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
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(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
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(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
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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