Second Amendment to Development Agreement 1993-0714757404
0
RECORDING REQUESTED BY ):
WHEN RECORDED MAIL TO: )
City Clerk )
City of Poway )
P.O. Box 789 ) j n
Poway, California 92074 ) ,\
51
D. 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 $459,000, and to
require that the Developer pay interest on the principal of $459,000 pursuant to the conditions
set fort
City of Poway
D 0 OW-1
' a3e '�4s � 'a
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
ANNETTE EVANS, COUNTY RECORDER
F EES: 0.00
No Transfer Tax Due This space for Recorder's use
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
This First Amendment to Development Agreement ( "First Amendment ") is made and entered
into as of March 9, 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 further rther described in Exhibit "A" hereto and incorporated herein by reference.
B. 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."
C. 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 in the amount of $459,000 in a
timely manner.
h below.
516
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. The date for performance of the Developer's obligation to contribute $459,000 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 extended to a date one year from the date of approval of this First Amendment.
2. Commencing upon the date of approval of this First Amendment, interest shall accrue at
the rate of eight and one - quarter percent ( "8 -1/4 % ") per year to the principal of $459, 000.
Such interest shall continue to accrue until the Developer has paid the $459, 000 in full, plus
any accrued interest.
3. Within 120 days of execution of this First 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 an amended hereby, all provisions and conditions of the Development
Agreement shall remain in full force and effect. To the extent that any provision or condition
in the Development Agreement is inconsistent with any provision or condition of this First
Amendment, this First Amendment shall govern.
5. Upon the execution of this First Amendment by the Developer and the City, the City
shall cause this First Amendment to be recorded. Upon recording of this First Amendment,
the City shall deliver one (1) conformed copy thereof to the Developer no later than five (5)
days after the date of recording.
6. Each individual signing below represents and warrants that he or she has the authority
to execute this First Amendment on behalf of and bind the party that he or she purports to
represent.
. IN WITNESS WHEREOF, the undersigned have executed this First Amendment as of the
day and year first written above.
"City"
CITY OF POWAY
By.
Don Higginson, Mayor of
the City of Poway
(SIGNATURES ON NEXT PAGE)
I
ILI
ATTEST:
Marjon" ' K. Wahlsten,
City Clek
APPRQVED AS TO FORM:
StplieeX M. Eckis, Esq.
Ci e Attorney
(MCMILLIN.AGM)
C:
"Developer"
' 517
McMILLIN EQUITY PARTNERS 11,
a California limited partnership
By -. McMILLIN DEVELOPMENT, INC.,
General Partner
By:1
Its lr ,
By: 'tom „r ryw
Its: t/,O.
34" WEST 283.36 FEET TO THE WESTERLY LINE OF SAID SECTION 26;
THENCE NORTHERLY ALONG SAID WESTERLY LINE NORTH 00 19' 53" EAST
437.00 FEET TO THE NORTHWEST CORNER OF SAID SECTION 26, SAID CORNER
BEING IN COMMON WITH THE SOUTHWEST CORNER OF SAID SECTION 23;
THENCE EASTERLY ALONG THE COMMON SECTION LINE SOUTH 890 52' 20"
EAST 203.42 FEET; THENCE LEAVING SAID COMMON SECTION LINE NORTH 00
11' 35" EAST 195.00 FEET; THENCE SOUTH 890 52' 20" EAST 67.80 FEET;
THENCE SOUTH 00 11' 35" WEST 195.00 FEET TO THE AFORESAID COMMON
LINE; THENCE EASTERLY ALONG SAID COMMON SECTION LINE SOUTH
890 52' 20" EAST 270.68 FEET; THENCE LEAVING SAID COMMON SECTION
LINE SOUTH 00 08' 08" WEST 267.89 FEET TO THE TRUE POINT OF
BEGINNING.
PARCEL B:
PARCEL 1 OF PARCEL MAP NO. 15915, IN THE CITY OF POWAY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY DECEMBER 21, 1989.
l
C,E: W, ?3,/)4/92
T
C
<C
E
U
m
c
U
m
C
N
m
c
m
c7
I
co
o
co
A
518
}
STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO }
On MARCH 25, 1993 beforeme, JOYCE A. BROCK, NOTARY PUBLIC
personally appeared
PATRICK F. McMILLIN AND ROBERT L. JONES - - - - - --
----------------------------------- - - - - -- personally known to me (or- pFeved
t to be the persons) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that iRefshe/they executed the same in histher /their authorized capacity(ies),
and that by his/her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument. . , OFIFiC AL SEAL
JOYCE A BROCK
_
WITNESS my hand and official seal. Notary Pubk4a4tomfa SAN DIEGO COUNTY
Signature My Comm. Exp. Mar,
(This area for official notarial seal)
519
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
PARCEL A:
THE NORTHWEST QUARTER OF SECTION 26, TOWNSHIP 14 SOUTH, RANGE 2
S'1'Es,r, SAN BERN"kRnINO 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 000 18'
EAST 470.50 FEET; THENCE 89° 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 COUN'T'Y OF SAN
DIEGO, RECORDED APRIL 4, 1924 IN BOOK 751, PAGE 369 OF DEEDS,
RECORDS OF SAN DIEGO COUNTY; THENCE ALONG THE NOR`T'HERLY LINE OF
SAID SECTION 26, SOUTH 892 42' 00" WEST TO THE TRUE POINT OF
BEGINNING.
ALSO EXCEPTING THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 26,
'1'OWilSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, ACCORDING
TO THE OFFICIAL PLAT THEREOF, IN THE CITY OF POWAY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF LOT 46 OF CITY OF POWAY
TRACT 85 -04 UNIT 1, (POMERADO BUSINESS PARK - PHASE I) ACCORDING
TO MAP THEREOF NO. 11 742 FILED IN THE OF= T
ICE OF THE COUNY REc..ORDER
OF SAN DIEGO COUNTY ON MARCH 9, 1987 AS FILE NO. 87- 122499, SAID
POINT BEING ON THE SOUTHERLY BOUNDARY OF SAID MAP NO. 11742, SAID
POINT ALSO BEING A POINT ON THE NORTHERLY LINE OF SAID SECTION 26;
THENCE WESTERLY ALONG SAID BOUNDARY AND SAID SECTION LINE NORTH
890 52' 20" WEST 269.64 FEET TO A POINT ON A NUN- TANGENT CURVE
CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1926.50 FEET, A RADIAL
BEARS SOUTH 270 25' 28" EAST, SAID POINT BEING ON THE SOUTHERLY
RIGHT OF WAY OF SOUTH POWAY PARKWAY AS SHOWN ON SAID-PARCEL MAP
NO. 15915 AS FILED DECEMBER 21, 1989 AS FILE NO. 89- 692072 AND
RECORD OF SURVEY MAP NO. 12674 AS FILED MAY 3, 1990 AS FILE NO. 90-
242690, BOTH FILED WITH THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SAID POINT BEING THE TRUE POINT OF BEGINNING FOR PARCEL 1 OF DEED
CLE:sn 8/i4/92
520
TO THE CITY OP POWAY RECORDED APRIL 27, 1989 AS FILED NO. 89-
220347 IN THE OFFICE OF SAID RECORDER; THENCE SOUTHWESTERLY ALONG
THE ARC OF SAID CURVE AND RIGHT OF WAY THROUGH A CENTRAL ANGLE OF
1' 10' 41" A DISTANCE OF 39.61 FEET; THENCE NON— TANGENT TO SAID
CURVE SOUTH 670 25' 25" WEST 183.74 FEET TO THE BEGINNING OF A NON -
TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1961.50
FEET, A RADIAL BEARS SOUTH 190 55' 41" EAST; THENCE WESTERLY ALONG
THE ARC OF SAID CURVE THROUGH A�7CENTRAL ANGLE OF 9° 46' 43" A
DISTANCE OF 334.77 FEET TO THE CENTER LINE OF OLD POMERADO ROAD AS
SHOWN ON SAID,PARCEL MAP NO. 15915 AND AS DESCRIBED IN DEED TO THE
COUNTY OF SAN DIEGO RECORDED APRIL 4, 1924 IN BOOK 751 AT PAGE 369
OF DEEDS IN THE OFFICE OF SAID RECORDER, SAID POINT BEING ON A
CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 1000.00 FEET,
A RADIAL BEARS SOUTH 42° 49' 51" WEST; THENCE SOUTHEASTERLY ALONG
SAID CENTER LINE AND CURVE THROUGH A CENTRAL ANGLE OF 00 41' 02"
A DISTANCE OF 11.94 FEET TO A POINT ON THE ARC OF A NON- TANGENT
CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 1971.00 FEET AND
BEING CONCENTRIC WITH THE AFORESAID 1961.50 FOOT RADIUS CURVE, A
RADIAL BEARS SOUTH 100 21' 36" EAST; THENCE WESTERLY ALONG THE ARC
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10 05' 51" A DISTANCE OF
37,75 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE
WESTERLY RIGHT OF WAY OF SAID OLD POMERADO ROAD; THENCE CONTINUING
WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60
47' 10" A DISTANCE OF 233.45 FEET; THENCE SOUTH 870 11' 25" WEST
67. i9 FEET TO A POINT HEREIN DESIGNATED POINT "A "; THENCE NORTH 37"
26' 30" EAST 175.22 FEET; THENCE CONTINUING NORTH 370 26' 30" EAST
68.67 FEET TO THE WESTERLY RIGHT OF WAY OF SAID OLD POMERADO ROAD;
THENCE SOUTHEASTERLY ALONG SAID RIGHT OF WAY SOUTH 40° 48' 32" EAST
6169 FEET; THENCE CONTINUING SOUTH 400 48' 3.2" EAST 61.12 FEET TO
THE BEGINNING OF A NON- TANGENT CURVE CONCAVE NORTHEASTERLY AND
HAVING A RADIUS OF 1030.00 FEET, A RADIAL BEARS SOUTH 490 07' 04"
WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID. CURVE THROUGH A
CENTRAL ANGLE OF 50 40' 35" A DISTANCE OF 102.04 FEET TO THE TRUE
POINT OF BEGINNING.
ALSO EXCEPTING THAT PORTION OF SOUTHWEST QUARTER OF SECTION 23 AND
THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 26, BOTH OF
TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, ACCORDING
TO THE OFFICIAL PLAT THEREOF, IN THE CITY OF POWAY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS;
COMMENCING AT THE ABOVE SAID POINT "A "; THENCE CONTINUING SOUTH 87°
31' 25" WEST 111.10 FEET TO THE BEGINNING OF A CURVE CONCAVE
SOUTHERLY AND HAVING A RADIUS OF 6000.00 FEET; THENCE WESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10 51' 43"
A DISTANCE OF 194.98 FEET; THENCE SOUTH 850 30' 42 ": WI::S'r 417.21
FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE
WESTERLY BOUNDARY OF LAND DESCRIBED IN DEED RECORDED SEP'T'EMBER 18,
1987 AS FILE NO. 87- 529031 IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, THENCE SOUTHERLY ALONG SAID WESTERLY BOUNDARY
SOUTH 00 08' 08" WEST 202.12 FEET; THENCE LEAVING SAID WESTERLY
BOUNDARY NORTH 850 53' 30" WEST 261.05 FEET; THENCE NORTH 86° 51'
o: \S \5546 \51858 \memund -2.953 CLE:sh 8,14/92