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First Amendment to Development Agreement 1993-0193225RECORDING REQUESTED BY City of Poway WHEN RECORDED MAIL TO: City Clerk City of Poway P.O. Box 789 Poway, California 92074 (a L 4 i Y 9J V 4 f 3 E, 26 -0C'T -19V3 L71:31 AN OFFICIAL RECORDS z 14 SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EVANS , COUNTY RECORDER FEES., 0.00 No Transfer Tax Due (This space for Recorder's use) SECOND AMENDMENT TO DEVELOPMENT AGREEMENT This Second Amendment to Development Agreement ( "Second Amendment ") is made and entered into as of October 12, 1993, by and between McMillin Equity Partners 11, a California limited partnership ( "Developer "), and the City of Poway, a Municipal Corporation organized and existing under the laws of the State of California ( "City "), with reference to the following facts: A. The City and the Developer entered into a Development Agreement ( "Development Agreement ") dated as of June 13, 1991, which provides for the development of certain property in the City known as the McMillin South Poway Project ( "Project "). The Project is further described in Exhibit "A" hereto and incorporated herein by reference. B. The City and Developer ente:-ed into a Firsi Amendment to the Development Agreement ( "First Amendment ") for the Project on March 9, 1993, due to recession caused delays. This amendment revised the date for the Developer of its obligation to pay the contribution of $459,000 and to require that the Developer pay interest on the principal of $459,000 pursuant to the conditions set forward in the First Amendment hereto and incorporated herein by reference. C. Paragraph 3.8.1.1 of the Development Agreement provides that, "in the event that the conditions in existence as of March 19, 1991, substantially change so as to make it infeasible for the Developer to perform in a timely manner, the contribution schedule contained in this Paragraph 3.8.1.1 may be considered for amendment." D. The City and the Developer agree that the conditions in existence as of March 19, 1991, have substantially changed so as to make it infeasible for the Developer to perform its obligation to contribute to the cost of South Poway Parkway as set forth in the original Development Agreement. • a 4?1' E. The City and the Developer now desire to amend Paragraph 3.8.1.1 to revise the date for performance by the Developer of its obligation to pay the contribution of $1,377,000, and to require that the Developer pay interest on the principal of $1,377,000 pursuant to the conditions set forth below. Now, therefore, with reference to the foregoing recitals and in consideration of the mutual promises, obligations, and covenants herein contained, the Developer and the City agree as follow: 1. Developer's obligation to contribute $1,377,000 to the construction of South Poway Parkway from Pomerado Road to the westerly boundary of the City, incurred pursuant to Paragraph 3.8.1.1 of the Development Agreement, shall be paid as follows: a.The Developer shall pay $302,940 plus accrued interest for contribution to the cost of Scripps Poway Parkway at the time of issuance for the first building permit on the commercial property; b.The Developer shall pay $1,074,060 plus accrued interest for the roadway for the residential property. Payment shall be made in the sum of $8,950.50, plus accrued interest thereon, per residential lot at the time of issuance of a building permit for each residential lot. 2. Commencing upon March 9, 1993, the approval date of the First Amendment, interest shall accrue at the rate of eight and one - quarter percent ( "8 -1/4 % ") per year to the principal of $1,377, 000. Such interest shall continue to accrue on any unpaid balance until the Developer has paid the $1,377, 000 in full, plus any accrued interest. 3. Within 120 days of execution of this Second Amendment, Developer shall dedicate right of way and easements necessary to construct the extension of Cypress Canyon Street within the boundaries of the City of Poway, in the alignment described and approved by the City of San Diego on April 28, 1992 for Vesting Tentative Map (VTM) #88 -0767. 4. Except as amended hereby, all provisions and conditions of the Development Agreement and First Amendment to the Development Agreement shall remain in full force and effect. To the extent that any provision or condition in the Development Agreement or First Amendment is inconsistent with any provision or condition of this Second Amendment, this Second Amendment shall govern. 5. Upon the execution of this Second Amendment by the Developer and the City, the City shall cause this Second Amendment to be recorded. Upon recording of this Second Amendment, the City shall deliver one (1) conformed copy thereof to the Developer no later than five (5) days after the date of recording. C, • X16 6. Each individual signing below represents and warrants that he or she has the authority to execute this Second Amendment on behalf of and bind the party that he or she purports to represent. IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as of the day and year first written above. "City" CITY OF POWAY By: Don Higginson, Mayor of the City of Poway ATTEST: Marjo 'e . Wahlsten, City C16rjk APPROVED AS TO FORM: Step416rney . Eckis, Esq. City "Developer" McMILLIN EQUITY PARTNERS 11, a California limited partnership By -. McMILLIN DEVELOPMENT, INC., General Partner " ✓ #e _ Its I -'J y ? By: L_ Its: V, P. (MCMILLIN.AGM) CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of Ca."1 o n "- W County of San U. e y On to -I ? -93 DATE 2 before me, R11k e cf 01. A vi G -1, Nc; +-cr Pu k I , c NAME, TITLE OF OFFICEPY- E.G., "JANE DOE, NOTARY PUBLIC" personally appeared Ro6ei -4 L. Sorlcs and Mark E Doyle NAME(S) OF SIGNER(S) Personally known to me - OR - ❑ proved- tame -an -the -basis ef- satisfa=ry- evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she /they executed the same in h+s/#e-r /their authorized capacity(ies), and that by his1h-&T/their Rhonda M. Angel signature(s) on the instrument the person(s), O Comm. 0992456 or the entity upon behalf of which the • NOTAnv PUBLIC CALIFORNIA t SAN WEGO COUNTY person(s) acted, executed the instrument. f Comm E■piras April 21 1997 WITNESS my hand and official seal. SIGNATURE OF NOTARY THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. OPTIONAL SECTION TITLE OR TYPE OF DOCUMENT No. 5193 OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE ©1992 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309 -7184 EXHIBIT "A" PROPERTY LEGAL DESCRIPTION PARCEL 1: THE NORTHWEST QUARTER OF SECTION 26, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPTING THAT PORTION OF THE EAST HALF OF SAID NORTHWEST QUARTER LYING NORTHEASTERLY OF THE CENTER LINE OF THAT 60 FOOT EASEMENT FOR ROAD PURPOSES DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED APRIL 4, 1924 IN BOOK 751, PAGE 369 OF DEEDS. ALSO EXCEPTING THAT PORTION OF THE NORTH HALF OF SAID NORTHWEST QUARTER DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 26; THENCE ALONG THE NORTHERLY LINE OF SAID SECTION 26, NORTH 89° 42' 00" EAST 542.42 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00° 18' EAST 470.50 FEET; THENCE NORTH 890 42' EAST 613.07 FEET; THENCE NORTH 210 28' EAST 248 FEET; THENCE NORTHEASTERLY IN A STRAIGHT LINE TO THE INTERSECTION OF THE NORTHERLY LINE OF SAID SECTION 26 WITH THE CENTER LINE OF THAT CERTAIN 60 FOOT EASEMENT FOR ROAD PURPOSES (KNOWN AS POMERADO ROAD) DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED APRIL 4, 1924 IN BOOK 751, PAGE 369 OF DEEDS, RECORDS OF SAN DIEGO COUNTY; THENCE ALONG THE NORTHERLY LINE OF SAID SECTION 26, SOUTH 890 42' 00" WEST TO THE TRUE POINT OF BEGINNING. PARCEL 2: THAT PORTION OF THE SOUTHWEST ONE— QUARTER OF SECTION 23, TOWNSHIP 14 SOUTH, RANGE 2 WEST, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: THE WESTERLY 271.22 FEET OF THE SOUTHERLY 195 FEET OF THE SOUTHWEST ONE — QUARTER OF SAID SECTION 23, EXCEPT THE WESTERLY 203.42 FEET THEREOF. PARCEL 3: PARCEL 1 OF PARCEL MAP NO. 15915 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON DECEMBER 21, 1989 AS FILE NO. 89- 692072. 0: \5 \5546 \41858 \AGTDEVEL.V11 -22- 5/15/91 (10:30am)- CLE:sh