Development Agreement - Poway Corp Center 1990-0681090°
615 26-DEE -1990 08 :07 AM
RECORDING REQUESTED BY SAN DIEGO COUNTY RECORDER'S OFFICE
'WHEN ,RECORDED MAIL TO: VERB L. LYLE, COUNTY RECORDER
RF 25:00 FEES' 49.00
CITY. CL'ERK`S` OFFICE AF? 23:00
CITY OF POWAY
P.O. BOX 789
POWAY, CA 92074
(Above Space for Recorder's Use Only)
POWAY CORPORATE CENTER DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Development Agreement ") is
made and entered into this 27thday of Nove?nher , 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 certaim rights in the developer and to meet certain
public purposes of `the local government.. Pursuant to California
Government Code Section 65865, the City has previously adopted
Ordinance No, 177 establishing procedu -res 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 th"e'Developer in order to facilitate the
development of certasn,,property (the' "Proper.ty ") known as Poway
Corporate Center (the: "Development ") and more fully described in
Exhibit "A " and shown on the map set forth on Exhibit "B', both
attached hereto. Developer has agreed,to,purchase the Property
pursuant to the terms.of that certain Purchase Agreement dated
September 7, 1990 (.the "Purchase Agreement "). Based upon its
interest arising from the Purchase Agreement, Developer has the
requisite equitable interest in the Property for purposes of
Government Code Section 6586.5. The City further desires that
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the - Development be in accordance with the Planned Community
Documents (as hereafter described). The City has given notice of
intention to adopt the proposed Development .Agreement, has
conducted public hearings thereon ^purs`daht to Government? Code
Section 65867, and Ci'ty's Ordinance No. 1,77' and' has found that
the provisions- of this Development Agreement and its purposes are
consistent with the objectives, policies -general eland uses and
programs specified in the City's General Plan and the Planned
!Community (as hereafter described).
C. 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, 1985, , 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 Report, 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 mndertaken, and this
Development Agreement shall limit the future exercise of certain
governmental and propr- ietary powers.of the City. By obligating
the 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 th.s;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.
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F., As permitted by law, the City and the Developer sip
de's'ire to establish development standards for the entire
build -out period of the Development, including all phases
Ehereof, the permitted uses for the :Development�, and to identify
the "scope of pubiic infrastructure 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 obl- igations 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';£.ime 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 serve 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.
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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 ability 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:
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L. Binding Effect of Development Agreement. The -- -
Development Agreement ,pertains to theProperty'as described in
Exhibit "A. The burdens of the Development Agreement are
bindi "ng upon; and 'the benefits of the - Developme- nt,Ag,reement 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. Relationship of the Parties. It is hereby
specifically understood, and acknowledged that, the Development, is
a pr -ivate project and that neither the City nor Developer will be
deemed to be the agent of the other for any purpose whatsoever.
3. Reservations or Dedications,. It is hereby further
understood and 'agreed that no reservations or dedications of land
will.be, required by the City during the Term (as herein-defined,)
nor shall the City require developer to install and /or pay for
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. 86- 02R(:2) ('the
"Map "), or as otherwise agreed to in writing by the City and
Developer.. Developer shall use diligence to complete all such
on -site and off-site improvements or facilities which are
ideAified, as conditions to approval of; the Map.
4. Term. The original term (' "Term ") of the
Development Agreement as ten (10) years .from the date of
execution; provided, however,, this Development Agreement shall be
deemed cancelled and of no further force or effect with respect
to any legal lot within the Development upon the completion of
;all 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 not be withheld or delayed. It has been, and continues to
be understbod 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 emceed an additional five:(5)
years after expiration of the Term. Pursuant to Government Code
Section 66452..&(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
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by circumstances beyond its control, including,, but not limited
to, judicial `njunct -ions, acts of God, or delays'caused by City,
or other local, ,State or Federal agencies in accordance w•,th
Paragraph 24 with respect to Enforced belays, the Term shall be
extended for an additional period equal to the period of° °such
delay or delays.
5. Development: Approval. Nothing set forth in the
Development Agreement,shall be deemed to require Developer to
complete the Development or any portion thereof; provided,,
however, the following elements of the Development re` hereby
approved:
(a) Permitted Uses of the•Proper,ty. Except as
herein provided;. nothing set forth in the Development
Agreement shal-1 be� deemed to require Developer to complete
the Development o:r any portion thereof; provided., however,
the parties agree 'that the permitted, conditional and
prohib ted.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 Property shall be as set
forth in the Planned Community Documents.
(c) Maximum Height and Site 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 build- tng('s) to be constructed as
part of the Development which would result in a, density o,r
intensity which is less than as set forth in,the Planned
Community,_Documents and /or for which the proposed,s.ize,
and /or height is less than set forth in the 'Pianned.Community
Documents,, no consent or approval of the City or any
department .`thereof shall be required; provided, however,
development rev- iew'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 changes) as.to the Development without
the prior written consent o'f Developer.
6. Processing of Applications and Permits. The City
will accept for processing and review of all applications for
permits or other entitlements with respect to the development and
the use of the proper -ty, in accordance with this Development
Agreement. It is understood by the parties to this Development
Agreement that pursuant to existing law; development review
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approvals shall not remain valid for the term-of this Development
Agreement, but only for the term of such development review
approvals.. Accordi +ng;ly, 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 required 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.
S. 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 ;ail
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 righb, 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 during 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, sand 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
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event the Developer partially assigns 'this•Development-Agreement
with respect to `any. legal parcel within 'the ,Development,
Developer shall be. released from any further-.obfig'ations
applicable to:.such,pirdel. 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 rights 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, Deyelop.er 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 the-City Council of (1) a written report
identifying Devel'oper's performance or the ,reasons for its
excused,perf_ormance, of the requirements of this Development
Agreement or 0� 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 .specif'i'c '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 deemed 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 "profor-ma"
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
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provide ten (l,Q) days notice of any requirement -that it desires
to be addressed by Developer prior to taking action on the annual
review. At 'the conclusion of such periodic annual review, the
City Councid'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
acton•bet_ween the parties. City further agrees to permit
Developer reason able.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:
notice 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
658651.1,, 65868, 65867 and 65867.5.
(a) Any amendment to the Development Agreement
which does-not relate to the term, permuted uses, density or
intensity of use, height or size of buildings; provisions for
reservation of land, conditions, terms, restrictions, and
requirements relating to subsequent, di.scretionary 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. Vestin-_4 of_ Development Rights.
(a) General Statements. As a material inducement
to the Development and its lenders to continue with diligent
efforts to promote the development of the Property, the City
desires to cause all development rights which may be required
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to develop to completion the Property wi;th,bu,ldings 'and 623
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 1. by law,, and except as herein provided;,, to be free of ,all
discretionary rights of the City or anybody cr agency
thereof„ to impose. any subsequent building mor,ator;iums 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 6586'6', the City and the
Developer agree that except as provided in this Development
Agreement,, the.ordinances, rules, regulations and official
policies of the City land 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
Existing Development Policies of the C
this Development Agreement. No amendment to any of the
g p ity; adopted by the City
Council or other body-or agency authorized to make such
determination on•behalif of the City shall be effective or
enforceable by the City with respect to the Development, its
design, grading, construction, remodeling, use or occupancy,
schedule of development or with respect to the Developer or
its successors or assigns.
(c) Permitted Conditions and Rees:. 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 City'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
Consumers - San Diego, California, Base 1982 -84 = 100, as
published.by` the United States Department of. Labor, Bureau of
Labor:Statistic "s.
(d) Approved Chan4es to Development Regulations..
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
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assigns an&z11_.persons and entities in occupation of any
portion of the R,roperty shall comply with such
'be.-enacted non- conflicting laws and regulations as may from time to time
!or;'amended hereafter.. Specifica'lly,; but without
Timitation on 'the Toregoing, such non- conf °lict -ng laws and
regulations include the following:
(i) Taxes, assessments, fees and charges;;
(ii) Building, electrical,, mechanical fire
and simila -r. codes 'based upon uniform codes incorporated
by reference into the Poway Municipal Code;
(iii) Laws., including zoning code provisions,
which regul'ate the manner in which business activities
may be conducted or which prohibit any particular, type
of business 'activity; and
(iv). Procedural rules.
(e) Subseouent "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, o.r by
operation have such effect shall have no.application to the
Development. Notwithstanding any such measures; the
mitigation measures required for the.Development are limited
to those established by this Development Agreement.
1 Environmental Compliance.
c'
(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; Clty certifies that "aft required environmental .
processing for the development contemplated by the Planned
Community has been completed by virtue of the EIR and.
Subsequent EIR. It is the agreement of the City (and the
City so certifies) that no mitigation measures, whether
arisirig 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 Development Agreement shall be
imposed on ,the Property, or as an obligation of the Developer
or its successor - owners.
(b) Sub'seguent Environmental Review. In
exercising its legislative discretion to enter into this
Development Agreement and to commit the City to the
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completion of the Development,-the City has reviewed and
considered •the potential adverse environmental impacts
related to aiiraspects of the contemplated project,
,including-1 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 sewer 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 possibi'1 -ities
that:
('i) Federal, local, regional and state plans,
if any, for ,provision of new inf:r.astructure 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 infrastructure and utility improvements to be
constructed as a part of the project may exceed in
either t'he 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
thi's Development Agreement to the fullest extent the City
.considers feasible •and necessary. The City has determined that
phased,completon 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:
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(A) Substantial changes are .proposed by the
Developer which will require major revisions of the EIR; or
(.B) New information,, which was not known and could
not have been known at the time the'EIR was certified as
co_mplete,;becomes available; provided, however, that
re- an'a'lysis of data.already examined and reported in the EIR
shall not be considered new information. The term "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 bedoming, or have or have not become realities,.
but instead requires 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 Acquisitions.. With respect to any
required public street widening, eliminaton.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 will require dedications by such landowners of the required
easements arid/or' rights-of-way for such proposed utilities °arid /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
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Developer expressly then
creation o€ said' district
assessments or special to
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grants such - author -ity and concurs in the
and the terms and conditions of
xes to be levied thereunder.
16.. Condemnation. with respect to any required,,public
street widening, the 'installation of utilities and any other
on- si,te'or off -site facilities to be performed by Developer in
fulf- illment'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 i245.220.
17. Landscape and Recreation Maintenance Area.
Developer, hereby agrees to join in the formation of a private
maintenance d'istr,icE for purposes of maint'ai'ning landscaping and
recreational. €acil'ities 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 public street .rights -of -way and the fifty
foot (50') scenic highway landscape strip to be installed
adjacent to South Poway Parkway.
18. Enforcement. Unless amended or cancelled as
provided in.Paragraph.11, this Development Agreement shall
continue to be enforceable by any party to it, notwithstanding
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 the formation of a Mello -Roos
Community Facilities District ( "Mello -Roos District ") formed
pursuant to the Mello -Roos Community Facilities District Act of
1982, and to cause the Mello -Roos District to issue bonds in an
amount not less than Seven Million Dollars ($7,000,000.!00) for
purposes of financing the construction of infrastructure
improvements required by the Development.. The City shall cause
Developer to be appointed as the "construction ma- nager" of the
Mello -Roos District for the construction of the improvements
which are to be completed by the Mello -Roos District.
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
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0
0 628
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 dedicate-, on or before the completion of the
Development, those streets and parks set forth in Exhibit "C"
att ached "hereto and the City agrees to accept such'st-r-eets 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
in the SEIR,, and any sale of all or any portion of the Property
shall be subject to such restrictions.
23. Supercess`ion•of Development Agreement by Changes in
State or 'Federal 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
e y
ither,Part with , on , 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 of such
Federal or State, law or regulation upon this Development.
Agreement, the matter shall be scheduled for a hearing before
the City Council, upon thirty (30) days notice, for the
purposes of determini -ng the exact modification or suspension
which i's required by such Federal or State .law or
regulation. Developer, at the hearing,; shall have the right
to offer- testimony in evidence. Any modification or
suspension shall:be taken by the affirmative vote of not less
than a majority of.the City Council,.
24. Enforced Delay and 'Extension of Times of
Performance. In addition to specific p.rovi°s -ions of this
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r 629
Development Agreement,, performance by either party hereunder
shall not be_ deemed to be in default where.dehays or defaults are
demonstrated to be due to acts of'God -, war, .acts or omissions of
the City, -acts or omissions of third parNti:es which are not a
party to this Development Agreement; ',including but not 1- imited
tos other governmental agencies, or other. causes beyond the,
reasoniblb 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 1tom the time of commencement of cause.
given
may
States
25. Notices.. Any
or delivered toaeither
given or delivered by
mail, certified mail,
notice or instrument required to be
party to the'Development Agreement
depositing the;same in the United
postage prepaid, addressed to:
City: City of Poway
Post Office Box 789
Poway, California 92064
Attention': City Manager
Developer: c/o Techbilt Construction Corp.
3575 Kenyon Street
San Diego, California 9.2110
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.
2.6'. Breach and Remedies. Notwithstanding any provision
of this Agreement to the contrary, Developer shall not be deemed
to b& in default under this Development Agreement.., 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 Develop ,er,, 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 of the notice of default,
and thereafter. fails to diligently pursue the cure of such
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• 630
default: until :completion, the City may terminate Developer's
rights under this Development Agreement. I:n the event a breach
of th s•Development.Agreement occurs >, irreparable harm is likely
to occur to the non-breaching party and damages may 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
party in relation thereto, not expressly set forth in this
Development Agreement, is null and void.
28. 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 C
i
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 fOF POWAfZ, a municipal
corpdtation
ATTEST:
Marjorie1.Wahlsten
City Clerk
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Jan Goldsmith
APP TO
Z �^
Stephen/m/ Eckis
City A rney
"Developer"
244/2RMJ/T8356- 004 /11 -16 -90 /jet
i
631
TECH BUSINESS CENTER, a
California general partnership
By: Techbilt Construction
Corp.., a California.
corporation, General
Partner
By: _
Paul hang,
President
By: Bothwell International,
Ltd., a California limited
partnership, General
Partner,/
By
Neville Bothwell, �A
General Partner
1
-17-
632
STATE OF CALIFORNIA )
) ss.
COUNTY OF San go )
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.
OFFICIAL SEAL
a >� JNOTARY E M. SCHWARTZ
NOTARY PUBLIC - CALIFORNIA
OF NOTARY UBLIC PRINCIPAL OFFICE IN
SAN DIEGO COUNTY
My Gormussion Expires October 21, 1994.
• •
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.
OF NOTAR PUBLIC
My Comm
OFFICIAL SEAL
ELIZABETH J. BOW.EBICE
NOTARY PUBLIC - CALIFORNIA
PRINCIPAL OPFI;:} IN
SAN DIEGO COUNI7
ission Expires January 18, 1991
634
Ai � SrRIPTI0 OF PRnaznmv
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF SAN DIEGO„ AND IS DESCRIBED AS FOLLOWS:
THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 24; THE.
NORTH HALF OF THE NORTHWEST QUARTER OF. SECTION 25 AND THE
NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 26, ALL
BEING, IN TOWNSHIP 14 SOUTH, RANGE ,2
MERIDIAN, IN THE CITY OF POWAY, COUNTY WEST, SAN BERNARDINO
O
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEF SAN DIEGO, STATE OF
REOF.
EXHIBIT "A"
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EXHIBIT "B"
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Tc 14 A
636
South Poway Parkway (South side)
from Neison..Drive to 1350 feet westerly
Gregg °Street
from Nelson-,Drive to 1350 feet westerly
Kirkham.Road
from Nelson Drive to 1350 feet westerly
Nelson Drive (west -side)
Trom,;South Poway Parkway,to,Kirkham Road.
"A" Street
"B" Street
T' Street,
D" Street
" j' Street
T' Street
T" Street
"H" Street
"I" Street
Stotler Court
from "B" Street to north property line
All as shown on,TTM 86- 02R(2)
ITRUM
None
Detention Basins and Appurtenances
Easement (Detention: Basins)
Reservoir Site
South Poway "Parkwaylsouth side)
from Community Road to 1550 feet easterly
South Poway Parkway (portion) east of Sycamore Canyon, Road
Kirkham Road (south,side)
Community Road to 400 feet westerly
Community Road to 1550 feet easterly
Nelson Drive (east side)
from South Poway Parkway to Kirkham Road
Stotler Court (portion).
Creek Road Water Main
Fire Truck and Station (permanent and temporary) (portion)
Traffic Management Organization
Regional Sewage Facility (portion)
South Poway Park Improvements (portion)
,; o