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Development Agreement 1990-0681091RECORDING REQUESTED BY WHEN-RECORDED MAIL TO: CITY CLERK'S OFFICE CITY OF POWAY P.O. BOX 789 POWAY, CA 92074 OOC M 190- 0681091; 26- DEC -1990 08 :07 Ail SAN DIEGO COUNTY RECORDER'S OFFICE 638 VERA L. LY'LE, COUNTY RECORDER RF: 27.00 FEES; 53.00 AFB_ .25.00 NF: 1.00 (Above Space for Recorder's Us6 Only) TECH BUSINESS CENTER DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ( "Development Agreement ") is made and entered into this2.7th day of November , 1990, by and between the CITY OF POWAY, a municipal corporation organized and existing under the laws of the State of California ( "City "), and TECH BUSINESS CENTER, a California general partnership ( "Developer "). R E C I T A L S A. California Government Code Section 65864, et seq., provides that the legislative body of a city may enter into a development agreement for the development of real property in order to vest certain rights in the developer and to meet certain public purposes of the local government. Pursuant to California Government Code Section?65,865, the City has previously adopted Ordinance No. 177 establishing procedures and requirements for the approval of development agreements. Developer has applied to the City pursuant to California Government Code Sections 65864 - 65869.5 and Ordinance No. 177 for ;approval of the Development Agreement set forth herein. ' .B: The City desires to enter into this Development Agreement.with the Developer, in order to facilitate the development of certain property (the "Property ") known as Tech Business Center (the "Development ") and more fully described in Exhibit "A' and shown on the map set forth on Exhibit "B ", both attached hereto. The City further desires that the Development be >in accordance with the ,Planned Community Documents (as hereafter described). The City_ has given notice of intention to adopt the proposed Develo.pment.Agreement, has conducted public hearings thereon pursuant to Government Code Section 65867, and City's Ordinance No. 177 and has found that the provisions of 609j2PLAVT8356- 0d2/16 -15 =90 /jet I! r this Development Agreement and its purposes the objectives,; policies, general land uses Specified in,the City's General Plan and the (as hereafter d'escr,ibed). 639 are consistent with and programs Planned Community 1. C1. In connection with its approval of the South Poway Planned Community (the "Planned Community "), the Development Plan, the Development Standards and the. Final Environmental Impact Report for the Planned Community were approved,by the City pursuant to resolution on July 30, 1985x, and the Subsequent Environmental Impact.Report ( "SEIR ") were approved by the City pursuant to the Resolution No. P- 88 -85, on August 2, 1988, all of which are on file with the City Clerk and' incorporated herein by this reference (collectively the "Planned Community Documents "). The above- described Final Environmental Impact Repo-rt, as supplemented by the SEIR, is hereinafter referred to as the "EIR. "' D. The City acknowledges that by electing to enter . into contractual agreements such as this one, the obligations of which :shall survive beyond the term or terms, of the present City Council members, that such action will serve to bind the City and future Councils to the obligations thereby undertaken, and this Development Agreement ,shall limit the future exercise of certain governmental and proprietary powers of the City. By obligating. the City pursuant to this Development Agreement, the City Council has elected to exercise certain governmental and proprietary powers at the time of °entering into this Development Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Development Agreement have undergone extensive review by the City and its Council and have been found to be fair, just and reasonable, and the City has concluded that the economic interests of, its citizens and the public health, safety and welfare will be.best served by entering into this obligation: E. Development of the Property requires the construction of substantial public improvements, many of which improvements will benefit both the Development and surrounding areas. Certain development risks and uncertainties associated with the long term nature of the Development, including the cost of a portion of these public improvements, could discourage and deter Developer from. making the long term commitments necessary to fully develop the_Property; therefore, the parties desire to enter into this Development Agreement in order to reduce.or eliminate uncertainties to such development over which the City has control.. F. As permitted by law, the City and the Developer desire to establish development standards for the entire build -out period of the Development, including all phases -2- 609/2PLA/T8356- 002/10 -15 -90 /jet. 0 i 610 'thereof, the permitted uses for the Development, and to identify the scope of „pub l'ic inf- rastructure improvements to be required for and as a result of., the Development. G. The City recognizes that Developer may sustain substantial losses if the City were to default in its obligations herein undertaken. H. The.City, by electing to enter into contractual agreements such as this one,, acknowledges that the obligations of City shall survive beyond the term or terms; of the present City Council members, that such action will serve to bind the City and future Councils to the obligations thereby undertaken, and this Development Agreement shall limit the future exercise of certain governmental and proprietary powers of the .City. By approving this Development Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Development Agreement rather than deferring its actions to some undetermined future date. The terms and conditions of this Development Agreement have undergone extensive review by the City and its Council and'have been found to be fair,, just and reasonable, and the City has concluded that the pursuit of the Development will seve,the best interests of its citizens and the public health, safety and welfare will be.best served by entering into this obligation. City acknowledges that Developer would not consider or engage in the Development without the assurances of development entitlements which this Development Agreement is' designed to provide. I. This Development Agreement will promote and encourage the development of the Property by providing the Developer and its creditors with a greater degree of certainty of the Developer's abi.lity'to expeditiously and economically complete the development efforts, and the parties agree that the consideration to:be received by the City pursuant to this Development Agreement and the rights secured to the Developer hereunder constitute sufficient consideration to support the covenants and agreements of the City and the Developer,. By entering into this Development Agreement, City desires to vest in Developer., to the fullest, extent permissible under the; law, development entitlements necessary in order to complete the Development. NOW, THEREFORE,. in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties do hereby agree as follows: -3- 609/2PLA/T8356- 002 /10 -15 -90 /jet 11A 0 6 411 1,. Binding Effect of Development Agreement. The Development_Agreement pertains to the Property as described in Exhibit' The burdens of'the Development Agreement are binding upon, and the; benefits of the Development Agreement inure to :all successors in `interest of the parties to the Development Agreement; >, and constitute covenants which run with the' Property, and in order to provide continued notice thereof, this Development 'Agreement will be recorded by the parties. The City :hereby acknowledges that it has received'or will receive good and valuable consideration for the City's obligations and covenants under.this Agreement. 2. Relat- ionsh-io of the Parties. It is hereby specifically understood and acknowledged that the Development is a private project and that neither the City nor Developer will be deemed to be the agent of the other for any 'purpose whatsoever. 3. Reservat -ions or Dedications: It is hereby further understood and agreed that no reservations or dedications o'f land will be required by the City during the Term (as; herein defined) nor shall the City require developer to install and /or pay fo.r any on -site or off -site improvements or facilities except as part of the conditions "imposed in connection with the approval of Developer's proposed'Tentative Tract Map_,No. 89 -08 (the "Map "), or as'otherwise agreed to in writing by the City and Developer. Developer shall use;dil,igence to complete all such.on -site and off -site improvements or facilities which are identified as conditions to approval of the Map. 4. Term. The original term ( "Term ") of the Development Agreement is ten (10) years from the date of execution;- provided, deemed.cancelledaand ; ofwnoefurther forceooreef'fectewitht be respect to any legal lot within the Development upon the completion of all buildings and related improvements within all phases of development with respect to any such lot,. Upon any such completion, either, party may request.the other to execute. documentation confirming such cancellation, the approval of which shall nob be withheld or delayed. It has been, and continues to be understood and agreed that, if, at the end of the Term, Developer is in the process of developing the Property and the construction of at least fifty percent (50 %) of the Development has been completed, the Term shall be extended until such construction is completed, not to exceed an additional five (5') years after expiration of the Term. Pursuant to Government Code Section 66452.6('a),, the Map shall also.be extended so, that the Map shall remain valid for a period equal to the Term, as may be extended by this Development Agreement. If Developer has proceeded in good faith, but has been prevented from developing the Property within the time frames set forth in this Paragraph -4- 609 /2PLA /T8356- 002 /10 -15 -90 /jet s 0 by circumstances beyond its control, including,.:but not limited to, j,udicia s `1•injunctions., acts of God, or delay caused by City, or other local,, State or'Feder.al agencies in accordance with Paragraph 24 with respect to Enforced Delays, the Term shall be extended for an add'itional period equal to the period of such del -ay or, delays.. 5. Development Approval. Nothi'ng'set forth in the Development.Agreement shall be deemed to require Developer to complete the Development 'or any portion thereof; provided, however, however, the following elements of the Development are hereby approved: (a) Permitted Uses of the Property. Except as herein provided, nothing set forth in th6 Development Agreement shall be deemed to require Developer to complete the Development or any portion thereof,; provided :,: however, the parties agree that the permitted, conditional and, prohibited uses of the Property shall be as set forth in the Planned Community Documents. (b) Density or Intensity of 'Use. The ;parties agree that the maximum densities and intensities for the respective permitted uses of the Psoperty:shall be as set forth in the Planned Community Documents. (c) Maximum Height and Size of Proposed. Buildings. The Parties agree that the maximum heights and size of buildings: for the Development,shall be as set forth. in the Planned Community Documents. It is hereby agreed :. that with respect to any .proposed building(s) to be constructed as part of the Development which would resurt :in a density or, intensity whi_ch:is less than asset. forth in the P1 -armed Community Documents and /or for which ;the proposed size, and /or height.is less than set forth in the Planned"Community Documents, no consent or approval of "the City or any department thereof_sha.11 be required; provided, however, develbpment.review shall be conducted pursuant to'Chapter 17.52 of the Poway Municipal Code. The City hereby agrees that no change,(s) to the Planned Community Documents shall be effective as to the Development and that•City shall not seek to effect any such change(s) as to the Development without the prior written consent of Developer. 6. Processing of Applications and Permits. The City will accept,for processing and review of all applications far permits o; other entitlements with respect to the development and the use of the property in accordance :with this Development Agreement. `It is understood by the parties, to this Development Agreement that pursuant to ex= isting law.; development review 609/2PLA/T8356- 002/10 -15 -90 /jet -5- 642 643 approvals shall not remain valid for the term of this Development Agreement, but only!for the term of such development review approvals. Accordingly, the Developer shall have the right to file such new development review applications on portions of the Development where,such previously approved development review approvals have expired: Any such new development review applications filed for the Development shall be reviewed in accordance with the Planned Community Documents. 7. Development Review. Nothing set forth herein shall impair or interfere with the right of the City to require the processing of building'permits as re,quired'by law and to conduct its development review of any specific improvements proposed for the Development pursuant to the applicable provisions of the Municipal Code which are in effect as of the date hereof; provided., however, no such review shall authorize or permit the City to impose any condition and /or withhold approval to any proposed building the result of which would be inconsistent with any term or provision of this Development Agreement. It is hereby further agreed that the basis for the City's development review shall, to the degree possible, be limited to architectural design and compatibility with the remainder'of the Development and /or the area surrounding the Development. It is further agreed that the City shall in all events, provide reasonable alternatives to the design and layout of any building rather than to disapprove any proposed building. 8. Utility Capacity. It is hereby agreed that City will.not undertake any act or neglect to perform any act or duty which would impair or inhibit Developer's receipt of any and all public utility service, the fees for which Developer has paid or will pay to City for such service. City hereby agrees to use its best efforts to make available sufficient sewer capacity for the entire Development. 9. Assignment. Developer shall have the right to sell, assign, or transfer all or any part of its interest in the. Property without consent of the City. Developer shall further have the right to assign all of its right, title and interest in and to this Development Agreement to any person, firm or corporation having a legal or equitable interest in the Property at any time durin4 the term of this Development Agreement without the consent of the City. Developer shall further have the right to assign, on a non - exclusive basis, the rights of this Development Agreement to purchasers of legal parcels within the Development, and in such event, the rights of this Development Agreement shall run in favor of such purchaser(s) and such parcel(s). In the event the Developer assigns this Development Agreement in its entirety, Developer shall be released from any further obligations under this Development Agreement. In the 609/2PLA/T8356- 002 /10 -15 -90 /jet event the Developer partially assigns this Development Agreement with respect to any legal parcel within the Development, Developer shall be .released from any further obligations applicable ;to such parcel. No default by Developer hereunder shall defeat', render invalid or otherwise impair the rights of any party who acquires any parcel within the Development, and such party's fights under. this Development Agreement with respect to such parcel shall remain in full force and effect notwithstanding any such breach. Further, no party other than a transferee of the Developer with regard to the entirety of this Agreement shall be deemed to have assumed any obligations of the Developer hereunder. 10'. Periodic Review of Compliance. In accordance with Government Code Section 65865.1, the City.Council shall review this Development Agreement at least once each calendar year hereafter. At such periodic reviews, Developer must demonstrate its good faith, compliance with the terms of this Development Agreement. Developer's.duty to demonstrate may be satisfied by the presentation to tfie City Council of (1) a written report identifying Developer's performance or the reasons for -its excused performance,, of the requirements of this Development Agreement or (2) oral.or written evidence presented at the time of review. The parties recognize that this Development Agreement and the documents incorporated herein could be.deemed to contain thousands of requirements (e.g., construction standards., 'landscape standards, et al.) and that evidence-of each and every requirement would be a wasteful exercise of the parties' resources. Additionally, the parties recognize and acknowledge that this Development Agreement is not intended to impose on Developer any specific schedule for the Development, but rather is intended to enable 'Developer to develop. the Property consistent with the Planned.Community. Accordingly, _Developer shall be deemed to have satisfied its duty of demonstration when it presents evidence of its good faith effort to avoid the violation of any term -of the Planned Community Documents and evidence that Developer has made a good faith effort to develop the Property. In this, regard, it is hereby agreed and acknowledged. that Developer shall be deeined''to be in compliance with this Development Agreement notwithstanding the fact that subsequent to the:most recent periodic review,, Developer has not undertaken any development on the.Property or has undertaken development which is slower than 'that set forth in any "proformai' schedule, so long as market, financing, building or other conditions and factors then prevailing suggest that the schedule actually followed by Developer is reasonably prudent under the circumstances. Generalized statements of evidence shall be accepted, in the absence of evidence that such evidence is untrue. Either party may address any requirements of this Development Agreement; provided, however, that the City shall -7- 609/2PLA/T8356- 002 /10 -15 -90 /jet 644 0 0 645 provide ten (10) days'.notice of any requirement that it desires to be addressed. by Developer prior to taking action on the annual review. At the,concl_usi °on of such periodic annual review, the City Counckl'�s finding of good faith compliance by Developer shall conclusively determine said issue up to the date of such findings for,,,the purposes of future periodic reviews or legal action'between the parties. City'further .agrees, to permit Developer a reasonable period of time within which to effect the cure of. any failure'on Developer's part to comply in good faith with the terms of this Development Agreement. Developer agrees to furnish such evidence of good faith compliance as the City, in the reasonable exercise ,of its discretion and after reasonable not -ice to Developer, may require. 11.. Amendment or Cancellation. This Development Agreement, and the entitlements granted herein,, , may be amended or cancelled in whole or in part only by mutual consent of the parties or in the manner provided in Government Code Sections 65865.1, 65868, 65867 and 65867.5. (a) Any amendment to the Development Agreement which does not relate to the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation of land, conditions, terms, restrictions and requirements relating to subsequent, discretionary actions or any conditions or covenants relating to subsequent, discretionary actions or any conditions or covenants relating to the use of the 'Development shall not require a public hearing,before the parties execute an amendment hereto;. (b), Any non- substantial deviations from the terms of this Development Agreement do not require any amendment to this Development Agreement. Before any such non- substantial deviation is 'implemented, the other party must be given notice of such contemplated deviation. Such deviations which are not consented to will require submission to the amendment process; and (c) Except as herein provided, before the expiration of the Term of this Development Agreement, the parties may mutually agree to cancel-the 'Development Agreement, by executing an agreement to be recorded in the official records of San Diego County, California. 12. Vesting of Development. Rights., (a) General Statements. As a material inducement to the Development and i'ts lenders :to continue with diligent efforts to promote the development of 'the Property, the City desires to cause all development ?rights which may be required ME 609/2PLA/T8356- 002 /10 -15 -90 /jet • 616 to develop to completion the Property with buildings and related improvements consistent with.the Planned Community Documents to be.deemed vested in;Developer, as of the date of this Development Agreement, to the greatest, extent permitted by law, and except as herein provided, to be free of all discretionary rights of the City or any body or. agency thereof, to impose any subsequent building moratoriums or restrictions on,development which are inconsistent with this Development Agreement. (b) Existing Rules to Govern., In accordance with the terms of Government Code Section 65866, the City and the Developer agree that except as provided in this Devel'opmen't Agreement, the ordinances, rules, regulations and official policies of the City and its special districts.and agencies,, including the Planned Community Documents (collectively, the "Existing Development Policies ") in effect as of the date of this�Development Agreement governing the:design, density, permitted land uses., improvement and construction standards applicable to the development shall govern during the Term of this Development,Agreement. No amendment to any of the Existing Development P6iicies of the;City adopted by the City Council or other body or agency authorized to make such determination on behalf of the City- shail'be effective or enforceable by the City with respect to the.Development,.its design, grading,; construction, remodeling, use or occupancy, schedule of development or with respect to the Developer; or its successors or assigns. (c) Permitted Conditions and Fees. The City agrees that at the time of granting subsequent subdivision or other discretionary approvals, or issuing any permits, in connection with the Development or any part thereof, it shall not impose assessments, fees, taxes or exactions, other than the assessments,,fees, taxes or exactions specifically included in the.Cty's ordinances, ,resolutions and written policies in effect on the effective: date hereof, or as set forth in the Planned Community Documents, as may be adjusted annually by the City in proportion to annual, cumulative increases in the,Consumer Price Index for All Urban Consumer's - San Diego., California, Base 1982 -84 = 100, as published by -the United States Department of Labor, Bureau of Labor,Statistics. (d) Approved Changes to Development xeaulac -ions. The entitlements vested by this Development Agreement,shall be subject to only such other municipal laws and regulations which do not conflict with Developer "s vested rights to develop and use the Property in accordance with the ,Planned Community Documents. Developer and its successors and 609/2PLA/78356- 002 /10 -15 -90 1jet ME assigrns and'a,11 persons and entities in occupation of any portions of 1the Property shall comply with such non- conf +lictrng laws and regulations as may from time to time be enacted or amended hereafter. Specifi'cally,, but without limitation on the 'foregoing, such ,non - conflicting .laws and regu.Iations, include the following: (,i) Taxes, assessments',, fees and charges; (ii) Building, electrical mechanical, fire and similar 'codes based upon uniform codes incorporated by reference into the Poway Municipal. Code (iii); Laws, including zoning code provisions, which regulate the manner in'which business activities may be. conducted or which prohibit any particular type of business activity; and (iv) Procedural rules. (e) Subsequent "Slow /No Growth'" Measures. Consistent with (a):and (b) above, the City, Developer and the Agency specifically agree that any subsequently enacted . initiatives, referendums or amendments to the City's General Plan and /or Zoning Code which contain "slow /no growth" measures or which.by their terms are intended to, or by operation have such effect shall have 'no ,app.lication to the Development. Notwithstanding any such' measures, the mitigation measures required for the Development are limited to those established by this Development Agreement. 13.. Environmental Compliance. (a) EIR Processing Completed. The EIR and the Subsequent EIR for the South Poway`Planned Community is incorporated 'herein by reference as though fully set forth at length, The City certifies that all required environmental processing.for the development contemplated by the Planned Community has been completed by v- fr,tue of the EIR and' Subsequent EIR. it is the agreement of the City (and the City so certifies) that no mitigation reasures, whether arising out.of' the EIR or the Subsequent EIR or.any other area of law, that are not expressly identified in the 'Planned Community Documents or this Deve_lopment,Agreement shall be imposed on the Property, or as an obligation of the Developer or its successor- owners. (b) Subsequent Environmental Review. In exercising 'its legislative discretion to enter into this Development Agreement and to commit the City to the -10- 609/2PLA/T8356- 002 /10 -15 =90 /jet 648 completion of the Development, the,City has reviewed and considered the potential adverse envronmental.impacts related to all aspects of the contemplated project, including „without limitation, the potential demands the Development will make on local and regulation streets, highways;, parks and recreation areas, water capacity and water lines+, sewer capacity and sewei; lines., flood and storm drain systems,, and energy conservation, and the effect on school capacity, traffic, pedestrian safety, noise and air ,quality impacts. The City has further reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions, the projected future regional and cumulative environmental<demands that will compete with the Development for available capacities and cumulatively add to potential adverse impacts. In so doing, the City has considered among other things, the possibilities that: (i) Federal, local, regional and state plans, if any, for :provision of new infrastructure systems or expansion of. existing infrastructure systems may be delayed, modified or abandoned; (ii) The types, intensities, and amount of future regional development may exceed or otherwise be different from,that currently being planned by the City and other local agencies; and (iii) Regional and Development generated demands on inf- rastructure and utility improvements to be constructed as a part of the project may exceed in either the short, run or the long run the allocated capacities for such demands. After assessing these and other potential adverse environmental . impacts associated with the development of the Property, the City has imposed mitigation measures through the Planned Community process, the subdivision:review process, and this - Development Agreement to the fullest extent the City considers,feasible and necessary. The City has determined that phased completion of the Development in the manner contemplated will itself provide the mitigation measures needed to contribute to alleviate short run and long run potential adverse environmental impacts., and that the public benefits of the project override any potential adverse environmental impacts which may arise during the development period; therefore, the City agrees, consistent with California Public Resources Code Section 2116, that with the exception of the SEIR, no subsequent or supplemental environmental impact report shall be required by the City for'the subsequent discretionary approvals implementing the projects unless: -11- 609/2PLA/T8356- 002/10 -15 -90 /jet 649 (A) Substantial changes are proposed by the Developer which will require major '°rev- isions of the EIR; or (B) New information, which was not known and could not have been known at the time the EhR was certified as complete; becomes available; provided; however, that re- analysis of data-already examined and reported in the EIR. shall not be considered new information. The term 0 -new information" does not mean discovery that probabilities of adverse (or beneficial) results considered in the approval of this Development Agreement, or the Planned Community Documents may prove incorrect, or that such probabilities are or are not becoming.; or have or have not become realities, :but instead x,equires that the actual quantitative and qualitative extent.of the underlying issues was not considered in the environmental analysis associated with the approval of this Development Agreement and the EIR. 14. Right -of -Way Acauisitions. With respect to any required public street widening, elimination of interfering internal rights -of -way,, easements, and diverse property ownership, the installation of utilities and any other off -site facilities to be ,performed by Developer in fulfillment of any and all conditions imposed in connection with the approval of the Map and /or any other subsequent tentative, final„ or parcel, map prepared with respect to the Property and /or as part of the required mitigation measures -set forth in the EIR, Developer shall make a good faith •effort to acquire the necessary land by private negotiations at the fair market value of such land. if, despite such effort., Developer is unable to acquire such land, and provides the City with funding for such acquisition, the City shall offer to acquire the land at fair market value and, if such offer is rejected, the City shall hold a hearing and exercise its discretion with respect to acquiring required easements or rights -of -way in 'accordance with the terms of California "Code of Civil Procedure Section 1245.235. The City further agrees that with respect to any discretionary approvals applicable to any development projects proposed by the owners of land located in the areas of such proposed utilities and /or street widening, the City wi11 require dedications by such landowners of the required easements and /or rights -of -way for such proposed utili't -ies and /or street widening as a condition to the granting of any such approvals, to the extent authorized by law. 15. Restriction on Special Districts. The City and the Developer do hereby covenant and agree that except as expressly provided herein; during the term of this Development.Agreement, no special tax or assessment district, which includes property owned by the Developer in the Development will be created by the City or any agency or instrumentality of the City, unless -12- 609 /2PLA /T8356- 002/10- 15- 90 /j'et 0 • Developer expressly. then grants such authority and concurs in the creation of §aid :district and the terms and ;conditions of assessments or special taxes to be levied thereunder. 16. Condemnation. With respect to any required public street widening, the installation oi'utilities and any other on -site orioff -site facilities to be performed by Developer in fulfillment-of any and all conditions imposed in connection with the approval of the,Map and /or any other tentative map with respect to the property, City shall promptly hold a hearing and exercise its discretion in accordance with the terms of California Code of Civil Procedure Section 1245.220, with a view towards acquiring any and all required property for such widening or installation and %or for purposes of acquiring temporary easements to accompPish'such purposes; provided, however, that Developer.or its successor -in- interest with respect to the Property shal'l'be solely responsible for any and all costs incurred -by the City in connection with the acquisition of any and all such property and /or easements. .17. Landscane.and Recreation maintenance Area.. Developer hereby agrees to join in the formation of a, private maintenance district for purposes of maintaining landscaping and .recreational facilities located within the Property and immediately adjacent to public streets, so long as Developer',s obligations thereunder °shall be consistent with and in proportion to the obligations of any other private .landowner who shall be a member of said district, and provided that the City agrees to, maintain, at the City's expense, those portions of the .applicable district consisting of publicly dedicated equestrian %pedestrian trails, public street rights -of -way, and the,fif.ty foot (50 °'), scenic highway landscape strip to be installed adjacent to the South Poway Parkway. 18. Enforcement. Unless amended or cancelled as provided in Paragraph 1:1, this Development Agreement shall continue to be enforceable by any party to it, notwithstanding a change in,general or specific plans, zoning, subdivision, building or other regulations adopted by'City which would otherwise alter or amend the rules, regulations or policies applicable to the Development. 19. Municipal Financing; Reimbursement Agreements. The City hereby agrees to sponsor one or more municipal financings such as the establ- ishment of an improvement district under the 1913 Streets and Highways Act, or a Mello -Roos Community Faci'liti'es District (collectively, "Mello -Roos District ") to finance the completion and installation of infrastructure improvements required by the Development., The City shall cause Developer to be appointed as the "construction Manager" of the 609/2PLA/T8356- 002 /10 -15 -90 /jet -13- 650 Mello -Roos District for the construct'on,of the improvements which,are to 'be completed by the Mello- Roos :Distr,ict.. In connection with the approval of the Map pursuant to Resolution No. P -89 =_116 (the "Resolution "), Dev_elo_per•is required to construct certain road improvements in the event Developer proceeds with the development of the Property prior to the owners of certain-properties more particularly described in the Resolution. Pursuant,to an Owner P,artici:pation Agreement (the "OPA ") between Developer and the Poway Redevelopment Agency ( "Agency "), Developer has agreed to make.certain financial contributions to the Agency for the payment of certain regional -wide infrastructure improvements„ against which Developer is to receive a credit for the costs incurred by Developer in completing the improvements described in the Resolution, The City hereby agrees that in the event Developer shall have made a1`l such financial contributions in full, pursuant to the OPA, and shall not have received credit in full for any and all costs (as.more particularly described in Parag=raph,6,(b) of the OPA) for the improvements completed pursuant to the Resolution, the City shall execute in favor of Developer a reimbursement agreement for purposes of reimbursing Developer for all such costs so incurred by Developer. By the terms of such reimbursement agreement, the.City shall cause development.approval'for the various properties described in the Resolut -ion to be conditioned upon reimbursement to Developer by the owners of such properties of such amounts as would have been the responsibility of the reimbursing owner as more particularly set forth in the Resolution. 20. Substitution of Security. The.Developer shall have the right and option to substitute the proceeds attributable to the bonds issued under any Mello -Roos District and /or contractor performance bonds as security for Developer's obligations required under the`Map.. Nothing herein, however, shall relieve the Developer from posting,the full amount of security required by the California Subdivision Map Act. 21. Dedication of Parks and Improvements. The Developer agrees to,de3icate, on or before the completion,of the Development, those streets and parks set forth in Exhibit "C" attached hereto and the City agrees to ,accept. such streets and parks upon dedication by the Developer:. The ;Developer further agrees, on or before the completion of the Development, to construct and dedicate those additional improvements (the "Additional Improvements ") set forth on Exhibit "D" attached hereto and the City agrees to accept the Additional improvements upon dedication by the Developer. 22. Building Area Restrictions. The Property shall be limited to the building floor area ratio restrictions set forth -14- 609/2PLAIT8356- 002 /10 -15 -90 /jet 65 652 in the SELR'.,, and, any sale of all or'.any portion of the Property shall the, to such restrictions_. 21. Supercession of Development Agreement Dv L:nanges in State or•Feder`a'1 Law. In the event that State or Federal laws or regulations enacted after this Development Agreement have been entered into,or the action or inaction of any other affected governmental jurisdiction prevents or precludes compliance by either Party with one or more provisions of this Development Agreement, the parties shall: (a) Provide the other party with written notice of such State or, Federal restriction, provide a copy of such regulation or policy as a statement of conflict for the Provisions of this Development Agreement:; and (b) Promptly meet and confer with the other party in good faith and:make a reasonable attempt to ,modify or suspend 'this Development Agreement to comply with such Federal or State law or regulation: Thereafter,,, regardless of whether the parties reach agreement on the effect o.f; such Federal or State law or regulation upon this Development fox the City Councilatuponsthirtye (30)edaysdnoti a hearing before Agreement, the m novice, for the purposes of determining the exact modi- fication or suspension which is required by such Federal or State law ,or. regulation. Developer, at the'hearing, shall.have the right to offer testimony in evidence. Any rood ^fication or suspension shall be taken by the affirmative vote.of not less than a majority of the City Council.. 24. Enforced'Deia9 ana txrension or. times uL Performance. In addition to specific provisions of this Development Agreement, performance by either par - -ty hereunder shall not be deemed to,be in default where delays,or defaults are demonstrated to be.due to acts of God,)war, (acts or omissions of the City, delays beyond December 31, 1991, in'the formation of the Mello -Roos District and the sale of bonds by such District to finance Eleven Million Three Hundred Fifty Thousand Dollars ($11,,350, 000..00) in public improvements,, acts or omissions of third parties which are not.a..party to this Development Agreement, including but not limited to, other governmental agencies, or other causes beyond the reasonable control of Developer. An extension of time in writing for any such cause shall be granted for.,the period of the enforced delay, or longer as mutually agreed upon; which period shall commence 'to run from the time of +commencement of cause. 25,. Notices., Any notice or instrument required to be given or delivered to either party to the Development Agreement -15- 609/2PLA/T8356- 002/10 -15 -90 /jet 0 a may be.given o;r'deliwered by depositing the,:same in the United States mail; certified , mail, postage prepaid, addressed to: City: City of .Poway Post Office.Box 789 Poway, California 92064 Attention: City Manager 653 Developer: c/o Techbilt Construction Corp. 3575 Kenyon Street San Diego, California 92110 Attention: Paul'K Tchang,, President and to: Bothwell International, Ltd. 5302 Alta Bahia Court San Diego, California 92109 Attention: Neville Bothwell Notice of a change of address shall be delivered in the same manner as any other notice provided herein, and shall be effective three (3) days after mailing by the above - described procedure. 26. Breach -and Remedies. Notwithstanding any provision of this Agreement to the contrary, Developer shall not be deemed to be in default under this Development..Agr;eement, and the City may not terminate Developer's rights under this Development. Agreement unless the City shall have'first delivered a written notice:of any alleged default to Developer, which shall specify the nature of such default. If such default is not cured by Developer within ninety (90) days of service of such notice.of default, or with respect to defaults which cannot be cured within such period, if Developer fails to commence to cure the default within thirty (30) days after service ot'the notice of default, and thereafter fails to diligently pursue the cure of such default until completion, the City may terminate Developer's rights under this Development Agreement. In the event a breach' of this'Development Agreement occurs, irreparable harm is likely to occur to the non - breaching party and damages may be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that specific enforcement of this Development Agreement is a proper and desirable remedy. 27. Entire Agreement. This Development Agreement and the exhibits herein contain the entire agreement between the parties, and is intended by the parties to completely state the Development Agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties.of any 609/2PLA/T8356- 002/10 -15 -90 /jet -16- 654 party in relation thereto, not expressly set forth in this Development Agreement, is null and void. 2&. Severability.. If any .term,, provision, condition, or covenant of this Development Agreement, or the application thereof to any party of circumstances, shall to any extent . be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Development Agreement shall be valid and enforceable to the fullest extent permitted by law. 29. Counterparts. This Development Agreement may be executed .in one or more counterparts, each of which will be deemed an-original, but all of which constitute one and the same instrument. 30. Attorneys' Fees. In the event any action is instituted to declare obligations, enforce or sue for a breach or default hereunder, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above written. "City" CITY POW Y, a municipal corpo�tion By: IATTEST: Marjo 'r Wahlsten City Clerk AP E' Tja- FORM: Sten M. Eckis City Attorney (SIGNATURES CONTINUED) -17- 609/2PLA/T8356 -002/10 -15 -90 /jet It "ayc\r, Jan Goldsmith 1 I l STATE OF CALIFORNIA ) ) ss. COUNTY OF San Diego ) On November 27 , 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared PAUL K. TCHANG, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President on behalf of TECHBILT CONSTRUCTION CORP., a California corporation, the corporation therein named, and acknowledged to me that said corporation executed the within instrument pursuant to its Bylaws or a Resolution of its Board of Directors, said corporation being known to me to be one of the general partners of TECH BUSINESS CENTER, a California general partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. IGNA EURT OF NOTARY PUBLIC ` OFFICIAL SEAL JEARM M. SCOAR Z NOTARY PUBLIC - CALIFORNIA 0 PRINCIPAL OFFICE IN SAN DIEGO COUNTY My Commission UP11es Octoh_er Z� 7�• \J • 609/2PLA/78356- 002 /10 -15 -90 /jet "Developer" TECH BUSINESS CENTER, a California general partnership By; Techbilt'Construc£ ion Corp., a Ca1iforriiac _- corporati General Partner r By: -- , Paul hang, President By: Bothwell International, Ltd., a California limited partnership, General Partner By: /G"xll—� Neville Bothwell, General Partner i e -18- 609/2PLA/78356- 002 /10 -15 -90 /jet 156 STATE OF CALIFORNIA ) COUNTY OF San Diego ) ss. On November 27 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared NEVILLE BOTHWELL, personally known to me (or proved to me on the basis of. satisfactory evidence) to be the person who executed the within instrument as general partner on behalf of BOTHWELL INTERNATIONAL, LTD., a California limited partnership, the partnership therein named, said partnership being known to me to be a general partner'of TECH BUSINESS CENTER, a California general partnership, the partnership that executed the within instrument, and acknowledged to me that such partnership executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. r OFFICIAL SEAL cam/ S ELIZABETH J. BOULERICE NOTARY PUBLIC - CALIFORNIA OF PTARY PUBLIC PRINCIPAL OFFICE IN SAN DIEGO COUNTY My Commission Expires January 18, 1991 IN it 658.. IEGAL DESCRIPTION OF PROPERTY PARCEL 1: THE SOUTHEAST .QUARTER OF THE SOUTHEAST OUARTER OF SECTION 24,, TOWNSHIP, 14 SOUTH, RANGE _2 ,WEST, SAN BERNARDINO MERIDIAN,- IN THE CITY OF POWAY,. COUNTY OF SAN DIEGO, STATE OF' CALIFORNIA, "ACCORDING`.TY OFFICIAL PLAT THEREOF. PARCEL 2'. LOT 4 IN SECTION 19, 'TOWNSHIP 14 SOUTH, RANGE 1 WEST -, SAN BERNARDINO MERIDIAN,. IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING, TO OFFICIAL PLAT THEREOF. PARCEL-3: LOTS 1 AND 2 OF 'SECTION_ 30,, TOWNSHIP 14 SOUTH,., RANGE 1 WEST, SAN BERNARDINO' MERIDIAN; IN 110 CITY OF POWAY.$ COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE :EASTERLY 300.00 FEET. ALSO EXCEPTING'THEREFROM THOSE PORTIONS CONDEMNED IN AN ACTION IN THE DISTRICT. COURT OF THE UNITED STATES IN AND FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, CASE NO,. 162, CIVIL, ENTITLED "UNITED STATES OF AMER3CA, VS. JOSEPHINE SCRIPPS•, ET AL," A CERTITIED COPY OF THE DECREE 'OF DECLARATION OF TARING HAVING BEEN RECORDED .APRIL 16, 1942 IN BOOK 1342:1 PAGE 14 OF•OFFZCIAL RECORDS OF SAN DIEGO COUNTY. 1/2.4/89 J. K. TECH BUSINESS CENTER EXHIBIT„ "A" (2 Pages) LEGAL MESCRI-ptioli 6,59 ,THE, LAND "REFERRED TO HEREIN' IS SITUATED IN THE STATE' OF .CALIFORNIA, COUNTY OF'SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCELS 1 THROUGH 4 OF PARCEL MAP No. 5750, FILED IN THE OFFICE OF THE COUNTY, RECORDER, MARCH 3ij 19.77 AS! F - RECOR ILE; NO. 77-1182681 OF, OFFICIAL - BEING A. PORTION - OF THE SOUTHkJkS T- QUARTER Op -1 QUARTER OF SECTION j- THE SO 9- AND THE NORTHEAST. QUARTER OF THE UTHWEST QUARTER OF SECTION 301 TOWNSHIP WEST, �WNSHIP 14 SOUTH, RANGE 1, wEST, SAN BERNARDINO BASE AM MERIDIAN, IN THE .,,CITY, OF POWAyv COUNTY 'OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. 4 1 ,, TECH BUSINESS CENTER 1 N I9jltII --j•1 ! s jllfl1 1111. •, ' 1 ' •.J :. 'I ® I' I � �. \ ` �� �� ,.� -com LIMA A: s;w LIMA, is ! r .•s', L•Q 8 : }�l lei. >f4 HOPE-. .,.�, �!, ' i ,�' 1 e� ,If fl , ® © ,® 1 • .! I �il�lfl!1 '�I�� ��It��jl l���f�;l .�,'l � I J.� ! ! ;'ir'r��lG uW .I nq I.p.Mtl j11!11f�{1t�j(! 1 III) 1111(1 .1� �' • Il.lf It.N/M "W �i�lc>i�l {'t! EXHIBIT "B" 661 South Poway Parkway (south side) from.Nelson Drive to Stowe Drive from Stowe Drive to 5,000 feet east of Stowe Drive Gregg Street from Nelson Drive to Stowe Drive from - Stowe' Drive to 5,300 feet east.of Stowe Drive Kirkham Road from Nelson Drive to the east property line of Tech Business Center Stowe Drive (east side) from South Poway Parkway to Kirkham Road Longi Drive from Gregg:Street to Kirkham Road All as shown on TTM 89 -08 None Riding and; Hiking Trail Detention; Basin and Appurtenances Easement (Detention Basin) South Poway Parkway (portion) east of Sycamore Canyon Road Fire Trucks and Station (permanent and temporary) (portion) Traffic Management Organization Regional Sewage Facility (portion) South Poway Park Improvements (portion) 662