Ord 183CRDINANCE NO. 183
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA
APPROVING A DEVELOPM~qT ~~ WITH
CF POWAY, LTD., UbDER GCNER51~
00DE §§65864-65867.5 AbD
POWAY B~qICIPAL CODE CHAP£~a{ 17.53
~{~EAS, Govermnent Code 65864-65867.5 authorizes a city to enter into a
binding development agreement with person( s ) having legal and equitable
interests in real property for the development of such property subsequent to
the approval of such agrc~ent by local ordinance; and
WHEREAS, Poway Municipal Code Section 17.53.031 authorizes approval by
ordinance of such a development agrc=~ent if all of the requirements of Chapter
17.53 of the Poway Municipal Oode are satisfied; and
WHEREAS, the application of CF Poway, Ltd. by its predecessor in
interest, Cadillac-Fairview/Ca3ifornia, Inc., m~cts the requirements for con-
sideration of a develolauent agreement for the real property described in Exhibit
"A" attached hereto, has been the subject of public hearing, and has ~n recc{n-
mended for approval by the City Manager of the City of Poway and approved as to
form by the City Attorney of the City of Poway; and
WHEREAS, it is in the public interest to approve said agrcc~aent in that it
is consistent with the General Plan, the South Poway Planned Om,,,~nity (PC
84-01), and Tentative Tract Map 85-04 heretofore approved for said real
property; and
WHEREAS, a Negative Declaration has been appropriately issued for said
Develol~nt Agr~--~_nt.
NOW, T~RREFORE, the City Council of the City of Poway, California, does
hereby ordain as follows:
The Development Agr~------~nent with CF Poway, Ltd. set forth in Exhibit "A"
attached to this ordinance and made a part hereof by reference is
hereby approved.
0
The Mayor is hereby authorized and instructed pursuant to Pow-ay
Municipal ODd. 17.53.031 to execute said Development Agrc~---ment on
behalf of the City of Poway i~mediately upon the effective date of this
ordinance.
The City Clerk is hereby authorized and instructed pursuant to Poway
Municipal Code 17.53.050(a) to cause said Develo~nt Agr~-------~ent to be
recorded in the Office of the Recorder of the County of San Diego
within ten (10) calendar days of its execution by the City of Poway.
HFF~CTIVE DATE: This ordinance shall take effect and be in force
thirty (30) days after the date of its passage; and before the expira-
tion of fifteen (15) days after its passage, it shall be published once
with the names and members voting for and against the same in the
Powa~ News C~ieftain, a newspaper of general circulation published in
the City of Poway.
Ordinance No. 183
Page 2
Introduced and first read at an adjourned regular meeting of the City
Gouncil of the City of Poway held the 19th day of December, 1985, and ther~fter
PASSED ASD ADOPTfI) at an adjourned regular m~_cting of said City Council held the
30th day of December, 1985, by the following roll call vote:
KRUSE, ORAVEC, S~ARDSON
NONE
f~ERY, TARZY
Car~l~R. Kruse, Mayor
Marjori~ 'K. Wahls~e , C' y Cle
6/0RD/Agreel-Agree2
363
RECORDING REQUESTED BY HRST A/~E~fCAN TITLE INS. CO.
WHEN RECORDED MAIL TO:
Allen, Matkins, Leck, Gamble
& Mallory
3 Civic Plaza, Suite 250 17
Newport Beach, California 92660
Attention: R. Michael Joyce, Esq.
(Above Space for Recorder's Use Only)
86-005613
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JAil -8 Pti 3:53
I VERAL. LYLEl
COUNIY ,,ECORDER
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Development Agreement') is
made and entered into this 30th day of December, 1985, by and
between the CITY OF POWAY, a municipal corporation organized and
existing under the laws of the State of California ("City"), and
CF POWAY LTD., a California limited partnership ("Developer").
RECITALS:
A. 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. The City Council for the City,
has previously adopted Ordinance No. 177 establishing procedures
and requirements for the approval of development agreements.
Such ordinance has been made a part of the Poway Municipal Code
as Chapter 17.53. Developer has applied to City pursuant to
Government Code Sections 65864-65869.5, and City's Ordinance No.
177 for approval of a development agreement providing for the
agreements of the parties set forth herein.
B. The City de~ires to enter into this Development
Agreement with the Developer in order to facilitate the
development of and in anticipation of Developer's acquistion of
certain property (the "Property") known as the Pomerado Business
Park (the 'Development") and more fully described in Exhibit
and shown on the map set forth on Exhibit "B", both attached
hereto. Such development shall be in accordance with the
Development Plan, the Development Standards and Final
Environmental Impact Report (the "Planned Community Documents')
for the South Poway Planned Community (the 'Planned Community"),
approved by the City pursuant to resolution on July 30, 1985 and
on file with the City Clerk and incorporated herein by reference,
and the Resolution of Approval (P85-69) for Tentative Map 85-04
(Pomerado Business Park). City has given notice of intention to
adopt the proposed development 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
this Development Agreement and its purposes are consistent with
the objectives, policies, general land uses and programs
specified in the City's general plan and the Planned Community.
0073U/C1394-002(Rev. 1)
sb1:01/03/86
On December 30, 1985, the City adopted its Ordinance #183,
approving the Development Agreement, and said ordinance became
effective on January 29, 1986. In connection with its approval
of the Planned Community, an Environmental Impact Report ('EIR#)
was prepared and certified by City pursuant to a resolution on
July 30, 1985. A tentative map No. 85-04 (the 'Map') with
respect to the Property was approved by the City on November 19,
1985.
C. Development of the Property, which is a largely
vacant area almost totally lacking in required infrastructure
improvements, requires the construction of substantial regional
public improvements early in the development and construction
process. Certain development risks and uncertainties associated
with the long term nature of the Development, including the cost
of the portion of these regional public improvements required to
be installed at the inception of the Development intended, 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.
D. As permitted by law, the City and the Developer
desire to establish as the standards in effect throughout the
term of Development contemplated herein the applicable zoning
regulations, design guidelines and building standards relative to
the Development as the same exist as of the date of approval of
this Development Agreement.
E. City recognizes that Developer might be subject to
substantial liability if the City were to default in its
obligations herein undertaken.
F. 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.
G. 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 effort, and the parties agree that the
consideration to be received by the City pursuant to this
Development Agreement and the rights secured to the Developer
hereunder constitute sufficient consideration to support the
covenants and agreements of the City and the Developer.
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:
1. Binding Effect of Development Agreement. The
Development Agreement pertains to the Property as described in
Exhibit "A". 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.
2. Relationship of the Parties. It is hereby
specifically understood and acknowledged that the Development is
a private project and that neither City nor Developer will be
deemed to be the agent of the other for any purpose whatsoever.
3. Reservations and Dedications. It is hereby further
understood and agreed that except in connection with the
conditions imposed in connection with the approval of the Map, no
reservations or dedications of land within the Development shall
be required by the City, 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 the Map, any extension of the Map, or as
otherwise agreed to in writing by the City and Developer.
4. Term. The original term ('Term") of the
Development Agreement is 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 building 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 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 6452.6(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 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 by circumstances
beyond its control, including but not limited to judicial
injunctions, Acts of God, or delays caused by City, or other
local, State or Federal agencies in accordance with Paragraph 20
with respect to Enforced Delays, 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 this
Development Agreement shall be deemed to require Developer to
complete the Development or any portion thereof; provided,
however the following elements of the Development are hereby
approved:
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366
(a) Permitted Uses of the Property. 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 density or intensity of use of the
Property will be as set forth in the Planned Community
Documents.
(c) Maximum Heiqht and Size of Proposed
Buildings. The parties agree that the maximum height and
size of the proposed buildings 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 result in a density or
intensity which is less than as set forth in the Planned
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 City or any department
thereof shall be required; provided, however, development
review shall be conducted pursuant to Chapter 17.52 of the
Poway Municipal Code. City hereby agrees that no change(s)
to the Planned Community Documents shall be effective, and
that City shall not seek to effect any such change(s),
without the prior written consent of Developer.
6. Processing of Applications and Permits. The City
will accept the processing and review of all development
applications and permits or other entitlements with respect to
the development and the use of the Property in accordance with
this Agreement. It is understood by the parties to this
Agreement that, pursuant to existing law, conditional use permits
and development review approvals shall not remain valid for the
term of this Agreement, but only for the term of such conditional
use permits and development review approvals. Accordingly, the
Developer shall have the right to file new conditional use
permits or development review applications on portions of the
Development where such previously approved use permits or
development review approvals have expired. Any new conditional
use permits or 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 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 Chapter 17.52 of the Poway Municipal
Code; provided, however, no such review shall authorize or permit
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 Agreement and it is hereby further
agreed that the basis for City's development review shall, to the
degree possible, be limited to architectural design and
compatibility with the remainder of the Development. It is
further agreed that City shall in all events provide reasonable
alternatives to the design and layout of any building rather than
to disapprove any proposed building.
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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 represents that
it currently has sufficient water and sanitary sewage capacity
for the entire development of the Property.
9. Assignment. Developer has had and continues to
have the right to sell, assign, or transfer all of its interest
in the Property along with all its right, title and interest in
and to this Development Agreement to any person, firm or
corporation at any time during the term of this Development
Agreement without the consent of City.
10. Periodic Review of Compliance. In accordance with
Government Code Section 65865.1, the City Council shall review
this Agreement at least once each calendar year hereafter. At
such periodic reviews, Developer must demonstrate its good faith
compliance with the terms of this Agreement. Developer's duty to
demonstrate may be satisfied by the presentation to the City
Council of (1) a written report identifying Developer's
performance or the reasons for its excused performance, of the
requirements of this Agreement or (2) oral or written evidence
presented at the time of review. The parties recognize that this
Agreement and the documents incorporated herein could be deemed
to contain thousands of requirements (i.e., 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 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
evidenc~ that Developer 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
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 "proforma" 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 Agreement; provided,
however, that the City shall 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 conclusion of such
periodic annual review, the City Council'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 terms of this Agreement.
368
11. Amendment or Cancellation. The Development
Agreement may be amended or cancelled in whole or in part only by
mutual consent of the parties and in the manner provided in
Government Code Sections 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 the use of the
Development shall not require a public hearing before the
parties execute an amendment hereto;
(b) Any nonsubstantial deviations from the terms
of this Agreement do not require an amendment to this
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 Agreement, the parties may
agree to cancel the Agreement, by executing an agreement to
be recorded in the official records of San Diego County,
California.
12. Vesting of Development Rights.
(a) General Statement. As a material inducement
to the Developer and its lenders to continue with diligent
efforts to promote the development of the Property, the City
desires to cause all development rights which may be required
to develop to completion the Property with buildings and
related improvements consistent with the Planned Community,
to be deemed vested in Developer, as of the date of this
Development Agreement, to the greatest extent permitted by
law, and to be free of all discretionary rights of the City
or any body or agency thereof, except as herein provided, to
impose any subsequent restrictions or building moratoriums.
(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 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
Agreement governing the design, density, permitted land uses,
improvement and construction standards applicable to the
Development shall govern during the Term of this Agreement.
NO amendment to any of the Existing Development Policies of
the City adopted by the City Council or other body or agency
authorized to make such determination on behalf of the 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.
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369
(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 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 County Area, as published by the United States
Department of' Labor, Bureau of Labor Statistics.
13. Environmental Compliance.
(a) Processing Completed. The City certifies that
all required environmental processing for the Development
contemplated by the Planned Community has been completed by
virtue of the EIR. It is the agreement of the City (and the
City so certifies) that no mitigation measures, whether
arising out of the EIR or any other area of law, that are not
expressly identified in the Planned Community Documents, EIR
and Resolution for approval of the Map or this Development
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
completion of the Development, the City has reviewed and
considered the potential adverse environmental impacts
related to all aspects of the contemplated project,
including, without limitation, the potential demands the
Development will make on local and regional 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 saftey, 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
370
(iii) Regional and Development generated
demands on infrastructure 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 21166, that no subsequent
or supplemental environmental impact report shall be
required by the City for the subsequent discretionary
approvals implementing the projects unless:
(A) Substantial changes are proposed by
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 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 "new
information" does not mean discovery that
probabilities of adverse (or beneficial) results
considered in the approval of this Development
Agreement, the Planned Community or the EIR may
prove incorrect, or that such probabilities are or
are not becoming, 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. Restriction on Special Districts. The City and the
Developer do hereby covenant and agree that 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 Developer expressly then
grants such authority and concurs in the creation of said
district and the terms and conditions of assessments or special
taxes to be levied thereunder.
15. Condemnation. With respect to any required public
street widening, the installation of utilities and any other
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on-site or 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 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 accomplish such purposes; provided, however, that
Developer, or its successor-in-interest with respect to the
Property shall 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.
16. Landscape 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 on and appurtenant to the
Property so long as Developer's obligations thereunder shall be
consistent with and in proportion to the obligations of any other
private land owner who shall be a member of said district and
provided that City agrees to maintain those portions of the
applicable district consisting of publicly dedicated
equestrian/pedestrian trails, public street rights-of-way, and
the fifty (50) foot scenic highway landscape strip to be
installed adjacent to the South Poway Parkway.
17. Alignment of Pomerado Road. City hereby agrees
that in connection with the installation of Pomerado Road in
fulfillment of Condition Nos. 1.B. and II.B. of Resolution P85-69
with respect to the Map, in the event City requires a realignment
of said Road, Developer shall not be required to pay all costs
for the completion of said Road in excess of the sum of Six
Hundred Fifty Thousand Dollars ($650,000.00).
18. Enforcement. Unless amended or cancelled aa
provided in Paragraph 11, this Development Agreement shall
continue to be enforceable by any party to it, notwithstanding a
change in general or specific plans, zoning, subdivision,
building or other regulations adopted by City which alter or
amend the rules, regulations or policies applicable to the
Development.
19. Supercession of 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 with
one or more provisions of this Development Agreement that
requires changes in plans, maps or permits approved by the City,
the parties shall:
(1) 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
(2) Promptly meet and confer with the other party
in a good faith and reasonable attempt to modify or suspend
this Development Agreement to comply with such Federal or
~ 37Z
State law or regulation. Thereafter, regardless of whether
the parties reach agreement on the effect of such Federal or
State law 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
determining the exact modification 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 modification or suspension shall
be taken by the affirmative vote of not less than a majority
of the City Council.
20. Enforced Delay and Extension of Times of
Performance. In addition to specific provisions of this
Development Agreement, performance by either party 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, 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 commencment of cause.
21. Notices. Any notice or instrument required to be
given or delivered to either party to the Development Agreement
may be given or delivered 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
Attn: James L. Bowersox, City Manager
Developer: c/o Cadillac Fairview/California, Inc.
1800 Avenue of the Stars
Suite 730
Los Angeles, California 90067
Attn: Douglas Miller
Notice of a change of address shall be delivered in the same
manner as any other notice provided herein, and shall be
effective three days after mailing by the above-described
procedure.
22. Remedies. In the event a breach of this
Development Agreement occurs, irreparable harm is likely to occur
to the non-breaching party and damages may be an inadequate
remedy. To the extent permitted by law, therefore, it is
expressly recognized that specific enforcement of this
Development Agreement is a proper and desirable remedy.
23. 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.
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24. Severability. If any term, provision, condition,
or covenant of this Development Agreement, or the application
thereof to any party or 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.
25. Counterparts. This Development Agreement has been
executed in one or more counterparts, each of which has been
deemed an original, but all of which constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Development Agreement as of the day and year first above written.
"city" CITY~OWAY
ATTEST:
:'~ ~j: r~i ~'~ K~. W~a h.1 s~ e~n:/~ ~ ' ~
City Clerk
APPROVED AS TO FORM:
S~e~r~n M. Eckis,
C~ Attorney
,,Developer'.
CF POWAY, LTD., a California
limited partnership
By:
CADILLAC FAIRVIEW/
CALIFORNIA, INC., a
California corporation,
-11-
374
OB.i~/. 110. 13097&-6
EXHIBIT "A#
bp o~ si~d ~aa~on b~ 2-i, Sheet 15, hn ~llO ~t7 ~shvay
~uCentct~o~ Of the Xor~h ~u o~ beechen 23, I~ a ~ut Xor~h 88'57' Wes~,
foot; thence ~rth O'&3' ~c. 80.6 feet; ~re et Zoos, to the
bed ~o Edvard C. X~2ees e~ ~, recorded A~t~ ~8, 2J27 Lu bo~ ~36~,
278 o~ Oeed.~ thence North 0'~3' East aXo~l the Zadt X/ne o~ land descried
a&~d ~ed to H~ee. e% ~, X2.2 feeC tO the Sleekest to.er of hud
pale 28S of ~eds; ~hence ~rch 83"20' ho:, a~ons the South X~ue of
described ~fl 08~ hod to V~d, 2&2.0~ fee~ to the S~cheil~ corner thereof~
co voo~, 2~7.80 feec co the NoFchesIC ~OF~F thereof; thence North 63'20*
Southerly fr~ ~he ctn~er ~ue of the &0 foo~ C~G:y ~&d to ~owly, 242.0~
fuec to the ~rthwoc ~o~er of hud deacrXbd ~n ~ed to ~e
olo~ the VeaC ~ue of h~ ~scr~d tn sa~d ~ed co hrfl~c~, 2X7.80 foe~ '
X~M of the S~%~asc ~rcar of c~ ~theaet ~arter of sa~d be~t/~
mrs or Ieee to the ~rtheao~ ~er of the ~reel of hud omco~d descrXb4 Xn
hod ~o a. ~. brrtnS~ou et ~, recorded June 25, ~J26 Lu Seek ~73,
Sortbaio~ ~zcer of BaLd leec~on 23; chance Uesc alo~ the Bloc ~ Vest
co.er of the No~t~etc ~rcer of ~ortbeaoC ~ce~ of a~d leCC~O~ 23;
thfl~e S~Ch axons ~e ~rCh Sad SuCh crater ~ue of oa~d h~tXou 23 co the
S~ch ~rcer co.er of said becCLo~; ~beuce VooC a~ouS ~he S~Ch ~ of liLd
EXHIBIT ~A"
omzl No. ee~?*-* ~
hcc~ou, ~cb 8~'AZ' Uoi~, 975.73 feet& thence lorCh 0'&~" hit, 1&6.87
~20.66 fee~ thence South 38053' Vile) X30 fcic co a ~lnt in the
2~6.47 fee~; ~hence Berth 68'~9' veer, ~23.3~ feet; thence Iorch
vhAch bari North 68'~8'&7' Vuc, 8~.82 ~oec fr~ oecd ~asc mnc~oued
fe,~; tbeuce ~a~ou; to oo~d euru, ~ocCh 87eXS~ hl~, 227.85 feat to the
Off,traX [ecords; theuce WorChvescer~y SX~i said NorCheaiterXy X~nl iud the
No,Chemically 8~d NortheFX7 X~ue Of PaTce~ X, deacz~bed Lu lsXd bed Co ~otnC
alo~ the hsCeT~7 ~ne of oa~d Eoid mhd aXo~s the mrc of oa~d curve 27g.07
~l~Gn~l of a ConSent Cur~ Couclvt Norch~ItOrZy ho~q a tad~ul Of 720
50.00 foo~ CO~C7 ~ld, kuo~ II XECeCe bUl, Iccord~ul to the hp of
to hp thereof No. 4442, fXled Xn ~he Off~ce of the G~uC7 bcorder o~ San
~elo Co~7, Jilt7 ~2, 1960, toleCher v~ch iXX theC ~zcXou l~ul
ll~d hp 64~2,
f~ec~o ~rdt~, 11.00 fee~ Co the T~ ~Z~ OF ~G~G; th~ce
~o~ ~he bo~ et le/d PomrUo ~rde~ as foXXm:
Ol~l ~0. 130gY~
iS'X~'Q0' Vll~ 7~9.76 ~eec, I~ INth 3:'S6'00' Vest, XJ0.~ ~IIC~
0&'4X'00" ~i~, ~&.gJ tee~& the~ Ior~h I5*Xg'~' Zal~, 1~87.55 tee~G
~h &&'S('00' ~c 653.~& reit] thence South 83'~0'00' h~c, 4Z0.00
tbence leech 0leOi*00" Melt, 57~.00 feetl thence No:ch 16'28'00" ~ec,
of ~ descried XG Deed co TuoCXu gevelopMnc ~po~atXou, u
~he S~eas~ co,er of hud OD descried Lu enid bed ~o ~o~Su
~lxfo~Xl. e~ aX, recorded OcCobr X4. :gSg Xu ~ok 7936, pale LO4 o~
~ S~ch ~ of ~L4 Tboupsou-Br~ hud ~ ~b Westerly proXo~t~ou
tbeTeof, 390.46 fse~; ~be~c, ~h 06033'00- bet, 41.00 feet Co
hnd; Che~ce S~ch 83027'00" ~esc axons said SoutherLy ~ue, X9.00 feeC Co ~he
b~, ~o~ ia Neca~e ~0. iccordl~ to ~p of Io&d Surly We. 8870 ~ilod
~0 on maid center line of ~ad luF~y lo. 887; thence oXo~ said center
Noz~h e3'20' hsc,) ~js.oo ~eet; thenae Ju~h 6'33'00' hit,. 210.00 feec to
the bliuni~l of · ~s~enc 370.00 fooc fid/Gs ~r~ con~
~ssion b~d X-A ~ere said ~onter~ue h~ G~C c~rae Bud distorts obo~
3~'~6'00' ho:. 929.30 fee~; ~beueo Sm~h X2%6'00' Vo,~, J0.00 fee~ ~heu~e
bush 3~'56'00' West, 2~0.00 feet~ ~uee 8m~h 67'~7'30' lao~, 09.0X feet;
Line. 3&3.76 fee~ ~o ~ht Southerly ll~ of t~c certain Porae~ 3, deocEi~d
the ~ed to Xo~a ~rehalX, raco~ded July 6. LOSS Xu ~ok S705. pass
OrlicL~ lecords{ mheuee Sormh 76'53'58' geom. (~eeo~d br~h 76'56'5~'
~h ~3'06'0~' ~es~ (record Sm~h ~3'03'00' gos~) lS.~ fm~ ~o
~eco~ded hceuhT {6, {{61 lu ~ok 1281, pep 39~ Of Officisi bcordo& mhence
f
Z,~G,A~, ~ISC~TZO~
thiner ~onC~mtnl ~rch 7~'20'07'
~ch the bocecX7 ~ne of laid ~msXou ~ad X-A, laXd
fee~ (cecord 1464.58 feet) to
feec co the YoXuC o~
3111/8!
such partnership executed the same.
WITNESS my hand and official seal.
Signature ~/dO~Z,~
CAT. NO. NN00636
(Corporation as a Partner of a Partnership) ,
STATE OF CALIFORNIA_ ~ ^'nCOnCOM~ANy
o. ~he~~9 Zot Iq~ before m~, th~undersigned, a Notary Public in and for
said State, personally appeared (~ , o ~ ~ , ~ ~} W%~ ~%, ~ '
pemonally known to me or proved~o me on the basis of satisfacto~ ehdence to be the person who executed
the within ins~ument as the ~ . !/~ ~ President, ~
tfi% corporation th~xecu~d the within instrument on
th4 partnership that executed
h~ ~ orr~C~aL SEAL -'~
the within instrument, and acknowledged to me that such ~~ BERNICE SAMBERG*~
corporation executed the same as such partner and ~at ~ ~0~ NOTARY PUBLIC CALI[ORNIA :~
~ ~ LOS ~ELE$ COU~Ty '~
(This area for officiM not~i~ ~)
STATE OF CALIFORNIA )
COUNTY OF )
On this ~ o day of D¢c(~xq 1985, before me, a
Notary Public in and for said State, personally appeared
C.~ ~ ~ /%~%~ ~ , known to me (or proved to me on the
basis of satisfactory evidence) to be the person who executed the
within instrument as the Afk~ W,,~ of the CITY OF POWAY, a
general law municipal corporation, and acknowledged to me that
such general law municipal corporation executed the same.
WITNESS my hand and official seal.
~7 JO SEIBERI ·
............... I
Notaty Public
STATE OF CALIFORNIA )
COUNTY OF )
On this __ day of , 1985, before me, a
Notary Public in and for said State, personally appeared
· known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within
instrument as the City Clerk of the CITY OF POWAY, a general law
municipal corporation, and acknowledged to me that such general
law municipal corporation executed the same.
WITNESS my hand and official seal.
Notary Public
-12-
STATE OF CALIFORNIA )
COUNTY OF S~ D~'~/~ ) ss.
)
On this ~,~ day of [-~ , , 1985, before me, a
Notary Public in and for said State, personally appeared
_~/~ F~ k% ~ , known to me (or proved to me on the
basis 6f satisfactory evidence) to be the person who executed the
within instrument as the ¢,7z ~/~wof the CITY OF POWAY, a
general law municipal corp6ration, /and acknowledged to me that
such general law municipal corporation executed the same.
WITNESS my hand and official seal.
No~,~ r y P~blic '--
STATE OF CALIFORNIA )
COUNTY OF )
On this day of , 1985, before me, a
Notary Public in and for said State, personally appeared
, known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the within
instrument as the City Clerk of the CITY OF POWAY, a general law
municipal corporation, and acknowledged to me that such general
law municipal corporation executed the same.
WITNESS my hand and official seal.
Notary Public