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HomeMy WebLinkAbout2000-03-28; City Council; 15670; Prepayment Agreement Concordia Carlsbad LLC\s r - - CITY OF CARLSBAD -AGENDA BILL AB# 6-6 70 T’TLE: AUTHORIZE A PREPAYMENT AGREEMENT MTG. 03/28/00 BETWEEN CITY OF CARLSBAD AND LB/L DEPT. m CONCORDIA CARLSBAD LLC FOR CT 98-02 I I RECOMMENDED ACTION: Adopt Resolution No.2 000 94 authorizing the Mayor to execute a prepayment agreement between the City of Carlsbad and LB/L Concordia Carlsbad LLC for CT 98-02. ITEM EXPLANATION: One of Council’s strategic goals has been to integrate a comprehensive, efficient ‘transportation system with quality of life-centered land use decisions. This is reflected in the Growth Management Plan which requires each zone within the City to complete a Local Facilities Management Plan identifying how the zone will furnish the necessary public facilities to serve it’s needs. For a number of years, staff has worked with property owners in Local Facilities Management Zones 11, 12 and a small portion of 6, to form a Community Facilities District (CFD) to finance the construction of Ranch0 Santa Fe Road and Olivenhain Road improvements, as required by the Local Facilities Management Plan for these zones. This CFD (known as CFD No. 2) was intended to provide the property owners and the City with a feasible financing tool which could guarantee that funds would be available for the construction of the roads, when needed. The delays in the formation of the CFD proved to be a major problem for some of the property owners in the area who had met all of the non-circulation conditions placed on their maps. Beginning in late 1993, Council began allowing property owners to prepay their obligation under CFD No. 2 in exchange for an agreement. This agreement provides the City with (1) the support of the property owner in the formation of CFD No. 2, and (2) funds to begin work on the most critical portions of the circulation plans. Nine agreements have been approved by Council since 1993. They have paid their fair share amounts which has allowed the design and construction of the road improvements to commence. Three major road segments are to be financed through funds generated by CFD No. 2. These include: Olivenhain Road from Amargosa Drive to El Camino Real, which was completed last fiscal year; Ranch0 Santa Fe Road from Olivenhain Road south into Encinitas, which is under design by the developer of the Shelley property owner and should begin construction within the next year; and, Ranch0 Santa Fe Road from La Costa Avenue to Melrose Drive which is expected to start construction in the spring of 2001. This agenda bill is requesting approval for the Colina Roble project to prepay their CFD No. 2 obligation. The project is located in Zone 11 on the west side of Ranch0 Santa Fe Road and south of Olivenhain Road. The prepayment agreement is with LB/L Concordia Carlsbad LLC and is for 28 single family detached units. This agreement would allow the project to proceed through the approval process by providing a means for meeting circulation system financing requirements found in Tentative Tract map CT 98-02. The agreement allows the developer to pay a fixed fee for each unit included on the tentative map, thereby meeting the obligation of those units to participate in the funding of the Zone 11 circulation system. By approving the agreement, the Council will be making two significant findings. First, the prepayment of the property owner’s fair share represents an adequate financing guarantee under the Growth Management Program. This finding is based on the special case assumption that a CFD is in the formation process, and it is the CFD which actually provides the financing guarantee. And second, the Council will find that the project does not create a major impact on the existing circulation facilities. The City Engineer agrees with these findings as they relate to this project. 1 F Page 2 of Agenda Bill # I J-, 6 7 d I ENVIRONMENTAL REVIEW: The environmental impacts of Ranch0 Santa Fe Road from Olivenhain Road south into Encinitas were analyzed and addressed as part of the Final Environmental Impact Report (EIR) for the Shelley Project (EIR 90-06), and the impacts associated with Ranch0 Santa Fe Road from La Costa Avenue to Melrose Drive were analyzed and addressed as part of the Final EIR for the Ranch0 Santa Fe Road Realignment and Mass Grading Project (EIR 91-01). FISCAL IMPACT: The funding of the Ranch0 Santa Fe and Olivenhain Road projects has been a major concern for the City and the property owners for many years. The total project costs are projected to total over $40 million and effects the development of about 2,400 acres of land in southeast Carlsbad. Payment for the project will come from prepayments of, and taxes collected under, CFD No. 2 as well as a contribution of $6 million from CFD No. 1. The Colina Roble project will contribute $287,000 to the CFD No. 2 fund to pay their fair share of the project costs (28 single family units at $10,25O/unit). EXHIBITS: 1. Resolution No. gbOD- 9s authorizing the Mayor to execute a prepayment agreement between the City of Carlsbad and LB/L Concordia Carlsbad LLC, for CT 98-02. 2. Petition, Waiver, and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 98-02 (“Agreement”). 3. Location map. - RESOLUTION NO. : 2000-99 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE A PREPAYMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND LB/L CONCORDIA CARLSBAD LLC m WHEREAS, the City of Carlsbad City Council has required that the ~ funding of Ranch0 Santa Fe Road and Olivenhain Road (Project) must be guaranteed before any development takes place in the area bounded by Local Facilities Management Zones 11 and 12, and portions of Zone 6; and WHEREAS, the Council has directed City staff to proceed with the formation of a Community Facilities District (CFD No. 2) to finance the Project; and WHEREAS, although the Council anticipates that CFD No. 2 will be formed in the future, the Council is willing to consider alternative financing proposals during the period from the present to the formation date of CFD No. 2; and WHEREAS, the Council finds that the guarantee provisions related to the Project may be met through an interim financing program using an agreement between certain property owners and the City, whereby the property owner agrees to prepay his/her fair share of costs associated with the Project; and WHEREAS, LB/L Concordia Carlsbad LLC intends to build a development in Local Facilities Management Zone 6 known as Colina Roble, CT 98-02; and WHEREAS, the City Engineer has determined that due to the size of the LB/L Concordia Carlsbad LLC development, there will be no major impact on the circulation system at the present time if the LB/L Concordia Carlsbad LLC development is allowed to 20 proceed; and 21 WHEREAS, the Council finds that LB/L Concordia Carlsbad LLC may enter into the attached Petition, Waiver and Consent to Creation of a Community Facilities 22 District and Agreement to Pay Fair Share Cost (Exhibit 2, attached hereto) in satisfaction of their 23 obligation under the Project financing conditions. 24 NOW, THEREFORE BE IT RESOLVED, by the City Council of the 25 City of Carlsbad, California, as follows: 26 27 28 . ; < . 4 c * 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. That the above recitations are true and correct. 2. That the form of the PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST, (the Agreement) attached hereto, is hereby approved. 3. That the Mayor is hereby authorized to enter into the Agreement with LB/L Concordia Carlsbad LLC. 4. The amount that is due and payable to the City by LB/L Concordia Carlsbad LLC prior to the execution of this agreement by the Mayor shall be equal to $287,000. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the 28 day of March ,200O by the following vote, to wit; AYES: Council Members Lewis, Hall, Finnila and Kulchin NOES: None ABSENT: Council Membe ATTEST: LOl&Al?JE WOOD, City Clerk (SEW . , * - 2000-0201033 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlabad, CA 92008 llac a 2000-0201033 4 APR 193 2000 8:35 fw OFFICIflL REcmDS 198 5 WI DIES0 WuKly RECORDER’S OFFICE GiEw f$mH, clyyEm : . /* / I Space Above This Line for Recorder’ B Use Assessor Parcel No. 255-040-55 PETITION, WAIVER AND CONSENT TO CREATION CF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF CT 98-02 (“AGREEMENT”) COLINA ROBLE WHEREAS, the undersigned Property Owner at this time is processing for development with the City of Carlsbad (hereinafter referred to as “City”) a development project known and identified. as Carlsbad Tract Map 98-02 (hereinafter referred to as the “Project”); and, WHEREAS, the legal description for the Project is shown on Exhibit “6” attached hereto; and, WHEREAS, City has determined this Project is located within the boundaries of a proposed Community Facilities District known as Community Facilities District No. 2 - Ranch0 Santa Fe and Olivenhain Road (hereinafter referred to as “District”); and, 1 - - EXHIBIT 1 / WHEREAS, District is intended to be formed to finance those improvements generally described in Section 1 herein; and, / WHEREAS, Property Owner desires to proceed with processing prior to the formation of District; and, WHEREAS, condition number 37 of Tentative Tract Map CT 98-02 requires that the Property Owner provide for or participate in the construction of certain public improvements including sections of Ranch0 Santa Fe Road; and, WHEREAS, the compliance with tentative map conditions is a condition of the Project; and, WHEREAS, the City and Property Owner desire to agree to an alternative method of financing the improvements described in Section 1 herein that will allow Property Owner to discharge its fair share and obligation for said improvements in lieu of, or in anticipation of, participation in District; and, WHEREAS, the City Council agrees that Property Owner, upon entering into this agreement and upon payment of the fair share described herein, has met the requirement set forth in tentative map condition number 37 for Carlsbad Tract Map 98-02 to provide a financial guarantee for the construction of those improvements _ described in Section 1 below; and, WHEREAS, Property Owner voluntarily enters into this agreement with respect to the Project; and, 2 6 WHEREAS, the City Council has determined that due to the size of the proposed development, there will be no major impact on the circulation system at the present time if development of the Project is allowed to proceed with sufficient financial guarantees for future construction of Property Owner’s fair share of the circulation improvements; / NOW, THEREFORE, in consideration of proceeding with the processing of Project, the undersigned Property Owner and Cii hereby agree and certify to the following: 1. Property Owner hereby petitions the City for the initiation of the proceedings for the formation of District which will cause the construction and installation and/or financing of the following improvements (hereinafter referred to as ~Improvements”) which are generally described as follows: a) Ranch0 Santa Fe Road North Phase 1 (RSF No.1 1 La Costa Avenue to east of Mahr Reservoir b) Olivenhain Road Widenina. and intersection imorovements at Olivenhain and El Camino Real cl Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to Melrose Drive. 4 Ranch0 Santa Fe Road South (RSF So.) (Assumes Secondarv Arterial Standard - Encinitas Citv Boundarv to Olivenhain Road Full Improvements. - 2. The cost of construction, engineering,, environmental mitigation’s, legal and other incidental expenses as set forth in the Improvements budget will be funded by the District. 3. Property Owner acknowledges its right to notice of and participation in 3 h’ all phases of formation under the “Mello-Roos Community Facilities Act of 1982,” expressly waives the proceedings required and all limitations contained in Title 5, Division 2, Chapter 2.5 of the California Government Code and nonetheless with full knowledge of such rights, completely and forever waives such rights. Specifically, Property Owner hereby consents to the proceedings and waives any right to protest the formation of the District and the ordering of the improvements under applicable California statutes and consents to and supports formation of said District with respect to the Project. The City shall exclude the Project from the District boundary map if, prior to the adoption of a Resolution of Intention by the City Council to form said District, Property Owner has entered into this agreement and has paid to the City all amounts due as described herein. 4. a) Property Owner agrees to pay to City, or provide, its fair share-for the Improvements described in Section 1. b) Said payment, or.provision, shall be made in the manner described in Exhibit “A”, Rate and Method for Determining Fair Share Obligation Ranch0 Santa Fe and Olivenhain Road, which is incorporated herein by reference. Cl The amount of Property Owner’s fair share will be conclusively determined by the City Council in the manner described in Exhibit “A” attached hereto. d) Payment by Property Owner of its fair share of improvement costs as determined by City Council and set forth herein will satisfy its obligations for the construction of the improvements described in Section 1, as required by the Tentative _ Map condition number 37 as that condition applies to Carlsbad Tract No. 98-02 subject to adjustment as described in Section 9 herein. . 4 8 81 Ait8rnetiV8ly, if the District is formed and Project is included within it, Property Owner’s obligations to pay its fair. share pursuant to this agreement shall be satisfied upon payment of all taxes imposed, established and payable to said District. / 5. Property Owner acknowledges that this agreement to pay its fair share and participate in the financing of improvements is voluntary and that without this agreement Property Owner would be precluded from obtaining final map approvals or building and other development permits under the provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code, applicable zone plan, financing plans and related documents until a satisfactory financing program has been developed to fund the construction of the Improvements described in Section 1. 6. Property Owner hereby waives his right to challenge the amount, establishment or imposition of said fair share and further waives any rights to pay said fair share under protest. 7. This agreement does not affect, in any way Whatsoever, the obligatidn of Property Owner to pay any other fees or assessments associated with Property Owner’s deV8fOpm8nt and/or to post improvement bonds as required by the City Engineer. Nor does this agreement relieve Property owner from providing other public facilities required under conditions placed upon Tentative Map CT 98-02 by the City. 8. Property Owner agrees that payment of its fair share is not a fee and - waives any and all rights to notice of, or Challenges to, the establishment or imposition of said fair share as a fee under provisions of Government Code section 66000 et sea., or any successor or related statutes. 4 h . -. I 9. a) If the District is formed subsequent to the payment by Property Owner of the fair share pursuant to this agreement, Property Owner’s financial obligation shall be recalculated using the taxing formula established for the District for the improvements described in Paragraph 1. If that obligation is,, lower than the amount previously paid or provided by Property Owner to City, City shall refund any excess, in the manner described below. / b) Any refund shall be mad8 from funds available within District upon District formation and shall not be an obligation of City’s General Fund or other revenue sources. cl In the event that sufficient funds are not available from District’s resources, Property Owner shall be reimbursed in the order in which funds were deposited with City as soon as sufficient funds become available, as determined by the City Council, through the payment of one-time taxes or annual undeveloped land taxes to the District. The City is not required to establish an undeveloped land tax within the District to provide such refund. 4 No reimbursement is required until the City Council determines that sufficient funds are available. Any refund to Property Owner shall not Include interest. e) Any payment received by the City under this agreement shall be deposited in a special interest bearing fund and may only be used to’ fund the construction of the facilities described herein. Upon the formation of a CFD to fund _ these same fmprovements, any amount remaining in the special fund may be transferred to the CFD fund, at the discretion of the Finance Director. /O 10. Upon completion of the Improvements, and recording of the notice of completion for the final phase of the Improvements, the City Engineer shall determine the total cost of all phases of the Improvements and all related work (Costs), and the Finance Director shall determine the total amount of revenue including fees, taxes, interest earned on funds restricted to use only on the Improvements, and other sources of funds received by the City dedicated to paying for the construction of the Improvements (Revenues). The Finance Director shall then compare the amount of Costs and Revenues to determine if there are any excess Revenues as described below. If excess Revenues of more than $100,000 exist, the Finance Director shall provide refunds to all eligible parties of all excess Revenues in an amount and in the manner described below. If excess Revenues are equal to, or less than $100,000 the City shall retain these funds in a special fund to be used to finance street repair, maintenance, and landscaping within the Improvements. a) The total amount of excess Revenues shall be determined by deducting the amount of the project Costs from the available Revenues. Total project Costs shall include all costs to plan, design, construct, mitigate environmental impacts, inspect, and otherwise complete the project to the satisfaction of the City’ Engineer, including applicable charges for City staff services. Total Revenues shall include all monies held by the City dedicated exclusively to the construction of the Improvements including any fee revenues earmarked .for the Project, CFD #2 taxes, applicable CFD #l taxes, grants, and interest earned on restricted funds as determined by the Finance Director. b) The amount of the refund due to any party shall be based on the proportion of that party’s payments under this agreement based on its’ proportional _ share of Equivalent Dwelling Units constructed or to be constructed by that party, weighted as described in Exhibit A, divided by the total number of EDUs constructed or to be constructed within, and participating in, CFD #2 and/or CFD #2 agreements 7 to prepay taxes. The amount of the refund shall be determined by multiplying ‘the a proportional share computed above by the total amount of excess revenues. c) In order to share in the refund of any portion of the excess Revenues, the eligible party must request to be included in the distribution of funds. Such request must be made within 90 days after the City/Council’s acceptance of the Notice of Completion for the final phase of the Improvements. Each request must be accompanied by documents indicating clear title to the refund unless the request is being made by the party which originally paid the taxes to the City under a prepayment agreement or to CFD #2. d) The Finance Director shall compute the amount of the refund due each party as described above. Funds may be disbursed to the eligible parties following Council approval of such refunds. e) If the City does not receive requests for refund from all eligible parities within the specified period, and all funds cannot be disbursed as provided by this section, any remaining funds shall be held in a special fund to be used to support road and roadway maintenance in and around the Improvements area, as determined ’ to be necessary by the City Engineer, and approved by the City Council. f) As a courtesy to all interested parties, the City will maintain a file of those individuals or companies entitled to a refund, and will mail notices of refund availability to the names and addresses in this file following the City Council’s acceptance of the final Notice of Completion. It is the eligible party’s responsibility to notify the City if the rights to any refunds under this section are assigned to another _ party, or if there is a change in name or address for the eligible party. The City takes no responsibility for the accuracy of the information included in this file, and is under no obligation to locate persons or entities who are entitled to refunds. Failure to 8 notify any party of the availability of excess Revenues shall not obligate the City in any way to extend or modify the above refund procedures. 11. Compliance with this agreement will be accepted by City as an alternate to the method described in the current Local Facilities Management Plan for local facilities Management Zone 11 for financing the Improvements described in Paragraph 1. This agreement does not require City to issue building permits or other development permits or grant approvals or relieve Property Owner of the obligation to comply with all applicable provisions of law, including but not limited to Carlsbad Municipal Code Titles 18, 19, 20 and 21. 12.. Compliance with the provisions of this agreement is a condition of all future discretionary approval for the Improvements Property Owner does not comply with the provisions of this agreement, approval of the Project will not be consistent with the General Plan, the Growth Management Program, and the Local Facilities Management Plan, and all subsequent discretionary approvals and permits for the Project may be withheld by City. 13. In addition, the City will not approve any pending final maps, issue grading, building or other development permits or take any discretionary action until the Property Owner has complied with the terms of this agreement due to be satisfied at the time such approval is required. 14. The City may, at its discretion, elect to pursue any remedy, legal or equitable against Property Owner and Property Owner’s successors, heirs, assigns, and transferees of the Project to secure compliance with this agreement. a 15. City shall not, nor shall any officer or employee of City, be liable or responsible for any loss or damage incurred by Property Owner or any successor or assign of Property Owner, or by any occupant in Property Owners buildings, as a 9 13 result of the exercise of any remedies provided to City in this agreement. Property Owner agrees to indemnify City for any liabilities incurred by City as a result of City’s exercise of these remedies. / 16. This agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assignfi, and transferees of Property Owner with respect to the Project only and City, and shall run with the Project and oreate an equitable servitude upon the Project, 17. All notices provided for under this agreement shall be in writing and shall be delivered in person or served by certified mail postage prepaid. Delivery of notice to Property Owner shall be presumed to have been made on the date of mailing regardless of receipt by Property Owner. Notices required to be given to Property Owner shall be addressed as follows: Notices to the City shall be delivered to: Finance Director City of Carlsbad 1635 Faraday Ave. Carlsbad, CA 92008 Notices to Property Owner shall be delivered to: LB/L Concordia Carlsbad-28-LLC 7130 Avenida Encinas, Suite 200 Carlsbad, CA 92009 Each party shall notify the other immediately of any change that would require any notice delivered hereunder to be directed to another party. 18. This agreement shall be recorded but shall not create a lien or security a interest in the property. //I /I/ Ill 10 _- .- 19. The undersigned Property Owner further states, under penalty of perjury, that he is owner of the property as described herein on Exhibit “B”, or an authorized agent of the owner, and has the authority to execute this document, including the binding authorizations herein. /? Executed this 21 %y of JMAU ,200o. ’ *OWNER: LB/L Concordia Carlsbad-28-LLC By: LB/L-Conrordia Master LLC, a Delaware LLC By: ATTEST, Name +hilum_ &7jp&&hj (title and organizatior( of sighatory) City Clerk By: (sign here) (print name here) Approved as to form: (title and organization of signatory) City Attorney (Proper notarial acknowledgment of execution by *OWNER must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) 11 - CALIFORNIA ALL-PURPOSE State of California . \,64 hi-de 5 .I ss. County of NL h % ZOOC! before me, Date ’ personally appeared ollicer (e.g., ‘Ja+ Doe. Notary Public’) -’ - -. , Nsme(s) of Siis) known to me proved to me on the basis of satisfactory evidence to be the personw whose namew&aH subscribed to the within instrument and acknowledged to me that@wxecuted the same in l@e&heW authorized capacity@@, and that by ,@WMeir signature&on the instrument the person@& or the entity upon behalf of which the personw acted, executed the instrument. i! a : -5 . . . . . . . ..“...................d”... ---rrr~...o.Do*D~ooooo~oom.ooo~soeoo~ PAMSCOTT COW #1233866 ii NO’TARyPlBiJc CMIFORN~ g ,cggg!$ggy&?m - .-a _____- Plea Notmy Seal Above OPTIONAL Though the inbrmation below is not required by law, it may prove valuable to persons retying 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: cT-i / Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: 0 Individual 0 Corporate Officer-Title(s): Cl Partner - Cl Limited Cl General Cl Attorney in Fact q Trustee 0 Guardian or Conservator q Other: Signer Is Representing: 0 1997 NatIonal Notaty~socbtkn - 9350 De Soto Ave.. P.O. Box 2402. Chatsworth. CA X313-2402 i’mi. No. 5907 Reorder: Cdl TdCFm l-W!-876-6527 EXHlBlT A RATE AND METHOD FOR DETERMINING FAIR SHARE OBLIGATION RANCH0 SANTA FE AND OLIVENHAIN ROAD The City Council shall use the following rate and method for determining the fair share obligation for funding the construction of Ranch0 Santa Fe and Olivenhain Road due from property conditioned to participate in the financing of these facilities. This calculation is done as part of an agreement titled PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE (Agreement) which has been voluntarily entered into by the City of Carlsbad and certain property owners wishing to proceed with development of their property in advance of the creation of Community Facilities District No.. 2 (CFD No. 2). It is the City and property owners intent to form CFD No. 2 to provide funding for those improvements described within the above-referenced agreement. The following rate and method shall be used to determine the fair share and amount due from any property owner wishing to take advantage of this alternate funding mechanism. Basis for Cost Allocation The bas.is for allocation of costs to property conditioned with the financing of the improvements described in the Agreement shall be the Equivalent Dweiling Unit (EDU) which is defined per product classification as follows: Product Classification Eauivalent Dwellino Units Single Family - Detached Units 1 .O EDU Single Family - Attached Units 0.8 EDU Multi-Family Units 0.6 EDU Churches 4.0 EDU per Acre Commercial/lndustriaI and other 10 EDU per Acre 12 . The number of each type of unit included in a d8V8jOpment shall be determined by the City Engineer based on the most recent final map submitted to the City for approval. The EDU determination for non-residential development shall be made by the City Engineer when such a determination is requested by the property owner. The City Engineer may request additional information from any property owner as may be necessary to make his determination. The City Engineer is not required to make a determination on the number of EDUs for any project until adequate information is available. The City Engineer’s determination shall be submitted to the City Council in the table below. The City Council shall make the final determination of the number of EDUs to be used in computing the fair share obligation for any project. Fair Share Amount and Method of Pavment The City shall collect $10,250 for each EDU as determined by the City Council. This amount shall be collected in one payment of $10,250 per EDU to be paid prior to Council consideration of final map approval as described below. 1) Prior to the approval of a final map by the City Council, the property owner shall pay to the City an amount equal to the number of EDUs included in said final map, as determined by the City Engineer, times $10,250. If the City Council determined that the City Engineer’s calculation of the number of EDUs included on the final map is in error, the Council shall direct the City Engineer to amend his calculations and direct staff to bring the final map back for approval when such _ correction has taken place. Funds must be paid to the City before the final map will be scheduled for Council consideration. 13 17 - .-- Computation of Fair Share Obliga..&n Colina Rob18 CT 98-02 Type of Unit Single Family - Detached Units Units EDUs Cost per Covered by Amount ,/ per Unit EDU Agreement Due 1 $10,250 2% $287,000 TOTAL 8287,000 a If the property owner has already obtained a final map for units conditioned with the financing of Ranch0 Santa Fe and Dlivenhain Road, the property owner shall pay to the City the net amount due shown above prior to entering into this agreement. , . 14 -YHIBIT B ORDER NO. 1204262-11 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL A: THAT PORTION OF LOT 13 OF THE SUBDMSION OF RANCH0 LAS ENClNtTAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 848, FILED IN THE OFFICE OF, THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 13, WHICH IS DISTANT THEREON NORTH 2”50’30” WEST 1323.85 FEET FROM THE SOUTHWESTERLY CORNER OF SAID LOT 13; THENCE NORTH 87”03’55” EAST 1792.90 FEET TO THE CENTER LINE OF THE COUNTY ROAD KNOWN AS ROAD SURVEY NO. 454-A, AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED DECEMBER 19,193O IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY, THENCE ALONG SAID CENTER LINE AS FOLLOWS: NORTH 36’53’23” WEST - RECORD NORTH 37’01’ WEST - 395.54 FEET TO.THE BEGINNING OF A TANGENT 1000.00 FOOT F&SDlUS CURVE, CONCAVE NORTHEASTERLY, THENCE NORTHWESTERLY ALONG SAID CURVE 291.91 FEET THROUGH AN ANGLE OF 16’43’30”; THENCE TANGENT To SAID CURVE NORTH 20”09’53” WEST 768.03 FEET - RECORD NORTH 20’1T30” WEST 764.26 FEET - TO THE NORTHERLY LINE OF SAID LOT 13; THENCE ALONG SAID NORTHERLY LINE, SOUTH 87”03’30” WEST 1216.69 FEET TO THE NORTHWESTERLY CORNER OF SAID LOT 13; THENCE ALONG THE WESTERLY LINE OF SAID LOT, SOUTH 2’50’30” EAST 1323.84 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION OF LOT 13 OF THE SUBDMSION OF RANCH0 LAS ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27,1890, MORE PARTI CULARLY DESCRIBED AS FOLLOWS: 4 BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING THE TRUE POINT OF BEGINNING THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 13 NORTH 87’03’30” EAST, 1,216.68 FEET TO THE CENTERLINE OF ROAD SURVEY 454-A AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED DECEMBER 19,193O IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RANCH0 SANTA FE ROAD; THENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SO LJTHERLY ALONG THE CENTERLINE OF SAID ROAD SURVEY 454-A SOUTH 20’09’53” EAST, 280.84 FEET; THENCE LEAVING SAID CENTERLINE OF ROAD SURVEY 454-A WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87°03’30” WEST, 518.71 FEET; THENCE LEAVING SA.ID PARALLEL LINE SOUTHERLY SOUTH 02’56’30” EAST, 150.00 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87’03’30” WEST, 291.59 FEE% THENCE LEAVING SAID PARALLEL LINE NORTHERLY NORTH 02’56’30” WEST, 150.00 FEET; PAGE 1 of 2 ORDER NO. 120426211 * THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87’03’30” WEST, 490.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID ‘PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF SAID LOT 13 NORTH 02’50’30” WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING. / PARCEL B: / AN EASEMENT FOR PUBLIC IKJUTIES AND RIGm-OF-WAY FOR ROAD PURPOSES, OVER, UNDER, ALONG AND ACROSS A STRIP OF LAND 80 FEET WIDE OF THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINlTAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27,1890, MORE PARTI CULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING THE TRUE POINT OF BEGlNNINa THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 13 NORTH 87”03’30” EAST, 80.00 FEET; THENCE LEAVING SAID NORkHERLY LINE SOUTHERLY ALONG A LINE PARALLEL TO THE WESTERLY LINE OF LOT 13, SOUTH 02’50’30” EAST 268.25 FEET; THENCE WESTERLY ALONG A LINE P AI’ULLEL TO SAID NORTHERLY LINE OF LOT 13, SOUTH 87’03’30” WEST 80.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF LOT 13 NORTH 02’50’30” WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING, TOGETHER WITH SLOPE RIGHTS TO AMAXIMUM OF TEN (10) FEET. SEPTEMBER 10,1999 9:32 AM SP PAGE 2 of 2 OPERATING AGREEMENT OF LB/L-CONCORDIA MASTER LLC, a Delaware Limited Liability Company THE SECURITIES ISSUED UNDER THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT“), OR REGISTERED OR QUALIFIED UNDER THE ,APPLICABLE STATE SECURITIES LAWS, IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION AND QUALIFICATION PROVIDED IN THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFICATION OR REGISTRATION UNDER THE APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER IN ITS SOLE DISCRETION THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED. IN ADDITION, THE SECURITIES ISSUED UNDER THIS AGREEMENT MAY BE SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON TRANSFER SET FORTH HEREIN. - OPERATING AGREEMENT OF LB/L-Concordia Master LLC, . a Delaware Limited Liability Company THIS OPERATING AGREEMENT (“A!zreement”) is made and entered into as of the 15th day of April, 1999, by and among CONCORDIA COMMUNITIES, LLC, a Delaware limited liability company (“Concordia” or “Oneratine Member”), and LB/LAKESIDE CAPITAL PARTNERS, LLC, a Delaware limited liability company (“LBL Manager”). ARTICLE I. GENERAL PROVISIONS 1.1. Formation and Filings. The Members hereby form a limited liability company (the “Comuanv”) pursuant to the Act. This Agreement shall constitute the operating agreement among the Members. The Members agree to execute such documents and to take such other action as may from time to time be deemed necessary or appropriate by the LBL Manager under the laws of the State of Delaware with respect to the formation, operation and continued good standing of the Company as a limited liability company. 1.2. Name. The business of the Company shall be conducted under the name of “LB/L-Concordia Master LLC” or such other name as may be designated by LBL Manager from time to time. 1.3. Term. The term (“Term”) of the,Company shall commence as of the date of filing of the Certificate, and shall continue until the earlier of (A) December 3 1,2008 or (B) the dissolution, liquidation and termination of the Company pursuant to the provisions of Article XIII. 1.4. Business Puroose and Powers. The purpose of the Company shall be to acquire, obtain entitlements with respect to, improve and develop single-family detached homes and ancillary structures, use, sell, exchange, finance and refinance and otherwise . Member shall distribute the minutes to all Members. In addition to meetings held in person, Representatives of the Members shall confer by telephone as often as reasonably requested by the LBL Manager to review and discuss the progress of the Project, affairs of the Company and compliance with each Current Project Budget and Plan for each Property. 2.7. Representatives. Each Member shall designate in a lvriting one or more representatives, each of whom shall be authorized to act, by himself or herself under this Agreement for and on behalf of such Member. Any written act, approval, consent of a representative, so designated (“Representative”) shall be deemed to be the act, approval, consent or vote of the Member which designated such representative and neither the Company nor any Member shall be required to inquire into the authority of such representative as to such written act, approval, consent or vote on behalf of the Member which designated such representative and alternate. Any such representative may be replaced by written notice from the Member that designated such representative to the other Members. Until fk-ther notice, the designated representatives of the Members shall be: ‘. Operating Member: Representatives: 0. Randolph Hall, Jr. Don Underwood Michael Ugar LBL Manager: Representatives: Melvin T. Andrews Ronald W. Lee 2.8. Execution of Comnanv Documents. The LBL Manager, acting alone, shall have the authority to execute and deliver on behalf of the Company, and kach Project all agreements, instruments or other documents to which the Company will be a party or bound (including such documents and instruments as necessary to comply with the Act and other applicable law for the formation, operation, qualification or registration of a limited liability company in all jurisdictions where the Company may conduct business or hold property). The Operating Member, acting alone, shall have the authority to execute and deliver, on behalf of the Company, agreements, instruments or other documents to which the Company will be a party or bound, if and onlv if (A) the document is Project- related, is for $25,000 or less, and is in accordance with the Current Project Budget and Plan, a (B) the LBL Manager specifically authorizes the Operating Member in writing to execute and deliver such agreement, instrument or other document. 2.9. Operating Member and Affiliates. Subject to the terms and conditions of this Agreement, the LBL Manager shall execute all documents and instruments entered into behveen the Company and the Operating Member and othenvise act on behalf of the 11 Company in all dealings (including, but not limited to, default notices, termination or litigation) between the Company and the Operating Member in respect of the Management Provisions and other matters arising under this Agreement. 2. IO. Leoal Authoritv. Without liniitinp any applicable provision of this Agreement. the LBL Manager acting alone shall have the sole right on behalf of the Company to send any. appropriate notice of default or termination, to institute legal proceedings and/or to take such other action as may be necessary or appropriate to enforce the rights and protect the interests of the Company pursuant to this Agreement, the Ancillary Agreements, or any other agreement now or hereafter entered into behveen the Company and any Member or its Affiliate. 2.11. Appointment of Officers. The LBL Manager may elect officers of the Company. The officers of the Company, if deemed necessary by the LBL Manager, may include a chairperson, president, vice-president, secretary and chief financial officer. Any individual may hold any number of offices, and a Representative or officer of a Member may serve as an officer. The officers shall exercise such powers and perform such duties as shall be determined from time to time by the LBL Manager, subject to the limitations ‘. contained herein. Each officer of the Company shall serve at the pleasure of the LBL Manager and may be removed at any time by the LBL Manager with or without cause. Any officer may resign at any time by giving written notice to the LBL Manager. Any’ resignation is without prejudice to the rights, if any, of the Company under any contract to which the officer is a party. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled by the LBL Manager. ARTICLE III. FISCAL YEAR The “Fiscal Year” of the Company for tax and accounting purposes shall be each year ending on December 3 1, unless some other fiscal year is required pursuant to the provisions of the Code. ARTICLE IV. CERTAIN RIGHTS AND OBLIGATIONS OF MEMBERS 4.1. Limitation of Liabilitv. No Member of the Company shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation, or 12 . . . the date first above written. “Concordia” CONCORDi COl&IMUNITIES, LLC, a Delaware limited liability compaxiy Name: 0. Randolph Hall, Jr. Title: Manager “LBL MANAGER” LB/LAKESIDE CAF’ITAL PARTNERS, LLC By: Its: 55 ReceLwecl: 121 s/ss 12:16; - 8188418072 -W CONCOROIA HOMES OF CALIF LLC; Page 2 ' 12/09/;9 THU 11:03 FAX 8188' 172 LAKESIDE REALTY Ar-PORS @loo2 the date first above written. “Concordia” CONCORDIA COMMUNITIES, LLC, a Delaware limited liability company By: Name: 0. Randolph Hall, Jr. Title: Manager “LBL MANAGER” LB/LAKESIDE CAPITAL PARTNERS, LLC By: Its: Authorlzed Signatory 55 _- OPERATING AGREiMEpT OF LB/L-CONCORDIA CARLSBAD-28 LLC THE UNDERSIGNED is executing this Operating Agreement (“Agreement”) for the purpose of forming a limited liability company (the “Company”) pursuant to the provisions of the Delaware Limited Liability Company Act, 6 De/. C. Ann., tit. 6, $4 18-101 et seq. (the “Delaware Act”), and in furtherance thereof, does hereby agree as follows: 1. Name; Formation. The name of the Company shall be LB/L-CONCORDIA CARLSBAD-28 LLC, or such other name as the Members may from time to time hereafter designate. The Company shall be formed upon the execution and filing by any Member (each of which is hereby authorized to take such action) of a certificate of formation of the Company with the Secretary of State of the State of Delaware setting forth the information required by Section 18-201 of the Delaware Act. 2. Definitions; Rules of Construction. In addition to terms otherwise defined herein, the following terms are used herein as defined below: “Capital Contribution” means, with respect to any Member, the amount of capital contributed by such Member to the Company in accordance with Section 8 hereof “Event of Withdrawal of a Member” means the resignation, expulsion, bankruptcy, or dissolution of a Member or the occurrence of any other event that terminates the continued membership of a Member in the Company. “Initial Member” means LB/L-Concordia Master LLC, a Delaware limited liability company. “Interest” means the ownership interest of a Member in the Company (which shall be considered personal property for all purposes), consisting of (i) such Member’s Percentage Interest in profits, losses, allocations, and distributions, (ii) such Member’s right to vote or grant or withhold consents with respect to Company matters as provided herein or-in the Delaware Act, and (iii) such Member’s other rights and privileges as herein provided. - : . “Majority in Interest of the Members” means Members whose Percentage Interests aggregate to greater than 50 percent of the Percentage Interests of all Members. “Members” means the Initial Member and all other persons or entities admitted as additional or substituted Members pursuant to this Agreement, so long as they remain Members. Reference to a “Member” means any one of the Members. “Percentage Interest” means a Member’s share of the profits and losses of the Company and the Member’s percentage right to receive distributions of the Company’s assets. The Percentage Interest of each Member shall initially be the percentage set forth opposite such Member’s name on Schedule I hereto, as such Schedule shall be amended from time to time in accordance with the provisions hereof. The combined Percentage Interest of all Members shall at all times equal 100 percent. Words used herein, regardless of the number and gender used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter, as the context requires, and, as used herein, unless the context clearly requires otherwise, the words “hereof,” “herein,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provisions hereof Capitalized terms not defined herein shall have the meanings ascribed to them in the Operating Agreement of LB/L- Concordia Master LLC, dated as of April &, 1999, between Concordia Communities, LLC and LB/Lakeside Capital Partners, LLC. 3. Purpose. The purpose of the Company shall be to acquire, own, develop, construct, finance and sell certain real property in the City of Carlsbad, California, more particularly described in Exhibit “A” attached hereto (the “Property”), and in connection therewith, engage in any lawful business that may be engaged in by a limited liability company organized under the Delaware Act, consistent with the purposes described in the operating agreement of the Initial Member, and other documents governing Initial Member, as they may be amended from time to time. 4. Offices. (a) The principal office of the Company, and such additional offices as the Members may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the Members may designate from time to time. (b) The registered office and registered agent for service of process of the Company in the State of Delaware is located at c/o Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. 5. Members. The name and business or residence address of each Member of the Company are as set forth on Schedule I attached hereto, as the same may be amended from time to time. 6. 2~. The Company shall continue until dissqlved and terminated in accordance with Section 14 of this Agreement. 7. Manageme- of the Company. (d The Members shall have the right to manage the business of the Company, and shall have all powers and rights necessary, appropriate, or advisable to effectuate and carry out the purposes and business of the Company. The Members may appoint, employ, or otherwise contract with any persons or entities for the transaction of the business of the Company or the performance of services for or on behalf of the Company, and the Members may delegate to any such person (who may be designated an officer of the Company) or entity such authority to act on behalf of the Company as the Members may from time to time deem appropriate. 2 (b) Except as to actions herein specified to be taken by all the Members or by the Members acting unanimously, the duties and powers of the Members may be exercised by a Majority in Interest of the Members (or by any Member acting pursuant to authority delegated by a Majority in Interest of the Members). (4 Any Member, authorized by all Members,‘may execute and file on behalf of the Company with the Secretary of State of the State of Delaware any certificates of correction of, or certificates of amendment to, the Company’s certificate of formation, one or more restated certificates of formation and certificates of merger or consolidation and, upon the dissolution and completion of winding up of the Company, a certificate of cancellation canceling the Company’s certificate of formation. (a Notwithstanding anything to the contrary herein, the Initial Member is hereby authorized and empowered to take all necessary actions and to execute all documents, agreements and instruments on behalf of and in the name of the Company to (i) acquire the Property; (ii) entitle and/or develop the Property; and (iii) obtain financing with respect to the acquisition and development of the Property, including financing for the construction of homes on the Property. 8. Capital Contributions; Capital Accounts; Aahinistrative Matters. (a) The Initial Member has contributed to the Company in cash the amount set forth on Schedule I hereto. Except as otherwise agreed by all Members, the Initial Member shall have no obligation to make any further capital contributions to the Company. Persons or entities hereafter admitted as Members of the Company shall make such contributions of cash (or promissory obligations), property, or services to the Company as shall be determined by the Members, acting unanimously, at the time of each such admission. (W A single, separate capital account shall be maintained for each Member. Each Member’s capital account shall be credited with the amount of money and the fair market value of property (net of any liabilities secured by such contributed property that the Company assumes or takes subject to) contributed by that Member to the Company; the amount of any Company liabilities assumed by such Member (other than in connection with a distribution of Company property), and such Member’s distributive share of Company profits (including tax exempt income). Each Member’s capital account shall be debited with the amount of money and the fair market value of property (net of any liabilities that such Member assumes or takes subject to) distributed to such Member; the amount of any liabilities of such Member assumed by the Company (other than in connection with a contribution); and such Member’s distributive share of Company losses (including items that may be neither deducted nor capitalized for federal income tax purposes). cc> Notwithstanding any provision of this Agreement to the contrary, each Member’s capital account shall be maintained and adjusted in accordance with the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), and the regulations 3 thereunder (the “Regulations”), including, without limitation, (i) the adjustments permitted or required by Internal Revenue Code Section 704(b) and, to the extent applicable, the principles expressed in Internal Revenue Code Section 704(c) and (ii) adjustments required to maintain capital accounts in accordance with the “substantial economic effect test” set forth in the.Regulations under Internal Revenue Code Section 704(b). (d) Any Member, including any substitute Member, who shall receive an Interest (or whose Interest shall be increased) by means of a transfer to him of all or a part of the Interest of another Member, shall have a capital account that reflects the capital account associated with the transferred Interest (or the applicable percentage thereof in case of a transfer of a part of an Interest). Cd The Company hereby designates the Initial Member as “Tax Matters Partner” for purposes of Internal Revenue Code Section 6231 and the Regulations promulgated thereunder. The Tax Matters Partner shall promptly advise each Member of any audit proceedings proposed to be conducted with respect to the Company. (Cl It. is the intention of the Members that the Company shall be taxed as a “partnership” for federal, state, local, and foreign income tax purposes. The Members agree to take all reasonable actions, including the amendment of this Agreement and the execution of other documents, as may reasonably be required in order for the Company to qualify for and receive “partnership” treatment for federal, state, local, and foreign income tax purposes. (Es) The fiscal year of the Company shall be a calendar year. The books and records of the Company shall be maintained in accordance with generally accepted accounting principles and Section 704(b) of the Internal Revenue Code and the Regulations. @I All items of Company income, gain, loss, deduction, credit, or the like shall be allocated among the Members in accordance with their respective Percentage Interests as set forth in Schedule I. 9. Assignments of Company Interest. <a) ..? . No Member may sell, assign, pledge, or otherwise transfer or encumber (collectively “transfer”) all or any part of its interest in the Company, and no transferee of all or any part of the interest of a Member shall be admitted as a substituted Member, without, in either event, having obtained the prior written consent of all other Members, @I The Members shall amend Schedule I hereto from time to time to reflect transfers made in accordance with, and as permitted under, this Section 9. Any purported transfer in violation of this Section 9 shall be null and void and shall not be recognized by the Company. 10. Withdrawal. No Member shall have the right to .withdraw from the Company except with the consent of all of the other Members and upon such terms and conditions as may ;- be specifically agreed upon between such other Members and the withdrawing Member. The provisions hereof with respect to distributions upon withdrawal are exclusive and no Member shall be entitled to claim any further or different distribution upon withdrawal under Section 18- 604 of the Delaware Act or otherwise. 11. [Reserved] 12. Distributions. Distributions of cash or other assets of the Company shall be made at such times and in such amounts as the Members acting unanimously may determine. Distributions shall be made to (and profits and losses shall be allocated among) Members pro rata in accordance with their respective Percentage Interests. 13. Return of Capital. No Member shall have any liability for the return of any Member’s Capital Contribution, which Capital Contribution shall be payable solely from the assets of the Company at the absolute discretion of the Members, subject to the requirements of the Delaware Act. 14. Dissolution. Subject to the provisions of Section 15 of this Agreement, the Company shall be dissolved and its a.tTairs wound up and terminated upon the first to occur of the following: (a) [Intentionally Blank]; @I December 3 1,2008; w The determination of all of the Members to dissolve the Company; or (4 The occurrence of an Event of Withdrawal of a Member or any other event causing a dissolution of the Company under Section 18-801 of the Delaware Act. 15. Continuation of the Company. Notwithstanding the provisions of Section 14(d) hereof, the occurrence of an Event of Withdrawal of a Member shall not dissolve the Company if within ninety (90) days after the occurrence of such event of withdrawal, the business of the Company is continued by the agreement of all remaining Members. 16. Lirititation on Liabili& The debts, obligatitis, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations, and liabilities of the Company, and no Member of the Company shall be obligated personally for any such debt, obligation, or liability of the Company solely by reason of being a Member. 17. Standard of Care; Indemnification of Members, Officers, Employees, and Agents. (a> No Member or officer shall have any personal liability whatsoever to the Company or any other Member on account of such Member’s or officer’s status as a Member or officer or by reason of such Member’s or officer’s acts or omissions in 5 connection with the conduct of the business of the Company; provided, however, that nothing contained herein shall protect any Member or officer against any liability to the Company or the Members to which such Member or officer would otherwise be subject by reason of(i) any act or omission of such Member or officer that involves actual fraud or willfit misconduct or (ii) any transaction from which such Member or officer derived improper personal benefit. 0) The Company shall indemnify and hold harmless each Member and officer and the affiliates of any Member or officer (each an “Indemnified Person”) against any and all losses, claims, damages, expenses, and liabilities (including, but not limited to, any investigation, legal and other reasonable expenses incurred in connection with, and any amounts paid in settlement of, any action, suit, proceeding, or claim) of any kind or nature whatsoever that such Indemnified Person may at any time become subject to or liable for by reason of the formation, operation, or termination of the Company, or the Indemnified Person’s acting as a Member or officer under this Agreement, or the authorized actions of such Indemnified Person in connection with the conduct of the affairs of the Company (including, without limitation, indemnification against negligence, gross negligence, or breach of duty); provided, however, that no Indemnified Person shall be entitled to indemnification if and to the e?ent that the liability otherwise to be indemnified for results from (i) any act or omission of such Indemnified Person that involves actual fraud or willfbl misconduct or (ii) any transaction from which such Indemnified Person derived improper personal benefit. The indemnities provided hereunder shall survive termination of the Company and this Agreement. Each Indemnified Person shall have a claim against the property and assets of the Company for payment of any indemnity amounts from time to time due hereunder, which amounts shall be paid or properly reserved for prior to the making of distributions by the Company to Members. Costs and expenses that are subject to indemnification hereunder shall, at the request of any Indemnified Person, be advanced by the Company to or on behalf of such Indemnified Person prior to final resolution of a matter, so long as such Indemnified Person shall have provided the Company with a written undertaking to reimburse the Company for all amounts so advanced if it is ultimately determined that the Indemnified Person is not entitled to indemnification hereunder. w The contract rights to indemnification and to the advancement of expenses conferred ‘In this Section 17 shall not be exclusive of’&y other right that any person may have or hereafter acquire under any statute, agreement, vote of the Members, or otherwise. (4 The contract rights to indemnification and to the advancement of expenses conferred in this Section 17 shall be subject to the indemnification and related terms and conditions of the Operating Agreement of LB/L-Concordia Master LLC, between Concordia Communities, LLC and LB/Lakeside Capital Partners, LLC, dated as of April -3 1999, and in the case of a conflict between the indemnification provisions of this Agreement and the indemnification provisions of the Operating Agreement of LB/L- Concordia Master LLC, the provisions of the LB/L-Concordia Master LLC Operating Agreement shall control. 6 (e> The Company may maintain insurance, at its expense, to protect itself and * any Member, officer, employee, or agent of the Company, or another limited liability company, corporation, partnership, joint venture, trust, or other enterprise against any expense, liability, or loss, whether or not the Company would have the power to indemnifir such person against such expense, liability, or loss under the Delaware Act. (0 The Company may, to the extent authorized from time to time by the Members, grant rights to indemnification and to advancement of expenses to any officer, employee or agent of the Company to the fullest extent of the provisions of this Section 17 with respect to the indemnification and advancement of expenses of Members of the Company. 18. Amendments This Agreement may be amended only upon the written consent of all Members. 19. Governing La-w. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of April 15, 1999. MEMBER: LB/L-CONCORDIA MASTER LLC By: Y M&in T. Andrews Its: President and Authorized Signatory 255632.01 .SF (SH8WOl!.DOC) 04/14;99 8:53 PM .: , 7 . ” Exhibit A (C28) LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL A: THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNI.A, ACCORDING TO-tip THEREOF NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT- ON THE WESTERLY LINE OF SAID LOT 13, WHICH IS DISTANT THEREON NORTH 2°50'30' WEST 1323.85 FEET FROM THE SOUTHWESTERLY CORNER OF SAID LOT 13; THENCE NORTH 87OO3'55" EAST ,. 1792.90 FEET TO THE CENTER LINE OF THE COUNTY ROAD KNOWN AS ROAD SURVEY NO. 454-A, AS DESCRIBED IN DEED l-Q THE COUNTY OF SAN DIEGO, RECORDED DECEMBER 19, 1930 IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY; THENCE. ALONG SAID CENTER LINE AS FOLLOWS: NORTH 36O53'23" WEST - RECORD NORTH 37OOl' WEST - 395.54 FEET TO THE BEGINNING OF A TANGENT 1000.00 FOOT RADIUS CURVE, CONCAW NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE 291.91 FEET THROUGH AN ANGLE OF 16O43'30"; THENCE TANGENT TO SAID CURVE NORTH 20009'53" WEST 768.03 FEET - RECORD NORTH 2OO17'30" WEST 764.26 FEET - TO THE NORTHERLY LINE OF.SAID LOT 13; THENCE ALONG SAID NORTHERLY LINE, SOUTH 87OO3'30" WEST 1216.69 FEET TO THBNORTHWESTERLY CORNEROF SAID LOT 13; THENCE ALONG THE WESTERLY LINE OF SAID LOT, SOUTH 2050'30" EAST 1323.84 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS FOLLOWS: .: . BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 13 NORTH 87°03'30"‘.EAST, 1,216.68 FEET TO THE CENTERLINE OF ROAD SURVEY 454-A AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED DECEMBER 19, l-930 IN BOOK 1839, PAGE 356 OF DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RANCH0 SANTA FE ROAD; -THENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SOUTHERLY ALONG THE CENTERLINE OF SAID ROAD SURVEY 454-A SOUTH 2OOO9'53" EAST, 280.84 FEET;, THENCE LEAVING SAID CENTERLINE OF ROAD SURVEY 454-A WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87O03'30" WEST, 518.71 FEET; THENCE LEAVING SAID PARALLEL LINE SOUTHERLY SOUTH t:04/10/91 08:SS:O4 v: / / : : JL 00 . 02O56'30" EAST, 150.00 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87OO3'30" WEST, 291.59 FEET; THENCE LEAVING SAID PARALLEL LINE NORTHERLY NORTH 02O56'30" WEST, 150.00 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87OO3'30" WEST, 490.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF SAID LOT 13 NORTH 02°50'30" WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING. PARCEL B: AN EASEMENT FOR PUBLIC UT,ILITIES AND RIGHT-OF-WAY FOR ROAD-PURPOSES, OVER, UNDER, ALONG AND ACROSS A STRIP'OF LAND 80 FEET WIDE OF THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST CORNER BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 13 NORTH 87OO3'30" EAST, 80.00 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTHERLY ALONG A LINE PARALLEL To THE WESTERLY LINE OF LOT 13, SOUTH 02°50'30" EAST 266.25 FEET; THENCE WESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13, SOUTH 87OO3'30" WEST 80.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF LOT 13 NORTH 02°50'30" WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING, TOGETHER WITH SLOPE RIGHTS TO A MAXIMUM OF TEN (10) FEET. ,. I.._ . . . . . ~. . . ; :,- c 7 :- May 15,200O LB/L Concordia Carlsbad-28-LLC 7 130 Avenida Encinas, Suite 200 Carlsbad, CA 92009 RE: PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF CT 98-02 (“AGREEMENT’? COLINA ROBLE At the meeting of March 28,2000, the Carlsbad City Council adopted Resolution No. 2000-99, approving the above referenced agreement. Enclosed for your record is a copy of Resolution No. 2000-99, as well as a fully executed agreement for your files. If you have questions concerning the contract, please contact Lisa Hildabrand, Finance Director, at 602-2430. Dee Uhich Office of the Carlsbad City Clerk Enclosures (2) 1200 Carlsbad Village Drive * Carlsbad, CA 92008-I 989 - (760) 434-2808 @ EXHIBIT 3 -. Y 0 COLlhlA RODE CT 98-02 / HDP 98-011 SUP 98-01 CITY OF OCEANSIDE I ff 7. 1 SCAE: I #= IV/A i CITY OF ‘VISTA l-1060 3/13/w \A. J ’ OF MARCOS PACIFIC OCEAN VICINITY MAP IJBDWIQ Da6N OllOUP ELF Alrport - GYkbad,Gws!oo9 (760)43&318@ mx (760)438-0173