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CT 97-24; May Subdivision; _N/A
KOV-02-98 MON 09:37 CITY (F CARLSBAD COtfi DE FAX NO. 4380894 P. 02 CITY OF CARLSBAD - ENGINEERING DEPARTMENT APPLICATION FOR ENGINEERING PLAN CHECK OR PROCESSJNG Complete all appropriate information. WriteJM/A when not applicable. PROJECT NAME: PROJECT DESCRIPTION: PROJECT ADDRESS; 1 &- DATE: ////<?# 5/7 LOT NO(S).:MAP NO.: Tltf 47-Z 4- APN(S).: ^?7~^(b/-g>7 NO. OF DWELLING UNITS: _/6? LFMP ZONE: # LOTS: /<4- # ACRES: OWNER: Mailing Address: Phone Number: I certify that 1 am thejegal, information is Signature er and that all the above the best of my knowledge Date APPLICANT: Mailing Address: Phone Number: ( Signature Date CIVIL ENGINEER: wailing Address; Phone Number Stats Registration Number: SOILS ENGINEER: Firm: Mailing Address:ASt )Phone Numoer: (~7bO)5 '- J " '- State Registration Number: <•? g? LANDSCAPE ARCHITECT: Firm: Mailing Address: ADDITIONAL COMMENTS: Phone Number:( State Registration Number. IMPROVEMENT VALUATION 1. What water district is the proposed project located in {circle one}? CjCarlsbad Municipal Water DistricT} Olivenhain Vallecitos 2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15% contingency fee. for water and reclaimed water improvements (if applicable)? 3. What is the total cost estimate, including the 15% contingency fee, for sewer (for Carlsbad Municipal Water District only), street, public (median) landscape and irrigation, and drainage improvements (if applicable)? 4. What is the total cost of landscape and irrigation improvements on private property (if applicable)? 4. / 5 %>* — cut fill GRAD1NG QUANTITIES cv remedial *?*?OQ £ cv import/export cy OOCWMISFOFSM&APP1.ICATIOM tNO FUWCHECK OR PROCESSING REV 8/10/97 APPLICATION FOR: (/ all that apply) Q Adjustment Plat Q Certificate of Compliance Q Dedication of Easement Type: Type: Q Encroachment Permit Q Engineering Standards Variance J5T Final Map ^"Grading Plancheck Q Grading J&T Improvement Plancheck Q Landscape Plancheck Q Parcel Map Q Quitclaim of Easement Type: Type: Q Reversion to Acreage Q Street Vacation Q Tentative Parcel Map Q Certificate of Correction Q Covenant for Easement Q Substantial Conformance Exhibit FOR CITY USE ONLY Plancheck Number Type ADJP COC DOE ENCROACH ESV FM GRPC GRADING IPC LPC PM QUITC RTA STV MS CCOR COVE SCE APPLICATION ACCEPTED BYL^iu-^>2^^e^L<2r >MASTER PROJECT ID: RECEIPT NUMBER: PRELIMINARY SIERRA SYSTEM INPUT INITIAL: SIERRA SYSTEM INPUT INITIAL: R:BASE INPUT INITIAL: MASTER FILE NUMBER: F Q OTHER: Drawing Number R^^-JV W-'W 3-?f-°! Project I.D. cm-jy or<T7-;?y cr*??-^ Deposit/Fees Paid vm8* Z750& -?3££&~ t!~.' '-•• • •' i- Lt,, -,-..-. • DATE STAMP APPLICATION RECEIVED DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV. 6/10S7 w,t ^fe ^^B!W»CITY OF CARLSBAD LAND USE REVIEW APPLICATION 1) APPLICATIONS APPLIED FOR: (C Q Administrative Permit - 2nd Dwelling Unit O Administrative Variance 0/ Coastal Development Permit Ref. CDP 97-58 |~| Conditional Use Permit O Condominium Permit [~1 Environmental Impact Assessment j~] General Plan Amendment Q Hillside Development Permit Q Local Coastal Plan Amendment n Master Plan |~l Non-Residential Planned Development Q Planned Development Permit HECK BOXES) IFOR DEPARTMENT USE ONLY) W-391 Q Planned Industrial Permit Q . Planning Commission Determination |~| Precise Development Plan Q Redevelopment Permit Q Site Development Plan O Special Use Permit [3 Specific Plan Q Tontotivc Pofocl Mop Obtain from Engineering Department O Tentative Tract Map []] Variance O Zone Change IjJ List other applications not specified (FOR DEPARTMENT USE ONLY) ninor j Amendment 2) 3) 4) ASSESSOR PARCEL NO{S).: PROJECT NAME: Lot 7 207-061-35 Carlsbad Park Estates BRIEF DESCRIPTION OF PROJECT:14 single family detached residentiallhomes with—second—dwelling unite—on Lots—1—aja-d—8— 5) OWNER NAME (Print Or Carlsbad Estate Type) s LLC MAILING ADDRESS 1 10 Juniper St . CITY AND STATE San Diego, CA ZIP 92101 ( TELEPHONE 6*9$ 702-2042 1 CERTIFY THAT 1 AM THE LEGAL OWNER AND THAT ALL THE ABOVE INFORMATION IS X^RUE AND CORRECT TO THE BEST OF MY SIGNATURE f j DATE 6) APPLICANT NAME (Print or Type) Carlsbad Estates LLC MAILING ADDRESS 1 10 Juniper St . CITY AND STATE ZIP San Diego, CA 92 10 1 (6 19 TELEPHONE ) 702-2042 1 CERTIFY THAT 1 AM THE LEGAL REPRESENTATIVE OF THE OWNER AMD THA^ALL THE ABOVE INFORMATION IS TRUE AND CORBte^TO THE/6EST OF MY KNOWLEDGE. SIGNATURE / \DATE 7) BRIEF LEGAL DESCRIPTION Portion of Lot 1 Rancho Agua Hedionda Map 00823 NOTE: A PROPOSED PROJECT REQUIRING Ml A PROPOSED PROJECT REQUIRING ONLY ONE Form 16 LC-ADDI ir ATinwc »e.FJLEO, MUST BE SUBMITTED PRIOR TO 3:30 P.M. i SUBMITTED PRIOR TO 4:00 P.M. PAGE 1 OF 2 8) LOCATION 3926 Park Dr. Carlsbad, CA 92008 ON THE BETWEEN STREET ADDRESS east SIDE OF Park Dr. , (NORTH, SOUTH, EAST. WEST) (NAME OF STREET) Monroe St .AND Tamarack Ave . j (NAME OF STREET) 9) LOCAL FACILITIES MANAGEMENT ZONE 10) PROPOSED NUMBER OF LOTS 13) TYPE OF SUBDIVISION 16) PERCENTAGE OF PROPOSED PROJECT IN OPEN SPACE 19) GROSS SITE ACREAGE 22) EXISTING ZONINGper Res. 4325 11) NUMBER OF EXISTING RESIDENTIAL UNITS 14) PROPOSED IND OFFICE/ SQUARE FOOTAGE 17) PROPOSED INCREASE IN ADT 20) EXISTING GENERAL PLAN dated 7/15/98 (2C 97-08) 23) PPROPOSED ZONING (NAME OF STREET) 1 2) PROPOSED NUMBER OF RESIDENTIAL UNITS 15) PROPOSED COMM SQUARE FOOTAGE 1 8) PROPOSED SEWER USAGE IN EDU (I exist ing) 21) PROPOSED GENERAL PLAN DESIGNATION 24)IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY BE NECESSARY FOR MEMBERS OF CITY STAFF, PLANNING COMMISSIONERS, DESIGN REVIEW BOARD MEMEBERS OR CITY COUNCIL MEMBERS TO INSPECT AND EtffrER THE PROPERTY THAT IS THE SUBJECT OF THIS APPLICATION. I/WE CONSENT TO ENTW? FOR TOIS PURPOSE SIGNATURE FOR CITY USE ONLY FEE COMPUTATION . APPLICATION TYPE TOTAL FEE REQUIRED FEE REQUIRED RECEIVED NOV 0 \ 1999 CITY OF CARLSBAD PLANNING DEFT. DATE STAMP APPLICATION RECEIVED R-EgEIVED BY: DATE FEE PAID Form 16 m RECEIPT NO. PAGE 2 OF 2 LAND OR: (CHECKS (FOR DEPARTMENT USE ONLY) 1) D D D D D D D D D Administrative Permit - 2nd Dwelling Unit Administrative Variance CR°eaSftal Conditional Use Permit Condominium Permit Environmental Impact Assessment General Plan Amendment Hillside Development Permit Local Coastal Plan Amendment Master Plan Non-Residential Planned Development Planned Development Permit CDP D D D D D D D D D D D Planning Commission Determination Precise Development Plan Redevelopment Permit Site Development Plan Special Use Permit Specific Plan Tontotivc Parcel Map Obtain from Engineering Department Tentative Tract Map Variance Zone Change List other applications not specified minor ammendment 2) 3) 4) ^SESSOR PARCEL NO(S).: PROJECT NAME: 207-06 1-07-00 BRIEF DESCRIPTION OF PROJECT:14 single family detached residential homes 5) OWNER NAME (Print or Carlsbad Estates Type) LLC MAILING ADDRESS 1 10 Juniper St . CITY AND STATE San Diego, CA ZIP 92101 1 CERTIFY THAT 1 AM THE LEGAL OWNER AND INFORMATION IS JftffL AND CORRECT TO SIGNATURE / ) TELEPHONE (6 19)702-2042 THAT ALL THE ABOVE THE BEST OF MY (-J/-J /<?Q I I ' DATE 6) APPLICANT NAME (Print or Type) Carlsbad Estates LLC MAILING ADDRESS 1 10 Juniper S CITY AND STATE San Diego, CA 1 CERTIFY THAT 1 AM/ OWNER ANOxTHAT AfcCT CORR^CT/D TH^BK^O SIGNATURE t . ZIP TELEPHONE 92101 (619)702-204 rNE LEGAL REPRESENTATIVE OF *E ABOVE INFORMATION IS TRUE F MY KNOWLEDGE. "^V- J ' ( } DATE THE AND 7 7) BRIEF LEGAL DESCRIPTION Portion of Lot 1 Rancho Agua Hedionda Map 000823 NOTE: A PROPOSED PROJECT REQUIRING MULTIPLE APPLICATIONS BE FILED, MUST BE SUBMITTED PRIOR TO 3:30 P.M. A PROPOSED PROJECT REQUIRING ONLY ONE APPLICATION BE FILED. MUST BE SUBMITTED PRIOR TO 4:00 P.M. Form 16 PAGE 1 OF PROJECT PLAN REVIEW COMPLETION The following project plan have been reviewed and are recommended for approval: Sheets No.: Project Name: Project No.: ^-- ^ Dwg. No.:. 1 through DECLARATION OF RESPONSIBLE CHARGE I hereby declare that I have exercised responsible charge over the plan review of this project as defined in Section 8703 of the Business and Professions Code to determine that the plans are found to be in substantial compliance with applicable codes and standards. Plan review of these project drawings does not relieve the Engineer of Work of the responsibilities with state and local ordinances. Signed Helming Engineering Co., Inc. 5962 La Place Court, Suite 245 Carlsbad, CA 92008 (760)431-5999 Date Douglas L. Helming, RCE 23874 Expiration Date 12/31/01 PROJECT PLAN REVIEW COMPLETION The following project plan have been reviewed and are recommended for approval: Proiect Name: W\CVA-\ =» «-^Aa c*. vXi f\ r\ "* C3\ "™*\ *^ \taA--Project No.: ^ — ' > >• v — 1" \* Owe. No.: ~^>"\ ^ -^ Av Sheets No.: I through vSvjo^^, H- DECLARATION OF RESPONSIBLE CHARGE I hereby declare that I have exercised responsible charge over the plan review of this project as defined in Section 8703 of the Business and Professions Code to determine that the plans are found to be in substantial compliance with applicable codes and standards. Plan review of these project drawings does not relieve the Engineer of Work of the responsibilities with state and local ordinances. /I Signed Helming Engineering Co., Inc. 5962 La Place Court, Suite 245 Carlsbad, CA 92008 (760)431-5999 Date Douglas L. Helming, RCE 23874 Expiration Date 12/31 /01 3 CITY OF CARLSBAD JANE MOBALDI 1 200 CARLSBAD VILLAGE DRIVE ASSISTANT CITY ATTORNEY CARLSBAD, CALIFORNIA 92008-1989 (760) 434-2891 DAMIEN B. BROWER FAX: (760) 434-8367 DEPUTY CITY ATTORNEY RANDEE HARLIBCINDIE K. MCMAHON January 20, 2000 SECRETARY T0 C1TYATTORNEY DEPUTY CITY ATTORNEY ARD,g SE|DEL LEGAL SECRETARY/PARALEGAL Ms. Nayda Prentice RECEIVED 3955 Monroe Street Carlsbad, CA 92008 JAN 2 4 2000 RE: MAY SUBDIVISION ENGINEERING Dear Ms. Prentice: DEPARTMENT I received your January 11, 2000, letter regarding your unanswered concerns about the May subdivision. Many of the concerns you expressed in your letter are technical, rather than legal in nature. My comments below are confined to the legal concerns and I have referred the technical concerns to the City Manager for a response. Your legal concerns appear to fall into two categories. First, that the goals outlined in Chapter 11.06 of the Grading Ordinance relating to compatibility and safety were not met for the project. Second, that the grading plan for the project was not specifically addressed in either the staff presentations or in the notices issued about the public hearings. With regard to the first issue, it is important to bear in mind that the sections you are referring to are "goals," rather than mandates. Though the City strives hard to achieve it goals, failure to do so is not generally unlawful. In fact, sometimes, in the context of a particular project, goals conflict with one another. For instance, sometimes the most aesthetically pleasing design is not the safest design. In those cases, it is not possible for the City decision makers to achieve both goals and they must decide which goal is more important under the circumstances. It is also! important to bear in mind that the words you have emphasized in your letter (i.e., "most," "least," "maximum," and "best") are all adjectives and, therefore, all have a subjective element to them. For instance, what one person might think is the "most" compatible alternative, another person might think is the "least." Ultimately, the decision regarding what is "most," "least," "maximum," or "best" rests with the City Council. With regard to the second issue, applicable law requires that a notice of public hearing contain a "general" description or explanation of the matter to be considered. The law does not require the City to itemize every issue that will be discussed, nor would it be practical for the City to do so. An application for a subdivision map involves dozens of issues, including the appropriateness of the developer's proposed grading plan. Staff has no way of accurately predicting in advance of the notice which, if any, of these issues will generate public testimony and discussion by the Planning Commission or City Council. As Messrs. Hubbs and Orenyak explained in their November 1,1999, letter, one of the purposes of providing notice is to allow interested parties an opportunity to ask questions of staff and review copies of the project plans in advance of the public hearing. Since our Municipal Code requires the submittal of a proposed grading plan with or on the tentative map, anyone who asked to review the project file would have had access to this information. As for the staff presentations, I am not aware of any laws that specify what must be contained in them. Because staff provides the Planning Commission and the City Council with detailed written reports which are available to the public in advance of each Commission and Council meeting, staff generally tries to limit their presentations to what they feel are the key points. The Commission and Council members then have an opportunity to ask staff any questions they might have about the project. In addition, if staff does not address an issue that a member of the public feels is important, the public hearing process allows the member of public to raise the issue directly with the Commission and the Council. Consequently, even if staff did not specifically address the grading plan in their presentations, this did not prevent the issue from being raised by the public or discussed by the Commission or the City Council. Lastly, you imply in your letter that the City Council should revisit this project and you want me to set up meeting for you and them to discuss this matter. Though you are, of course, free to meet with the Mayor and City Council members individually, the State's Open Meeting Laws prevent me from setting up a private meeting between you and them as a group. In addition, you should know that once a tentative map is approved, the permits are issued, and the developer starts work on a project, the City Council generally has no ability to add conditions or make changes to the project. The length of time that has elapsed since the project was approved also prevents the City Council's ability to revisit it. I hope this information helps allay your concerns about the propriety of the approval process. Should you have further questions regarding any of the above information, please let me know. Very truly yours, RONALD R. BALL City Attorney c: Mayor and Council City Manager 2- A-OO; 3:31PM;;619 434S367 Nayda J. Prentice 3955 Monroe Street Carlsbad, CA. 92008 January 11,2000 Mr. Ron Ball Carlsbad City Attorney Dear Mr. Ball: Sometime ago Mayor Bud Lewis told me he was giving you a letter I wrote and that he would have you answer it fully. Instead you gave the letter to Lloyd Hubbs who ignored some of the most important issues pointed out in the letter. You may recall we spoke on the phone and I promised to write you about the issues in my letter of September 1,1999 and the 8 page memo dated October 11,1999 mat I felt were ignored in the response dated November 1,1999. And, you promised to address all of them. Also, at the end of paragraph 1 in the November response it states "If the City has failed to adequately address an area of concern, kindly inform us". I am doing so now. Please respond to the following The most important issue which was pointed out in paragraph 1 is: "ensuring that future development of lands occurs in the manner MOST compatible with surrounding areas and so as to have the LEAST EFFECT UPON OTHER PERSONS OR LANDS, or upon the general public;" t This is a very clear statement and can not be arbitrarily interpreted to mean anything the City chooses it to mean. The words "MOST" and "LEAST" were written for a reason and it was not intended for them to be ignored I have an original site map which clearly displays a more compatible way to grade the property. This was inspected by the City engineers and the developer forced to change it Same applies to the two story homes approved They are not MOST compatible with the surrounding neighborhood It is clear this criteria should have been applied when the City approved two story houses be erected on the site. Why have they gone against their own code related to this property? I want the City to explain how the grading of the May Project conforms to this paragraph in the Carlsbad City Code Chapter 11.06 since it totally ignored the natural terrain.. Also ignored was this quote ''Encouraging the planning, design and development of building sites in such fashion as to provide the MAXIMUM IN SAFETY and human enjoyment, while adapting development to, and taking advantage of, the BEST use of the natural terrain:" Why has my safety been totally ignored by the the City planners allowing the wanton destruction of my privacy? The only concern the City engineers have shown regarding the preservation of privacy has been for the developers property requiring an ugly solid block wall be erected along my property line. The City required'grading elevation allows a clear unobstructed view into my bedroom, dressing room and bathroom from the adjacent property and the proposed driveway. If a crime is committed upon myself or my property, the City will be held responsible since it is dear that the City's engineering department insisted on changing the initial tentative map making my home vulnerable to invasion. 2- 4-OO; 3:31PM;>19 4348367 #3/4 As for the reply regarding the Public notices and the public meeting held before the City Planning Commission and the City Council why was there absolutely no mention of the grading heights in the presentation made by the "staff*. Anne Hysong mentioned all the positive points but no negative ones. Nor, did the ads or public notices mention that the grading was also to be approved. I believe we are entitled to an explanation of mis oversight Both the Commission and the Council members were shocked when they saw the negative impact the grading has on my property. Why was the public not informed of the devastating effect mis project would have on the entire neighborhood? It was not absolutely necessary for the City to require the present Grading Design. There are exceptions to the arbitrary code requiring property to drain to the street One example is the house being built on Skyline on the west side of the street There are many others throughout the City.. I have a copy of the original tentative map and grading plan submitted to the City which allowed the lots to drain in a much safer and more compatible matter. Why did the engineering department require the changes be made in such a way as to endanger my home and safety? The original map proposes a more practical drainage system. I request an answer to this questioal would like to meet with the Mayor and City Cfouncil members and show it to them. When I requested a copy from the Planning Department they said they had destroyed mis plan but I managed to obtain it elsewhere. This was the tenative map the neighbors were initialy shown when we met with Mr. May in his home several years ago and we were under the impression that this was the plan being approved by the Planning Commission and City Council. Please set up an appointment so we can examine mis map together and you, can explain why it was changed by the engineering in such a way as to destroy the ambience of the entuire surrounding community despite petitions and appeals by the citizens. You also state the "design follows the previously existing topography: that is, the pads on Monroe Street are higher than the pads on the proposed cul-de-sac because the previous greenhouses along Monroe Street were higher than those on Park Drive." This statement is blatantly false! I have many pictures of the property as it was previous to this outragious grading. The land was all level with the street and with my property and level with Park Drive. It followed the gentle slope of both streets! I believe you should be interested in vewing these pictures and I will bring them to the meeting I expect you to arrange. Do answer this issue in writing. If the pads had not been raised above the surrounding terrain the addtitonal soils would not have been required and the contractor could have maintainted the "0" fill as stated on the tenan've map presented to the public. The, last map, which we now have, let all of us to believe there would be no soil imported. A layrrfan could not know the lots were to be raised to such a height As to the 'Two Story Homes" explanation it is absurd The staff had a good strong basis for requiring most of the homes to be one story. Two story homes are not in keeping with the general neighborhood. The integrety of the neighborhood is sacrosanct and should be maintained at all costs as stated in the City's code. You failed to address mis in your answer. Please explain the staff's refusing to use this issue to keep the house next door to me and others one story. The next door house will be placed on a land fill raising it over six feet above my lot creating an unacceptable invasion of my privacy which a fence around the rear yard will not sufficiently address. As for other surrounding homeowners adding 2- 4-OO; 3:31PM;-.619 434836T a second story it is extremely unlikely since these homes have been here for many years and the occupants enjoy the ambiance of a one story neighborhood which allows everyone to have a pleasent view. The project's two story homes are definitly an abhorent intrusion into this neighborhood. The developer promised us all to keep the houses in conformance with the neighborhood. He should be required to do so. He phoned this morning promising to have a professional "gardener" trim my pine tree which interfered with the back hoe. He said he would have the gardener contact me and I could see that it was trimmed according to my liking. Later I was told they were just going to cut off branches whereever they chose without consulting me. It appears this man can not keep his word Now, I would like to know who measured my chain link fence and gave you the information that the existing chain liruj> fence is not in conformance with the current pool fence code. It is exactly five feet high as required by the City code. I want you to have it remeasured and send me a letter stating it is •conforming to City code. I mentioned this during our phone call but, to my knowledge, mis has never been done. To this date my fence has not been repaired in a manner which restored it to its previous condition. It is wavy and has areas mat are not as they were before the contractor's equipment was driven into it time after time. I want him to either remove the fence and attach the side and rear comers to his block wall, totally repair my fence in a manner acceptable to me or replace it at once. Any damage done to my yard would be corrected as well. Please see to mis and answer my complaint in writing. My husband, Mr. Gordon R. Prentice, appeared before the City Council and requested the City buy this project as MayorBud Lewis mentioned when he viewed the problem and the danger to my home. It was the only suggestion he could give us as to how to stop this project There still have been no pads poured and I wish the City to buy the project Since they can easily give $75,000. to two citizen volunteer committees, the cost of my request for my safety and privacy is not unreasonable We have never received an answer to that request. The meeting and Gordon's request are on video tape. The drainage has yet to be started and the situation has been made worse by the new sidewalk rising above my property's street frontage and causing the water to collect and run directly onto my lot It appears that the contractor is about to install a round plastic pipe instead of the "v" ditch which Mr. Van Peske designed and promised us. I can not be sure because I don't understand what they are doing. Also the set back from the property line is not what the City requires. Please have the site inspected and let me know exactly what IS happening. I would like the City to construct a high berm directly in front of my home to stop the water from accumilating on my property. Thanks to the powers that be, we haven't had a heavy rain or we would have been flooded out due to the fill piled up on the next door property's six foot rise and the construction of street and sidewalk stopping short of our home and damming the water. We have been informed time after time that the sidewalk and street would be continued across our property but we are still waiting. Why?. When WILL the City start this project? Please answer this question in writing. The six foot wall will not solve the danger of neighborhood children or thugs going from the six foot rise above our property on to the six foot fence which will be even with their back yard and jumping down into our yard If, in the future, any one is injured attempting to do this the City will be totally responsiable since this was the design the City engeneers insisted upon. ~ City of Carlsbad Public Works - Engineering August 9, 1999 Sandra and Gordon Prentice 3955 Monroe Street Carlsbad, CA 92008 MAY SUBDIVISION: CT 97-24 This is in response to your undated letter addressed to Lloyd Hubbs and a host of other City employees, Planning Commissioners and Council Members. In your letter you expressed several concerns, both related to the subdivision and other safety matters in the area. I have been asked to respond to your letter and will attempt to address all of your concerns the best I can. As you may remember, I met with you and several other property owners at the City Council meeting on Tuesday, July 27, 1999. At the direction of the City Council we all adjourned to the City Manager's Conference Room to go over the development plans, listen to your concerns, and give you any factual information that we had. I again met with you on Wednesday morning with the grading contractor where we looked at your property and the elevations and drainage problems that you have and how the project may or may not impact your drainage problems. Concerning the grading to the project, the rear of that property is approximately five feet above the low point adjacent to your fence line. The rear of that new pad, known as Lot 14, had approximately 5 feet of fill placed on it. This was done to drain the lot towards the street which is the City requirement. The drainage to the front yard is required to avoid possible problems that you are experiencing with the drainage from other private property passing through your property onto your neighbors. The standard for draining to the street is done to make sure that each property owner drains their property to the public street and not onto other private property. I will be reviewing the block wall plans that will separate your property from Lot 14. I have asked the contractor and the inspector to make sure that I see those plans to satisfy myself that your drainage concerns will be addressed in the best possible manner. Regarding your request for a written guarantee that your property would not experience any damages, as I stated before, neither I nor any other City employee can give you a written guarantee. We do, however, attempt to review these projects the best we can to ensure that concerns such as yours are addressed in the design of the subdivision. As I have stated before, I will do what I can to guarantee myself that your drainage problem will be adequately addressed. 2O75 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (76O) 438-1161 • FAX (760) 431-5769 August 9, 1999 MAY SUBDIVISION: CT 97-24 Page 2 One of your other concerns was about the lot on the corner of Park and Monroe being filled ten feet and you had thought this was the developer's way of building what you consider a non-allowed three story structure on the property. However, three stories are allowed in the City in these types of zones. The maximum height limit is 35 feet measured from what the existing grade of the property was prior to the new grading work being done. The rear of that lot was raised approximately six feet and the proposed home is 26 to 28 feet in height added to the six feet of fill that would make the highest portion of the building 32 to 34 feet above the lowest elevation of the pre-existing ground. Therefore, the development of that lot is within City required standards. In order to help with your drainage concern, I have looked into the scheduling of curb, gutter and sidewalk improvements in your area. The City does have scheduled for this fiscal year, 1999-2000, $225,000 for the design and installation of curb, gutter, sidewalk, and pavement widening for Monroe Street. Design work has not been done on this yet. It is not known whether the $225,000 will be sufficient to do both sides of the street on Monroe. The first priority for those improvements is on your side of the street up to the intersection with Sunnyhill. The engineer in charge of the capital improvement program has been directed to prepare a request for additional monies to make sure that if approved we can have sufficient monies to finish off Monroe Street. It is not known at this time if that request will be approved. I wanted to assure you that the Mayor and City Council are aware of the neighborhood's concerns and are concerned themselves. That is why City staff has been directed to spend so much time to verify that what is constructed is what was approved by the Planning Commission and City Council. We have reported to them that the existing grades are in substantial conformance to what was approved. Since the developer has done things according to his City approval, the City cannot direct him to change his design. The City does not use public funds for private development and, therefore, as best I can determine, will not be using any public funds to change the grading of the site. In your letter, you felt that the City does use public funds and you referenced the re-routing of Rancho Santa Fe Road. The estimated cost of Rancho Santa Fe Road is approximately $30,000,000, however, all of that money comes from the developers in that area, as well as citywide and federal monies that have been obtained for the construction of that roadway. No City of Carlsbad tax monies are going to be used for the realignment of that roadway. We will continue to review the compliance of this project with its approvals and we will do what we can to limit the impact of the construction on the surrounding neighborhood. At this point, I have not heard any discussion from the City leadership to cause any substantial changes to the existing grades on the May Subdivision. August 9, 1999 MAY SUBDIVISION: CT 97-24 PageS I fully understand that I have probably not alleviated your fears or the neighbors concerns with the impact to the neighborhood, however, I would like to assure you that City staff is always concerned with the surrounding neighborhood and we go above and beyond what is required by State law to notify the citizens of Carlsbad of developments such as this. Staff, Planning Commission and City Council place high value on input from the citizens. We do everything that we can to notify neighbors of developments and solicit their comments and do the best we can to incorporate those comments into the design of the project. Staff, however, is governed by State and City codes and regulations and when a developer complies with all of those codes and regulations, City staff cannot recommend denial. City staff continues to be available to listen to your concerns and answer what questions we can for you. I appreciate you taking the time to prepare your letter as well as showing up at the City Council meeting and meeting with me. If you have further questions, please contact me at (760) 438-1161, extension 4333. Sincerely, ROBERT J. WOJCIK, P.E. Principal Civil Engineer RJWrjb c: City Manager Public Works Director Deputy City Engineer, Transportation Associate Engineer, Ken Quon City of Carlsbad Public Works — Engineering February 28, 2000 Ms. Nayda J. Prentice 3955 Monroe Street Carlsbad, CA 92008 RE: MAY SUBDIVISION C.T. 97-24 Dear Ms. Prentice: Your January 11, 2000 letter to the City Attorney regarding unanswered concerns about the May Subdivision has been referred to me to address the technical concerns. The City Attorney has already responded to the legal concerns mentioned in your letter. Privacy Your letter expresses concern that the design of the May Subdivision destroys your privacy. Staff required the developer to construct a split-face block wall along property line. Unfortunately, it is not possible to design subdivisions so that all windows in every house are not visible from adjacent properties. There will also be a solid fence installed at the top of slope adjacent to your property. Grading and Drainage Design The City standards are designed to insure the safety of it's citizens. Cross-lot drainage has created drainage problems in the past, so it is discouraged where other alternatives are possible. In your letter you state that "the land was all level with the street" and "it followed the gentle slope of both streets". Since Monroe Street falls to Park Drive, and Park Drive falls away from the intersection with Monroe Street, the statement that the previous greenhouses along Monroe Street were higher than those on Park Drive is correct, and can be verified by reviewing the tentative map for the project. Two Story Homes Staff feels that the mix of one and two story homes as approved is compatible with the adjoining neighborhood. I understand from your letter that you disagree. Chain Link Fence Height The height of your chain link fence was measured by Pat Kelley, Principal Building Inspector. Mr. Kelley's measurements indicate that your fence does not currently meet code, and so he is unable to write a letter stating that it does. If your side and rear yard fences of appropriate height are connected to the May Subdivision block wall, the code will be met. Any damage done to your property in the course of construction should be fixed by the contractor. The project inspector will be notified by a copy of this letter to check for damage to adjoining properties. Drainage When completed, the construction of street widening on Monroe Street should not divert additional water onto your property. The May Subdivision is constructing a concrete brow ditch 1635 Faraday Avenue • Carlsbad, CA 92OO8-7314 • (76O) 6O2-272O • FAX (760) 602-8562 February 28,2000 May Subdivision CT 97-24 v Page 2 adjacent to the side of your property, and leaving holes in the wall so that drainage from your property is not blocked. Your letter mentions the construction of a small plastic pipe adjacent to your property. This was likely a subdrain to handle any groundwater, which is a standard construction practice. The City is having plans prepared for the continuation of street improvements to the intersection of Monroe Street and Sunnyhill Drive. Progress on the design has been complicated by attempting to address the concerns of other adjacent citizens in the design, but it is proceeding. It will likely take another 3 months to complete the design review process. Construction would start up to six months after Council has authorized bidding the project. I believe the other comments contained in your letter have either been addressed by the previous response by the City Attorney, or are statements of opinion rather than a request for information. If I have failed to answer any specific questions, please feel free to contact me. Sincerely, ROBERT J. WOJCIK, P.I Deputy City Engineer - Land Development Section City Attorney City Manager Principal Construction Inspector •«»-,*» City of Carlsbad Public Works — Engineering Augusts, 1999 Paul & Eileen Linden 3940 Monroe Street Carlsbad, CA 92009 MAY SUBDIVISION: CT 97-24 I received your letter dated July 27, 1999 regarding the May Subdivision in which you had asked several questions. I have been asked to respond to those questions. Your first question regarded whether the City Council was aware that the grading for the subdivision was destroying the integrity of the neighborhood. City Council is well aware that there are neighborhood concerns regarding the subdivision. They have visited the site personally and have had several additional meetings with staff. Beyond those concerns, I have not heard from any of the Council members that they feel that the subdivision is destroying the integrity of the neighborhood. The second question asked when the residents were given a chance to comment on the grading plans for the subdivision. Multiple notices and opportunities were made available to the residents as follows. On May 22, 1998, the Planning Department published a notice in the local papers notifying all interested parties that an environmental review and the accompanying documents describing the project were available for review at the City's Planning Department. On June 18, 1998, a second notice was published in the local papers notifying interested parties that the project was scheduled for a Planning Commission hearing. On July 1, 1998, that hearing was held and was an open public meeting. Prior to the Planning Commission hearing, a mailing was sent out to all residents within 600 feet of the subdivision specifically notifying them of the hearing on the project. That notice also stated that copies of the plans were available for review at not only the City Planning Department, but were also available at the City Clerk's Office, the Carlsbad Main Library, the La Costa Branch Library, and the Coastal Commission District Office. The project planner's name and phone number were also included in that notice for anyone interested in making arrangements to review those plans. Subsequent to that Planning Commission hearing, an appeal was filed by one of the residents and a second public hearing was scheduled. This one was with the City Council. Again, a notice was published in the local papers on August 28, 1998 notifying all interested parties that the public hearing would be held and again giving information on where the documents could be reviewed and who the project planner was. 2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (76O) 438-1161 • FAX (760) 431-5769 *„*<••• Augusts, 1999 MAY SUBDIVISION, CT 97-24 Page 2 The City Council meeting was held on September 4, 1998. This was also a public meeting and ten days prior to the meeting a second mailing to residents within a 600-foot radius was sent out notifying everyone of the hearing and again giving information on who could be contacted for further information. There was a question about the possibility of the lots along Monroe Street sloping to the rear instead of sloping towards the street. That would not comply with the City adopted design standards for the subdivision. The standards require that all lots drain to the street or to a publicly dedicated drainage structure. That subdivision does not have any publicly dedicated drainage structures in the rear of the lots, therefore, the developer was directed to comply with the City standards and drain the lots to Monroe Street. This was the main reason that the pads along Monroe Street were built up in elevation. There was a question as to whether the developer had misled the City Council. To my knowledge, the City Council was aware of the plans for the project. Those plans included the grading quantities, as well as the pad elevations. Therefore, the City Council had the information in-hand to make their own determination and in so doing they were aware they were approving cut and fill amounts in the project which would raise some elevations. There was a question as to whether an Environmental Impact Report was required. The answer to that is no. A Mitigated Negative Declaration was issued by the Planning Director and approved by Planning Commission and City Council. The main mitigation had to do with testing for pesticides and other chemicals in the soils on the site. I hope I have addressed your questions in one manner or another. If you would like further information on the project, you may contact Anne Hysong at (760) 438-1161, extension 4477, or Ken Quon at (760) 438-1161, extension 4380. Sincerely, ROBERT J. WOJCIK, P.E. Principal Civil Engineer RJW:jb c: City Manager Public Works Director Associate Planner, Anne Hysong Associate Engineer, Ken Quon Joe Garuba Paul & Eileen Linden 3940 Monroe Street Carlsbad, CA 92009 David & Kathleen Rippberger 3920 Monroe Street Carlsbad, CA 92008 Bill & Cathy Tieman 3966 Monroe Street Carlsbad, CA 92008 Gordon & Sandra Prentice 3955 Monroe Street Carlsbad, CA 92008 June Nellums 3930 Monroe Street Carlsbad, CA 92008 Rudy & Sandra Kempter 3988 Monroe Street Carlsbad, CA 92008 Kelly G. Ng 3900 Monroe Street Carlsbad, CA 92008 Roger & Betty Lou Fox 3905 Park Drive Carlsbad, CA 92008 City of Carlsbad Public Works — Engineering August 13, 1999 Steve and Sherryl Ford 3869 Woodvale Drive Carlsbad, CA 92008 MAY SUBDIVISION: CT 97-24 I received your letter dated August 11, 1999 regarding the May Subdivision in which you made several statements. I have been asked to respond to those statements. An application for the project was submitted December 23, 1997. It was approved by the City Planning Commission on July 15, 1998 approximately seven months later. The project was appealed to the City Council and approved by that body on September 8, 1998. That is an average time period for a project of this size. To say that the "project was just pushed through without any consideration of the neighbors" might not be considered accurate, especially given the number of opportunities for residents to comment listed below. I have confirmed that notices were mailed directly to your home prior to both the July 1, 1998 and September 8, 1998 public hearings. On May 22, 1998, the Planning Department published a notice in the local papers notifying all interested parties that an environmental review and the accompanying documents describing the project were available for review at the City's Planning Department. On June 18, 1998, a second notice was published in the local papers notifying interested parties that the project was scheduled for a Planning Commission hearing. On July 1, 1998, that hearing was held and was an open public meeting. Prior to the Planning Commission hearing, a mailing was sent out to all residents within 600 feet of the subdivision specifically notifying them of the hearing on the project. That notice also stated that copies of the plans were available for review at not only the City Planning Department, but were also available at the City Clerk's Office, the Carlsbad Main Library, the La Costa Branch Library, and the Coastal Commission District Office. The project planner's name and phone number were also included in that notice for anyone interested in making arrangements to review those plans. Subsequent to that Planning Commission hearing, an appeal was filed by one of the residents and a second public hearing was scheduled. This hearing was with the City Council. Again, a notice was published in the local papers on August 28, 1998 notifying all interested parties that the public hearing would be held and again giving information on where the documents could be reviewed and who the project planner was. 2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (760) 438-1161 • FAX (760) 431-5769 August 9, 1999 MAY SUBDIVISION, CT 97-24 Page 2 The City Council meeting was held on September 8, 1998. This was also a public meeting and ten days prior to the meeting a second mailing to residents within a 600-foot radius was sent out notifying everyone of the hearing and again giving information on who could be contacted for further information. City staff's responsibility in reviewing the project is to make sure that development complies with the City's codes, standards, ordinances and policies. These rules apply citywide so that all property owners can enjoy equal property rights. In this case, all of the City rules were complied with and constructing two story homes is a common property right for everyone in the City. Therefore, staff can not deny the request for two stories The project will be returning to the City Council for permits for the homes. This will be a public hearing and notices will be sent out informing people of the time and place. If you would like further information on the project, you may contact Anne Hysong for planning questions at (760) 438-1161, extension 4477, or Ken Quon for engineering questions at (760) 438-1161, extension 4380. Sincerely, ROBERT J. WOJCIK, P.E. Principal Civil Engineer RJW:jb City Manager Public Works Director Associate Planner, Anne Hysong Associate Engineer, Ken Quon Joe Garuba ALL RECEIVED OCF 25 J999 ENGINEERING DEPARTMENT J ^^ Vincent J. Ermovick2614W.CallePuebla Tucson, AZ 85745-2509 W -^^ s~ r~ <3City of Carlsbad Public Works — Engineering August 13, 1999 Steve and Sherry! Ford 3869 Woodvale Drive Carlsbad, CA 92008 MAY SUBDIVISION: CT 97-24 I received your letter dated August 11, 1999 regarding the May Subdivision in which you made several statements. I have been asked to respond to those statements. An application for the project was submitted December 23, 1997. It was approved by the City Planning Commission on July 15, 1998 approximately seven months later. The project was appealed to the City Council and approved by that body on September 8, 1998. That is an average time period for a project of this size. To say that the "project was just pushed through without any consideration of the neighbors" might not be considered accurate, especially given the number of opportunities for residents to comment listed below. I have confirmed that notices were mailed directly to your home prior to both the July 1, 1998 and September 8, 1998 public hearings. On May 22, 1998, the Planning Department published a notice in the local papers notifying all interested parties that an environmental review and the accompanying documents describing the project were available for review at the City's Planning Department. On June 18, 1998, a second notice was published in the local papers notifying interested parties that the project was scheduled for a Planning Commission hearing. On July 1, 1998, that hearing was held and was an open public meeting. Prior to the Planning Commission hearing, a mailing was sent out to all residents within 600 feet of the subdivision specifically, notifying them of the hearing on the project. That notice also stated that copies of the plans were available for review at not only the City Planning Department, but were also available at the City Clerk's Office, the Carlsbad Main Library, the La Costa Branch Library, and the Coastal Commission District Office. The project planner's name and phone number were also included in that notice for anyone interested in making arrangements to review those plans. Subsequent to that Planning Commission hearing, an appeal was filed by one of the residents and a second public hearing was scheduled. This hearing was with the City Council. Again, a notice was published in the local papers on August 28, 1998 notifying all interested parties that the public hearing would be held and again giving information on where the documents could be reviewed and who the project planner was. 2075 Las Palmas Dr. - Carlsbad, CA 92OO9-1576 • (760) 438-1 161 • FAX (76O) 431-5769 Augusts, 1999 MAY SUBDIVISION, CT 97-24 Page 2 The City Council meeting was held on September 8, 1998. This was also a public meeting and ten days prior to the meeting a second mailing to residents within a 600-foot radius was sent out notifying everyone of the hearing and again giving information on who could be contacted for further information. City staffs responsibility in reviewing the project is to make sure that development complies with the City's codes, standards, ordinances and policies. These rules apply citywide so that all property owners can enjoy equal property rights. In this case, all of the City rules were complied with and constructing two story homes is a common property right for everyone in the City. Therefore, staff can not deny the request for two stories The project will be returning to the City Council for permits for the homes. This will be a public hearing and notices will be sent out informing people of the time and place. If you would like further information on the project, you may contact Anne Hysong for planning questions at (760) 438-1161, extension 4477, or Ken Quon for engineering questions at (760) 438-1161, extension 4380. Sincerely, ROBERT J. WOJCIK, P.E. Principal Civil Engineer RJW:jb City Manager Public Works Director flSSobiate Planner, Anne Hysong * Associate Engineer, Ken Quon Joe Garuba James A. Laret, RE. Stuart L. Eyler Phuoc V. Pham Jennie Harloff Dennis R. McCarty, P.L.S. Cynthia A. Choice Julie Kay Karen Harper Wayne W. Wheeler, P.L.S. CIVIL ENGINEERING • LAND PLANNING • SURVEYING • G.P.S. SURVEYING July 22, 2002 Mr. Joe McMahon Engineering Inspector City of Carlsbad 5950 El Camino Real Carlsbad, Ca 92008 Re: Carlsbad Park Estates, Carlsbad Tract No. 97-24, Map No. 13784 Dear Mr. McMahon: We have set the Final Map survey monuments for Carlsbad Tract No. 97-24, Map No. 13784 and we have been paid in full for our services. We have also prepared a Certificate of Correction reflecting the locations and descriptions of those monuments set by this office different than those locations and descriptions shown on said Map No. 13784. The Subdivider will process this Certificate of Correction with your department. A. Laret, R.C.E. 29375 Wiml-nocM.KTTEKy.palmtagpd.inliill 16091 San Dieguito Rd., Ste C-5 P.O. Box 9661 Rancho Santa Fe CA 92067 8587569374 fax 858 756 4231 E-mail: laret@rsf.sdcoxmail.com cr James A. Laret, P.E. Stuart L. Eyler Phuoc V. Pham Jennie Harloff Dennis R. McCarty, P.L.S. Cynthia A. Choice Julie Kay Karen Harper Wayne W. Wheeler, P.L.S. CIVIL ENGINEERING • LAND PLANNING • SURVEYING • G.P.S. SURVEYING August 1. 2002 Carlsbad Estates LLC Mr. Herb Palmtag 925 Hotel Circle South San Diego, CA 92108 Re; Certificate of Correction Dear Mr. Palmtag: You constructed a 6' ± high block wall along the south and east property lines of your project. The true property corners along the back edge of the lots in question fell on the outside of the constructed solid 6' high wall. Your Final Map indicated that we would set 1/2" x 18" iron pins at these lot corners. It was physically impossible to set many of these corners as indicated and their location would be of no use to youjjot owners or contractors. We therefore set lead and disks on the top of .ck walls as ind&atep ou our Certificate of Correction. erely ames A. Laret, R.C.E. 29375 W:\Word-Docs\LETTERS\482palmlag.wpd 16091 San Dieguito Rd., Ste C-5 P.O. Eo\ 9661 Rancho Santa Fe CA 92067 858 756 9374 fax 858 756 4231 E-mail: laret@rsf.sdcoxmail.com )X, Carlsbad Estates LtC RECEIVED 110 Juniper Street San Diego, California 92101 AUG 0 5 wg 619-702-2042 / FAX 619-702-5154 ENGINEERING DEPARTMENT August 3,1999 Mr. & Mrs. Prentice 3955 Monroe Street Carlsbad, California 92008 Dear Mr. & Mrs. Prentice, As you know, we have been attempting to work with you to: 4 Keep you informed as work has progressed on our subdivision. 4 Describe for you how drainage is being handled on our subdivision. * Answer your questions concerning various aspects of the development. Additionally, we have talked with the City about how your specific front yard drainage can be improved in order to address specific water run off generated above and to the east of your home along Monroe. With this in mind I am forwarding to you, herewith, a copy of a preliminary proposal to provide certain street improvements in front of your home. Naturally you would be responsible to contract and pay for the work. It is my understanding though, that the City would be a third party to any contractual agreement you would have with a contractor. In order to assist you, I have forwarded a copy of this letter to Mr. Ken Quon of the City of Carlsbad - Engineering Department (760-438-1161 X 4380) to provide them with some background information on the proposal. Please note I have been informed by the contractor (Roberts), that the estimate provided is based upon doing the work concurrently with our scheduled work. At this point should you have any questions or desire additional information, please call. Herb Palmtag HP/mg Cc: A. Hysong/City of Carlsbad - Planning Department August 3, 1999 Palmtag Davis Communities 110 Juniper St San Diego, CA 92101 ATTN Herb Palmtag RE: May Subdivision ROBERTS ENGINEERING CONTRACTORS LICENSE 0M83915 Dear Herb, Enclosed please find our proposal to install new curb, gutter, sidewalk, and AC pavement along the neighbors property east of Lot 14. Concrete Improvements Rough grade 6" curb and gutter (est. 130 If @ $13.90 / If) 4" sidewalk (est. 650 sf @ $2.60 / sf) Backfill and fine grade 4" sidewalk base (17 tons @ J32 00 / ton) (1) 18' driveway Asphalt Improvements 4" AC pavement (est. 1690 »f) (42 tons @ $55.00/ton) 6V class II base (62 tons @ $19.00 / ton) AC overlay (2 tons @ $100.00) Subgrade prep (2780 sf @ $0.20 / sf) LS LS LS $1500.00 $1807.00 S 1690.00 $500.00 $54400 $875.00 $2310.00 51,178.00 $200.00 S556.00 2655 PROGRESS PLACE. SUITE A • ESCONOIDO. CA B2CC& • TEL: (760) 746-9935 • FAX: (760) 746-6754 Herb Palmtag Aug 3,1999 Page2 Miscellaneous Sawcut LS $150.00 Traffic control LS $350,00 Remove excess dirt LS $300.00 Total $11,960.00 This price is only good if the work is performed at the same time we are doing the street improvements along Monroe Please call if you have any questions. Sincerely, Lloyd Webb oc. Jim Humphrey Steve and Sherryl Ford * ... 3869 WoodvaleDr. Wb ' 6 Carlsbad Ca, 92008 August 11, 1999 City of Carlsbad Engineering Department Lloyd Hubbs, Ken Quon, Bob Wojcik, Clide Williams City Planners Michael Hozmiller, Joe McMaham, Garry Goodman, Dick Cook, Ann Hysong City Council Members Matt Hall, Ramona Finnila, Julie Nygaard, Ann Kulchin City Attorney Ron Bull Mayor Bud Lewis RE: May Development, Monroe and Park Dr. We are astonished, how this project has gotten city approval. We were never notified of this zoning change of property, or the grade plans for said project. Really feel this project was just pushed through, with out any consideration of the neighbors, or the integrity of the neighborhood. This project would be unsightly, considering the majority of the houses surrounding this development are single story. Engineers isn't it your responsibility to represent us your citizens to protect us against this type of project. This project with the present grade, 25' to 28' height houses, the lot sizes so narrow, in the sea of exsisting single story homes, will look like Titanic. Please reconsider putting 2 story homes on this parcel of land. Thank you Steve Ford f Sherryl Ford ' Carlsbad Estates LC RECEIVED 110 Juniper St. San Diego, CA 92101 (619) 702-2042 Fax (619) 702-5154 AUG 0 6 1999 \ ENGINEERING X. DEPARTMENTAugust 5,1999 \> Via Facsimile (760) 438-0894 Mr. Ken Quon Engineer City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009 Re: May Subdivision/Pad Grades Dear Mr. Quon: I have received several informal requests to lower the graded perimeter berms on the Monroe Street lots in our subdivision. It is my understanding that the pads, as graded, are in strict conformance with the approved grading plans and City requirements. While we are willing to cooperate with the City, in order for us to make any changes to the site we would need a written request from the appropriate authorities at the City, describing specifically what they would like us to do. Time is of the essence in that our contractor is in the final stages of work on the site. Please contact me at your earliest convenience to discuss the issue. Sincerely, Herb Palmtag P. Robinson, Esq. HP:bgt Cai&bad Estates Ll-C 110 Juniper St San Diego, CA 92101 (619) 702-2042 Fax (619) 702-5154 RECEIVED AU6 1 7 19P9 i Mr. & Mrs. Prentice August 16,1999 ENGINEERING DEPARTMENT3955 Monroe Street Carlsbad, CA 92008 Dear Mr. & Mrs. Prentice: I wanted to bring you up to date on several items relating to the drainage planned for our subdivision. As you will remember, we met at your home and spent about an hour walking your western property line and discussing the drainage system planned for the area. You had asked that, as a follow up, we provide you with a drawing discussing specifically the orientation between the new wall to be installed, the drainage ditch (brow ditch) along the common property line and the final pad elevation for Lot 14 of our subdivision. You also asked for some fomi of indemnification document relating to drainage. At this point we are still working on the drawing. Prior to finalizing your requested drawing we will need to understand how the City would like to proceed concerning the possible extension of curb, gutter and sidewalk in front of your home. We will be happy to provide you the completed drawing once the street improvement issue is resolved. Concerning a written indemnification, I am afraid that we can't give you that type of document. However, we can assure you that the drainage improvements for our subdivision have been designed according to the "standards of the industry" and have been reviewed and approved by the City of Carlsbad. In closing should you have any further questions at this point, please give us a call. Sincerely, Herb Palmtag Cc: K. Quon/City of Carlsbad Stephen V. McCue, Esq. HP:bgt FROM : PFLMTflG DflUIS COMMUNITIES""- PHONE NO. : 619 702 2042 -v flpr. 13 2000 12I05PM P2v:biy-*'.w--j>;*y Har ii uu ' CHRJSTIAN WHEELERENGINEERING April 7, 2000 ; 198.100.12 1 10 Junipw St SIB Diego, Cufifwtiua 92101 Attention: Htib TPatetag SUBJECT; SUBDKAIN RECOMMENDATIONS, UOTS FOUR AXIS ICrVB, CARLSBAD TRACT 97,24, MONROE StKKXT ANft PAMK DRIVE, CARLSBAD, CALIFORNIA Pursuant to oueonnte mcetlagwttkydui EUU «»pcrinteadent "id repwsencntiv** of die Qty o£C**i*r>ad Engjjeexiag D«f »«a»wir oc. March 31. this letter h*» be«A p*eptt*4 19 fozsnoU?e our rscommcnditioni foi the construction, of subdraiiw in Lots 4 Mtd ^- The intent of the subdiiins it to previd* a m<tns TO remove the ««p»g« that has bun obietved to ocecu Ja pdctiOnS the slope 1C the «4St »«i« of the lots. WALL BACK-DRAIN! We tcconancrd Ant suMrtlnj be iflsolled behind Uw masonry retaining -wail along ihe north ind cut boundaries of Lot $, »n«l in tke cut tlop* jl&ig &e aut ptopcttj1 Hue of Lot 4. The svafi back-dnio «hquJd coruiai o?a t3uee-inch disrecttf SI5& 35 petfe»te« 4»«> ^«. bedded **4 swttoundcd by 3/4-Mich c«i«k«(i rock, with i £*i»ttthiical filtftt f»boc of Minfi 140N or equivalent positioned at ill todc-i«- «>2 coatsets The dnuc should be potitio««a wwue«ikt«iy h«fckd die wall, along ths top of tb« wxQ footing, »od should be bedded to auwwto J>fl£iu-c« fall of at lean cue-half of oni ptuccnt to the npo-pofonted eollcctcif ac tbt touch end of the wall. In order to zssuie thtt tke gfouodMrniK seepage dtvki to ifce aouih end of the Lac 5 w«3, sad is not pearined K 4nwi wcmBtly beUoe die w«U «bng the corth aide of Lots 6, 7 and 9, •w« ittommeiii that the perforated subdrain be cut it the aagt«-pow* of the m«soi>iy wai! a! th« north side of lot 6. and z ccnctew dun b« coos trictti texwcso the cut estds of die pip«- Tb« t««k 'cwcttk* behind tile ^"att should b« *T least t2-inch«c wide, £ud. sho\Ud extend to •Mtbln or.e foot of th« fefi'^iffrf «ir£&c« behind die wail, Th« uppeonojt 12-kchcl E^Kkd the --vali should <roa«i«t of netive soil compacted W 41 l«Mt 90!/* *f WMSMMttn dry d*ieay, k «d«r » «X<**W »cit&c* dralnaga &o«n th« tubdmic. Dctailt fot the wall faacfc-draioc KM shown «n the attached Plate No. 1. SUBPRAIN: The suMraia ateog tbe ewt lide of Lot 4 should be of 'I* same rrmwnalt and of similar design s$ &« wall back-drzio, and should tKUnd from die collector at the sovtiwflfli comer of Lc" 5 « distance of 50 4925 Mercery Stf««« *• 5»n Dlo*o, CA FROm : PFUITflG DfiUIS COMMUNITIES-PHONE NO.619 702 2042 fipr. 13 2000 12: 06PM P3 198.100.12 April 7, 2000 Page 2 fetr (southerly into the slept along the «a»t side of Lot 4- Th« suboiaifl should be uutolkd in a ticncli cut at lutt 12 inches wide into the cut slope, and should ibo Sure ihc 3-a\Ch pci&iattd pipe in 4 matrix of CfUMed rock, wapjjed by «be filt«ur &bria Toe depth of the rock ft&tax should be at least 12 inches, nod stlmtt tixlt* Utchftg «f <Mt»* toil cOf«i- ckould be maintained obova ^h« lOci. The tubdnin tbould fall at least one-half percent to the co!Uctoi aad aght-line tUain doigncd ibng th£ Muth ptopttty !iae of Lot 5, B»s«i upgn our fitld *««»*u«e«i2ntt, the bottom »f tbc lubdtaift oendi ihould be 1,55 fc« belcr.v Ssishrd pad grade at ihe ?ourfi end of the dnin, uul 1,6 feet below gndc »t <h« connsctiwi wna 3» dghMiot it th* >«utl» side of Lot 5. In wd»: to miintain tnc mioimnm iccomnicadod tJEcltneM of th« tOcV matax and soil cx3ver. it will be ncce»s*ry to po«icioa the <XCA<^ in the slope v> due thexe w « lewt two feot 6f «ttt tt> *« bottooi of tJ»t aench. A cjow-fcctianfll detail of the mbdcaia i* pcetentcd on PUt« 2- COLLECTOR DRAIN: Th* w«ll b»sk-di«k Uni ivibdaU thsi»>i di<diwg* iato the tiuo«4nch C^it-lw* dt«w that is <<««ign«d TO «xt«od £totn ths cas; ikk of Lots 4 & S w«»t=tly to t attb outiet tt the «« end a£M*y C«tut. We lecoirjuecd (hat a conciete dam be pUcod »»OV«d tbe SMt end of die tight-line in oxdei to inhibit the migration of water through tbc trcncli backfilk, A ucbccvatic Layour of tfcc recommended wdl and scbdnwj system it shown on Plate Ma 5. GROUNDWATER SAMPUEfc A eOMMSl W» «cpcc«*«d by tin. City of C*rl»bad repres«ot»tiv«j regar diftj tb* poteatiii fot dasoived colidt in th« paucdwater pieczpitstscgooto th« coacnu gutters down-slope rtotc the (ubdnin »y«tem, crcattng t mtifitauiAce problccx foe ihe Ciir, & C«da!: to acWiws those conceal*, sampltt of the gcoufldwatcr tav« ban taken and ate «w»«afy b»wg te*t«d t« d««et«Mtte the coat«nt of dissolved solids. A xepoxt prawnting the cotuks of Ae to* t* will b» picpucd ooc< the tests are complete. Christian Whsetw Eflgtateitog !iae«reiy ippMcktet tiiC op petwnlty to be. of professional s«wic« on your project If you should Iww wiy nmiink hesitate to contact our Ebm Re«p«<tfaBy Submitted, CHRISTIAN WHEELER ENGC4EEKING ChHlW H. Christian, H.G.H. 00215 CHC/dh (3) Submitted FROM = PflLMTRG DRUIS COMMUNITIES -.« LUN&IWJLI-ILIN PHONE NO. : 619 702 2042 fipr. 13 2000 12: 06PM P4 Hpr 1.3 'UU Ji:lb »-' " MINIMUM CHDlAMC PERFORATED PIPE WATERPROOF BACK OF WALL PER ARCHITECTS SPECULATIONS 3/4 INCH CRUSHED ROCK GEOFA6RIC BETWEEN ROCK AND SOIL TOP OF GftOUND or CONCRETE SLAB 6" MIN RETAINING WALL SUBDRAIN DETAIL No Seal* Christian Wheeler Engineering Job Numbit: 198.1QO.12 ' APRIL gQOQ Pkra Number:.j_ FROfl : PflLMTfiG DflUIS COMMUNITIES •PHONE NO.619 702 2042f.,<\ u flpr. 13 2000 12:07PM P5 L1 . 1 i I . . .U FINISH PAD ELEVATION SITE WALL'S. TOP OF SLOPE NATIVE SOIL BACKFILL -GEOFABRIC BETWEEN SOIL AND POCK 3" PERFORATED PIPE (FALL 0.6% MIN, TO COLLECTOR) 3/4" CRUSHED BOCK SUBPRAiN DETAIL NOT TO SCALE CHRISTIAN WHEELERB NGINSERJNG LOTS 4 «, 5 CARLSBAD TRACT 97-Zfl OH/HC JOftKO:198.10QJ2 APRIL 200P_ FROM : PflLMTRG DflUIS COMMUNITIES PHONE NO. : 619 702 20423"-l^y Hor u '\J>flpr. 13 2000 12=07PM P6 ?A1T.Y REPORT 4-CHRISTIAN WHEELER 9 .feW G I N 5 5 R I N G •± I Qtlw|lW«M)n|| 0 ftMifaiod MtMdry Ancton FROM : PflLMTflG DflUIS COMMUNITIES'- PHONE NO. : 619 702 2042 flpr. 13 2000 12:08PM -t- 2£2 A--rr/vi<: pg^f^fn ,u -niae j*A*Je* p&f^fB-*-*-"• **" c^&t&zr- rt \ 4925 W.reury Str««t * Sin Oiego, CA 92111 4 8S8-496-97SC * TAX 8i8-496-?75« FROM PflLMTPG DfiUIS COMMUNITIES RHONE NO 319 RIQ 2000 0 P«ICJC f / 7 P2 CWE 198.100.11 CHRISTIAN WHriLFRr M T: i N i: t R. i M G March 29, 2000 City of Carlsbad Engineering Department 1635 Ftradiy Avenue C«fcbad, California 92008-7314 Attention: Joe McMahon Glen Van Paske SUBJECT: RETAINING WALL SUBDRAIN RECOMMENDATIONS, LOT FIVE, CARLSBAD TRACT 97-24, MONROE STREET AND PARK DRIVE, CARLSBAD, CALIFORNIA Dear Sirs, In accordance with the request oFMr. Herb Palm tag, we have picpiucd this letter to present our recommendations for the coaswjccion of a subdcain behind the masonry retailing will tharis cuxrcndy undcc cooatruction flt the north 2nd cast sides of Lot Five. W« Kcommend that tile drain cowiist of » four-i^ch dwun^tAi' SDR 35 perforated drain pipe, bedded and surrounded by 3/4-incb craved rock, with i. geotccfanical filter rabrie of Mirafi 140ISI or equivalent positioned at *U roek-to-soil concucxs. The drain should be positioned injnapd5«wly behind the v/aJl amd slong the top of the -waB footing. The pipe bedding should be at least four-inches thick and the pipe should maintain positive foil to curb outlet?. Th« rock 'curtail should be at least 12- inclies iwde, smd ehould extend to widbin one foot of the finished surface behind the wall. Th« uppermost 12-inchcs behind die %v»U should coaeigt of native soil compacted to *c least y(J% of maximum dry density, in order to exclude surface drainage frcm t)ift subdrain. Conscnictcd a* tecorornended, die subdrain should serve to de-v^cer d«: seepigc that has been observed in rhe backcut behind the wail If you rhould have any questions after reviewing diis leuct. please do not hesitate to contact rhe undersigned. Respectfully Submitted, CHRISTIAN WHEELER ENGINEERING Charles H Christian, R.G.E. 00215 CHC/dh cc: (5) Herb <£!>2? Mercury Strcri. *( ) * P.5«-49<1>.9760 » PAX fi5 8"iVfi-9"Si> 101 Ash Street San Diego, CA 92101-3017 1999 February 10, 1999 CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 ATTN: City Engineer RE: Carlsbad Tract No. 97-24 Please be advised that the division of the property shown on Tract 97-24 will not unreasonably interfere with the free and complete exercise of any easement(s), held by San Diego Gas & Electric Company within the boundaries of said tentative map. This letter should not be construed as a subordination of the Company's rights, title and of the provisions contained in said easement(s) or a waiver of costs for relocation of any interest in and to said easement(s), nor should this letter be construed as a waiver of any affected facilities. In the event that the development requires relocation of facilities, on the subject property, which facilities exist by right of easement or otherwise, the owner/developer will be requested to bear the cost of such relocation and provide SDG&E with suitable replacement rights. Such costs and replacement rights are required prior to the performance of the relocation. If additional information is required in connection with the above mentioned subject, please call Linda Victoria at (619) 654-1256, she is employed by Sempra Energy working as a duly authorized agent for San Diego Gas & Electric. Respectfully, Linda Victoria Administrative Associate cc: Laret Engineering Company, Inc. FRGi'F'HLMTHG DHUIS COMMONITIEb PHONE NO. : b!3 7a2 CHRISTIAN WHEELER ENGINEERING Feb. IS 1999 t32:33PM P2 February 12,1999 Cadsbad Estates LLC CWE 198.100-2 110 Juniper Street San Diego, California 92101 ATTENTION; Herb Palmtag SUBJECT: UPDATE REPORT AND CHANGE OF GEOTECHNICAL ENGINEER OF RECORD, PROPOSED 14-LOT SUBDIVISION TRACT 97-24, PARK DRIVE, CARLSBAD, CALIFORNIA REFERENCE: 1) Preliminary Soil and Geotcchnical Investigation, Proposed 14-Lot Residential Subdivision, by Viaje & Middleton Engineering, Inc., dated July 20,1994 2) Grading Report for May Subdivision, Carlsbad Tract 97-27, by Laret Engineering Company Inc., dated October 28,1998. Gentlemen and Ladies: This letter has been prepared to confirm thai Christian Wheeler Engineering will assume the duties of the Geotechnical Engineer of Record for the construction phase of the subject project. In addition, it is our. opinion that the geotecbnical data, recommendations and conclusions contained in the above referenced report are still valid for the grading and development of the subject property. If you have any questions regarding this letter, please do not hesitate to contact this office. This opportunity to be of professional service is sincere!}? appreciated. Respectfully submitted, CHRISTIAN WHEELER ENGINEERING Charles H. Christian, RGE #00215 cc (4) Submitted 4925 Mercury Street * San Diego, CA 92111 • 619-496-9760 FAX 6)9-496-9758 c o City of Carlsbad Public Works — Engineering January 21, 1999 James Laret Laret Engineering Company P.O. Box 9661 Rancho Santa Fe, CA 92067 RE: May Subdivision, CT 97-24, Dwg. No. 374-9A This letter is meant to provide input regarding the conformance of the above subdivision to the conditions of approval and City Standards. After a City Staff meeting conducted on Tuesday, January 19th, 1999 the following comments were put forth on said project. a) The Fire Hydrant in the cul-de-sac of May Court is not necessary per Mike Smith, Fire Marshall. However, the water district may want this hydrant left as a blow off or a blow off in lieu of the hydrant. Suggest you check with Carlsbad Municipal Water District on this matter. b) Lot 10 - Lower pad grade as much as practical and use subdrains to drain lot to side street. c) Slopes at rear of Lots 10 and 11 must be moved back into Lot 9 as per approved Tentative. Downward rear slopes are not allowed on Lots. Planning has stated that a retaining wall at the rear of lots 10 & 11 is not acceptable. These two lots are not in conformance with approved Tentative at this time. If you have questions on this matter please contact me at (760) 431-5999. Douglafe_belming Consultant Planchecker C: Principal Civil Engineer, Land Use Associate Engineer Quon 2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (760) 438-1161 • FAX (760) 431-5769 City of Carlsbad Public Works - Engineering Novembers, 1999 Jim Laret Laret Engineering Company, Inc. P.O. Box 9661 Rancho Santa Fe, CA 92067 (FKED) May Subdivision C.T. 97-24 Perimeter wall - Lot 14/Prentice We have received your fax today with your proposed wall along the boundary with the Prentice property. Upon review and discussion with Planning, our comments are as follows: • The wall needs to be 2 feet off the property line. One foot does not allow for a brow ditch of sufficient capacity to handle storm water runoff that jumps the berm at Monroe Street, and does not allow access from the street for the property owner to clean the ditch. • Retaining more than 1 foot is not allowed. This will create a wall height to grade of less than 5 feet. A wall height of 5 feet is required to serve as safety fending for the Prentice pool. • Please address drainage of the slope behind the wall. • Provide sketch of detail where brow ditch passes under the screen wall. If you have any questions, please contact Glen K. Van Peski, Consultant Land Use Engineer, at 760-941-9500. Sincerely, ROBERT j. wo JCIK;P.E. Principal Civil Engineer RJW:GVP:kn 2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (760) 438-1161 • FAX (760) 431-5769 CARLSBAD ESTATES LLC OPERATING AGREEMENT J,,... V* 2.6 "Economic interest" means a person's right to share in the allocations of, and to receive distributions from, the Company, but does not include any other rights of a Member, including the right to vote or to participate in management or, except as provided in Section 17106 of the LLC Act, any right to information concerning the business and affairs of the Company. 2.7 "Investor Interests" shall mean the class of Membership Interests issued to Investors, with the rights and obligations described in this Agreement. 2.8 "IRC" means the Internal Revenue Code of 1986, as amended, or any successor provisions. 2.9 "LLC Act" means Title 2.5, Sections 17000 et seq., of the California Corporations Code, or any successor provisions. 2.10 "Manager" means a person elected by the Members to manage the Company in accordance with the LLC Act. 2.11 "Managing Interests" means the class of Membership Interest issued to the Managing Members, with the rights and obligations described in this Agreement. 2.12 "Member" means a person who has (i) been admitted to the Company as a member in accordance with this Agreement, or an assignee of a Membership Interest in the Company who has become a member pursuant to this Agreement; and (ii) not resigned, withdrawn, or been expelled as a member or, if other than an individual, been dissolved. 2.13 "Membership Interest" means a Member's rights in and obligations to the Company, including the Member's economic interest, any right to vote or participate in management, and any right to information concerning the business and affairs of the Company provided by the LLC Act. There shall be two classes of Membership Interests, the Managing Interest and Investor Interests. 2.14 "Officer" means any person elected or appointed as an officer of the Company pursuant to Section 17154 of the LLC Act. 2.15 "Participating Note" means the Participating Note issued by the Company pursuant to the terms of this Agreement. 2.16 "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity. 2.17 "Profits Percentages" means, initially, as provided in Section 3 below. Profits Percentages shall be adjusted upon the transfer, issuance or redemption of a Membership Interest or as otherwise provided in this Agreement or by operation of law. 2.18 "Unreturned Capital" means an amount equal to the capital contribution made with respect to an Investor Interest, less the cumulative amount of all distributions made with respect to such Investor Interest under subparagraph 5.1.1 below. Operating Agreement 2.19 "Unretumed Capital Advances" means an amount equal to the capital contributions made with respect to the Managing Interests, less the cumulative amount of all distributions made with respect to such Managing Interests under subparagraph 5.1.3 below. 3. POWERS. PURPOSE AND ORGANIZATION. 3.1 General. The Company shall have the power and authority to engage in all activities which an LLC may legally engage in under applicable law, including the powers described in Section 17003 of the LLC Act. 3.2 Property. The purpose of the Company is to acquire, develop, sell and otherwise deal with the real property commonly known as Assessor's Parcel Number 207-061-07, consisting of approximately 4.67 acres, located in the City of Carlsbad, California (the "Property"). The Company intends to seek approval of a final subdivision map ("Final Map") for the Property, to permit subdivision and development of the Property into 14 single family detached residential lots and related streets and facilities, constructing single family residences and related improvements on such lots and offering such single family residences for sale (the "Project"). The Company is authorized to take such action as may be necessary or appropriate to acquire the Property and to otherwise proceed with the Project. 3.3 Purchase Agreement. The Property is being purchased pursuant to a purchase agreement and escrow instructions (collectively, the "Purchase Agreement") between Westmark Homes, a California corporation doing business as Palmtag Davis Communities and an affiliate of the Managing Members ("PDC") and James May and Patricia May (collectively, "Seller"). The Managing Members shall cause PDC to assign to the Company its rights, and the Company shall assume PDC's obligations, under the Purchase Agreement, pursuant to an Assignment Agreement to be executed by the parties. The Company shall reimburse PDC for all direct, out-of- pocket costs and expenses incurred in connection with the acquisition of the Property. 3.4 Financing of Project. The Company intends to finance the Project by obtaining a construction loan for up to 75% of the projected of the project, by borrowing an additional $600,000 pursuant to a Participating Promissory Note bearing Fixed Interest at the annual rate of 10% and a Profit Participation of 35% (the "Participating Note"), and by obtaining $200,000 of capital contributions from the Investors. The Managing Members will be responsible for any additional capital required by the Company (e.g., for cost overruns). The Investors will be entitled to receive a Preferred Return on their Unretumed Capital at the annual rate of 10% and a Profits Percentage of 23.08% (which, when considering the Profit Participation payable under the Participating Note, equates to a 15% profits interest in the Project), divided between them based on their respective capital contributions. The Managing Members will be entitled to receive Preferred Return on their Unretumed Capital (if any) at the annual rate of 10% and a Profits Percentage of 76.92% (which, when considering the Profit Participation payable under the Participating Note, equates to a 50% profits interest in the Project), divided equally between them. 4. CAPITALIZATION. 4.1 Equity. 4.1.1 Managing Members' Initial Capital Contribution. The Managing Members shall cause Buyer to assign its rights under the Purchase Agreement to the Company, and shall contribute all past efforts and services in connection with the formation of the Company. Operating Agreement 3 4.1.2 Investors' Initial Capital Contributions. Investors shall collectively contribute at least $200,000 of initial capital to the Company. Each Investor's initial capital contribution shall be payable in cash on or before August 28,1998. 4.1.3 Additional Capital Contributions. (i) Capital Call. If either the Managing Members determine that the Company needs additional capital, or the Construction Lender requires that additional funds be deposited or invested (by written notice to the Company), then each Managing Member shall contribute to the Company one half of the amount determined by the Managing Members or required by the Construction Lender. Such capital contributions shall be payable on or before the date designated by the Managing Members or the Construction Lender, as applicable, but not less than 14 days after written notice to the Managing Members. (ii) Failure to Contribute. If one Managing Member contributes all of his share of the requested additional capital (the "Contributing Member") and the other Managing Member does not (the "Defaulting Member"), then the Contributing Member may contribute all or a portion of the Defaulting Member's remaining share of the requested additional capital. The Defaulting Member shall have the right from time to time to make "balancing" capital contributions to the Company (which shall be distributed to the Contributing Member), up to an amount sufficient to equalize the total Unreturned Capital Advances of the Managing Members. (iii) Loss Sharing Provision. If upon dissolution of the Company the Managing Members have not or will not receive distributions at least equal to their Unreturned Capital Advances, then the Managing Member with the lowest amount of loss after all distributions shall pay to the other Managing Member an amount sufficient to equalize the losses of the Managing Members. For example, if the distributions from the Company are sufficient to return all capital contributions of Managing Member "A" except $25,000, and of Member "B" except $75,000, then Managing Member "A" shall be obligated to pay Managing Member "B" $25,000, so that the total loss realized by each Managing Member is $50,000. Such amount shall be payable within 90 days after the dissolution of the Company; if the Company is not completely liquidated by the end of such 90 day period, then an estimated payment shall be made on the estimated liquidation proceeds, with the balance reconciled upon final liquidation. 4.2 Loans. 4.2.1 Participating Note. The Company is authorized to issue a Participating Note in the amount of $600,000. The Principal of the Participating Note is payable to Company in cash upon execution and delivery of same. 4.2.2 Construction Loan. The Company is authorized to obtain a construction loan to finance the Project, in an amount up to 75% of the appraised value of the Project, from a bank or other lender designated by Managing Members (the "Construction Lender"). The Construction Loan may be secured by a first trust deed encumbering the Property and the Project. 4.2.3 Other Loans. The Company may from time to time borrow such amounts from such persons (including the Members or their affiliates) on such security and payable on such terms as may be approved by the Managers. The amount of any loan from a Member Operating Agreement 4 shall not increase the capital account of the lending Member. The amount of any such loan shall be a debt due from the Company to such lending Member, repayable on such terms and bearing interest at a rate agreed on by the lending Member and the Company, or if no rate is agreed on then at the maximum rate permitted by law. No Member shall be obligated to make any loans to the Company. 5. DISTRIBUTIONS. 5.1 Priority. Distributions shall be made from time to time as follows: 5.1.1 First to the holders of Investor Interests until they have received distributions equal to 10% per annum (cumulative but not compounded) on the Investors' Unreturned Capital outstanding from time to time (the "Investor Preferred Return"). 5.1.2 Next to the holders of Investor Interests until they receive distributions equal to their Unreturned Capital. 5.1.3 Next to the Managing Members until they have received distributions equal to 10% per annum (cumulative but not compounded) on their Unreturned Capital Advances outstanding from time to time (the "Managing Member Preferred Return"). 5.1.4 Next to the Managing Members until they receive distributions equal to their Unreturned Capital Advances. 5.1.5 Thereafter to the holders of all Membership Interests based on their respective Profits Percentages. 5.2 Division of Distributions to Investors. All distributions to the holders of Investor Interests shall be divided between such holders based on their respective capital contributions. 5.3 Division of Distributions to Managing Members. All distributions to the holders of Managing Interests shall be divided between such holders as follows: 5.3.1 First to the Managing Members pro rata based on their respective Unreturned Capital Advances until they have received distributions equal to their Unreturned Capital Advances and Managing Member Preferred, plus an additional amount equal to 50% of the Managing Member Preferred Returned (the "Supplemental Preferred Return"). 5.3.2 Thereafter to the Managing Members equally. 5.4 Authority. The Managers shall from time to time determine the amount and timing of all distributions. 5.5 Limitations on Distributions. No distributions shall be made in contravention of Section 17254 of the LLC Act. No Member shall be entitled to receive distributions from the Company other than as provided in this Agreement. 6. ALLOCATIONS. Operating Agreement 6.1 Allocation of Income. Gains. Losses. Deductions and Tax Credits. All income, gains, losses, deductions, tax credits and similar items of the Company shall be allocated from time to time as follows: 6.1.1 Net loss shall be allocated: (i) First, to the holders of all Membership Interests, in reverse order of the net income and gain allocated pursuant to subparagraph 6.1.2 below, up to the amount of cumulative net income and gain so allocated, less any amount of net loss previously allocated pursuant to this item (i). (ii) Next to the holders of Managing Interests (pro rata based on their respective Unreturned Capital Advances) until the holders of Managing Interests have received allocations of net loss equal to their Unretumed Capital Advances, less any amount of net loss previously allocated pursuant to this item (ii). (iii) Next, to the holders of Investor Interests (pro rata based on capital contributions) until the holders of Managing Interests have received allocations of net loss equal to their Unreturned Capital, less any amount of net loss previously allocated pursuant to this item (iii). (iv) Thereafter, to the Managing Members (divided equally). 6.1.2 Net income and gain shall be allocated: (i) First, to the holders of all Membership Interests in reverse order of the net loss allocated pursuant to subparagraph 6.1.1 above, up to the amount of cumulative net loss so allocated, less any amount of net income or gain previously allocated pursuant to this item (i). (ii) Next, to the holders of Investor Interests (pro rata based on capital contributions) until the holders of Investor Interests have received allocations of net income and gains equal to the then accrued Investor Preferred Return, less any amount of net income or gain previously allocated pursuant to this item (ii). (iii) Next, to the Managing Members (pro rata based on their respective Unreturned Capital Advances), until the holders of Managing Interests have received allocations of net income and gains equal to the then accrued Managing Member Preferred Return, less any amount of net income or gain previously allocated pursuant to this item (iii). (iv) Thereafter to the holders of all Membership Interests pro rata based on their respective Profits Percentages. (v) Notwithstanding the above, the income and gain allocated to the holders of Managing Interests under item (iv) above shall first be allocated to the holders of Managing Interests pro rata based on Capital Advances until the holders of Managing Interests have received allocations of net income and gains equal to the then accrued Supplemental Preferred Return, less any amount of net income or gain previously allocated pursuant to this item (iii). Operating Agreement 6.1.3 The Managers may make reasonable adjustments to the allocations set forth in this Section 6, based on the advice of the Company's accountant, to fairly allocate such items to the Members in accordance with their Membership Interests. 6.2 'Net Income. Gain and Net Loss. The net income, gain and net loss of the Company shall be computed at the end of each fiscal year in accordance with federal tax accounting principles, consistently applied, and shall be allocated among and credited to or debited against the capital accounts of the Members. The terms net income, net loss, income, gains, losses, deductions and tax credits shall refer to and be defined as those terms are used and defined for federal income tax purposes. 6.3 Allocation Overrides. 6.3.1 Items of income, gain, loss and deduction with respect to property contributed by a Member to the Company shall be allocated to the Members so as to take account of the variation between the basis of the property to the Company and its fair market value at the time of contribution, in accordance with IRC Section 704(c) and Treasury Regulations promulgated thereunder. 6.3.2 No loss or deduction shall be allocated to any Member if, or to the extent, such allocation would create or increase a deficit in such Member's capital account (adjusted as required by Treasury Regulations Section 1.704-1 (b)(4)(iv)) as of the end of the Company taxable year to which such allocation relates, unless such allocation of loss or deduction is attributable to nonrecourse debt of the Company and otherwise satisfies the requirements of Treasury Regulations Section 1.704-1 (b)(4)(iv). 6.3.3 If a Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Section 1.704-1 (b)(2)(ii)(d) (4), (5) or (6), which result in a deficit balance in such Member's capital account, Partnership income and gains shall be specially allocated to such Member in an amount and manner sufficient to eliminate, as quickly as possible, such deficit created by such adjustments, allocations or distributions. 6.3.4 If any allocations of income, gains, losses or deductions are made to Members under the allocation overrides set forth above, income, gains, losses and deductions shall subsequently be allocated in a manner which most quickly results in the allocations made under this subparagraph offsetting the effect of the prior allocation overrides, such that the Members' capital accounts are returned to the balances which would have existed absent the allocation overrides; provided, however, allocations under this subparagraph shall also be subject to the allocation overrides set forth above. 6.4 Savings Clause. The tax allocations set forth in this Section 6 are intended to be consistent with the interests of the Members in the Company and to comply with the requirements of IRC Section 704(b). If such tax allocations do not accomplish that objective, they shall be modified to the extent reasonably necessary to accomplish that objective. 7. CAPITAL ACCOUNTS. 7.1 Capital Account Maintenance. An individual capital account shall be maintained for each Member, in accordance with applicable Treasury Regulations. Subject to such requirement, each Member's capital account shall consist of such Member's initial capital Operating Agreement 7 contribution (i) increased by any additional capital contributions (valued at fair market value) and such Member's share of net income and gains; and (ii) decreased by any distributions and its share of net loss. 7.2 Book-up on Revaluation of Company Property. The Members' individual capital accounts may be increased or decreased to reflect the revaluation of Company property on the Company's books upon the occurrence of those events described in applicable Treasury Regulations. This adjustment shall be made in the manner described in applicable Treasury Regulations. 7.3 Distribution of Property and Constructive Termination. If Company property other than cash is distributed to a Member in liquidation of the Company, capital accounts shall be adjusted for the hypothetical gain or loss that would have been realized by the Company if such property had been sold for cash, to reflect unrealized gain or loss. Capital accounts may also be adjusted upon the constructive termination of the Company as provided in IRC Section 708, as required by applicable Treasury Regulations. 7.4 Target Capital Accounts. The tax allocation provisions of this Agreement are intended to produce final capital account balances ("Target Capital Accounts") which reflect the distribution provisions set forth in Section 6. To the extent that the tax allocation provisions of this Agreement would not produce such Target Capital Accounts, then income, gains, losses, deductions, tax credits and similar items shall be allocated in a manner which produces such Target Capital Accounts, and, if necessary, prior tax returns shall be amended to reallocate such items to produce such Target Capital Accounts. 8. OTHER FINANCIAL MATTERS. 8.1 Fiscal Year. The fiscal year of the Company shall be the calendar year. 8.2 Accounting Method. The Company's books shall be kept on a cash basis in accordance with sound accounting principles consistently applied. 8.3 Tax Matters Partner. Jeffrey B. Davis shall be the "Tax Matters Partner" for purposes of IRC Sections 6221-6232. The Tax Matters Partner shall have the right to exercise the powers and assume the responsibilities set forth in the applicable provisions of the IRC and related regulations. 8.4 Other Elections. The Company shall have the right, as determined by the Managers, to make any other elections or determinations required or permitted for federal or state income tax or other tax purposes. 8.5 Books and Records. The Company shall maintain at its principal executive office the books and records required by Section 17058 of the LLC Act. Members shall have the right to obtain, or to inspect and copy, those records described in Section 17106 of the LLC Act. 8.6 Tax Information. Within ninety (90) days after the end of each fiscal year, the Company shall cause to be prepared and sent to each Member or assignee such tax information and statements as shall be necessary for the preparation by such person of its federal and state income tax returns. Operating Agreement 8.7 Bank Accounts. The Company shall maintain a checking account in the name of the Company at a bank or other financial institution (and with signatories) approved by the Managers. Additional accounts of the Company may be authorized by the Managers. All funds of the Company shall be maintained in such account(s). 8.8 Organization Expenses. The Company shall pay or reimburse the Members for all organizational expenses of the Company, including legal fees and costs incurred in connection with formation of the Company, the Offering or preparation of this Agreement and the Confidential Private Placement Memorandum. 9. MANAGEMENT. 9.1 Managers. The Company shall have two Managers. The business and affairs of the Company shall be managed by or under the authority of the Managers. The Managers shall have full power and authority to act on behalf of the Company, including without limitation the power and authority to execute grant deeds, promissory notes, deeds of trust and other instruments and documents on behalf of the Company. The Managers may from time to time, in writing, delegate authority to one or more Managers, or to one or more officers, to act on behalf of the Company in specified matters, including without limitation the power and authority to execute documents on behalf of the Company (including without limitation grant deeds, promissory notes, deeds of trust and other instruments). 9.2 Appointment and Removal of Managers. The Managers shall be appointed, and may be removed, from time to time by the Managing Members. Investors shall not be entitled to appoint or remove the Managers, nor to vote on such appointment or removal. The initial Managers shall be Jeffrey B. Davis and Herbert M. Palmtag. 9.3 Decisions and Meetings. Decisions of the Managers shall be made by unanimous vote at a meeting at which a quorum is present or by unanimous written consent. Any Manager may call a meeting of the Managers by at least three (3) days advance notice to the other Manager. Unless otherwise approved by the Managers, meetings of the Managers shall be held at the principal executive office of the Company. Managers may participate in a meeting through the use of conference telephones or similar communications equipment, as long as all Managers participating in the meeting can hear one another, and such participation shall constitute presence in person at that meeting. 9.4 Developer Fee. The Company shall pay a developer fee of $258,650 to PDC or such other person(s) as may be designated by the Managing Members. To the extent practical, such fee shall be payable in 20 equal monthly payments from the construction loan for the Project. 9.5 Expenses. The Managers and Officers shall be reimbursed by the Company for all direct expenses incurred on behalf of the Company, subject to appropriate documentation and such policies as may be adopted by the Managers. 9.6 No Exclusive Duty. The Managers nor their Officers shall be required to devote all or substantially all of their time or efforts to the management of the Company. There is no limitation on the outside interests or activities of any Manager or Officer. The Managers and the Officers may have other business interests and may engage in other activities, whether or not such activities or interests are competitive with the Company, without any obligation to offer any interest in such interests or activities to the Company or any Member. Neither the Company nor Operating Agreement y any Member shall have any right to share or participate in any other business interests or activities of a Manager or Officer and each Member waives and releases any right to share or participate in any such interests or activities. 9.7 Member's Authority. No Member shall, acting solely in the capacity of a Member, be an agent of the Company, nor have any authority to bind or act for, nor execute any instrument on behalf of, the Company. 9.8 Arrangements with Members. A Member may transact business with the Company and. subject to other applicable law, has the same rights and obligations with respect thereto as a person who is not a Member. If and to the extent approved by the Managers, the Company may enter into transactions or agreements with the Members (or their affiliates); provided, the terms of any such arrangements shall be no less favorable to the Company as are available from unaffiliated persons. 10. MEETINGS AND VOTING OF MEMBERS. 10.1 Voting Rights. Members shall have the right to vote on only those matters required by law or as expressly provided in this Agreement. On those matters on which the Members are entitled to vote, Members shall vote in accordance with their Profits Percentages. Except as otherwise provided in this Agreement, whenever the approval of the Members is required, such approval shall be by the vote of Members holding a majority of the Profits Percentages. 10.2 Rules and Procedures for Meetings and Voting. The rules and procedures for meetings and voting of Members shall be as set forth in Section 17104 of the LLC Act. 11. OUTSIDE INTERESTS. 11.1 Outside Interests. There is no limitation on the outside interests or activities of any Member. Any Member may have other business interests and may engage in other activities, whether or not such interests or activities are competitive with the Company, without any obligation to offer any interest in such interests or activities to the Company or any Member. Neither the Company nor any Member shall have any right to share or participate in any other business interests or activities of any Member or its affiliates, and each Member hereby waives and releases any right to participate in any such interests or activities. 11.2 Outside Activities. Each Member shall indemnify, defend, protect and hold the Company and the other Members harmless from and against all claims, losses and liabilities, including attorneys' fees and costs, incurred as a result of any activity or liability of such Member not associated with and outside the scope of the business and purpose of the Company. 12. LIABILITY AND INDEMNITY. 12.1 Liability of Members. Except as provided in Section 17254 of the LLC Act, no Member shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability, of the Company, whether that debt, liability or obligation arises in contract, tort or otherwise, solely by reason of being a Member of the Company. Operating Agreement 1 0 12.2 Liability of Managers and Officers. No person who is a Manager or Officer, or both, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether that debt, liability or obligation arises in contract, tort or otherwise, solely by reason of being a Manager or Officer, or both, of the Company. 12.3 Indemnity of Members. The Company shall indemnify, defend, protect and hold the Members (and their respective directors, officers, partners and other agents and representatives) harmless from and against all claims, losses and liabilities, including attorneys' fees and costs, incurred in connection with Company matters, unless such claims, losses or liabilities arise out of bad faith or wilful misconduct by the Member. 12.4 Indemnity of Managers and Officers. The Company shall indemnify, defend, protest and hold the Managers and Officers harmless from and against all claims, losses and liabilities, including attorneys' fees and costs, incurred in connection with Company matters, unless such claims, losses or liabilities arise out of bad faith or wilful misconduct by the Manager or Officer. 12.5 Tax Matters Partner. The Company shall indemnify, defend .protect and hold the Tax Matters Partner harmless from and against all claims, losses and liabilities, including attorneys, accountants and experts fees and costs, incurred in acting as the Tax Matters Partner during or after expiration of the term of the Company. 13. TRANSFER OF INTERESTS AND WITHDRAWAL. 13.1 Approval Required. 13.1.1 Except as otherwise provided in this Agreement, no Member shall transfer such Member's Membership Interest without the approval of the Managing Members, and no purported transfer, whether voluntary, involuntary or by operation of law, shall be effective without such approval. Such approval may be given or withheld in the sole discretion of the Managing Members. The Managing Members may require satisfaction of such conditions and may require such undertakings as the Managing Members deem necessary or appropriate in connection with any proposed transfer of a Membership Interest. 13.1.2 Paragraph 13.1.1 shall not apply to a transfer of a Membership Interest by a Member to (i) any other Member, (ii) such Member's heirs, upon the death of such Member, or (iii) a revocable trust established by an individual Member, and of which all of the principal beneficiaries consist of such Member and/or such Member's heirs, provided such Member is the sole trustee or a co-trustee of such trust, and the trustees of such trust agree to be bound by this Agreement; any transfer by such trust, other than a transfer to the Member who created the trust, shall be subject to the terms of this Agreement. 13.1.3 In addition to any other conditions, the Managing Members may require, as a condition to approving a transfer of a Membership Interest, that (i) the aggregate transfers during the preceding twelve (12) month period, including the proposed transfer, do not exceed forty-nine percent (49%) of the total interest in Company capital and profits, and (ii) that less than 25% of the total Investor Interests are held by Retirement Plan Investors. 13.2 Right of First Refusal. If a Member (the "Transferring Member") desires to sell, exchange, encumber or otherwise transfer (a "Transfer") any or all of such Member's Operating Agreement 1 1 o Membership Interest, or any right or interest therein (the "Transferring Interest"), such Member shall first provide written notice ("Notice of Transfer") to the Managing Members. Such Notice of Transfer must identify the proposed transferee, the Transferring Interest, and all of the terms of the Transfer, including without limitation (as applicable) the consideration for the Transfer and the terms of payment, and be accompanied by a copy of all written agreements between the Transferring Member and any proposed transferee, and other documents, relating to the proposed Transfer. The Managing Members shall then have the exclusive right, for a period of 30 days after receipt of the Notice of Transfer, to acquire the Transferring Interest on the same terms and conditions as set forth in the Notice of Transfer; such option shall be exercised by delivering written notice of exercise to the Transferring Member within such 30-day period. If either Managing Member exercises such option, then such Managing Member shall then be obligated to acquire, and the Transferring Member shall obligated to transfer, the Transferring Interest on the same terms and conditions as provided in the Notice of Transfer. If both Managing Members exercise such option, then each Managing Members shall be obligated to purchase one-half of such Membership Interest. 13.3 Non-Exercise of Rights of Refusal. The Transferring Interest specified in a Notice of Transfer and not purchased by the Managing Members may be sold or transferred at any time within 90 days from the date of such notice, to the transferee named and on the terms an conditions specified in the Notice of Transfer, provided the transferee executes a written instrument agreeing to be bound by the terms of this agreement, in a form acceptable to Company; provided, such transferee shall in any event be bound by the terms of this agreement. 13.4 Status of Transferee. Except for transferees receiving their Membership Interest pursuant to a transfer approved by the Managing Members and otherwise satisfying the requirements of paragraphs 13.1 and 13.2 above, the transferee of a Membership Interest shall be an assignee of an economic interest only, as provided in Section 17301 of the U.C Act. An assignee of an economic interest shall not be entitled to exercise any rights and powers of a Member, including the right to vote, and the assignee shall only be entitled to receive, in accordance with the terms of the transfer, the distributions and allocations the transferring Member otherwise would have received. 13.5 Withdrawal. Except as provided in Section 17252(b) of the LLC Act, no Member may withdraw or resign as a Member of the Company. In the event of an purported withdrawal or resignation, the Company shall not be dissolved. 13.6 Expulsion. Neither the Managers nor a Member shall have the right to expel a Member. 13.7 Bankruptcy. In the event of a bankruptcy of a Member, the bankruptcy estate of such Member shall be the holder of an economic interest only. 14. DISSOLUTION. 14.1 Events of Dissolution. The Company shall be dissolved upon the first to occur of the following events: 14.1.1 The Expiration Date. Operating Agreement 1 2 14.1.2 An election to dissolve by Members holding a majority of the Profits Percentages. 14.1.3 If both of the Managing Members cease to be Members of the Company, unless the business of the Company is continued by a vote of a majority in interest (of both capital and profits) of the remaining Members, within 90 days of the occurrence of that event, and there are at least two remaining Members. 14.2 Winding UP and Liquidation. Upon dissolution of the Company, the Managers shall wind up the affairs of and liquidate the Company in accordance with applicable law and distribute the net proceeds of liquidation to the Members pursuant to this Agreement. 14.3 Time for Liquidation. A reasonable time shall be allowed for the orderly liquidation of Company property and the discharge of Company debts, liabilities and obligations, so as to reduce the loss normally resulting from a liquidation. 14.4 Certificate of Dissolution of Company. Upon dissolution of the Company, the Managers shall execute, file, publish and record such certificates of dissolution and cancellation, tax returns and other documents and instruments as may be required under applicable law. 15. AMENDMENT. This agreement may be amended with the approval of the Managing Members and a majority in interest of Members holding Investor Interests; provided, however, no amendment may increase the duties or obligations of a Member without the approval of such Member. 16. GENERAL PROVISIONS. 16.1 Notices. Except as otherwise provided in this Agreement, any notice or other communication given to any Member under this agreement or applicable law shall be in writing and shall be deemed duly given (i) on the date of delivery if personally delivered to the Member (if an individual) or to an executive officer or other authorized representative or of a Member (if an entity), or (ii) one business day after delivery if sent to a Member by facsimile, telegram or overnight courier to such Member's address as provided to the Company, or (iii) three (3) business days after mailing if sent by first class mail, postage prepaid, and properly addressed to the Member at such Member's address as provided to the Company, or such other address designated from time to time by such Member for this purpose. 16.2 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, beneficiaries, legal representatives, successors, assigns and personal representatives of the respective Members, subject to the restrictions on transfer contained in this Agreement. 16.3 Severabilitv. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the rest of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 16.4 Entire Agreement. This Agreement contains the entire understanding among the Company and the Members and supersedes any prior written or oral representations, Operating Agreement 1 3 understandings and agreements between the Company and the Members with respect to the subject matter of this Agreement. Any purported modifications or amendments of this Agreement shall be of no force or effect unless contained in a subsequent written agreement signed by the Member(s) to be charged. 16.5 Construction. This agreement has been negotiated at arms length and each party has been or has had the opportunity to be represented by legal counsel. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this agreement against the party drafting it is not applicable and is waived. The provisions of this agreement shall be interpreted in a reasonable manner to effect the intent of the parties and the purpose of this agreement. 16.6 Paragraph Headings. The captions of the paragraphs in this Agreement are inserted as a matter of convenience and for reference only and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of its provisions. 16.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 16.8 Waiver. The failure to enforce any provision of this Agreement shall not constitute a waiver thereof or the right to enforce such provision thereafter. 16.9 Attorneys' Fees. If any party institutes or is made a party to an action or proceeding to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable attorneys' fees and costs (whether otherwise taxable or recoverable) incurred in connection with such action or proceeding, or any appeal or enforcement of such action or proceeding. 16.10 Further Assurances. The parties covenant and agree that they will execute such other and further instruments and documents as are or may become necessary or convenient to effectuate and carry out this Agreement. 16.11 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument. 16.12 Gender. As used in this agreement, the masculine, feminine or neuter gender, and the singular or plural number shall each be deemed to include the others whenever the context so indicated. 16.13 Time. Time is of the essence under this agreement. 17. INVESTOR REPRESENTATIONS. 17.1 Representations and Warranties. Each Member represents and warrants as follows: 17.1.1 Such Member is a bona fide permanent resident of the State of California. Operating Agreement 14 17.1.2 Such Member knows of no public solicitation or advertisement conducted by the Company or any other person with respect to the offer and sale of Membership Interests. 17.1.3 Such Member is acquiring a Membership Interest for such Member's own account (or a trust account if such Member is a trustee) for purposes of investment and not with a view to or for sale in connection with any distribution of the Membership Interests. 17.1.4 Such Member: (i) has a pre-existing personal or business relationship with the Managing Member; and (ii) has the capacity to protect such Member's own interests in connection with the purchase of Membership Interests, by reason of such Member's business or financial experience. 17.1.5 Such Member has received, reviewed and understands this agreement or, to the extent such Member did not understand this agreement, such Member has obtained advice from such Member's own independent advisors and, based upon such independent advice, such Member fully understands this agreement and the risks associated with this investment. Such Member and/or such Member's independent advisors have had a reasonable opportunity to ask questions of and receive answers concerning the Property, the Project, the Company and Membership Interests, and all such questions have been answered to the satisfaction of such Member. 17.2 Acknowledgments. Each Member acknowledges and agrees as follows: 17.2.1 Such Member understands the return on such Member's investment is determined solely by the terms of this Agreement and no additional return of such Member's investment has been guaranteed or assured. 17.2.2 Such Member understands that neither the Managers, the Managing Member nor any other person has guaranteed return of such Member's investment, or will be liable or responsible for any return of such Member's investment. 17.2.3 Such Member understands there will be no recognizable market for the resale or distribution of Membership Interests. 18. REPRESENTATION. The parties acknowledge that this agreement has been prepared by Greg D. Judkms, who represents the Company and its Members, and that such representation involves the representation of multiple, conflicting interests. By executing this agreement, the parties acknowledge and confirm that (i) each party has been advised of the right to seek independent counsel, and (ii) each party has given such party's informed written consent to such representation of multiple, conflicting interests. The cost of preparing this agreement shall be borne by Company. Operating Agreement 1 b 19. ALTERNATE DISPUTE RESOLUTION PROVISIONS. Any dispute, claim or other controversy arising under this Agreement or in connection with the Company, the Offering or the Property, including without limitation any dispute regarding the interpretation or enforcement of this Agreement and any claims asserted against a Member, Manager, Officer or an affiliate, agent or representative of a Member. Manager, Officer or affiliate (at the request of such person), shall be resolved pursuant to the Alternative Dispute Resolution Provisions attached as an Addendum to this Agreement. All persons covered by this provision, if not a Member, shall be third party beneficiaries of this provision. 110 Juniper Street San Diego, CA 92101 Herbert M. Palmtag Address: 110 Juniper Street San Diego, CA 92101 Jeffrey B. Davis, Co-Trustee of the Davis Family Trust UH7A Dated October 7,1980 Address:110 Juniper Street n Diego, CA 92101 'X7 Bernard E. Frpp,-^Trustee U/T/A Dated November 29,1979 Bevejhy Fipp, Coffrustee U/t/A Dated November 29, 1$79 Address: 7728 Hidden Valley Court La Jolla, California 92037 Operating Agreement 16 8PACE ABOVE THIS LINE FOR RECORDER'S US- gitatc of California Secretary SACRAMENTO /, BILL JONES, Secretary of State of California, hereby certify: That the annexed transcript of I page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN VITKESS Pf "HEREOF, I execute this certificate and affix the Great Seal of the State of California AUG 1 f 199&. Secretary of Slot* SEC BTATt FORM \f 222A (ft State of CaliforniaBill JonesSecretary of State LIMITED LIABILITY COMPANY ARTICLES OF ORGANIZATION LLC-1 IMPORT ANT - Read the instruction* before completing the form. Tblc document is presented lor filing pursuant to Section 17050 of the California Corporations Code. 1. Limited liability company name:M*tttikiiUMJ£ir'l Carlsbad Estates LLC 2. Latest da!* (month/day/year) to which the limited liability company it to dissolve: December 31, 2001 The purpose gf the limited liability tampan) is to engage in any lawful act or actirity for which a limited liabihry company may be organized under the Bmrty-KilUa Limited Liability Company Act 4. Enter the same of initial agent for service of process and check the appropriate provision below: Jtfcey B. Davis , which ii 'X ] an individual residing in California. Proceed to Item S. I ] a corporation which has filed a eerilficiw pursuant to Section 150$ of the California Corporations Code. Skip Item 5 and proceed to Item 6. 5. If the initial agent for service of process Is aa Individual, enter a business or residential street address in California.: / Streetidd-eu: 110 Juniper Street Cily: San Diego State:CALIFORNIA ZlpCodr. 92101 £. The limited liability company will be managed by : (check one) [ 1 one manager [ X] more than one manager i limited liability company memoers ?. If other matters art to be included in the Articles of Organization attach one or more separate pages. Number of pajes attached, if any: B. It Is hereby declared that I stm the person who executed thii instrument which execution it my act and deed. SignatirtofA^anizer Grej D^ Judkins Type or print name of organizer Dt:c: August^ «f ti»u 1/11 For Sctrnary ofStatt TJtc MUDwe offict oi the Setrrery of Stat»' grtate of California ibecretarp of H>tate ^jjjg/ PillSone* LIMITED LIABILITY COMPANY - STATEMENT OF INFORMATION A $10.00 FILING FEE MUST ACCOMPANY THIS FORM. IMPORTANT- Read Instructions On Back Before Completing This Form. 1. LIMITED LIABILITY COMPANY NAME Carlsbad Estates LLC THIS SPACE FOR FILING USE ONLY 2. SECRETARY OF STATE FILE NUMBER 3. JURISDICTION OF FORMATION 101998222014 California 4. STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE CfTY AND STATE ZIP CODE 110 Juniper Street San Diego, CA 92101 5. STREET ADDRESS IN CALIFORNIA OF OFFICE WHERE RECORDS ARE MAINTAINED (FOR DOMESTIC ONLY) CfTY ZIP CODE 110 Juniper Street San Diego CA 92101 •LIST THE NAME AND COMPLETE ADDRESS OF ANY MANAGER OR MANAGERS, AND CHIEF EXECUTIVE OFFICER, IF ANY. OR IF NONE HAVE •BEEN APPOINTED OR ELECTED. PROVIDE THE NAME AND ADDRESS OF EACH MEMBER. {CHECK THE APPROPRIATE DESIGNATION). ATTACH ADDITIONAL PAGES IF NECESSARY. e. NAME .Jeffrey B. Davis . [Xl MANAGER ADDRESS 110 Juniper Street i i CHIEF EXECUTIVE OFFICER San Diego CA 92101crrr y STATE ZIP CODE [ i MEMBER 7. NAME ADDRESS CPTY Herbert M. Palmtag110 Juniper Street San Diego STATE CA 92101 ZIP CODE ( 1 MEMBER [Xl MANAGER [ ] CHIEF EXECUTIVE OFFICER B. NAME THE AGENT FOR SERVICE OF PROCESS AND CHECK THE APPROPRIATE PROVISION BELOW: Jeffrey B . Davi s WHICH is [ X AN INDIVIDUAL RESIDING IN CALIFORNIA, PROCEED TO fTEM 9. I 1 A CORPORATION WHICH HAS RLED A CERTIFICATE PURSUANT TO SECTION 1505. PROCEED TO fTEM 10. 9. STREET ADDRESS OF THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA. 110 Juniper Street cmr San Diego CA ZIP CODE 92101 10. DESCRIBE TYPE OF BUSINESS OF THE LIMITED LIABILITY COMPANY. Real Estate Development 11. NUMBER OF PAGES ATTACHED. IF ANY. 0 12. 1 DECLARE THAT THIS STATEMENT IS TRUE, CORRECT AND COMPLETE. SIGNATURE OF INDIVIDUAL AUTHORIZED TO SIGN Jeffrey B. Davis DATE TYPE OH PRINT NAME AND TITLE OF PERSON SIGNING DUE DATE:Q SUBDIVISION GUARANTEE Fee: Order No.: Subdivision: $400.00 243086-05 Carlsbad Tract No. 97-24 LAWYERS TITLE INSURANCE CORPORATION, a Virginia Corporation GUARANTEES The County of San Diego and any City within which said Subdivision is located in a sum not exceeding $1,000.00. That, according to those public records which, under the recording laws, impart constructive notice of matters affecting the title to the land included within the exterior boundary shown on the map of the above referenced subdivision, the only parties having any record title interest in said land whose signatures are necessary, under the requirements of the Subdivision Map Act, on the certificates consenting to the recordation of said Map and offering for dedication any streets, roads, avenues, and other easements offered for dedication on said map are: See Exhibit "A" Attached The map hereinbefore referred to is a subdivision of: See Exhibit "B" Attached IN WITNESS WHEREOF, the Company has caused the Guarantee to be signed and sealed and to be valid when countersigned by an authorized officer or agent of the Company, all in accordance with its By-Laws. Dated: March 24, 1999 at 7:30 A.M. Countersigned by: Authorized Officer or Insurance ©rporation By: Q£*£ 4. dfy>*4 U President st / xAtlMtt Secretary. ISSUING OFFICE: LAWYERS TITLE COMPANY 4542 Ruffiner Street, Suite 200 San Diego, CA 92111 RECEIVED APR 0 2 1Sc'd ENGINEERING DEPARTMENT SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 Order No.: 243086-05 EXHIBIT "A" SIGNATURES FOR MAP: Owner: Carlsbad Estates LLC, a California Limited Liability Company EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE OF INTEREST: easement OWNER: WM G. Kerckhoff Company BY DOCUMENT('S) RECORDED: July 26, 1941 in Book 1221, Page 14 OF OFFICIAL RECORDS EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE OF INTEREST: An easement OWNER: San Diego Gas and Electric BY DOCUMENT(S) RECORDED: January 18, 1945 in Book 1810 Page 70 OF OFFICIAL RECORDS EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE OF INTEREST: An easement OWNER: County of San Diego BY DOCUMENT(S) RECORDED: December 14, 1944 in Book 1795 Page 66 OF OFFICIAL RECORDS TRUST DEEDS: THE SIGNATURE OF ONE OF THE PARTIES NAMED BELOW WILL BE REQUIRED AS TRUSTEE OR BENEFICIARY UNDER DEED OF TRUST RECORDED: August 31, 1998 as File/Page No. 1998-0554696 OF OFFICIAL RECORDS TRUSTEE: BankShares Service Corporation BENEFICIARY: First National Bank SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 Order No.: 243086-05 SIGNATURES FOR MAP (continued) 5. / TRUST DEEDS: THE SIGNATURE OF ONE OF THE PARTIES NAMED BELOW WILL BE REQUIRED AS TRUSTEE OR BENEFICIARY UNDER DEED OF TRUST RECORDED: August 31, 1998 as File/Page No. 1998-0554697 OF OFFICIAL RECORDS TRUSTEE: Lawyers Title Company, a California corporation BENEFICIARY: F.I.B. Corp., a Nevada Corporation EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE OF INTEREST: An Easement OWNER: SDG&E BY DOCUMENT(S) RECORDED: January 18, 1945 in Book 1801 Page 313 OF OFFICIAL RECORDS SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 Order No.: 243086-05 EXHIBIT "B" The map hereinbefore referred to is situated in the State of California, County of San Diego, and is a subdivision of: That portion of Lot "I" of Rancho Agua Hedionda, in the County of San Diego, State of California, according to Map thereof No. 823, filed in the Office of the County Recorder of San Diego County, November 16, 1896, described as follows: Commencing at the intersection of the Westerly line of said Lot "I" with the center line of Monroe Street as shown on the Map No. 1681 of Thum Lands on file in the Office of the Recorder of said San Diego County, December 12, 1915 being the most Westerly comer of land described in deed to R. W. Poindexter dated June 30, 1941 and recorded in Book 1221, page 14 of Official Records, said point of commencement being also the most Northerly comer of Bella Vista according to Map thereof No. 2152 on file in the Office of the Recorder of said San Diego County, March 7, 1929; thence along the Northeasterly boundary of Bella Vista, being also the Southwesterly line of Road Survey No. 975, according to the map thereof on file in the Office of the County Engineer of said San Diego County as follows: South 28°39'00" East, 397.70 feet (record - 397.56 feet) to an angle point in said boundary; thence South 26°11'00" West, along said boundary, 40.00 feet, more or less, to an intersection with the Northwesterly prolongation of the Southwesterly line of Monroe Street as shown on Map No. 2647 of Carlsbad Highlands filed in the Office of the Recorder of San Diego County, April 18, 1950 and being the True Point of Beginning; thence continuing along the Easterly boundary of said Bella Vista and the Westerly line of Road Survey No. 975, South 26°11'00" West, 479.13 feet to the Southwesterly corner of said land of Piondexter; thence along the Southwesterly line of said land South 63°49'00" East, 425.00 feet to the Southeasterly comer of said land, being a point on the Southwesterly prolongation of the Northwesterly line of Lot 36 of said Carlsbad Highlands; thence along said prolongation and along the Northwesterly line, of said Lot 36, North 26°11"00" East, 479.13 feet to the Northwesterly comer of said lot, being a point on the aforementioned Southwesterly line of Monroe Street as shown on Map No. 2647; thence along said Southwesterly line and the Northwesterly prolongation thereof, North 63°49"00" West, 425.00 feet to the True Point of Beginning. Excepting therefrom that portion thereof conveyed to the City of Carlsbad by deed recorded September 21, 1979 as File/Page No. 79-396015 of Official Records of said San Diego County. END OF SCHEDULE A SUBDIVISION GUARANTEE Fee: Order No.: Subdivision: $400.00 243086-05 Carlsbad Tract No. 97-24 LAWYERS TITLE INSURANCE CORPORATION, a Virginia Corporation GUARANTEES The County of San Diego and any City within which said Subdivision is located in a sum not exceeding $1,000.00. That, according to those public records which, under the recording laws, impart constructive notice of matters affecting the title to the land included within the exterior boundary shown on the map of the above referenced subdivision, the only parties having any record title interest in said land whose signatures are necessary, under the requirements of the Subdivision Map Act, on the certificates consenting to the recordation of said Map and offering for dedication any streets, roads, avenues, and other easements offered for dedication on said map are: See Exhibit "A" Attached The map hereinbefore referred to is a subdivision of: See Exhibit "B" Attached IN WITNESS WHEREOF, the Company has caused the Guarantee to be signed and sealed and to be valid when countersigned by an authorized officer or agent of the Company, all in accordance with its By-Laws. Dated: January 22, 1999 at 7:30 A.M. Countersigned by: Iaujyeis]Ttle Insurance @rporatkxa . tfrntll }u "" Svwatani, ISSUING OFFICE: LAWYERS TITLE COMPANY 4542 Ruffner Street, Suite 200 San Diego, CA 92111 SUBDIVISION GUARANTEE CLTA Guarantee Form No. Revised 4-10-75 14 SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 Order No.: 243086-05 EXHIBIT "A" SIGNATURES FOR MAP: Owner: Carlsbad Estates LLC, a California Limited Liability Company 1. EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a) (3) (A) (i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE.OF INTEREST: easement OWNER: WM G. Kerckhoff Company BY DOCUMENT(S) RECORDED: ' July 26, 1941 in Book 1221, Page 14 OF OFFICIAL RECORDS 2. EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. NATURE OF INTEREST: An easement OWNER: San Diego Gas and Electric BY DOCUMENT(S) RECORDED: January 18, 1945 in Book 1810 Page 70 OF OFFICIAL RECORDS 3. EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. /NATURE OF INTEREST: An easement . / OWNER: County of San Diego v BY DOCUMENT(S) RECORDED: December 14, 1944 in Book 1795 Page 66 OF OFFICIAL RECORDS 4. /TRUST DEEDS: THE SIGNATURE OF ONE OF THE PARTIES NAMED BELOW WILL BE REQUIRED AS TRUSTEE OR BENEFICIARY UNDER DEED OF TRUST RECORDED: August 31, 1998 as File/Page No. 1998-0554696 OF OFFICIAL RECORDS TRUSTEE: BankShares Service Corporation BENEFICIARY: First National Bank 02/01/99 09:31 ©6192786049 LAWYERS TITLE-SO SUBDIVISION GUARANTEE CLTA Guarantee Form No. 14 Revised 4-10-75 Order No.: 243086-05 SIGNATURES FOR MAP (oan-tijrauad) TRUST DEEDS: THE SIGNATURE OF ONE OF THE PARTIES NAMED BELOW WILL BE REQUIRED AS TRUSTEE OR BENEFICIARY UNDER DEED OF TRUST RECORDED: Augusrt 31, 1998 as File/Page No. 1998-0554697 OF OFFICIAL RECORDS TRUSTEE: Lawyers Title Company, a California corporation BENEFICIARY: F.I.B. Corp., a Nevada Corporation 6. EASEMENTS: THE SIGNATURE OF THE PARTY NAMED HEREINAFTER AS OWNER OF THE INTEREST /SET FORTH, MAY BE OMITTED UNDER THE PROVISIONS OF SECTION 66436, SUBSECTION / (a)(3)(A)(i) OF THE SUBDIVISION MAP ACT, THEIR INTEREST IS SUCH THAT IT CANNOT / RIPEN INTO A FEE TITLE AND SAID SIGNATURE IS NOT REQUIRED BY THE LOCAL AGENCY. V NATURE OF INTEREST: An Easement OWNER: SDG&E BY DOCUMENT(S) RECORDED: January 18, 1945 in Book 1801 Page 313 OF OFFICIAL RECORDS SUBDIVISION GUARANTEE CLTA Guarantee Form No. Revised 4-10-75 Order No.: 243086-05 14 EXHIBIT "B" The map hereinbefore referred to is situated in the State of California, County of San Diego, and is a subdivision of: That portion of Lot "I" of Rancho Agua Hedionda, in the County of San Diego, State of California, according to Map thereof No. 823, filed in the Office of the County Recorder of San Diego County, November 16, 1896, described as follows: Commencing at the intersection of the Westerly line of said Lot "I" with the center line of Monroe Street as shown on the Map No. 1681 of Thum Lands on file in the Office of the Recorder of said San Diego County, December 12, 1915 being the most Westerly corner of land described in deed to R. W. Poindexter dated June 30, 1941 and recorded in Book 1221, page 14 of Official Records, said point of commencement being also the most Northerly corner of Bella Vista according to Map thereof No. 2152 on file in the Office of the Recorder of said San Diego County, March 7, 1929; thence along the Northeasterly boundary of Bella Vista, being also the Southwesterly line of Road Survey No. 975, according to the map thereof on file in the Office of the County Engineer of said San Diego County as follows: South 28°39'00" East, 397.70 feet (record - 397.56 feet) to an angle point in said boundary; thence South 26°11'00" West, along said boundary, 40.00 feet, more or less, to an intersection with the Northwesterly prolongation of the Southwesterly line of Monroe Street as shown on Map No. 2647 of Carlsbad Highlands filed in the Office of the Recorder of San Diego County, April 18, 1950 and being the True Point of Beginning; thence continuing along the Easterly boundary of said Bella Vista and the Westerly line of Road Survey No. 975, South 26°11'00" West, 479.13 feet to the Southwesterly corner of said land of Piondexter; thence along the Southwesterly line of said land South 63°49'00" East, 425.00 feet to the Southeasterly corner of said land, being a point on the Southwesterly prolongation of the Northwesterly line of Lot 36 of said Carlsbad Highlands; thence along said prolongation and along the Northwesterly line, of said Lot 36, North 26°11'00" East, 479.13 feet to the Northwesterly corner of said lot, being a point on the aforementioned Southwesterly line of Monroe Street as shown on Map No. 2647; thence along said Southwesterly line and the Northwesterly prolongation thereof, North 63°49'00" West, 425.00 feet to the True Point of Beginning. Excepting therefrom that portion thereof conveyed to the City of Carlsbad by deed recorded September 21, 1979 as File/Page No. 79-396015 of Official Records of said San Diego County. END OF SCHEDULE A 09 207-06 SHT I OF 2 CHANGES BLK <%' OLD 5 Wi/< 22(23 12 ZS NEW «<V7 IS-24 23 uJSLi^za YR S3 94 84 as B7 CUT 2912ysz itie. 2dS3 1755 SAN OlEGO COUNTV •••.-- ASSESSOPS MAP 9COK 207 PAGE 06 SHT. I OF 2 MAP 6503-CARLSBAD MANOR UNIT NO. I1 MAP 2647-CARLSBAD HIGHLANDSMAP 823 -RANGHO AGUA HEDIONDA ' ROS 939,4484