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Second Amendment to Owner Participation Agreement 1995-0055474C 2158 ` RECORDING REQUESTED BY: City of Poway WHEN RECORDED MAIL TO: City Clerk yt City of Poway P.O. Box 789 Poway, California 92074 1995- 0055474 07 —EEB -1995 08o54 AM OFFICIAL RECORDS SAW DIEGO COUNTY RECORDER'S OFFICE GREGORY SMITH, COUNTY RECORDER FEES: 0.00 No Transfer Tax Due (Space above this line for Recorder's Use) SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY, AND TRIDENT HOMES OF CALIFORNIA, INC. AGENCY, PARTICIPANT. This SECOND AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY, AND MCMILLIN EQUITY PARTNERS II, originally recorded on July 26, 1990, Document No. 90- 408019 and amended as recorded on May 30, 1991 Document No. 91- 0252919, is made-as of November 1, 1994, by and between the POWAY' REDEVELOPMENT AGENCY, ( "Agency "), and TRIDENT HOMES OF CALIFORNIA, INC., ( "Participant "), who agree as follows: 1. This Amendment is made with reference to and in contemplation of the following facts and circumstances: a. The Agency and Participant are parties to the Owner Participation Agreement originally established by and between the Poway Redevelopment Agency, Agency, and McMillin Equity Partners II, Participant ( "Owner Participation Agreement "), and executed on June 18, 1990. b. The Agency and McMillin Equity Partners II entered into a first Amendment to the Owner Participation Agreement ( "First Amendment ") for the Project on May 16, 1991. This amendment established dates when the Participant was required to pay contributions of $459,000, and $918,000, which represented a portion of the costs of the construction of Scripps Poway Parkway (formerly known as South Poway Parkway), pursuant to conditions set forth in the first Amendment hereto and incorporated herein by reference. C. With the consent of the Agency, McMillin Equity Partners II has assigned all its rights and delegated all its obligations under the Owner Participation Agreement to the Participant, Trident Homes of California, Inc., record owner of all legal interest in the Property governed by Tentative'Tract Map No. 88 -04R as of the date of this Amendment. . —1— 21-9 d. Paragraph 3 of the Owner Participation 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 Participant to perform in a timely manner, the contribution schedule contained in this Paragraph 3, The Owner Participation Agreement may be considered for amendment." e. The Agency and Participant agree that the conditions in existence as of March 19, 1991, have substantially changed so as to make it infeasible for the Participant to perform is obligation to contribute to the cost of the construction of Scripps Poway Parkway as set forth in Paragraph 3 of the First Amendment to the Owner Participation Agreement. f. The Agency and the Participant now desire to amend Paragraph 3 to revise the date for performance by the Participant of its obligation to pay the contribution of $1,377,000, and to require that the Participant pay interest on the principal of $1,377,000 pursuant to the conditions set forth below. NOW, THEREFORE, with reference to the foregoing recital and in consideration of the mutual promises, obligations, and covenants herein contained, the Participant and the Agency agree as follows: 1. Participant's obligation to contribute $1,377,000 to the construction of Scripps Poway Parkway from Pomerado Road to the westerly boundary of the City, incurred pursuant to Paragraph 3 of the First Amendment to the Owner Participation Agreement, shall be paid as follows: a. The Participant shall pay $302,940, plus accrued interest, as contribution to the cost of Scripps Poway Parkway at the time of issuance for the first building permits on the commercial property; b. The Participant 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 to the Development Agreement between The City of Poway and McMillin Equity Partners II, interest shall accrue a 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 Participant has paid the $1,377,000 in full, plus any accrued interest. 3. Within 120 days of execution of the Second Amendment to the Development Agreement between Trident Homes of California, Inc. and the City of Poway, Trident Homes of California, Inc. 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 #88 -0767. —2— 2160 4. Except as amended hereby, all provisions and conditions of the Owner Participation Agreement and the First Amendment to the Owner Participation Agreement shall remain in full force and effect. To the extent that any provision or condition in the Owner Participation Agreement or First Amendment is inconsistent with any provision or condition of this Second Amendment, this Second Amendment shall govern. 5. Upon execution of this Second Amendment by the Participant and the Agency, the Agency shall cause this Second Amendment to be recorded. Upon recording of this Second Amendment, the Agency shall deliver one (1) conformed copy thereof to the Participant 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 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. ATTEST: Marjorie . Wahlsten, Secretary APPROV D AS TO FORM AND SUBSTANCE: Step h n ",.Eckis, Agency Counsel —3— "Agency" POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic � BY • �Y"�-1 Don Higginson, Ch an "Participant" TRIDENT HOMES OF CALIFORNIA, INC., a California Corporation By: --Its: By: Its: AMERIC z1e1 } STATE OF CALIFORLIIA }ss. COUNTY OF .�2n Uie o On Fe&-u a r•/ /, /99S , before me, ,bycc A personally appeared i!eicgene G?hacc personally known to me (of pFeved to me Gn the to be the personN whose name() Ware subscribed to the within instrument and acknowledged to me that he /shefthey executed the same in his /herftheirauthorized capacity(ies), and that by his /he Wrei• signature(N on the instrument the personN or the entity upon behalf of which the personN acted, executed the instrument. WITNESS my hand and official seal. Signature W. .a� Y (This area for official notarial seal) Title of Document A)?f,,) 1m e,7 f fo A .-f.'ca�a -/isn figrc�r�.r,ca Date of Document N o. of Pages --3 — Other signatures not acknowledged 3008 (1194) (General) First American Title Insurance Company