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Home My WebLink About03 DDA PARCEL 33 AMEND 04-05-04 A G END A REPORT Agenda Item 3 Reviewed: t£ City Manager Finance Director MEETING DATE: APRil 5, 2004 TO: WilLIAM A. HUSTON, CITY MANAGER FROM: CHRISTINE SHINGLETON, ASSISTANT CITY MANAGER SECOND AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT FOR PARCEL 33, TUSTIN lEGACY SUBJECT: SUMMARY Minor, non-substantive modifications to the Disposition and Development Agreement (DDA 03- 01) for Parcel 33 have been necessary to implement provisions of the original DDA as it affects homeless accommodation and the Salvation Army Agreement. RECOMMENDATION That the City Council approve and authorize the City Manager's execution of the Second Amendment to DDA 03-01, subject to any non-substantive modifications as may be determined necessary by the City's Special Counsel. FISCAL IMPACT No additional fiscal impacts are anticipated beyond those identified for DDA 03-01. BACKGROUND AND DISCUSSION The City Council, at a regular meeting on March 3, 2003, authorized execution of a Disposition and Development Agreement (DDA 03-01) between the City of Tustin and Wl Homes LLC, doing business as John Laing Homes, for Parcel 33. The City Council's approval was subject to non-substantial modifications to the DDA as were deemed necessary by the City's Special Counsel and City Manager also authorizing all actions necessary to implement DDA 03-01 including execution of all related documents. Subsequently a minor First Amendment to DDA 03-01 was approved by the City Council on April 3, 2003. Additional minor non-substantive changes are now necessary to implement the recent agreement with the Salvation Army for homeless accommodation. These amendments continue to be consistent with the original DDA and are only clarifications related to implementation. The Second Amendment to the DDA 03-01 is attached for City Council Approval. ~ - hristine Shing~ Assistant City Manager Attachment: Second Amendment to DDA 03-0t SECOND AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT FOR PARCEL 33 TillS SECOND AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT FOR PARCEL 33 (the "Second Amendment") is entered into as of , 2004 (the "Effective Date") by and between the CITY OF TUSTIN (the "City") and WL HOMES LLC, a Delaware limited liability company (the "Developer"). The City and the Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties." 1. RECITALS: 1.1 The Orieinal DDA. The Parties entered into that certain Disposition and Development Agreement for Parcel 33 dated as of March 10, 2003 (the "Original Parcel 33 DDA"). The Original Parcel 33 DDA was amended by that certain amendment dated as of March -, 2003, entitled "First Amendment to the Disposition and Development Agreement for Parcel 33". The Original Parcel 33 DDA as amended is hereinafter referred to as the "Parcel 33 DDA". 1.2 The Parcel 34 DDA. The Parties entered into that certain Disposition and Development Agreement for Parcel 34 dated as of October -, 2003 (the "Parcel 34 DDA"). 1.3 follows: Salvation Armv Request. Section 13.4 of the Parcel 34 DDA reads in part as "13.4 Homeless Assistance Aereement. "13 .4.1 Homeless Accommodation. Pursuant to Section 3.9.4 1. of the Specific Plan, Developer is not only responsible for minimal affordable housing production as identified in this Agreement, but also is responsible for compliance with the Homeless Accommodation Plan described in Sections 2.3.6 and 2.4 of the Specific Plan and with the Homeless Assistance Plan, Homeless Assistance Agreement and the First Amendment to the Homeless Assistance Agreement. . . entered into by and between the City and the Orange County Rescue Mission, the Salvation Army, Human Options, Irvine Housing and Orange Coast Interfaith Shelter. Pursuant to said Homeless Accommodation Documents, the Salvation Army requested 24 units of existing family housing as transitional housing on Parcel 34 . . .. The Community Redevelopment Act of 1994 and provisions of the Homeless Accommodation Documents provide the flexibility for the following: "(a) "(b) .. .. , . .. . , IJRAjraIRevised Amendment3.04.04.dnclO30404/4182.002] "(c) A cash payment to the Salvation Army "substantially equivalent" to the replacement value of the 24 Existing Housing Units that would otherwise have been leased to the Salvation Army on Parcel 34; or "(d) A combination of cash and units, either on or off Parcel 34. "13.4.2 Developer's Obligations Regarding Homeless Accommodation. "(a) Developer has identified in its development proforma a One Million Eight Hundred Thirty Seven Thousand Five Hundred and Fifty Three Dollars ($1,837,553) development cost ("Transitional Housing Amount") associated with accommodating the Salvation Army homeless assistance obligations on Parcel 34. As a condition to Close of Escrow, Developer shall provide the Transitional Housing Amount either by posting a Performance Bond in form and substance acceptable to the City in its sole discretion for such amount in favor of the City or by paying such amount in cash into an escrow account established for the benefit of the City ("Homeless Assistance Escrow") to be held in the names of Developer and City, in each case in accordance with the provisions of Section 7.3.7. . .. The Transitional Housing Amount shall be utilized to satisfy the obligations of the parties to the Salvation Army. . . . "(b) As part of the Salvation Army Agreement, Developer hereby agrees that if the City or the Salvation Army so requests, Developer shall be required to sell to the City six very low income affordable housing units at Tustin Legacy on Parcel 33 ("Parcel 33 Affordable Housing Units") or at any other location at Tustin Legacy controlled by the Developer at a sale price not to exceed $150,000 per unit for a total not to exceed $900,000, unless the Salvation Army agrees to accept conveyance directly from the Developer of Alternate Units that Developer may purchase (which may be more than 6 units) at a cost not to exceed $900,000. If the Salvation Army determines to accept the Parcel 33 Affordable Housing Units, the City will enter into a no-cost lease with and/or provide fee title to the Salvation Army for the Parcel 33 Affordable Housing Units under the lease terms and conditions originally identified in the Homeless Assistance Documents which would also require that the Parcel 33 Affordable Housing Units be occupied only by Very Low Income Households. . .. Developer agrees that it shall cooperate with the City and modify and execute an amendment to the Tustin Legacy Disposition and Development Agreement for Parcel 33 (DDA 03-01) by and between the City and the Developer dated as of March 10, 2003 as necessary to effectuate the foregoing. "(c) "13.4.3 ....." 1.4 Aereement with the Salvation Armv. The City and the Salvation Army have entered into an agreement pursuant to which the Salvation Army shall be conveyed the Parcel 33 Affordable Housing Units as provided in Section 13.4.2(b) of the Parcel 34 DDA, and the Parties have agreed to amend the Parcel 33 DDA in accordance with the Salvation Army Agreement. [JRAjraIRevised Amendment3.04.04.dnclO30404/4182.002] 2 2. Aereement to Amend the Parcel 33 DDA. The Parties hereby amend the Parcel 33 DDA as follows: 2.1 follows: Definitions. Attachment No.2 to the Parcel 33 DDA shall be modified as (a) Terms specially defined in Attachment No.2 shall have the same meaning in this Second Amendment except as expressly provided in this Second Amendment. (b) The definition of "Business Day" shall be amended to read as follows: " "Business Day(s)" shall mean any day on which City Hall is open for business and shall specifically not include Fridays when City Hall is officially closed, Saturday, Sunday or a legal holiday." (c) There shall be added a new definition for "Certificate of Occupancy" which shall read as follows: ""Certificate of Occupancy" shall mean a certificate of occupancy or the equivalent approval of the City's Building Official, including for residential buildings a "building final"." (d) The definitions of Complete and Completion shall be amended to read as follows: ""Complete" and "Completion" shall mean, with respect to a Phase or Parcel, the point in time when all of the following shall have occurred with respect to the Phase or Parcel: (I) with respect to all Improvements to be located on the Phase or Parcel as provided in this Agreement: (A) to the extent a Certificate of Occupancy is required before any such Improvements may be legally occupied, the issuance of a Certificate of Occupancy for all such Improvements; (B) to the extent a Certificate of Occupancy is not required before any such Improvements may be legally occupied, the issuance of a Partial Certificate of Compliance by the City for all such Improvements; (C) recordation of a Notice of Completion by the Developer, its Assignee or such Party's contractor for all such Improvements; and (D) certification by the Project Architect that all such Improvements have been completed (with the exception of minor "punch list" items) in a good and workmanlike manner and substantially in accordance with the approved plans and specifications (which shall not be required for single family houses); and (2) any mechanic's liens that have been recorded against title to the Phase or Parcel, and any stop notices that have been delivered with respect to any Improvements related to such Phase or Parcel, have been paid, settled or otherwise extinguished, discharged, released, waived, bonded around or insured against." (e) The definition of "Owner-Occupied" shall be amended to read as follows: " "Owner-Occupied" shall mean a Unit that is either (a) owned and occupied by the fee owner of such Unit, or (b) is a Unit conveyed to the Salvation Army pursuant to the terms of the Salvation Army Agreement." (I) The definition of "Owner-Occupier" shall be amended to read as follows: " "Owner Occupier" shall mean either (a) a person or persons who own in fee and occupy, for residential purposes, an individual Unit, or (b) the Salvation Army with respect to any Units conveyed to the Salvation Army pursuant to the terms of the Salvation Army Agreement, but only for so long as the Salvation Army retains fee title to the Unit or Units." [JRAjra/Revised Amendment3 .04.04.dnclO3040414182.002] 3 (g) There shall be added a new definition for the "Salvation Army Agreement" which shall read as follows: " "Salvation Army Agreement" shall mean that certain agreement dated , 200_, by and between the City and the Salvation Army." 2.2 Convevance of Units to the Salvation Armv. Developer shall convey to the Salvation Army fee title to six Parcel 33 Affordable Housing Units (as defined in the Parcel 34 DDA) designated by the City. The City shall pay to Developer $900,000 for such conveyance by authorizing the payment to the Developer of said amount from the Homeless Assistance Escrow (as defined in the Parcel 34 DDA). The Parties agree that the conveyance to the Salvation Army of fee title to the Parcel 33 Affordable Housing Units shall be deemed to be a sale to Very Low Income Households for purposes of Sections 13.1. 13.2.1 and 14.2.2(a) of the Parcel 33 DDA. 2.3 Use of the Parcel 33 Affordable Housine Units bv the Salvation Armv. The Parties agree that the lease of a Parcel 33 Affordable Housing Unit by the Salvation Army to a Very Low Income Household and/or permitting persons of a Very Low Income Household to occupy a Parcel 33 Affordable Housing Unit shall be permitted by the Parcel 33 DDA and: (a) shall not be in violation of Sections 13.2.1(c) or 13.2.4(a) of the Parcel 33 DDA, and (b) shall not be a default under, or a violation of an provision of, the Affordable Housing Covenant, Affordable Housing Trust Deed or Affordable Housing Option Agreement recorded against any such Unit. 2.4 Sale and Close of Escrow on Units. The timing for the action listed as Item 8 ("Sale and Close of Escrow on Units") in the Schedule of Performance attached to the Parcel 33 DDA as Attachment No.7 shall be amended as follows: (a) The timing for Item 8B ("Close of escrow for Units in Phase 2 or in any subsequent Phase") shall be amended to read as follows: "Only following the issuance by the City of a Certificate of Occupancy for all Affordable Units in Phase 1 and upon the issuance of a Certificate of Occupancy of one Affordable Unit for every six Closes of Escrow of Non- Affordable Units." (b) The timing for Item 8C ("Close of escrow for final 20 Non-Affordable Units in Project") shall be amended to read as follows: "Only following the issuance by the City of Certificates of Occupancy for all Affordable Units in Project." 2.5 Attachment No. 6C. There shall be added to the Parcel 33 DDA a new and additional Attachment No. 6C entitled "First Amendment to Subsequent Participation Deed of Trust and Spreader Agreement", a true and correct copy of which is attached hereto as "Attachment No. 6C". The second sentence of Section 4.2.3 of the Parcel 33 DDA shall be amended to read as follows: "The Subsequent Participation shall be junior to all Permitted Mortgages and shall be secured, computed and paid as and when provided in the document attached as Attachment No. 6A and shall be secured by the Subsequent Participation Deed of Trust attached as Attachment No. 6B, as amended by that certain First Amendment to Subsequent Participation Deed of Trust and Spreader Agreement [JRAjralRevised Amendment3.04.04.dnclO304O4l4182.002] 4 attached as Attachment No. 6C, which shall be subordinate to all Permitted Mortgages." The phrase "Deed of Trust" used in Attachment No. 6A to the Parcel 33 DDA shall be modified to mean the deed of trust in the form attached as Attachment 6B to the Parcel 33 DDA as amended by the First Amendment to Subsequent Participation Deed of Trust and Spreader Agreement attached as Attachment No. 6C to the Parcel 33 DDA. 2.6 follows: Miscellaneous Amendments. The Parcel 33 DDA shall also be amended as (a) The first sentence of Section 2.7.3 shall be amended to read as follows: "Until recordation of the Final Certificate of Compliance in the Official Records, the following shall apply to every Mortgage with respect to the Site or any portion thereof:" (b) The first sentence of Section 8.1.6(b)(2) shall be amended to read as follows: "If the Project is to be constructed in Phases, as part of the initial Phase of the Project or otherwise, concurrently with construction of the Required Horizontal Improvements, as part of the Common Area Improvements, the Developer shall construct within the Common Areas certain landscaped open-space facilities of approximately one (1) acre in area in the location and as depicted on the Preliminary Plan and the Approved Project Plans and including improvements as required by the Tustin Code to qualify for Quimby Fee waiver ("Park Facilities") that shall be open and accessible to the public." (c) The last incomplete sentence in Section 8.3.7 shall be deleted. (d) Section 11.1.4(b)(ii) shall be amended to read as follows: "The policy shall provide Five Million Dollars ($5,000,000) in coverage, subject to a maximum $300,000 deductible per claim, to protect against claims and loss from liability relating to known and unknown conditions on the Adjacent Parcel for a lO-year term with an extended 5-year reporting period and containing coverage substantially equivalent to that provided by the City's Environmental Insurance Policy, in form and content acceptable to the City." (e) Section 16.3.2(f)(i) shall be amended to read as follows: "(i) Issuance by the City of a Certificate of Occupancy for the Unit." 3. Continued Effectiveness of the Parcel 33 DDA. Except as expressly modified as provided in this Second Amendment, the Parcel 33 DDA shall remain in full force and effect. 4. Modifications or Amendments. No amendment, change, modification or supplement to this Second Amendment shall be valid and binding on any of the Parties unless it is represented in writing and signed by each of the Parties hereto. 5. Applicable Law. This Second Amendment shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice-of-law principles. [JRA:jralRevised Amendment3.04.04.dnclO304O4l4182.002] 5 6. Further Assurances. Each of the Parties hereto shall execute and deliver at their own cost and expense, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of their respective obligations hereunder in order to carry out the intent and purposes of this Second Amendment. 7. No Third Partv Beneficiaries. This Second Amendment has been made and entered into solely for the benefit of the Parties to this Second Amendment and their respective successors and permitted assigns. Nothing in this Second Amendment is intended to confer any rights or remedies under or by reason of this Second Amendment on any persons other than the Parties to it and their respective successors and permitted assigns. Nothing in this Second Amendment is intended to relieve or discharge the obligation or liability of any third persons to any Parties to this Second Amendment. 8. Counterparts. This Second Amendment may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Second Amendment shall not be effective until the execution and delivery by the Parties of at least one set of counterparts. The Parties agree to recognize execution of this Second Amendment by facsimile signatures; provided, however, that such execution by facsimile shall not be effective unless a manually executed copy of the signature page is promptly sent by United States, postage prepaid, and such manually signed page is actually received by the other Party within ten (10) days of its execution. The Parties hereby authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Anyone of such (continued on next page) [JRA:jraIRevised Amendment3.04.04.dnclO30404/4182.002] 6 completely executed counterparts shall be sufficient proof of this Second Amendment. IN WITNESS WHEREOF, the City and the Developer have signed this Second Amendment as of the date first set forth above. "CITY" City of Tustin Dated: By: William Huston, City Manager ATTEST: By: Pamela Stoker City Clerk Dated: APPROVED AS TO FORM Special Counsel for the City GILCHRIST & RUTTER PROFESSIONAL CORPORA nON By: James R. Andrews "DEVELOPER" WL HOMES LLC, a Delaware limited liability company dba John Laing Homes Dated: By: Steve Kabel President, Southern California Region Dated: By: Mitchell Bradford Vice President, Southern California Region [JRA:jra/Revised Amendment3.04.04.dnclO30404/4182.002] 7 CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Assistant City Manager The City of Tustin 300 Centennial Way Tustin, California 92780 FIRST AMENDMENT TO SUBSEQUENT PARTICIPATION DEED OF TRUST AND SPREADER AGREEMENT TillS FIRST AMENDMENT TO SUBSEQUENT PARTICIPATION DEED OF TRUST AND SPREADER AGREEMENT (this "Amendment") is made as of March _,2004, by and between WL HOMES LLC, a Delaware limited liability company, herein called "Trustor," "First American Title Insurance Company" herein called "Trustee," and the CITY OF TUSTIN, a municipal corporation, herein called "Beneficiary," with reference to the following facts: RECITALS A. Trustor and Beneficiary have entered into that certain Tustin Legacy Disposition and Development Agreement For Parcel 33, dated as of March 10, 2003 ("Original DDA"), evidenced by that certain Memorandum of Disposition and Development Agreement For Parcel 33, recorded on April 18, 2003 in the Official Records of Orange County (the "Official Records") as Instrument No. 2003000433404, as amended by that certain First Amendment to Disposition and Development Agreement For Parcel 33, dated as of March 31, 2003, and as further amended by that certain Second Amendment to Disposition and Development Agreement For Parcel 33, dated of even date herewith (collectively, as amended, the "DDA"). All capitalized terms used in this Amendment, unless otherwise defined herein, shall have the same meaning ascribed to such terms in the DDA. B. Beneficiary is the holder of that certain Subsequent Participation Deed of Trust With Assignment of Rents, dated as of April 18, 2003 (the "SP Deed of Trust"), executed by Trustor for the benefit of Beneficiary, which Deed of Trust was recorded on October 24,2003 in the Official Records as Instrument No. 2003001314828, encumbering that certain real property more particularly described on Exhibit "A" attached hereto (the "Developer Parcel"). C. The SP Deed of Trust was entered into and recorded by Trustor for the purpose of securing (1) payment of the Subsequent Participation amounts as defined under the terms of the DDA by and between Beneficiary and Trustor, (2) payment of all other amounts payable by Trustor to Beneficiary as described under Attachment No. 6A to the Original DDA, and (3) the [HAH:ab/Fmt Amendment to Subsequent Participation.1.1O0905_3.dnclO30504/4182.002] performance of each agreement of Trustor incorporated by reference or contained in the SP Deed of Trust. D. Pursuant to the terms and conditions of the DDA, and as particularly set forth in Attachment No. 6A of the Original DDA, Trustor and Beneficiary agreed that the SP Deed of Trust is also to encumber certain additional real property in the City of Tustin, Orange County, adjacent to the Developer Parcel, which additional real property is more particularly described on Exhibit "B" attached hereto (the "Adjacent Parcel") upon acquisition of the Adjacent Parcel by Trustor. The Developer Parcel and the Adjacent Parcel are referred to herein collectively as the "Property". E. Trustor has acquired the Adjacent Parcel in accordance with the terms of the DDA, and Trustor and Beneficiary now desire and mutually agree to amend the SP Deed of Trust in the manner hereinafter set forth, to include the legal description of the Adjacent Parcel in the land encumbered by the SP Deed of Trust and securing, in favor of Beneficiary, Trustor's obligations under the SP Deed of Trust. AGREEMENT NOW, THEREFORE, in consideration of the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Trustor and Beneficiary hereby agree as follows: 1. Trustor grants, transfers and assigns to Trustee in trust, with power of sale, the Adjacent Parcel together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the Subsequent Participation amounts, (2) payment of all other amounts payable by Trustor to Beneficiary as described under Attachment No. 6A to the Original DDA, and (3) the performance of each agreement of Trustor incorporated by reference or contained herein. The grant, transfer and assignment to Trustee is subject to all of the terms and conditions of the SP Deed of Trust, which terms and conditions are incorporated herein by reference, and the obligations of Trustor set forth in the SP Deed of Trust shall equally apply to the obligation of Trustor hereunder. The lien of the SP Deed of Trust is hereby spread over and also made a lien upon all of Trustor's right, title and interest in and to the Adjacent Parcel together with the rents, issues and profits thereof. In furtherance of the foregoing, all references to the "property" in the SP Deed of Trust are hereby deemed to refer to and include the entirety of the Property. 2. Trustor, for itself and its successors and assigns, does hereby represent, warrant and covenant to and with Beneficiary and Trustee and their respective successors and assigns, that: a. Trustor has full power and lawful authority to grant, bargain, sell, convey, assign, transfer and encumber its interest in the Adjacent Parcel in the manner and form hereby done and intended. Trustor shall preserve its interest in the Property and will forever warrant and defend the same to Beneficiary and Trustee against any and all claims whatsoever and will forever warrant and defend the validity and priority of the lien and security interest spread [HARablFirst Amendment to Subsequent Participation. t.1 00905_3.docßJ30504/4182.002] hereby against the claims of all persons and parties whatsoever, subject only to the exceptions heretofore approved by Beneficiary in writing. The foregoing warranty of title shall survive the foreclosure of the SP Deed of Trust, as amended hereby, and shall inure to the benefit of and be enforceable by Beneficiary and/or Trustee in the event Beneficiary acquires title to the Property or any portion thereof. b. All representations and warranties of Trustor set forth in the DDA are true and correct as of the date hereof and are incorporated herein by this reference as though fully set forth in this Amendment. 3. Trustor hereby acknowledges and agrees that all covenants, conditions, restrictions, representations and warranties set forth in the DDA and SP Deed of Trust shall apply with full force and effect to the Property, with the same force and effect as if the Adjacent Parcel had been described in and encumbered by the SP Deed of Trust upon the execution, delivery and recordation thereof. 4. This Amendment may be executed in counterparts, each of which shall constitute an original and all of which together are and shall constitute one and the same instrument. 5. Except as expressly set forth in this Amendment, the terms, provisions, covenants, and conditions of the SP Deed of Trust remain unmodified and in full force and effect. [signatures on following pages] [HAH:ablFirst Amendment to Subsequent Participatinn.l.! 00905_3.doc@30504/4182.002] IN WITNESS WHEREOF, the parties have executed this Amendment the day and year first above written. TRUSTOR: WL HOMES LLC, a Delaware limited liability company By: Steve Kabel President, Southern California Region By: Mitchell Bradford Vice President, Southern California Region BENEFICIARY: CITY OF TUSTIN, CALIFORNIA By: William A. Huston City Manager APPROVED AS TO FORM Special Counsel for the City GILCHRIST & RUTTER PROFESSIONAL CORPORATION By: Name: [HAH:ablFirst Amendment to Subsequent Participation.l.l00905_3.dncJJ3050414182.002] STATE OF ) ) ss. ) COUNTY OF On , before me, , a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in hislher authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State [HAH:abIFirst Amendment to Subsequent Participation.l.1 00905_3.doc!P30504/4182.002] STATE OF ) ) ss. ) COUNTY OF On , before me, , a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State [HAH"blFirst Amendment to Subseqnent Participation.!. t 00905_3.d0cc'930504/4182.002] EXHIBIT "A" Leeal Description of the Developer Parcel [See Attached] [HAH:ablFirst Amendment to Subsequent Participation. 1.1 00905_3.dnclO30504/4182.002] EXHIBIT "B" Leeal Description of the Adjacent Parcel [See Attached] [HAH:abIFirst Amendment to SubsequentParticipation.l.100905_3.dnc¡¡¡30504/4182.002]