Development Agreement 88-630853RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
Poway City Clerk
City Clerx's Orrice
17325 Civic Center Drive
Poway, California 02964
0
1? 630853
' 188Q
111 i
V 01 -6 An 8 :S0
( A RA L. LYtt
(Above s5ace for ccor er S 5e PY p
DEVELOPAE?4r AGREEMENT
1NiS DEVELOPMENT AGREEMEHT ('0 o Agreenent') Is Made and
entered into this 5th day of Oecembe 1488, b 3ntl baMecn the CITY OF
POWAY, a municipal cvrporationorgan T d and stlnq urder the laws or the
State of California ( "City'), and PARKS► RTNCRS, h California gcneral
partnership ( "Developer ").
R E C I T A L 5
A. California Goverment Code Section 65864, et seq., provides
that the legi5latlVe body Of a city may enter into a development agreement
for the development of real property In order io vest certain rights In the
developer and to meet Certain public purposes of the local government.
Pursuant to CtlifOrnla Government Code Section 65865, the City has pre-
viously adopted Ordinance No. 117 establishing procedures and requirements
for the, approval of development agreements. Oeveloper has applied to the
City pursuant to California Government Code Sections 65864- 63669.5 and
Ordinance No. 177 ror approval of the Development Agreement set forth
hereln.
8. the City desires to enter into thls Oewelopment Agreement
)0th the Dcvelopor in order to tacliltate the development or Certain pro-
perty (the 'Property') known ai Parkway Bushell Centre the 'Development ")
are; afore fully described in WI an shnvn an a map set forth on
Exhibit "8", both attached hereto. ne City further desires that the
Devalopmen be in accordanco.with the Planned Comuni ty Cocuments (as
hereafter described). The Cltyhas given notice of intention to adopt the
Proposed Development Agreement, has Conducted public hearings thereon pur-
suant to Government Code Section 65667, and City's Ordinance No. 177 and
nas round that the provisions or thla Development Agreew t and its pur-
poses are consistent with the objec'tives, policlea, general land uses And
programs specified in the City's general Plan and the Punned Ctutmunity (as
hereafter described).
NO Fps
i 1881
-2-
C. In connection with its approval or the South Poway Planned
Community (the "Planned Community "), the Development Plan, the Oevelopment
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 -17 ( "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 tuts 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 wil! 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, tht 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 terns ano con-
ditions or this Development Agreement have undergone extensive review by
the City and Its CnunciI and have been found to be fair, just and reaso-
nable, and the City has concluded that the economic interests of its cltl-
zens and the public health, safety and welfare wlII 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 teen nature of the Development,
including the cost or a portion of these public improvements, could
discourage and deter Developer from making the long term commitments
necessary to rully develop the Propertyl therefore, the parties desire to
enter Into :his 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 or the
Development, including all pnases 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 or, the Development
G. The City recognizes that Developer may sustain substantial
losses if the City were to default In Its obltgatlons herein undertaken.
U
IRE
1882
H. 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.
Noll, 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:
I. Binding Effect of Oevalo ment A reement. The Development
Agreement perta ns o the roperty as escr e n Exhibit "A." The bur-
dens of the Development Agreement are binding upon, an a enefits of the
Development Agreement Inure to all successors in interest of the parties to
the Development Agreement, and constitute covenants xhich run with Ok
ez2pLrt,L, and In order to provide continued notice thereof, this
Oevelopmeln_t Agreement will be recorded by the parties.
2. Relatlonshf of the Parties.. It is hereby specifically
understood and ad that the DeveTopment 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.
J. Reservations or Dedications. It Is hereby further understood
and agreed that no reserva ens 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 -slto Improvements or
facilities except as part or 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 arl the Development
Agreement Is t ears f ovided, however,
this Development Agreement shal deertrnf -cc IIr{!ie�
force of effect t h r n peg �n�y„ rn na al - TTon
the:aomp on of a ses 11 of Ql*vt en w lot. Upon any such completion
a I the, Va. t y 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 (50X) of the Development has been
completed, the Term shall be extended until such construction is completed,
not to exceed an additional rive (5) years after expiration of the Term.
r�
U
( 1883
-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 Oavelaper 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 InJunctlons, 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 Tern shall be
extended for an additional period equal to the period of such delay or
delays.
5. Development Approval. NoW set forth I he Development
Agreement shat ae eemrequ r�evelopar to complute he Dev elopment
or any portion thereof, ded �howeve Ise —TOi wing el ants of the
Development are hereby e (a) Perm s of the Pro ere . No hang et forth In
the Development Agreeme a deta:e o requ re D volo er to complete
the Development or any /n thereof provided. noway r, he parties agree
that the permitted, con al and prohibited uses of Cp Property shall
be as set forth in the Planned Community Do:uments. /
(b) Oeistt or Intensit of Use. a that the
maxlinum densities an n ens t es for t tivE permitted uses the
Property shall be es se rth f ned C unity Documents.
(c) joth!e n 51ze of Pro osed Bui lain s. Th
parties agree chat m e g is an s ze o u dings for the
Development shall b!Deve orth in the Planned Community Doeume it
is hereby agreed th spect to any pro osed cuaq(s o be
constructed ds Part c wou d result In a density or
Intensity which is ;asd than as set forth in the Planned Community
Documents and /or for which the proposed size, and /or height Is less than
set forth ir. the Planned Community Documents, no consent or approval of the
City or any department thereof shall be required; provitied, however, deve-
lopment review shall be conducted pursuant to Chapter 17.52 of the Poway
Municipal Code. the City hereby agrees that no change() to the Planned
Community Ooelmments shall be effective as to the Development and that City
shall not seek cc effect any such change(s) a; to the Develofvment without
the prior written consent Of Developer.
! 1884
5-
6. Proeesstn of A 1lcatlons and Penults. The City will accept
for processing end rev ex o a app ca ons 5_ r 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 ce ve I o4enr
rEV1177pprovis s s 'ATt or the enn o is eevelopment
Atjr-eanci.t. -k" Amen rev ew approve .
Accordingly, the Developer %U1111 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 flied for the Development shall be
reviewed In accordance with the Planned Community Documents.
7. Ou elo ment Review. Nothing set forth herein shall Impair or
interfere with the r g o e Ity to require the processing of building
permits as required by law and to conduct its development review or 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, hrrwever, no such review shall authorize or permit the
City to impose any condition and /or withhold approval to any proposed
building the result of vhich 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
unnertake any act or neg ect to perform any act or duty which would impair
or Inhlbit Developer's receipt of any and all public utility service, the
fee! for %r which Oeveloper has paid or will pay to City for such service.
_Assignment. Developer shall have the right to sell, assign,
or tra f ai orl any part of Its interest to 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 -
sbn, firm or corporation having a legal or equitable interest In the
Property at any tine during the term of this Development Agreement,
10. Periodic Review of Cam Nance. In accordance with Government
Code Section 6 b e y Dune s a review this Development
Agreement at least once each calendar year hereafter. At such periodic
reviews, Developer must demonstrate its good faith compliance with the
term! 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 Otveloper'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
® 0
1885
-6-
that this Development Agreement and the documents Incorporated herein could
be deemed to contain thousands of requirenent3 (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 ralth effort to avoid the violation of any
term of the Planned Community Documents and evidence that Developer has
made a good faith efrort to develop the Properly. 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 to 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 (10) 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 entitlemen s grantrd 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 65B65.1, 65868, 65867 and 65861.5.
(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:
® !
( 1886
-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- substantlal 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 Dereiopment Agreement, by executing an agreement to be recorded in
the official records of San Olego County, California.
12. Vesting of Development Rights.
(a) General Statement. As a material inducement to the Developer
and its lenders to continue v dlllgent 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 bulldings
and related Improvements Consistent with the Planned Community Documents to
be deemed vested in Developer, as Of the date of this Development
Agreemen , to the greatest extent pemitted by law, and except as herein
provided, to be free of all discretionary rights of the Clty or any body or
agency thereof, to impose any subsequent building moratoriums or restric-
tions an development which are Inconsistent with this Development
Agreement.
(h) Exls�irig Rules to Govern. In accordance with the tams of
Government Code act oo �5566,the Clty and the Developer agree that except
as provided in this Oevelopleent 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 Oeve:opment 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. to 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
resaect 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 3ubaivision or other discretionary approvals,
or issuing any permits, in connection with the Development or any part
thereof, It shall not Impose issei3ments, 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 erfec-
tive date hereof, or as set forth in the Planned Community Documents, as
18$'7
-a•
nuy be adjusted annually by the Clty In proportion to annual, cu-nuIatIve
increases in the Consumer Price Index for A11 urban Consumers - San Diego,
Callrornla, Base 19132 -134 - 100, as Published by the United States
otpartment of Labor, Bureau of Labor Statistics.
(d) A roved Changes to Develo ment Re uiations. The entitle-
ments vested by s eve opM en greemen s a e sub act to only such
other municipal lams and regulations which 410 not conflict With Developer's
vested rights to develop and use the Property In accordance with the
Planned Coamunity Documents. Developer and its successors and assigns and
all persons and entitles In occupation of any portion of the Property shall
comply with suCn nOn- Conflicting laws and regulations as may from time to
time be enacted or amended hereafter. Specirically, but without 1lnitation
an the foregoing, such non - conflicting laws and regulations inctude the
following:
(1) Taxes, assessments, fees and charges;
(2) Building, electrical, mechanical, fire and similar codes
b+sed upon uniform codes Incorporated by reference Into the Poway Municipal
_'ode;
(3) Laws, including zoning code provisions. which regulate
the manner in which business activities may be Conducted or which prohibit
any psrticular typ9 of business activity;
(a) Procedural rules:
13. Environmental Compliance.
(a) EIR Process ln Cam leted�.. The EIR and the Subsequent EIR for
the South Poway Plann °d cmnunity is I110rpOrated herein by reference as
though fully set forth at length. The City certifies that ail required
environmental processing for the development COntemPlated by the Planned
Co munity 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 an the Property.
or as an obligation of the Developer or Its successor - owners.
®.
-s-
1888
(b) Subse uent Environmental Review. In exercising Its legisla-
tive dlscretlon to en ar n o s evelopment Agreement and to comit the
City to the completion of the Oevelopment, the City has reviewed aed con
sldered the potential adverse environmental Impacts related to all sspects
of the contemplated project, Including, without limitation, the potential
demands the Oevelopment 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, nalse and
air quality impacts The City has further reviewed and considered from a
variety of perspectives, and has analyzed pursuant to a variety ofassump-
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 extsttng
infrastructure systems may be delayed, modified or abandoned;
(1 1) 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
(Ii 1) 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 revity process, and this Development Agreement to the fullest
extent the City considers feaslble and necessary. The City has determined
that phased completion of the Oevelopment 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 caviron-
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 supplasental
environmental impact report shall be required by the City for the sub-
sequent discretionary approvals implementing the projects unless:
(A) Substantial changes are prcposed by the
Developer which wl71 require major revisions of the E!R; or
(D) new information, which was not known and could
not have been known at the time the EIR was certified as ccnVi ete,becomes
available; provided, however, that re- analysts or data already exanlned and
1 1889
-to-
reported In the EiR shall not be Considered new Information. The term "new
information" does not mean discovery that probabilities of adverse (or
beneftclal) 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
realttles, but instead requires that the actual quantitative and qualita-
tive extent of the underlying issues was not considered in the envlronman-
tal analysis associated with the approval of this Development Agreement and
the Elk.
14. Riot-or-way Ac ulsltions. with respect to any required
public street widen ng, t m no of n of�nterfering 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 to connection with the appro-
val of the Hap 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 Clty 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
1245.275. 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 or 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 5 ecial Districts. The City and the Developer
do hereby covenan an agree a excel 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
tit II be created by the Ctty or any agency or instrumentality of the City,
unless Developer expressly then grants such authority and concurs in tt.e
creation or 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 conneetlon with the approval of the Hap 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 terns 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
J1
r 1890
M
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 Hainteaance Area. Developer hereby
agrees to Join in the forinatlon o 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 or 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 trolls, public street
rlghts -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, s Dave opment Agreement shall continue to be enforceable
by any party to It, notwithstanding a change In general or speciric 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. Munici al FlnancIn 'Reimbursement A regiments. The City
hereby agrees o sponsor one or mare mun c pa nancings 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 Secur The Developer shall have the right
and option to su s u e it e procee s 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
nereln shall relieve the Developer from posting the cult amount of security
required by the Map Act.
2t. Dedication of Parks and Imorovernents. The Developer agrees
to dedicate, an or before the completion of a evalopment, 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 Improvemnt upon dedication by the Developer.
-12-
►' 1891
22. Ouildin Area Restrictions. The Property shall be limited to
the building f oar area ra o restrict ons set forth in the SEIR, and any
sale of all or any portion of the Property shall be subject to such
restrictions.
23. Su eercessio�n of Agreement by Changes in Stole or Federal law.
In the event t ah testate or a era laws or regulations coat wafter thT^
Clevelopmment 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 tl,13 oevelopment
Agreement; and
(b) Promptly meet and confer mlth the other party in good
faith and make o reasonable attempt to nodify or suspend this Development
Agreement to comply with such Federal or State law or regulation.
Thereafter, regardless of whether the parties reach agreartnt on the eriect
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 modifl-
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 codification 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 spec If c prow sons o is Develapmer. greemen ,per orman-e
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 or the City, acts or omissions of third parties which are not a
party to this Development Agreement, including but not Iinited to, other
governmental agencies, or other causes beyond the reasonable control of
Developer. An extension of tire 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 Camrence to run from the time of commenceaent of
cause.
25. Notices, Any notice or instrument rsquired 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 mall, certified mail,
postage Prepaid, addressed to:
Ll
( 1892
-13-
C 1 ty: City of Poway
Post Office Box 789
Poway, Cal ifornta 97064
Attention: City Manager
Developer: Parkway Partners
12707 High Bluff Drive, Suite 135
San Diego, CA 92130
Attention: Rex Brown
Notice or a change of address shall be delivered in the same manner as any
other notice provided herein. end shall be effective three days after
mailing by the above - described procedure.
26. Breach and Remedies. Notvlthstanding any provlston of this
Agreement to the contrary, eve oper shalt not be deemed to be In default
under this Development Agreement, and the City may not terminate
Developer's rights under this Oevelopment 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 Develcper within ninety (90) days of service of such notice of
default, or with respect to defaults which cannot be cured within such
period, if Beveloper fails to comnence to cure the default within thirty
(30) days after service of the notice of default, and thereafter falls to
diligently pursue the cure of such default until completion, the City may
terminato Developer's rights under thls Development Agreement. In the
event a breach of this Developiunt 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 Agreeraeot is a
proper and desirable remedy.
27. Entire A reement. This Development Agreement and the exhl-
bits herein con a n t e en re 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 Agreenent, is null and void.
28. Sever�ablllty. If any tern, provision, condition, or covenant
of this OevOlopmenF- grant, or the application theraot to any party or
circumstances, shall to any extent be held invalid or unenforceable, the
remainder of the instrument, or the application of such tend. provision.
condition or covenant to persons or circumstances Other than those as to
whom or which It is held tnvalld or unenforceable, shall not be affected
i 1893
-1d-
thereby and each term and provision or this Development Agreement shall be
valid and enforceable to the rullest extent permitted by lay.
ATTEST:
ar ore Warilsten
City Clerk
APPROVED AS TO FORA:
/ ' ,/.
C[ Attorney
IN WITNESS WHEREOF. the undersigned have executed this Development
Agreement as of the day and year first above written.
'City, CITY OF POVAt. d municipal
rarpLatlnn
By,
aye r
"Developer PARKWAY PARINERS, a CaIIror
general partnership
dy: ADI Propertles, Inc., General
Partner �
/hts: SC All O( 1/1(f
By: .C} C A40,zC
ex Brown, General Partner
6 /G /AGREEI - AGREEI4
1894
LEGAL DESCRIPTION OF PROPERTY
Community Facilities District No. 88 -1
THE SOUTH 112 OF THE NORTHEAST 1/4 ANO THE NORTH t/2 OF THE
SOUTHEAST 1/4 OF SEC. 24.T -14 -S, R -2 -W. LOTS 2 a 3 AHO THE
SOUTHEAST 1/4 OF THE NORTHWEST 1/4 ANO THE NORTHEAST 1/4 OF
THE SOUTHWEST 1/4, THE WEST 1/2 OF THE SOUTHEAST 114, THE
SOurtiW£S7 1/4 OF THE NORTHEAST 1/4 AND THE EAST 112 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 fallowing County of San
Diego Tax Assessor Parcels, based upon the 1987 -88 tax rolls:
Parkway Buslness Centre
ad
Total A.P. Acres
A.A. No. A.P. Acres within CFD
323 - 090 -12 86.84 86.84
323- 090 -17 56.17 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 40.00
317- 280 -it 40.00 40.00
317 - 480 -07 30,10
317-480-08 7.67
EXHIBIT "A"
E
f i 89
PAP OF PROPERTY
EXIIIBIT B.
e
t 1896
STREETS, PANS AND OTHER IMPROVEMENTS
On•Site Development
Phase
South Poway Parkway 111 width
Stowe Drive
Street A
Street 8
Street C
Street 0
Detention Basis and Appurtenances
Riding and Hiking Trails
Five acre park
Phase II
South Poway Parkwty
Hlaland Road
Kirkham Road
Street 0
Street E
Street F
Street G
Street H
Detention Basin and Appurtenances
Easenent (Detention Basin)
Riding and Hiking rralls
EXHIBIT 'C"
1897
ADOITIONAL 'IMPROVEMENTS
Off -Site Development
Phase I
South Poway Parkway In Pomerado Business Park
Noise Wall along Community Road
Off -site sever in Community Road
Water reservoir, pump station and distribution line
Fire truck b station, traffic management study
Phase I1
South Poway Parkway to Sycamore canyon
Midland Road north of project
Midland Road scuth of project
Kirkham Road
EXHIBIT "D°
D