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Owner Participation Agreement 1990-0408019.1467 90 4*0.19 RECORDING REQUESTED BY: City of Poway J WHEN RECORDED, MAIL TO: City Clerk City of Poway R P.O. Box 789 �R MG Poway, CA 92064 N No Transfer Tax Due (This space for Recorder's u! OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY, AND McMILLIN COMMUNITIES, INC. 5/14/90 AGENCY, PARTICIPANT, TABLE OF CONTENTS PAGE I. [ §100] SUBJECT OF OWNER PARTICIPATION AGREEMENT . . . 1 A. [ §101] Purpose of Owner Participation Agreement 1 B. [ §102] The Redevelopment Plan . . . . . . . . . 1 C. [ §103] The Site . . . . . . . . . . . . . . . . 1 D. [ §104] Parties to the Owner Participation Agreement. . . . . . . . . . . . . . . . 2 1. [§105] The Agency . . . . . . . . . . . . . 2 2. [ §106] The Participant . . . . . . . . . . 2 3. [ §107] Prohibition Against Change in Ownership, Management and Control of the Participant . . . . . . . . . 2 II. [ §200] DEVELOPMENT OF IMPROVEMENTS BY THE PARTICIPANT . . . . . . . . . . . . . . . . 3 A. [ §201] Scope of Development . . . . . . . . . . 3 B. [ §202] Cost of Development . . . . . . . . . . . 4 1. [ §203] Participant Cost . . . . . . . . . . 4 2. [ §204] Agency Assistance . . . . . . . . . 4 (a) [ §205] Agency Assistance Procedure . . 4 (b) [ §206] Conditions Precedent to Agency Assistance and Participant's Obligation To Construct Improvements . . . . . . . . . . 5 3. [ §207] Construction Schedule . . . . . . . 6 4. [ §208] Indemnity, Bodily Injury and Property Damage Insurance . . . . . 6 5. [ §209] Rights of Access . . . . . . . . . . 8 6. [ §210] Local, State and Federal Laws . . . 8 5/14/90 -i- /I 7. [ §211] 1469 PAGE Antidiscrimination During Construction . . . . . . . . . . . . 8 5/14/90 -ii- 8. [ §212] Taxes and Assessments . . . . . . . 8 9. [ §213] Certificate of Completion . . . . . 8 10. [ §214] [intentionally omitted] . . . . . . 9 11. [ §215 through §221] [intentionally omitted] . 9 III. [ §300] USE OF THE SITE . . . . . . . . ... . . . . . 9 A. [ §301] [intentionally omitted] . . . . . . . . . 9 B. [ §302] Use in Accordance with Redevelopment Plan; Nondiscrimination . . . . . . . . . 9 C. [ §303] Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction . . . . . . 11 IV. [ §400] GENERAL PROVISIONS . . . . . . . . . . . . . 11 A. [ §401] Notices, Demands and Communications Among the Parties . . . . . . . . . . . 11 B. [ §402] Conflicts of Interest . . . . . . . . . 12 C. [ §403] Enforced Delay; Extension of Times of Performance . . . . . . . . . . . . 12 D. [ §404] Inspection of Books and Records . . . . 13 E. [ §405] Estoppel Certificates . . . . . . . . . 13 V. [ §500] DEFAULTS AND REMEDIES . . . . . . . . . . . 13 A. [ §501] Defaults -- General . . . . . . . . . . . 13 B. [ §502] Legal Actions . . . . . . . . . . . . . 13 1. [ §503] Institution of Legal Actions . . . 13 2. [ §504] Applicable Law . . . . . . . . . . 14 3. [ §505] Acceptance of Service of Process . 14 C. [ §506] Rights and Remedies Are Cumulative . . 14 5/14/90 -ii- 1470' PAGE D. [ §507) Inaction Not a Waiver of Default . . . 14 E. [ §508] Remedies and Rights of Termination After Release of Agency Assistance 15 1. [ §509] Damages . . . . . . . . . . . . . 15 2. [ §510] Specific Performance . . . . . . . 15 3. [ §511] Termination by the Agency . . . . 15 F. [ §512] Remedies of the Parties for Default After Furnishing of Agency Assistance and Prior to Completion of Construction . . . . . . . . . . . . . 16 1. [ §513) Termination and Damages . . . . . 16 2. [ §514] Action for Specific Performance 16 G. [ §515) Foreclosure on Site [intentionally omitted] . . . . . . . . . . . . . . . 16 VI. [ §600] SPECIAL PROVISIONS . . . . . . . . . . . . . 16 A. [ §601] Real Estate Commissions . . . . . . . . 16 B. [ §602] Successors in Interest . . . . . . . . 16 C. [ §603] Amendments to this Owner Participation Agreement . . . . . . . . . . . . . . . 17 D. [ §604] . . . . . . . . . . . . . . . 17 E. [ §605] . . . . . . . . . . . . . . . 17 VII. [ §700] ENTIRE AGREEMENT, WAIVERS . . . . . . . . . 17 VIII. [ §800] TIME FOR ACCEPTANCE OF OWNER PARTICIPATION AGREEMENT BY AGENCY . . . . . . . . . . . . 18 5/14/90 -iii- 9 a. 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. 5 Schedule of Estimated Fees Attachment No. 6 Certificate of Completion 5/14/90 -iv- 1471 9 0 1472 OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ( "Agreement ") is entered into by and between the POWAY REDEVELOPMENT AGENCY (the "Agency ") and McMILLIN COMMUNITIES, INC., a California corporation (the "Participant "). The Agency and the Participant hereby agree as follows: I. [ §100] SUBJECT OF OWNER PARTICIPATION AGREEMENT A. [ §101] Purpose of Owner Participation Agreement The purpose of this Agreement is to effectuate the Redevelop- ment Plan (as hereinafter defined) for the Paguay Redevelopment Project (the "Project ") by providing for the improvement of certain property situated within the Project Area (the "Project Area ") of the Project and by providing for the payment of certain amounts specifically described in this Agreement in connection with the activities to be undertaken by the Participant including the installation by Participant of certain public roadway improvements offsite and onsite of a residential development of 120 homes and certain commercial improvements planned by Participant. The public roadways as well as the residential and commercial improvements are referred to herein as the "Site" and the area where the same are planned is shown on Attachment 1 (the "Site Map "). The residential and commercial portions of the Site are owned by Participant except for certain portions of Lots 119, 120 and 121 of Tract No. 88 -04R which are owned by the Agency. Completing the public roadways 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. ( §102] 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. [ §103] 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 5/14/90 -1- 1473 incorporated herein by reference, and all real property improve- ments thereon. D. [ §104] Parties to the Owner Participation Agreement 1. [ §105] The Agency 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, 13325 Civic Center Drive, Poway, California 92064. "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. [ §106] The Participant The Participant is McMILLIN COMMUNITIES, INC. a California corporation in which the major shareholders are (i) Laurie A. McMillin Ray, (ii) Scott M. McMillin, (iii) Mark D. McMillin, and (iv) Macey McMillin, Jr. and Vonnie L. McMillin, Trustees of the McMillin Family Trust. A transfer which results in the principals holding less than a controlling interest in the partnership shall (without prior written approval of the Agency, which the Agency shall be reasonable in granting or denying) constitute an unauthorized assignment in transfer contrary to Section 107 of this Agreement. The principal office and mailing address of the Participant for the purposes of this Agreement is 2727 Hoover Avenue, National City, California 92050. [ §107] 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 a partnership which includes Participant as general partner, provided that: (1) the assignee entity shall expressly assume the obligations of the Participant pursuant to this Agreement in writing satisfactory to the Agency; (2) the 5/14/90 -2- • 0 1474 original Participant shall remain fully responsible for the performance and liable for the obligations of the Participant pursuant to this Agreement; and (3) the assignee (or expanded partnership) is financially capable of performing the duties and discharging the obligations it is assuming. 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. In the absence of specific written agreement by the Agency, no such transfer, assignment or approval by the Agency shall be deemed to relieve the Participant or any other party from any obligation under this Agreement. 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. 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 roadway improvements ( "Improvements ") described on Attachment No. 3 within the time periods set forth on Attachment No. 4. The Improvements include, but are not limited to the construction of that portion of South Poway Parkway located along Participant's frontage as shown on the Site Map (Attachment No. 1) . The term "Improvements" includes any improvements that are not specifically described where their construction is necessary to meet City standards in order to construct those Improvements which are described. The Participant shall construct or cause to be constructed the Improvements in compliance with all the zoning, planning and design review requirements and approval procedures of the City of Poway. The term "Improvements" does not include the residential and commercial private improvements to be constructed on the Site. 5/14/90 -3- i B. [ §202] Cost of Development 1. [ §203] Participant Cost 1475 With the exception of the Agency Assistance as defined below, all costs for planning, designing and constructing the 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 assumes the responsibility to construct and shall let contracts for or cause to be constructed all Improvements developed pursuant to this Agreement substantially in conformity with procedures used by the Agency when payment of prevailing wages is deemed to be required by State law. The Participant shall be responsible for all fees associated with development of the Improvements including, without limitation, school facilities fees and impact fees unless otherwise set forth herein. The Participant assumes all risks associated with soil and subsurface conditions at, on and adjacent to 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 Improvements described herein. 2. [ §204] Agency Assistance (a) [ §205] Agency Assistance Procedure In consideration for the Participant agreeing to construct the Improvements, including the construction of that portion of South Poway Parkway along Participant's frontage as shown on the Site Map (Attachment No. 1) and Participant's construction of other public improvements required as conditions of approval of Tract No. 88 -04R, the Agency agrees to provide the following Agency Assistance to Participant: (i) Agency agrees to discharge the following fees which would otherwise be payable by Participant to the City with respect to Tract No. 88 -04R and /or the improvement of residences and /or commercial improvements on Tract No. 88 -04R: (a) The Traffic Mitigation Fees up to a maximum of $250,000.00; and (b) $644,000.00 of other fees as estimated on Attachment No. 5 attached hereto (the actual amount of Traffic Mitiga- tion Fees shall not reduce or increase the $644,000.00 of other fees dischargeable by the Agency). Each such fee or credit shall be paid or prepaid and each credit shall 5/14/90 -4- • • 1476 be obtained by the Agency on the date the final map of Tract No. 88 -04R is filed with the County Recorder of San Diego County. (ii) Agency agrees to transfer to Partici- pant, upon recordation of the final map of Tentative Tract No. 88 -04R, those portions of lots 119, 120 and 121 shown on the final map which are currently owned by Agency. Such conveyance shall be made subject to all items of record as of the date of this Agreement other than monetary encumbrances (if any) , which Agency agrees to discharge before such transfer. Such transfer shall be made without any prorations and Agency shall not be required to incur any out of pocket closing or transfer expenses. Agency shall, prior to recordation of the final map, deliver Agency's grant deed to Ticor Title Insurance Company (San Diego) with instructions to record the deed upon recordation of the final map. Such transfer constitutes a portion of the consideration for Participant's performance under this Agreement and Participant shall not be required to pay any additional consideration for such transfer. The Agency deems the property to be so transferred to be worth $13,500.00. (b) [ §206] Conditions Precedent To Agency As- sistance and Participant's obliga- tion To Construct Improvements Agency's obligation to provide any Agency Assistance and Participant's obligation to construct any of the 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 final and nonappealable approval of Tentative Tract Map No. 88 -04R with condi- tions of approval reasonably acceptable to Participant; recordation of the final map of Tentative Tract Map No. 88 -04R shall evidence satisfaction of this condition precedent; (ii) The City's and Participant's approval of detailed plans and specifications for the Improve- ments. (iii) The recordation of a final map of Tentative Tract Map No. 88 -04R and the Participant having provided the City with a subdivision improvement agree- ment in the form customarily required by the City together with either (i) subdivision bonds or (ii) a 5/14/90 -5- 10 ,V 1477 letter of credit customarily required by the City to assure completion of the Improvements. (iv) Participant shall have delivered to the Agency_an_.irrevocable and unconditional letter of credit for $894;000' in form reasonably acceptable to the Agency, naming the Agency as Obligee and issued from an institutional lender for a term not be less than twenty - four months, including any rights of Obligee to extend the term of the letter. Sums shall be payable to the Agency upon the Agency certifying to the Issuer that Participant has materially breached its obligation to complete the Improvements within the eighteen month period required hereunder (as such period may be extended pursuant to this Agreement). Agency agrees that it will not demand funds from the Issuer unless Participant is in material default and any demand for funds shall not exceed the amount necessary to complete the Improvements. Agency shall return the letter of credit to Participant with instructions to the Issuer to cancel the letter of credit at such time as the Agency furnishes Participant with the Certificate of Completion pursuant to Section 213 below. "Institutional lender" means a federally or state chartered bank or savings and loan which has a Moody's bond rating of "A" or better. This paragraph (iv) shall not be applicable if Participant delivers to the City, pursuant to (iii) above of this Section, a letter of credit to secure the subdivision improvement agreement. (v) Neither party shall be in material default of any of the outstanding provisions of the Agreement or the Attachments incorporated thereto. 3. [ §207] Construction Schedule The Participant shall commence and complete the 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. [ §208] Indemnity. Bodily Injury and Property Damage 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, 5/14/90 -6- • • 14'78 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 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 Improvements (if a "claims made" policy is obtained) , a comprehensive liability policy in the amount of Three Million Dollars ($3,000,000.00) combined single limit policy, including contractual liability, 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 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. 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. 5/14/90 -7- • • 1479 5. [ §209] Rights 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 Improvements. 6. [§210] Local. State and Federal Laws The Participant shall carry out the construction of the 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 Improvements. Before commencement of construction or development of any buildings, structures or other improvements upon the Site or within the Project Area, 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 During 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 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. 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 Completion Promptly after the completion of all of the Improvements in conformity with this Agreement (as determined by 5/14/90 -8- • • 1460 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 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 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 Improvements, construction of such 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 Section 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] B. [ §302] Uses in Accordance with Redevelopment 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 5/14/90 -9- 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, sublessees 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, sublessees 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 subject 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 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, sublessees, 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 5/14/90 -10- E w -idaz 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, sublessees 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. [ §303] Effect of Violation of the Terms and Provi- 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 with 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. IV. [ §400] GENERAL PROVISIONS A. [ §401] Notices. Demands and Communications Among 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 given) 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 5/14/90 -11- 9 0 1483 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. [ §402] 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 pay or give, any third party any money or other consideration for obtaining this Agreement. C. [ §403] Enforced Delay; 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 default, 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 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. 5/14/90 -12- 0 1484- 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] Inspection 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] Estoppel 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 injured 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. B. [ §502] Legal Actions 1. [ §503] Institution of Legal Actions In addition to any other rights or remedies and subject to the restrictions in Section 501, either the Agency or 5/14/90 -13- 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. [ §504] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [ §505] 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. [ §506] Rights 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. [ §507] 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. 5/14/90 -14- C� E. [ §508] 1. [ §509] Damages • I4es If, after furnishing of Agency Assistance, 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 furnishing of Agency Assistance, 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 Agency In the event that prior to the furnishing of Agency Assistance: (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 Agency Assistance by the time established therefor in this Agreement then this Agreement and any rights of the 5/14/90 -15- `1487 Participant or any assignee or transferee in the 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. [ §512] 1. [ §513] Termination and Damages 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. [ §514] Action for Specific Performance If the Participant or the Agency defaults under any of the provisions of this Agreement after the furnishing of any Agency Assistance and prior to the recordation of a Certificate of Completion for the 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. [ §515] Foreclosure on Site [intentionally omitted] VI. [ §600] SPECIAL PROVISIONS A. [ §601] 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. [ §602] Successors In Interest The terms, covenants, conditions and restrictions of this Agreement shall extend to and shall be binding upon and inure to 5/14/90 -16- 148:g the benefit of the heirs, executors, administrators, successors and assigns of the Participant. 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 Participation Agree- 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 counsel or 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 5/14/90 -17- F 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. In any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld. VIII. [ §800] 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. IN WITNESS WHEREOF, the Agency and the Participant have signed this Agreement on the respective dates set forth below. 1990 POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic By: c Chairm ATTEST: ba','bt�-- Secretary APPROVED AS TO FORM: ame2l /'�. 6L 4(-1 a.0 Stradling, Yocca, Carl on & Rauth, Special Counsel to the Agency 5/14/90 -18- "Agency" 148 m r m V m T C E E 'c 0 o U d e "- 0 H U � N io N 0 June 18 1990 0 -1490 McMILLIN COMMUNITIES, INC., a California corporation \ By: Its• Execidive Vice President By: Its. Vice President "Participant" STATE OFCALIFORNI.tan Diego ­ COUNTY OF On June 18, 1990 before me, the undersigned, a Notary Public in and for said State, personally appeared Virgil E. E1110tt and James H. Ondler , personally known to me(&H*_044t �e to be the persons who executed the within instrument as Ex €c1lt ! ve V ice President ana V i ce Pres. Sceretiafy, on behalf of. McMillin Communities Inc. OF Y Ft CIAL SEAL r the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by -laws or a resolution of its board of directors. WITNESS my hand and official seal. Signature_G���� —=— 5/14/90 , JOYCE BROCK j hlotw PublltrCe bMta ® SAN DIEGO COUNTY my Comm. Exp. Mar. 91, 1883 -19- (This area for official notarial seal) 0 STATE OF COUNTY OF SAN DIEGO On this the undersigned, C appeared me (or proved to me , the Chairman of the POWAY 1491 ss. day of , 1990, before me, tary Public in and for sa'd state, personally ersonally known to the basis of satisfactor evidence) to be n�rson who executed this i trument as the VELOPMENT AGENCY and , personally known tc e to me on the oasis of satis I ctory evidence) to be th executed the within instrum t as the Secretary of Redevelopment Agency, a public body corporate and po acknowledged to me that such agen executed the within pursuant to a resolution by its boa of directors. WITNESS my hand and official seal. (or proved person who the Poway L'tic, and i trument State of California) )ss. County of San Diego) On this the 18th day of June, 1990, before me, Nancy N. Neufeld, the undersigned Notary Public, personally appeared Don Higginson and Marjorie K. Wahlsten, per- sonally known to me to be the persons who executed the within instrument as President and Secretary of the municipal corporation named herein. Witness my hand and official seal. ROFNANUT ry rvCUrCIU SAN DIEGO COUNTY AM Con;m. Exp. DeG 21.1492 5/14/90 —20— LOT C r � a 5 LOT D ) w a �✓K f .u. y. - f ?I O. yR 4YiL VESnnl. F.M. WAST -OFW4 sCRNN$ EAST l 1 �: / /11L13dJ -0F06 1 ,_k�. umevawm ~~ . +rLOrA ' e... •.y M... y A. 362- 0 =D.. � � . A9N 37-241 l � A .��'. pryer -�•jr 1_ —! y 4 . ER - APO. 3. _ • per' .- �L AW130_01_03 NOr'';4 PART w» _ ` � ` 7 .:ra � kaem4klelaseet 7'rd 'TENTATIVE REVISED MAP S I • S5 ROILM(i !ILLS ESTATES' - '1 f .u. y. - f ?I O. yR 4YiL VESnnl. F.M. WAST -OFW4 sCRNN$ EAST l 1 �: / /11L13dJ -0F06 1 ,_k�. umevawm ~~ . +rLOrA ' e... •.y M... y 4 'TENTATIVE REVISED MAP S I • S5 ROILM(i !ILLS ESTATES' - '1 M• N j1 �• t . Y° +�`�3�`.14 SOLUM POWAY 135V - •. w / ",� WWI" 9IUT4 IIAlx[m Y Fw+ 3 I . 'M' fiiila»w •Nnw. MYlaw r.� I .CC -. `►+ I.iW \•w »Y IF.I� YM! MN ff Nf MWG 4 � .IQI/� qy' .. t1 \�yII f '..YO 2iy�_\ � �'�i N/ \ +` cl • NX6IY I >f4 Y4fG FbM grHO. N ATTACHMENT 2 0 1493 . . THE LAND REFERRED TO- HEREIN IS SITUATED IN THE --STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: 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 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 89 042.'00" EAST 542.42 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 0 018' EAST 470.50 FEET'; THENCE 89 °42' EAST 61`3.07 FEET; THENCE NORTH 21 °28'_ EAST. 248 FEET; THENCE NORTHEASTERLY IN A STRAIGHT LINE TO THE INTERSECTION OF THE 'NORTHERLY LINE OF SAID SECTION 26 W.I,TH 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 89 042'00 " 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 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, IN THE CITY OF POWAY, COUNTY OF SAN.D'IEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER. OF SAN DIEGO COUNTY DECEMBER 21, 1989. 2*d 0 Attachment No. 3 Scope of Development I. GENERAL DESCRIPTION is '1494 The site is specifically delineated on City of Poway Tentative Tract Map 88 -04R (Revised TTM) (Attachment No. 1) and the Legal Description (Attachment No. 2) pursuant to Section 103 of this agreement. II. The Participant shall be permitted to develop the site as a residential community consisting of 120 single family lots along with an adjoining commercial site in accordance with the Revised TTM to be approved by the Redevelopment Agency and 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, off site, which are required in connection with this development pursuant to the Subdivision Improvement Agreement to be entered into between Participant and the City for Tract 88 -04R shall constitute the "Improvements". All of the Improvements shall conform in design, configuration and appearance to the City's standard development requirements. The Participant shall commence and complete the 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 public improvements within the time set forth for the completion of the improvements 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, sidewalks, and appropriate street landscaping. 5/14/90 -1- • 1496 Participant shall undertake at its cost all demolition required in connection with the development of the Improvements. 5/14/90 -3- • • '1497 ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE I. CONSTRUCTION DOCUMENTS 1. Submission of Construction Drawings and Final Map. Participant shall on or before September 1, 1990 submit to the Agency and the City a Final Map and complete construction (working) drawings including Improvement Plans, Grading Plans, and Landscaping Plans after approval of the Revised Tentative Tract Map 88 -04R (TTM) by the City and Owner Participation Agreement by Agency. 2. Initial Review of Construction Drawings and Final Map. 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 within 30 days after receipt of Agency's or City's comments. The Agency shall review the revisions submitted by the Participant within two 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. Securitv and Subdivision Improvement Agreement. Once Agency and City have approved Final Map, Improvement Plans, Grading Plans and Landscaping Plans and Partici- pant has completed the Revised TTM conditions 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. Deli To Extend Period of Construction. Any unreasonable delay by the Agency or the City in their review and 5/14/90 -1- 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 Improvements must be completed pursuant to II below. II. CONSTRUCTION PHASE 7. Commencement of Construction. Participant shall commence construction of the 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. Completion of Construction. Participant shall complete construction of all the Improvements by December 31, 1991. Participant's obligation to construct and complete 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 Submittal of the construction drawings for the Improve- ments, 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. 5/14/90 -2- ATTACHMENT NO. 5 SCHEDULE OF ESTIMATED FEES TO BE CREDITED Park Fee Drainage Fee Sewer Annexation Fee Street Light Annexation Fee (not to exceed) Traffic Mitigation Fee (not to exceed) Water Fees (not to exceed) Total: 5/14/90 $270,000 163,920 55,595 10,485 250,000 144,000 $894,000 1499 ATTACHMENT NO. 6 CERTIFICATE OF COMPLETION (to be attached) 1500!