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Res 91-045RESOLUTION NO. 91-045 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, APPROVING A FIRST AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDEVELOPMENT AGENCY AND MC MILLIN EQUITY PARTNERS II AND THE DISPOSITION BY THE REDEVELOPMENT AGENCY OF REAL PROPERTY IN THE PAGUAY REDEVELOPMENT PROJECT AREA WHEREAS, the Poway Redevelopment Agency (the "Agency") and McMillin Communities, Inc. (the "Developer") entered into a certain Owner Participation Agreement, dated June 18, 1990, (the "OPA") for the development of a certain portion of the Paguay Redevelopment Project Area (the "Project Area"); and WHEREAS, the Developer and Agency desire to approve an Amendment to the OPA (in the form attached hereto as Attachment "A" incorporated herein, which constitutes the "~endment") to modify the terms of the OPA; and WHEREAS, the Agency desires to transfer a remnant parcel (the "Property") to the Developer and to contribute toward the cost of the public improvements enumerated in the OPA and in this Amendment; and WHEREAS, the California Health and Safety Code Section 33445 provides that the Redevelopment Agency may, with the consent of the legislative body, pay all or part of the cost of public facilities, structures or other improvements upon a finding that such public improvements are of benefit to the Project Area or the immediate neighborhood in which the project is located and that there is no other reasonable means of financing such public improvements available for the community; and WHEREAS, the city Council, as the legislative body of the Agency, desires to approve the report with respect to the disposition of the Property pursuant to California Health and Safety Code Section 33433 and hereby reaffirms the findings as to the disposition of the Property set forth in Resolution No. 90- 100 of the City. NOW, THEREFORE, the City Council of the City of Poway does resolve as follows: Section 1: The recitals hereof are true and correct and are hereby incorporated into this Resolution. Section 2: The Environmental Impact Reports prepared with respect to the Project described in the OPA and the Amendment (and all undertakings pursuant thereto) which were certified and Resolution No. 91-045 Page 2 approved by the City Council pursuant to Resolution Nos. 88-074 and 89-161, are hereby certified and approved to be adequate for this Amendment as there are no material changes which would have a significant effect upon the environment. Section 3: The City Council made findings regarding the disposition of the property, pursuant to Health and Safety Code Section 33433, in Resolution No. 90-100, and now hereby confirms such findings. Section 4: The City Council, as the legislative body of the Agency, does now approve the report on the disposition of property pursuant to California Health and Safety Code Section 33433. Section 5: The City finds and determines that: (a) the approval of this Amendment will promote the objectives of the Redevelopment Plan and promote the health, safety, and welfare of the citizens of the City of Poway; and (b) the Amendment is consistent with the orderly development of the improvements to be provided by the Developer pursuant to the OPA. Section 6: Pursuant to Health and Safety Code Section 33445; (a) the provision of the improvements is of benefit to the Project Area and the neighborhood in which such improvements are to be situated; and (b) no other reasonable means of financing the improvements are available to the City of Poway. Section 7: The city Council, as the legislative body of the Agency, hereby consents to the payment by the Agency of the cost of the Public Improvements referred to in the OPA. Section 8: The City Council approves the Amendment in the form of Attachment "A" and authorizes and directs the Chairman and the Executive Director of the Agency to execute that Amendment and such other documents as may be determined by the City Attorney and the Agency Counsel to be necessary or appropriate to effectuate the OPA as now amended. Resolution No. 91-045 Page 3 PASSED, ADOPTED AND APPROVED, by the City Council of Poway, California, at a regular meeting thereof this 14th day of May, 1991. ATTEST: Ma~jor;e ~.-/~ah'l~ste~, ~ity Clerk Goldsm \ STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby certify the foregoing Resolution No. 91-045 was duly adopted by the City Council at a meeting of said City Council on the 14th day of May, 1991 and that it was so adopted by the following vote: AYES: NOES: ABSTAIN: ABSENT: EMERY, HIGGINSON, SNESKO, GOLDSMITH NONE NONE MCINTYRE Mar~or~e-~. Wahl§ten; ~ty Clerk City of Poway C: \MCMCC. RES EXHIBIT "A" Resolution No. 91-045 Page 4 RECORDING REQUEST BY: ) ) City of Poway ) ) WHEN RECORDED, MAIL TO: ) ) City Clerk ) City of Poway ) P. O. Box 789 ) Poway, California 92064 ) ) No Transfer Tax Due (Space above this line for Recorder's Use) AMENDMENT TO OWN-ER PARTICIPATION AGREEMENT BY AND BETWEEN THE POWAY REDE~'ELOPMENT AGENCY, AND McMILLIN EQUITY PAR~qERS II AGENCY, PARTICIPA/qT. 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 14 , 1991, by and between the POWAY REDEVELOPMENT AGENCY, ("Agency"), AND MCMILLIN EQUITY PARTNERS II, a California general 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. Resolution No. 91--045 Page 5 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 satisfaction of the obligations under TTM 88-04R to contribute'to the construction of South Poway Parkway, agrees to contribute to the Agency a portion of the costs of construction as follows: DATE CONTRIBUTION April 1, 1992, or upon the completion and acceptance by Powa¥ of that portion of the South Poway Parkway road improvements which are the responsibility of the Agency, whichever is later. $ 459,000.00 Unit 2 Final Map Recording $ 918,000.00 Total Contribution $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. -2- Resolution No. 91-045 Page 6 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 ?oway 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. -3- Resolution No. 91-045 Page 7 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. POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic ATTEST: By: Its: "Agency" APPROVED AS TO FORM AND SUBSTANCE: McMILLIN EQUITY PARTNERS II, a California general partnership By': Its: "Participant" -4-