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Ord 279 ORDENANCE NO. 279 AN ORDINANCE OF THE C APPROVING A DEV ~TY OF POWAy PARKWAy PART~.~EL~PMENT AGRECu~.,~ALIFORNIA AL CODE CHAPTER 17.53 WHEREAS, Government Code 65864 6 binding developmen interests in real t ag?ement With- 5867:5 ~Uthorize : . the approval of s,,~?Perty for the Person(s) havin s a c~t~ to enter * "'. agreement by , lopm nt of a.d e.uita l:nto a "'~'~ Ordinance; ~ property Subs~ent to WHEREAS, Poway Municipal Code Se * nance of SUch a de 17.53 of th ~__ velopment .... ~t!on 17.53 no, e ~uw~y Municipalag,.~m_enc if all WHEREAS, the application Sideratlon o "A" at~ae~.~a deVelOnm... _of Parkway e ~o~-:r'~u nereto ~'"~"~ agreement ~-.?rs meets _ . n.~ rot a r .~,,~has been the .~r the real r the..r~qU~reme ts _ oy the g~t~'~l.oY the City .~f~Ject of PUblicP~Ft~ oescribe~ = ~ccorney of t~e"~~er of the Ci'- -:ar~ng, and ~--~.'" CXhiOit ~-,cy of Poway; a;~ of Poway and ;';;r~ ;~c~- WHEREAS, it is in the Public in is consistent With )4-01), and T .the General retest to a iropertv, ~..entat~ve Trac, u._PJ~n, the SOU~hP~?ve sa~d -. ~-u ' '"~P ~/-13 he--, :" ~way Plan--: ~'"'~"~ in that it -:~OTore ap~rn...-~u community ~ --:u ~or said re~! (PC WHEREAS, a Negative )velopment Agreement. Declaration has been appropriately issued for said NOW, THEREFORE. reby Ordain as fjlthe City Council lows; of the City of Poway, California does 1. The Development Agreement With Parkway Partners s "A" attached to this ordinance hereby aPProved, and made a -~-~ ~ et forth i- ~ ..... 2. ~ 'e~erence is The Mayor is hereby authorized and instructed Municipal behalf of Code ~?.53.031 to ~xecute said Devel~ant to Poway t. ordinance, the City of Poway lrreedlately Upon the ef~e~F~m~eO~f this The City Clerk · Municipal Code ~.g~F~sb~{~t~orized and inStru . recorded in the Office o ~_o~cause said D ..ct? P~rsuant t . .. within ten ¢10) Calen,=.f.--: "ecorder n~ ,~:e!°pment A ~ P?way EFFECTIVE DATE. T Y -' '~ execution ~;-~e~an Diego° be thirt · his Ord' tion f¢ ays.after thJnance shall take e. ~:Y of Poway. ~j. th ~he ~;j;~na~J~ d~ys a~ ~i~_passa~n~nd be in fOrce -:ws Chi · u members . ~ pessa e · before th · ~, a newspa.e.V~lng for andg~J_)t ~hall be .u~,? ~Xplra- uway. ~ · or general ~_?~st the sa ~ ?~s~ed Once "ruu~ation ubl~-]n,the P__owav P 'o-:u in the~ Ordinance No. 279 Page 2 Introduced and first read at a regular meetlng of the City Council of the City of Poway held the 15th day of November, 1988, and thereafter PASSED AND ADOPTED at a regular meeting of said City Council held the 29nd day of November, 1988, by the following roll call vote: AYES: COUNCILMEMBERS: BRANNON, HIGGINSON, KRUSE,TARZY NOES: COUNCILMEMBERS: EMERY ABSENT: COUNCILMEMBERS: NONE · Emery, Mayor _ 6/ORD/AGREE1-AGREE2 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: Poway City Clerk City Clerk's Office 13325 Civic Center Drive Poway, California 92064 I880 Ordinance No. 279 853 88 DEC -8 ~H 8:50 (Above Space for Recorder's Use Only) NO FEE DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Development Agreement") is made and entered into this 5th day of December , 1988, by and between the CITY OF POWAY, a municipal corporation ~r'oanized and existing under the laws of the State of California ("City"), and PARKWAY PARTNERS, a California general partnership ("Developer"). RECITALS 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 65865, the City has pre- viously 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 pro- perty {the "Property") known as Parkway Business Centre {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 Conmunity Documents {as hereafter described). The City has given notice of intention to adopt the proposed Development Agreement, has conducted public hearings thereon pur- suant to Government Code Section 65867, and City's Ordinance No. 177 and has found that the provisions of this Development Agreement and its pur- poses are consistent with the objectives, policies, general land uses and programs specified in the City's general Plan and the Planned Con~unity {as hereafter described). "EXHIBIT A" Ordinance No. 279 Page 4 -2- 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 Tentative Tract Map No". 87-13 ("Map") and the Subsequent Environmental Impact Report (SEIR") were approved by the City pursuant to 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 contrac- tual 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 con- ditions of this Development Agreement have undergone extensive review by the City and its Council and have been found to be fair, just and reaso- nable, and the City has concluded that the economic interests of its citi- zens 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 thereof, the permitted uses for the Development, and to identify the scope of public infrastructure improve- ments 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. Ordinance No. 279 Page 5 -3- N. 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 expedi- tiously 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. By entering into this Development Agreement, City desires to vest in Developer, to the fullest extent per- missible 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: 1. Bindin9 Effect of Development Agreement. The Development Agreement pertains to the Property as described in Exhibit "A." The bur- dens 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 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 develo@er 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 conditional use permit required, or as otherwise agreed to in writing by the City and Developer. 4. Term. The original term ("Term") of the Development Agreement is ten ~0) years from the date of execution; provided, however, this Development Agreement shall be deemed cancelled and of no further force of 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. Ordinance No. 279 Page 6 -4- 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 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 24 with respect to Enforced Delays, the Tem 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 are hereby approved: (al Permitted Uses of the Property. Nothing set forth in the 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 Property 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 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 the City or any department thereof shall be required; provided, however, deve- lopment 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. Ordinance No. 279 1884 Page 7 -5- 6. Processing of Applications and Permits. The City will accept for processing and review of all applications for permits or other entitle- ments with respect to the development and the use of the property in accor- dance with this Development Agreement. It is understood by the parties to this Development Agreement that pursuant to existing law, development review 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 develop- ment 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 appli- cable 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 provi- sion 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 pro- posed 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. g. Asslgnment. 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 per- son, firm or corporation having a legal or equitable interest in the Property at any time during the term of this Development Agreement. 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 the 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 Ordinance No. 279 Page 8 -6- that this Development Agreement and the documents incorporated herein could be deemed to contain thousands of requirements (i.e., construction stan- dards, 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 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 "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 Development Agreement; provided, however, that the City shall provide ten (lO) days notice of any require- ment 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 conclu- sively determine said issue up to the date of such findings for the pur- poses 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 Development Agreement. Developer agrees to furnish such evidence of good faith compliance as the City, in the reasonable exer- cise 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 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 the use of the Development shall not require a public hearing before the parties execute an amendment hereto; Ordinance No. 279 Page 9 -7- (b) Any non-substantial deviations from the terms of this Development Agreement do not require an 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 amend- ment process; and (c) Except as herein provided, before the expiration of the Term of this Development Agreement, the parties may mutually agree to can- cel 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 Statement. As a material inducement to the Developer and its lenders to continue with diligent efforts to promote the develop- ment 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 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 restric- tions 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 Development Agreement, the ordinances, rules, regula- tions and official policies of the City and its special districts and agen- cies, 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 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. (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 effec- tive date hereof, or as set forth in the Planned Community Documents, as Ordinance No. 279 Page 10 -8- 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 Statistics. (d) Approved Changes to Development Regulations. The entitle- ments 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 assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non-conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Poway Municipal Code; (3) 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; (4) Procedural rules. 13. Environmental Compliance. (al 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 virtue of the EIR and Subsequent EIR. It is the agreement of the City {and the City so certifies) that no mitigation measures, 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 Development Agreement shall be imposed on the Property, or as an obligation of the Developer or its successor-owners. 1888 Ordinance No. 2?9 Page 11 -9- (b) Subsequent Environmental Review. In exercising its legisla- tive discretion to enter into this Development Agreement and to commit the City to the completion of the Development, the City has reviewed and con sidered 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 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 assump- tions, the projected future regional and cumulative environmental demands that will compete with the Development for available capacities and cumula- tively add to potential adverse impacts. In so doing, the City has con- sidered 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 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 environmen- tal impacts associated with the development of the Property, the City has imposed mitigation measures through the Planned Community process, the sub- division 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 environ- mental impacts which may arise during the development period; therefore, the City agrees, consistent with California Public Resources Code Section 21166, that with the exception of the SEIR, no subsequent or supplemental environmental impact report shall be required by the City for the sub- sequent discretionary approvals implementing the projects unless: (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 complete, becomes available; provided, however, that re-analysis of data already examined and 1889 Ordinance No. 229 Page 12 -10- 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 becoming, or have or have not become realities, but instead requires that the actual quantitative and qualita- tive extent of the underlying issues was not considered in the environmen- tal analysis associated with the approval of this Development Agreement and the EIR. 14. Right-of-Way Acquisitions. With respect to any required publlc 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 appro- val 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 miti- gation 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 discre- tion 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 and/or rights-of-way for such proposed utilities 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 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. 16. Condemnation. With respect to any required public street widening, the installation of utilities and any other on-site or off-site facilities to be performed by Developer in fulfillment of any and all con- ditions 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 1890 Ordinance No. 279 Page 13 -11- 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. 17. Landscape and Recreation Maintenance Area. Developer hereby agrees to join in the formation of a private maintenance district for pur- poses 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 con- sisting 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. 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 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 appli- cable to the Development. 19. Municipal Financing; Reimbursement Agreements. The City hereby agrees to sponsor one or more municipal financings such as the establishment of an improvement district under the 1913 Streets and Highways Act, or a Mello-Roos Community Facilities District (collectively, "Mello-Roos District") to finance the completion and installation of infrastructure improvements required for the Development In the event the City shall be responsible for completing one or more portions of such improvements, the City agrees to act promptly to so complete such improve- ments In order to avoid delays to the Development. 20. Substitution of Security. The Developer shall have the right and option to substitute the proceeds attributable to the bonds issued under the Mello-Roos District and/or contractor performance bonds as security for Developer's obligations required under the Map. Nothing herein shall relieve the Developer from posting the full amount of securlty required by the 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" 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. Ordinance No. 279 Page 14 -12- 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. 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 has 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 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 modifi- cation 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. 24. 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 commencement of cause. 25. 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: I892 -13- Ordinance No. 279 Page 15 City: City of Poway Post Office Box 789 Poway, California 92064 Attention: City Manager Developer: Parkway Partners 12707 High Bluff Drive, Suite 135 San Diego, CA 92130 Attention: Rex Brown 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. 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 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 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 con)hence 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 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 exhi- bits 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 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 /// /// /// 1893 Ordinance No. 279 Page 16 -14- thereby and each term and provision of this Development Agreement shall be va]id and enforceable to the fullest extent permitted by law. ATTEST: Marjorie Wahl sten City Clerk APPROVED AS TO FORM: Stepheii M. Ecki s C~y~Attorney IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above written. "City" "Developer" CITY OF POWAY, a municipal corp~ _ra~? Mayor PARKWAY PARTNERS, a Califor~¢~ general partnership By: ADI Properties, Inc., General Partne~ Rex Brown, General Partner 6/G/AGREE1 - AGREE14 Ordinance No. 279 Page 17 LEGAL DESCRIPTION OF PROPERTY Community Facilities District No. 88-1 THE SOUTH 1/2 OF THE NORTHEAST 1/4 AND THE NORTH 1/2 OF THE SOUTHEAST 1/4 OF SEC. 24.T-14-S, R-2-W. LOTS 2 & 3 AND THE SOUTHEAST 1/4 OF THE NORTHWEST 1/4 AND THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4. THE WEST 1/2 OF THE SOUTHEAST 1/4, THE SOUTHWEST 1/4 OF THE NORTHEAST 1/4 AND THE EAST 1/2 OF THE NORTHWEST 1/4 OF THE NORTHEAST 1/4 OF SEC. 19.T-14-S, R-1-W. Contained within the District's boundaries are the following County of San Diego Tax Assessor Parcels, based upon the 1987-88 tax rolls: Parkway Business Centre CFD Total A.P. Acres A.P. No. A.P. Acres within CFD 323-090-12 86.84 86.84 323-090-17 58.17 58.17 323-090-43 14.02 14.02 323-090-44 35.48 35.48 323-091-02 40.00 40.00 323-091-03 78.91 78.91 317-280-02 40.00 317-280-05 80.00 80.00 317-480-09 11.82 317-480-10 27.57 317-280-03 40.00 317-280-10 40.00 40.OD 317-280-11 40.00 40.00 317-480-07 30.70 317-480-08 7.67 EXHIBIT "A" !1895 Ordinance No. 279 Page 18 MAP OF PROPERTY EXHIBIT "B" o' ~ooo' ~00' P~G~JA¥ REDEVEi,.~NT PRO~JECT I890 Ordinance No. 279 Page 19 STREETS, PARKS AND OTHER IMPROVEMENTS On-Site Development Phase I South Poway Parkway 1/2 width Stowe Drive Street A Street B Street C Street D Detention Basis and Appurtenances Riding and Hiking Trails Five acre park Phase II South Poway Parkway Midland Road Kirkham Road Street D Street E Street F Street G Street H Detention Basin and Appurtenances Easement (Detention Basin) Riding and Hiking Trails EXHIBIT "C" 1897 ADDITIONAL IMPROVEMENTS Off-Site Development Phase I South Poway Parkway in Pomerado Business Park Noise Wall along Community Road Off-site sewer in Community Road Water reservoir, pump station and distribution line Fire truck & station, traffic management study Phase II South Poway Parkway to Sycamore Canyon Midland Road north of project Midland Road south of project Kirkham Road EXHIBIT "D" Ordinance No. 279 Page 20