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HomeMy WebLinkAbout2005-09-06; City Council; 18269; Amendment 1 Agreement Faraday Av-Melrose Dr Community Facilities District 37 B# 18,269 ITG. 9/6/2005 EPT. ENG TITLE: - AMENDMENT NO. 1 TO WAIVER AND CONSENT COMMUNITY FACILITIES DISTRICT NO. 3 IN CONJUNCTION AGREEMENT FOR THE FARADAY AVENUE-MELROSE DRIVE WITH CT 97-13, CT 98-10 AND CT 99-06 RECOMMENDED ACTION: +f DEPT. HD. Adopt Resolution No. approving Amendment No. 1 to Waiver and Consent Agreements for the Faraday Avenue-Melrose Drive Community Facilities District No. 3 (CFD #3) for CT 97-1 3, CT 98-1 0, and CT 99-06. 2005-275 ITEM EXPLANATION: Conditions of approval for CT 97-13 Carlsbad Oaks North, CT 98-10 Fenton Raceway LLC and CT 99-06 Palomar Forum Associates L.P. required that prior to recordation of the Final Maps of these three projects a financial guarantee for the construction of Faraday Avenue and Melrose Drive be provided to the satisfaction of the City Council. Community Facility District No. 3 (CFD #3) was recognized by all parties to be the ultimate financial guarantee. In the absence of final approval of CFD #3 the Council accepted the execution of Waiver and Consent Agreements by each development pledging support for the CFD and committing to paying their prorated share of Faraday Avenue or Melrose Drive. Under the provisions of each agreement the developer was to post cash or a Letter of Credit in the amount of the full-designated share at first building permit or transfer of property whichever occurs first. All subdivisions have currently recorded their Final Maps, all rights of way have been dedicated, all applicable permits have been obtained and both Faraday Avenue and Melrose Drive are fully secured with bonds and Subdivision Agreements. Both roadways are under construction. The original roadway guarantees are no longer required. The CFD #3 is in process and should be formed and ready for bond sales at the beginning of 2006. Based on the current status of project development it is being requested that the Waiver and Consent Agreements be amended to eliminate the need to post fair share cash or a Letter of Credit at first property transfer or building permit. The proposed amendments eliminates that requirement and substitutes language requiring that the fair share be posted within 90 days of demand by the Finance Director. If the amount is not paid it becomes a lien on the property. The agreement will be recorded and being binding on all-subsequent buyer of the property. Given the current CFD schedule it is not likely that the payment of fair-share funds will be required. ENVIRONMENTAL REVIEW: Each development completed its environmental review as a part of the project approvals. No further environmental review is required. FISCAL IMPACT: The amendments have no fiscal impact on the City. 18,269 Page 2 of Agenda Bill EXHIBITS: approving Amendment No. 1 to Waiver and Consent Agreements for the Formation of Community Facilities District (CFD) No. 3 for Carlsbad Tracts CT 97-1 3, 98-1 0 and 99-06. 2005-275 1. Resolution No. 2. Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District (CT 97-1 3), Carlsbad Oaks North Partners. 3. Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District (CT 98-1 0), Fenton Raceway LLC. 4. Amendment No. 1 to Wavier and Consent to Creation of the Community Facilities, (CT 99-06), Palomar Forum Associates. DEPARTMENT CONTACT: Lloyd Hubbs, 760-602-2730, Ihubb@ci.carlsbad.ca.us 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2005-275 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AMENDMENT NO.l TO WAIVER AND CONSENT AGREEMENTS FOR THE FORMATION OF COMMUNITY FACILITIES DISTRICT (CFD) N0.3 FOR CARLSBAD TRACTS (CT) 97-1 3, 98-1 0 AND 99-06. WHEREAS, the City of Carlsbad entered into Waiver and Consent Agreements with Carlsbad Oaks North Partners, L.P. (CT 97-13), Fenton Raceway LLC (CT 98-10), Palomar Forum Associates L.P. (CT 99-06); and WHEREAS, Section 4(b) of the Original Agreements requires Property Owners to deposit with the City fair share contributions for specified roadway segments; and WHEREAS, since execution of the Original Agreement, all of the right of way for Faraday Avenue and Melrose Drive have been dedicated, all resource agency permits have been obtained and performance bonds for both roadways have been provided to secure construction; and WHEREAS, the property owners in the proposed CFD continue to cooperate and work diligently towards its formation which is expected to occur within the year but after the sale of the first commercial lot. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That Amendment No. 1 to the Waiver and Consent to the Community Facilities District Agreements for CT 97-13, 98-10 and 99-06 are hereby approved and the Mayor authorized to execute the agreements and the City Clerk is hereby authorized to cause the original agreements to be recorded in the office of the County Recorder of San Diego County, State of California. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 6th day of SEPTEMBER , 2005 by the following vote, to wit: AYES: Council Members Lewis Kulchin Packard, Sigaf oose NOES: None ATTEST (SEAL) DOC # 2005-096481 9 RECORDING REQUESTED BY: Carlsbad City Clerk’s Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 I llllllll Ill IIIII lllll Ill11 11111 lllll11111llll1 Ill11 lllll IIIII 1111 Ill1 NDV 04,2005 4:33 PM OFFICIAL RECORDS GREGURY J SMITH, COUNTY RECORDER FEES 22 uo 6 PAGES SAN DIEGO COUNTY RECORDER’S OFFICE SPACE ABOVE THIS LINE FOR RECORDER’S USE Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District (CT 97-13) Carlsbad Oaks North Partners, L.P. Recorded oriqinal agreement December 15,2004 as Document No. 2004- 1 180069 9-(4-05 Ked %€&‘275 fie* w,2 h9 :\County RecorderRecorder Cover Sheet.doc Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District(CT 97-13) WHEREAS, the City of Carlsbad (“City”) and Carlsbad Oaks North Partners, L.P. (“Property Owner”) entered into that certain “Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 97-13” recorded December 15, 2004 as Document No. 2004-1 180069; and WHEREAS, Section 4(b) of the Original Agreement requires, among other things, that Property Owner deposit with the City a letter of credit or cash (the “Deposit”) equal to Property Owner’s fair share of the cost of the extension of Melrose Drive from Palomar Airport Road to Vista City limits (the “Melrose Drive Extension”) prior to the transfer of a fee simple interest in all or any portion of CT 97-13 or issuance of a building permit for the first commercial structure to be constructed within CT 97-13; and WHEREAS, since execution of the Original Agreement, all of the right-of-way for the Melrose Drive Extension has been dedicated to the City, all resource agency permits required for the Melrose Drive Extension have been obtained by the City and performance bonds have been provided for completion of the Melrose Drive Extension; and WHEREAS, all of the participating property owners in the Community Facilities District (the “CFD’) proposed to finance the Melrose Drive Extension, among other improvements, have executed agreements like the Original Agreement consenting to the formation of the CFD to finance their fair share of the costs of the Melrose Drive Extension; and WHEREAS, the Property Owners in the proposed CFD continue to cooperate and work diligently toward its formation which is expected to occur soon and within the year but after the sale of the first commercial lot; and WHEREAS, this amendment shall be recorded to, among other things, insure that prospective purchasers are aware of this contingent obligation; and WHEREAS, Property Owner has commenced construction of the Faraday Avenue Improvements required by the approvals for CT 97-13 pursuant to the Original Agreement and applicable subdivision improvement agreements. NOW, THEREFORE, in consideration of proceeding with the formation of the CFD, the processing of CT 97- 13 and commencement of the Faraday Avenue Improvements, the Property Owner and City hereby agree to the following: 1. Section 4(b) of the Original Agreement shall be amended as follows: Property Owner’s payment of its Fair Share of Melrose Drive Extension, initially estimated to be in an amount not to exceed $2,066,223, shall be secured by the posting of cash or a letter of credit with the City of Carlsbad, in a form and from a financial WaivedConsent Amendment 16466-3/2100660.1 8/22/05 institution acceptable to the Finance Director, within ninety (90) days of a demand to the owner by the Finance Director. If not paid or an extension of the demand for payment is made by the City Council, the Property owner and its successors in interest agree that the obligation shall become a lien on all parcels with the subdivision and shall be entitled to enforcement, collection and priority as a tax lien. 2. Except as modified herein the Original Agreement shall remain in full force and effect. Executed this Enday of September, 20C5 CARLSBAD OAKS NORTH PARTNERS L.P., a California limited partnership By: SUN TECH INVESTMENTS COW., a California corporation, ATTEST: Its: General By: Title: President By: Name: Theodore Tchan Title: Vice President Title: WaiverIConsent Amendment 16466-312 100660.1 2 8/22/05 -VED AS TO FORM: - Title: City Attorney WaivedConsent Amendment 16466-312100660.1 3 8/22/05 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT '1 State of California 1 ss. Countyof San Diego On September 9,2005 , before me, Susan E. Eubank, Notarv Public Date Name and Title of Ofiicer (e.g.. "Jane Doe, Notary Public") personally appeared Paul K. Tchann and Theodore Tchang Name@) of Signer@) Kl personally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Mare subscribed to the within instrument and acknowledged to me that bdeklthey executed the same in kirlhryltheir authorized capacity(ies), and that by hislherltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above 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: sent No. 1 to Waiver and Consent to CrPU Document Date: Number of Pages: of the Community Facilities District (CT97-13) Signerts) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: Paill K. and Theodore Tchang 0 Individual E3 Corporate Officer - Title(s): partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Sun Tech Investments Corp.and T Pmicient YT1- 0 1999 National Notary Assxiation - 9350 Do Solo Ave., P.O. Box 2402 * Chalswonh, CA 91313-2402 * www.nationalnotan/org Prod. No. 5907 Reorder Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT a } SS. State of California Countyof SA0 DIE@ 1 I State of California Countyof 1 ss. SA0 DIE@ On 9 -16- &bo5 , before me, Tsk6- Name and Title of JDUlm Officer (e g , "Jane Doe, Notary Public") personally appeared Date CCmm A- CaLVs fiMP K&&AJ p. KtrNvp 7-z Name@) of Slgner(s) personally known to me % proved to me on the basis of satisfactory evidence Place Notary Seal Above to be the person(s) whose name(s) *are subscribed to the within instrument and acknowledged to me thatbkhelthey executed the same in hidbedtheir authorized capacity(ies), and that by hislherltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (u2UAkLu Signaturaf Notary Public Pi! u OPTIONAL Though the information be/ow is not required by /aw, it may prove va/uab/e 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: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: 0 Individual 0 Corporate Officer - Title(s): Partner - Limited General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: u 0 1997 National Notary Association - 9350 De Soto Ave.. P.O. Box 2402 Chatsworth. CA 91313-2402 Prod No. 5907 Reorder. Call Toll-Free 1-800-876-6827 Techbilt Construction Corp. 3575 Kenyon St. San Diego, CA 92110 Telephone (619) 223-1663 Mailing Address P.O. Box 80036 San Diego, CA 92138 September 8,2005 FAX (619) 223-2865 Isabelle Paulsen City ClerWRecords Management Dept. City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: Carlsbad Oaks North Amended Waiver and Consent Dear Ms. Paulsen: Enclosed for your use is a signed and notarized Amended Waiver and Consent for If you have any questions, please give me a call. Carlsbad Oaks North. Sincerely, TECHBILT CONSTRUCTION CORP. Ted Tchang, Vice President TT: tt Enclosure RECORDING REQUESTED BY: Carlsbad City Clerk’s Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOC # 2005-0964620 NOV 04,2005 4:33 PM OFFICIAL RECORDS Sm4N DIEGO COUNTY RECORDER’S OFFICE GREGURYJ SMITH, COUNTY RECORDER FEES 1900 5 PAGES ~ SPACE ABOVE THIS LINE FOR RECORDER’S USE Amendment No. 1 to Waiver and Consent to Creation of the Communitv Facilities District (CT 98-1 0) Fenton Raceway LLC Recorded original May 3, 2005 as Document No. 2005-0371021. &? \%J 2bq 94- 09 :\County Recorderkecorder Cover Sheet.doc Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District (CT 98-10) WHEREAS, the City of Carlsbad (“City”) and Fenton Raceway LLC (“Property Owner”) entered into that certain “Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 98-10” dated October, 2004 (the “Original Agreement”); and WHEREAS, Section 4(b) of the Original Agreement requires, among other things, that Property Owner deposit with the City a letter of credit or cash (the “Deposit”) equal to Property Owner’s fair share of the cost of the extension of Faraday Avenue between Orion Way and Melrose Drive (the “Faraday Avenue Extension”) prior to the transfer of a fee simple interest in all or any portion of CT 98-10 or issuance of a building permit for the first commercial structure to be constructed within CT 98- 10; and WHEREAS, since execution of the Original Agreement, all of the right-of-way for the Faraday Avenue Extension has been dedicated to the City, all resource agency permits required for the Faraday Avenue Extension have been obtained by the City and performance bonds have been provided for completion of the Faraday Avenue Extension; and WHEREAS, all of the participating property owners in the Community Facilities District (the “CFD’) proposed to finance the Faraday Avenue Extension, among other improvements, have executed agreements like the Original Agreement consenting to the formation of the CFD to finance their fair share of the costs of the Faraday Avenue Extension; and WHEREAS, the Property Owners in the proposed CFD continue to cooperate and work diligently toward its formation which is expected to occur soon and within the year but after the sale of the first commercial lot; and WHEREAS this amendment shall be recorded to, among other things, insure that prospective purchasers are aware of this contingent obligation; and WHEREAS, Property Owner has commenced construction of the Melrose Improvements required by the approvals for CT 98-10 pursuant to the Original Agreement and applicable subdivision improvement agreements. NOW, THEREFORE7 in consideration of proceeding with the formation of the CFD, the processing of CT 98-10 and commencement of the Melrose Improvements, the Property Owner and City hereby agree to the following: 1. Section 4(b) of the Original Agreement shall be amended as follows: Property Owner’s payment of its Fair Share, initially estimated to be in an amount not to exceed $3,362,713, shall be secured by the posting of cash or a letter of credit with the City of Carlsbad, in a form and from a financial institution acceptable to the Finance Director, within ninety (90) days of a demand to the owner by the Finance Director. If not paid or an extension of the demand for payment is made by the City Council, the Property owner and its successors in interest agree that the obligation shall become a lien on all parcels within the subdivision and shall be entitled to enforcement, collection and priority as a tax lien. 8/16/05 4083.3 H&O: #25864 vl 2. and effect. Except as modified herein the Original Agreement shall remain in full force 16w Executed this - day of September, 2005 FENTON RACEWAY LLC, a California limited liability company By: H.G. FENTON COMPANY, a California By: Title: \ CITY OF CARLSBAD, a munici the S By: Title: Mayor ATTEST: Title Assistant-Cityuerk APPROVED AS TO FORM: Name: RONALD R. BALL 9. Title: City Attorney 8/16/05 4083.3 H&O: #25864 vl CALIFO'RNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF SAN DIEGO On September 12, 2005 before me, Clare Chavez, Notarv Public , personally appeared , personally known to me 7 to be the person(s) whose name(s) Mare subscribed to the within Allen M. Jones and Kari Prevost instrument and acknowledged to me that 4ekMthey executed the same in Wtheir authorized capacity(ies), and that by hishedtheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal. b Signature of Notary Public (SEAL) OPTIONAL Though the data 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: Date of Document: Number of Pages: Signer(s) Other than Named Above: CAPACITY(IES) CLAIMED BY SIGNER: Signer's Name: Signer's Name: 0 Individual 0 Corporate Officer: Title(s): 0 Partner: -- 0 Limited 0 Individual 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer is Representing: 0 Individual 0 Corporate Officer: Title(s): 0 Partner: -- 0 Limited 0 Individual 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer is Representing: 4 I. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT a } SS. State of California County of SA0 3rE &-a On 4- /6-2005 , before me, xs#beu TDUIfl /?h&i.&F fib , Date Name and XUe of Officer (e g ,“Jane Doe, Notary Pubbc”) personally appeared A. hlS Am U&L/m j!! . /&ua-rZ , Name@) of Signer@) personally known to me 8- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that-kefekelthey executed the same in -/their authorized capacity(ies), and that by +i&ter/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. c Place Notary Seal Above WITNESS my hand and official sed I - Signatueof Notary Public 0 PTlONAL 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: Individual Corporate Officer - Title(s): Partner - 0 Limited 0 General Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: 0 1997 National Notary Association * 9350 De Soto Ave.. P.O. Box 2402 * Chatsworth, CA 9131 3-2402 Prod. No. 5907 Reorder. Call Toll-Free 1-800-876-6827 (61 9) 400-01 20 (619)400-0111 FAX August 24,2005 Mr. Lloyd Hubbs Public Works Director City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: Amendment No. 1 to Waiver and Consent to Creation of Community Facilities District Dear Mr. Hubbs: Attached is Amendment No. 1 to the Waiver and Consent, which addresses the Carlsbad Raceway property. Please docket and present this amendment to the City Council for consideration at its September 6,2005 meeting. Please call me at 619-400-0134 if you have any questions. Thank you. Sincerely, 7577 Mission Valley Road, Suite 200 San Diego, CA 92108 11 H.G. FENTON COMPANY 11 (619) 400-0120 (619) 400-0111 FAX Ms. Belinda R. Guzman Administrative Secretary City of Carlsbad 163 5 Faraday Avenue Carlsbad, CA 92008-73 14 Re: Notarization of Amendment No. 1 to Waiver and Consent to Creation of Community Facilities District for Carlsbad Raceway property Dear Ms. Guzman: Enclosed is “Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District” for the Carlsbad Raceway property, duly notarized as per your request. If you have any questions, please do not hesitate to call. Thank you. Sincerely, U Clare Chavez Real Estate Assistant lcc Enclosure 7577 Mission Valley Road, Suite 200 San Diego, CA 921 08 RECORDING REQUESTED BY: Carlsbad City Clerk‘s Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOC # 2005-0964621 I llllllll Ill IIIII 11111 111ll111ll111111lll1 Ill11 Ill11 Ill11 11111 1111 1111 NOV 04,2005 4:33 PM OFFICIAL RECORDS SP.N DIEGO COUNTY RECORDER’S OFFICE GREGORY J SMITH, CUUNTY RECORDER FEES: 19.00 PAGES: 5 I 111111 Ill11 11111 Ylll11111 Ill11 Ill11 1111 Ill11 Ill11 1111 Ill11 Ill11 1111 Ill1 1111 SPACE ABOVE THIS LINE FOR RECORDER’S USE Amendment No, 1 to Waiver and Consent to Creation of the Community Facilities District (CT 99-06) Palomar Forum Associates L.P. Recorded original June 9, 2004 as Document No. 2004-0538024. \b,2U 9-L-05 \County RecorderRecorder Cover Sheet.doc Amendment No. 1 to Waiver and Consent to Creation of the Community Facilities District(CT 99-06) WHEREAS, the City of Carlsbad (“City”) and Palomar Forum Associates L.P., a California limited partnership (“Property Owner”) entered into that certain “Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 99-06” dated June 4,2004 (the “Original Agreement”); and WHEREAS, Section 4(b) of the Original Agreement requires, among other things, that Property Owner deposit with the City a letter of credit or cash (the “Deposit”) equal to Property Owner’s fair share of the cost of the extension of Faraday Avenue between Orion Way and Melrose Drive (the “Faraday Avenue Extension”) prior to the transfer of a fee simple interest in all or any portion of CT 99-06 or issuance of a building permit for the first commercial structure to be constructed within CT 99-06; and WHEREAS, since execution of the Original Agreement, all of the right-of-way for the Faraday Avenue Extension has been dedicated to the City, all resource agency permits required for the Faraday Avenue Extension have been obtained by the City and performance bonds have been provided for completion of the Faraday Avenue Extension; and Whereas, the Property Owners in the proposed CFD continue to cooperate and work diligently toward its formation which is expected to occur soon and within the year, but after the sale of the first commercial lot; and Whereas, this amendment shall be recorded to, among other things, insure that prospective purchasers are aware of the contingent obligation; and WHEREAS, all of the participating property owners in the Community Facilities District (the “CFD”) proposed to finance the Faraday Avenue Extension, among other improvements, have executed agreements like the Original Agreement consenting to the formation of the CFD to finance their fair share of the costs of the Faraday Avenue Extension; and WHEREAS, Property Owner has completed the widening of Palomar Airport Road required by the approvals for CT 99-06 pursuant to the Original Agreement and applicable subdivision improvement agreements. NOW, THEREFORE, in consideration of proceeding with the formation of the CFD and the processing of CT 99-06 and completion of the Palomar Airport Road widening, the Property Owner and City hereby agree to the following: 1. Section 4(b) of the Original Agreement shall be amended as follows: Property Owner’s payment of its Fair Share, initially estimated to be in an amount not to exceed $2,003,805, shall be secured by the posting of cash or a letter of credit with the City of Carlsbad, in a form and from a financial institution acceptable to the Finance Director, within ninety(90) days of a demand to the owner by the Finance Director. If not paid or an extension of the demand for payment is made by the City Council, the Property owner and its successors in interest agree that the obligation shall become a lien on all parcels with the subdivision and shall be entitled to enforcement, collection and priority as a tax lien. 8/16/05 4083.3 H&O: #25864 vl 2. Except as modified herein the Original Agreement shall remain in full force and effecExecuted this/&day of September, 2005 PALOMAR FORUM ASSOCIATES L.P., a California limited partnership CITY OF CARLSBAD, a municipal corporation of Title: Mayor ATTEST: APPROVED AS TO FORM: c N~~RONALD R. BALL 9 Title: City Attorney 8/16/05 4083.3 H&O: #25864 VI CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1 } ss. .- - 11 I . _- - Name ana\Title offlfficer (e.g., "Jane Doe, Notary Public") On % Dale I q!. m65, before me, d. Place Notary Seal Above donally known to me 0 proved to me on the basis of satisfactory evidence to be the personwwhose name@ls/aesubscribed to the within instrument and acknowledged to me that he/s+tdtky executed the same in his/h&hk authorized capacity@$ and that by his/kerHlteir signaturewon the instrument the person(8): or the entity upon behalf of which the person(# acted, executed the instrument. WITNESS rnv hand and official seal. Signature of Notary Public / 1 W OPTlONAL 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: Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee I I 0 Guardian or Conservator Other: Signer Is Representing: I Signer's Name: 0 Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator Other: I I Signer Is Representing: 0 2004 National Notary Association 9350 De Soto Ave., P.O. Box 2402 Chatsworlh, CA 91 313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } SS. State of California County of StW 31 Phil On c;Z-16 - 200.5 , before me, z&?&t!L.E & VlH p At.rcseAJ personally appeared edbDgA.b,5 mn hpD7-L , , Date Name and Title of Officer (e g , "Jane Doe, Notary Public") Name@) of Signer@) wpersonally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Mare subscribed to the within instrument and acknowledged to me that+rekbe/they executed the same in li+#tm/their authorized capacity(ies), and that by -hidbedtheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above WITNESS my hand and official seal. Signatwe of Notary Public OPTIONAL 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: 1 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer ~- -. . Signer's Name: fi 0 Individual 0 Corporate Officer - Title(s): Partner -U Limited General Attorney in Fact Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: u 0 1997 National Notary Associatlon 9350 De Soto Ave , P.0 Box 2402 - Chatsworth, CA 91313-2402 Prod No. 5907 Reorder Call Toll-Free 1-800-876-682 L I >I IT E 1) L 1 A B I L 1 T Y c 0 A4 PA N Y August 23,2005 Mr. Lloyd Hubbs Public Works Director City Of Carlsbad 1635 Faraday Carlsbad, CA 92008 DAVIS P!NERS RECEIVE Re: Amendment to Waiver and Consent Dear Lloyd: Attached to this letter is an executed copy of the amendment to our Waiver and Consent document dated June 4,2004 that we have been discussing the last few weeks. This will be our formal request of City Council to approve this at their September 6,2005 meeting. Sincerely yours, Principal Enclosure cc: Mr. Ted Tchang Mr. Allen M. Jones Jchn Yeagcr, Esq. . . __ 1420 BRISTOL STREET NORTH * SUITE 100 - NEWPORT BEACH - CA 92660 EL: 949.752.2066 . FAX: 949.752.8776