Amendment to Owner Participation Agreement 1991-02529190G40V 1991 - 0252919
30 -MAY -1991 08 08 Aid
RECORDING REQUEST BY:- ) 714 SAN DIEGO COUNTY RECORDER'S OFFICE
ANNETTE EVANS , COUNTY RECORDER
City of Poway ) FEES: 0.00
WHEN RECORDED, MAIL TO: )
City Clerk )
City of Poway )
P. 0. Box 789 )
Poway, California 92014 )
No Transfer Tax Due (Space above this line for Recorder's Use)
AMENDMENT TO
OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
THE POWAY REDEVELOPMENT AGENCY,
AND
McMILLIN EQUITY PARTNERS II
AGENCY,
PARTICIPANT.
This AMENDMENT TO OWNER PARTICIPATION AGREEMENT BY AND BETWEEN
THE POWAY REDEVELOPMENT AGENCY, AGENCY, AND McMILLIN EQUITY
PARTNERS II, PARTICIPANT, ( "Amendment ") is made as of May 16,
1991, by and between the POWAY REDEVELOPMENT AGENCY, ( "Agency
AND McMILLIN EQUITY PARTNERS II, a California limited partnership
( "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 McMillin Communities, Inc. are
parties to the Owner Participation Agreement by and between
the Poway Redevelopment Agency, Agency, and McMillin
Communities, Inc., Participant ( "Owner Participation
Agreement "), executed on June 18, 1990.
b. The Agency, McMillin Communities, Inc., and the City
of Poway ( "Poway ") entered into the Interim Agreement Among
the Poway Redevelopment Agency, the City of Poway, and
McMillin Communities, Inc. Regarding Tentative Tract Map 88-
04R ( "Interim Agreement ") as of March 19, 1991.
C. Pursuant to the Interim Agreement, the Agency and
McMillin Communities, Inc. have agreed to use their best
efforts, subject to the public hearing process, to amend the
Owner Participation Agreement to reflect the terms of the
Interim Agreement, all upon the terms and provisions set forth
herein.
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d. With the consent of the Agency, McMillin
Communities, Inc. has assigned all its rights and delegated
all its obligations under the Owner Participation Agreement
to the Participant, record owner of all legal interest in the
Property governed by Tentative Tract Map No. 88 -04R ( "TTM 88-
04R") as of the date of this Amendment.
2. The Agency agrees to construct or cause to be constructed
at its own expense the public roadway -improvements scheduled for
that portion of South Poway Parkway located along the Participant's
frontage, as the improvements are described in the Owner
Participation Agreement, including, without limitation, Attachment
No. 3 to the Owner Participation Agreement. Until such time as the
engineering plans and specifications are sufficient (according to
the standards of the construction industry) to be included in a bid
package, the Participant shall bear the costs of the engineering
plans and specifications prepared by Church Engineering for the
construction of South Poway Parkway, and shall, at the
Participant's expense, continue to coordinate the preparation of
the engineering plans and specifications. The Agency shall bear
all costs for the construction of the improvements, shall be
responsible for all fees associated with development of the
improvements, and shall bear all risks associated with soil and
subsurface conditions. The Agency further agrees to release the
Participant from all obligations for the construction of South
Poway Parkway as those obligations are described in the Owner
Participation Agreement, including, without limitation, Attachment
No. 3 of the Owner Participation Agreement.
3. The Participant, in complete
obligations under TTM 88 -04R to contribute
South Poway Parkway, agrees to contribute
of the costs of construction as follows:
DATE
April 1, 1992, or upon the completion and
acceptance by Poway of that portion of the
South Poway Parkway road improvements
which are the responsibility of the
Agency, whichever is later.
Unit 2 Final Map Recording
Total Contribution
satisfaction of the
to the construction of
to the Agency a portion
CONTRIBUTION
$ 459,000.00
$ 918,000.00
$1,377,000.00
The Agency and the Participant further agree 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 may be considered for amendment.
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4. The Participant agrees to release the Agency from all
obligations related to discharge of fees, previously incurred under
Section 205, Subparagraph (i), of the Owner Participation
Agreement. However, the Agency hereby expressly retains the
obligation to transfer to the Participant, upon recordation of the
first final map of Tentative Tract 88 -04R, those portions of Lots
119, 120 and 121 shown on the final map which are currently owned
by the Agency, and the Participant hereby expressly retains the
obligation to pay any and all closing or transfer expenses incurred
in connection with the Agency's transfer of those portions of Lots
119, 120 and 121 to the Participant, both according to the terms
set forth in Section 205, Subparagraph (ii), of the Owner
Participation Agreement.
5. The Agency agrees to release the Participant from all
obligations related to a letter of credit in the amount of Eight
Hundred Ninety -Four Thousand and No /100th Dollars ($894,000.00),
previously incurred under Section 206, Subparagraph (iv), of the
Owner Participation Agreement.
6. a. The Agency agrees to release the Participant from
all obligations under the Owner Participation Agreement for the
construction of, or contribution to, public improvements,
including, but not limited to, dedication and construction of
Pomerado Road and all other public improvements and utilities set
out in Attachment No. 3 to the Owner Participation Agreement.
b. The Agency and the Participant further agree that
all of the Participant's obligations to construct or contribute
public improvements, including, but not limited to, dedication and
construction of Pomerado Road and all other public improvements and
utilities set out in Attachment No. 3 to the Owner Participation
Agreement (except for those improvements associated with South
Poway Parkway, which pursuant to Paragraph 2 of this Amendment are
now the obligation of the Agency), shall henceforth be governed
solely by the terms of the Development Agreement between the
Participant and the City and by the conditions of TTM 88 -04R,
approved by the City Council of the City of Poway by Resolution P-
90-35 on May 15, 1990.
7. The Agency hereby grants prior written approval to the
Participant for the assignment of all of its rights and delegation
of all of its obligations under the Owner Participation Agreement
and this Amendment to McMillin Communities, Inc., or to any entity
in which McMillin Communities, Inc. is a partner (collectively
"McMillin "). The Agency hereby finds that McMillin is and will be
financially capable of performing the duties and discharging the
obligations it is assuming. Additionally, the Agency hereby agrees
that the Participant shall be relieved of all of its obligations
under the Owner Participation Agreement and this Amendment upon
receipt of a writing executed by McMillin in which McMillin
purports to assume the obligations.
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8. Except as expressly provided herein in this Amendment,
all provisions of the Owner Participation Agreement remain in full
force and effect. To the extent that any provision in the Owner
Participation Agreement is inconsistent with the provisions
contained herein, this Amendment shall govern.
9. Upon the execution of this Amendment by the Agency and
the Participant, the Agency shall cause this Amendment to be
recorded. Upon recording of this Amendment, the Agency shall
deliver one (1), conformed copy thereof to the Participant no later
than thirty (30) days after the date of recording.
10. Each individual signing below represents and warrants
that he or she has the authority to execute this Amendment on
behalf of and bind the party that he or she purports to represent.
IN WITNESS WHEREOF, the Agency and the Participant have signed
this Amendment.
"Agency"
POWAY REDEVELOPMENT AGENCY, a public body,
"Participant"
McMILLIN EQUITY PARTNERS II, a California
limited partnership
By:MCMILLIN DEVELOPMENT, INC.
General Partner
�t
By: rl ,
i /
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STATE OF CALIFORNIA )
ss.
COUNTY OF San Diego )
On May 16, 1991 before me, the undersigned, a
Notary Public in and for said State, personally appeared
Robert L. Jones ---------- - - - - -- and Robert M. McGill---------
, personally known to me
bas �_ �_ t_ _j __a__-_) to be the persons who executed the
—� -� --._rte y-n r—� _ _ rr__rrc -�
within instrument as Senior Vice President ; and
Senior Vice President , on behalf of McMillin Development, Inc.
, 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 Q•
STATE OF CALIFORNIA
COUNTY OF
On this the day of
personally appeared
personally known to me (or proved to
satisfactory evidence) to be the persons
instrument as and
corporation named herein.
1
ss.
)
the
OFFICIAL SEAL
JOYCE A BROOK
Notary Pubfio`Cd fomia
Q
SAN DIEGO COUNTY
tly Comm. Exp. Mar. 31, 1893
(This area for official notarial seal)
199_, before me, _
undersigned Notary
Witness my hand and official seal.
Signature
me on the
who executed
of the
Public,
basis of
the within
municipal
(This area for official notarial seal)
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