Item 7 - Financing Improvements in Conjunction with TTM 89-13R
- AGENDA REPORT SUMMARY -
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TO: Honorable Mayor and Members of the City Council
Honorable Chairman and Members of the Redevelopment Agency
FROM: James L. Bowersox, City Manager/Executive D~or
INITIATED BY: John D. Fitch, Assistant City Manager/Assistant Executive Director
~warren H. Shafer, Director of Redevelopment Services
DATE: July 11, 1995
SUBJECT: Adoption of Resolutions by the City of Poway and Poway Redevelopment
Agency Approving an Owner Participation Agreement Between the Poway
Redevelopment Agency and Environmental Development, Ltd. Regarding the
Financing of Improvements in Conjunction with Tentative Tract Map No.
89-13R
ABSTRACT
This report recommends the adoption of Resolutions by the City and Redevelopment Agency
approving an Owner Participation Agreement (OPA) with Environmental Development, Ltd.
to assist in financing public improvements in conjunction with their Tentative Tract
Map (TTM) No. 89-13R (Old Coach Road Estates).
- ENVIRONMENTAL REVIEW
This action is not subject to CEQA review.
FISCAL IMPACT
The Agency's cost under the OPA is estimated to be between $600,000 and $850,000. The
Agency will borrow the funds internally and repay the loan from the tax increment
generated by the completion of TTM 89-13R.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
A Notice of Public Hearing was published in the Poway News Chieftain. Attorney D.
Wayne Brechtel has received a copy of this report.
RECOMMENDATION
It is recommended that the City of Poway/Redevelopment Agency close the Public Hearing
and adopt the resolutions approving an OPA with Environmental Development, Ltd.
ACTION
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- AGENDA REPOR.L
CITY OF POW A Y
TO: Honorable Mayor and Members of the City Council
Honorable Chairman and Members of the Redevelopment Agency
FROM: James L. Bowersox, City Manager/Executive D~r
INITIATED BY: John D. Fitch, Assistant City Manager/Assistant Exec~irecto
Warren H. Shafer, Director of Redevelopment Services ~s
DATE: July 11, 1995
SUBJECT: Adoption of Resolutions by the City of Poway and Poway
Redevelopment Agency Approving an Owner Participation Agreement
Between the Poway Redevelopment Agency and Env i ronmenta 1
Development, Ltd. Regarding the Financing of Improvements in
Conjunction with Tentative Tract Map No. 89-13R
BACKGROUND
The Redevelopment Plan adopted for the Paguay Redevelopment Project Area
established owner participation rules and regulations which authorize owners of
property within the project area to enter into binding agreements with the Agency
to provide for the development or use of the property in conformity with the
provisions of the Redevelopment Plan. The purpose of the Owner Participation
Agreement (OPA) (Attachment I) is to effectuate the Redevelopment Plan by
providing for the development of Tentative Tract Map (TTM) No. 89-13R and to
provide for Redevelopment Agency ass i stance in financi ng the construction of
certain public improvements.
Environmental Development, Ltd., the developers of TTM 89-13R, have proposed to
develop a residential subdivision within the Paguay Redevelopment Project Area.
Due to the significant costs associated with developing this project, including
the costs of the proposed public improvements, the developers have requested that
the Redevelopment Agency ass i st the project wi th the cost of some of the
improvements.
FINDINGS
Due to the extensive site development costs that were required of this
development, including the construction of one-half of Espola Road, the
developers have applied for financial assistance from the Agency. As a result,
staff reviewed the finances for the project and determined that Agency assistance
is justified. In determining how to best match the developer needs and the level
of Agency assistance, several discussions were held. It was determined the best
method was for the Agency to provide the assistance as outlined in Section 205
ACTION: l
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- OPA - Poway Redevelopment Agency and Environmental Development, Ltd.
July 11, 1995
Page Z
of the OPA. These items include the construction of one-half of the street
improvements, the undergrounding of all utilities, installation of street lights,
and construction of offsite sewer improvements. All these improvement designs
will be completed and paid for by Environmental Development, ltd. The Agency
will design and install the traffic signal at Espola and Old Coach Roads. Since
the actual plans are still being finalized, the estimated value of these items
is between $600,000 and $850,000. The Agency will recover this expense through
tax increment when the tentative map is developed. The OPA contains several
conditions to ensure the Agency doesn't incur any liability until the development
of the map is ensured (see Section 206).
By providing the recommended assistance, the Redevelopment Agency is ensuring the
timely development of this project and also that the necessary pub 1 i c
improvements will be provided.
ENVIRONMENTAL REVIEW
This item is not subject to CEQA review.
FISCAL IMPACT
The Agency's cost under the OPA is estimated to be between $600,000 and $850,000.
The Agency will borrow the funds internally and repay the loan from the tax
increment generated by the completion of TTM 89-13R.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
A Notice of Public Hearing was published in the Poway News Chieftain. Attorney
D. Wayne Brechtel has received a copy of this report.
RECOMMENDATION
It is recommended that the City of Poway/Poway Redevelopment Agency close the
Public Hearing and adopt the resolutions (Attachments 2 and 3) approving an OPA
with Environmental Development, Ltd.
Attachments: 1. Owner Participation Agreement
2. Poway Redevelopment Agency Resolution
3. City of Poway Resolution
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RECORDING REQUESTED BY: )
)
City of poway )
)
WHEN RECORDED, MAIL TO: )
)
City Clerk )
City of Poway )
P.O. Box 789 )
Poway, CA 92064 )
)
No Transfer Tax Due (This space for Recorder's use)
OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN THE
POWAY REDEVELOPMENT AGENCY
AND
ENVIRONMENTAL DEVELOPMENT, LTD.
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- TABLE OF CONTENTS
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I. [UOO] SUBJECT OF OWNER PARTICIPATION AGREEMENT 1
A. [U01] Purpose of Owner Participation Agreement 1
B. [U02] The Redevelopment Plan . 1
C. [U03] The Site . 1
D. [!i104] Parties to the Owner Participation Agreement 1
l. [UOS] The Agency . . 1
2 . [U06] The Participant . . . 2
3 . [U07] Change in Ownership, Management and Control
of the Participant . . 2
II . [!i200] DEVELOPMENT OF IMPROVEMENTS BY THE PARTICIPANT 3
A. [!i201] Scope of Development , 3
B. [!i202] Cost of Development 3
1. [!i203] Participant Cost " .... 3
2 . [!i204] Agency Assistance .. .... 3
(a) [!i20S] Agency Assistance Procedure 3
(b) [!i206] Conditions Precedent To Agency and
Participant's Obligations To Construct
Participant and Agency Improvements 4
3. [!i207] Construction Schedule . 5
4. [!i208] Indemnity, Bodily Injury and Property Damage
Insurance . . S
S . [!i209] Rights of Access . . 6
6 . [!i210] Local, State and Federal Laws . 6
7. [!i211] Antidiscrimination During Construction 6
8 . [!i212] Taxes and Assessments 7
9. [!i213] Certificate of Completion . . 7
10. [!i214] [intentionally omitted] 7
1l. [!i21S through !i221] [intentionally omitted] 7
III. [!i300] USE OF THE SITE . 7
A. [!i301] [intentionally omitted] 7
B. [!i302] Uses in Accordance with Redevelopment Plan;
Nondiscrimination . 8
c. [!i303] Effect of Violation of the Terms and Provisions
of this Agreement After Completion of
Construction 9
IV. [!i400] GENERAL PROVISIONS 10
A. [!i401] Notices, Demands and Communications Among the
Parties . . 10
B. [!i402] Conflicts of Interest 10
C. [!i403] Enforced Delay; Extension of Times of Perfor-
mance . . 10
D. [!i404] Inspection of Books and Records 11
E. [HOS] Estoppel Certificates 11
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V. [!iSOO] DEFAULTS AND REMEDIES 11
A. [!iS01] Defaults -- General 11
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B. [11502] Legal Actions 12
l. [11503] Institution of Legal Actions 12
2 . [11504] Applicable Law 12
3 . [11505] Acceptance of Service of Process 12
C. [11506] Rights and Remedies Are Cumulative 12
D. [11507] Inaction Not a Waiver of Default 12
E. [11508] Remedies and Rights of Termination After
Construction of Agency Improvements 13
l. [11509] Damages 13
2. [11510] Specific Performance 13
3. [11511] Termination by the Agency . . 13
F. [11512] Remedies of the Parties for Default After
Construction of Agency Improvements and Prior to
Construction of Public Improvements . 14
l. [11513] Termination and Damages . 14
2. [11514] Action for Specific Performance 14
G. [11515] Foreclosure on Site [intentionally omitted] 14
VI. [11600] SPECIAL PROVISIONS 14
A. [11601] Real Estate Commissions . . 14
B. [11602] Successors In Interest 14
C. [11603] Amendments to this Owner Participation Agree-
ment 15
VII. [noo] ENTIRE AGREEMENT, WAIVERS 15
VIII. [11800] TIME FOR ACCEPTANCE OF OWNER PARTICIPATION
AGREEMENT BY AGENCY . . 16
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-. ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Legal Description
Attachment No. 3 Scope of Development
Attachment No. 4 Schedule of Performance
Attachment No. S (intentionally omitted)
Attachment No. 6 Certificate of Completion
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OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement" ) is
entered into by and between the POWAY REDEVELOPMENT AGENCY (the
("Agency" ) and ENVIRONMENTAL DEVELOPMENT, LTD. , a California
limited partnership (the "Participant") . The Agency and the
Participant hereby agree as follows:
1. (HOD] SUBJECT OF OWNER PARTICIPATION AGREEMENT
A. (HOl] Purpose of Owner Participation Aareement
The purpose of this Agreement is to effectuate the Redevelop-
ment Plan (as hereinafter defined) for the paguay Redevelopment
Project ("Project") by providing for the improvement of certain
property situated within the Project Area ( "proj ect Area") of the
Project by the Participant including the installation by the
Participant of certain onsite public improvements associated with
a residential development planned by the Participant. The public
improvements are referred to herein as the lISitell and the area
where the same are planned is shown on Attachment 1 ("Site Map").
The property identified on the Site Map is owned by the
Participant. Completing the public improvements and encouraging
the development of the Site pursuant to this Agreement is in the
vital and best interest of the City of Poway ( "City") and the
health, safety and welfare of its residents, and in accord with the
public purposes and provisions of applicable state and local laws
and requirements under which the Project has been undertaken.
B. (H02] The Redevelopment Plan
The Redevelopment Plan was approved and adopted by
Ordinance No. 117 , of the City Council of the City of Poway; said
ordinance and the Redevelopment Plan as so approved (the "Redevel-
opment Plan") are incorporated herein by reference.
C. Uil03 ] The Site
The Site is that portion of the Project Area designated
on the Site Map (Attachment No. 1) and described in the "Legal
Description," which is attached hereto as Attachment No. 2 and is
incorporated herein by reference, and all public improvements
thereon.
D. (H04] Parties to the Owner Participation Aareement
l. (UOS] The Acrencv
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California. The principal office of the Agency is located
at City Hall, l332S Civic Center Drive, Poway, California 92064.
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"Agency, " as used in this Agreement, includes the
Redevelopment Agency of the City of Poway, and any assignee of or
successor to its rights, powers and responsibilities.
2. [U06] The Particioant
The Participant is Environmental Development, Ltd.,
a California limited partnership, of which the general partner is
Planned Real Estate Investments, Inc. , a California corporation.
The principal office and mailing address of the Participant for the
purposes of this Agreement is 401 West "A" Street, Suite 1815, San
Diego, California 92101 Attn: Bruce E. Tabb.
3 . [U07] Chanae in Ownershio. Manaaement and
Control of the Particioant
The qualifications and identity of the Participant
are of particular concern to the City and the Agency. It is
because of those qualifications and identity that the Agency has
entered into this Agreement with the Participant. No voluntary or
involuntary successor in interest of the Participant shall acquire
any rights or powers under this Agreement except as expressly set
forth herein.
The Participant shall not assign all or any part of
this Agreement or any rights hereunder or add additional general
partners without the prior written approval of the Agency, which
consent shall not be unreasonably withheld. The Agency shall grant
an assignment to (1) a partnership which includes Participant as
general partner or (2) an assignee entity that is financially
capable of performing the duties and discharging the obligations it
is assuming and which expressly assumes the obligations of the
Participant pursuant to this Agreement in writing satisfactory to
the Agency. The Participant shall promptly notify the Agency in
writing of any and all changes whatsoever in the identity of the
persons in control of the Participant and the degree thereof.
This Section 107 shall not be deemed to prohibit the
addition of general or limited partners or shareholders without
further consent of the Agency so long as those partners or
shareholders holding interests as of the approval by the Agency of
this Agreement retain operational and managerial control and not
less than a fifty-one percent (51%) interest in profits and losses
of such partnership or corporation.
All of the terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
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II . [~200] DEVELOPMENT OF IMPROVEMENTS BY THE PARTICIPANT
A. [~201] Scope of Development
Subject only to the conditions precedent set forth in this
Agreement, the Participant shall at its expense construct or cause
to be constructed those particular public improvements
( "Participant Improvements" ) described on Attachment No. 3 within
the time periods set forth on Attachment No. 4. The term
"Participant Improvements" includes any improvements that are not
specifically described where their construction is necessary to
meet City standards in order to construct those Participant
Improvements which are described. The Participant shall construct
or cause to be constructed the Participant Improvements in
compliance with all the zoning, planning and design review
requirements and approval procedures of the City of Poway. The
term "Participant Improvements" does not include private
improvements to be constructed on the Site.
B. [~202] Cost of Development
1. [~203] Participant Cost
All costs for planning, designing and constructing
the Participant Improvements shall be borne exclusively by the
Participant. The Participant shall also bear all costs related to
discharging the duties of the Participant set forth in this
Agreement. The Participant shall be responsible for all fees
associated with development of the Participant Improvements
including, without limitation, school facilities fees and impact
fees unless otherwise set forth herein or deemed satisfied pursuant
to the Development Agreement between the City of poway and
Environmental Development, Ltd. , as amended.
t. The Participant assumes all risks associated with
soil and subsurface conditions on the Site and shall undertake at
its cost all investigation of such conditions as it deems
appropriate. If the soil conditions are not entirely suitable for
the use to which the Site will be put, then it is solely the
responsibility and obligation of the Participant to take such
action as may be necessary to place the Site in a condition
entirely suitable for such use and to commence and complete the
Participant Improvements described herein.
2. [~204] Aoencv Assistance
(a) [~205] Aoencv Assistance Procedure
In consideration for the Participant agreeing
to construct the Participant Improvements required as conditions of
approval of Revised Tentative Tract Map 89-13-R for the Site, the
Agency agrees to construct the following public improvements
( "Agency Improvements") ;
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(i) The Agency shall install half-width
street improvements, including curbs, gutters, and fire
hydrants, to Espola Road from the easterly boundary of
the Site to the westerly boundary of the Site.
(ii) The Agency shall underground all
utility transmission lines, including but not limited to
electrical, telephone, and cable, running east and west
along the frontage of the Site and all transmission
lines, including but not limited to electrical,
telephone, and cable, originating along the frontage of
the Site and running south across Espola Road and serving
residences south of Espola Road.
(iii) The Agency shall construct a public
street light system on Espola Road and the intersection of
Espola Road and Old Coach Road in conformance with City of
Poway standards.
(iv) The Agency shall design and install a
traffic signal at the intersection of Espola Road and Old
Coach Road.
(v) The Agency shall construct off-site public
sewer improvements as needed to maintain or attain City of
poway sewage disposal standards.
(b) [~206] Conditions Precedent To Aqencv and
Particioant's Obliqations To
Construct Particioant and Aqencv
Imorovements
The Agency's obligation to construct the Agency
Improvements and Participant's obligation to construct the
Participant Improvements are subject to satisfaction or waiver
{waiver must be by both Agency and Participant) of each of the
following conditions precedent:
(i) The City's and Participant's approval
of detailed plans and specifications for the Participant
Improvements for the Site.
(ii) The recordation of a final map for
the Site and the Participant having provided the City
with a subdivision improvement agreement in the form
customarily required by the City together with either (i)
subdivision bonds or (ii) a letter of credit customarily
required by the City to assure completion of the
Participant Improvements for the Site.
(iii) Neither party shall be in material
_. default of any of the outstanding provisions of the
Agreement or the Attachments incorporated thereto, or the
Development Agreement between the City and the Participant.
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3. [~207] Construction Schedule
The Participant shall commence and complete the
Participant Improvements by the respective times established
therefor in the Schedule of Performance which is attached hereto as
Attachment No. 4 and incorporated fully herein by this reference.
The Agency shall commence and complete the Agency
Improvements by September 31, 1997.
4. [~208] Indemnitv. Bodil v Inlurv and Propertv
Damaqe Insurance
The Participant shall defend, assume all responsi-
bility for and hold the Agency and the City, and their respective
officers, agents and employees, harmless from all claims or suits
for, and damages to, property and injuries to persons, including
accidental death (including attorneys fees and costs), which may be
caused by any of the Participant's activities under this Agreement,
if such activities were negligent and whether such activities or
performance thereof be by the Participant or anyone directly or
indirectly employed or contracted with by the Participant and
whether such damage shall accrue or be discovered before or after
termination of this Agreement. The Participant shall take out and
maintain until (i) the completion of the Participant Improvements
as determined by the Agency pursuant to Section 210 of this
Agreement (if an "occurrence" policy is obtained) or (ii) the
second anniversary of the completion of the Participant
Improvements (if a "claims made" policy is obtained) , a
comprehensive liability policy in the amount of One Million Dollars
($1,000,000.00) combined single limit policy, including contractual
liabili ty, as shall protect the Participant, the City and the
Agency from claims for such damages.
Insurance coverage furnished by the Participant
pursuant to this Section 208 shall conform to this Section 208 and
shall pertain to all activities on the Site and adjacent public
right-of-way surrounding the Site and all work, if any, on off-site
public improvements.
Participant shall furnish Agency a certificate of
insurance from the insurer evidencing compliance with this Section
208 and providing that the insurer shall not cancel or modify the
policy without thirty (30) days' written notice to Agency.
Participant shall give Agency prompt and timely notice of any claim
made or suit instituted. Agency, City and their officers,
employees and agents, shall also be named as additional insured in
any policies of Participant's contractors covering work under this
Agreement, and such policies shall comply with this paragraph.
Coverage need not be primary or contributing with any policy or
coverage maintained by or obtained by the Agency, and an appropri-
ate endorsement may so state. The policy need not contain a waiver
of subrogation.
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- Participant shall comply with all of the provisions
of the Worker's Compensation Insurance and Safety Acts of the State
of California, the applicable provisions of Divisions 4 and 5 of
the California Labor Code, and all amendments thereto, and all
similar State or Federal acts or laws applicable, and Participant
shall hold Agency and City harmless from any claims arising
thereunder. Participant shall furnish to Agency a certificate of
Worker's Compensation insurance providing that the insurer shall
not cancel or modify the policy without thirty (30) days' prior
written notice to Agency. In the alternative, Participant may show
proof of a certificate of consent to self-insure issued by the
Director of Industrial Relations according to California Labor code
Section 3800.
5. [~209] Riqhts of Access
Representatives of the Agency and the City shall
have the right of access to the Site, without charges or fees, at
normal construction hours during the period of construction for the
purposes of this Agreement including, but not limited to, the
inspection of the work being performed in the construction of the
Participant Improvements.
6. [~2l0] Local, State and Federal Laws
The Participant shall carry out the construction of
the Participant Improvements in conformity with all federal, state,
local and other applicable laws including, without limitation, the
provisions of the poway Municipal Code.
The Participant assumes full responsibility for and
shall comply with all provisions of the Subdivision Map Act and the
local subdivision ordinance applicable to the development or
financing of the Participant Improvements.
Before commencement of construction or development
of any buildings, structures or other improvements upon the Site,
the Participant shall, at its own expense, secure or cause to be
secured any and all permits which may be required by the City or
any other governmental agency affected by such construction,
development or work.
7. [~211] Antidiscrimination Durina Construction
Pursuant to Section 33435 of the California
Community Redevelopment Law, the Participant for itself and its
successors and assigns, agrees that in the rehabilitation and/or
construction of Participant Improvements on the Site or otherwise
provided for in this Agreement, the Participant will not
discriminate against any employee or applicant for employment
because of sex, marital status, race, color, religion, ancestry or
_ national origin.
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8. [~212] Taxes and Assessments
The Participant shall pay when due all real estate
taxes and assessments on the Site so long as the Participant
retains any interest therein. The Participant shall remove or have
removed any levy or attachment made on any of the Site or any part
thereof, or assure the satisfaction thereof within a reasonable
time but in any event prior to a sale thereunder.
9. [~213] Certificate of Comoletion
Promptly after the completion of the Participant
Improvements in conformity with this Agreement (as determined by
the Executive Director of the Agency) and upon the written request
of the Participant, the Agency shall furnish the Participant with
a Certificate of Completion, substantially in the form attached
hereto as Attachment No.6, which evidences and determines the
satisfactory completion of such construction and carries forward
those provisions and covenants specified in this Agreement, the
Redevelopment Plan and the California Community Redevelopment Law.
The issuance and recordation of the Certificate of Completion
(Attachment No.6) with respect to the Participant Improvements
shall not supersede, cancel, amend or limit the continued efficacy
of any obligations relating to or the maintenance of uses, payment
of monies or any other obligations except for the obligation to
complete construction of the Participant Improvements as of the
time of the issuance of such certificate.
If the Agency refuses or fails to furnish a
Certificate of Completion with respect to the Site substantially in
the form of Attachment No. 6 after written request from the
Participant, the Agency shall, within forty-five (45) days of the
written request, provide the Participant with a written statement
of the reasons the Agency refused or failed to furnish such
Certificate of Completion.
Upon issuance of a Certificate of Completion
(Attachment No.6) for the Participant Improvements, construction
of such Participant Improvements shall be deemed to have been
completed in conformity with this Agreement. The Certificate of
Completion (Attachment No.6) is not a notice of completion as
referred to in Se~tion 3093 of the California Civil Code.
10. [~214] [intentionally omitted]
11. [~215 through ~221] [intentionally omitted]
III. [~300] USE OF THE SITE
A. [~301] [intentionally omitted]
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_ B. [~302] Uses in Accordance with Redevelooment Plan:
Nondiscrimination
1. Participant agrees, for itself and on behalf of its
successors, its assigns and every successor in interest to the Site
or any part thereof, that during construction and thereafter the
uses of the Site will be consistent with the Redevelopment Plan.
However, changes in the Redevelopment Plan shall not by reason of
this covenant require changes to improvements made to the Site.
The Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status, age,
handicap, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall the Participant itself or any person claiming under or
through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessee or vendees of the Site. The foregoing covenants shall
run with the land.
The Participant shall refrain from restricting the
rental, sale or lease of the property on the basis of race, color,
creed, religion, sex, marital status, national origin or ancestry
of any person. All such deeds, leases or contracts shall contain
or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and
for himself or herself, his or her heirs, executors, administrators
and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessee or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and
for himself or herself, his or her heirs, executors, administrators
and assigns, and all persons claiming under or through him or her,
and this lease is made and accepted upon and subj ect to the
following conditions:
"There shall be no discrimination against or
- segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, ancestry or national
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origin in the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor shall the
lessee himself or herself, or any person claiming under or through
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, sublessee,
subtenants or vendees in the premises herein leased."
(c) In contracts: "There shall be no discrimina-
tion against or segregation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status,
ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor
shall the transferee himself or herself or any person claiming
under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessee or vendees of the premises."
The covenants established in this. Agreement shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of the Agency, its successors
and assigns, the City and any successor in interest to the Site,
together with any property acquired by the Participant pursuant to
this Agreement, or any part thereof. The covenants contained in
this Agreement shall remain in effect until the termination date of
the Redevelopment Plan. The covenants against racial discrimina-
tion shall remain in perpetuity.
C. [!l303] Effect of Violation of the Terms and Provi-
sions of this Aqreement After Comoletion of
Construction
The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of protecting
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running wi th the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether the Agency has been, remains or is an
owner of any land or interest therein in the Site or in the Project
Area. The Agency shall have the right, if the Agreement or
covenants are breached, to exercise all rights and remedies, and to
maintain any actions or suits at law or in equity or other proper
proceedings to enforce the curing of such breaches to which it or
any other beneficiaries of this Agreement and covenants may be
entitled.
c \envdev\OWNPARTS AGT 9 JUL 11 1995 ITEM 7 ....
16 of 43
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IV. [!i400] GENERAL PROVISIONS
A. [!i401] Notices. Demands and Communications Amonq the
Parties
Written notices, demands and communications between the
Agency and the Participant shall be sufficiently given if delivered
by hand (and a receipt therefor is obtained or is refused to be
gi ven) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of the
Agency and the Participant. Such written notices, demands and
communications may be sent in the same manner to such other
addresses as such party may from time to time designate by mail as
provided in this Section 401.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. [!i402] Conflicts of Interest
No member, official or employee of the Agency shall have
any personal interest, direct or indirect, in this Agreement, nor
shall any member, official or employee participate in any decision
relating to the Agreement which affects his personal interests or
the interests of any corporation, partnership or association in
which he is directly or indirectly interested. No member, official
or employee of the Agency shall be personally liable to the
Participant, or any successor in interest, in the event of any
default or breach by the Agency or the Participant, or for any
amount which may become due to the Participant or successor or on
any obligations under the terms of this Agreement.
The Participant warrants that it has not paid or given,
and will not payor give, any third party any money or other
consideration for obtaining this Agreement.
C. [!i403] Enforced Delav: Extension of Times of Perfor-
mance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
defaul t, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war, insurrection, strikes, lockouts, riots, floods, earthquakes,
fires, casualties, acts of God, acts of the public enemy, epidem-
ics, quarantine restrictions, freight embargoes, lack of transpor-
tation, governmental restrictions or priority, litigation,
unusually severe weather, acts or omissions of another party, acts
or failures to act of the City of Poway or any other public or
governmental agency or entity (other than the acts or failures to
act of the Agency which shall not excuse performance by the
Agency), or any other causes beyond the control or without the
c "envd~v\OWNPAR-:'S. AGT 10
JUL 11 1995 ITEM 7 .~
17 of 43
fault of the party claiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of the
enforced delay and shall commence to run from the time of the
commencement of the cause. The party claiming that such cause
exists shall send notice of the extension to the other party within
thirty (30) days of the commencement of the cause. Times of
performance under this Agreement may also be extended in writing by
the mutual agreement of Agency and Participant.
Participant is not entitled pursuant to this Section 403
to an extension of time to perform because of past, present or
future difficulty in obtaining suitable temporary or permanent
financing for the acquisition or development of the Site.
D. [~404] Insoection of Books and Records
The Agency has the right at all reasonable times to
inspect the books and records of the Participant pertaining to the
Site as pertinent to the purposes of this Agreement. The Partici-
pant has the right at all reasonable times to inspect the public
records of the Agency pertaining to the Site as pertinent to the
purposes of the Agreement.
E. [~405] Estoooel Certificates
Either party shall, within thirty (30) days after written
request from the other party, provide a signed written statement
setting forth and describing any known defaults by the other party
or stating that the responding party knows of no such defaults.
The statement shall be in recordable form if the requesting party
so specifies. A party shall only make a request for an estoppel
statement if requested to do so by a lender or other third party or
if reasonable grounds exist to question the existence of a default.
V. [~500] DEFAULTS AND REMEDIES
A. [~501] Defaults - General
Subject to the extensions of time set forth in Section
403, failure or delay by any party to perform any term or provision
of this Agreement after the conveyance constitutes a default under
this Agreement. The party who so fails or delays must immediately
commence to cure, correct or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
inj ured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not consti-
tute a waiver of any default, nor shall it change the time of
default.
c,\envdev\OWNPARTSAG7 11 JUL 111995 ITEM 7 .
18 of 43
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._ B. Ui502] Leoal Actions
1. [~503] Institution of Leoal Actions
In addition to any other rights or remedies and
subject to the restrictions in section 501, either the Agency or
the Participant may institute legal action within the applicable
statute of limitations to cure, correct or remedy any default, to
recover damages for any default, or to obtain any other remedy
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San
Diego, State of California, in an appropriate municipal court in
that county, or in the Federal District Court in the Southern
District of California.
2. [!l504] Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3. [!l505] Acceptance of Service of Process
In the event that any legal action is commenced by
any party against the Agency, service of process on the Agency
shall be made by personal service upon the Director or in such
other manner as may be provided by law.
In the event that any legal action is commenced by
any party against any of the Participant, service of process on
such party shall be made by personal service upon a corporate
officer or partner of such party and shall be valid whether made
within or without the State of California or in such other manner
as may be provided by law; provided that service upon or notice to
any of the Participant shall conclusively be deemed to constitute
service upon and notice to all Participant.
C. [!l506] Riqhts and Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D. [!l507] Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its rights and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive
any party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
c \.nvd.v\OWNPAROS AGO 12 JUL 11 1995 ITEM 7
19 of 43
E. [~508] Remedies and Riqhts of Termination After
Construction of Aqency Improvements
1. [~509] Damaqes
If, after construction of the Agency Improvements by
the Agency, any party defaults with regard to any of the provisions
of this Agreement, the non-defaulting party shall serve written
notice of such default upon all other parties, provided that notice
upon any related person shall be conclusively deemed to effect
notice upon the Participant. If the default is not cured or
commenced to be cured by the defaulting party within thirty (30)
days after service of the notice of default (or within such other
period as is set forth herein), the defaulting party shall be
liable to each other party for any damages caused by such default
(except that Section 503 shall be enforceable according to its
terms) .
2. [~510] Specific Performance
If, after the construction of the Agency
Improvements by the Agency, any party defaults under any of the
provisions of this Agreement, the non-defaulting party shall serve
written notice of such default upon the defaulting party. If the
default is not cured by the defaulting party within thirty (30)
days of service of the notice of default, or such other time limit
as may be set forth herein with respect to such default, the
non-defaulting party, at its option, may thereafter (but not
before) commence an action for specific performance of terms of
this Agreement.
3. [~511] Termination by the Aqency
In the event that prior to the construction of the
Agency Improvements by the Agency:
(a) The Participant (or any successor in interest)
assigns or attempts to assign the Agreement or any rights therein
or in the Site in violation of this Agreement; or
(b) There is a change in the ownership of the
Participant contrary to the provisions of Section 107 hereof; or
(c) The Participant does not submit certificates of
insurance, construction plans, drawings and related documents as
required by this Agreement, in the manner and by the dates
respectively provided in this Agreement therefor, and any such
default or failure shall not be cured within forty-five (45) days
after the date of written demand therefor by the Agency; or
(d) The Participant fails to satisfy the Conditions
Precedent to the construction of the Agency Improvements by the
time established therefor in this Agreement then this Agreement and
any rights of the Participant or any assignee or transferee in the
::: \envdev\OWNPARTS AGT 13
JUL 11 1995 ITEM 7 . ,..
20 of 43
- -
-- Agreement, or arising therefrom with respect to the Agency shall,
at the option of the Agency, be terminated by the Agency, thereupon
neither the Agency nor the Participant shall have any further
rights against the other under this Agreement.
F. [!lS12] Remedies of the Parties for Default After
Construction of Aaencv Imorovements and Prior
to Construction of Particioant Imorovements
1. [!lS13] Termination and Damaaes
Prior to the recordation of a Certificate of
Completion, if the Participant or the Agency defaults with regard
to any of the provisions of this Agreement, the non-defaulting
party shall serve written notice of such default upon the default-
ing party. If the default is not cured by the defaulting party
within thirty (30) days after service of the notice of default, the
defaulting party shall be liable to the other party for any damages
caused by such default.
2. [!lS14] Action for Soecific Performance
If the Participant or the Agency defaults under any
of the provisions of this Agreement after the construction of the
Agency Improvements and prior to the recordation of a Certificate
of Completion for the Participant Improvements, the non-defaulting
party shall serve written notice of such default upon the
defaulting party. If the default is not commenced to be cured by
the defaulting party within thirty (30) days after service of the
notice of default, the non-defaulting party, at its option, may
institute an action for specific performance of the terms of this
Agreement.
G. [!lSlS] Foreclosure on Site [intentionally omitted]
VI. [!l600] SPECIAL PROVISIONS
A. [!l601] Real Estate Commissions
The Participant represents to the Agency that it has not
engaged the services of any finder or broker and that it is not
liable for any real estate commissions, broker's fees or finder's
fees which may accrue by means of the acquisition of the Site, and
agrees to hold harmless the Agency from such commissions or fees as
are alleged to be due from the party making such representations.
B. [!l602] Successors In Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
_ assigns of the Participant.
c:\@nvdev\OWNPAR':'S.AG7 14
JUL 11 1995 ITEM 7 .
21 of 43
All of the terms, covenants, conditions and restrictions
of this Agreement which do not terminate upon the issuance by the
Agency of the Certificate of Completion for the entire Site shall
be deemed to be, and shall, constitute terms, covenants, conditions
and restrictions running with the land; provided, however, in no
event will any of the provisions of this Agreement be binding upon
individual lot purchasers.
C. [~603] Amendments to this Owner particioation Aoree-
ment
The Participant and Agency agree to mutually consider
reasonable requests for amendments to this Agreement which may be
made by lending institutions, or Agency's counselor financial
consultants, provided said requests are consistent with this
Agreement and would not substantially alter the basic business
terms included herein.
D. [~604] Agency and Participant each affirm to one
another that neither party knows of any reason why this Agreement
would not be enforceable according to its terms.
E. [~605] Participant agrees to indemnify and defend the
Agency for any claims which may be asserted against the Agency, by
reason of the actions of Participant or its agents or employees,
which claims arise under the Comprehensive Environmental Response
and Compensation And Liability Act, as amended, (42 U.S.C. ~9601,
et seq.) and/or any related state law which claims are based on
contamination on the portion of the Site owned by Participant,
including, but not limited to land transferred to Participant by
the Agency.
VII. [~700] ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in five (5) duplicate
originals, each of which is deemed to be an original. This
Agreement includes pages 1 through 21 and Attachments 1 through 6,
which constitutes the entire understanding and agreement of the
parties.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotia-
tions or previous agreements between the parties or their predeces-
sors in interest with respect to all or any part of the subject
matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and the
Participant, and all amendments hereto must be in writing by the
appropriate authorities of the Agency and the Participant.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of an
bind the party he purports to represent.
,envdev.JWNP'"RTS AGT 15 JUL 11 1995 ITEM 7 . 'It
22 of 43
- -
.. In any circumstance where under this Agreement either
party is required to approve or disapprove any matter, approval
shall not be unreasonably withheld.
VIII . [!laDD] TIME FOR ACCEPTANCE OF OWNER PARTICIPATION
AGREEMENT BY AGENCY
This Agreement, when executed by the Participant and
delivered to the Agency, must be authorized, executed and delivered
by the Agency on or before ten (10) days after signing and delivery
of this Agreement by Participant or this Agreement shall be void,
except to the extent that the Participant shall consent in writing
to a further extension of time for the authorization, execution and
delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency.
-
c:\envdev\OWNPARTS.AGT 16 JUL 11 1995 ITEM
7 .".
23 of 43
IN WITNESS WHEREOF, the Agency and the Participant have signed
this Agreement on the respective dates set forth below.
July _, 1995 POWAY REDEVELOPMENT AGENCY, a public
body, corporate and politic
By:
Chairman
"Agency"
ATTEST:
Secretary
APPROVED AS TO FORM:
Stephen M. Eckis,
City Attorney
July _, 1995 ENVIRONMENTAL DEVELOPMENT, LTD. , a
California limited partnership
By: Planned Real Estate
Investments, Inc. t a
California corporation,
general part~
By: ~~ J-L
Bruce E. Tabb, President
"Participant"
c,\e::.vdev\OWNPARTS.AGT 17
JUL 11 1995 ITEM 7 ~..
24 of 43
- -
)
STATEOF;--~ }S.S.
COUNTY OF '<...}
- On ~~.Al.. &-;l., ICJ"7S-,beforem/-~ ft...,aNotaryPUbIiCinandfor
said Coun and State, personally appeared .
personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/shellhey executed the same in hislherllheir authorized
capacityOes), and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official saal. Elizabeth N. Lee ~
Comm. '1~
L~j)1. =r~ Nf'f PU&IC .
_IlIIGOCOUNTY 0
Signature U _.---"....
(This.... far offtciIJ _ _1
)
STATE OF }S.S.
COUNTY OF }
On , before me, , a Notary Public in and for
said County and State, personally appeared
personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/shellhey executed the same in hislherllheir authorized
capacityOes). and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official sael.
Signature
(This .... far official notarilll _I)
}
STATE OF )S.S.
COUNTY OF }
On , before me, , a Notary Public in and for
said County and State, personally appeared
personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s) isIare subscribed to the within
instrument and acknowledged to me that helshe/they executed the same in hislherllheir authorized
capacityOes), and that by hislherllheir signature(s) on the instrument the person(s). or the entity upon behalf
of which the person(s) acted. executed the instrument.
WITNESS my hand and official saal.
-
Signature
(This area for official notarial seal)
25 of 43 JUL 11 1995 ITEM 7 i1I
ATTACH!o!ENT NO. 1
CIT',' OF POWAY 1264 Site Map-Parcel -
(Parcel AI 0:
Parcel Map 92-C~
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ADDRESS: 5620 nu~ ROAD <.D
CITY: !AH'DmoQ CA 9'2110
PHONE NO..: I'll'" 191~ ~
MAP PREPARm BY, CHllIS D. ClR&lELE ...- I
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JUL 11 1995 ITEM 7 ."
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1'.5"01 '11"W IOS.OO' 1I....4l'51"W ICl:l.OO'
1'00"01 '1I'E 301.00' NOO-l,,009"E 301.00'
1<77"01 '11 "W 1<&1.21. 1l76.4l'11"W 1000.'"
1101.01'01 "W 2S6.OS' 1I01"11'03"W 2S6.0S'
. H20.51'Soc"E 313.12' 1121.10'53"E 313.12'
N02"1.'I'"E 331..16' 1I02"'-17"E 331..16'
6 NJ'.II....E 1310.03' 53'''I'''''W 1310.'" -0" 25'47, 4 "tfi) "I.
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/11."02'01 "W 51.00' -0.25'44.442" <1J "50-~Z-I"
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- NJ7"26'05"W 355.93' 1lJ7.12'13"W 355.'" ~
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I<12."'SO"W 10.&0.09'
.. 117$.I<'3O"E 243.i9' AI f~O.!J!)~ ~ &
:01 13-13"'20-W II)<.U' e~3VXL~~ ~ ~
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< 1'62.'\"36" l.:a.,," b / \ ~a N. T. 5,
H27"11'1A "W 5.00'
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< H5t-4T'33-W 215.00' / \ ~ 13, FD Z" /P t BRASS CAP
< 1169.57'46'1 512..51' / \ ~~ '5.0. CO eAIG. DER"
NSO.12'53 ow 211.61'
5 1'5'.11'01.1 33'.'" a' ~ .Iv / A6 i AI f~54544. ZS4
5 N"%I.36"11-W '2.5.71' ,~~ it ,~/ ~ e~2238Z.~5
$ /I72.12'17"W 361.11" o.le - ~/ /.t CF.O.~3/~
3 1109.10'10'1 60.'1' .... ~ 0 / ~~.
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5 1'51 "OI'J3"W 2S6.62' ~{ $~.<i' ''''.'Pl&8RASSCAP
/l52.Cl:l'51.1 2&5..5' ~ oLS 1344"
1IS4.53"ll.W 101.00' ~. & ~ v ~ PER PM (7433
N53.10"19.E 375.n-
A188.~~" W
IZ!)(. otJ' (GelD)
.- Tie TO CALlFOR).//1Js
SHEET 4 OF !5 CXJRDINATES NAD
. .
SA 94-08
JUL 11 1995 ITEM 7 1
29 of 43
.. .
l?~g
fAJlft&V'P JIIO"I'!!!.
'11m I'QUDWIIOG IASDGl<13 AFFfCT nil! 1'lIOrart'Y IVT AU Nor PLanAIU.
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.. Al( !ASEWE!'tT' Dif 'AYOa OP ....~,......N' 1'm.EV1S1OH AIID CQWWUlGCA1JCH CO.,... prea CA&Z TV. PO. PII.Z)IQ. .mm.1EC.
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'. A1f ~ pea CABU T,V. SYST!),( AJlft) INCOOl"TALPUaPOSIS IIf FAVOR OF &uwwrC/--N'1'B.SYlSION AND CQWWUICICA1tOIC
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(0 CJl.2D" WIDE P"YT. JU)." t1'TU. EASE.. PO oocs. 101~'l.REC. 61:21/66. IOI2C.. JtEC. 6121166.101151&::. IOIIM7.161195as::. tnI8
... CUt') JU!C. .5117/61
0 CIL" " 12' "'tIlE SDGU WE. PQ DOC ""29627 RfC. ann9
~0 \VLY UN"E OF " SCGlcE EASE. II: 1117 'PCi 122. REC. 911I')0
0 12S'WlDEAQUEDOCTEASE. II: 1""1 REC. 1112114SBK 33I9'426REC. I1n1149BX 5611J2LS REC. 411""
0 CIl.... WIDE SDGaE EASE. PEa DOC. S7011 REC. "/3161
0 CIL 30' WIDE SDGU EASE. PQ u: 701. PO 12. lEe. <ltSlU
0 O'L 12' Wl'DE S~ EASE. PER _ 1117. PCi 122. Jt.EC. '11I)O
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@ CIl. W PVT. ItD A tmt. WI. uc. Sil,m AS PER. IXX. 7'2-126163
@ CIL" " 12' SDGAE EASE I'D. DOC ".lI""l lEe IIlUn
0 C"L 12" wmE S:X;U EASE. PD ooc. 1""11 REC. 1111165
@ C1L:r,. ,,. POWAT wtnil WA1'D 0lST. EASE. PEI.:xx. 76-IGHI6.uc.....",
@ ClLLS. n:2.PD._ 'TZIPO Jl:ZUC I.So'I. POR'nONVACA'rEI) PElOOC. %509ZS.UC 10n.tf7I.CBi'AlJrfCOHSTRUC"TION" U'11UTT
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@ CIL 20' wtDE mYA1E lOAD EASE. PEl. OOC. 17'9C'2'91tEC. 1011'"
-
CUIlVB I DaTA (ltSCORD DATA PER P.w.. 174'"
MDRlS Lm<anl DELTA RAOllIS U><CT1l
~ 1'....'1. 1000.00" ,...". 19.0..". UXlO,OO. ..U)'
21""1$. 1000... "'.21' 11.19". lC1OC1,oo' "'~l'
11."". 1000.ocr m.n. II""". IGOO.ocr 121.'"
I M."'~ 1400.00- to1.13' ".,.."'1t. 1400.00" tOl.lS'
...,no. 100CI.I:10- IIUl1'
00.51.57'" :126.... s....
OZ"S.'S2. JOOD.CIO" ,...,.
7J .".n. 174." 211.."
8 ".Cl"U. Dl.Dr 17.12'
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.,....,14. "'.Dr II.....
a )0"29'09. 121I.Dr "".17'
D 22."'11. IOQQ.OO' '''.112'
SHeer saF5
SA 94-08
30 of 43 JUl 11 1995 ITEM 7 i.
- ATTACHMENT NO, 2 -
Legal Descr~pt~on for 1259
Parcel 1 (Parcel A)
- of Parcel Map 92-04
PARCEL A
Those portions of Parcels 1, 2 and Remainder Parcel of Parcel Map No. 17433,
recorded October 14, 1994 as File No. 1994-605766 Page 17433, in the City of
Poway, County of San Diego, State of California, in the Office of the County Recorder
of said County, being more particularly described as follows:
Beginning at the Easterly terminus of that certain line designated as "North 88 Q46'25"
West 81.25 feet" on the Westerly line of said Parcel 1; thence leaving said Westerly
line North 53010'29" East 375.77 feet; thence South 54053'25" East 108.00 feet;
thence North 52005'58" East 285.45 feet; thence South 51008'33" East 256.62
feet; thence South 17047'33" West 276.00 feet; thence South 09010'20" West
80.91 feet; thence South 72 012'27" East 361.87 feet; thence South 28036'28" East
425.71 feet; thence South 59018'01" West 334.94 feet; thence North 50012'53"
West 211.68 feet; thence South 69057'46" West 512.51 feet; thence North
51047'33" West 215.00 feet; thence South 38012'27" West 282.95 feet to the
beginning of a tangent 1271.00 foot radius curve concave Northwesterly; thence
Southwesterly along the arc of said curve through a central angle of 24029'08" a
distance of 543.17 feet; thence South 27018'24" East 5.00 feet; thence South
62041 '36" West 151.66 feet to the beginning of a tangent 974.00 foot radius curve
concave Southeasterly; thence Southwesterly along the arc of said curve through a
central angle of 07000'14" a distance of 119.06 feet; thence South 55041 '21" West
232.43 feet to the beginning of a tangent 174.00 foot radius curve concave
Southeasterly; thence Southwesterly along the arc of said curve through a central
angle of 68054' 41" a distance of 209.28 feet; thence South 13013'20" East 104.88
feet to the beginning of a non-tangent 520.00 foot radius curve concave Northerly,
to which a radial line bears South 05004'17" East; thence Easterly along the arc of
said curve through a central angle of 09041'13" a distance of 87.92 feet; thence
North 75014'30" East 243.79 feet; thence South 12047'50" East 1040.09 feet;
thence South 06009'55" West 1351.76 feet; thence South 57057' 11" West 155.00
feet; thence South 32002' 49" East 92.00 feet to the beginning of a tangent 174,00
foot radius curve coneave Northeasterly; thence Southeasterly along the arc of said
curve through a central angle of 71 059' 5 2" a distance of 218.65 feet; thence North
75057'19" East 163.25 feet; thence South 14002' 41" East 52.00 feet; thence South
75057' 19" West 163.25 feet to the beginning of a tangent 226.00 foot radius curve
concave Northwesterly; thence Southwesterly along the arc of said curve through a
central angle of 00058'57" a distance of 3.88 feet to the Easterly line of said Parcel
2 being the beginning of a non-tangent 1000.00 foot radius curve concave
Southeasterly, to which a radial line bears North 61031'40" West; thence
Southwesterly along the arc of said curve through a central angle of 02054'52" a
distance of 50.87 feet; thence continuing along the boundary lines of said Parcels 1
Page 1
JUlll 1995 ITEM 7 .,.
31 of 43
1260
and 2 the following courses: North 64029'41" West 234.90 feet (North 64014'33"
West 234.83 feet Record); thence South 25029'31" West 241.51 feet (South
25045'01" West 241.69 feet Record); thence South 37026'05" East 355.93 feet
(South 37012'13" East 355.94 feet Record); thence South 05040'02" West 71.98
feet (South 05054'33" West 71.88 feet Record); thence North 82054'02" West
249.89 feet(North 82040'29" West 249.91 feet Record); thence North 89011 '24"
West 273.82 feet (North 88058'04" West 273.30 feet Record); thence North
89009'59" West 1 277.18 feet (North 88056'35" West 1277.25 feet Record); thence
North 00016'47- East 1299.57 feet (North 00030'30" East 1299.58 feet Record);
thence along the Westerly line of said Parcel 1 the following courses: South
88033'36- East 1291.17 feet (North 88020'06" West 1291.04 feet Record); thence
North 02020'01" East 1306.65 feet (North 02033'38" East 1306.44 feet Record);
thence North 88045'5r West 1305.00 feet (North 88031'58" West 1305.00 feet
Record); thence North 01 043'19" East 1301.76 feet (North 01057'00" East 1301.62
feet Record); thence South 88057'30" East 1319.00 feet (North 88044'18" West
1318.97 feet Record); thence North 87045'30" East 548.79 feet (North 87059'15-
East 548.73 feet Record); thence North 23003'32" East 681.01 feet (North
23016'34" East 681.09 feet Record); thence North 00053'19" East 222.36 feet
(North 01009'29" East 222.38 feet Record); thence South 88059'45" East 76.29
feet (North 88041'05" West 76.31 feet Record); thence North 03008'35" East
130.13 feet (North 03019'52" East 130.21 feet Record) to the Point of Beginning.
.
-
Page 2
JUL 11 1995 ITEM 7 '.
32 of 43
- -
1263
-
PARCEL C
That portion of "Remainder Parcel" as shown in the most Southeasterly portion of
Parcel Map No.1 7433 recorded October 14, 1994 as File No. 1994-605766, Page
17433, in the City of Poway, County of San Diego, State of California in the Office
of the County Recorder of said County, being more particularly described as follows:
Beginning at the Northerly terminus of that certain line designated as "North
03039'30" East, 27.65 feet" on the most Northeasterly line of said "Remainder
Parcel"; thence along said line South 03030'12" West 27.80 feet (North 03039'30"
East 27.65 feet Record) to an angle point on the Easterly line of said "Remainder
Parcel"; thence continuing along said Easterly line South 00027'14" West 1412.33
feet (North 00041'06" East 1412.46 feet Record) to the Southeast corner of said
"Remainder Parcel"; thence along the Southerly line of said "Remainder Parcel" North
82054'02" West 777.46 feet (North 82040'29" West 777.42 feet Record) to the
Southwest corner of said "Remainder Parcel"; thence along the Westerly line of said
"Remainder Parcel" North 05040'02" East 139.11 feet (North 05054'33" East
Record) to the beginning of a tangent 1000.00 foot radius curve concave
Southeasterly; thence continuing along said Westerly line Northeasterly along said
curve through a central angle of 22048'18" an arc distance of 398.02 feet to the
beginning of a non-tangent 226.00 foot radius curve concave Northerly to which a
radial line bears South 13003'44" East; thence leaving said Westerly line Easterly
along said 226.00 foot radius curve through a central angle of 00058'57" an arc
distance of 3.88 feet; thence North 75057'19" East 163.25 feet; thence North
14002'41" West 52.00 feet; thence South 75057'19" West 115.86 feet; to the
beginning of a non-tangent 1000.00 foot radius curve concave Southeasterly being
the Westerly line of said "Remainder Parcel" to which a radial line bears North
57020'14" West; thence Northeasterly along said curve through a central angle of
06039'29" an arc distance of 116.20 feet; thence continuing along said Westerly line
North 39018'48" East 866.89 feet (North 39031'46" East 867,29 feet Record) to
the Point of Beginning.
-
Ck j) (' ~mdt
Chris D. Ciremele L.S. 5267
1-24-95
Page 3
33 of 43 Jull1 1995 ITEM 7 ...
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically delineated as Parcel 1 on City of poway
Parcel Map No. 92 - 04 (Attachment No. 1) and the Legal Description
(Attachment No. 2) pursuant to Section 103 of this Agreement.
II . DEVELOPMENT
The Participant shall be permitted to develop the Site as a
residential community in accordance with City of poway Tentative
Tract Maps 89-13 and 89-13-R (collectively "TTM") approved by the
City of Poway.
The Participant shall complete all of the improvements. set forth in
this Scope of Development (Attachment No.3). All of the public
improvements to be provided by the Participant which are required
in connection with development of the Site pursuant to the
Subdivision Improvement Agreement to be entered into between
Participant and the City for the Site shall constitute the
"Participant Improvements. " All of the Participant Improvements
shall conform in design, configuration and appearance to the City's
standard development requirements.
The Participant shall commence and complete the Participant
Improvements by the respective time frames established therefor in
the Schedule of Performance. (Attachment No. 4)
III . PUBLIC IMPROVEMENTS AND UTILITIES
Subject to the provisions concerning agency assistance set out in
this Agreement, the Participant shall, at its own cost and
expenses, provide or cause to be provided the following Participant
Improvements within the time frames set forth in the Schedule of
Performance. (Attachment No. 4)
A) Roadways
All of the following roadway construction and improvements
required as a portion of this project shall include the
appropriate streets, catch-basins, curbs, gutters, drive and
curb cuts, street lighting, signs, fire hydrants, and
appropriate street landscaping.
l. Old Coach Road - Old Coach Road shall be dedicated and
constructed as a two-lane road from the intersection of
Espola Road north to the Site.
B) Water and Sewer
l. Public Water System - Installation of a public water
system within the Site.
c,\envdev\OWNPARTS.AGT 3
JUL 11 1995 ITEII 7 ..
34 of 43
- -
2 . Public Sewer System - Installation of a public sewer
~-
system within the Site.
3. Reclaimed Water Line - Installation of a trunk reclaimed
water line in or along streets within the Site necessary
to irrigate common area slopes and nonresidential
landscaping.
IV. DEMOLITION AND SOILS
The Participant assumes all responsibility for surface and
subsurface conditions at the Site, and the suitability of the Site
for the Participant Improvements thereon. If the surface and
subsurface conditions are not entirely suitable for such
development, the Participant shall, at its cost, take all actions
necessary to render the Site entirely suitable for such
development. The Participant shall undertake at its cost all
demolition required in connection with the development of the
Participant Improvements.
-
c,\envdev\OWNPARTS.AGT 4 JUL 11 1995 ITEM 7 't'f
35 of 43
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
I. CONSTRUCTION DOCUMENTS
1. Submission of Construction Drawinqs and Final Man.
Participant shall on or before September 1, 1996 submit
to the Agency and the City a Final Map for the Site and
complete construction (working) drawings, including
Improvement Plans, Grading Plans, and Landscaping Plans.
2 . Initial Review of Construction Drawinqs and Final Man.
The Agency shall review the Final Map, Improvement Plans,
Grading Plans and Landscaping Plans and transmit comments
to Participant within 45 days after initial submittal and
will use its reasonable efforts to cause the City to do
likewise.
3. Revisions. Participant shall prepare revised Final Map,
Improvement Plans, Grading Plans, and Landscaping Plans
as necessary, and re-submit them to Agency and the City
for continued review wi thin 30 days after receipt of
Agency's or City's comments. The Agency shall review the
revisions submitted by the Participant within four weeks
(and will use its reasonable efforts to cause the City to
do likewise) provided that the Participant has adequately
addressed the City's or Agency's comments. The Agency
and the City shall have the right to make such comments
and request revisions on more than one occasion.
4. Final Review. The Agency shall approve the revisions
submitted by Participant, provided the Agency's comments
have been accommodated, within two weeks after re-
submittal by Participant. The Agency will use its
reasonable efforts to cause the City to do likewise.
5. Securitv and Subdivision Imnrovement Aareement. Once
Agency and City have approved Final Map, Improvement
Plans, Grading Plans and Landscaping Plans and Partici-
pant has completed all conditions required to obtain the
Final Map to the satisfaction of the City, the City will
be notified by Agency so that a Council meeting can be
scheduled. A Subdivision Improvement Agreement will be
entered into between City and Participant and Participant
will post all required security with the City.
6 . Delav To Extend Period of Construction. Any unreasonable
delay by the Agency or the City in their review and
approval of the Final Map, Improvement Plans, Grading
Plans or Landscaping Plans shall extend by the number of
days of such delay the period by which the Participant
Improvements must be completed pursuant to II below.
c:\envdev\OWNPARTS,AG7 1
JUL 11 1995 ITEM 7
36 of 43
- -
II . CONSTRUCTION PHASE
-
7. Commencement of Construct ion. Participant shall commence
construction of the Participant Improvements (See
Attachment No. 3 ) after the bonds have been posted by
Participant and the City has approved the Subdivision
Improvement Agreement, or the issuance of a grading
permit, whichever occurs first.
8. Comoletion of Construction. Participant shall complete
construction of all the Participant Improvements located
on the Site by September 1, 1998. Participant's
obligation to construct and complete the Participant
Improvements is subject to the Agency or City obtaining
all necessary easements and any delay in the obtaining of
such easements shall extend such time limit if such delay
resulted in delays in road construction.
III. GENERAL CONDITIONS
9. Submittal of the construction drawings for the
Participant Improvements, more fully described in
Attachment No. 3, need not occur concurrently.
10. Upon mutual written consent by both Participant and
Agency, this Schedule of Performance may be modified.
11. Upon the execution of the Agreement by the Participant
and the Agency, the Agency shall cause the Agreement to
be recorded. Upon recording of the Agreement, the Agency
shall deliver one (1) copy thereof to the Participant no
later than thirty (30) days after the date of recording.
-
c:\envdev\OWNPARTS.AGT 2 JUL 11 1995 ITEM 7 ..""...i
37 of 43
ATTACHMENT NO. S
(intentionally omitted)
c,\envdev\OWNPARTS.AGT 1 JUL 11 1995 ITEM 7 11
38 of 43
- -
ATTACHMENT NO. 6
-- CERTIFICATE OF COMPLETION
(to be attached)
-
--
c:\envdev\OWNPARTS.AGT 1 JUlll1995 ITEII 7 ..
39 of 43
RESOLUTION NO. R-
A RESOLUTION OF THE POWAY REDEVELOPMENT AGENCY
OF THE CITY OF POWAY, CALIFORNIA, APPROVING AN OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN THE AGENCY AND ENVIRONMENTAL DEVELOPMENT, LTD.
DETERMINING THAT THE CONSTRUCTION AND ACQUISITION OF CERTAIN PUBLIC
IMPROVEMENTS ON OR ADJACENT TO THE SITE IS OF BENEFIT TO THE PAGUAY
REDEVELOPMENT PROJECT AND THE IMMEDIATE NEIGHBORHOOD IN WHICH THE PROJECT IS
LOCATED; DETERMINING THAT THERE ARE NO OTHER REASONABLE MEANS OF FINANCING
SAID IMPROVEMENTS; AND AUTHORIZING THE EXECUTION AND DELIVERY OF SAID
OWNER PARTICIPATION AGREEMENT
WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to carry
out the redevelopment of the Paguay Redevelopment Project Area ("Project Area")
and;
WHEREAS, the Redevelopment Plan for the Project area authorizes and directs
the Agency to pay all or part of the cost of the acquisition of certain public
improvements; and
WHEREAS, the Agency desires to enter into an Owner Participation Agreement
("OPA") with Environmental Development, Ltd. ("Participant"), substantially in
the form presented to the Agency at the meeting at which this resolution was
adopted; and
WHEREAS, pursuant to the OPA, the Agency is required to provide financial
support toward the construction of those certain public improvements referenced
in the OPA, particularly Section 205; and
WHEREAS, the "Site" (as defined in the OPAl and the immediate adjacent area
is deficient in respect to infrastructure to such an extent that it is not
finanCially feasible for the necessary improvements to be provided either by
private enterprise acting alone or by means of assessment district without direct
Agency contribution toward the efforts of such a district; and
WHEREAS, California Health and Safety Code Section 33445 provides that a
redevelopment agency may, with the consent of the legislative body, pay all or
part of the value of publ ic buildings, facil ities, structures or other
improvements upon a finding that such public improvements are of benefit to the
project area or the immediate neighborhood in which the project is located and
that there are no other reasonable means of financing such publiC improvements
available to the community.
NOW, THEREFORE, THE POWA Y REDEVELOPMENT AGENCY DOES HEREBY RESOLVE AS
FOLLOWS:
Section 1: The Agency hereby approves the form of the OPA wh i ch the
Participant presented to the Agency at the meeting at which this resolution was
adopted, and hereby authori zes the Cha i rman and Secretary of the Agency to
execute said OPA and any and all documents and instruments required in order to
consummate the improvement transactions contemplated by the OPA on behalf of the
Agency.
Section 2: The Agency hereby determines that the acquisition, construction
and installation of the Public Improvements is of benefit to the Project Area and
the surrounding neighborhood in which the project is located.
JUL 11 1995 ITEM 7
40 of 43 Attachment 2
- -
Resolution No. R-95-
Page 2
Section 3: The Agency hereby determines that it is appropriate to cause
the construction and installation of the public improvements, that it is
appropriate to acquire the publ ic improvements, and that there are no other
reasonable means of financing the public improvements.
Section 4. This resolution shall become effective upon the adoption of a
resolution by the City Counc il of the City of Poway, finding that the
construction and acquisition of the public improvements by the Agency is of
benefit to the Project Area and the immediate neighborhood in which the project
is located, and that there are no other reasonable means of financing the public
improvements.
PASSED, ADOPTED AND APPROVED by the Redevelopment Agency of the City of
Poway, California at a regular meeting thereof this 11th day of July, 1995.
Don Hig9inson, Chairman
ATTEST:
--
Marjorie K. Wahlsten, Secretary
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
I, Marjorie K. Wahlsten, Secretary of the Poway Redevelopment Agency, do
hereby certify that the foregoin9 Resolution No. R 95- was duly adopted
by the Poway Redevelopment Agency at a meeting of said Agency on the 11th day of
July, 1995, and that it was so adopted by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
MarJorie K. Wahlsten
Secretary
-
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41 of 43 JUL 11 1995 ITEM 7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA
APPROVING AN OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE
POWAY REDEVELOPMENT AGENCY AND ENVIRONMENTAL DEVELOPMENT, LTD.
DETERMINING THAT THE CONSTRUCTION AND ACQUISITION OF CERTAIN PUBLIC
IMPROVEMENTS ON OR ADJACENT TO THE SITE IS OF BENEFIT TO THE PAGUAY
REDEVELOPMENT PROJECT AND THE IMMEDIATE NEIGHBORHOOD IN WHICH THE PROJECT
IS LOCATED; DETERMINING THAT THERE ARE NO OTHER REASONABLE MEANS OF FINANCING
SAID IMPROVEMENTS; AND AUTHORIZING THE EXECUTION AND DELIVERY
OF SAID OWNER PARTICIPATION AGREEMENT
WHEREAS, the Poway Redevelopment Agency ("Agency") is authorized to carry
out the redevelopment of the Paguay Redevelopment Project Area ("Project Area")
and;
WHEREAS, the Redevelopment Plan for the Project area authorizes and directs
the Agency to pay all or part of the cost of the acquisition of certain public
improvements; and
WHEREAS, the Agency desires to enter into an Owner Participation Agreement
("OPA") with Environmental Development, Ltd. ("Participant"), substantially in
the form presented to the Agency at the meeting at which this resolution was
adopted; and
WHEREAS, pursuant to the OPA, the Agency is required to provide financial
assistance toward the construction of those certain public improvements
referenced in the OPA, particularly Section 205; and
WHEREAS, the "Site" (as defined in the OPAl and the immediate adjacent area
is deficient in respect to infrastructure to such an extent that it is not
financially feasible for the necessary improvements to be provided either by
private enterprise acting alone or by means of assessment district without direct
Agency contribution toward the efforts of such a district; and
WHEREAS, California Health and Safety Code Section 33445 provides that a
redevelopment agency may, with the consent of the legislative body, pay all or
part of the value of public buildings, facil ities, structures or other
improvements upon a finding that such public improvements are of benefit to the
project area or the immediate neighborhood in which the project is located and
that there are no other reasonable means of financing such public improvements
available to the community.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES HEREBY RESOLVE
AS FOLLOWS:
Section 1: The City Council hereby approves the form of the OPA with the
Participant presented at the meeting at which this resolution was adopted.
Section 2: The City Council hereby determines that the acquisition,
construction and installation of the public improvements is of benefit to the
Project Area and the surrounding neighborhood in which the project is located.
JUL 11 1995 ITEM 7 ,
42 of 43 Attachment 3
-
Resolution No. 95-
Page 2
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Section 3: The City Council hereby determines that it is appropriate for
the public improvements to be acquired, or cause the construction and
installation of the public improvements, and that there are no other reasonable
means of financing the public improvements.
Section 4. The City Council consents to the provisions of assistance by
the Agency for the development of the public improvements.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California at a regular meeting thereof this 11th day of July, 1995.
Don Higginson, Mayor
ATTEST:
Marjorie K. Wahlsten, City Clerk
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby certify
that the foregoing Resolution No. 95- was duly adopted by the City Council
at a meeting of said Council on the 11th day of July, 1995, and that it was so
adopted by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
MarJorie K. Wahlsten
City Clerk
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