HomeMy WebLinkAboutPRE 2024-0019; SUNNY CREEK - SB 330; Preliminary Review (PRE)
Preliminary Housing Development
(SB-330) Pre-Application
P-32
Community Development Dept.
Planning Division
1635 Faraday Avenue
(442) 339-2600
www.carlsbadca.gov
Refer to IB-132 for information
P-32_Preliminary Housing Development Pre-Application (11/2021) Page 1 of 5
SUBMITTAL INFORMATION
All forms must be completed, signed, and submitted as a PDF attachment to your submittal. Please refer to info-
bulletin IB-132 for additional information.
APPLICATION & PAYMENT
☐ Application & Materials
Provide an electronic copy of your application and required documents on a flash drive or a CD. All items,
including additional pages, supporting documents, studies, plans, and reports, must be saved as
individual PDFs and labeled accordingly.
☐ Fees
Payment of fees is required for all pre-applications. Payment via check, electronic check, or credit card
is required before project review or processing. Once the application is submitted, city staff will follow
up electronically with an invoice for the total fee amount. Fees may be paid online, in-person or
dropped off at 1635 Faraday Avenue for processing.
PHOTOGRAPHS
☐ Aerial Site Photograph
Provide aerial photographs showing existing site conditions of environmental site features that would be
subject to regulations by a public agency, including creeks and wetlands.
LEGAL DESCRIPTION
☐ Legal Description
Include a legal description of the specific location. The best place to find a legal description is usually the
most recent deed to the property.
PLANS
☐ Condensed Site Plan
Provide a site plan showing the location on the property. Show the location of any recorded public
easement, such as easements for storm drains, water lines, and other public rights of way. Indicate
location of any stream or other resource that may be subject to a streambed alteration agreement
pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code. Please
attach a separate site plan and elevations on a digital sheet size of minimum 8 ½ -inches by 11-inches
and maximum 11-inches by 17-inches.
☐ Condensed Elevations
Provide elevations showing design, color, and material, the building height and massing, and
approximate square footage of each building.
{city of
Carlsbad
P-32_Preliminary Housing Development Pre-Application (11/2021) Page 2 of 5
❶ PRELIMINARY APPLICATION FORM
APPLICATION TYPE (CHOOSE ONE)
☐ Preliminary Housing Development (SB-330) ☐ Affordable Housing Streamlined Approval (SB-35)
PROPERTY INFORMATION
Property Address:
Assessor Parcel Numbers (APN):
Project Data # Existing # to be Demolished If so, # Occupied
Residential Units – Number:
Residential Units – Floor Area (Sq. Ft.):
Nonresidential – Floor Area (Sq. Ft.):
Existing Uses/Site conditions (Describe in detail existing uses/physical conditions on the site.)
PROPOSED PROJECT INFORMATION
Please attach additional pages/supporting documentation that help completely answer the questions listed below.
Proposed Project (Describe in detail scope of the proposed project and major physical alterations to the property)
Subdivision (any approvals under the Subdivision Map Action being requested and if so, describe) ☐ YES ☐ NO
Housing Units Market-Rate Inclusionary Density Bonus1 Below Market2 Project Total
Total number:
Unit size (sf min):
Unit size (sf max):
Affordability level: N/A N/A
TOTAL SQ. FT.
1If Density Bonus being utilized, include completed form P-1(H). Please refer to IB-112 for additional information on requested
incentives, concessions, waivers, or parking reductions; 2Affordbale units in excess of inclusionary standards.
Non-Residential (does the project include non-residential uses and if so, provide use categories
under the city’s zoning, floor area and square footage of all structures) ☐ YES ☐ NO
Standard Parking Residential Non-Residential TOTAL
Stall Count Any parking reductions
requested pursuant to Section
65915[p] need to be included in
Form P-1(H). See Gov. Code §
65941.1(a)(11)
Electric Vehicle Parking Residential Non-Residential TOTAL
Stall Count
P-32_Preliminary Housing Development Pre-Application (11/2021) Page 3 of 5
❷ SPECIFIC SITE FEATURES
Indicate if any portion of the property includes any of the following environmental, historic, or cultural resources. Submittal
must include supporting documentation, reports and/or analysis.
SITE CONSTRAINTS
Does the site contain any of the following (provide documentation for “yes” responses): YES NO N/A
1. A very high fire hazard severity zone, as determined by the Department of Forestry and
Fire Protection pursuant to Gov. Code Section 51178? ☐ ☐ ☐
2. Wetlands, as defined in the US Fish and Wildlife Service Manual, Part 660 FW 2? ☐ ☐ ☐
3.
A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste
site designated by the Department of Toxic Substances Control pursuant to Section
25356 of the Health and Safety Code?
☐ ☐ ☐
4.
A special flood hazard area subject to inundation by the 1 percent annual chance flood
(100-year flood) as determined by the Federal Emergency Management Agency in any
official maps published by the Federal Emergency Management Agency?
☐ ☐ ☐
5.
A delineated earthquake fault zone as determined by the State Geologist in any official
maps published by the State Geologist, unless the development complies with applicable
seismic protection building code standards adopted by the CA Building Standards
Commission under the CA Building Standards Law (Part 2.5 (commencing with Section
18901) of Division 13 of the Health and Safety Code), and by any local building
department under Chapter 12.2 (Section 8875) of Div. 1 of Title 2?
☐ ☐ ☐
6.
A stream or other resource that may be subject to a streambed alteration agreement
pursuant to Chapter 6 (Section 1600) of Division 2 of the Fish and Game Code (Attach a
biological technical report prepared by a qualified biologist?
☐ ☐ ☐
7. Any proposed point sources of air or water pollutants? ☐ ☐ ☐
8. Any species of special concern known to occur on the property? ☐ ☐ ☐
9.
Any historic or cultural resources known to exist on the property (Attach a cultural and
historic resources report prepared by a qualified professional (historian and/or
archaeologist)
☐ ☐ ☐
COASTAL ZONE
If located within the coastal zone, indicate if the site contains any of the following: YES NO N/A
1.
Wetlands, as defined in subdivision (b) of Section 13577 of Title 14 of the California Code
of Regulations. A Wetlands Delineation Report my be required following the filing of the
application requesting approval of a discretionary action in the Coastal Zone if the site
contains a defined wetland.
☐ ☐ ☐
2. Environmentally sensitive habitat areas, as defined in Section 30240 of the Public
Resources Code ☐ ☐ ☐
3. A tsunami run-up zone ☐ ☐ ☐
4. Use of the site for public access to or along the coast ☐ ☐ ☐
e DISCLOSURE DOCUMENTS
Before the application can be accepted, the owner of each property involved must provide a signature to verify
the pre-application is being filed with their consent. Staff will confirm ownership based on the records of
the city or county assessor. In t he case of partnerships, corporations, LLCs or trusts the agent for service of
process or an officer of the ownership entity so authorized may sign as stipulated below.
• Ownership Disclosure. Include current signature authorization for the person or persons signing the
application. For a corporation, a chairman, president or vice-president AND a secretary, assistant
secretary, CFO or assistant treasurer must sign. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the officer(s)
signing to bind the corporation. f.ef-aR llf, at1ael:I aA official ~sper listir:ig tl:le ir:idi11idYal 89 e Member /
of the Llf witl:l ,ole a111bocity to biAd tl:le 0r:gaAi1,ation. For a partnership, attach an official document
identifying the individual as a general partner with sole authority to execute documents on behalf
of the limited partnership. A letter of authorization, as described below, may be submitted provided
the signatory of the letter is included in the Ownership Disclosure. Include a copy of the current
partnershipagreement, corporate articles, or trust document as applicable.
• letter of Authorization (LOA}. A LOA from a property owner granting someone else permission to
sign the pre-application form may be provided if the property is owned by a partnership,
corporation, LLC or trust or in rare circumstances when an individual property owner is unable to
sign the pre-application form. To be considered for acceptance, the LOA must indicate t he name of
the person being authorized to file, their relationship to the owner or project, the site address, a
general description of t he type of application being filed and must also include the language in items
a-c below. In the case of partnerships, corporations, LLCs or trusts the LOA must be signed by the
aut horized signatory as shown on the Ownership Disclosure or, in the case of private ownership, by
the property owner. Proof of Ownership for the signatory of the LOA must be submitted with said
letter.
• Grant Deed. Provide a copy of the Grant Deed if the ownership of the property does not match city or
county assessorrecords. The Deed must correspond exactly with the ownership listed on the
application.
• Multiple Owners. If the property is owned by more than one individual (e.g. John and Jane Doe or
Mary Smith and Mark Jones) signatures are required of all owners.
a. I hereby certify that I am the owner of record of the herein previously described property
located in the City of Carlsbad which is involved in this pre-application or have been em powered
to sign as the owneron behalf of a partnership, corporation, LLC or trust as evidenced by the
documents attached hereto.
b. I hereby consent to the filing of this pre-application on my property for processing by the City
of Carlsbad Planning Division for the sole purpose of vesting the proposed housing project
subject to the zoning ordinances, policies, and standards adopted and in effect on the date
that this pre-application is deemed complete. Further, I understand that this pre-application will
be terminated and vesting will be forfeit ed if the housing development project is revised such
that the number of residential units or squarefootage of construction increases or decreases by
20 percent or more, exclusive of any increase resulting fromthe receipt of a density bonus,
incentive, concession, waiver, or similar provision, and/or an application requesting approval
of an entitlement is not filed with the City of Carlsbad Planning Division within 180 days ofthe
date that this pre-application is deemed complete.
P-32_Preliminary Housing Development Pre-Application (11/2021) Page S of 5
8. DENSITY BONUS CALCULATIONS TABLE
1. General Plan Designation. What is the underlying General Plan Land Use Designation of the site?
2. Maximum Density. What is the maximum allowed density under the General Plan designation?
3. Site Size. What is the total size of the site?
4. Base Density. What is the maximum number of units allowed at the site? (#B.2 x #B.3, rounded up)
5. Affordable Housing. What is the type & number of restricted affordable housing units proposed?
R-30
30 DU/AC
8AC
240 DU
a. Extremely low: ___ b. Very low: __ _ c. Low: 20% d. Moderate: e. TOTAL: 20%
6. Percent Affordable. What% of the units are affordable? (#B.5.e.;. #B.4, rounded up)
7. Density Bonus Units.
a. What% increase in Base Density is allowed at the site (see Density Bonus Table)?
b. How many Density Bonus units are allowed at the site? (#B.4 x #B.7.a, rounded up)
8. Total Housing Units.
a. What is the total number of units at the site (#B.4 + #B.7.b)?
b. What is the total resulting density at the site (#B.8.a.;. #B.3, rounded to nearest tenth)?
C. INCLUSIONARY HOUSING CALCULATIONS TABLE
35%
84 DU
1. Total Housing Units. What is the total number of units on site? (Insert figure from #B.8.a, or #D.8.a, whichever larger)
2. lnclusionary Requirement. How many required inclusionary units? (15% X#C.l, rounded per §21.85.0501
3. lnclusionary Housing. What is the type & number of restricted inclusionary housing units proposed?
-----
20%
324 UNITS
40.5 DU/AC
324 UNITS
48.6
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_'Yc_0 __ _
4. Affordable Housing. What is the type & number of affordable housing units proposed? (figures in B.5)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_'Yc_0 __ _
5. Difference. Positive numbers represent inclusionary units required above density bonus (#C.3 -#C.4)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
D. SECONDARY DENSITY BONUS CALCULATIONS TABLE
1. Base Density. What is the maximum number of units allowed at the site? (Figure from #B.4) 240 DU
2. Affordable Housing(#). What is the type & number of affordable housing units proposed? (Figures from #B.5)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
3. Affordable Housing(%). What is% of affordable housing units proposed? (#D.2.;. #D.1, rounded up)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
4. Eligibility. What minimum housing income affordability criteria are you meeting? (select based on #D.3)
a. <'=15% extremely/very-low: b. <'=24%1ow: <'=44% moderate: ------
5. Additional Affordable Housing(#). What is the type & number of additional affordable units proposed? (only one category)
a. Very low: b. Moderate:
6. Additional Affordable Housing(%). What is% of additional affordable units proposed? (#D.5 .;. #D.1, rounded up)
a. Very low: b. Moderate:
P-1 (H) Page 2 of 6 Revised: 03/2024
7. Secondary Density Bonus Units.
a. What% increase in Base Density is allowed at the site (see Density Bonus Table)?
b. How many Secondary Density Bonus units allowed at the site? (#D.l X#D.7.a, rounded up)
8. Total Housing Units.
a. What is the total number of units at the site (#B.8.a + #D.7.b)?
b. What is the total resulting density at the site (#D.S.a.;. #D.l, rounded to nearest tenth)?
9. Total Affordability.
40.5 DU/AC
a. What is the total percentage of affordable units at the site? (#B.6 + #D.6.a or#D.6.b-total cannot exceed 50%) 20% ------
E. CONCESSION(S), INCENTIVES(S) & WAIVERS112
Using the fields below, provide the following information for each requested concession/incentive and/or waiver. Please
attach additional documentation, if necessary, to help explain the request ---the use of exhibits, graphics, site plans, and/or
charts to help explain the need for the deviation and the anticipated effects are strongly encouraged.
• Select whether the requested deviation is a concession/incentive or waiver
• Identify the specific city code/policy number of the development standard requiring deviation
• Specify the code/policy language of the development standard requiring deviation
• Describe how the development standard will be deviated
• Explain the reasons why the development project requires deviation from the standard3•4
CONCESSION/INCENTIVE/WAIVER #1
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
D Concession/Incentive lZI Waiver
El Camino Real Corridor Development Standards IV(C)(S)
a. within 100 feet of El Camino Real Row: 15 feet high, measured from pad Elevation.
b. 100 to 200 feet from El Camino Real Row: 25 feet high, measured from pad Elevation.
c. 200 to 300 feet from El Camino Real Row: 35 feet high, measured from pad Elevation.
1. 60 feet setback from El Camino Real Row: 40 feet high, measured from pad Elevation.
2. 40 feet height limit measured from pad elevation for entire site
CONCESSION/INCENTIVE/WAIVER #2
Select Type: D Concession/Incentive [Z]Waiver
Code/Policy
Number: CMC 21.45.080 Development standard for Condominium Projects -Table E, Item E.2 -Policy 44 -SFD only
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
P-1 (H)
a.-Item 7 -Single story requirement. 15% oftotai OR 10% oftotai + 15% reduced second floors OR 20% of total to have 20% single story element b. Item 8 -max 20% of homes are exempt from single story c. Item 9 -all remaininij houses to have a 8' single story edge d. Item 12 -at least 66 ¼ of the homes to have an 8.5' side setback e. Item 15 -Front porch 6' min. dimension and 60sf. f Item 16 -75°4 oUbe homes have visible entries ftom the street
100% 3-story without single story edge
1 00% of the homes to have an 3' side setback
No porch and visible entries from the street requirements
Page 3 of 6 Revised: 03/2024
CONCESSION/INCENTIVE/WAIVER #3
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
D Concession/Incentive [Z] Waiver
CMC 21.45.080 Development Standard for Condominium Projects -Table E, Item E.6
Minimum Building Separation - 1 0'
Minimum Building Separation -8' for Condominium & 6' for SFD side to side conditions
CONCESSION/INCENTIVE/WAIVER #4
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
[Z] Concession/Incentive [Z]waiver
Planned Developments -CMC 21.45.060 -Table C, Item C.5
Drive Aisles -limit 24 du's along a single-entry drive aisle.
Drive Aisles -No limit dwelling unit along a single-entry drive aisle.
CONCESSION/INCENTIVE/WAIVER #5
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
P-1 (H)
D Concession/Incentive [Z] Waiver
CMC 21.45.060 -Table C, Item C.13 & CMC 21.45.080 -Table E, Item E.7
For C.13 -Storage Space -A garage 12' x 20' one car, 20' x 20' two-car, or larger satisfies th e required
storage space per unit
For E.7 -Resident Parking-Unit with two or more bedrooms -required a one-car garage (12' x 20') and 1
covered or uncovered space
Garage width for one-car is 1 O' x 20'
Page 4 of 6 Revised: 03/2024
CONCESSION/INCENTIVE/WAIVER# 6
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
D Concession/Incentive [Z] Waiver
CMC 21.45.080 Development Standard for Condominium Projects -Table E, Item E.8 -Private Open Space SFD only
6' min. dimension at balcony
5' min. dimension at balcony
CONCESSION/INCENTIVE/WAIVER# 7
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
[Z] Concession/Incentive [Z]waiver
Design Standard -Section 3.A.2.a
Upper floor area reduction -Project with 5 or more units. The floor area for upper floors sh all be a max. of 90% of the
ground floor area.
No upper floor area reduction -Project with 5 or more units.
CONCESSION/INCENTIVE/WAIVER#. 8
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
P-1 (H)
D Concession/Incentive [Z] Waiver
Design Standard -Section 3.B.2.a.2
Weather Projection. Entrances shall have either a projected sheltering element or be recessed from the main facade; the
projection or recess shall have a minimum depth of 24 inches.
The projection or recess shall have a minimum depth of 6 inches.
Page 4 of 6 Revised: 03/2024
1 Cities are required to grant concessions or incentives (referred to as concessions) to a developer that seeks and agrees to include affordable units in t heir
development. One to four concessions are available for each development depending on the percentage of affordable housing that will be included
within the development. A concession is one of three things (Gov. Code §65915, subd. (k)(l)-(3)):
• A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed
minimum building standards that result in identifiable and actual costs reductions. Development Standard" includes a site or construction condition,
including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, a minimum lo area
per unit requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan,
charter, or other local condition, law, policy, resolution, or regulation. (Gov. Code §65915, subd. (o)(2)).
• Approval of mixed-use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the
housing development and if such uses are compatible with the housing project and the existing or planned development in the area.
• Other regulatory concessions proposed by the developer or city that result in identifiable and actual cost reductions.
The City shall grant the concession unless one or more of the following written findings can be made, based upon substantial evidence (Gov. Code
§65915, subd. (d)(l)(A)-(C)):
• The concession does not result in identifiable and actual cost reductions to provide for affordable housing costs, orfor rents fort he targeted units.
• The concession would have a "specific adverse impact[ ... ] upon public health and safety or on any real property that is listed in the California
Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without
rendering the development unaffordable to low-income and moderate-income households."
• The concession would be contrary to state and federal law.
2 In addition to concessions, an applicant may submit a proposal for a waiver or reduction (referred to as waiver) of development standards. (Gov. Code
§65915, subd. (e)(l)). In no case may a city apply any development standard that will have the effect of physically precluding the construction of a
development at the density or concessions permitted. The City shall grant the waiver unless one or more of the following written findings can be made
(Gov. Code §65915, subd. (e)(l)):
• The waiver will have a specific adverse impact upon health, safety, or the physical environment and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact.
• The waiver will have a specific adverse impact on any real property listed in California Register of Historical Resources.
• The waiver would be contrary to state and federal law.
3 Pursuant to the court case Schreiber v. City of Los Angeles, which was later codified as part of the passage of AB 1287, a developer is not required to provide
financial evidence (i.e., proforma) documenting that a requested incentive/concession will result in actual cost reductions. However, applicants still need to
reasonably document "why" the requested incentive/concession will reduce affordable housing development costs. As such, the city requires applicants to
provide reasonable documentation to show that a requested incentive/concession will result in identifiable cost reductions to provide for affordable housing
costs or rents. Please attach additional documents, as appropriate.
4 Sufficient documentation must be provided justifying why the city's established development standard(s) or design regulation(s) physically preclude
construction of the project and why the waiver(s) is necessary. Sufficient documentation may include a written explanation of the physical constraints
accompanied with an exhibit showing the site and developable envelope.
P-1 (H) Page 5 of 6 Revised: 03/2024
8. DENSITY BONUS CALCULATIONS TABLE
1. General Plan Designation. What is the underlying General Plan Land Use Designation of the site?
2. Maximum Density. What is the maximum allowed density under the General Plan designation?
3. Site Size. What is the total size of the site?
4. Base Density. What is the maximum number of units allowed at the site? (#B.2 x #B.3, rounded up)
5. Affordable Housing. What is the type & number of restricted affordable housing units proposed?
R-15
15 DU/AC
9.6AC
144 DU
a. Extremely low: ___ b. Very low: __ _ c. Low: 20% d. Moderate: e. TOTAL: 20%
6. Percent Affordable. What% of the units are affordable? (#B.5.e.;. #B.4, rounded up)
7. Density Bonus Units.
a. What% increase in Base Density is allowed at the site (see Density Bonus Table)?
b. How many Density Bonus units are allowed at the site? (#B.4 x #B.7.a, rounded up)
8. Total Housing Units.
a. What is the total number of units at the site (#B.4 + #B.7.b)?
b. What is the total resulting density at the site (#B.8.a.;. #B.3, rounded to nearest tenth)?
C. INCLUSIONARY HOUSING CALCULATIONS TABLE
35%
51 DU
1. Total Housing Units. What is the total number of units on site? (Insert figure from #B.8.a, or #D.8.a, whichever larger)
2. lnclusionary Requirement. How many required inclusionary units? (15% X#C.l, rounded per §21.85.0501
3. lnclusionary Housing. What is the type & number of restricted inclusionary housing units proposed?
-----
20%
195 UNITS
20.3 DU/AC
195 UNITS
48.6
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_'Yc_0 __ _
4. Affordable Housing. What is the type & number of affordable housing units proposed? (figures in B.5)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_'Yc_0 __ _
5. Difference. Positive numbers represent inclusionary units required above density bonus (#C.3 -#C.4)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
D. SECONDARY DENSITY BONUS CALCULATIONS TABLE
1. Base Density. What is the maximum number of units allowed at the site? (Figure from #B.4) 144 DU
2. Affordable Housing(#). What is the type & number of affordable housing units proposed? (Figures from #B.5)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
3. Affordable Housing(%). What is% of affordable housing units proposed? (#D.2.;. #D.1, rounded up)
a. Extremely low: ___ b. Very low: ___ c. Low: 20% d. Moderate: ___ e. TOTAL: _2_0_¾_o __ _
4. Eligibility. What minimum housing income affordability criteria are you meeting? (select based on #D.3)
a. <'=15% extremely/very-low: b. <'=24%1ow: <'=44% moderate: ------
5. Additional Affordable Housing(#). What is the type & number of additional affordable units proposed? (only one category)
a. Very low: b. Moderate:
6. Additional Affordable Housing(%). What is% of additional affordable units proposed? (#D.5 .;. #D.1, rounded up)
a. Very low: b. Moderate:
P-1 (H) Page 2 of 6 Revised: 03/2024
7. Secondary Density Bonus Units.
a. What% increase in Base Density is allowed at the site (see Density Bonus Table)?
b. How many Secondary Density Bonus units allowed at the site? (#D.l X#D.7.a, rounded up)
8. Total Housing Units.
a. What is the total number of units at the site (#B.8.a + #D.7.b)?
b. What is the total resulting density at the site (#D.S.a.;. #D.l, rounded to nearest tenth)?
9. Total Affordability.
20.3 DU/AC
a. What is the total percentage of affordable units at the site? (#B.6 + #D.6.a or#D.6.b-total cannot exceed 50%) 20% ------
E. CONCESSION(S), INCENTIVES(S) & WAIVERS112
Using the fields below, provide the following information for each requested concession/incentive and/or waiver. Please
attach additional documentation, if necessary, to help explain the request ---the use of exhibits, graphics, site plans, and/or
charts to help explain the need for the deviation and the anticipated effects are strongly encouraged.
• Select whether the requested deviation is a concession/incentive or waiver
• Identify the specific city code/policy number of the development standard requiring deviation
• Specify the code/policy language of the development standard requiring deviation
• Describe how the development standard will be deviated
• Explain the reasons why the development project requires deviation from the standard3•4
CONCESSION/INCENTIVE/WAIVER #1
Select Type:
Code/Policy
Number:
Required
Standard:
Proposed
Deviation:
Reason for
Deviation:
D Concession/Incentive lZI Waiver
El Camino Real Corridor Development Standards IV(C)(S)
a. within 100 feet of El Camino Real Row: 15 feet high, measured from pad Elevation.
b. 100 to 200 feet from El Camino Real Row: 25 feet high, measured from pad Elevation.
c. 200 to 300 feet from El Camino Real Row: 35 feet high, measured from pad Elevation.
1. 60 feet setback from El Camino Real Row: 40 feet high, measured from pad Elevation.
2. 40 feet height limit measured from pad elevation for entire site
CONCESSION/INCENTIVE/WAIVER #2
Select Type: D Concession/Incentive [Z]Waiver
Code/Policy
Number: CMC 21.45.080 Development standard for Condominium Projects -Table E, Item E.2 -Policy 44 -SFD only
Required
Standard:
Proposed
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P-1 (H)
a.-Item 7 -Single story requirement. 15% oftotai OR 10% oftotai + 15% reduced second floors OR 20% of total to have 20% single story element b. Item 8 -max 20% of homes are exempt from single story c. Item 9 -all remaininij houses to have a 8' single story edge d. Item 12 -at least 66 ¼ of the homes to have an 8.5' side setback e. Item 15 -Front porch 6' min. dimension and 60sf. f Item 16 -75°4 oUbe homes have visible entries ftom the street
100% 3-story without single story edge
1 00% of the homes to have an 3' side setback
No porch and visible entries from the street requirements
Page 3 of 6 Revised: 03/2024
CONCESSION/INCENTIVE/WAIVER #3
Select Type:
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CMC 21.45.080 Development Standard for Condominium Projects -Table E, Item E.6
Minimum Building Separation - 1 O'
Minimum Building Separation -8' for Condominium & 6' for SFD side to side conditions
CONCESSION/INCENTIVE/WAIVER #4
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Required
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Planned Developments -CMC 21.45.060 -Table C, Item C.5
Drive Aisles -limit 24 du's along a single-entry drive aisle.
Drive Aisles -No limit dwelling unit along a single-entry drive aisle.
CONCESSION/INCENTIVE/WAIVER #5
Select Type: D Concession/Incentive D Waiver
Code/Policy
Number: CMC 21.45.080 Development Standard for Condominium Projects -Table E, Item E.8 -Private Open Space SFD only
Required
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P-1 (H)
6' min. dimension at balcony
5' mio djmeosioo at balcony
Page 4 of 6 Revised: 03/2024
CONCESSION/INCENTIVE/WAIVER# 6
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Design Standard -Section 3.A.2.a
Upper floor area reduction -Project with 5 or more units. The floor area for upper floors shall be a max. of 90% of the
ground floor area.
No upper floor area reduction -Project with 5 or more units.
CONCESSION/INCENTIVE/WAIVER# 7
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Design Standard-Section 3.B.2.a.2
Weather Projection. Entrances shall have either a projected sheltering element or be recessed from the main facade· the
projection or recess shall have a minimum depth of 24 inches.
The projection or recess shall have a minimum depth of 6 inches.
CONCESSION/INCENTIVE/WAIVER#. 8
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D Concession/Incentive D Waiver
Page 4 of 6 Revised: 03/2024
1 Cities are required to grant concessions or incentives (referred to as concessions) to a developer that seeks and agrees to include affordable units in t heir
development. One to four concessions are available for each development depending on the percentage of affordable housing that will be included
within the development. A concession is one of three things (Gov. Code §65915, subd. (k)(l)-(3)):
• A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed
minimum building standards that result in identifiable and actual costs reductions. Development Standard" includes a site or construction condition,
including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, a minimum lo area
per unit requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan,
charter, or other local condition, law, policy, resolution, or regulation. (Gov. Code §65915, subd. (o)(2)).
• Approval of mixed-use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the
housing development and if such uses are compatible with the housing project and the existing or planned development in the area.
• Other regulatory concessions proposed by the developer or city that result in identifiable and actual cost reductions.
The City shall grant the concession unless one or more of the following written findings can be made, based upon substantial evidence (Gov. Code
§65915, subd. (d)(l)(A)-(C)):
• The concession does not result in identifiable and actual cost reductions to provide for affordable housing costs, orfor rents fort he targeted units.
• The concession would have a "specific adverse impact[ ... ] upon public health and safety or on any real property that is listed in the California
Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without
rendering the development unaffordable to low-income and moderate-income households."
• The concession would be contrary to state and federal law.
2 In addition to concessions, an applicant may submit a proposal for a waiver or reduction (referred to as waiver) of development standards. (Gov. Code
§65915, subd. (e)(l)). In no case may a city apply any development standard that will have the effect of physically precluding the construction of a
development at the density or concessions permitted. The City shall grant the waiver unless one or more of the following written findings can be made
(Gov. Code §65915, subd. (e)(l)):
• The waiver will have a specific adverse impact upon health, safety, or the physical environment and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact.
• The waiver will have a specific adverse impact on any real property listed in California Register of Historical Resources.
• The waiver would be contrary to state and federal law.
3 Pursuant to the court case Schreiber v. City of Los Angeles, which was later codified as part of the passage of AB 1287, a developer is not required to provide
financial evidence (i.e., proforma) documenting that a requested incentive/concession will result in actual cost reductions. However, applicants still need to
reasonably document "why" the requested incentive/concession will reduce affordable housing development costs. As such, the city requires applicants to
provide reasonable documentation to show that a requested incentive/concession will result in identifiable cost reductions to provide for affordable housing
costs or rents. Please attach additional documents, as appropriate.
4 Sufficient documentation must be provided justifying why the city's established development standard(s) or design regulation(s) physically preclude
construction of the project and why the waiver(s) is necessary. Sufficient documentation may include a written explanation of the physical constraints
accompanied with an exhibit showing the site and developable envelope.
P-1 (H) Page 5 of 6 Revised: 03/2024
1
Resolutions Sunny Creek Development Partners LP for Walmart Assignment
WRITTEN CONSENT OF SUNNY CREEK DEVELOPMENT PARTNERS LP, A DELAWARE LIMITED PARTNERSHIP
The undersigned, being the sole general partner (“General Partner”) and all of the limited partners (“Limited Partners”) of Sunny Creek Development Partners LP, a Delaware limited partnership (the "Partnership"), acting pursuant to the provisions of the Partnership Agreement (defined below), hereby adopt the following resolutions:
WHEREAS, the Partnership is a limited partnership duly formed under the
laws of the State of Delaware and is qualified to do business in the State of California; and
WHEREAS, the governing document of the Partnership is that certain Limited Partnership Agreement dated as of September 16, 2021 (the "Partnership Agreement"); and
WHEREAS, the Partnership desires to enter into an Assignment and Assumption of Purchase and Sale Agreement, dated September 30, 2021, between itself as Assignee and Barclay Holdings XCVI, LLC, an Arizona limited liability company as Assignor (“Assignment”), whereby Assignee will assume all rights and obligations as “Buyer” under that certain Purchase and
Sale Agreement and Joint Escrow Instructions by and between Barclay Group Venture Capital, LLC, an Arizona limited liability company, and Walmart Inc., a Delaware corporation, dated May 6, 2020, as subsequently assigned to Assignor (“Underlying Contract”); and
WHEREAS, an entity related to the Partnership, Ledcor Development LP, a
Delaware limited partnership, and Assignor entered into an Agreement Related to Real Property dated March 24, 2021, as amended from time to time and subsequently assigned to the Partnership, whereby the Partnership agreed to pay Assignor the sum of Twenty-Two Million Five Hundred Thousand and
No/100th Dollars ($22,500,000.00) for the Assignment of the Underlying
Contract to the Partnership; and
WHEREAS, the Partnership has determined that it will obtain a substantial benefit from the transactions described herein, and deems it to be in the best interests of the Partnership to execute, deliver and perform the Assignment to
which the Partnership is a party, to consummate the Assignment and to
consummate the other transactions contemplated therein.
NOW, THEREFORE, BE IT RESOLVED, that the form, terms and provisions of the Assignment together with all exhibits thereto, have been presented to the Partnership and reviewed by the Partnership and the same are, in all respects,
approved; and
2
Resolutions Sunny Creek Development Partners LP for Walmart Assignment
RESOLVED FURTHER, that the General Partner is hereby authorized to execute and deliver, in the name of and on behalf of the Partnership, the Assignment to be executed in substantially the form presented to this
Partnership; and
RESOLVED FURTHER, that the General Partner is hereby authorized to perform all acts and to execute and deliver, in the name of and on behalf of the Partnership, any additional documents, necessary or reasonably required in connection with the Assignment; and
RESOLVED FURTHER, that any actions heretofore taken, and any documents and agreements heretofore executed by the General Partner in connection with the transaction authorized herein are hereby affirmed, ratified and approved; and
RESOLVED FURTHER, that these authorizing resolutions may be executed in
counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Any executed copy of these authorizing resolutions that is delivered in PDF format by electronic mail shall be deemed as effective as an authorizing resolution with original signatures for all purposes.
IN WITNESS WHEREOF, each undersigned has caused this unanimous written consent resolution to be executed effective as of the date first written above.
[Four signature pages follow]
GENERAL PARTNER:
SUNNY CREEK DEVELOPMENTS INC.,
A Delaware corporation
John M. Santry
Senior Vice President, California
[Three signature pages follow J
Resolutions Sunny Creek Development Partners LP for Walmart Assignment
3
LIMITED PARTNER:
LEDCOR PROPERTIES CORPORATION,
:YWashln~
Pat~ick &: Patterson
President
[Two signature pages follow]
Resolutions Sunny Creek Development Partners LP for Walmart Assignment
4
LIMITED PARTNER:
LANTOWER CARLSBAD SAN DIEGO LP,
A Delaware limited partnership
By: Lantower Carlsbad San Diego GP LLC,
A Delaware limited li<ID.i·li·~:X:)flipany-
President
[End of sign,atures J
Resolutions Sunny Creek Development Partners LP for Walmart Assignment
6
Sunny Creek Stockholders Agreement Final 1
STOCKHOLDERS AGREEMENT SUNNY CREEK DEVELOPMENTS INC., a Delaware corporation
THIS STOCKHOLDERS AGREEMENT (this “Agreement”) dated as of September 16, 2021is made by and among SUNNY CREEK DEVELOPMENTS INC., a Delaware corporation (the “Company”), LEDCOR PROPERTIES CORPORATION, a Washington corporation (“Ledcor”), QUALICO DEVELOPMENTS (CA), INC., a California corporation (“Qualico”), and Lantower Carlsbad San Diego LP, a Delaware limited partnership (“H&R”). Each of Ledcor,
Qualico, and H&R are sometimes referred to herein individually as a “Stockholder”, and collectively as the “Stockholders”; and each of the Stockholders and the Company are sometimes referred to herein individually as a “Party”, and collectively as the “Parties.”
A. The Company is a Delaware corporation formed by filing a certificate of incorporation for the Company with the Delaware Secretary of State (the “Certificate”). The
Company is governed by the Certificate and the bylaws attached hereto as Schedule 1 (the “Bylaws”).
B. The Company is the general partner (“General Partner”) of Sunny Creek Development Partners LP, a Delaware limited partnership (the “Partnership”). Any capitalized term not defined herein shall have the meaning ascribed to it in that certain Limited Partnership
Agreement of Sunny Creek Development Partners LP, dated as of even date herewith, between the Company, as general partner, and Ledcor, Qualico, and H&R, each as the initial limited partners (as the same may be amended from time to time, the “Partnership Agreement”).
C. Substantially concurrently herewith, Ledcor, Qualico, and H&R each own One Thousand (1,000) shares of Common Stock (as defined in the Certificate).
D. The Parties desire to enter into this Agreement to set forth certain rights and restrictions related to the ownership, voting and disposition of the Stockholders’ respective shares of Common Stock (i) as provided in this Agreement, (ii) the Bylaws, and (iii) the Partnership Agreement. Furthermore, the Stockholders desire to provide for the consistent management and
control of the Company and the Partnership as provided in (a) this Agreement, (b) the Bylaws, and
(c) the Partnership Agreement, to the maximum extent permitted by the Delaware General Corporation Law.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth in this Agreement, the Parties hereby agree as follows:
1. Boards of Directors for the Company.
a. Composition. Except as provided in Section 2, the Stockholders agree that in any election of the board of directors of the Company (“Board of Directors”), the Stockholders shall vote all shares of Common Stock owned or controlled by them to elect a Board of Directors, comprised of six (6) directors, nominated as follows:
Sunny Creek Stockholders Agreement Final 2
i. Two (2) directors of the Board of Directors shall be nominated or caused to be nominated (as applicable) by Ledcor (the “Ledcor Directors”), and the initial Ledcor Directors shall be Rodney Neys and Patrick B. Patterson;
ii. Two (2) directors of the Board of Directors shall be nominated or caused to be nominated (as applicable) by Qualico (the “Qualico Directors”), and the initial Qualico Directors shall be Kevin Van and Kevin Kameda; and
iii. Two (2) directors of the Board of Directors shall be nominated or caused to be nominated (as applicable) by H&R (the “H&R Directors”), and the initial H&R
Directors shall be Tom Hofstedter and Larry Froom.
b. Vacancies; Removal; Temporary Absence Committee. Except as provided in Section 2, in the event of any vacancy in the Board of Directors, each of the Stockholders agree to vote all shares of Common Stock owned or controlled by them and to otherwise use their best efforts to fill such vacancy so that the Board of Directors will include directors nominated as
provided in Section 1(a) (i.e., Ledcor appoints its two directors, Qualico appoints its two directors, and H&R appoints its two (2) directors); provided that, and also except as provided in Section 2, each of the Stockholders agree to vote all shares of Common Stock owned by them for the removal of a director whenever (but only whenever) there shall be presented to the Board of Directors the written direction that such director be removed:
i. signed by Ledcor, in the case of either or both of the Ledcor Directors;
ii. signed by Qualico, in the case of either or both of the Qualico Directors; or
iii. signed by H&R, in the case of either or both of the H&R Directors.
Notwithstanding the foregoing, and except as provided in Section 2, if one of any of the Ledcor Directors, Qualico Directors, and/or H&R Directors is temporarily unable to attend or participate in an action of the Board of Directors, then the Board of Directors shall be deemed to have nominated a committee to consist of one of each of the Ledcor Directors, Qualico Directors, and
H&R Directors. Such committee, pursuant to Section 141 of the Delaware General Corporation
Law, shall have and may exercise all the powers and authority of the Board of Directors. Except as provided in Section 2, at all meetings of such committee, one of each of the Ledcor Directors, Qualico Directors, and H&R Directors shall constitute a quorum for the transaction of business (i.e., three directors in total), and the same requisite vote of the Board of Directors under the
Bylaws shall be required of the members of the committee present at any meeting at which there
is a quorum in order to constitute an authorized act of the committee. The provisions of this paragraph shall only apply if any of Ledcor, Qualico, and/or H&R provides written notice to the other Stockholders of the temporary absence of one of its directors. Notwithstanding the foregoing provisions of this paragraph and except as provided in Section 2, if both of any Stockholders’
directors are unavailable for any reason, then any action shall be postponed until at least one of the
Stockholder’s directors is available.
Sunny Creek Stockholders Agreement Final 3
c. Initial Officers of the Company. Except as provided in Section 2, Ledcor shall cause the Ledcor Directors, Qualico shall cause the Qualico Directors, and H&R shall cause the H&R Directors to appoint the persons named below as the initial officers of the Company:
i. President: Patrick Patterson;
ii. Chief Operating Officer: Tom Hofstedter;
iii. Senior Vice President, California: John Santry;
iv. Senior Vice President: LaNelle Deardorf;
v. General Counsel & Corporate Secretary:
Thomas Lofaro
vi. Vice President, Taxation: Christopher Wales
vii. Vice President, Construction – US: Andrew Wesling;
vii. Treasurer: Andrew Voysey;
viii. Assistant Treasurer: Kevin Kameda;
ix. Assistant Treasurer: David Wong; and
x. Assistant Secretary: Larry Froom.
d. Required Votes. Except as otherwise expressly agreed in writing, all actions by the Company’s Board of Directors must be by unanimous vote.
2. Investment Imbalance.
a. As used herein, the term “Total Capital and Loans” shall mean with respect to any Limited Partner, such Limited Partner’s (x) Capital Account balance, plus (y) outstanding principal of and accrued interest under Protective Loan(s) made by such Limited Partner.
b. Notwithstanding anything to the contrary in this Agreement or in the
Bylaws, the provisions of this Section 2 shall apply effective immediately upon the occurrence of the following (in either case, an “Investment Imbalance”):
i. After any applicable cure period has elapsed, as required under Section 1.4 of the Cross Indemnity Agreement, a breach by a Stockholder or any Affiliate of a
Stockholder (“Defaulting Indemnitor) of any of its or such Affiliate’s obligations under the
Cross Indemnity Agreement, dated of even date herewith, between Ledcor Properties Inc., an Alberta corporation, Qualico Developments Canada Ltd., a Canadian corporation, and H&R REIT (U.S.) Holdings Inc., a Delaware corporation; and/or
Sunny Creek Stockholders Agreement Final 4
ii. At any time that the Total Capital and Loans of any Limited Partner(s) (“Contributing Limited Partner(s)”) exceeds the total of the Total Capital and Loans of any Limited Partner(s) (“Non-Contributing Limited Partner(s)”).
c. The Company shall cause the Partnership within ten (10) Business Days of the occurrence of an Investment Imbalance to deliver notice (the “Imbalance Notice”) thereof to the other Partners, which notice shall either (1) specify the amount owed by the Defaulting Indemnitor if the Investment Imbalance is triggered pursuant to Section 2(b)(i), or (2) include a schedule for each Limited Partner of its Total Capital and Loans if the Investment Imbalance is
triggered pursuant to Section 2(b)(ii). Within ten (10) Business Days of receipt of the Imbalance Notice (the “Imbalance Cure Period”) the Defaulting Indemnitor or the Non-Contributing Limited Partner(s), whichever is applicable, shall have the following cure rights (an “Imbalance Cure”):
i. If the Imbalance Notice is delivered under Section 2(b)(i), the
Defaulting Indemnitor shall have the right to pay the amount specified in the Imbalance Notice to the appropriate Party in accordance with the Cross Indemnity Agreement; or
ii. If the Imbalance Notice is delivered under Section 2(b)(ii), the Non-Contributing Limited Partner(s) may make Protective Loans (a “Qualifying Protective Loan”) such that such Non-Contributing Limited Partner(s) (either solely by virtue of such repayment of
interest or together with any repayment of principal from a Qualifying Protective Loan) shall no longer be a Non-Contributing Limited Partner(s) hereunder.
(1) A Qualifying Protective Loan shall not exceed the amount necessary to achieve the “Percentage Interest Balance” (defined below).
(2) Upon any Non-Contributing Limited Partner(s) making any
such Qualifying Protective Loans, the Company shall cause the Partnership to pay the amount thereof to each such Contributing Limited Partner(s) in accordance with Section 5.1(a) of the Partnership Agreement in repayment of the outstanding Protective Loans, if any, made by such Contributing Limited Partner(s) up to but not exceeding such amount that when so repaid each
Limited Partner’s Total Capital and Loans when compared to the Total Capital and Loans of all
Limited Partners shall be in the same proportion as the relative Percentage Interests of the Limited Partners (the “Percentage Interest Balance”).
d. If, following receipt of the Imbalance Notice, and upon the expiration of the Imbalance Cure Period (i.e., without an Imbalance Cure having occurred), either:
i. the “Indemnitee Guarantor Partners’” relative balance of the
“Indemnity Shortfall” is not held in proportion to their relative Percentage Interests as contemplated by (and as such quoted terms are defined in) Section 1.2(c) of the Cross Indemnity Agreement; or
ii. the relative balances of the Total Capital and Loans of the
Contributing Limited Partner(s) are not in proportion to their relative Percentage Interests, then
Sunny Creek Stockholders Agreement Final 5
iii. either (A) the underfunded Indemnitee Guarantor Partner under Section 1.2(c) of the Cross Indemnity Agreement or (B) the underfunded Contributing Limited Partner(s) shall have an additional ten (10) Business Days from the expiration of the Imbalance
Cure Period to make the reimbursement payments under Section 1.2(c) of the Cross Indemnity Agreement or advance Qualifying Protective Loans to the Partnership (in which case the Company shall cause the Partnership to utilize such Qualifying Protective Loans to repay the other Contributing Limited Partner(s) in accordance with Section 5.1(a) of the Partnership Agreement), whichever is applicable, in order bring the applicable relative balances in line with such relative
Percentage Interests.
iv. If the underfunded Indemnitee Partner Guarantor or Contributing Limited Partner(s) provides the funds in accordance with clause (iii) above, both the Stockholders that are Affiliated with the Indemnitee Partner Guarantors and Contributing Limited Partner(s) shall qualify as “Advancing Stockholders” hereunder. However, if the underfunded Indemnitee
Partner Guarantor or the Contributing Limited Partner(s) fails to provide the funds in accordance with clause (iii) above, the Stockholder that is Affiliated with such Indemnitee Partner Guarantor or Contributing Limited Partner(s) shall not qualify as an “Advancing Stockholder” hereunder.
e. After the occurrence of an Investment Imbalance and the expiration of the Imbalance Cure Period without an Imbalance Cure, the Stockholder who is Affiliated with the
Defaulting Indemnitor or Non-Contributing Limited Partner(s) shall be referred to herein as the Non-Contributing Stockholder, and the Advancing Stockholder(s) shall have the following rights:
i. To immediately remove both directors of the Company that were nominated by any Non-Contributing Stockholder;
ii. To nominate any director replacing any director so removed; and
iii. To immediately remove the officers of the Company that were nominated by the Non-Contributing Stockholder or its appointed directors and appoint replacement officers.
f. The Certificate provides that, after the occurrence of an Investment
Imbalance, one hundred percent (100%) of the Common Stock held by the Non-Contributing
Stockholder shall be converted to non-voting Class A-1 Common Stock (the “Automatic Conversion”) and shall thereafter not be taken into account under the Bylaws when determining the number of shares entitled to vote. If the Automatic Conversion does not occur for any reason, the Non-Contributing Stockholder agrees to vote one hundred percent (100%) of all shares of
Common Stock owned by the Non-Contributing Stockholder as directed by the Advancing
Stockholder(s) and to otherwise enable such Advancing Stockholder(s) to nominate all six (6) directors and to appoint each of the officers, including causing the removal of any or all directors and officers nominated by or affiliated with the Non-Contributing Stockholder in accordance with this Agreement. In addition, the Non-Contributing Stockholder agrees to cooperate in all respects
(including, to the extent applicable, voting any Common Stock held by the Non-Contributing
Stockholder, executing any written consents of the Company, executing and delivering proxies to the Contributing Stockholder, attending any meetings held by the Company and amending the Bylaws and the Certificate) to ensure that the following principles are adhered to by the
Sunny Creek Stockholders Agreement Final 6
Stockholders, directors and officers on and subject to this Section 2 as if the Automatic Conversion had occurred:
i. The Advancing Stockholder(s) shall have the unilateral right to
remove, replace and appoint the two (2) directors of the Company previously appointed by the Non-Contributing Stockholder;
ii. The Advancing Stockholder(s) shall have the unilateral right to remove, appoint and replace the officers of the Company previously appointed by the Non-Contributing Stockholder, including without limitation the right to fix all other terms and
conditions of any such officer’s service to the Company such as the authority and duties of any such officer;
iii. The Advancing Stockholder(s) shall have the exclusive right to call special meetings of the stockholders of the Company;
iv. The directors nominated by the Advancing Stockholder(s) shall
have the unilateral right to fix a record date of stockholders of the Company entitled to notice of or to vote at any meeting of the stockholders of the Company;
v. The number of shares equal to 50% of Common Stock owned by the Advancing Stockholder(s) shall constitute a quorum of stockholders of the Company;
vi. The affirmative vote of 50% of the shares of Common Stock owned
by the Advancing Stockholder(s) shall constitute “a majority of the outstanding shares entitled to vote” as provided in Section 2.09 of the Bylaws; and
vii. Any action required or permitted to be taken at a meeting of the stockholders of the Company may be taken upon the written consent of the Advancing Stockholder(s), and such Advancing Stockholder(s) shall have the unilateral authority to determine
the stockholders entitled to consent to a corporate action in writing and without a meeting of the stockholders of the Company.
3. Development Services Agreement. If Ledcor Development LP is in default of its obligations under that certain Development Services Agreement dated as of even date herewith
between the Partnership, as owner, and Ledcor Development LP, as developer (the “Development Services Agreement), (ii) a Stockholder desires that the Partnership terminate the Development Services Agreement without cause, or (iii) any Stockholder otherwise wishes to legally enforce the terms of the Development Services Agreement, then the director(s) appointed by Qualico and H&R may enforce the Development Services Agreement on behalf of the Partnership through the
powers of the Company as the General Partner unilaterally and without the consent of: (i) either
director appointed under Section 1 (or otherwise) by Ledcor or an Affiliate of Ledcor ; and (ii) without the affirmative vote of Ledcor or an Affiliate of Ledcor at a meeting of the Stockholders. In such case and only so long as the default by Ledcor Development LP under the Development Services Agreement continues, the provisions of Section 2.e and 2.f shall apply only to the extent
necessary to carry out the provisions of this Section 3, as if there was an Investment Imbalance as
defined in Section 2.b and Ledcor or any Affiliate of Ledcor that is a limited partner of the Partnership shall be considered the Non-Contributing Limited Partner(s) while the other limited
Sunny Creek Stockholders Agreement Final 7
partners shall be considered the Contributing Limited Partner(s), and Ledcor or the Stockholder affiliated with Ledcor (or an Affiliate of Ledcor) shall be considered the Non-Contributing Stockholder while Qualico and H&R shall be considered the Advancing Stockholder(s) for such
purposes.
4. Transfer of Shares of Common Stock in Conjunction with a Partnership Transfer. (a) In the event of a bona fide dispute among the Stockholders, any one or more Stockholders that are not a Non Contributing Limited Partner(s) or a Defaulting Indemnitor or an Affiliate of a Non Contributing Limited Partner(s) or a Defaulting Indemnitor ("Notifying Stockholder(s)") may, by
notice in writing sent certified or registered mail, return receipt requested (the "Original Notice"), inform the Company and the other Stockholders (the "Other Stockholder(s)") of the Notifying Stockholder’s(s’) intention to terminate its relationship with the Other Stockholder(s), state the aggregate value that the Notifying Stockholder(s) places on their Stock and their Limited Partner Interest in the Partnership, and state the terms and conditions under which the Notifying
Stockholder(s) would purchase the Other Stockholders’(s’) Stock and their Limited Partner Interest in the Partnership. The Original Notice shall state the value of the Common Stock as a value per share and the value of the Limited Partner Interest as a value per point of Percentage Interest. Within thirty (30) days of receipt of the Original Notice, the Other Stockholder(s) must elect either to (i) buy all of the Notifying Stockholder’s(s’) Stock and Interest in the Partnership at
the price and upon the terms and conditions stated in the Original Notice, or (ii) sell all of the Stock and Limited Partner Interest in the Partnership to the Notifying Stockholder(s) at the price and upon the terms and conditions stated in the Original Notice. In the event the Other Stockholder(s) fails to advise the Notifying Stockholder(s) of its election to buy or sell by notice in writing within the applicable thirty (30) day period, such failure shall be deemed conclusively to be an election
by the Other Stockholder(s) to sell its Stock and Limited Partner Interest in the Partnership to the Notifying Stockholder(s) according to the terms of the Original Notice. (b) The closing for any sale pursuant to this Section shall take place no later than ninety (90) days
after the Other Stockholder(s) notifies (or is deemed to have notified) the Notifying Stockholder(s)
of its intention to buy or sell. Title to the Common Stock and Limited Partner Interest in the Partnership, or documents effecting such transfer of title, shall be delivered by the Stockholder selling its Stock and Interest in the Partnership ("Selling Stockholder") to the Stockholder purchasing such Stock and Interest in the Partnership ("Purchasing Stockholder") free and clear
of all liens and encumbrances. Furthermore, as part of the closing, the Purchasing Stockholder
shall (i) obtain releases from third parties releasing the Selling Stockholder from any personal guarantees of any of the Company's or Partnership's debt and from any other known and existing liabilities of the Company or Partnership that the Selling Stockholder has or could have personal liability for or (ii) indemnify the Selling Stockholder from any such liabilities. The Purchasing
Stockholder shall also indemnify the Selling Stockholder for any future liabilities or contingencies
whatsoever that have risen or may arise as a result of the Selling Stockholder's ownership of Stock or Limited Partner Interest in the Partnership, except for any such liabilities that have arisen or may arise due to a Selling Stockholder's negligence or intentional misconduct. The rights of the Stockholders hereunder may be enforced by specific performance. Furthermore, in addition to any
other remedy at law or in equity, the following remedies shall apply if any Party fails to close
within the ninety (90) day period:
Sunny Creek Stockholders Agreement Final 8
(i) should the Other Stockholder(s) fail to close within the ninety (90) day period, and such failure is not due to the failure of the Notifying Stockholder(s) to close, the Notifying Stockholder(s) shall have the right to purchase the shares of Common Stock and
Limited Partner Interest in the Partnership of the Other Stockholder(s) at ninety percent (90%) of the original purchase price and upon the terms and conditions as determined above; (ii) should the Notifying Stockholder(s) fail to close within the ninety (90) day period, and
such failure is not due to the failure of the Other Stockholder(s) to close, the Other Stockholder(s) shall be entitled to purchase the shares of Stock and Interest in the Partnership of the Notifying Stockholder(s) at a price equal to ninety percent (90%) of the original price and upon the terms and conditions as determined above; and
(iii) any option granted pursuant to (i) or (ii) above must be exercised within fifteen (15) days from the expiration of the original ninety (90) day closing period and, if the option is exercised, closing of the transaction must occur within sixty (60) days following the expiration of the original closing period. Should the option not be exercised within such fifteen (15) day period or should the transaction not be closed within such sixty
(60) day period, any further transactions governed by this Section shall require the giving of additional notice by the Notifying Stockholder(s).
5. Restricted and Permitted Transfers. No Stockholder shall, directly or indirectly, transfer, assign, convey, sell, encumber, pledge or otherwise dispose of, all or any portion of or interest in or shares of its Common Stock or Class A-1 Common Stock (as applicable), voluntarily
or by operation of law (a “Transfer”), including any direct or indirect Transfer (i.e., by a Transfer of an interest in a Stockholder), other than all of its Common Stock or Class A-1 Common Stock (as applicable), except: (i) pursuant to Section 4 of this Agreement, (ii) with the prior written consent of the other Stockholders, such consent to be in each Stockholder’s sole and absolute
discretion, (iii) to any other Person directly or indirectly Controlling, Controlled by, or Controlled
in common with, any Stockholder, including the transferor; (iv) by operation of law in connection with a merger or consolidation of a Stockholder; and (v) to a non-Affiliate third party in accordance with Section 6 (each of (i), (ii), (iii), (iv) and (v) being a “Permitted Transfer”). Any purported Transfer of its Common Stock or Class A-1 Common Stock (as applicable), except a Permitted
Transfer, shall be null and void and of no force or effect whatsoever. In the event of a Transfer or
an attempted Transfer that is not a Permitted Transfer, in addition to all other rights of the other non-transferring Stockholders and all the obligations of the Stockholder engaging or attempting to engage in such Transfer, the Stockholder engaging or attempting to engage in such Transfer shall be liable to indemnify and hold harmless the Company and the other Stockholders from all
liabilities, losses, costs and expenses arising out of or otherwise related to such prohibited Transfer
or attempted Transfer. The trading of equity interests on a public securities exchange shall in no instance be deemed to constitute a Transfer.
6. Right of First Refusal and Piggy Back Rights. Section 11.3 of the Partnership Agreement contains “Right of First Refusal to Purchase” provisions and Section 11.4 of the
Partnership Agreement contains “Piggy Back Rights” provisions, each providing conditions,
restrictions and requirements under which Ledcor, Qualico, H&R, or their respective Affiliates (as applicable) may transfer its interest in the Partnership (“Interest”) to a non-Affiliate third party.
Sunny Creek Stockholders Agreement Final 9
If and only if Ledcor, Qualico, H&R, or their respective Affiliates (as applicable) receives a Bona Fide Offer (as defined in the Partnership Agreement) to transfer its Interest to a non-Affiliate third party, then the Stockholders hereby agree that:
a. Stockholder or Stockholder that is an Affiliate of such proposed transferor of the Interest (as applicable, the “Transferor Stockholder”) shall have the same rights and obligations with respect to the other Stockholder (the “ROFR Stockholder”) and the Transferor Stockholder’s Common Stock and/or Class A-1 Common Stock as the Selling Partner (as defined in the Partnership Agreement) has with respect to the ROFR Partner (as defined in the Partnership
Agreement) and the Selling Partner’s Interest; and
b. ROFR Stockholder shall have the same rights and obligations with respect to the Transferor Stockholder and the Transferor Stockholder’s Common Stock and/or Class A-1 Common Stock as the ROFR Partner has with respect to the Selling Partner and the Selling Partner’s Interest.
7. Dispute Resolution. If any dispute involving the assertion of a legal claim (the “Dispute”) arises (i) out of or relating to this Agreement or any alleged breach of this Agreement, and/or (ii) with respect to any of the transactions or events contemplated by this Agreement, then any Party that is a Party to such Dispute may, at its election, in its sole and absolute discretion, and as its sole remedy for such Dispute, trigger the provisions of this Section 7 by so notifying in
writing (the “Dispute Notice”) each other Party that is a Party to such Dispute (such notifying Party and such other Party(ies), collectively, the “Dispute Parties” and, individually, a “Dispute Party”).
a. Mediation. The Dispute Parties shall submit such Dispute to non-binding mediation before a qualified, mutually agreeable individual. The Dispute Parties shall bear the
costs of such mediation equally. Such mediator must be selected by the Dispute Parties on or before fifteen (15) days following receipt of the Dispute Notice and such mediation must be concluded within thirty (30) days after the selection of such mediator. If either of such deadlines is not met, then the provisions of Section 7(b) shall apply.
b. Arbitration. If the Dispute Parties fail to select a mediator within such
fifteen (15) day period, or if the Dispute is not resolved within such thirty (30) day “mediation” period pursuant to Section 7(a), then, upon written request (the “Arbitration Notice”) by any Dispute Party (given within twenty (20) days after either of such “mediation” deadlines is not met), the Dispute shall be submitted to and settled by binding, final arbitration before one impartial
arbitrator (the “Arbitrator”) pursuant to the Commercial Arbitration Rules of the American
Arbitration Association (“AAA”) and under the Federal Arbitration Act. The arbitration need not be conducted through AAA unless the parties otherwise agree. This includes, without limitation, (1) all issues concerning matters related to this Agreement; (2) initial claims, counterclaims, cross-claims, and third-party claims, whether arising in law or equity, and whether based upon federal,
state, or local law; contract; tort; fraud or other intentional tort; constitution, common law, or
statute; and (3) any issue as to whether any such claims, controversies, or disputes are subject to arbitration.
Sunny Creek Stockholders Agreement Final 10
i. Location. Such arbitration shall be conducted in Orange County, California (or any other location that is determined mutually by the Dispute Parties, each in their sole and absolute discretion).
ii. Selection of Arbitrator. The Dispute Parties shall immediately, but no later than fifteen (15) days after receipt of the Arbitration Notice, jointly select the Arbitrator. If the Dispute Parties do not agree on the Arbitrator within such fifteen (15) day period, then the Arbitrator shall be appointed by the presiding judge of the State District Courts of Orange County, California.
iii. Discovery and Depositions. The Arbitrator shall, in his or her reasonable discretion, allow for reasonable discovery requests including without limitation production of relevant documents and depositions.
iv. Methods for Dispute Resolution. The arbitration of the Dispute, including the determination of any amount of damages suffered by any Dispute Party by reason of
the acts or omissions of any other Dispute Party, shall be final and binding upon each Dispute Party. Notwithstanding anything to the contrary in this Agreement, the Arbitrator shall not be authorized to award punitive damages or attorneys’ fees with respect to any such claim or controversy, nor shall any Dispute Party seek or be awarded punitive damages relative to any matter under, arising out of, or relating to this Agreement in any other forum.
v. Costs and Expenses. Each Dispute Party shall bear its own costs of any arbitration under this Agreement (including without limitation legal fees, the cost of the record or transcripts of such arbitration, if any, and administrative fees), or an equal share of such fees and costs that are not specific to such Dispute Party. Notwithstanding the foregoing, if a Dispute Party is determined by the Arbitrator not to be the prevailing Dispute Party, then such
nonprevailing Dispute Party shall be responsible for all such fees and costs.
vi. Deadline for Arbitrator. Each Dispute Party shall instruct the Arbitrator to render his or her decision no later than, and each Dispute Party shall use its good faith efforts to cause the Arbitrator’s decision to be issued on or before, sixty (60) days after the selection
of the Arbitrator.
c. Provisional Judicial Relief. Notwithstanding anything to the contrary in this Section 7, any Dispute Party may seek any provisional remedy available at law or in equity in any state or federal court in Orange County, California without compromising the right and obligation, subject to Section 7(b), to arbitrate ultimately and finally all Disputes.
d. Joinder of Arbitrations. The Parties and/or the Parties’ Affiliates have
entered into related transaction documents including the Partnership Agreement and certain other documents referenced therein or attached thereto (the “Transaction Documents”); accordingly, to the extent that the provisions of this Section 7 are initiated by a Party with respect to a Dispute and an arbitration has already been initiated under any of the Transaction Documents which is the
subject of or related to the Dispute, then such Party shall have the right to elect that the Dispute be
resolved in the ongoing arbitration previously triggered under the Transaction Documents.
Sunny Creek Stockholders Agreement Final 11
8. Construction Contracts. It is the intent of all the Stockholders and the Partnership that construction contracts for each phase of the Project shall be separately and competitively bid.
9. Business Plan. The Company shall prepare or shall cause the Development
Managers to prepare for its approval updates to the Business Plan and components thereof not less frequently than annually and otherwise as it deems appropriate to carry out the business and affairs of the Partnership. Current versions of the Business Plan and the General Development Budget, each subject to change from time to time, are attached to this Agreement as Schedule 2. The Company shall provide financial reporting as may be reasonably requested by the Stockholders on
a quarterly basis, within 30 days of the end of each calendar quarter. Further, the Company shall provide audited financial statements, audited by an accounting firm reasonably acceptable to the Stockholders, within 60 days of the end of each calendar year.
10. Legend. Each existing or replacement certificate for Common Stock now owned by the Stockholders shall bear a legend that in substance states the following:
“THE OWNERSHIP, TRANSFER, SALE, CONVEYANCE, ENCUMBRANCE, PLEDGE, ASSIGNMENT OR OTHER DISPOSITION OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED THEREBY, ARE SUBJECT TO THE RESTRICTIONS CONTAINED IN A STOCKHOLDERS
AGREEMENT AMONG THE COMPANY AND THE COMPANY’S STOCKHOLDERS. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.”
11. Notices. All notices, requests, demands or other communications which may be or
are required to be given, served or sent by the Company or any Stockholder shall be in writing and shall be deemed received (i) upon delivery in person, (ii) if transmitted by email (with a copy delivered in person or by overnight delivery the next business day), upon receipt, (iii) one business day after being deposited for overnight delivery with any reputable overnight courier service, or
(iv) three (3) business days after being deposited in any post office or mail depository regularly
maintained by the United States Postal Office or Canada Post and sent by registered or certified mail, postage paid, return receipt requested, and in each case addressed as follows (or to such other address as any Party may specify by notice to the other): (A) in the case of a Stockholder, to its address as is designated in writing from time to time by such Party, (B) in the case of the Company,
to its principal office, and (C) in the case of any permitted transferee of a Party to this Agreement,
to such transferee at its address as designated in writing by such transferee to the Company from time to time.
In the event that Notice is given by different means to the Parties to this Agreement, all deadlines contained in this Agreement that commence on the date that notice is received shall be
calculated from the latest day on which any Limited Partner or General Partner receives such
notice as defined in this section.
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If at the time of giving notice there is a postal dispute involving either of the United States Postal Office or Canada Post, all communications will be delivered or sent by electronic means of communication which results in a printed signed document.
12. Assignment of Rights. Subject to the restrictions on transfer contained herein, this Agreement and the rights and obligations of the Parties hereunder shall inure to the benefit of, and be binding upon, the Parties’ respective successors, permitted assigns, legal representatives and any transferee of any of the Common Stock held by the Stockholders in connection with a Permitted Transfer; provided, further, without limiting the foregoing, Stockholders’ obligations to
vote shares in accordance with this Agreement shall be specifically applicable to and enforceable against any transferees of the Stockholders.
13. Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its principles of conflicts of law and is performable in the State of Washington.
14. Term. This Agreement shall terminate on the date on which neither (i) Ledcor, one of its Affiliates, or any of their permitted successors and assigns, (ii) Qualico, one of its Affiliates, or any of their permitted successors and assigns, nor (iii) H&R, one of its Affiliates, or any of their permitted successors or assigns, is the record owner of any shares of Common Stock.
15. Entire Agreement. This instrument and the other written documents executed by
the Parties and their Affiliates contemporaneously herewith contain the entire understanding of the Parties with respect to the subject matter hereof, supersedes all other agreements between or among any of the Parties with respect to the subject matter hereof and cannot be altered or otherwise amended except pursuant the terms of Section 18. This Agreement shall prevail over and supersede the Bylaws to the extent of any inconsistency or conflict between the terms of this
Agreement and the Bylaws.
16. Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such Party may be
entitled.
17. Further Instruments and Actions. The Parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. The Parties further agree to cooperate affirmatively with the Company, to the extent reasonably requested by the Company, to enforce any rights and obligations in this
Agreement.
18. Amendments and Waivers. Any term of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of all of the Stockholders of the Company.
19. Rights; Severability. Unless otherwise expressly provided herein, the rights
hereunder are several rights, not rights jointly held with any other Person. In case any provision
Sunny Creek Stockholders Agreement Final 13
of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
20. Counterparts. This Agreement, and any vote, determination, consent, approval or
vote of the Stockholders under this Agreement, may be executed in any number of counterparts, each of which shall constitute an original, but all of which, taken together, shall constitute but one and the same instrument. A counterpart of this Agreement (or any such vote, determination, consent, approval or vote of the Stockholders under this Agreement) executed by a Party to this Agreement and transmitted electronically (e.g. scanned and emailed) shall be for all purposes as
effective as a counterpart of this Agreement bearing an original signature on behalf of such Party.
21. Construction. The provisions of this Agreement shall be construed simply according to their fair meaning and not strictly for or against any Party. Headings in this Agreement are as references only and are not intended to define or limit the scope or intent of any provision. For purposes of this Agreement, the term “Business Day” shall mean any day other than
Saturday, Sunday or any day upon which banks in the State of Washington and/or the Province of British Columbia are required or permitted to be closed.
22. Consent to Jurisdiction. The Parties each hereby (i) subject to Section 7, consents to the jurisdiction of the courts in the County of with respect to any dispute, claim or other matter arising out of this Agreement, and (ii) subject to Section 7, irrevocably waives any objection that
it may now or hereafter have with respect to the venue for any action, suit or proceeding in such courts, including an objection based on an assertion that such action, suit or proceeding has been brought in an inconvenient forum.
23. Waiver of Jury Trial. To the extent permitted by law, the Parties each irrevocably waives all rights to trial by jury in any action, proceeding or counterclaim relating to and permitted
by this Agreement.
[Signature Pages Immediately Follow]
Signature Page to Stockholders Agreement of Sunny Creek Developments Inc. 3 of 4
LANTOWER CARLSBAD SAN DIEGO LP, A Delaware limited partnership
BY: LANTOWER CARLSBAD SAN DIEGO GP LLC, a Delaware limited liability company
By: ________________________________
Name: ______________________________ Title: _______________________________
[Signatures Continued on Following Page]
Thomas Hofstedter
President
QUALICO DEVELOPMENTS (CA), INC.,
A California corporation
[End of Signatures J
Signature Page to
Stockholders Agreement of
Sunny Creek Developments Inc.
4 of4
Sunny Creek Stockholders Agreement Final 1
SCHEDULE 1
BYLAWS OF THE COMPANY
See attached
Sunny Creek Bylaws Final
BYLAWS
OF
SUNNY CREEK DEVELOPMENTS INC.,
a Delaware corporation
Adopted as of September 16, 2021
TABLE OF CONTENTS
Page
ARTICLE I OFFICES ...................................................................................................................... ]
Section 1.01
Section 1. 02
Business Offices ..................................................................................... 1
Registered Office .................................................................................... 1
ARTICLE II THE STOCKHOLDERS .............................................................................................. 1
Section 2.01
Section 2. 02
Section 2.03
Section 2. 04
Section 2. 05
Section 2. 06
Section 2.07
Section 2. 08
Section 2.09
Section 2.10
Section 2.11
Section 2.12
Annual Meeting ...................................................................................... ]
Special Meeting ...................................................................................... 1
Place of Meeting .................................................................................... 1
Notice of Meetings ................................................................................. 1
Fixing Date for Determination of Stockholders of Record .................... 2
Voting List .............................................................................................. 2
Proxies ................................................................................................... 3
Quorum and Manner of Action ............................................................. .3
Voting of Shares ..................................................................................... 3
Voting of Shares by Certain Holders ..................................................... 3
Action Without a Meeting ...................................................................... 4
Voting Rights Superseded by the Stockholders Agreement .................... 4
ARTICLE III BOARD OF DIRECTORS .......................................................................................... 5
Section 3.01
Section 3.02
Section 3.03
Section 3.04
Section 3.05
Section 3.06
Section 3.07
Section 3.08
Section 3. 09
Section 3.10
Section 3.11
Section 3.12
Section 3.13
Section 3.14
General Powers ..................................................................................... 5
Number, Tenure and Qualifications ...................................................... 5
Resignation ............................................................................................ 5
Remova/. ................................................................................................. 5
Vacancies ............................................................................................... 5
The Stockholders Agreement .................................................................. 5
Regular Meetings ................................................................................... 5
Special Meetings .................................................................................... 6
Meetings by Telephone .......................................................................... 6
Notice of Meetings ................................................................................. 6
Quorum and Manner of Action .............................................................. 6
Action Without a Meeting ...................................................................... 7
Compensation ........................................................................................ 7
Committees for the Temporary Absence of a Director .......................... 7
ARTICLE IV OFFICERS ................................................................................................................. 7
Section 4.01
Section 4. 02
Section 4.03
Section 4. 04
Section 4. 05
Section 4. 06
Section 4. 07
Section 4. 08
Sunny Creek Bylaws Final
Number and Qualifications .................................................................... 7
Election and Term of Office ................................................................... 7
Compensation ........................................................................................ 8
Resignation ............................................................................................ 8
Removal .................................................................................................. 8
Vacancies ............................................................................................... 8
Authority and Duties .............................................................................. 8
Surety Bonds ........................................................................................ 10
1
ARTICLE V STOCK ....................................................................................................................... 10
Section 5.01
Section 5. 02
Section 5.03
Section 5. 04
Section 5. 05
Section 5. 06
Section 5.07
Issuance of Shares ................................................................................ 10
Stock Certificates: Uncertificated Shares ........................................... 10
Payment for Shares .............................................................................. 10
Lost Certificates ................................................................................... 11
Transfer of Shares ................................................................................ 11
Registered Holders ............................................................................... 11
Transfer Agents, Registrars and Paying Agents .................................. 11
ARTICLE VI PARTNERSHIP ........................................................................................................ 11
Section 6.01 Corporate General Partner ................................................................. 11
ARTICLE VII MISCELLANEOUS ................................................................................................. 12
Section 7.01
Section 7. 02
Section 7. 03
Section 7. 04
Section 7. 05
Section 7. 06
Section 7. 07
Sunny Creek Bylaws Final
Waiver of Notice .................................................................................. 12
Presumption of Assent .......................................................................... 12
Voting of Securities by the Corporation .............................................. 12
Seal ....................................................................................................... 12
Fiscal Year ........................................................................................... 12
Amendments ......................................................................................... 12
Conflict ................................................................................................. 13
11
BYLAWS
OF
SUNNY CREEK DEVELOPMENTS INC.,
a Delaware corporation
ARTICLE I
OFFICES
Section 1.01 Business Offices. The corporation may have such offices, either within or
outside Delaware, as the board of directors may from time to time determine or as the business of
the corporation may require.
Section 1.02 Registered Office. The registered office of the corporation required by the
Delaware General Corporation Law to be maintained in Delaware shall be as set forth in the
certificate of incorporation, unless changed as provided by law.
ARTICLE II
THE STOCKHOLDERS
Section 2.01 Annual Meeting. An annual meeting of the stockholders shall be held each
year for the purpose of electing directors and conducting such other proper business as may come
before the meeting. The date, time and place of the annual meeting shall be determined by
unanimous consent of the directors. If the election of directors shall not be held on the day
designated herein for any annual meeting of the stockholders, or at any adjournment thereof, the
board of directors shall cause the election to be held at a meeting of the stockholders as soon
thereafter as conveniently may be. Failure to hold an annual meeting as required by these bylaws
shall not invalidate any action taken by the board of directors or officers of the corporation.
Section 2.02 Special Meeting. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by the Delaware General Corporation Law, may be called
by any director and shall be called by the president and/or any senior vice-president ( each,
"Authorized Officer") at the request of the holders of at least a majority of the outstanding shares
entitled to vote.
Section 2.03 Place of Meeting. Each meeting of the stockholders shall be held at such
place, either within or outside Delaware, as may be designated in the notice of meeting, or, if no
place is designated in the notice, at the principal office of the corporation.
Section 2.04 Notice of Meetings. Except as otherwise required by law, written notice of
each meeting of the stockholders stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called, shall be given, either
personally (including delivery by private courier) or by first class, certified or registered mail, or
electronic mail to each stockholder of record entitled to notice of such meeting, not less than
Sunny Creek Bylaws Final
1
three (3) nor more than five (5) days before the date of the meeting. Such notice shall be deemed
to be given, if personally delivered, when delivered to a stockholder, if mailed, when deposited
in the United States or Canadian mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the corporation, and, if sent by electronic mail, when sent. If notice
of two (2) consecutive annual meetings and all notices of meetings of or the taking of action by
written consent without a meeting to any stockholder during the period between such two (2)
consecutive annual meetings, or at least two (2) payments (if sent by first class mail) of dividends
or interest on securities during a twelve (12)-month period, have been mailed addressed to such
person at his address as shown on the records of the corporation and have been returned
undeliverable, the giving of such notice to such person shall not be required until another address
for such person is delivered to the corporation. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty (3 0) days, or if after the adj oumment a new record date
is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to notice in accordance with the foregoing provisions of this
Section 2.04.
Section 2.05 Fixing Date for Determination of Stockholders of Record. For the purpose
of determining the stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for any other lawful action, the board of directors may fix, in advance, a
date as the record date for any such determination of the stockholders, which date shall be not
more than five (5) nor less than three (3) days before the date of such meeting, and not more than
five ( 5) days prior to any other action. If no record date is fixed then the record date shall be, for
determining the stockholders entitled to notice of or to vote at a meeting of the stockholders, the
close of business on the day next preceding the day on which notice is given, or, if notice is
waived, the close of business on the day next preceding the day on which the meeting is held, or,
for determining the stockholders for any other purpose, the close of business on the day on which
the board of directors adopts the resolution relating thereto. A determination of the stockholders
of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting. Notwithstanding the foregoing provisions of this Section 2.05,
the record date for determining the stockholders entitled to take, or receive notice of, corporate
action in writing without a meeting as provided in Section 2.11 shall be determined as provided
in such Section 2.11.
Section 2.06 Voting List. The officer who has charge of the stock books of the
corporation shall prepare and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders owning shares entitled to vote, arranged in
alphabetical order, and showing the address of each stockholder and the number of shares entitled
to vote owned by each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so specified, at the place
Sunny Creek Bylaws Final
2
where the meeting is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 2.07 Proxies. Each stockholder owning shares entitled to vote may authorize
another person or persons to act for such person by proxy, but no such proxy shall be voted or
acted upon after eleven (11) months from its date, unless the proxy provides for a longer period.
Section 2.08 Quorum and Manner of Action. At all meetings of the stockholders, all of
the outstanding shares entitled to vote, represented in person or by proxy, shall constitute a
quorum, unless a lesser proportion or number is required for a quorum or, when voting by classes,
a different quorum requirement is otherwise required or specified by law, the certificate of
incorporation, these bylaws, or a Stockholders Agreement. If a quorum is present, the affirmative
vote of all of the outstanding shares entitled to vote on the subject matter shall be the act of the
stockholders, unless the vote of a lesser proportion or number or voting by classes is otherwise
required by law, the certificate of incorporation, these bylaws, or a Stockholders Agreement. In
the absence of a quorum, a majority of the outstanding shares entitled to vote so represented may
adjourn the meeting from time to time in accordance with Section 2.04, until a quorum shall be
present or represented.
Section 2.09 Voting of Shares. Unless otherwise provided in the certificate of
incorporation or a Stockholders Agreement and subject to the provisions of Section 2.05, each
stockholder shall have one vote for each share entitled to vote held of record by such stockholder
on each matter submitted to a vote of the stockholders either at a meeting thereof or pursuant to
Section 2.11. Except as otherwise provided in a Stockholders Agreement, in the election of
directors each record holder of shares entitled to vote at such election shall have the right to vote
the number of shares owned by such person for as many persons as there are directors to be
elected, and for whose election he has the right to vote. Cumulative voting shall not be allowed.
As used herein, the phrase "a majority of the outstanding shares entitled to vote" or similar phrases
shall mean fifty and one tenth percent (50.1 %) or more of the outstanding shares of record entitled
to vote.
Section 2.10 Voting of Shares by Certain Holders.
(a) Fiduciaries; Pledgors. Persons holding stock in a fiduciary capacity shall
be entitled to vote the shares entitled to vote so held. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the corporation he has
expressly empowered the pledgee to vote thereon, in which case only the pledgee or his proxy may
represent such shares and vote thereon.
(b) Joint Owners. If shares stand of record in the names of two (2) or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety or otherwise, or if two (2) or more persons have the same fiduciary relationship
respecting the same shares, unless the secretary of the corporation is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall have the following
effects: (i) if only one votes, its act binds all; (ii) if more than one votes, the act of the majority so
Sunny Creek Bylaws Final
3
voting binds all; (iii) if more than one votes, but the vote is evenly split on any particular matter,
each faction may vote the shares in question proportionally, or any person voting the shares, or a
beneficiary, if any, may apply to any court having jurisdiction to appoint an additional person to
act with the persons so voting the shares, in which case the shares shall then be voted as determined
by a majority of such persons; and (iv) if a tenancy is held in unequal interests, a majority or even
split for the purposes of subparagraph (iii) shall be a majority or even split in interest.
Section 2.11 Action Without a Meeting.
(a) Written Consent. Unless otherwise provided in the certificate of
incorporation or a Stockholders Agreement, any action required or permitted to be taken at any
meeting of the stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be signed by all of the
stockholder(s) (or their proxies) holding all of the shares entitled to vote (which consent may be
signed in counterparts). Each written consent shall bear the date of signature of each stockholder
( or proxy) who signs the consent and no written consent shall be effective to take the corporate
action referred to therein unless written consents signed by a sufficient number of the stockholders
( or proxies) to take the action are delivered to the corporation in the manner required by the
Delaware General Corporation Law.
(b) Determination of Stockholders Entitled to Act by Consent. For purposes of
determining the stockholders entitled to consent to corporate action in writing without a meeting,
the board of directors may fix, in advance, a date as the record date for any such determination of
the stockholders, which date shall be not more than five (5) days after the date upon which the
resolution fixing the record date is adopted by the board of directors. If no record date has been
fixed by the board of directors, the record date for determining the stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the board of directors is
required by the Delaware General Corporation Law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is delivered to the corporation
in the manner required by the Delaware General Corporation Law. If no record date has been
fixed by the board of directors and prior action by the board of directors is required by the Delaware
General Corporation Law, the record date for determining the stockholders entitled to consent to
corporate action in writing without a meeting shall be the close of business on the day on which
the board of directors adopts the resolution taking such prior action.
Section 2.12 Voting Rights Superseded by the Stockholders Agreement.
Notwithstanding any other provision of these bylaws, to the extent that the stockholders and/or
the corporation have entered into a Stockholders Agreement ( defined below) which governs the
voting rights of the stockholders, the terms of the Stockholders Agreement shall supersede the
terms contained herein and govern with respect to all matters addressed therein.
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ARTICLE III
BOARD OF DIRECTORS
Section 3.01 General Powers. The business and affairs of the corporation shall be
managed by or under the direction of its board of directors, except as otherwise provided in the
Delaware General Corporation Law, the certificate ofincorporation, the bylaws of the corporation
or a Stockholders Agreement.
Section 3.02 Number, Tenure and Qualifications. The number of directors of the
corporation shall be six (6). Except as otherwise provided in Section 3.05 or the Stockholders
Agreement, directors shall be elected at each annual meeting of the stockholders, by a plurality of
the votes present in person or represented by proxy at the meeting. Each director shall hold office
until his successor shall have been elected and qualified or until his earlier death, resignation or
removal. Directors need not be residents of Delaware or a stockholder of the corporation.
Section 3.03 Resignation. Any director may resign at any time by giving written notice
to the corporation. A director's resignation shall take effect at the time specified therein; and
unless otherwise specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 3.04 Removal. Except as otherwise provided in a Stockholders Agreement, any
director or the entire board of directors may be removed, with or without cause, by the holders of
a majority of the outstanding shares entitled to vote; except that if the holders of shares of any
class or series are entitled to elect one or more directors by the provisions of the certificate of
incorporation, the provisions of this Section 3.04 shall apply, with respect to the removal without
cause of a director or directors so elected, to the vote of the holders of the outstanding shares of
that class or series and not to the vote of the outstanding shares as a whole. Any reduction in the
authorized number of directors shall not have the effect of shortening the term of any incumbent
director unless such director is also removed from office in accordance with this Section 3.04.
Section 3.05 Vacancies. Unless otherwise provided in the certificate of incorporation or
a Stockholders Agreement, any vacancy or any newly created directorship resulting from any
increase in the authorized number of directors shall be filled by the stockholders and a director so
chosen shall hold office until the next annual election and until his successor is duly elected and
qualified, unless sooner displaced.
Section 3.06 The Stockholders Agreement. Notwithstanding any other provision of this
Article III, if at any time the corporation and all of its the stockholders enter into a Stockholders
Agreement ( a "Stockholders Agreement") whereby the election, removal and replacement of
directors is provided for therein, and provided such Stockholders Agreement has not been
terminated, then the provisions of such Stockholders Agreement shall prevail and supersede the
provisions of these bylaws with regard to the election, removal and replacement of directors of
the corporation, but only to the extent of any conflict between these bylaws and such Stockholders
Agreement.
Section 3.07 Regular Meetings. A regular meeting of the board of directors shall be held
immediately after and at the same place as the annual meeting of the stockholders, or as soon
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thereafter as conveniently may be, at the time and place, either within or without Delaware,
determined by the board, for the purpose of electing officers and for the transaction of such other
business as may come before the meeting. Failure to hold such a meeting, however, shall not
invalidate any action taken by any officer then or thereafter in office. The board of directors may
provide by resolution the time and place, either within or outside Delaware, for the holding of
additional regular meetings without other notice than such resolution.
Section 3.08 Special Meetings. Special meetings of the board of directors may be called
by or at the request of an Authorized Officer or any director. Subject to Section 3.09, the person
authorized to call special meetings of the board of directors may fix any convenient place, either
within or outside Delaware, as the place for holding any special meeting of the board of directors
called by such person. Without limiting the foregoing, at any special meeting, an Authorized
Officer or any director may propose a Major Decision (defined below) to be decided upon by the
board of directors.
Section 3.09 Meetings by Telephone. Unless otherwise restricted by the certificate of
incorporation or a Stockholders Agreement, members of the board of directors may participate in
a meeting of such board by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other, and such
participation in a meeting in such manner shall constitute presence in person at the meeting.
Section 3.10 Notice of Meetings. Notice of each meeting of the board of directors
( except those regular meetings for which notice is not required) stating the place, day and hour of
the meeting shall be given to each director at least five business days prior thereto by the mailing
of written notice by first class, certified or registered mail, or at least two days prior thereto by
personal delivery (including delivery by private courier) of written notice or by telephone,
telegram, telex, cablegram, electronic mail or other similar method, except that in the case of a
meeting to be held pursuant to Section 3.09 notice may be given by telephone or electronic mail
one day prior thereto. The method of notice need not be the same to each director. Notice shall
be deemed to be given when deposited in the United States or Canadian mail, with postage thereon
prepaid, addressed to the director at his business or residence address, when delivered or
communicated to the director or when the telegram, telex, cablegram, electronic mail or other
form of notice is personally delivered or time stamped to the director or delivered to the last
address of the director furnished by such person to the corporation for such purpose. Neither the
business to be transacted at nor the purpose of any meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 3 .11 Quorum and Manner of Action. Except as otherwise may be required by
law, the certificate of incorporation, these bylaws or a stockholder agreement, the presence of all
of the directors shall constitute a quorum for the transaction of business at any meeting of the
board of directors, and the affirmative vote of all of the directors present at a meeting at which a
quorum is present shall be the act of the board of directors. If the unanimous affirmative vote of
all the board of directors is required by law, the certificate of incorporation, these bylaws or the
Stockholders Agreement, then all of the board of directors shall constitute a quorum for the
transaction of business at any meeting requiring such unanimous approval. lfless than a quorum
is present at a meeting, the directors present may adjourn the meeting from time to time without
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further notice other than announcement at the meeting, until a quorum shall be present. No
director may vote or act by proxy or power of attorney at any meeting of the board of directors.
Section 3 .12 Action Without a Meeting»
(a) Except as otherwise provided in a Stockholders Agreement, any action
required or permitted to be taken at any meeting of the board of directors may be taken without a
meeting, without prior notice and without a vote, if all of the directors consent thereto in writing
and the writing or writings are filed with the minutes of the proceedings of the board. Such
writings may be evidenced by electronic communication between the directors provided that such
communications are formalized in an executed record suitable for preservation with the minutes
of such proceedings.
Section 3 .13 Compensation. Unless otherwise permitted by the certificate of
incorporation, the board of directors shall not have the authority to permit compensation for the
directors without the unanimous consent of the board of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors. No such payment shall
preclude any director from serving the corporation in any other capacity and receiving
compensation therefor.
Section 3.14 Committees for the Temporary Absence of a Director. In accordance with
any Stockholders Agreement, if any director is temporarily unable to attend or participate in an
action of the board, then the board shall have the right to appoint a committee as provided in any
Stockholders Agreement in accordance therewith, including temporary applications of the
quorum and voting rights and obligations provided elsewhere in these bylaws. Such committee
shall also be so appointed upon the written notice of any stockholder to each other stockholder as
provided in any Stockholders Agreement.
ARTICLE IV
OFFICERS
Section 4.01 Number and Qualifications. The officers of the corporation shall consist of
a president, a chief operating officer, a senior vice-president, a treasurer and a secretary and such
other officers as may from time to time be elected or appointed by the board, including a chairman
of the board, a vice-chairman or vice-chairman of the board, one or more vice-presidents, and a
controller. The board of directors may elect or appoint such assistant and other subordinate
officers including assistant vice-presidents, assistant secretaries and assistant treasurers, as it or
he shall deem necessary or appropriate. Any number of offices may be held by the same person,
except that no person may simultaneously hold the offices of president and secretary.
Section 4.02 Election and Term of Office. Except as otherwise provided in a
Stockholders Agreement, the officers of the corporation shall be elected by a unanimous vote of
the directors annually at the first meeting of the board held after each annual meeting of the
stockholders as provided in Section 3.07. If the election of officers shall not be held as provided
herein, such election shall be held as soon thereafter as conveniently may be. Each officer shall
hold office until his successor shall have been duly elected and shall have qualified or until the
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expiration of his tenure in office if elected or appointed for a specified period of time or until his
earlier death, resignation or removal.
Section 4.03 Compensation. Officers shall not receive compensation for their services,
except with the unanimous vote of the board of directors. Election or appointment as an officer
shall not of itself create a contract or other right to compensation for services performed by such
officer.
Section 4.04 Resignation. Any officer may resign at any time, subject to any rights or
obligations under any existing contracts between the officer and the corporation, by giving written
notice to the corporation. An officer's resignation shall take effect at the time stated therein; and
unless otherwise specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4-.05 Removal. Except as otherwise provided in a Stockholders Agreement, any
officer may be removed at any time by unanimous vote of the directors. Election or appointment
of an officer shall not in itself create contract rights.
Section 4.06 Vacancies. Except as otherwise provided in a Stockholders Agreement, a
vacancy occurring in any office by death, resignation, removal or otherwise may be filled by a
unanimous vote of the directors on the board of directors.
Section 4.07 Authority and Duties. The officers of the corporation shall have the
authority and shall exercise the powers and perform the duties specified below, and as may be
additionally specified by the board of directors or these bylaws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by law. Except as
otherwise provided in Article VI, the officers shall have the duty and authority, on behalf of the
corporation, to do all things appropriate to cause the corporation to exercise its rights as general
partner under the Partnership Agreement ( defined below), to accomplish of the purposes of the
Partnership.
(a) President. The president, subject to the Business Plan of the Partnership
and the direction and supervision of the board of directors, shall: (i) have general and active control
of the corporation's affairs and business and general supervision of its officers, agents and
employees; (ii) preside at all meetings of the stockholders and the board of directors; (iii) see that
all orders and resolutions of the board of directors are carried into effect; and (iv) perform all other
duties normally incident to the office of president of a corporation as from time to time may be
assigned to such person by the board of directors.
(b) Chief Operating Officer. The chief operating officer, subject to the
Business Plan of the Partnership and the direction and supervision of the board of directors, shall,
along with the president (i) have general and active control of the corporation's affairs and business
and general supervision of its officers, agents and employees; (ii) preside at all meetings of the
stockholders and the board of directors; (iii) see that all orders and resolutions of the board of
directors are carried into effect; and (iv) perform all other duties normally incident to the office of
chief operating officer of a corporation as from time to time may be assigned to such person by
the board of directors.
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(c) Senior Vice President. In the absence of the president, or in the event of his
inability or refusal to act, the senior vice-president, if any, ( or in the event there be more than one
senior vice-president, the senior vice-presidents in the order designated by the directors, or in the
absence of any designation, then in the order of their election) shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the president. The senior vice-presidents shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
(d) Vice-President. In the absence of all senior vice-presidents, or in the event
of his (their) inability or refusal to act, the vice-president, if any, ( or in the event there be more
than one vice-president, the vice-presidents in the order designated by the directors, or in the
absence of any designation, then in the order of their election) shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the president. The vice-presidents shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
(e) Secretary. The secretary, subject to the Business Plan of the Partnership
and the direction and supervision of the board of directors, shall: (i) prepare the minutes of the
proceedings of the stockholders and the board of directors; (ii) see that all notices are duly given
in accordance with the provisions of these bylaws or as required by law; (iii) be custodian of the
corporate records of the corporation; (iv) keep at the corporation's registered office or principal
place of business a record containing the names and addresses of all stockholders and the number
and class of shares held by each, unless such a record shall be kept at the office of the corporation's
transfer agent or registrar; (v) have general charge of the stock books of the corporation, unless
the corporation has a transfer agent; and (vi) in general, perform all other duties incident to the
office of secretary and such other duties as from time to time may be assigned to such person by
the board of directors. Assistant secretaries, if any, shall have the same duties and powers, subject
to supervision by the secretary.
(f) Treasurer. The treasurer (who may also be referred to as the chief financial
officer), subject to the Business Plan of the Partnership and the direction and supervision of the
board of directors, shall: (i) be the principal financial officer of the corporation and have the care
and custody of all funds, securities, evidences of indebtedness and other personal property of the
corporation and deposit the same in accordance with the instructions of the board of directors; (ii)
receive and give receipts for moneys paid in on account of the corporation, and pay out of the
funds on hand all bills, payrolls and other just debts of the corporation of whatever nature upon
maturity; (iii) unless there is a controller, be the principal accounting officer of the corporation and
as such prescribe and maintain the methods and systems of accounting to be followed, keep
complete books and records of account, prepare and file all local, state and federal tax returns,
prescribe and maintain an adequate system of internal audit and prepare and furnish to the board
of directors statements of account showing the financial position of the corporation and the results
of its operations; (iv) upon request of the board, make such reports to it as may be required at any
time; and (v) perform all other duties incident to the office of treasurer and such other duties as
from time to time may be assigned to such person by the board of directors. Assistant treasurers,
if any, shall have the same powers and duties, subject to the supervision of the treasurer. If there
is no treasurer, these duties shall be performed by the secretary or other person appointed by the
board of directors.
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Section 4.08 Surety Bonds. The board of directors may require any officer or agent of
the corporation to execute to the corporation a bond in such sums and with such sureties as shall
be satisfactory to the board, conditioned upon the faithful performance of his duties and for the
restoration to the corporation of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the corporation.
ARTICLEV
STOCK
Section 5.01 Issuance of Shares. Except as otherwise provided in a Stockholders
Agreement, the issuance or sale by the corporation of any shares of its authorized capital stock of
any class, including treasury shares, shall be made only upon authorization by the board of
directors by unanimous vote or consent. Every issuance of shares shall be recorded on the books
of the corporation maintained for such purpose by or on behalf of the corporation.
Section 5.02 Stock Certificates: Uncertificated Shares. The shares of stock of the
corporation shall be represented by certificates, except that a vote of all of the directors may, in
accordance with applicable provisions of law, authorize the issuance of some or all of any or all
classes or series of stock of the corporation without certificates. If shares are represented by
certificates ( or if a holder of uncertificated shares requests his shares to be represented by a
certificate), each certificate shall be signed by or in the name of the corporation by the chairman
or a vice-chairman of the board of directors, or the president or a vice-president, and by the
treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by such person in the corporation. Any of or all the
signatures on the certificate may be a copy or pdf. In case any officer, transfer agent or registrar
who has signed or whose copied or pdf signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the corporation with the same effect as ifhe were such officer, transfer agent or registrar
at the date of issue. Certificates of stock shall be in such form consistent with law as shall be
prescribed by the board of directors.
Section 5.03 Payment for Shares. Shares shall be issued for such consideration (but not
less than the par value thereof) as shall be determined from time to time by unanimous consent of
the directors. Treasury shares shall be disposed of for such consideration as may be determined
from time to time by the board. Such consideration shall be paid in such form and in such manner
as the directors shall determine. In the absence of actual fraud in the transaction, the judgment of
the directors as to the value of such consideration shall be conclusive. The capital stock issued
by the corporation shall be deemed to be fully paid and non-assessable stock if: (i) the entire
amount of the consideration has been received by the corporation in the form of cash, services
rendered, personal property, real property, leases ofreal property or a combination thereof; or (ii)
not less than the amount of the consideration determined to be capital pursuant to the Delaware
General Corporation Law has been received by the corporation in such form and the corporation
has received a binding obligation of the subscriber or purchaser to pay the balance of the
subscription or purchase price; provided, however, nothing contained herein shall prevent the
board of directors from issuing partly paid shares pursuant to the Delaware General Corporation
Law.
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Section 5.04 Lost Certificates. In case of the alleged loss, destruction or mutilation of a
certificate of stock a unanimous vote of the board of directors may direct the issuance of a new
certificate in lieu thereof upon such terms and conditions in conformity with law as it may
prescribe.
Section 5.05 Transfer of Shares. Upon presentation and surrender to the corporation or
to a transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, payment of all transfer taxes,
if any, and the satisfaction of any other requirements of law, including inquiry into and discharge
of any adverse claims of which the corporation has notice, the corporation or the transfer agent
shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the
transaction on the books maintained for such purpose by or on behalf of the corporation. No
transfer of shares shall be effective until it has been entered on such books. Transfers shall be
subject to any limitations set forth in a Stockholders Agreement. The corporation or a transfer
agent of the corporation may require a signature guaranty or other reasonable evidence that any
signature is genuine and effective before making any transfer. Transfers of uncertificated shares
shall be made in accordance with applicable provisions of the Delaware General Corporation Law.
Section 5.06 Registered Holders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person registered on its books
as the owner of shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Delaware.
Section 5.07 Transfer Agents, Registrars and Paying Agents. The board of directors may
at its discretion appoint one or more transfer agents, registrars and agents for making payment
upon any class of stock, bond, debenture or other security of the corporation. Such agents and
registrars may be located either within or outside Delaware. They shall have such rights and
duties and shall be entitled to such compensation as may be agreed.
ARTICLE VI
P ARTNERSIDP
Section 6.01 Corporate General Partner.
(a) The corporation is the general partner of Sunny Creek Development
Partners LP, a Delaware limited partnership (the "Partnership"). Initially, the only limited
partners of the Partnership shall be Ledcor Properties Corporation, a Washington corporation (the
"Ledcor Partner"), Lantower Carlsbad San Diego LP, a Delaware limited partnership, (the "HR
Partner"), and Qualico Developments (CA), Inc., a California corporation (the "Qualico
Partner") (as may be modified or amended from time to time, the "Partnership Agreement").
Capitalized terms not otherwise defined herein shall have the meaning provided in the Partnership
Agreement.
(b) The purposes and activities of the corporation shall include holding the
general partner interest in the Partnership and taking all actions that the corporation may take on
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behalf of the Partnership pursuant to the Partnership Agreement in its capacity as general partner
of the Partnership ( collectively, the "Corporate Activities").
ARTICLE VII
MISCELLANEOUS
Section 7.01 Waiver of Notice. Whenever notice is required to be given by law, by the
certificate of incorporation, by these bylaws or by a Stockholders Agreement, a written waiver
thereof, signed by the person entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting or (in the case of a
stockholder) by proxy shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any meeting need be specified in any written
waiver of notice unless required by these bylaws to be included in the notice of such meeting.
Section 7.02 Presumption of Assent. A director or a stockholder of the corporation who
is present at a meeting of the board of directors or the stockholders at which action on any
corporate matter is taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered United States or Canadian mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to dissent shall not
apply to a director or a stockholder who voted in favor of such action.
Section 7.03 Voting of Securities by the Corporation. Unless otherwise provided by
resolution of the board of directors and subject to Article VI hereof, on behalf of the corporation
the chief executive officer, the chief operating officer, or the president or any vice-president shall
attend in person or by substitute appointed by him, or shall execute written instruments appointing
a proxy or proxies to represent the corporation at, all meetings of the stockholders of any other
corporation, association or other entity in which the corporation holds any stock or other
securities, and may execute written waivers of notice with respect to any such meetings. At all
such meetings and otherwise, the chief executive officer, the chief operating officer, president or
any vice-president, in person or by substitute or proxy as aforesaid, may vote the stock or other
securities so held by the corporation and may execute written consents and any other instruments
with respect to such stock or securities and may exercise any and all rights and powers incident
to the ownership of said stock or securities, subject, however, to Article VI hereof and the
instructions, if any, of the board of directors.
Section 7.04 Seal. There shall be no corporate seal of the corporation.
Section 7.05 Fiscal Year. The fiscal year of the corporation shall be as established by a
unanimous consent of the directors.
Section 7.06 Amendments. These bylaws may be amended or repealed and new bylaws
adopted by unanimous approval of either (i) the board of directors, or (ii) the stockholders of the
corporation, or as otherwise may be provided in a Stockholders Agreement.
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Section 7.07 Conflict. To the extent of any conflicts between these bylaws and any of
the agreements referenced herein, these bylaws shall prevail unless it is clear from such other
agreement that such agreement is intended to control over these bylaws ( e.g. one party specifically
given unilateral rights to control decision(s)); provided, however, that, any Stockholders
Agreement shall prevail and supersede these bylaws to the extent of any inconsistency or conflict
between the terms hereof and terms of any Stockholders Agreement.
[Remainder of Page Intentionally Left Blank]
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Sunny Creek Stockholders Agreement Final 1
SCHEDULE 2 BUSINESS PLAN AND GENERAL DEVELOPMENT BUDGET See attached
Printed: 9/8/2021 8:55 AM
Model Version 1.7
DEVELOPMENT BUDGET Total Per Unit Per SF Units Mix NRSF Rent / Month Rent / SF
HARD COSTS $44,443,652 $209,640 $243.13 BMR Units 42 20%800 $1,644 $2.06
LAND 12,053,338 56,855 65.94 Market Rate Units 170 80%878 2,975 3.39
SOFT COSTS Summary 212 100%862 $2,712 $3.14
Predevelopment & Feasibility 627,850 2,962 3.43 Parking & Storage $24 $0.03
Architecture & Engineering 3,077,547 14,517 16.84 Other Income & RUBS 175 0.20
Fees & Permits 7,254,236 34,218 39.68
Legal 300,000 1,415 1.64 OPERATING EXPENSES DATES/MILESTONES
Insurance & Bonding 704,399 3,323 3.85 Controllable Expenses Per Unit Annual Project Start Date:April 2021
Financing Costs 475,318 2,242 2.60 Payroll $2,000 $424,000 Land Close:November 2022 Mo.20
Construction Loan Interest 2,339,832 11,037 12.80 Contract Services / Landscaping 500 106,000 Start of Construction:March 2023 Mo.24
Mezzanine Loan Interest 0 0 0.00 Utilities 1,200 254,400 First Units Delivered:April 2024 Mo.37
Land Loan Fees & Interest 0 0 0.00 Turnover Costs 250 53,000 End of Construction:August 2024 Mo.41
Operating Deficits 416,004 1,962 2.28 Repairs & Maintenance 250 53,000 Stabilization:November 2024 Mo.44
Furniture, Fixtures & Equipment 715,000 3,373 3.91 Advertising & Promotion 250 53,000 Disposition:February 2025 Mo.47
Start-Up Expenses/Marketing 450,000 2,123 2.46 General & Administrative 250 53,000 Construction Duration:18 Months
Ad Valorem Taxes 807,225 3,808 4.42 Other Controllable 0 0 Absorption:25 per Month
Overhead & Administrative 200,000 943 1.09 Subtotal Controllable Expenses $4,700 $996,400 LEDCOR FEE SCHEDULE
Developer Fee 3,586,462 16,917 19.62 Management Fee $658 $139,512 Acquisition Fee $0
Hard Cost Contingency 3,222,165 15,199 17.63 Ad Valorem Taxes 4,124 874,351 Development Fee 3,586,462
Soft Cost Contingency 1,047,694 4,942 5.73 Insurance 400 84,800 Construction Management Fee 0
Homebuilder Parcel Disposition Contingency 4,000,000 18,868 21.88 Other Non-Controllable 0 0 CM Admin. & Overhead Fee 0
TOTAL SOFT COSTS $29,223,730 $137,848 $159.87 Replacement Reserves 250 53,000 Asset Management Fee 0
TOTAL PROJECT COST $85,720,719 $404,343 $468.93 Subtotal Non-Contr. Expenses $5,432 $1,151,664 Disposition Fee 0
TOTAL EXPENSES $10,132 $2,148,064 Total Fees $3,586,462
CAPITALIZATION
Land Loan Construction Loan Mezzanine Loan Preferred Equity Qualico/H&R Ledcor GROWTH RATES Market BMR Other Income Expenses Taxes
Investment $0 $56,575,675 $0 $0 $19,431,001 $9,714,043 2021 3.0%2.0%3.0%3.0%2.0%
%0.0%66.0% 0.0%0.0% 22.7% 11.3% 2022 3.0%2.0%3.0%3.0%2.0%
Rate/Pref.0.00%4.00%0.00%0.00%0.00%0.00%2023 3.0%2.0%3.0%3.0%2.0%
OPERATING BUDGET SUMMARY Day 1 Year 1 Constr. Start Stabilized Sale 2024 3.0%2.0%3.0%3.0%2.0%
(Annualized as of Mo.)Stabilized Mo.24 Mo.44 Mo.47
Gross Potential Rent $6,898,680 $7,301,821 $7,655,943 $7,710,540 RESIDUAL VALUE Mo. 47 RETAIL / COMMERCIAL NOI Start Mo:
Loss-to-Lease 0 0 (61,609)(112,977)Residential NOI Adjusted for Taxes $4,915,987 Retail NRSF:0 $ / SF for TI $0
Parking Income 60,000 63,654 66,868 67,364 Exit Cap Rate (Res.)4.00%$ / SF / Yr:$0 Commissions:0.00%
Other Income & RUBS 445,200 472,313 466,815 470,278 Gross Proceeds (Res.)$122,899,677 Occupancy:0.00%Ttl TI & Comm:$0
Adj Gross Potential Rent $7,403,880 $7,837,788 $8,128,018 $8,135,206 Per Unit 579,715
Lease-Up Concession Loss 0 0 (1,781,920)0 INVESTMENT RESULTS IRR Equity Multiple
Vacancy & Collection Loss (428,271)(453,348)(480,780)(481,205)Project 31.13%2.27
EFFECTIVE GROSS INCOME $6,975,609 $7,384,440 $5,865,318 $7,654,001 Qualico/H&R 31.13%2.27
Operating Expenses (2,148,064)(2,148,064)(2,173,114)(2,226,375)TOTAL GROSS PROCEEDS $122,899,677 Ledcor 31.13%2.27
Expense Ratio 30.79%29.09%37.05%29.09%Closing Costs (1,229,837)
NOI Apartments $4,827,545 $5,236,376 $3,692,203 $5,427,626 NET SALE PROCEEDS $121,669,840 Preferred Return Profit Total Return
NOI Commercial 0 0 0 0 Debt Retirement (56,575,675)Project $0 $36,889,575 $36,889,575
TOTAL NOI $4,827,545 $5,236,376 $3,692,203 $5,427,626 PROCEEDS TO DISTRIBUTE 65,094,165 Qualico/H&R $0 $24,594,280 $24,594,280
Return on Cost 5.63% 6.11%4.31% 6.33%Preferred Return ON Equity 0 Ledcor $0 $12,295,295 $12,295,295
Debt Yield 8.53%9.26%6.53%9.59%Return OF Equity (29,145,045)
Debt Service (2,257,217)(2,263,027)Operating Cash Flow 940,454
NOI AFTER DEBT SERVICE $1,434,987 $3,164,599 PROFIT $36,889,575
Asset Management Fee 0 0
NET CASH FLOW/DEFICIT $1,434,987 $3,164,599
Sunny Creek - NWC El Camino Real & College Blvd, Carlsbad, CA (Development)
UNIT SUMMARY
212-unit apartment development on 8.00-acres
3-story Garden w/ tuck under garages (3 levels Type V)
Executive Summary of Investment with Unpromoted Equity
S:\Properties\PROJECT DOCUMENTS\CURRENT\Carlsbad - Sunny Creek\Proforma\Carlsbad - Sunny Creek - Apartment Proforma Assignment - 2021-09-08 LP Agreement Exhibit Page 1 of 1
Printed: 9/8/2021 8:57 AM
Model Version 1.7
Project:PREDEV CARRY FALSE
Location:Month of Sale:47 Total JV Partner Developer
Scenario:3-story Garden w/ tuck under garages (3 levels Type V)Net Acreage:8.00 Adjust Ad Valorem Taxes?Yes 100.00%Predev. Carry $0 $0 $0
Project Start Date:4/1/2021 4/1/2021 1 Exit Cap:4.00%Predev. Carry Split 67%33%
Land Close:11/1/2022 20 NOI:Next Year
Start of Construction:3/1/2023 24 3/1/2023 Broker's Fee:0.75%WATERFALLS IRR THRESHOLD JV PARTNER DEVELOPER
First Units Delivered:1-Apr-24 37 Closing Costs:50,000 Tier I 0%66.7%33.3%
End of Construction:1-Aug-24 41 Disposition Fee:0.000%Tier II 0%66.7%33.3%
Stabilization:1-Nov-24 44 Transfer Tax:0.11%Tier III 0%66.7%33.3%
Disposition:1-Feb-25 47 Title Insurance:0.10%Residual 66.7%33.3%
First Unit Delivery:14
Construction Duration:18
Delivered Units/Mo:42
Absorption/Mo:25
CAPITAL ASSUMPTIONS Construction Loan Acq - Perm Loan Mezzanine Loan Preferred Equity Qualico/H&R Ledcor Total Capital REFINANCE Perm Mezz
$56,575,675 $0 $0 $0 $19,431,001 $9,714,043 $85,720,719 $0 $0
LTC/Contribution 8.53%66.00%0.00%0.00%0.00%66.7%33.3%100%LTV 0.00%0.00%
Original Balance $0 Unpromoted
Interest/Pref.4.00%4.00%10.00%11.50%0%0.00%Total Equity Interest/Pref.0.00%0.00%
Loan Type Accrual $0 $0 $0 $29,145,045 Loan Type
Term (Years)30 Years 30 Years $19,431,001 $9,714,043 34.00% Term (Years)30 Years 30 Years
Interest Only Term (Years)1 Years 5 Years w/ PrefEq Reserve I/O Term (Years)0 Years
Funding Month Month 0 Month 0 Month 0 $29,145,045 Funding Month Month 60 Month 60
Cash Flow Dist. - Operations 66.7%33.3%
Origination 0.75%0.75%1.00%0.00%0.00%Origination Fee 0.00%0.00%
Amount $424,318 $0 $0 $0 $0 Amount $0 $0
Extension 1 37 0.00%Land Loan
Amount $0 LTC 0.00%$0
Extension 2 49 0.00%Annual Interest 4.50%$0
Amount $0 Term (Years)30 Years
Exit Fee 0.00%0.00%0.00%IO Term (Years)2.0 Years Exit Fee 0.25%0.00%
Amount $0 $0 $0 Funding Month Month 20 Amount $0 $0
Origination 0.75%$0
Exit Fee 0.00%$0
Sunny Creek - NWC El Camino Real & College Blvd, Carlsbad, CA (Development)
Development Inputs
NWC El Camino Real & College Blvd, Carlsbad, CA
Sunny Creek RESIDUAL
Printed: 9/8/2021 8:57 AM
Model Version 1.7
Sunny Creek - NWC El Camino Real & College Blvd, Carlsbad, CA (Development)
Development Inputs
DEVELOPMENT BUDGET ASSUMPTIONS
Earnest Money (not incl. in subtotal)4 $1,250,000 Initial CF Start Mo.End Mo.Initial CF Start Mo.End Mo.
Assignment Price & Deposit Replacement 6 22,500,000 90.00%24 41 0.00%24 24
Closing Costs 100,000 Origination Fees $424,318 250,000
Buyer Paid Commissions 0.00%0 Construction Loan Extension Fees 0 50,000
Purchase Price 4 27,250,000 Capitalized Predevelopment Carry 0 0
Title Insurance 31,338 JV Partner Commitment Fee 0 0
Transfer Tax 0.00%0 Equity Brokerage Fee 0.00%0 0
0 Inspections 36,000 0
TOTAL LAND ($235,289/Unit)$49,881,338 Other Fees 0.00%0 0
24 37,828,000 12,500 0
AD VALOREM TAXES Mill Rate Assmnt. %2,500 0
Begin Tax Year:1 $12.0000 /1k 85.00%TOTAL FINANCE $475,318 6,954,236
Property Taxes $807,225 TOTAL MUNICIPAL FEES ($34,218/Unit)$7,254,236
TOTAL AD VALOREM TAXES $807,225 Initial CF Start Mo.End Mo.PREDEV. & FEASIBILITY
10.00%24 41 Initial CF Start Mo.End Mo.
ARCHITECTURAL & ENGINEERING General Liability 222,200 5.00%3 6
Initial CF Start Mo.End Mo.Builder's Risk 0.04%377,373 20,000
1.00%4 41 Bonding 0.20%104,826 36,700
Land Planning 50,000 0 2,450
Design Architect 1,250,000 TOTAL INSURANCE $704,399 23,500
Landscape Architect 250,000 OPERATING DEFICITS 21,500
Consultants 200,000 TOTAL OPERATING DEFICITS $416,004 5,500
Traffic 50,000 CONSTRUCTION LOAN INTEREST 18,200
Civil 700,000 TOTAL INTERIM INTEREST $2,339,832 0
MEP 250,000 MEZZANINE LOAN INTEREST 500,000
Structural 250,000 TOTAL MEZZANINE INTEREST $0 0
Testing & Inspections 0.15%77,547 LAND LOAN FEES & INTEREST 0
TOTAL A&E ($14,517/Unit)$3,077,547 TOTAL LAND LOAN FEES & INTEREST $0 TOTAL PREDEVELOPMENT & FEASIBILITY $627,850
Bank Charges
LAND FINANCING COSTS MUNICIPAL FEES
Input as Total / Uncategorized
Input as Total / Uncategorized
INSURANCE
Engineer Feasibility Study -Hunsaker
Environmental Studies - SCS
Geotechnical Study - Group Delta
Market Studies (Rent & For-sale) - ZONDA
School Fees
Input as Total / Uncategorized
Disposition Revenue Less 2% Comm&Closing
Misc. Entitlement
Tax Analysis
Input as Total / Uncategorized
Plan Check & Bldg Permit
Development Processing Fees
Park District Fee
Prelim Traffic - EPD
ALTA Survey w Topographic Mapping
Travel & Entertainment
Planned Local Drainage Area D
Water Connection Fee
Water Fee
Sewer Fee
Traffic Impact Fee
Architecture - KTGY
Lender Appraisal
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Printed: 9/8/2021 8:57 AM
Model Version 1.7
Sunny Creek - NWC El Camino Real & College Blvd, Carlsbad, CA (Development)
Development Inputs
START UP & MARKETING
Initial CF Start Mo.End Mo.Initial CF Start Mo.End Mo.Initial CF Start Mo.End Mo.
10.00%33 37 5.00%2 41 20.00%35 44
Clubhouse & Leasing Furnishings & Office Equip.300,000 0 0
Fitness Room 75,000 0 350,000
Models 100,000 0 0
Pool Furnishings 75,000 0 100,000
Signage 50,000 0 0
Site Furnishings 50,000 0 0
65,000 0 0
0 0 0
TOTAL FF & E $715,000 0 0
300,000 0
TOTAL LEGAL $300,000 TOTAL START UP & MARKETING $450,000
Land Development
0 OVERHEAD & ADMIN
0 Initial CF Start Mo.End Mo.Hard 7.25%$3,222,165
0 0.00%3 44 Initial CF Start Mo.End Mo.
Offsite Construction Construction Management Fee 0.00%$0 2.00%7 44
0 CM Administrative & Overhead 0.00%0 Soft 5.00%1,047,694
0 200,000 Other -0
0 TOTAL OVERHEARD & ADMINISTRATION $200,000 TOTAL CONTINGENCY $4,269,858
Parking Homebuilder Parcel Disposition Contingency $4,000,000
Garage $0.00 0 Spaces 0
Building(s)Initial CF Start Mo.End Mo.Land $49,881,338
0 5.56%24 41 Soft Costs 29,223,730
0 Developer Fee 3.00%$3,586,462 Hard Costs 44,443,652
Landscaping $0.00 182,800 sf 0 0 $123,548,719
Structure $240.72 182,800 sf 44,003,616 0
Retail Tenant Improvements 0 TOTAL DEVELOPER FEE $3,586,462
Construction Management Fee 1.00%440,036
TOTAL HARD COSTS ($209,640/Unit)$44,443,652
Other -
Other -
Other -
FF & E LEGAL
HARD COSTS
Construction Loan
Environmental
Land Acquisition
Land Entitlement
Partnership
TOTAL COSTS
Other -
Other -
Maintenance Equipment
Input as Total / Uncategorized
Retail Leasing Commissions
Marketing & Advertising
Training
Other - Temp Lease Up Staff
CONTINGENCY
Other
Other
Construction Escalation 3% Annually
Environmental Clean-Up
Demolition
Export
Street
Utilities
Other -
Input as Total / Uncategorized
Travel & Entertainment
Construction Contract
CC&R Review
Other -
Other -
Input as Total / Uncategorized
DEVELOPER FEE
Input as Total / Uncategorized
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Printed: 9/8/2021 8:57 AM
Model Version 1.7
Income Input Date:4/1/2021 Physical Vacancy 4.00%Asset Management Fee:0.00%
Base Rent Override:$0.000 Model Units 2 0.94%
Average Lease Term:12 Admin Units 1 0.47%
Lease-Up Concessions:100%Collection Loss 0.50%
Turnover:50%Total Stabilized Vacancy & Collection Loss 5.92%
Adjusted Renewal:46.86%Stabilized Concession 0.00%
UNIT DETAIL INPUT
Floor Plan Type Bedrooms Bathrooms Units Unit Mix NRSF
Base Rent /
Month Base Rent / NRSF Total NRSF
Total Base Rent /
Mo.
Total Base Rent /
Yr.Manual Input
One Bedroom Market 1 1.00 46 22%650 $2,701 $4.16 29,900 $124,246 $1,490,952 2,701
One Bedroom Market 1 1.00 43 20%750 2,756 3.67 32,250 118,508 1,422,096 2,756
One Bedroom Market 1 1.00 20 9%850 2,818 3.32 17,000 56,360 676,320 2,818
Two Bedroom Market 2 2.00 24 11%1,050 3,293 3.14 25,200 79,032 948,384 3,293
Two Bedroom Market 2 2.00 19 9%1,150 3,394 2.95 21,850 64,486 773,832 3,394
Two Bedroom Market 2 2.00 13 6%1,250 3,483 2.79 16,250 45,279 543,348 3,483
Three Bedroom Market 3 2.00 5 2%1,350 3,584 2.65 6,750 17,920 215,040 3,584
One Bedroom BMR 1 1.00 27 13%650 1,573 2.42 17,550 42,471 509,652 1,573
Two Bedroom BMR 2 2.00 14 7%1,050 1,760 1.68 14,700 24,640 295,680 1,760
Three Bedroom BMR 3 2.00 1 0%1,350 1,948 1.44 1,350 1,948 23,376 1,948
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
0%0 0.00 0 0 0
Summary (All Units)294 288.00 212 100%862 $2,712 $3.14 182,800 $574,890 $6,898,680
26.5 units/acre 0.66 FAR
MARKET RATE VS. BMR SUMMARY
Summary (BMR)42 20%800 $1,644 $2.06 $33,600 $69,059 $828,708
Summary (Market Rate)170 80%878 2,975 3.39 149,200 505,831 6,069,972
100.0 units/acre 800
24%192
50%400
1,200
ADDITIONAL INCOME SOURCES Spaces Rent/Space
Ancillary Parking & Storage 50 $100 $24 $0.03 $5,000 $60,000
Other Income & RUBS $175 /unit/mo.175 0.20 37,100 445,200
EXPENSE INPUTS
Controllable Expenses Annual Per Unit/Yr Exp. Input Date:4/1/2021 Non-Controllable Expenses
Payroll $424,000 2,000 Management Fee Min of:2.00% $9,000 $658
Contract Services / Landscaping 106,000 500 Ad Valorem Taxes CA 1200.00% 85.00%4,124
Utilities 254,400 1,200 Insurance 400
Turnover Costs 53,000 250 0
Repairs & Maintenance 53,000 250 Replacement Reserves 250
Advertising & Promotion 53,000 250 Subtotal Non-Controllable Expenses $5,432
General & Administrative 53,000 250
0 0
Subtotal Controllable Expenses $996,400 $4,700 TOTAL EXPENSES $10,132
GENERAL INPUTS VACANCY & COLLECTION LOSS
DENSITY BONUS CALCULATION
Density per Zoning Total Allowable Units under current Zoning
Affordable Percentage Affordable Units
Density Bonus Percentage Total Density Bonus Units
Total Units
Sunny Creek - NWC El Camino Real & College Blvd, Carlsbad, CA
Operating Inputs
Other Non-Controllable
Other Controllable
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CARLSBAD - SUNNY CREEK SCHEDULE
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
Obtain Entitlements Oct Sep
Complete Plans & Plan Check Jul Feb
Building Permit Ready Mar
Start / End Construction (18 months)Mar Aug
Start/ End Lease-Up - (25 units / month)Apr Nov
Disposition (90 Days after Stabilization)Feb
2021 2022 2023 2024 2025
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Western Spadefoot Toad Survey Methods
The contractor, Tierra Data Inc. (TDI), will perform breeding season surveys for the Western
Spadefoot toad (Spadefoot) from January 2024 through May 2024. These surveys will determine
whether the Spadefoot used the proposed project site as a breeding site in 2024. Assuming
conditions suitable for breeding occur in Spring 2024, this will provide strong evidence as to
whether this site is used by Spadefoots or not.
During all surveys TDI will comply with the current status of the Spadefoot (under review for a
federal status of Threatened) and surveys will be entirely visual and auditory with no handling of
amphibians.
A records, literature, and document search for historical Spadefoot occurrences will be conducted
for the project footprint. The intent of the records and literature search is to utilize historical
information to develop a strategy for field surveys and mapping, as well as to incorporate historical
information into the draft and final reports. All pertinent information acquired during the records
and literature search shall be assimilated by TDI and included in the final report.
Study methodology will follow A Standardized Protocol for Surveying Aquatic Amphibians (Fellers
and Freel 1995), with modifications for the location and the details of Spadefoot toad life history.
Nighttime Calling Male Surveys
Walking nighttime surveys will take place after the first substantial rain in January (rain approaching
0.5 inches over 48 hours or less) when temperatures 30 minutes after sunset are at least 50
degrees Fahrenheit or warmer, and following rains after this one. TDI will communicate when
surveys are planned and short details of findings. Surveys will take place at least 30 minutes after
sunset and will be completed no later than 01:00. Survey areas will be walked by individuals with
knowledge of the Spadefoot’s call. Individuals will walk the survey area, listening for calling males.
The Spadefoot has a very distinct call, a short loud trill, which sounds like a quick snore. This
distinctive noise shall ensure accuracy of call determination in the associated survey areas. Global
Positioning System locations of calling individuals will be documented.
Daytime Egg/Larvae Surveys
Before nighttime surveys, the biologist(s) will walk the site during the day and inspect it for suitable
breeding habitat and any evidence of use by breeding Spadefoots including the presence of eggs,
larvae, juveniles or adult Spadefoots. During the surveys the following information will be
collected: date/time, site location, weather, habitat data, presence/absence of Spadefoot, life
stage of individuals present, location of individuals present (vernal pool, upland habitat, etc.) and
photo documentation if necessary.
Surveys will take place during favorable environmental conditions as prescribed in the 2012 U.S.
Geological Survey North American Amphibian Monitoring Program Protocol Description.
M
M
PVT. DRIVE 'A'
PVT. DRIVE 'B'
PVT. DRIVE 'C'
PVT. DRIVE 'D'
PVT. DRIVE 'H'
PVT. DRIVE 'B'
PVT. DRIVE 'F'
PVT. DRIVE 'J'
PVT. DRIVE 'C'
SUNNY CREEK RD.
RV PARKING
COLLEGE BLVD.
COLLEGE BLVD.
EL CAMINO REAL
EL CAMINO REAL
PVT. DRIVE 'A'
P=88.9P=88.7P=88.4P=88.1
P=88.9P=88.7P=88.4P=88.1
P=91.3P=91.1P=90.8P=90.5
P=91.3P=91.1P=90.8P=90.5
P=92.6P=92.4P=92.1P=91.8
P=92.6P=92.4P=92.1P=91.8
P=93.9P=93.7P=93.4P=93.1
P=93.9P=93.7P=93.4P=93.1
P=93.4
PVT. DRIVE 'E'
PVT. DRIVE 'G'
PVT. DRIVE 'I'
PVT. DRIVE 'K'
PVT. DRIVE 'L'
PVT. DRIVE 'M'
P=92.5 P=92.8 P=93.1
P=93.4P=92.5 P=92.8 P=93.1P=92.2
P=91.9
P=91.6
P=91.3
P=91.0
P=90.7
P=90.4
P=90.1
P=89.8
P=89.5
P=89.2
P=88.9
P=88.6
P=91.6
P=91.3
P=91.0
P=90.7
P=90.4
P=90.1
P=89.8
P=89.5
P=89.2
P=88.9
P=88.6
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
6" STEP
P=86.3
FF=87.0
P=86.8
FF=87.5
P=88.1
FF=88.8
P=88.1
FF=88.8
P=86.2
FF=86.9
P=89.7
FF=90.4
P=88.9
FF=90.6
P=91.0
FF=91.7
P=87.6
FF=88.3
P=91.4
FF=92.1
P=90.9
FF=91.6
P=89.5
FF=90.2
P=89.0
FF=89.7
P=90.1
FF=90.8
P=89.6
FF=90.3
P=88.2
FF=88.9
P=87.7
FF=88.4
6" STEP
DEEPEND FOOTING
6" STEP
6" STEP
6" STEP
P=83.7
FF=84.4
P=83.7
FF=84.4
PVT. DRIVE 'U'
PVT. DRIVE 'T'
PVT. DRIVE 'S'
PVT. DRIVE 'N'
P=85.1
FF=85.8
P=85.2
FF=85.9
P=85.2
FF=85.9
P=83.9FF=84.6
P=87.6
FF=88.3
PVT. DRIVE 'P'
PVT. DRIVE 'R'PVT. DRIVE 'Q'
PVT. DRIVE 'O'
PVT. DRIVE 'N'
PVT. DRIVE 'P'
P=87.9
FF=88.6
PVT
.
DR
I
V
E 'N'
PVT. D
RIVE 'N'
P=85.0FF=85.7P=84.3FF=85.0P=83.1FF=83.8
6" STEP
P=87.4
FF=88.1
6" STEP
P=87.9
FF=88.6
P=87.4
FF=88.1
6" STEP6" STEP
P=88.0FF=88.7P=87.5FF=88.2P=87.0FF=87.76" STEP
6" STEP
P=86.1FF=86.8P=86.8FF=87.3P=86.1FF=86.8
P=88.0
FF=88.7
P=88.1
FF=88.8
P=86.7
FF=87.4
P=85.9FF=86.6
6" STEP
6" STEPP=85.4FF=86.1P=84.7FF=85.4
P=84.2FF=84.9
6" STEP6" STEP
P=86.7FF=87.4P=86.2FF=86.9P=85.7FF=86.4P=85.1FF=85.8
6" STEP
P=84.6FF=85.3
P=87.0FF=87.7
6" STEP
P=86.5FF=87.2
6" STEP
P=85.9FF=86.6P=85.4FF=86.1
M
M
PVT. DRIVE 'A'
PVT. DRIVE 'B'
PVT. DRIVE 'C'
PVT. DRIVE 'D'
PVT. DRIVE 'H'
PVT. DRIVE 'B'
PVT. DRIVE 'F'
PVT. DRIVE 'J'
PVT. DRIVE 'C'
SUNNY CREEK RD.
RV PARKING
COLLEGE BLVD.
COLLEGE BLVD.
EL CAMINO REAL
EL CAMINO REAL
PVT. DRIVE 'A'
P=88.9P=88.7P=88.4P=88.1
P=88.9P=88.7P=88.4P=88.1
P=91.3P=91.1P=90.8P=90.5
P=91.3P=91.1P=90.8P=90.5
P=92.6P=92.4P=92.1P=91.8
P=92.6P=92.4P=92.1P=91.8
P=93.9P=93.7P=93.4P=93.1
P=93.9P=93.7P=93.4P=93.1
P=93.4
PVT. DRIVE 'E'
PVT. DRIVE 'G'
PVT. DRIVE 'I'
PVT. DRIVE 'K'
PVT. DRIVE 'L'
PVT. DRIVE 'M'
P=92.5 P=92.8 P=93.1
P=93.4P=92.5 P=92.8 P=93.1P=92.2
P=91.9
P=91.6
P=91.3
P=91.0
P=90.7
P=90.4
P=90.1
P=89.8
P=89.5
P=89.2
P=88.9
P=88.6
P=91.6
P=91.3
P=91.0
P=90.7
P=90.4
P=90.1
P=89.8
P=89.5
P=89.2
P=88.9
P=88.6
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
UNIT
ADA
6" STEP
P=86.3
FF=87.0
P=86.8
FF=87.5
P=88.1
FF=88.8
P=88.1
FF=88.8
P=86.2
FF=86.9
P=89.7
FF=90.4
P=88.9
FF=90.6
P=91.0
FF=91.7
P=87.6
FF=88.3
P=91.4
FF=92.1
P=90.9
FF=91.6
P=89.5
FF=90.2
P=89.0
FF=89.7
P=90.1
FF=90.8
P=89.6
FF=90.3
P=88.2
FF=88.9
P=87.7
FF=88.4
6" STEP
DEEPEND FOOTING
6" STEP
6" STEP
6" STEP
P=83.7
FF=84.4
P=83.7
FF=84.4
PVT. DRIVE 'U'
PVT. DRIVE 'T'
PVT. DRIVE 'S'
PVT. DRIVE 'N'
P=85.1
FF=85.8
P=85.2
FF=85.9
P=85.2
FF=85.9
P=83.9FF=84.6
P=87.6
FF=88.3
PVT. DRIVE 'P'
PVT. DRIVE 'R'PVT. DRIVE 'Q'
PVT. DRIVE 'O'
PVT. DRIVE 'N'
PVT. DRIVE 'P'
P=87.9
FF=88.6
PVT
.
DR
I
V
E 'N'
PVT. D
RIVE 'N'
P=85.0FF=85.7P=84.3FF=85.0P=83.1FF=83.8
6" STEP
P=87.4
FF=88.1
6" STEP
P=87.9
FF=88.6
P=87.4
FF=88.1
6" STEP6" STEP
P=88.0FF=88.7P=87.5FF=88.2P=87.0FF=87.76" STEP
6" STEP
P=86.1FF=86.8P=86.8FF=87.3P=86.1FF=86.8
P=88.0
FF=88.7
P=88.1
FF=88.8
P=86.7
FF=87.4
P=85.9FF=86.6
6" STEP
6" STEPP=85.4FF=86.1P=84.7FF=85.4
P=84.2FF=84.9
6" STEP6" STEP
P=86.7FF=87.4P=86.2FF=86.9P=85.7FF=86.4P=85.1FF=85.8
6" STEP
P=84.6FF=85.3
P=87.0FF=87.7
6" STEP
P=86.5FF=87.2
6" STEP
P=85.9FF=86.6P=85.4FF=86.1
LEGEND
PROJECT BOUNDARY
EFFECTIVE FEMA FLOODPLAIN PER 06073C0768G
FEMA FLOODPLAIN PER EXISTING TOPO
GRADING AREA WITHIN THE ACTUAL FLOOD PLAIN
.• ..,_
---=:--
ADJ 07-.~'4 ~
PARCEL 'U ~?
CO C #2007-0205/l~
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