspection of the. Public. Improvements shall be
performed by City inspectors. The City's usual. plan check and inspection fees as
applicable for the Public Improvements shall be payableby'the Developer and shall be
reimbursable in accordance with the procedures set forth in Section 2 of this
Agreement.
15. Final Accoulltin9., Following completisin of .construc:;tion of the Public
Improvements and foilowingfull payment of all third party invoices for materials..
supplies and contractors for the completion of the Public Improvements, the Developer
shall submit to the City a final accounting to determine the amount of reimbursement
due the Developer. The Developer shall submit at the same time to the City all
supporting inforination reasohablynecessary todpcumentfthe,l::>eveloper's costs for the
Public Illlprovemeiits, ihcludingspecific details on the costs 'and workattribLitable to the
Public Improvements, in~c1LJdi'ngll)voic:;es, third-partyinvbices,hillings, and re.ceiptsfor
construction surveying, soil te"sting, blueprinting, actual cor'istructiohcostsand similar
expenses. The City acknowledges that Developer'does not receive and retain copies of
caDcell~.cl chec..ks and that copies of cancelled chec:;ksshall not be required.- The City
shall review, modify if necessary to conform to the eligible costs l)e,reuQ,der and: tl)e
documentation thereof, 'andapprove the reilllburserhent due to the Developer (the
"Approved Reimbursement Amount"). In the event of any proposed modification, the
qtY'~han first c:;onfer and seek to agree with the Developer upon the Approved
Reimbursement AmOl.lpt. ~u~jec! to tl)~ lilllitation 9f the Maximulll Reimoursable
Amount, ,reimbursementstiall" be made to the Dei/eloper based upon the Approved
Reimbursemeht,Amount.
16. Default. Failure or delay by either partyheretq to perform any term or
provision ofthis Agreement shall, constitute a default under this Agreement. The party
who so fails or delays' must, upon' written notice to do :so, immediately commence to
cure, correct; or remedy such failure or delay, and shall complete such. cure, correction
6
71825.00136'1368517.2
. . 10124
or remedy with diligence. In the event of a default,. the ihjure'd partY shall give written
notice of default ,to the party in default, specifying the. default complained of by the
injured party Except as required to protect against further damages, th!'l injured party
may not institute proceedings against the party- in default until thirty (30) days after
giving such notice, provided however, that no proceedings shall be instituted if'the
defaulting party shall commence and proceed to cure such default in a diligent manner
and the nature of the default is such that it cannot l?e cured within thirty (30) days.
Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default. In addition, no litigation shall be commenced by one
party against the other without first seeking formal mediation of the dispute through the
auspices of the Superior Court of the County of San Diego.
17,. Notices. Any notice, request, demand, consent, approval or other
communication required to be given shall be addressed as follows:
To City: City of Po way
13325 Civic Center Drive
Poway, California 92064
Attention: Niall Fritz, DireCtor of Development Services
To Developer: Costco Wholesale Corporation
999 Lake Drive
Issaquah,WA 98.027-5367
Attention. V Anthony Unan
With a copy to: Henry D Finkelstein
Greenberg, Glusker, Fields, Claman,
Machtinger & Kinsella, LLP
1900 Avenue of the Stars
21st Floor
Los Angeles, CA 90067
18. Non-Discrimination. In the performance of this Agreement, Developer
shall not discriminate on the grounds of race, religious creed, color, national origin,
ancestry, sex, or age.
19. . Governing Law. This Agreement shall be governed by the laws of the
State of California. Any legal action brought under this Agreement must be instituted in
the Superior Court of the County of San Diego, State of Califernia.
20. Amendment of Agreement. No modification, rescission, waiver, release
or amendment of any provisions of this Agreement shall be made except by a written
agreement executed by the Developer and the City
21. Independent Contractor. The Developer shall act as an independent
contractor under this Agreement, and not as an agent, partner or employee of the City
'.
7
71825-00136-1368517,2
. . 1-0,125 .
.22. Developer Assignment. In no event shall the Developer as~ign or
transfer any portion of this Agreelllent without the prior, express written (:onsent of. City,
which consent may DE:l ,givElIl 6rwithheld in City's sole' ,~iscr~li.o[; provided, however,
Developer shall be permitted to. .absolutely or collateI?1ly 1fssignits right to receive
payments t\er.eu~der to any person or entity who acquJres allor any partof.the Property
or who h'1?kes'a loan secured by;all or any part of the Property. .
23. Entire Agreement. This Agreemen~ toge.Jher with all attachments hereto
and, the Qevelopment Agreement arid all attachments thereto constitute, the entire
u'nderstanding and agreement of the parties with respect to the subject matter of this
transaction. 11:1is Agreement .integrates all of the terms' :and conditions mentioned
herein or .incidental thereto, and supersedes all prior negotiations, discussions and
previous agre~ments between the. City'and the Develop.er cOllcerning all or .any part of
the subject Illatter'of this. Agreement. This Agreem~nrsha" not supersede all or any
- . . - .
portion of the Development Agreement, but shall be. construed ;as implementing the
parties' responsibilities to finance and construct the Public Improvements.
24. Attorneys' Fees and Costs. In the event that any action is instituted
under this Agreement,. the P?rties Ii,ereto agree that the prevailing party shall be e[ltitted
to recover its reasonable attorneys fees and costsincurred"ir]. enforcing this Agreement.
IN WITNESS WHEREOF, .the parties hereto have executed this Construction
and Reimbursement Agreementas of the date set forth above.
CITY:
City of Po way
By' N i
..
s L. 'Bowersox, City Manager
DEVELOPER:
Costco, Wholesale Corporation
By::,
fP'
Ie ARDJ. OWl
Vice PresrdentlAssisfantSecreta,ry
8
7l~25'()0136.1J685l7.2
II
. .
10126
Table of Contents
Page
1 Construction of Public Improvements ... .... ... ..... ...2
2. Reimbursement ......... ........... ............ .... ...... ... .2
3 Cosl'of Other Improvements....... ... ....... ...... .... ..:2
4 Engineering and Construction Management Costs... ....... .. .....3
5 Approval of Plans.. ... ... .... .... .., 3
6. Bidding and Award.. ....... ...... ... ..... ... .... 3
7 Stop Notices ... ....... ... ............ ....... ....... ...... .....3
8. Bonds .... .... ... ......... ... .. ... .. .......3
9 Insurance...... ..... .......... ....... ......... .... ............... 4
10 Hold Harmless ........ .......... ....... o. ., ... ... ...... 4
11. Contracf(s) Warranty ....... ........... ......; ..... ... .. ..... .....5
12. Administration of Contract and Schedule of Performance ..........5
13. Compliance Labor Code ........ ..... ... ......... .... ... 6
14 Inspection ...c... ... ... .. .... .... .....6
15 Final Accounting .. ..... ...... .... ....... ..... ....6
16. Default ..... ........ .... .. .... .... ... .. .......... .... ........6.
17 Notices..... .. o. ..... ...... ... ..... ....... ..7
18. Non-Discrimination ... .......... ., ............. .... ........ ............ 7
19 Governing Law .... .. ... . .... ., ..... .... 7
20 Amelldment of Agreement ......... ........ ....... 7
21 Indeperi.dent Contractor ........ ..... 0.. ,. .... 7
22. Developer Assignment.. ... ... ..... ......... ....8.
23. Entire'Agreement.. .... . ... ... . .... ...... 8.
24 Attorneys' Fees and Costs.... .... .. ... .... 8.
i
71825-00136-1368517,2
. . 10127
EXHIBIT A-1 and A-2
,
PUBLIC IMPROVEMENTS and COSTS
71825-00136-1368517.2
. . 10128
POWAY PROJECT SITE
PRELlMIN)l;RY OPINION OF COST
OFFSITE IMPROVEMENTS
Tech Center Scripps Pkwy Total
Improvements Quantity Quantity Quantity Unit
Mobilization 0,5 0:25 0.75 LS
Traffic Control 0.45, 0.45 0,9 LS
Roadwav'.Excavation 585 0 585 CY
Sawcut Existing Pavement 1680 0 1680 LF
Demo. Existing Curb and Gutter 880 0 880 LF
Demo Existing'AC Pavement 2400 0 2400 SF
Demo Existing'Sidewalk 0 0 0 SY
Relocate,Fire Hvdrant 1 0 1 Ea
Demo Storm.lnletwl Pipe 1 0 1 Ea
Relocate"Water Meter 2 0 2 Ea
Relocate;Misc. Risers 2 0 2 Ea
RelocateExisting Street Light 2 0 2 Ea
Tvoe G Curb and Gutter 880 0 880 LF
Median Construction 400 O. 400 LF
AC Pavement 325 0 325 Ton
PCC Cross Gutter at Entrance 133 0 133 SY
Aggregate Base 700 0 700 Ton
Preparation of Subgrade 15800 0 15800 SF
Pedestrian Ramo 6 1 7 Ea
Concrete Sidewalk 793 720 1513 SY
Irrigation Service 1 0 1 Ea
Streetlight incl conduit and,service 2 3 5 'Ea
New Signal w Poles /l; APPurtenances 1 0 1 LS
Signal Modification 0 1 1 LS
Sionallnterconnect 0,5 0,5 1 LS
Signing and Strioing 0,5 0:25 0,75 LS
Erosion Control 0,5 0.25 0.75 LS
Landscaping (Repair) 0,5 0.25 0.75 LS
Subtotal: I
20% ,Contingency:
Soft Costs'for Design of Off-Sites . i
Civil Engineerino i
Traffic Engineering - striping and signals I
Subtotal: ,
i
Grand Total; I
'. ~
. 1,0.1,2:9
Prepared' By M.'wolfe, PE .
Fuscoe:Englneerlng,San Diego
UPDATED 8/20/2003
Tech Center Scripps Pkwy Total
Unit Cost Amount , Amount Amount
$55,200'00. $27,600.00 .$,13;800,00 $41,400
$22,500100 $10;125,00 .$10;,125,00 $20,250
$12.00 . $7;020.00 $0,00 $7,020
$2.00 $3,360.00 $0:00 $3,360
$3,50 $3,080.00 $0.00 $3,080
$1,00 $2,400,00 ,$0:00 $2,400
$2,50 $0:00 $0,00 $0
$4,500,00 $4,500,00 $0.00 $4,500
$2,000:00 . $2,000,00' $0,00 $2;000
1$)',000.00 $2,000,00 $0:00 $2,000
.$1,000,00 . .' $2,000.00 $0,00 $2,000
'$2:000 :00 $4,000:00 $0.00 $4,000
$12.00 $10,560,00 $0,00 $10;560
$28.00 $11,200,00 $0.00 $11,200
$48.00 $15,600.00 $0.00 $15,600
$35,00 $4,655:00 $0:00 $4,655
$15,00 . $10,500:00 $0.00 $10,500
'$OAO $6,320:00. '$0:00 $6,320
$600.00 $3,600,00 $600,00 $4,200
$21:00 $16;653:00 $15,120.00 $31,773,
$1,200:00 $1,200:00 $0,00 $1,200
$4,200.00 $8,400'00 ' . $12,600,00 $21,000
$160,000,00 $160;000:00 $0:00 $160,000
$30,000:00 $0,00 $30,000.00 $30,000'
$10;000:00 $5,000:00 $5,000,00 $10,000
$10,000,00 $5,000:00. $2,500,00, $7 ;500
$4,000:00 $2;000:00 $1,000,00 $3,000
$5,000,00 $2,500,00 $1,250:00 $3,750
i I $331,273 $91,995 $423;268 .
I I
i I $84,654
!
! .
, I $30;000:00 I
I $23;000cOO
I $53;000:00 $53,000
I I
I , $S6(),922
. . 10130
CONSTRUCTION AND REIMBURSEMEN:r AGREEMENJ
between
CITY OF POWAY
and
COSTCO WHOLESALE CORPORATION
September 16, 2003
i
71825'{)OI36-1368517,2
. . 1013;1
Table of Contents
Page
1.. Construcfion of Public ImprovementS .... ........ ,. .2
2. Reimbursement .. .... .......... ............. .... .. .2
3 Cost of Other Improvements... ... ....... .... .... .2
4 Engineering'and Construction Management Costs.. 3
5. Approval of Plans... ..... .... ..... .... 3
6 Bidding and Award. .. ., ... .... 3
7. Stop Notices ....... . .... ..... .... ., ..... 3
8.. Bonds .............. .. ..... .... .... ..3
9 Insurance ...... ..... .. .... .... ..... 4
10 Hold Harmless .... ..... ............. ... .. .... ............ 4
H. Contr,act(s)Warranty, ..... .... 5
12. Administration of COlltract and Schedul~ ofPerfbrmance .... 5
--, -,
13 Compliance Labor Code .... ,. .... 6
14. Inspection ., ...... .... 6
15, Final Accounting .. ....... .. 6
16. Default, .. .. .. ... .... .... ...6
17 Notices.. -.... ....... ... 7
-
18. Non-Discrimijiati6n .. 7
19. Governing Law .... .. .. .... .. 7
20 Amendment of Agreement. " .... ..... 7
21 Independent Contractor 7
22. Deyeloper Assignment. .... .... ......... 8.
23 Entire.AgreElmer:lt .. 8.
24 Attorneys' Fees and Costs.. .... 8.
i
71825-00136-1368517.1
. . 10132
.
CONSTRUCTION AND REIMBURSEMENT AGREEMENT
THIS CONSTRUCTION AND REIMBURSEMENT' AGREEMENT ("Agreement")
is made as of September 16, 2003, by and between the CITY OF POWAY,a general
law city ("City"), and COSTCO WHOLESALE CORPORATION, a Washington
corporation ("Developer')
RECITALS
TheJollowing recitals are a substantive part of this Agreement:
A. Developer has entered into a Purchase Agreement dated February 14,
2003, to acquire from Applied Micro Circuitry Corporation certain real property
consisting of approximately 31 49 acres, located at the southeast corner of the
intersection of Scripps Pbway Parkway and Tech Center Drive in the City of Poway,
referred to herein as the "Property"
B. Developer has applied for and on August 28., 2003, obtained approval
from the City for Development Review NO.03-13 (the "Development Review") to develop
a portion of the Property with a Costco Warehouse and a portion of the Prqperty with a
home improvement store (thei'Development"). Various conditions of approval of ,the
Development Review require the Developer to construct certain street and traffic control
improvements for the benefit of the Development (the "Public.lmprovements").
C The City's South Poway Specific Plan requires for the benefit of the entire
South Poway Specific Plan area the same Public Improyements required as conditions
of approval of the Development Review 03-13 to Scripps Poway Parkway and Tech
Center Drive in the vicinity of, butoffsite from, the Property The Public Improvements
are referenced in the South Poway Specific Plan and described in detail in Exhibit "A-1"
attached hereto An engineer's estimate of the cost of such Public Improvements in the
sum of $560,922.00 is attached hereto as Exhibit "A-2."
D The City and the Developer have executed a Development Agreement for
the de\ielORment of the Property, dated as of Septelllber 16, 2003 (the "Development
Agreement"), pursuant to Government Code Section 658.65 et. seq. By the tenns ofthe
Development Agreement the parties have agreed pursuant to Government Code S
658.65:2 that the Developer,shall construct and finance the Public Improvements, and
the City shall reimburse the Developer the cost of those Public Improvements.
E. The City and the Developer agree that the Public Improvements and
certain other on-site improvements which are the Developer's responsibility must be
coordinated, and all must be completed before the Developer takes occupancy of the
I
. I
. 101 33,
Costco, store portion of the Develppinent and ()p'~nsfcjf. business~ The Develql?er
desires to proceed' promptly with construction of the Development. The City. is not
prepared to construct, the Public Improvements ~s'a public work at this time. The
ii>eveloper--desires tp con~truct the Public Improvements as a condition of appr.oval of
the De'velopment' Review in accordance with the Development Agreement, and be
reimbursed therefore on specified terms and conditions.
F The City has determined that public safety would best be served if the
Developer and its contractor(s) constructed the Public Improvements, subject to
. ,
reimbursement of the cost thereof by the City pUrSl1Cint hereto. The Public
Improvements'which City dE:l~irE~s Developer to construCt are the Public Improvements
sometimes hereafter 'Called th~ "Reimbursable Improvements."
G.. The Dev'elbf:ier c!l:lsires this Agreement govern its construction of the
, Public Illll?rovementsand the City's reimbursement to the -Developer of the cost thereof
pursuant to this Agreement.
NOW, THEREFORE, the City and the Developeragreeias follows:
1. Construction of Public Improvements. The Developer shall caus!:) the
Public Improvements to be constructed in their entirety witbin 18.0 days after the
, commencement of construction thereof, subject to delays' beyond the reasonable
control of the Develop!:)r The .Developer fully assullles all obligations,req'uirements
and c6ngitions under'the Development Agreement with .respecl,to the completion of the
Public Improvements, and 'the' Developer agrees to construct the I?ubliclmprovements
in accordance with the "Approved Plans" (as defined in Section 5,oelow).
2. Reimbursement. Subject to the terms of this Agreemen!, the City. s.hall
reimburse the Developer the actual direct and indirect costs attributable to the Public
Improvements, including tb~ actual costs of desigll, plan check, and inspection,
construction and other out~of,pocket costs for the design and construction .of'the Public
. ' . -
Improvements. Upon completion of the Public Improvements, the Developer shall
submit the final accounting required by Section 15 hereoffor the Teview and approval of
the City The amount of the actual costs approved by the ,City shall be the Approved
Reimbursable Amount Ugon approval of the final 'a(;coUriting and issuance of a
certificate, of occupancy for the Costco'store, the City shall, Within thirty (30) days pay to
the Developer an amount equal to the lesser of the Approved Reimbursemeni,Amount
or Four Hundred.~Eighty Thousand Dollars ($48.0;000)c l:)Ron ,issuance of the certificate
of occupancy for the home irriprovenient store portion <Wthe Development, the balance
of the APproved R!:)imbursement Amount; if any, s'fiall be paid to Developer within 'thirty
r ,a'l-"<.,, ..'
(30) days; provided however, the total reimbursement paid by the City to the Developer
for the cost' of the Public Improvements shall not, in any event, exceed Eight Hundred
Thousand Dollars ($8'00,000) (the "Maximum Reimbursable Amount").
3. Cost ,of Other Improvements. Except for the reimbursement' provided
for in Section 2 above, Developer shilll bear all costs of .any and all ,improvem!:)nts
required of the Development unger the Development Revie~ Notwithstanding any
other provision of this Agreement to tbe contrary, the City shall 'contribute, anCl the
2
71825.00136.1368517.2
,
. . f 10134
Developer .insists ,thal'the City contribute, no more,'money:orthe equi~alen! of money,
to the public improvements or. to the overall project (th~.De",elopfi1eDt) than is required
to perform the public. improvement work, and sh?I!,wjt~oQt gemand, be entitled to
repaymehtfrom Developefof (inyoverpayment therefore.
4. Engineering and Construction ~.:magemer't Costs. :Subject to
feilllbursement by the City P,ur~uant hereto, Developer' shalj engage and-pay for a.
'Iic:;ensed third party Civil' engirieer to prepare the construction drawings and detailed
plans a'nd specifications forthe Public Improvements.as required by the City
,
5. ApproVal of Plans. The Developer shall submitto the City for its review
and approval all plans, specifications, and drawings required by the City for construction
of the Public Improvements, which, once approved, shall constitute the "Approved
Plans."
6. Biddingal'!d Aw,!rd, The DeveloP13r r'Jlay. enter into a so-called
"negotiated bid" with ariiDgependent third party general contractor; provided that any
such negotiated charges which are not .based on subcontracts shall not exceed
customary amounts in the building industry and provided. the, general contractor shall
solicit not fewer than three, bids for each subcontracted. portion of the, Public
Improvements exceeding ten',percent (10%) of the total cost ("M.ajor Subcontra<ets"),and
shall select the lowest respQnsible bidder for each sucn Majo'i' SUbcbntracfp6rtion of the
Public Improvements. i~Uc;h general contactor is hereinafter referred to as the
"Contractor" Upon the request6fihe City, the Developer shall submit to the City'copies
of all bid solicitations, bids, and construction contracts withih ten (10) days of .the City's
request.
7. Stop Notices. The Developer shall include in each construction contract
a provision authorizing the withholding of payment?: otherwise due to such, CbritraCtors
for work on the Public Impr'ovem~nts in the evenfthcitstop notices are filed with the
City In the event th1;lt Cl stqp notice, which is valid on its face, is timely filed with the
City, the City will prolllptlynotify the Developer In the-event that any apparently valid
stop notices are on file ,with the City when the Developenenders its final account to the
City.in accordance with Section 15 herein, the City shall withl1pl,d from the amount owed
to,the [)eveloper under this,A;9reement a sum equal to 125% of the amount claimed in
each stop notice until the Developer provides the City proof of payment and
unconditional release, conditional release and payment, expiration by operation of law,
or disposition pursuant to court order of suchistopnotice.
.8; Bonds; The Developer shall obtain and maintain, or requir,e each
Contra,c!Qr orsubcontrac:;.lor to obtain and riii'lil)taih,fa,itliful performance and I~bor and
materi~1 bon~ds i~a form approved by the City, each with an adlllitted corporate. surety
business. within: the State of Californiaano a Best's rating of at leas!' AN or better, in
amounts eql;Jal to 100% of the estimated cost' to construct the Contractor's or
subcontractor's portion of the Public I~provements for the faithful performance bond
and 100% ,of the estimated cost t(). construct the Contractor's or subcontractor's' portion
of the Public Illlprovements for the labor and material bona. In the absence of
. 3
71825,00136"1368517.2
.
. . 1001135
unresolved clilims,thefclithful performance bond'shall be Ireleased' ninety (90) days
after tt:l~\bev"elqperor Cbhit~ctor records a notice ofcolllpletion, and the labor and
materiaJ'bond shall :bereleased ninety (90) days after 'the' Developer or Contractor
records a notice of completion pursuant to Civil Code SeCtion 3093.
9. In$urance. The, Developer shall not permit designer(s), engineer(s)" or
Contractor(s) to commence work until each has 'obtained the ,insurance required herein
issued by companies with, a Elest's rating of AN or better and such insurance has been
approved by the City as. to form and amount.
The Developer shall. require each designElr, ehgineer, and Contr~ct9[ to ,obtain
and mai"tain, during the term of this Agreement" Workers' Compensation Insurance;
and, if any work is ,sulitontracted, the Developer shall. :require all subcontractors to
, .
provide Workers' Compensation, Insurance~ The Workers' 'Compensation Insurance
shall provide that the insurance may not be cancelled until thirty.(30) days after written
notice. of such cancellation is provided toCity
The Developer shall obtain and maintain, orJequireeach designer, engineer, and
Contractor to obtain and maintain, during the life of this Agreement the following
insurance coverage:
Commercial G~ner,1:!1 ~ii:lbilityand Automobile Liabili!y with limits not less than
one million dollars ($1,060,000) combined single limit land ,per occurrence for each
design and engineering firm and three million dollars ($3,000,000) for each Contractor.
Errors and Omissions' coverage with limits not less than one million dollars
($1,000,000) for each design and engineering firm.
An endorsement shall be obtained for the Commerci.al. GeReral .Liability policies
providing the above insurance naming the City, its officers, agents and employees. as
additional insured's and prQviaing for thirty (30) days a,dvance notice of cancellation.
The Developer shall provide to the City proof satisfCjctory to the City showing the
above insurance ci?verageprior to permitting such designer, engineer, or Contractor to
begin work under'this Agreement. Any certificate of inSurance Illust be in a form and
content approved. by the City.
1,0. Hold Harmless. The Developer agrees to protect,defend, indemnity and
hold.. ha.r:.mle;:>s thEl City and its elective ?nd a~poif1tiVe boards, officers,agellts and
employees .from any and "III claims, liabilities, ,expenses or damages of any nature,
including attorney' fees, for' 'injury to or death of any person, and for injury to any
property; including consequential damages of any nature resulting there from,arising
out of of'in any wa,y' conneCted to the design, engineering, or construction onhe Publ\c
Improvel11~nts by or on behalf of D~veloper, including damage!:! resulting, or allegedly
r~sulting frqrn'viola!ion of anystatute".regulation'or other legi'l.1 re9uirement concerning a
safe place fo~ ~mploYlllent qfwork~r!>, except to the extli:lnf.of damages resulting from
the sole negligehce of the City Nothing contained in this Section" however, sh,all be
4
71825~OI 36,136851702
. . ",
1 Ol 36
deemed to be a warranty against construction defects, the only such warranty being
contained in Section 11 below
The DE1velop,er shall cOlT]ply with and shall require designers, engineers, and
Contractors ,to comply iNjth all of the proVisions of the Workers' Compensation
Insurance and Safety in EmploYf"!1ent Laws 9f the St~te. qf California, including the
applicable provisions of DivisionS 4 and 5 of the Cali.forr:1ia LilborCode and all similar
state, federal or local laws applicable; and shall indelllnifyiand hold harmless City from
and against all claims, liabilities, expenses, damages, suits, actions, proceedings land
judgments of every nature and description, includ'ing reasonable attorney's fees,
presented, brought or ~ecoveredagainst the City.orits officers, employees, and agents,
fororon account of any liablljtY"uncjer any of said laws whic,h may be incurred"by reason
of any work performed under this Agreelllent by the Deiveloper or ori behalf of the
Developer
The Developer agrees to protect, defend, indemnify, and hold hannless the City
and its officers, agents, and employees from any and all claims, liabilities, experises or
damages resulting or allegedlyresulting from any legal action or other assertion by the
Developer or any third partY, challenging the validity or legal adequacyofthis Agreement
or any provision hereof .
The City does not, ilpd sh!'lll not, waive any rights against the Developercwhich it
may have by reason of the aforesaid hold harrnll;!ssagre.elllents beca'u~e of the
acceptance by the City or the deposit with the City by the Developer of any insurance
policies or certificates of insurance purporting to indemnify for the aforesaid losses. The
aforesaid hold harmless agre~mentsshall apply to all' liabilities, claims, expenses, and
I damages of every kihd inc;:lu~f19 but not ,limited to attOrney 'fees, suffered or alleged to
have been suffered, by reason of the aforesaid contractualagreemerits or operatiOns of
the Developer or any contractor or others performing on behalf of the Developer,
regardless of whether or not such insurance policies .are applicable.
11. Contract(s) Warranty. The Developer shallfnclude in its agreement with
Contractor(s) the following:provision:
Contractor(s) warr<:ints to Developer and to the City of PO\r{ay that all materials
used in the work and all l1:lbor performed shall, bl3 in ,conformity with the plans and
specifications. Contractor(s) shall, at their ownexpeiise~.. make"any and all repairs and
replacements that shall become necessary. as the result of any failure of the work to
conform,tb,the,'af2r~mentioned plans, specifications; pro,vided, however, that Contractor
shall be 'obligated. under this provision only to theex!entofthose failures or defects of
which it is given notice within a period of twelve (12) months from the date that the
Notice of Completion is recorded.
.
12. Administration of Contract andScheauJe of Performance; The
Developer shall administer and supervise the performance of the Corl,trCjct(s). The
Developer shall use reasonable, efforts to complete the Public Improvelllents as
provided in Sectiojl 1 Any'material ~changes in the scope of the work to be performed
by Contract()r(s) or other changeordersunder'the Construction Contract relating to the
5
71825.Q0136.1368517.2
. . 101.37
Public Improvements shall be reviewed and approved .by City in writing prior to
Contractor's,commencement of such work.
13. Compliance LliborCode. With re~pectto,thework comprising the Public .
Impfovem,ents,the Qeveloper'sh~1I be responsible for. Contractors' compliance with :the
prevailing wage requir$rneiits :pursuant to LabOr Code Section 1720, et seq., the.
keepingofalT records reQtllre,Cj:PLJfSuant to Labor y6de l3ection 1 F6 and the maximum
hours.requirements of Labor Code Sections 18.10 through 18.15. DElveloper'shall certify
tothe,eity at thetime.that itsLibmits the final accounting and request forreimburselllent
that it is'in compliancewiththe,requirements of this"Section 1,3. Prevailing wages shall
be, paid for"all work 'performed on the Public Improvements. The parties acknowledge
and agree th?lt Public'lmRroVElments are a requirement oHhe,regulatory approval ofthe
Developer:s project,that'no Illore money or the equi\ial~n,Jofmoney has been (or shall
be) contributed to Developer's Project than isreq~ife9 to perfonn the Public
Improyements, and that the City has no proprietary' interest in the Development.
Accordingly, pursuarit to Labor code 9 1720(c)(2) onlyithe'Public rmprovements work is
required to be subjectto.such Prevailing wage requirements.
14. Inspec!ion. 'Construction inspection of the :Public Improvements shall be
performed by City inspect6~s. The City's usual plan' ,check and' inspection fees ,as
applicable for the Public Impi"Q\iElrllents shall ,be payabl~t5y me Developer and shall be
reimbursable inaccordClnce With" the procedures set forth in Section 2 of this
Agreement.
15. Final Accounting.. Following completion of' construction of the Public
Improvements and following full payment of all third party invoices for materials,
" siJpplies,and contractors fofth.e completion of the Public Improvements, the Developer
shall submit to the City a final a9couriting to determine 'the' amount of reimbursement
due the, Developer. The Dei/eloper shall submit a! t~esa!'T1e time to the City all
supporting information reasonably'necessary to.doculllent me Developer's costs'for the
Public Improvements, including specific details on the costs and work attributable to the
Public Improvements,inciuding :inyoices, third-party invoices, billings, and receipts for
construction surveying, soil testing,. blueprinting, actual construction costs and similar
expenses. The City acknowledge~ithat Developer does nofreceive and retain copies of
cancelled checks and that copies of cancelled checks shall riot be required TheCity
shall r~vie\'y, mo~jjfy if n!3cessary to conform to the: eligible, costs hereunder and the
doculllentation ,ther~of'<:lnd approve the reimbursement due to the Developer (the
"Approv,ed Reimbursement Amount"). In the eyeii!of ?"ny PIoposed modification, the
City shall first confer and seek to agree with, the Developer upon the Approved
Rejmpursement, Amount Subject to the limitation of the Maximum Reimbursable
Amount;. reirDbufseiTIentshall be made to the Beveloper based upon the Approved
Reimbursement Am6Lint.
16. DefaLJlt FailLir~ 9J delay by eitherparty hereto to perform any term or
provision of this.Agreement shajlcQrlstiWte a default under-this: Agreement. The party
who so fails or delays must, upon written. notice to d,9~0; i,m[llEldiately commence to
cure,correct, ior,remedy such failure or delay, and shallcorrfjJlete such cure, correction
6
71825.00136.1'3685172
. . 1n~1,3:8
or remedy with diligence, In the event of a default, the injured party shall give written
notice of ,default to .thepartyin default, specifying the defaulfcomplained of by the
injured party, Exc~pt; as.required to protect against .further Qamages;, the injured party
may not institute proceedings ,against the party, in: default until thirty (30) days after
giving such notice, provided however, that no proceedings shall be instituted' if the
defaulting par:ty shall commer1ce,and proceed to cure such default in a diligeI)trnanner
and 'the 'natLire of the default is ,such that it cannot 'be, cured within thirty (30) days:
, . .~ _. t ~" _ _ '. ' . - . ,- .~.. - -.-< - . . .
Failure or delay in giving such notice shall not constitute a \'oJaiver of any default, nor
shall it change the time of default. In addition, no litigation shall be commenced by'one
partyagaihst the other without first seeking formal mediation of the dispute through the
a~spicesof the Superior Court of the County of San Diego.
17. 'Notices. Any notice, request, demand, consent, approval or other
communication required to birgiven shall be addressed as follows:
To City' City qf Poway
13325'Civic Center Drive
Poway; California 92064
Attention: Niall Fritz, Director of Development Services
To Developer' Costco Wholesale Corporation
999 Lake Drive
Issaquah,WA 98.027-5367
~ttention: V Anthony Unan
With a copy to. Henly D, Finkelstein
Greenberg, Glusker, Fields, Claman,
,'--.- . - .' -
Machtinger & Kinsella,LLP
1900 Avenue of the Stars
21 st'Floor
Los.Angeles, CA 90067
18. Non-Discril]1jn'ation. Ih the performance of this Agreement" Developer
shall not discriminate on the grounds of race, religious creed,color, national origin,
ancestry" sex, or age,
19, Governing Law. This Agreement shall be'governed by the laws ofthe
State of California: Any legal action .brought underthis,Agreementmust be instituted in
the,SuperiorCourt'oflhe (;t;lurity of San Diego, State,of'c;alifornia.
20. Amenclment of Agreement. No modification, rescission, waiver, release
or amendment of any provisions of this 'Agreement Sfi~lIhe made except, by a written
agreement execu'ted by the Developer and the City
21. Independent Contractor; The Developef sl1~il act as ah indepe-ndeht
contractor under this Agreement, and not as an agent, partneror'employee of the City
7
71325-001 36.1 3_68~17 2
. . 101 319
22. DeV~loper Assignment. In no event shall the !Developer assign ,or
transfer any PQrtionoffhis Agreement without the prior express written consent of. CJty;
which consent may be given or withheld in City:s sole discretion; Rfoxided, howeVer,
Developer shall. be 'permitted to absolutely or cc:>IIatera.lly aS$ig" its right to receive
payments hereunder to any person or eritity who acqLJires all or any part of the Property
or who makes aJoan secu~edby all or any part of the Property
23, Entire Agreem'ent. This Agreement together with all attachments hereto
and the Development Agr,eel)1ent and all attachments thereto constitute the entire
understanding and agreement of the parties with Jespecttothesubject matter of this
transaction. This Agreement integrates all of the terms and coriditions mentiofled
herein or incidental thereto, and supersedes. all prior negotiations, discusSions and
previous agreements.between.the City arid the Developercbncerningall or any part of
the subject matter of this Agre~Elri1ent. This Agreement. shall. not supersede all or any
portion of the DevEllbpmElnt Agreement, but shall be construed as implementing the
parties' responsibilities to finance and construct the Public Improvements.
24. Attorneys' Fees and Costs. In the even! that' any action is iflstituted
under this Agreement, the parties. hereto agree that the prevailing party shallqe entitled
to recover its reasonable attorneys fees and costs incurred.in enforcing this Agreement.
IN WITNESS WHEREOF; the, parties hereto haVe executed this Construction
and Reimbursement Agreement as of the date seUorth above.
CITY:
City of Poway
By'
s L. BoWersox, City Manager
.
. DEVELOPER:
Costco Wholesale Corporation
By
fP
Ie ARD J. OLIN
Vice PresldenVAssislant Secretary
8
71825-001;36'1368517,2
. . I
1014,0
EXHIBiT A-1and A-2
PUBLIC IMPROVEMENtS'arid COSTS
71 825-00 I 36.1368517,2
,
. . 10'1'41
POWA Y F!RoJEGT SIl:E
PREL:IMINARYOPINION'OF COST
OFFSITE IMPROVEMENJS,
Tech Center Scripps Pkwy Total
Impro1(ements Quantity Qua'ritity Quantity .Unit
Mobilization 0,5 0,25 0.75 ~S
Traffic..Control _ 0.45 --{j 45 '-o:S- -'I::s
Road~ ExcaVation. 585' 0------585--' :"_CY _
SawcutExistirig PilVeme.~t 1680 :_-..J!. 1680 LF
Demo Existing Curb and Gutter 880 _____2 880 LF
Demo Existing AC:pavement 2400. 0 . 2400 SF
Demo Existing Sidewalk 0 .~O---- 0 SY
Relocate Fire Hvdrant .------ 1 0 1 Ea
Dem()Stormlnletw/pipe - -: 1.. O~_~__ _..5_~_
RelcicateWater'Metei 2 ___._~_.~ _.~
Reiocate Mise, Risers 2 0 2 Ea
Relocate Existing StreerLight _. 2 ---"--'--"0 2 Ea
!lP-e G Curb and Gutter~'--~---= _____.880.1-_ ~___~ 0 ----880--' LF-
Median Construction 400 0 400 LF
AC Pavement. 3250 325 Toh
PCC.CrossGutter at Entrance 133 ---:--0 133SY
Aggregate Base - 700' -----0 _-1:22___. Ton_
Preparation of Subgrade _ ___ __._ 15800 0 ..--1..~.9.9SF
Pedestrian Ramp 6 1 7 Ea
Concrete Sidewalk 793 720 ~5.13____ __S~_
Irrigation Service '. 1 ___~"___.Q __J....__ ~_
Streetlight incl conduitarid service 2 3 5 Ea
New Signalw Poles & Appurtenances _ _ _____-1 =-_--::.=- 0 ~~~=-l-=-~. LS =
Signal Moaification 01' 1 .LS
Skmallnterconnect 0,5 --..----.0,5 1 LS
~9ning and Striping 0.5 - 0:25 _ 0:75 .LS --
Erosion Control ____ _~ 0:25 _ 0 75 LS
Landscaping (Repair) 0,5 0.25 0.75 LS
-" --. ----
- . -
Subtotal: I _ i I
I I i
20% Contingency-: I I I
:-- I 1
SoftC6stsJ6rDesigri of'Off'Sites I r I - i
Civil Engineering _ L I II
TrafficEngineering "striping and signals I i I I
Subtotal: I ! I
Grand Total: - 1'-' ---1--------+-- I
. . 10',14':2
Prepared'By M. Wolfe, PE'
FuscoeEngineering;San'Diego
UPDATED 8/20/200~
Tech Center Scripps PkWy Total'
.UnitCost Amount Amount Amount
$55,2.0.0..0.0 :$27:6.0.0..0.0 $13;8.0.0.0.0 $41;4.0.0
$22,5.0.0:.0.0 $1.0,125..0.0 $1.0;125'.0.0 ~O)5D-'
. -=$DcDD'-'-'" ..-
,$12,.0.0 $7,.02.0:.0.0 ' ,$7,.02.0
- $2..0.0 $3,36.0,.0.0 $0..0.0 - $3,36.0 --
- .- --
,$3,5.0 $3,.08.0,.0.0 .$.0..0.0 $3;.08.0
'$1,.0.0 $2;4.0.0:.0.0 $.0.02-.__ $2,4.0.0
,$2,5.0 $.0,.0.0 $.0,.0.0 $.0
. $4;5.0.0..0.0 $4,5.0.0..0.0 _~ . $.0,.0.0 . $4,5.0.0
...--
$2,.0.0.0,.0.0 $2,.0.0.0,.0.0 $.0..0.0 . _~2:DDD_
$1,.0.0.0..0.0 $2,.0.0.0:.0.0 - $.0,.0.0 $2,.0.0.0 .
$1,.0.0.0,.0.0 $2;.0.0.0,.00- - $.0,.0.0 ~gOD~~
- $2,DDD,DQ._ $4,.0.0.0,.0.0 $.0,.0.0 __n _$4,.0.0.0
$12,.0.0 $1.0,56.0..0.0 $.0,.0.0 $1.0,56.0 -
.. ...
$28, .0.0 $11,2.0.0,.0.0 $.0,.0.0 $11.2.0.0
$48,.0.0 $15;6.0.0,.0.0 $.0..0.0 $15,6.0.0
$35..0.0 $4,655,.0.0 $.0,.0.0 - $4,655
$15:.0.0 $1.0;5.0.0,.0.0 $.0,.0.0 $1.0,5.0.0
$DAD $6;32.0..0.0 $.0,.0.0 $6,32.0
$6.0.0..0.0 $3,6.0.0,.0.0 $6.0.0..0.0 -- $4,2.0.0
. $21..0.0 $16;653..0.0 $15;12.0..0.0 $31,773
$1,2.0.0,.0.0 $1,2.0.0,.0.0 $.0,.0.0 $1,2.0.0
$4,2.0.0,.0.0 $8,4.0.0,.0.0 $12,6.0.0..0.0 $21,.0.0.0
$16.0,.0.0.0:.0.0 $16.0,.0.0.0,.0.0 $.0..0.0 $16.0;.0.00--
$3.0;.0.0.0,.0.0 $.0,.0.0 $3.0,.0.0.0..0.0 $3.0,.0.0.0 ...
$1.0,.0.0.0:.0.0 $5,.0.0.0..0.0 $5,.0.0.0..0.0 -. $1.0,.0.0.0
~1D,DDD.DD $5,.0.0.0 ,.0.0 $2;5.0.0,.0.0 $7,5.0.0
$4,.0.0.0:.0.0 $2,.0.0.0..0.0 _~1,DDD,DD__= $3,.0.0.0
$5,.0.0.0..0.0 $2,5.0.0 ..0.0 -.- __$1,25.0,.0.0 $3,75.0
-
I i .$331 ;273 I $91,995 $423,268
i
i I
I i t "- $84,654
I l I -
~ I
I $3.0, .0.0.0. .0.0 L
i-- '"I $23,DDD:DQ....=.!
.. -I $53,000:00 .. I $53,000
l=== I L
$560,922
/J