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.
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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.
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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"
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