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Home My WebLink AboutWestern Pacific Housing; 2001-08-06;AMENDMENT NO. 2 TO AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE (WESTERN PACIFIC HOUSING -EL CAMINO, LLC) This Amendment No. 2 is entered into and effective as of the ~5-l>L day of Novon bee , 2019, amending the agreement dated August 6, 2001 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Western Pacific Housing, Inc., a Delaware Corporation, successor by merger to Western Pacific Housing -El Camino, LLC, a Delaware Limited Liability Company ("Developer") (collectively, the "Parties") for the reimbursement of costs for the design and construction of improvements to Poinsettia Lane. RECITALS A. On October 7, 2009, the Parties executed Amendment No. 1 to the Agreement to amend its termination date from January 1, 2010 to January 1, 2020; and B. The Parties acknowledge that the development within Bridge and Thoroughfare District #2 (B& TD #2) remains ongoing and that the construction of Poinsettia Lane to be funded via B&TD #2 has not been completed; and C. The Parties desire to amend Section 11.U) of the Agreement to revise the date of termination; and D. The Parties have negotiated and agreed to a new date of termination for the Agreement. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Developer agree as follows: 1. Section 11.U) of the Agreement shall be revised to read as follows: "This Reimbursement Agreement shall be effective as of the date hereof, and shall terminate upon the earlier of (1) the date that the City fully reimburses Developer; or (2) January 1, 2030." 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. City Attorney Approved Version 9/27/16 Nov. 19, 2019 Item #6 Page 6 of 13 3. The individuals executing this Amendment and the instruments referenced in it on behalf of Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. DEVELOPER WESTERN PACIFIC HOUSING, INC., a Delaware Corporation, successor by merger to WESTERN PACIFIC HOUSING -EL CAMINO, LLC, a Delaware Limited Liability Company By: ~-~· (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California By: 211Jfil Mayor /<v/!-r A, ,/ttdJdcu_/4is 1. Sa./l.t!'A;f!.y (print name/title) ATTEST: (sign here £-t~~ I~· l\luA,t-~ev1Y,.:/y /~ ~, !ltd« frn,,n I be,v!J ,(t,, BARBARA ENGLESON 7 cij City Clerk C/t'IJL (print name/title) If required by City, proper notarial acknowledgment of execution by Developer must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer 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. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: Cee« A-£11~ Deputy City Attorney City Attorney Approved Version 9/27/16 2 Nov. 19, 2019 Item #6 Page 7 of 13 \/ ,-.,,,,1111>1.'11,t \t1,,·•1\1fll1,,,1F,·1·,,h.._t,\\lllH,\II" T\t ,,,1,1JIIH,\fl'I \th.._,,,,· IIH• 11·-..:·1 ,11.,,,\,IIJ1<.\ll'T \tl,,11\\"llll<.\II 'I \ot,,,,\\ll"IH,\11,1 \tJ,,1,\\IIIH•\fl"'T Callfomla All-Purpose Certificate of Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the ' document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. I ---------------------------·--------______ J State of California County of ___ R_iv_e_rs_id_e ________ _ S.S. On October 22, 2019 before me, __ A_n~g~e~ly_n_H_a_l_e_, _N_o_ta_ry"---P_u_b_lic _______ ~ ---------- personally appeared Barbara M. Murakami Kurt A. Hubbell who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) t'S7are subscribed to the within instrument and acknowledged to me that he{sbetthey executed the same in ~heir authorized capacity(ies), and that by I lisfl 1ei/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 1············~ •'.' o_,. /\NG ELYN HALE : ~ffly"°·•,c·•,,,_ ,.Jucy Duc:,. l·c Cal,forr,J 7 1 ~,.. .. ::~ ~j f\1vers1de C()lHlty ; ✓ ~ ' "! -~ '~ . ,..,.-... ~ommi5s1on.: 2232976 """ My Comm. Expires Mar S. 2022 OPTIONAL INFORMATION ------------ Description of Attached Document The preceding Certificate of Acknowledgment is attached to a The signer(s) capacity or authority is/are as: · lndividual(s) · Attorney-in-fact Corporate Officer(s) ______________ _ Guardian/Conservator _ Partner -Limited/General Trustee(s) Other: _________________ _ representing: Method of Signer Identification Proved to me on the basis of satisfactory evidence: : form(s) of identification credible witness(es) Notarial event is detailed in notary journal on: Page#__ Entry# __ Notary contact: _________ _ · Signer(s) Thumbprints(s) Nov. 19, 2019 Item #6 Page 8 of 13 CERTIFICATE OF ASSISTANT SECRETARY The undersigned hereby certifies as follows: 1. She is a duly elected, qualified and acting Assistant Secretary of Western Pacific Housing, Inc., a Delaware corporation (the '·Company "), is familiar with the facts herein certified and is duly authorized to certify the same. 2. The following is a true, correct and complete copy ofresolutions related to the subject matter as adopted by the Consent of Sole Director of the Company dated April 6, 2018 (the "Resolutions"). The Resolutions have not been amended, rescinded or modified with respect to the officer listed, and remain in full force and effect as of the date hereof. Election of Vice President of Forward Plannine and Assistant Secretary WHEREAS, effective May 5, 2015, Kurt A. Hubbell was duly elected to the office of Assistant Vice President of the Company in the Company's South Coast / Inland Empire Division; and WHEREAS, it is now desirable to promote Kurt A. Hubbell to the office of Vice President of the Company, elect him as an Assistant Secretary of the Company and to grant him additional duties and authority at this time. ~OW, THEREFORE,BEIT RESOLVED, that Kurt A. Hubbell is hereby elected to the offices of Vice President and Assistant Secretary of the Company (the "Vice Presidenl') in the Company's South Coast / Inland Empire Division (the "Division '), to serve until the next annual meeting of the directors of the Company and until his successor is duly elected and qualified or until his earlier death, resignation or removal. RESOLVED FURTHER, that the Vice President is hereby authorized on behalf of (i) the Company, (ii) any partnership of which the Company is a general partner, manager or agent, and (iii) any limited liability company of which the Company is a member, manager or agent (collectively, the "Entities'') to sign, modify and terminate, from time to time as he deems it to be in the best interest of the Entities, homeowner association documents, CC&Rs, subdivision agreements, utility agreements, condominium plans, all agency applications relating to development, construction contracts, purchase orders, consultant agreements, final maps, permits, engineering agreements and other similar or equivalent agreements or documents for the Division relating to the business of the Entities. RESOLVED FURTHER, that the Vice President is hereby authorized on behalf of the Entities to sign, modify and terminate, from time to time as he deems it to be in the best interest of the Entities, various agreements and documents for the Nov. 19, 2019 Item #6 Page 9 of 13 Division including, but not limited to, conditions, subcontract agreements, general contract agreements, bonds, affordable housing agreements, building permits, improvement/development agreements and other similar or equivalent agreements or documents for the Division relating to the business of the Entities. RESOLVED FURTHER, that effective as of the date hereof, Kurt A. Hubbell is hereby removed from the office of Assistant Vice President of the Company. RESOLVED FURTHER, that the authority hereby granted to the Vice President supersedes authority previously granted by Written Consent of Sole Director to the Vice President as of the date hereof. IN WITNESS WHEREOF, the undersigned has signed on the 12th day of April, 2018. Assistant Secretary U:\ITEW AL 1\Min\WPHlnc\l 8Aprl 2-COAS. wpd 2 Nov. 19, 2019 Item #6 Page 10 of 13 CERTIFICATE OF ASSISTANT SECRETARY The undersigned hereby certifies as fo llows: I. She is a duly elected, qualified and acting Assistant Secretary of Western Pacific ow,ing, Inc., a Delaware corporation (the '-Co111pa11 }'"), is familiar with the facts herein certified and is duly authorized to certify the same. 2. The following is a true, correct and complete copy of resolutions related to the subject matter as adopted by the Consent of Sole Director of the Company dated June 17, 2015 (the "Resolutions"). The Resolutions have not been amended, rescinded or modified with respect to the officer listed, and remain in full force and effect as of the date hereof. Authority of Vice President of Forward Plannin~ and A sistant Secretary WHEREAS, effecti ve September 12, 2005, Barbara M. Murakami was duly elected to the office of Assistant Vice President of the Company in the Company's Orange County/Inland Empire Division, which Division is now known as the South Coast/Inland Empire Division; WHEREAS, effective September 13, 2012, BarbaraM. Murakami was duly elected to an additional office of Assistant Secretary of the Company in the Company's South Coast/lnland Empire Division; WHEREAS, effective May 5, 2015, Barbara M. Murakami was promoted to the office of Vice President of the Company; and WHEREAS, it is now desirable to expand Barbara M. Murakami 's authority to include the execution of homeowner association documents, CC&Rs, subdivision agreements and condominium plans as set forth in the resolutions below. NOW THEREFORE, E'lT :ESOLVED, that Barbara M. Murakam i shall continue to ho ld the offices of Vice P resident and Assistant Secretary of the Company (the "Vice President~'). to serve in the Company's South Coast/Inland Empire Division (the "Division"), until the next annual meeting of directors of the Company and until her successor is duly elected and qualified or until her earlier death, resignation or removal. RESOLVED FURTHER, that the Vice President is hereby authorized and empowered on behalf of (i) the Company, (ii ) any partnership of which the Company is a general partner, manager or agent, and (iii) any limited liability company of which the Company is a member, manager or agent ( collectively, the "Entities") to sign, modify and terminate, from time to time as she deems it to be in the best interest of the Entities, homeowner association documents, CC&Rs, subdivision Nov. 19, 2019 Item #6 Page 11 of 13 agreements, utility agreements, condominium plans, all agency applications relating to development, consultant agreements, maps and other similar or equivalent agreements or documents for the Division relating to the business of the Entities. RESOLVED FURTHER, that the Vice President is hereby authorized on behalf of the Entities to sign, modify and terminate, from time to time as she deems it to be in the best interest of the Entities, various agreements and documents for the Division including, but not limited to, conditions, subcontract agreements, general contract agreements, bonds, affordable housing agreements, building permits, improvement/development agreements and other similar or equivalent agreements or documents for the Division relating to the business of the Entities. RESOLVED FURTHER, that the Vice President is hereby authorized and empowered, in the Division and in the name and on behalf of the Entities, to execute and deliver any and all documents and instruments, including without limitation, general or special warranty deeds, bills of sale, lien waivers, owner's affidavits, settlement statements and other conveyance documents and closing statements necessary to close the sale of any one or more single-famil y residences on behalf of the Entities. RESOLVED FURTHER, that the authority hereby granted lo the Vice President supersedes authority previously granted by Written Consent of Sole Director to the Vice President as of the date hereof. IN WITNESS WHEREOF, the undersigned has set her hand on the 30th day of June, 2015. Assistant Secretary U :\JTEW AL 1\M in\ WPH Incl I 5J un30-COAS3. wpd 2 Nov. 19, 2019 Item #6 Page 12 of 13 AMENDMENT NO. 1 TO AGREEMENT FOR REIMBURSEMENTOF COSTS FOR DESIGN AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE (WESTERN PACIFIC HOUSING - EL CAMINO LLC) This Amendment No. 1 is entered into and effective as of the I day of , 2009, amending the agreement dated August 6, 2001 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Western Pacific Housing, Inc., a Delaware Corporation, successor by merger to Western Pacific Housing - El Camino, LLC, a Delaware Limited Liability Company ("Developer") (collectively, the "Parties") for the reimbursement of costs for the design and construction of improvements to Poinsettia Lane. RECITALS A. The Parties acknowledge that the development within Bridge and Thoroughfare District #2 (B&TD #2) is on-going and that the construction of Poinsettia Lane to be funded via B&TD #2 has not been completed; and B. The Parties desire to amend Section 11. (j) of the Reimbursement Agreement to revise the date of termination of the Reimbursement Agreement; and C. The Parties have agreed to a new date of termination of the Reimbursement Agreement. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Developer agree as follows: 1 . Section 11 .(j) of the Reimbursement shall be revised to read as follows: "This Reimbursement Agreement shall be effective as of the date hereof, and shall terminate upon the earlier of (1 ) the date that the City fully reimburses Developer; or (2) January 1 , 2020." 2. All other provisions of the Reimbursement Agreement, as may have been amended from time to time, will remain in full force and effect. City Attorney Approved Version #05.22.01 3. The individuals executing this Amendment and the instruments referenced in it on behalf of Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. DEVELOPER, WESTERN PACIFIC HOUSING INC., a Delaware Corporation, successor by merger to WESTERN PACIFIC HOUSING - EL CAMINO, LLC, a Delaware Limited Liability Company (print name/title) (print nam«Vtitle LiAtr$dr (e-mairaddress) CITY OF CARLSBAD, a municipal corporation of the State of California By: Mayor ATTEST: RRAiNE M. WOOD ityC If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. •Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer 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. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By:. DeputyCityAttorneyY City Attorney Approved Version #05.22.01 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of 2'Offj before me,Af. (Here insert name and title of the officer) personally appeared 13 nV ( /3 ^ I p-/TJvA/ , who proved to me on the basis of satisfactory evidence to be the person^s^Tvhose name^Ci^/are subscribed to the within instrument and^acknowledged to me that(fie/I'sfee/they executed the same in^^S/foer/their authorized capacity(iespand that by\hi^hef/theif-«gnature(s)-en the instrument the person(s)ror the entity upon behalf of which the persoi^s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. MMKRLY N. MOLINA Commission* 1632263 - Notary Public - CoWomta | Son Dtogo County My Comm. Expfew Jon 17,201 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER D Individual (s) D Corporate Officer D D D D (Title) Partner(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they, is /we ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. ••• Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. * Indicate title or type of attached document, number of pages and date. •!• Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotarvClasses.com CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California 5^n ^;County of On A before me, personally appeared (Here insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person^) whose name(g^is/ape subscribed to the within instrument and acknowledged to me that he/she/the^ executed the same in his/hef/thelr authorized capacity(ies), and that by his/ker/thek signature^ on the instrument the person(s), or the entity upon behalf of which the person^Tacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. MMME I. WELOON Conwrtrton* 1649173 Nofcay Puttte - Codfomta Son Dtogo County MyComm.i«*wF«b2t. 2010 Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages (^ Document Date r (Additional information) CAPACITY CLAIMED BY THE SIGNER D Individual (s) 8 Corporate Officer ^v. P./Msr oct u D D D (Title) f Partner(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signers) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signerfs) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. t»/she/4h«)v is /aw-) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. •!• Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. ff Indicate title or type of attached document, number of pages and date. •> Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasses.com AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE This AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE FROM THE WESTERN BOUNDARY OF THE LOHF SUBDIVISION TO EL CAMINO REAL (“Reimbursement Agreement”), dated as of AUGUST 6, 2001, is made at San Diego County, California, between WESTERN PACIFIC HOUSING - EL CAMINO, LLC, a Delaware Limited Liability Company (“Developer‘), and THE CITY OF CARLSBAD, a municipal corporation of the State of California (“City”), with reference to the following: RECITALS: A. On February 9, 1999, City approved the tentative map for Carlsbad Tract 97-15 (“Lohf Tentative Map”), pursuant to Planning Commission Resolution No. 4427 and City Council Resolution No. 99-46 consisting of a subdivision of the Developer’s property, previously known as the Lohf property, described on Exhibit A-l (“Lohf Property”) containing 73 residential and 3 open space lots (“Lohf Project”). Subsequently, on August 17, 1999, City approved the final map for same (“Lohf Final Map”) pursuant to City Council Resolution No. 99-288. On January 5, 2000, City approved the tentative map for adjacent Carlsbad Tract 99-l 3 (‘Steiner Tentative Map”), pursuant to Planning Commission Resolution No. 4702 consisting of a subdivision of the Developer’s property, previously known as the Steiner property, described in Exhibit A-2 (“Steiner Property”) containing 9 residential lots (“Steiner Project”). Subsequently, on September 12, 2000, City approved the final map for Carlsbad Tract 99-13 (‘Steiner Final Map”) pursuant to City Council Resolution No. 2000-283. The Lohf Tentative Map and the Steiner Tentative Map are collectively referred to herein as “Tentative Maps”. The Lohf Property and the Steiner Property are sometimes collectively referred to herein as “Property”. The Lohf Project and the Steiner Project are sometimes collectively referred to herein as “Project”. 9. One of the conditions of approval for Tentative Maps for both the Lohf Project and Steiner Project (“Condition 53” and “Condition 41,” respectively) requires Developer to design and construct certain improvements to Poinsettia Lane (“Poinsettia Lane Improvements”). The Poinsettia Lane Improvements are comprised of two separate segments, those which traverse the Property (“On- site Poinsettia Lane Improvements”) and those which extend from the Project boundary to El Camino Real (“Off-site Poinsettia Lane Improvements”). The cumulative effect of the On-site and Off-site Poinsettia Lane Improvements as per Conditions 53 and 41 is the complete full-width improvement of Poinsettia Lane from the western boundary of the Lohf Project to the intersection of Poinsettia Lane and El Camino Real. C. The Project sites are located within the boundary of Bridge and Thoroughfare District No. 2 for Aviara Parkway/Poinsettia Lane (“B&TD#2”). Certain costs 1 6-20-01 incurred by Developer in the construction of the Poinsettia Lane Improvements are reimbursable from funds derived from the collection of fees for B&TD#2 or may be credited against the payment of B&TD#2 fees for the Project. Additionally, the Off-site Poinsettia Lane Improvements include costs for certain traffic signal improvement work at the intersection of El Camino Real which are reimbursable from the City’s Public Facility Fee fund account. Condition No. 53 of Planning Commission Resolution 4427 and Condition 41 of Planning Commission Resolution 4702 require that the Developer enter into a reimbursement agreement with City prior to reimbursement of any costs incurred by Developer in the construction of the Poinsettia Lane Improvements. In the interest of reducing costs to B&TD#2, the City permitted the Developer to proceed with improvements concurrent with the formulation of this Reimbursement Agreement, and all eligible costs incurred during the formulation process are covered by this Reimbursement Agreement. D. City is presently in the process of reforming B&TD#2 to raise additional revenue due to an increase in costs associated with the construction of the district funded improvements. Developer and City acknowledge that without reformation of B&TD#2, there will be inadequate funds available to complete the construction of the district funded improvements and/or to reimburse developers, including Developer, for the construction of the district funded improvements. E. City and Developer acknowledge that the Off-site Poinsettia Lane Improvements are in excess of the needs created by the Project (“Expanded Poinsettia Lane Obligations”). Developer has voluntarily agreed to accept the Expanded Poinsettia Lane Obligations, but only on terms and conditions that will ensure that. City will provide Developer timely reimbursement from B&TD# 2 and Public Facilities Fee funds, as specified herein, for those expenses eligible for reimbursement that have been or are incurred by Developer in connection with the Off-site Poinsettia Lane Improvements as defined in section 3.a.(l). (collectively, “Progress Payment Reimbursable Expenses”); and, 2) City will provide reimbursement from B&TD #2 funds and/or allow credit against payment of B&TD#2 fees, as specified herein, for those expenses eligible for reimbursement that are incurred by Developer in connection with the construction of the On-site Poinsettia Lane Improvements (“Ordinary Reimbursable Expenses”, referred to collectively with Progress Payment Reimbursable Expenses as the “Reimbursable Expenses”). F. City and Developer intend that this Reimbursement Agreement satisfy the requirements of GOVERNMENT CODE §66486. 6-20-01 NOW, THEREFORE, the City and Developer agree as follows: 1. 2. Verification of Recitals. The Recitals are true and correct. Satisfaction of Oblination. Developer’s agreement to perform Poinsettia Lane Improvements as set forth herein, and actual construction thereof, shall fully satisfy and constitute full compliance with Condition No. 53 of Planning Commission Resolution 4427 and Condition No. 41 Planning Commission Resolution 4702 with respect to the Poinsettia Lane Improvements. 3. General Developer Obligations a. In consideration of City’s reimbursement and other undertakings as set forth herein, Developer agrees that in implementation of Condition 53 of Planning Commission Resolution 4427 and Condition 41 of Planning Commission Resolution 4702, Developer has performed or will perform the following work: (1) (2) (3) Establishment of Final Line and Grade for Poinsettia Lane Improvements i. Complete all necessary items to establish a final alignment and grade for Poinsettia Lane between El Camino Real and the existing easterly terminus of Poinsettia Lane at Cassia Road including, but not limited to, preparation of biological and engineering studies, aerial photography, topographic mapping, survey work and project management; and, ii. Design and prepare grading and improvement plans for Poinsettia Lane Improvements (“Road Improvement Plans”); and, . . . III. iv. Obtain City approval of the Road Improvement Plans; and, Grade the full width right-of-way for Poinsettia Lane Improvements including all necessary erosion control measures in accordance with City standards. On-site Poinsettia Lane Improvements i. Install full-width major arterial improvements for the portion of Poinsettia Lane located on the Property in accordance with City standards. Off-site Poinsettia Lane Improvements i. Install full-width major arterial improvements for that portion of Poinsettia Lane not located on the Property including 3 6-20-01 necessary drainage facilities and excluding sidewalks, median hardscape, landscape and irrigation; provided, however, that except for sewer and water lines and required franchise utilities, in no event shall the Off-site Poinsettia Lane Improvements include any work that is not included within B&TD#2 or the City’s Public Facility Fee program; and, ii. Install traffic signal at the intersection of El Camino Real and Poinsettia Lane including all necessary street transition improvements and median construction improvements to provide safe vehicular approach to the intersection. The cost of the traffic signal and El Camino Real intersection improvement will be reimbursed from City Public Facility Fee funds. b. Subject to Section 4(a) hereof, Developer shall be responsible for acquiring the right-of-way for the Off-site Poinsettia Lane Improvements and any off-site grading or borrow site easements required for the grading of that right-of-way. C. Developer shall enter into the standard subdivision improvement agreement(s), incorporated herein by this reference, and post the required security with the City to guarantee completion of the Poinsettia Lane Improvements in accordance with normal City requirements. d. Notwithstanding any other provision of this Reimbursement Agreement, Developer shall remain obligated to pay the City’s Public Facility Fee at time of issuance of any Project related building permit in accordance with normal City requirements. e. City agrees to reimburse Developer for the Progress Payments Reimbursable Expenses in accordance with Section 7 hereof. Developer acknowledges that the current B&TD#2 fee program may be inadequate to fund the Ordinary Reimbursable Expenses described herein. Developer acknowledges and agrees that City is under no obligation to pay reimbursements for Ordinary Reimbursable Expenses from any funding source other than the B&TD#2 fee program revenues. With respect to the Ordinary Reimbursable Expenses, Developer further agrees to abide by any reimbursement policy and/or schedule established by the City which distributes available B&TD#2 funds to all eligible recipients who construct B&TD#2 improvements. Available B&TD#2 funds are identified as B&TD#2 fee revenue funds which are not allocated to specific B&TD#2 road improvement projects within the City’s adopted Capital Improvement Program budget. City agrees to allocate funds, by amendment of the City’s adopted Capital Improvement Program budget as necessary to 4 6-20-01 provide reimbursement for eligible costs as determined in accordance with Paragraphs 7 and 8 below. f. In return for the City’s agreement to allocate funds in the Capital Improvement Program budget, Developer agrees pay the full amount of the revised fee attributable to the Project, as such fee is determined by City Council upon reformation of B&TD#2. Such payment shall be made in the form of a credit subtracted from the payment of Ordinary Reimbursable Expenses as provided for in Paragraph 8a. 4. General City Obligations a. City shall assist the Developer in acquiring all required rights-of-way for the Offsite Poinsettia Lane Improvements. In the event Developer is not able to acquire one or more of the required rights-of-way, City shall utilize its powers of eminent domain to obtain the required rights-of-way for the Off-site Poinsettia Lane improvements. City shall pay all expenses for rights-of-way acquired by the City through eminent domain proceedings directly from the B&TD#2 funds. b. City agrees to allow Developer to bond for the On-site Poinsettia Lane Improvements separately from all other subdivision improvements so that if the other improvements have been completed while the On-site Poinsettia Lane Improvements remain outstanding, the bonds for the other improvements may be released and exonerated without waiting for completion of the On-site Poinsettia Lane Improvements. 5. Reimbursable Work. a. Reimbursable B&TD#2 funded improvements shall include full width grading of the roadway, paved road surface for two lane (18 foot paved section on each side of median for a total of 36 feet paved section), median curbs, outside asphalt berms, street drainage facilities (with the exception that drainage facilities in Aviara Parkway which are included in the City’s Drainage Fee Program have been deleted), culverts, temporary drainage in parkway, design, contract administration, construction inspection, construction engineering, mitigation measures and land acquisition. The costs of construction, engineering, design, construction inspection, contract administration, construction engineering, environmental mitigation, condemnation costs for the necessary right-of- way and slope easements, legal and other incidental expenses will be funded by the Fee Program. a. All work giving rise to Reimbursable Expenses is referred to either as “Ordinary Reimbursable Work” or as “Progress Payment Reimbursable Work”, all such work is referred to generically as “Reimbursable Work”. Notwithstanding anything herein to the contrary, all Reimbursable 5 6-20-01 Expenses shall be for work that is eligible for reimbursement within B&TD#2 or the Public Facilities Fee program. b. With respect to all hard costs of construction comprising Reimbursable Work, Developer shall solicit bids from three reputable contractors, with the Reimbursable Work bid separately from any non-reimbursable work being bid by such contractor. C. During the performance of any Reimbursable Work, Developer shall retain detailed payment records for all items of Reimbursable Work, for use by City in auditing any subsequent reimbursement requests by Developer. Developer’s requests for reimbursement (each, a “Reimbursement Request’) shall include copies of plans, specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by City to evidence the completion and payment for each item of Reimbursable Work. Reimbursement Requests may be submitted by Developer following completion of each stage of work identified in Paragraph 6a below. d. Exhibit B sets forth the preliminary cost estimate summary for the Reimbursable Work. The parties acknowledge that Exhibit 9, which was prepared by Developer’s engineer, is for illustrative purposes only and that all costs are subject to audit for eligibility for payment in accordance with the procedures of Paragraph 6 below. e. Developer shall be entitled to an overhead allocation of four percent (4%) of actual Reimbursable Expenses in lieu of other reimbursement for Developer’s costs incurred for salary and benefits for staff of Developer’s home offices, purchasing department expense, supervision above the level of on-site superintendent, and general corporate legal and accounting fees. f. Dedication of the right-of-way for the On-site Poinsettia Lane Improvements by the Developer shall be considered a Reimbursable Expense and shall be reimbursed as an Ordinary Reimbursable Expense and/or credited against Developer’s payment of B&TD#2 fees. The value of the right-of-way so dedicated shall be as approved by the City after completion of a MAI appraiser’s report on the dedicated property in accordance with the requirements of the B&TD#2 fee program. 6. Audit of Reimbursable Expenses. a. Developer may submit Reimbursement Requests upon completion of each of the following stages of the Reimbursable Work: City approval of the Road Improvement Plans; completion of grading and storm drainage improvements; completion of traffic signal at the intersection of El Camino 6 6-20-01 Real and Poinsettia Lane; and, completion of the remaining improvements. Requests relating to Ordinary Reimbursable Work shall be submitted separately from requests relating to Progress Payment Reimbursable Work. b. All Developer’s Reimbursement Requests will be processed and audited for City by a reputable consulting engineer selected by City (“Auditing Engineer’). The costs of the Auditing Engineer shall be paid directly by City from B&TD #2 and/or Public Facility Fee funds. C. The Auditing Engineer shall review all contracts for Reimbursable Work and the payment records submitted in connection therewith, and shall within sixty (60) days after receipt thereof issue to City and Developer a report either accepting Developer’s submittal or specifying with particularity any reimbursement items or amounts not approved. Developer, using the dispute resolution procedure of Paragraph 9 below may further pursue any reimbursement items or amounts not approved by the Auditing Engineer. d. City’s reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing Reimbursable Work; provided, however, that to the extent that the cumulative total of Reimbursable Expenses exceed the costs for such work estimated in Appendix B to the Fee Study Report for B&TD #2 dated April 3, 1997, Project No. 95-04.001 (“Engineer’s Cost Estimate”), plus the twenty percent (20%) contingency, then prior to payment of such excess, the B&TD #2 fee program shall within the following twelve (12) months be presented to the City Council for amendment to reflect the actual construction costs. To the extent that Developers B&TD #2 fee obligations for the Project are increased as a result of any such successful amendment, the increase in Reimbursable Expenses shall be deducted and credited against the increased B&TD #2 fee obligations prior to City’s actual payment of any amounts in excess of the Engineer’s Costs Estimate. e. Notwithstanding anything herein to the contrary, City specifically agrees that the following shall be deemed Progress Payment Reimbursable Expenses: i. Any premiums paid by Developer for improvement and/or payment and performance bonds relating to the construction of Off-site Poinsettia Lane Improvements; and, ii. An amount determined as one and eight tenths percent (1.8%) of the total of all Reimbursable Expenses, as an allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage. 7 6-20-01 7. Pavment of Progress Pavment Reimbursable Expenses. a. Upon the Auditing Engineer’s determination on any Reimbursement Request for Progress Payment Reimbursable Expenses, City shall, within sixty (60) days thereafter, pay all undisputed Progress Payment Reimbursable Expenses to Developer. b. Any disputed Progress Payment Reimbursable Expenses that are ultimately agreed or determined to be payable shall be paid to Developer within sixty (60) days after any settlement with or award to Developer pursuant to Paragraph 6c above. 8. Payment of Ordinarv Reimbursable Expenses. a. Payment for Ordinary Reimbursable Expenses shall be made after first deducting and crediting against Ordinary Reimbursable Expenses all unpaid B&TD #2 fee obligations attributable to the Project. The total estimated fee for the reformation of B&TD#2 is $541,200 (82 units @ $6,600 per unit). b. At such time as the undisputed Ordinary Reimbursable Expenses amount exceeds the total B&TD #2 fee obligations for the Project, the following procedures shall apply: (1) (2) 9. Disputes. Upon the Auditing Engineer’s determination on any Reimbursement Request for Ordinary Reimbursable Expenses, City shall, within sixty (60) days after determining that adequate B&TD #2 funds are available, pay all such undisputed Ordinary Reimbursable Expenses to Developer. Payment of any Ordinary Reimbursable Expenses shall be made in accordance with a City-determined reimbursement schedule which takes into account the reimbursement needs of other eligible developers within B&TD #2 on a fair-share basis subject to the provisions of Paragraph 3e, above. If a dispute should arise regarding the performance or interpretation of this Reimbursement Agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by an officer of Developer or by City’s Deputy City Engineer for Planning and Programs. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The Deputy City Engineer for Planning and Programs 8 6-20-01 10. or officer of Developer receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the Office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. IndemniWHoId Harmless. The City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts of omissions of Developer, its agents or employees, in the performance of this Reimbursement Agreement. Developer further agrees to protect and hold harmless City, its officials and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of Developer, its agents or employees in the performance of this Reimbursement Agreement, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the Poinsettia Lane Improvements; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Said indemnification and agreement to hold harmless shall extend to injuries to persons and damages to or taking of property, resulting from design or construction of Development, and the Poinsettia Lane Improvements as provided herein, and in addition, damage to adjacent property owners as a consequence of the drainage systems, streets and other Poinsettia Lane Improvements. Acceptance by the City of the Poinsettia Lane Improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this paragraph. City shall not be responsible for the design or construction of the Development or the Poinsettia Lane Improvements pursuant to the approved improvements plans or map, regardless of any action or inaction taken by the City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Developer submitted to the City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design. After acceptance of the Poinsettia Lane Improvements, the Developer shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however Developer shall not be responsible for routine maintenance. Provision of this paragraph shall remain in full force and effect for ten years following the acceptance by the City of the Poinsettia Lane Improvements. It is the intent of this section that Developer shall be responsible for all liability for design and construction of the Poinsettia Lane Improvements installed or work done pursuant to this Reimbursement Agreement and that City shall not be liable for any nonfeasance, misfeasance or malfeasance in approving, reviewing, 9 6-20-01 checking, or correcting any plans or specifications or in approving, reviewing or inspecting any work or construction. 11. Other Provisions. a. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States certified mail, return receipt requested, postage prepaid, addressed as follows: If to Developer, to: WESTERN PACIFIC HOUSING 5790 Fleet Street, Suite 210 Carlsbad, California 92008 Telephone: (760) 929-1600 Facsimile: (760) 431-7842 Attention: Mr. Scot Sandstrom, Vice President of Development If to City, to: City of Carlsbad Engineering Department 1635 Faraday Ave. Carlsbad, California 92008 Telephone: (760) 602-2739 Facsimile: (760) 602-8562 Attention: Deputy City Engineer, Planning and Programs or to such other address or to such other person as any party shall designate to the others for such purpose in the manner set forth above. b. This Reimbursement Agreement and the releases and other agreements contained in this Reimbursement Agreement shall be binding on and inure to the benefit of the parties and their heirs, successors, assigns, partners, principals, agents, officers, directors, shareholders and attorneys of the Parties. Notwithstanding the foregoing, any reimbursement rights hereunder shall remain with Developer unless Developer should specifically assign those rights to a successor, by a written assignment delivered to City. C. This Reimbursement Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. 10 6-20-01 d. e. f. CL h. No modification, waiver or discharge of this Reimbursement Agreement shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or discharge is or may be sought. This Reimbursement Agreement shall be interpreted and enforced under the laws of the State of California and the parties agree and hereby stipulate that the proper venue and jurisdiction for resolution of any disputes arising out of this Reimbursement Agreement is San Diego County, California. Neither Developer nor any of Developer’s agents or contractors are or shall be considered to be agents of City in connection with the performance of Developer’s obligations under this Reimbursement Agreement. Performance by Developer of this Reimbursement Agreement shall not be construed to vest Developer’s right with respect to any change in, any zoning or building law or ordinance. The captions of this Reimbursement Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify or aid in the interpretation, construction or meaning of any provision of this Reimbursement Agreement. The Recitals to this Reimbursement Agreement are hereby incorporated into the terms of this Reimbursement Agreement. This Reimbursement Agreement shall be effective as of the date hereof, and shall terminate upon the earlier of (1) the date that the City fully reimburses Developer; or (2) January 1, 2010. II II II II II II II II 11 6-20-01 k. The following exhibits are attached to and by this reference incorporated into and made a part of this Reimbursement Agreement: A Legal Description of Property B Preliminary Cost Budget Summary IN WITNESS WHEREOF, the parties have executed this Reimbursement Agreement as of the date first set forth above. Owner: WESTERN PACIFIC HOUSING - EL CAMINO,LLC, a Delaware Limited Liability Company City: Co A California Corporation, APPROVED AS TO FORM: RONXR. BALL, City Attorney By: city Att$pf!&, ATTEST LORAINE M. WOOD City Clerk [Add acknowledgments] State of California i&p) County of On blaolo\. bef 0: personally appeared me(s) of Signer(s) known to me on tne basrs OT sZM&ury Place Notary Seal Above to be the person@ whose name(s) is/are-- subscribed to the within instrument and acknowledged to me that h&h&hq+executed the same in his/b&#& authorized capacit@$ and that by his/beH+ei+ signature@) on the instrument the person($), o the entity upon behalf of which the person acted, executed the instrument. Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: 0 Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact q Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Top of thumb here 0 1999 National Notary Association * 9350 De Sot0 Ave., P.O. BOX 2402 * Chatworth, CA 91313-2402 * wwwnaBonaln0tary.q Prcd. No. 5907 Exhibit A-l . EXI3BIT“A" LEGALDESCRLPTION PARCEL A: p~~cm 2 IN COUNTY OF SAN DIEGO, STATE OF CALIFORNIA AS SHOWN ON PARCEL MAp NO. ‘2244, FnED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO,COUNlY, JANUARY 19, 1974. PARCEL B: .-. m SoU'-f'H HALF OF THE NORTHEAST QUARTER OF TH!Z NORTHWEST QUARTER OF SECTIONI.26, ?xmh%~H1P 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL, PLAT THEREOF. Form Approved By City Council July 2, 1991 7 Resolution No. 9 l- 194KJH Form 18A Per Jane Mobaldi, Rev. 01/l 1196 Exhibit A-l \ L OS 5 --i i I ” I / SITE LOHF PROPERTY ZC 97006lLCPA 97-08lCT 97-l 5/ HDP 97461CDP 97-39 Exhibit A-2 ORDER NO. 1217592-11 LEGAL DESCRIPTION THE L&jgD REFERRED TS HEREIN IS SITUATED IN TX-i:3 STATE OF CALIFORNIA\, c-'OmTy OF SAld DiE';O, AND IS DESCRIBED AS FOLLOWS: PARCEL A: PARCEL, 1 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHCWN AT PAGE 2244 OF PARCEL MAPS FILED IN THE OFFICE OF THE COUZ\J'-JJY RECORDER OF SAN DIEGO COtiNTY, L?-ANUARY 10, l-974. PARCEL B: kx EASEMEN"; .l@D RIGHT OF WA'< Fa?. ROAD AND pU3LIC UTILITY PURPOSES, OVER , UNDER, ALONG A-m ACROSS A STRIP OF LAND 20.00 FEET IN WIDTH T V;;\Tz r(qIT'riIN PARCEL 2, I CT ""; COUNTY OF SAN DIEGO, STATS 01 a.. Lb C'A; 1 FOR$T I A, LS S>;OWN A,T 3;3cr 22&i; OF PARC2:r-I lb"u?iPS, FILED IN THE OFFI;"E L --uu c,F y-1'3 CCUJJTY RECORDER OF SU 3IEGO CO5NTY, ,.tiVUARY 10, 1974, T";z 2,i~~~[-'~~~y ~1~s OF SAT9 20.00 FCOT STY.12 BEING THE SOUTHERLY LINE OF pAQCEL A, ~rp.E~pJABOVZ DES2R!I3::3. SAID EASEMEZ? TO TERMINATE EASTERLY bk~~ r,q~s~~?~y '3i~ l-x,5 SOUT?ERLY PR~DLONGATION OF 'THE WESTERLY AND MCST sAhTy:IIL‘y rY-$TEe< i]Z .5.&.';C - .._ ,,L A. SJ,'jPT w EAS5MSN-Z $ 3R ?.[;A9 p&~ p;:sL;c UT Il,IT" PU?L?OsES AND INCIDENTALS THERETO OVER, TJmijsA?, AL,OL\cZ- AN3 ACRCSS THE &-ORTHERLY 20.00 FEET OF T&:AT PORTION OF PJ@.:ICIEL 2 IN TZE c33xT;Y OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN AT PAGE 2244 OF PA3CZL MAPS, FILED IN THE OFFICE OF THE cO;?JT-f RECORDER 07 Sk?; DISGO COL?JT-f, JANUARY 10, 1974, LYING WSSTER;Y OF THE WESTE;RL-f LINE !JF P.?.RC55 A ABOVE DESCRI3ED. PARCEL D: A PERMANENT AND NON-EX,I rTUSiVE EASEMENT AND RIGHT OF WAY FOR ROAD AND pU3LIc UTILITY PURPOSES AND INCIDENTALS THERETO OVER, mTDER, ALONG AuD ACROSS THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 26, TOWNSHIP 12 SOUTH, PaTGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUTTTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, FOR THE BENEFIT AND USE OF THE PRESENT AND FUTURE OWNERS OF ALL OR ANY PART OF THE NORTH ONE- H-ALF OF THE NORTHEAST QUARTER 0, v THE NORTHWEST QUARTER OF SAID SECTIDN 26. SAID EASEMENT TO BE 00.00 FEET IN WIDTH, THE CENTERLINE OF wH?cH BEING DESCRIBED AS FOLLOWS: ::35/;3/93 li:20:19 v. / ! E!! 00 PAGE 7 Exhibit A-2 /&&z&&g&.~ \iJ-- -5 -5 s* 2: :,‘.~~~~ ORDER NO. ..,*:::>y .. / 1217592-11 . . ;>&&.cb..;, , II' I-' I BEGINNING AT A E)OINT IN THE WESTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, DISTANT ALONG SAID WESTERLY LINE SOUTH OO"37'04" EAST, 183.00 FE'T FROM THE NORTHWEST CORNER OF SAID NORTXWEST QUARTER OF THE NCRTXEAST QUARTER; SAID POINT BEING IN TxE ARC OF A NON-TANGENT 200.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY, THROUGH WHICH POINT A RADIAL BEARS NORTH 09"58'06" WEST; THz:NCE EASTERLY ALONG THE ?J?C OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03028'06" A DISTANCE OF 12.11 FEET; THENCE TANGENT TO SAID CURVE NORTH 83°30'00" EAST A DISTANCE OF 62.00 FEET TO THE BEGINNING OF A TmGENT 100.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG TEE ARC OF SAID CURVE TXR'3UGH A CENTML ANGLE OF 35'55'00" A DISTANCE OF 62.69 FEET TO A POINT OF REVERSED CURVATUR, c WITH A 150.00 FOOT RADIUS CURVE CONCAVE NORTHERLY, THRCUGH WHICH POINT OF REVERSED CURVATURE A RADIAL BEARS NORTH 29"25'00" EAST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE A DISTAXCZ OF 60.00 r -?;ET IMORE OR LESS TO THE WESTERLY LINE O? ~OupylJy ROAD SURVEY< NO. i8 00-l KNOWN AS EL CFJ4INO REAL, 73~ SIDELINES OF SAID ho.00 F:30T STRIP ski%, 3E LENGTHENED JJtJD/3R SZGR ~7y";~ AS 72 vP~rINAT3 ii\; S.lZD 5*7~S?zRLk' LINE 0~ TEE KORTHWEST _u il. 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We, the undersigned, as member of the Board of Directors of AP LHI, INC., a corporation organized under the General Corporation Law of California (the “Corporation”), being all the members of such Board as presently constituted, do by this writing consent to take the following actions and adopt the following resolutions: WHEREAS, the Corporation is the managing member of Western Pacific Housing-El Camino, LLC, a Delaware limited liability company (“WI%“); and WHEREAS, WPH is in the business of acquiring property and engaging in the development; zoning, rezoning, design, improvement and construction of single family residences, townhouses, and condominiums upon such property for sale to the home-buying public; and WHEREAS, it is in the interest of WPH to negotiate, enter into, modify and terminate agreements involving third parties relating to the business of WPH; and WHEREAS, Lance Waite, Vice President of the Corporation, in its capacity as the managing member of WPH, has from time to time negotiated signed, modified and terminated various agreements with third parties, relating to the business of the Corporation, in its capacity as the managing member of WPH; and WHEREAS, the Board of Directors wishes to authorize, approve and ratify the actions taken by Lance Waite, acting in his capacity as Vice President of the Corporation, acting in its capacity as the managing member of WPH, in having negotiated, signed, modified and terminated such agreements, and to authorize and direct Lance Waite to negotiate, sign, modify and terminate such agreements from time to ‘time when he deems it to be in the best interest of the Corporation, in its capacity as the managing member of WPH.. NOW, THEREFORE, BE IT RESOLVED, the actions of Lance Waite, acting in his capacity as a Vice President of the Corporation, acting in its capacity as the managing member of WPH, in having negotiated, signed, modified and terminated various agreements from time to time, are hereby authorized, approved and ratified; and BE IT RESOLVED FURTHER, that Lance Waite, acting in his capacity as a Vice President of the Corporation, acting in its capacity as the managing member of WPH, is hereby authorized and directed to negotiate, sign, modify and terminate, from time to time when he deems it to be in the best interest of the Corporation, in its capacity as the managing member of WPH, agreements relating to the business of the Corporation, in its capacity as managing member of WPH. We direct that this consent be filed with the Minutes of the proceedings of the directors of the corporation. This consent is executed pursuant to Section 307(b) of the Corporations Code of the State of California, and Section 2.12 of the Bylaws of the corporation, both of which authorize the directors to take action by unanimous written consent without a meeting. DATED: June 1,1999 daig A. Manchester ifi Thomas Conne@