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.
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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.
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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
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"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
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Other signatures not acknowledged
3008 (1194) (General)
First American Title Insurance Company