Loading...
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